Manjubai Wd/O Madhukar Ruikar & 2 ... vs Dr. Shripad Govindrao Deshpande
2017 Latest Caselaw 1946 Bom

                                       1                                                                wp3245.08

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH : NAGPUR


                            WRIT PETITION NO.3245/2008


1.   Manjubai Wd/o Madhukar Ruikar,
     aged about 65 Yrs., Occu. Household.

1A. Sujit S/o Madhukar Ruikar, 
    aged about 39 Yrs., Occu. Business.

1B. Manoj S/o Madhukar Ruikar, 
    aged about 32 Yrs., Occu. Business.

     Applicant Nos.1 & 2 R/o Deshpande's 
     House, Plot No.67, Opposite Lendhra 
     Park, Ramdaspeth, Nagpur. 

1C. Papiya Mangesh Khodankar, 
    aged about 49 Yrs., R/o Banerjee 
    Layout, Near Bhagwannagar Post Office, 
    Nagpur.

1D. Leena Prashant Bondre, 
    aged about 46 Yrs., R/o I-503, Janki 
    Apartment, Oppo. Sanskar Upavan, 
    Narayanpura, Kolar Road, Bhopal 
    462 042 (Madhya Pradesh)

2.   Sujit S/o Madhukar Ruikar,
     aged about 39 Yrs., Occu. Business.

3.   Manoj S/o Madhukar Ruikar,
     aged about 32 Yrs., Occu. Business.

     All R/o Deshpande's house, Plot No.67, 
     Opposite Lendhra Park, Ramdaspeth, 
     Nagpur. 
                                                                                     .. PETITIONERS.

           ..Vs..



        ::: Uploaded on - 30/05/2017                                 ::: Downloaded on - 28/08/2017 00:33:46 :::
                                                                                   2                                                                wp3245.08

Dr. Shripad Govindrao Deshpande,   
aged about 57 Yrs., Occu. Medical Practitioner, 
R/o Plot No.67, Opposite Lendhra 
Park, Ramdaspeth, Nagpur.                                                                                                                     ..RESPONDENTS.


  - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 
            Shri Rajeev Madkholkar, Advocate for the petitioners. 
            Shri S.P. Bhandarkar, Advocate for the respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 


                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     24.4.2017.



ORAL JUDGMENT:

1. Heard Shri Rajeev Madkholkar, Advocate for the petitioners and

Shri S.P. Bhandarkar, Advocate for the respondent.

2. The original defendants (tenants) have challenged the judgment

and decree passed by the subordinate Courts concurrently upholding the claim

of the original plaintiff (landlord) for possession of the suit premises by evicting

the tenants.

The landlord had filed an application under Clause 13(3)(i)(vi) and

(vii) of the Central Provinces and Berar Letting of Premises and Rent Control

Order, 1949 (for short "the Rent Control Order, 1949") seeking permission to

terminate the tenancy of the tenant (Smt. Manjubai - defendant No.1). The

House Rent Controller by an order dated 1 st July, 2002 directed Smt. Manjubai

3 wp3245.08

to pay arrears of rent along with interest at the rate of 9% per annum within

three months. The House Rent Controller had further directed that if Smt.

Manjubai failed to pay arrears of rent along with interest within three months,

the landlord will be granted permission to terminate the tenancy under Clause

13(3)(i) of the Rent Control Order, 1949.

The landlord filed Regular Civil Suit No.3/2003 seeking decree for

eviction on the ground that the tenant failed to pay the arrears of rent as per

the order passed by the House Rent Controller, that the tenant had changed the

use of the suit premises from residential to non-residential purposes without

the consent of the landlord and that the suit premises were required by the

landlord for his bona fide need.

The learned trial Judge, after conducting the trial found that the

landlord had substantiated his claim and granted decree for possession. The

judgment and decree passed by the trial Court was challenged by the tenant in

appeal under Section 26A of the Provincial Small Causes Courts Act, 1887

which is dismissed by the impugned judgment.

3. The learned Advocate for the petitioners - tenants have assailed the

impugned judgment on the following grounds:

                                  4                                                                wp3245.08



(i)            The civil suit was filed under the Maharashtra Rent

Control Act, 1999 (for short "the Act of 1999") and there is nothing in the pleadings or evidence on the basis of which the landlord can claim decree under Section 15 of the Act of 1999.

(ii) The pleadings of the landlord show that he relied on the order passed by the House Rent Controller on 1 st July, 2002 and though the House Rent Controller had not recorded any conclusive finding about he arrears of rent, the subordinate Courts have wrongly upheld the claim of the landlord for eviction of tenant on the ground that the tenant has not paid the arrears of rent as per the order passed by the House Rent Controller and that the landlord has legally and validly terminated the tenancy of tenant.

(iii) The application filed by the landlord under Clause 13(3)(i)(vi) and (vii) is disposed on 1 st July, 2002 i.e. much after coming into force of the Act of 1999 and as per Section 58(2) of the Act of 1999 the proceedings before the House Rent Controller were saved and, therefore, the landlord ought to have amended the application and sought permission under Clause 13(3)(iv) and (v) also on the grounds as stated in the plaint filed under the Act of 1999 and having not done so, it has to be held that the landlord waived his right to seek eviction of tenant on the ground that the tenant has changed the use of the suit premises from residential to non-residential purpose. It is argued that in the above facts, it has to be held that the claim of the landlord on the ground that the tenant has changed the use of

5 wp3245.08

the suit premises is hit by constructive res judicata and doctrine of promissory estoppel.

(iv) The House Rent Controller having rejected the claim of the landlord under Clause 13(3)(vi) of the Rent Control Order, 1949 those findings operate as res judicata and overlooking those findings the subordinate Courts have wrongly upheld the claim of the landlord under Section 16(1)(g) of the Act of 1999.

(v) As per Section 16(1)(n) of the Act of 1999 cause of action for seeking decree arises if the premises are not used without reasonable cause for the purpose for which they were let out for continuous period of six months immediately preceding the date of filing of the suit and in the present case the landlord has pleaded that the tenant has left the suit premises and started residing in the house of Mr. Naidu in Modern Society, Chhatrapati Nagar, Nagpur in 1998 and as per the pleadings of landlord the cause of action arose in 1998 when the Rent Control Order, 1949 was in operation and the Act of 1999 had not come into force and, therefore, the cause of action having arisen before the Act of 1999 came into force, the landlord could not have sought decree under the provisions of Section 16(1)(n) of the Act of 1999.

The learned Advocate for the petitioners has relied on the judgment

given in the case of Shriniwas Harinarayan Lahoti since deceased his L.Rs. Smt.

Vimal S. Lahoti and others V/s. Dnyaneshwar Ganesh Pawar and another

6 wp3245.08

reported in 2005(4) Mh.L.J. 146 and the judgment given in the case of

Dulanbi Mirasaheb Belgaonkar V/s. Annappa Kurka Devadiga reported in 2002

(1) Mh.L.J. 507 to support the contention that the claim of the landlord under

Section 16(1)(n) of the Act of 1999 is not justified.

4. The learned Advocate for the respondent - landlord has supported

the impugned judgment.

5. After considering the submissions made by the learned Advocates

for the respective parties and examining the documents placed on the record of

the petition, I find that the subordinate Courts have committed an error in

upholding the claim of the landlord for eviction of tenant on the ground that

the arrears of rent are not paid as directed by the House Rent Controller by the

order dated 1st July, 2002. Similarly, I find that the subordinate Courts have

committed an error in upholding the claim of the landlord on the ground that

the suit premises are required by him for his bona fide use i.e. for running

dispensary.

6. On reading of the plaint it is clear that the landlord had not sought

decree for eviction under Section 15 of the Act of 1999. On examining the

facts, I find that the necessary ingredients to seek relief under Section 15 of the

Act of 1999 are also not pleaded as it is undisputed that the landlord had not

7 wp3245.08

issued any notice of demand of arrears of rent as required by Section 15 of the

Act of 1999. The landlord relied on the order passed by the House Rent

Controller on 1st July, 2002 and pleaded that the arrears of rent were not paid

as directed by the above order, therefore, the landlord had terminated the

tenancy by issuing notice under Section 106 of the Transfer of Property Act.

Clause 13(3)(i) of the Rent Control Order, 1949 provided that if the tenant was

in arrears of rent for any aggregate period of six months on the date of filing of

the application and he failed to deposit the amount with the House Rent

Controller, the House Rent Controller had the powers to direct the tenant to

deposit the amount within stipulated time. Clause 13(3)(i) of the Rent

Control Order, 1949 required the House Rent Controller to determine the

amount of arrears of rent and the burden was on the landlord to prove his

claim that the tenant was in arrears of rent. The order passed by the House

Rent Controller on 1st July, 2002 shows that the House Rent Controller had not

determined the amount of arrears of rent and the directions were given to the

tenant to pay the arrears of rent, if any. Thus, in the absence of any

adjudication about arrears of rent, it cannot be said that the tenant is liable for

eviction on the ground that the order passed by the House Rent Controller is

not complied with.

7. As far as the claim of the landlord for decree for eviction on the

ground that the suit premises are required by him for his bona fide use for

8 wp3245.08

running dispensary, I find that the pleadings and evidence on the record are

not sufficient to uphold the claim of the landlord. The pleadings on this

ground are as follows:

"4. That the plaintiff's family consists of three members i.e. plaintiff, his wife and son named Swapanil who is aged about 16 years. The plaintiff along with his family members, is residing on the 1st floor of house no.252. The plaintiff is Homeopathy Doctor and he wants suit premises for running his Homeopathy dispensary. The plaintiff submits that Northern block on ground floor is in possession of the sister of named Smt. Kusum Bhamburkar whose husband expired in the year 1994. Thus the need of suit block for dispensary of plaintiff is genuine and bonafide."

As it happens, the affidavit filed by the landlord - plaintiff in lieu of

his examination-in-chief is replica of plaint and the averments are as follows:

"3. That my family consists of three members i.e. myself, my wife, and son named Swapnil, who is aged about 16 years, I am residing on first floor along with my family. I am Homeopathy Doctor and I want suit premises for running Homeopathy dispensary. It submit that northern block on ground floor is in possession of my sister named Smt. Kusum Bhambhurkar, whose husband expired in the year 1994. I need the suit block of dispensary and my need is genuine and bonafide."

It has come on the record that the plaintiff is residing on 1 st floor in

the same premises, that part of the premises were vacant and according to the

plaintiff they are occupied by his widowed sister. The plaintiff has neither

pleaded nor has led any evidence to show that since when the sister of plaintiff

is occupying the block and when the plaintiff felt the requirement of premises

in question for starting his dispensary. Though the plaintiff has pleaded that

9 wp3245.08

he is living on the 1st floor alongwith his wife and his son, there are no

pleadings about the extent of area in possession of the plaintiff. I find that the

pleadings and evidence on record are not sufficient to establish the claim of the

plaintiff - landlord on the ground that the suit premises are required for his

bona fide occupation. The subordinate Courts have granted the claim on this

ground for the asking without adverting to the requirements of Section 16(1)

(g) of the Act of 1999. On this point, again subordinate Courts committed an

error by overlooking the fact that the House Rent Controller rejected the claim

of the landlord under Clause 13(3)(vi) of the Rent Control Order 1949 by order

dated 1st July, 2002 and immediately within six months, the civil suit came to

be filed. In the above facts, the findings recorded by the subordinate Courts

on this point are unsustainable.

8. As far as Section 16(1)(n) of the Act of 1999 is concerned, I find

that the claim of the plaintiff - landlord is rightly upheld and there is no

irregularity or illegality in the conclusions of the subordinate Courts.

The submission made on behalf of the petitioners - tenants that the

pleadings in paragraph No.3 show that the cause of action for seeking eviction

of the tenant on the ground that the tenant has left the suit premises and is not

using it for residing and has converted the use of the suit premises for

non-residential purposes, show that the cause of action arose in 1998 and as at

10 wp3245.08

that time the Act of 1999 had not come into force and Rent Control Order,

1949 was in force, the landlord should have approached the House Rent

Controller for appropriate orders seeking eviction under Clause 13(3) (iv) and

(v) of the Rent Control Order, 1949, is misdirected. In paragraph No.11 of the

plaint it is stated that the cause of action for filing the suit arose on 1 st

December, 2002. Though in paragraph No.3 of the plaint it is pleaded that the

tenant had left the suit premises in 1998 and went to reside in Chhatrapati

Nagar and the sons of the tenant started cable business in the suit premises

since 1998, it cannot be said that the landlord could not have claimed decree

for eviction under Section 16(1)(n) of the Act of 1999.

From the facts on the record it is clear that the cause of action, as

pleaded by the landlord, was continuous one and the learned Advocate for the

petitioners - tenants has not been able to point out any provision under the Act

of 1999 on the basis of which it can be said that for a cause of action which

arose before the Act of 1999 came into force, the landlord will not be entitled

to invoke the provisions of the Act of 1999. The advocate for the petitioners -

tenants relies on the provisions of Section 58 of the Act of 1999 to support his

arguments, however, this provision only saves the proceedings initiated under

the Rent Control Order, 1949 and it does not take away the right of the

landlord to file proceedings under the Act of 1999 if cause of action arose

before the Act of 1999 came into force. In any case, I have held that the cause

11 wp3245.08

of action is continuous one and as the landlord has proved his claim under

Section 16(1)(n) of the Act of 1999, the findings recorded by the subordinate

Courts on this ground and the decree for eviction on this ground are proper.

The subordinate Courts have rightly considered and appreciated the evidence

on record and have found that the suit premises were given for residential

purpose, that the tenant had left the premises and started residing elsewhere

and started cable business in the suit premises. The landlord has established

that the defendant No.2 (son of tenant) obtained registration certificate for

conducting the business of cable operation, that the registration certificate

showed that the business was to be conducted in the suit premises, that the

notice issued by the landlord on 21st February, 2003 to the tenant was served

on the address at Bharat Nagar where tenant shifted her residence. The

subordinate Courts have also recorded that the summons of the suit are served

on the address at Bharat Nagar and not at the suit premises. This shows that

the tenants shifted their residence. Though the learned Advocate for the

petitioners has argued that the endorsement on the suit summons are not

properly proved, I find that there is ample evidence on the record on the basis

of which the subordinate Courts have rightly recorded that the tenant has left

the suit premises and is residing elsewhere and has changed the use of the suit

premises without obtaining permission of the landlord and the tenant is liable

to be evicted as per Section 16(1)(n) of the Act of 1999.

12 wp3245.08

9. In the judgment given in the case of Shriniwas Harinarayan Lahoti

since deceased his L.Rs. Smt. Vimal S. Lahoti and others V/s. Dnyaneshwar

Ganesh Pawar and another (supra) this Court has not accepted the claim of the

landlord as it was found that the landlord had not led evidence to establish that

the tenant was using the premises for non-residential purposes. The Court also

found that the family member of tenant was residing in the premises.

In the judgment given in the case of Dulanbi Mirasaheb Belgaonkar

V/s. Annappa Kurka Devadiga (supra) this Court repelled the claim of the

landlord under Section 13(1)(l) of the Bombay Rents, Hotel and Lodging

Houses Rates Control Act finding that the landlord had failed to establish that

the tenant had acquired some other suitable residence to reside in his / her

own rights. This Court found that the bunglows in question were not acquired

by the tenant but intermittently she resided with her daughters in those

bunglows. This Court recorded that in the facts of that case, the landlord was

not entitled for decree for eviction.

The above judgments are rendered in the facts of those cases. In the

present case the landlord has established his claim under Section 16(1)(n) of

the Act of 1999 and the above referred judgments are not of any assistance to

the petitioners - tenants.

13 wp3245.08

10. In view of the above, the following order is passed:

(i) The findings recorded by the subordinate Courts that the tenancy of

tenants is legally and validly terminated for non-payment of arrears of rent as

per the order passed by the House Rent Controller on 1st July, 2002 are set

aside.

(ii) The findings recorded by the subordinate Courts that the tenants are

liable to be evicted from the suit premises as suit premises are required by the

landlord for his bona fide use are set aside.

(iii) The findings recorded by the subordinate Courts that the tenants are

liable to be evicted from the suit premises as the same are not used for the

purpose for which they were let out for more than six months immediately

preceding filing of the civil suit, are maintained.

(iv) The directions for enquiry into mesne profits from 1 st March, 2003

till delivery of possession are also maintained.

(v) Decree for eviction as granted by the subordinate Courts is

maintained accordingly.

Writ petition is dismissed.

14 wp3245.08

In the circumstances, the parties to bear their own costs.

At this stage, the learned Advocate for the petitioners - tenants has

requested that the interim order granted by this Court during pendency of the

petition be continued for four months to enable the petitioners to take

appropriate steps in the matter. In view of the facts of the case and the

findings recorded above, I am not inclined to consider the prayer. It is rejected.

JUDGE

Tambaskar.