Ashok Venilal Suratwala vs Mansukh Morarji Shah And Ors
2017 Latest Caselaw 3956 Bom

                                                        902.wp.7024.15



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO. 7024 OF 2015


Ashok Venilal Suratwala                                ..Petitioner
              Vs.
Mansukh Morarji Shah and Others                        ..Respondents
                                        WITH

                     WRIT PETITION NO. 7901 OF 2016


Mahendra Venilal Suratwala                             ..Petitioner
              Vs.
Mansukh Morarji Shah and Others                        ..Respondents


Mr. Parag Moreshwar Tilak a/w Ulka Saranjame, for the
Petitioners.
Mr. Prameel J. Pawar, for Respondent No.1 in both petitions.


                                    CORAM :- B. P. COLABAWALLA , J.

DATE :- JULY 4, 2017.

ORAL JUDGMENT (PER B. P. COLABAWALLA, J.)

Both these Writ Petitions have been filed challenging

the judgment and order dated 25th November, 2008 passed by the

learned Judge of the Small Causes Court at Pune in Civil Suit

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No.505 of 2004 as well as the judgment and order dated 17 th

March, 2015 passed by the Ad-hoc District Judge-4, Pune in Civil

Appeal No.83 of 2009 ( for short "the Appellate Authority"). The

Trial Court, by the impugned order dated 25 th November, 2008,

decreed the Suit in favour of the 1st Respondent-Landlord and

evicted the Petitioner in Writ Petition No.7024 of 2015 from the

Suit premises. The Petitioner in Writ Petition No.7901 of 2016

was Defendant No.3 in the Suit filed by the landlord before the

Trial Court. For the sake of convenience, I shall refer to the

parties as they were arrayed before the Trial Court.

2 The brief facts of which note need to be taken of are

that the Plaintiff is the owner of Flat No.5, 2nd floor, Mansukh

Apartment, CTS No.100/3, Erandwane, Pune-4 (for short "the Suit

premises"). The Suit premises admeasures approximately 650

sq.ft. and was occupied by Defendant No.1 (Petitioner in Writ

Petition No.7024 of 2015) since the year 1974 as a tenant at the

monthly rent of Rs.500/-. Subsequently, this rent was increased

to Rs.900/- per month from 2001. It was the case of the Plaintiff

that Defendant No.1 paid the rent for Suit premises until 24 th

March, 2004, and from April 2004 the amount of rent was in

arrears. It was the further case of the Plaintiff that Defendant

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No.1 had constructed the Bunglow in the year 1997-1998 at

Vikramshela Society, Pashan, Pune and had started residing

there. Thereafter, Defendant No.1 had also purchased the flat at

Surad Apartment, Erandavana and he started residing there since

the year 2000. It was the further case of the Plaintiff that over

and above this, Defendant No.1 had inducted one Jishnuram M.

Nayar as a sub-tenant and after him, Defendant No.2 was inducted

as a sub-tenant.

3 It is on this basis that the Plaintiff filed a suit for

eviction before the Trial Court being Civil Suit No.505 of 2014

seeking eviction of the Defendants under the provisions of Section

16 (1) (e) and 16 (1) (n) of the Maharashtra Rent Control Act,

1999. In this Suit, after the writ of summons was served,

Defendant Nos.1 and 3 filed their Written Statement. Defendant

No.2 though served, chose not to appear in the said Suit or file

any Written Statement. On the basis of the pleadings of the parties

before the Trial Court, it framed as many as seven issues. On the

basis of the issues framed by the Trial Court, the parties led their

evidence and thereafter the Trial Court heard the matter and by

the impugned judgment and order dated 25 th November, 2008,

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decreed the Suit in favour of the Plaintiff. Basically, the Trial

Court held that the ground of non-user was made out as Defendant

No.1 being the tenant of the premises, was admittedly not using

the suit premises and was residing elsewhere. Even on the

ground of unlawful subletting the Trial Court held in favour of the

Plaintiff.

4 Being aggrieved by this order of the Trial Court,

Defendant Nos.1 and 3 both filed separate Appeals before the

Court of District Judge, Pune being Civil Appeal No.83 of 2009

and Civil Appeal No.64 of 2009 respectively. After hearing the

parties, the Ad-hoc District Judge-4, Pune confirmed the findings

of the Trial Court and dismissed both Appeals. Being aggrieved by

these orders, the Petitioners in both the Writ Petitions are before

me in my extra ordinary, discretionary and equitable jurisdiction

under Article 227 of the Constitution of India.

5 In this factual backdrop, the learned counsel appearing

on behalf of the Petitioner, submitted that the Trial Court as well

as the Appellate Court have completely gone wrong in coming to

the conclusion that 1st Defendant was liable to be evicted on the

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ground of non-user as well as for unlawfully subletting the Suit

premises. He submitted that as far as the ground of non-user is

concerned, it was the specific case of Defendant Nos.1 and 3 that

even though Defendant No.1 was not residing in the Suit premises,

it was being used and occupied by Defendant No.3 who is the

brother of Defendant No.1. He submitted that though this

premises were let out to Defendant No.1 in his individual name, it

was actually taken by Defendant No.1 as a KARTA of the HUF.

This being the case, he submitted that the occupation of Defendant

No.3 (namely the brother of Defendant No.1) was lawful and it

could not be said that the Plaintiff was entitled to a decree under

the provisions of Section 16 (1) (n) of the Maharashtra Rent

Control Act which entitles the Plaintiff to get a decree of eviction

on the ground of non-user. He submitted that the 1 st Defendant's

brother was undisputedly occupying the Suit premises and

therefore the conditions as set out in Section 16 (1) (n) were

clearly not met by the Plaintiff to entitle him to a decree under the

said provision.

6 As far as the ground of unlawful subletting is

concerned, he submitted that the evidence was wholly inadequate

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to come to a finding that the premises had been unlawfully sublet

by Defendant No.1 to any third party. In this regard, he took me

through the reasoning of the Trial Court in paragraphs 8 and 9

which deal with this issue. He submitted that looking at the

evidence as analyzed by the Trial Court it could not be said that

first Defendant had unlawfully sublet the Suit premises as was

sought to be contended by the Plaintiff. For all the aforesaid

reasons, he submitted that the impugned orders suffer from

perversity and/or an error apparent on the face of the record

requiring my interference under Article 227 of the Constitution of

India.

7 On the other hand, Mr. Pawar, the learned counsel

appearing on behalf of the Plaintiffs, submitted that there was

nothing wrong in the impugned orders. He submitted that the

Trial Court as well as the Appellate Authority has considered all

the facts and the evidence led before them and therefore come to

the conclusion that they have. There is nothing even remotely to

indicate that the Courts below have not considered the material

placed before them in their correct perspective. In this respect he

brought to my notice the reasoning and findings of the Trial Court

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as well as that of the Appellate Authority to canvass that the

conclusions reached by them, on the basis of the evidence led by

the parties, was not only fully justified but certainly could not be

termed as perverse or suffering from any error of law apparent on

the face of the record requiring my interference under Article 227

of the Constitution of India. He submitted that looking to the over

all facts and circumstances of the present case, even if I were to

come to a different conclusion than the ones reached by the Courts

below, the same would be no ground to interfere with the

impugned orders in my writ jurisdiction under Article 227 of the

Constitution of India. He submitted that for the Petitioners to

succeed, they have to establish that the orders passed by the

Courts below either suffer from perversity or any error of law

apparent on the face of the record, before my writ jurisdiction can

be invoked. He submitted that clearly that was not the case in the

facts of the present matter, and therefore, this Writ Petition ought

to be dismissed.

8 I have heard the learned counsel for the parties at

length and have perused the papers and proceedings in the Writ

Petition. I have also given my careful consideration to the orders

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passed by the Trial Court as well as the Appellate Authority. On

the issue of non-user the Trial Court as well as the Appellate

Authority have come to a categorical finding that Defendant No.1

is not using the suit premises for residential purposes and for

which they were let out to Defendant No.1. The fact that these

premises are not being used by Defendant No.1 (Petitioner herein

in Writ Petition No.7024/15) is also not in dispute before me and

the same is fairly admitted by Mr. Tilak appearing for the

Petitioner. It is also not in dispute that the rent receipts issued by

the Plaintiff were only in the name of Defendant No.1. Further,

even when Defendant No.1 sought to tender rent to the Plaintiff

from the period April 2004 onwards and which was refused by the

Plaintiff, the same was tendered only on behalf of Defendant No.1.

It is looking at all these undisputed facts that the Trial Court

disbelieved Defendant No.1's story that even though the rent

receipts were issued only in the name of Defendant No.1, the Suit

premises were actually let out to Defendant No.1 as a KARTA of

the HUF. There was nothing brought on the record by Defendant

No.1 to even remotely indicate that this was the case. Looking to

all this evidence, that the Courts below came to the conclusion that

the story put up by Defendant No.1 that the Suit premises were let

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out to him as a KARTA of the HUF, was wholly unbelievable.

Looking at the conclusion reached and evidence led before the

Courts below, I certainly do not think that the findings given by

them can be by any stretch of the imagination be termed as

perverse. If Defendant No.1 is unable to establish that the suit

premises were let to him as a KARTA of the HUF, and admittedly

he is not using the Suit premises, then, he certainly cannot resist

the claim of the Plaintiff under the provisions of Section 16 (1) (n)

on the basis that the Suit premises were being occupied by his

brother.

9 Be that as it may, I must mention here that even this

story, namely that the Suit premises were used and occupied by

the brother of Defendant No.1 (Defendant No.3 before the Trial

Court), has been disbelieved by the Courts below. These findings

have been given on the basis of the evidence that was placed

before them. Looking to all these facts, I find that the findings of

the Courts below that the Plaintiff is entitled to a decree of eviction

on the grounds mentioned in Section 16 (1) (n) of the

Maharashtra Rent Control Act, 1999 certainly do not suffer from

any perversity or error apparent on the face of record requiring

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my interference under Article 227 of the Constitution of India.

10 Even as far as the issue of unlawful subletting is

concerned, I find that the Trial Court and the Appellate Authority

has considered the evidence led by both the parties and thereafter

come to the conclusion that Defendant No.1 is guilty of unlawfully

subletting the Suit premises. In this regard what is important to

note is that it was the specific case of the Plaintiff that firstly the

premises were unlawfully sublet to one Mr. Nayar and thereafter

to Defendant No.2. As far as Mr. Nayar is concerned, what the

Trial court and the Appellate Court have found is that in fact there

was a telephone connection in the Suit premises in the name of

Mr. Nayar. The Trial Court has in fact even referred to the

telephone number assigned. One fails to understand how Mr.

Nayar can get telephone connection in the Suit premises without

him being in occupation thereof. In fact, the Trial Court

specifically came to a finding that Defendant No.1 is unable to give

any explanation whatsoever about the presence of a telephone

connection in the Suit premises in the name of Mr. Nayar. Apart

from this, the Trial Court as well as the Appellate Authority have

also taken into consideration postal envelopes that came in the

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name of Mr. Nayar as well as Defendant No.2 at the Suit premises.

Looking to all these facts, the Trial Court as well as the Appellate

Authority were of the view that it can be safely inferred that the

Suit premises were unlawfully sublet by Defendant No.1 to the

said Nayar initially, and thereafter to Defendant No.2. Even these

findings given by both the Courts below is based on the evidence

led by the parties. There is nothing that has been brought to my

notice to even remotely indicate that these findings, and which

were based on the evidence of the parties, suffers from any

perversity.

11 For all the foregoing reasons, I find no merit in these

Writ Petitions and they are accordingly dismissed. However, in

the facts and circumstances of the case, there shall be no order as

to costs.

12 At this stage, the learned counsel appearing on behalf

of the Petitioners in both the Writ Petitions states that there is

some furniture and other material of Defendant No.1 in the Suit

premises and seeks indulgence of this Court to remove the same

within a period of two weeks from today and undertakes to this

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Court that he shall hand over the possession of the Suit premises

to the Respondent-Landlord on/before 21st July, 2017. This

statement, made on the basis of the instructions received, is

accepted as an undertaking to this Court. The learned counsel

appearing on behalf of the Respondent-Landlord has no objection.

In view of the aforesaid statement, Defendant No.1 is allowed to

remove his articles from the Suit Premises within a period of two

weeks from today. As per Defendant No.1's statement, he shall

hand over vacant and peaceful possession of the Suit Premises to

the Plaintiff-landlord on or before 21st July, 2017. Subject to this,

the Writ Petitions are dismissed.

                                        ( B. P. COLABAWALLA, J.)




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