Bombay High Court
Shri Shridhar Dattatraya ... vs Shri Narayan Laxman Soparkar on 15 June, 2017
Bench: B.P. Colabawalla
CRA746.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.746 OF 2015
Shri Shridhar Dattatraya Karadkar ... Applicant
v/s
Shri Narayan Laxman Soparkar ... Respondent
Mr Dilip Bodake i/b Mr Ravindra S. Pachundkar for Applicant.
Mr Manoj Prabhakar Mhatre for Respondent Nos.1 and 2.
CORAM : B.P. COLABAWALLA, J.
DATE : JUNE 15, 2017
JUDGMENT : -
1. This Civil Revision Application has been filed under
section 115 of the Code of Civil Procedure 1908 seeking to quash and
set aside the impugned judgment and order dated 30 th July 2011
passed by the Small Causes Court, Bombay in R.A.E. & R. Suit
No.1251/1887 of 2006 as well as the judgment and order dated 20 th
January 2015 passed by the Appellate Bench, Small Causes Court, in
Appeal No.91 of 2011. The Trial Court in its impugned judgment
and order decreed the eviction Suit filed by the Respondent herein
(original Plaintiff) on the ground of non-user (section 16(1)(n) of the
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Maharashtra Rent Control Act, 1999) (for short, the said Act) as well
as on the ground of bonafide requirement (section 16(1)(g) of the
Act). Being aggrieved by this order of the Trial Court, the Applicant
herein filed an Appeal which also came to be dismissed by the
Appellate Bench on 20th January 2015. It is in these circumstances
that the Applicant is before me in my revisional jurisdiction under
section 115 of the CPC. For the sake of convenience, I shall refer to
the parties as they were arrayed before the Trial Court.
2. The brief facts giving rise to the present controversy are
that the Plaintiff is one of the legal heirs of deceased Laxman
Soparkar, who was the original landlord of "Narayan Ashram",
Varachi Aali, situated at Plot No.1176, 'M' Ward, Chembur Gaothan,
Mumbai 400 071 (hereinafter referred to as the said building). The
Defendant is a tenant of the Plaintiff in respect of Room No.1,
admeasuring approximately 120 sq.ft. in the said building (for short,
the suit premises).
3. The suit premises was let to the Defendant for residential
purposes as a monthly tenant of Rs.60/- rent. According to the
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Plaintiff, since the Defendant had acquired suitable residential
premises during the month of December 1985 and since he and his
family members were residing in these alternate premises, the
Plaintiff and his brothers filed R.A.E. Suit No.642 of 1987 in the Court
of Small Causes, Mumbai. That Suit came to be filed inter alia on the
ground of bonafide requirement as well as non-user. The issues that
were framed in the Suit were as follows :-
Sr.No. Issues Findings
1 Whether the plaintiffs prove that the No.
defendant has acquired suitable
alternate residential accommodation
elsewhere ?
2 Whether the plaintiffs prove that since No.
December 1985 the suit premises is
being kept locked ?
3 Whether the plaintiffs prove that the No.
suit premises is reasonably and
bonafide required by the plaintiff
No.3 ?
4 To whom greater hardship will be Hardship will be
caused ? caused to Defendant.
5 Whether the plaintiffs are entitled for No.
vacant and peaceful possession of the
suit premises from the defendants ?
6 What order and decree ? The suit is dismissed.
No order as to costs.
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4. Consequently, after hearing the parties, the Small
Causes Court, by its judgment and order dated 16 th February 1998,
dismissed the Suit that was filed by the Plaintiff and his brothers.
Being aggrieved by this decision, an Appeal came to be filed, which
was also dismissed on 20th September 2001. Thereafter, the Plaintiff
filed the present Suit for eviction of the Defendants and for recovery
of arrears of rent in the year 2006 being R.A.E. Suit No.1251/1887 of
2006. In the second Suit, it was alleged by the Plaintiff that the
Defendant alongwith his wife and family members were residing in
alternate premises at Thane for more than 20 years and that the suit
premises was locked for the aforesaid period. It was additionally
averred that the suit premises were reasonably and bonafide required
by the Plaintiff. To substantiate this contention, the Plaintiff stated
that he has no other accommodation in Mumbai and that he has
retired from service and has no other accommodation in Mumbai.
Since his wife was serving at the Collector's Office at Alibag, the
Plaintiff was compelled to shift to Alibag to stay with his wife. Now
his wife has also retired from service and therefore they do not have
any accommodation. In fact, it is stated that after the retirement of
his wife, the Plaintiff and his wife are staying in rented
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accommodation in Alibag. It is in these circumstances that the case of
bonafide requirement is pleaded in the plaint.
5. The claim of the Plaintiff was resisted by the Defendant by
filing a written statement. In the written statement, it was claimed
that the Defendant was very much residing in the suit premises and
the justification given for his wife purchasing the alternate premises
was that the suit premises were not large enough to accommodate the
Defendant, his wife as well as his family members. He also refuted
the claim of the Plaintiff that he had any bonafide requirement with
reference to the suit premises. On these pleadings, parties led their
respective evidence and the suit went for trial. Finally, after hearing
the respective parties, the Trial Court by its judgment and order dated
30th July 2011 decreed the Suit in favour of the Plaintiff. Whilst doing
so, the Trial Court framed as many as ten issues and answered five of
those issues in favour of the Plaintiff. The Trial Court held that the
Plaintiff has proved that the suit premises was not in use by the
Defendant for a continuous period of six months prior to the filing of
the Suit. It also held that the Defendant had acquired suitable
alternate accommodation and that the suit premises was reasonably
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and bonafide required by the Plaintiff for his own residence. Even
on the issue of comparative hardship (as contemplated under section
16(2) of the Maharashtra Rent Control Act 1999) the Trial Court held
in favour of the Plaintiff.
6. Being aggrieved by this decision, the Defendant preferred
an Appeal before the Appellate Bench of the Small Causes Court,
Bombay. The appellate Bench also examined the case in great detail
and after hearing the parties and considering the evidence on record,
dismissed the Appeal. This is how the original Defendant is before
me in the present Civil Revision Application.
7. In this factual backdrop, Mr Bodake, learned counsel
appearing on behalf of the Applicant (original Defendant) raised
basically two contentions before me. Firstly, he submitted that the
Trial Court has not considered all the evidence that was led by the
Defendant in its correct and proper perspective. This itself will vitiate
the orders passed by the Courts below. In this regard, he brought to
my attention the evidence led by the Defendant and more particularly
paragraphs 5, 9, 13, 17 and 30 of his affidavit in lieu of examination-
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in-chief. He submitted that in the Defendant's evidence, he had
categorically relied upon several documents such as ration-card,
original election identity card, original marriage invitation card as
well as his bank pass-book to show that he was very much in use and
occupation of the suit premises. He submitted that these documents
have not been correctly examined and in their correct perspective by
the Courts below. According to the learned counsel, these documents
would lead to an irresistible conclusion that the suit premises were
used and occupied by the Defendant and the case put up by the
Plaintiff that the premises were locked and not been in use for the
purpose for which they were let out for a continuous period of six
months prior to the filing of the suit is totally false.
8. The next contention raised before me by the learned
counsel appearing for the Defendant was that R.A.E. Suit
No.1251/1887 of 2006 (second Suit) was barred by the principles of
res judicata. He submitted that admittedly, the Plaintiff alongwith his
brothers had filed R.A.E. Suit No.642 of 1987 on the same grounds
that were pleaded in the second Suit. The earlier Suit i.e. R.A.E. Suit
No.642 of 1987 came to be dismissed on 16 th February 1998. The
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Plaintiff having failed in his first Suit, could not have filed the second
Suit and on the same grounds that were sought to be canvassed
earlier and rejected by the Trial Court in R.A.E. Suit No.642 of 1987.
He submitted that there was no fresh cause of action in the second
Suit and therefore the subsequent Suit (in which the impugned orders
have been passed) was clearly hit by the principles of res judicata.
For all the aforesaid reasons, the learned counsel submitted that I, in
my revisional jurisdiction under section 115 of the CPC ought to
interfere with the impugned orders and quash and set aside the same.
9. On the other hand, the learned counsel appearing on
behalf of the Respondent (original plaintiff) submitted that no
interference was called for in the impugned orders passed by the
Courts below. He submitted that the Courts below have considered
all the evidence on record that have been led by the parties in its
correct perspective and thereafter come to the conclusion that they
have. He submitted that there was ample evidence on record to
establish that the original Defendant was not using the suit premises
for a continuous period of six months and in fact, the premises were
locked. He was at pains to take me through the impugned orders and
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evidence led by the parties. Over and above this, the learned counsel
also brought to my notice the three reports filed by the Bailiff, who
went to serve the writ of summons on the Defendant at the suit
premises. He submitted that on all three occasions, the Bailiff was
unable to serve the summons at the suit premises as the same was
found locked and when the Bailiff made inquiries with the neighbour,
he was told that the Defendant does not reside at this address and
rarely comes to the suit premises. Looking to all these facts, he
submitted that a clear case of non-user was made out and the Courts
below were fully justified in decreeing the Suit in favour of the
Plaintiff.
10. Even on the issue of bonafide requirement, the learned
counsel submitted that the Courts below have considered the
evidence led by the parties and thereafter come to the conclusion that
the suit premises were bonafide required by the Plaintiff. He
therefore submitted that it was totally incorrect to submit that the
Trial Court has not considered the evidence and therefore suffers
from any infirmity as sought to be contended by the learned counsel
for the Defendant.
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11. On the issue of res judicata, the learned counsel appearing
on behalf of the Respondent submitted that this argument is wholly
misconceived. He submitted that the cause of action in the earlier
Suit and in the subsequent Suit were totally different. According to
the learned counsel, this issue has been correctly dealt with by the
Courts below and the reasoning given by them is not only full justified
but can certainly not been termed as perverse or suffering from any
error of law apparent on the face of the record requiring my
interference in my limited revisional jurisdiction under section 115 of
the CPC. Looking to all these facts, the learned counsel submitted
that there is no merit in this Civil Revision Application and the same
ought to be dismissed.
12. I have heard the learned counsel for the parties at length
and have perused the papers and proceedings in the Civil Revision
Application. I have also carefully gone through the impugned orders
passed by the Courts below. It is not in dispute that the Defendant is
a monthly tenant of the Plaintiff. It is also not in dispute that the
Plaintiff and his brothers had filed an earlier Suit for eviction of the
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Defendant on similar grounds viz. on the ground of non-user and
bonafide requirement as were canvassed in the second Suit.
Considering this, I think it would be in the fitness of things to deal
with the issue of res judicata first. On the issue of res judicata, I find
considerable force in the argument canvassed on behalf of the
Respondent that the subsequent Suit filed by the Respondent (original
Plaintiff) was not barred by the principles of res judicata. This issue
has been dealt with by the Trial Court from paragraphs 20 to 22 of its
judgment. Whilst dealing with this issue, the Trial Court held that on
a perusal of the judgment in R.A.E. Suit No.642 of 1987, the Plaintiff
and others had filed the Suit for eviction of the Defendant in respect
of the suit premises on the ground that the suit premises were kept
locked since 1985. In the present Suit, the Plaintiff is seeking a
decree of eviction on the ground that the Defendant was not using the
suit premises for more than six months immediately preceding the
date of the Suit. The earlier Suit was dismissed by a judgment and
order dated 16th February 1998 and an appeal therefrom also was
dismissed on 20th September 2001. In the present Suit, the Plaintiff
alleges the ground of non-user (section 16(1)(n) of the Maharashtra
Rent Control Act 1999) for a continuous period of six months prior to
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the date of filing of the Suit. This is the issue that was decided by the
Court in the second Suit. Just because the Plaintiff was unable to
prove in 1998 the ground of non-user cannot preclude him from
establishing in a subsequent Suit that the suit premises were not in
use and occupation for a period of six months prior to the date of
filing of the Suit. This cause of action is a fresh cause of action on
which a Plaintiff can certainly bring a fresh Suit and agitate his claim.
I therefore find that in the facts of the present case, the Courts below
were fully justified in holding that at least as far as the ground of non-
user is concerned, the subsequent suit was not barred by the
principles of res judicata.
13. Even on the ground of bonafide requirement, I find that
the Trial Court as well as the Appellate Court have given due
consideration to this issue and thereafter come to the conclusion that
even on this ground, the Suit was not barred by the principles of res
judicata. It is not in dispute that as far as the first Suit was
concerned, the same was filed by the Plaintiff and his brothers and
the Plaintiff was unable to make out a case for bonafide requirement.
In the facts of the present case, circumstances have clearly changed.
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The Plaintiff has now retired from service and so as his wife who had
accommodation in Alibag at the time when the first Suit was filed. In
the second Suit, it is specifically averred that the Plaintiff and his wife
have retired and are living in rental accommodation in Alibag and
they have no other accommodation in Alibag nor the means to
purchase another accommodation in Mumbai. It is in these
circumstances, the Plaintiff pleaded that he bonafide required the suit
premises for his personal use and occupation. It is therefore clear
that the bonafide requirement that is now pleaded in the second Suit
is totally different from the one that was pleaded in the earlier Suit.
As mentioned earlier, in the earlier Suit, the bonafide requirement
pleaded was not on behalf of the Plaintiff but also on behalf of his
brothers. Since his brothers have now got suitable alternate
premises, the Plaintiff would be the only person to have the bonafide
requirement of the suit premises. It is in these circumstances, he has
approached this Court on this ground. Looking to all these facts, I
think that the Courts below were fully justified in coming to the
conclusion that the subsequent Suit filed by the Plaintiff inter alia on
the ground of non-user as well as bonafide requirement was not
barred by the principles of res judicata. In any event, after going
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through the impugned orders, I do not find that by any stretch of the
imagination, the conclusions and findings arrived at therein can be
termed as perverse or suffering from any error of law apparent on the
face of the record requiring my interference in my limited jurisdiction
under section 115 of CPC. The argument therefore that the second
Suit was barred by the principles of res judicata is hereby rejected.
14. Having held so, I shall now deal with the argument of the
learned counsel appearing for the original Defendant that the Trial
Court has not considered evidence in its correct perspective. After
going through the impugned orders, I find absolutely no merit in this
contention. As far as the issue of non-user is concerned, the same has
been dealt with by the Trial Court from paragraphs 9 to 15 of its
order. It has referred to the evidence in considerable detail and after
examining it in its entire perspective has come to the conclusion that
the Defendant was not using the suit premises for a continuous period
of six months prior to the filing of the suit. What is important to note
is that the Trial Court has taken into consideration the electricity
consumption for the suit premises and has clearly stated that on most
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of the times electricity consumption was 'Zero' units for the period
from June 2005 to January 2009. The learned Trial Court correctly
surmises that if the Defendant was actually using and living in the suit
premises as contended by him, there ought to be a regular
consumption of electricity. Merely because the Defendant has
produced the ration-card, election identity card and other documents
showing the address of the suit premises would not by itself with
nothing more, establish that the suit premises were used by the
Defendant. Another factor that the Trial Court took into
consideration was the fact that the wife of the Defendant admittedly
used the alternate premises in Thane. It is not the case of the
Defendant that he is estranged from his wife and living separately.
This is coupled with the fact that the Defendant was 71 years old and
was certainly unlikely to live alone all by himself. Another factor
which indicates that the suit premises were not being used by the
Defendant, are the service reports of the Bailiff. These reports clearly
shows that the Defendant was not available at the suit premises on
three occasions when the writ of summons was sought to be served at
the said address. When inquiries were made with the neighbour, it
was revealed that most of the times the premises remained locked.
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Looking to all these facts and considering all the evidence, the Trial
Court disbelieved the story of the Defendant that he was in use and
occupation of the suit premises as alleged by him. Even the appellate
Court has considered all these aspects and confirmed the findings and
conclusions reached by the Trial Court on this issue. On going
through these findings and conclusions, I am clearly of the opinion
that the Courts below have correctly applied their mind to the
evidence led before them and come to the correct conclusions. It
certainly cannot be said that the analysis of the evidence done by the
Courts below suffers from any perversity as sought to be contended
before me.
15. Even on the issue of bonafide requirement, the Trial Court
has given detailed reasons in paragraph 16 of the impugned order.
These reasons have been given after taking into consideration the
evidence led by the parties and the comparative hardship that would
be caused to the Plaintiff if a decree of eviction is not passed in his
favour. I do not find any infirmity in this finding. Looking to all these
facts and circumstances, I am unable to agree with the learned
counsel appearing for the Applicant that the Courts below had not
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considered all the evidence in their correct perspective.
16. For all the aforesaid reasons, I do not find any merit in
this Civil Revision Application and it is accordingly dismissed.
17. At this stage, the learned counsel appearing on behalf of
the Applicant states that till today a statement was made by the
learned counsel appearing on behalf of the Respondent that the
Respondent shall not execute the eviction decree. He prays that the
statement be continued for a period of eight weeks from today. This
request is vehemently opposed by the learned counsel appearing on
behalf of the Respondent. Having heard both the sides on this issue
and having come to the conclusion that both the Courts below have
correctly applied their mind to the issues raised before them, I do not
think that this is a fit case to grant any stay. In view thereof, the
request made by the learned counsel for the Respondent is rejected.
18. After this prayer for stay was rejected by me, the learned
counsel appearing on behalf of the Applicant prays for two months'
time to vacate the suit premises. Considering the aforesaid request,
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the Applicant is granted two months' time to vacate the suit premises
on him filing the usual undertaking in this Court within a period of
two weeks from today. Needless to clarify that in the interregnum
and till the Applicant hands over possession of the suit premises the
Applicant shall not part with possession and / or create any third
party rights and / or interest in the suit premises. This shall also be
mentioned in the undertaking given to this Court.
(B.P. COLABAWALLA, J.)
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