Smt. Salma W/O Abdul Salim vs Shri Abdul Hafiz Khan S/O Abdul ...
2017 Latest Caselaw 430 Bom

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

                       WRIT PETITION NO. 6687 OF 2015


   PETITIONER  :   Smt. Salma W/o Abdul Salim,
                  Aged 55 years, Occu. Household,
                  R/o House No. 905/E-3, Raja ka Badha,
                  Chhaoni, Nagpur, Tq. And Dist. Nagpur.

                                          VERSUS

   RESPONDENT : Shri Abdul Hafiz Khan S/o Abdul Aziz Khan,
                Aged about 76 years, Occu. Retired,
                R/o Plot No. 18-B, Rathod layout, 
                Anant Nagar, Near Noori Masjid,
                Nagpur, Taq. and Distt. Nagpur.

                  ---------------------------------------------
           Mr. S. A. Mohta, Advocate for the petitioner.
           Mr. H. D. Dangre, Advocate for the respondent.
                  ---------------------------------------------

                     CORAM :    PRASANNA B. VARALE, J.

                     DATE     : MARCH 03, 2017.


   ORAL JUDGMENT

Rule. Rule returnable forthwith. With the consent of

the learned counsel for the parties, the petition is heard finally and

taken up for final disposal at the stage of admission itself.

2] By this petition, the petitioner challenges the order

passed by the learned District Judge-10, Nagpur, dated 21.11.2015

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in Regular Civil Appeal No. 305 of 2013, thereby rejecting the

application (Exh.25) filed by the petitioner/appellant seeking

permission to raise additional ground in the memo of appeal.

3] The learned counsel for the petitioner submitted that on

the backdrop of peculiar circumstances, the petitioner was required

to submit application (Exh.25) for raising additional grounds in the

memo of appeal. It was the submission of the learned counsel for

the petitioner that for some fault of the counsel, the party ought not

to have put to prejudice.

4] Few facts giving rise to the present petition can be

summarized as follows :

The petitioner is the original defendant/tenant in

Regular Civil Suit No. 395/2006 instituted by the

respondent/original plaintiff/landlord. The suit was filed for

eviction on the ground of arrears of rent and possession. The suit

was decreed by the judgment and order dated 30.01.2013. Being

aggrieved by the said judgment and decree, the appeal was preferred

by the petitioner/defendant, which was filed on 02.04.2013.

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   5]               On 20.10.2015, application (Exh.25) was filed.   It was

submitted in the application that the petitioner/ applicant had

opposed the suit by filing written statement. Prior to filing written

statement, two applications were filed by her, one for rejection of

plaint under Order 7 Rule 11(a) and (d) of the Code of Civil

Procedure ; and another for depositing the amount of rent in the

Court under Section 15(3) of the Maharashtra Rent control Act,

1999. It was submitted by the petitioner/ defendant in the

application (Exh.25) that she had handed over the amount to be

deposited in the Court under protest to the counsel representing her.

It was further submitted in the application that the applicant was

under an impression that some order would be passed on the

applications and if the Court passes the order permitting the

applicant to deposit the rent amount, the counsel would deposit the

same and obtain the receipt. It was submitted that the applicant is

an illiterate poor lady and had no doubt about the credibility of her

lawyer. It was submitted in the application that no order was passed

on the application for deposit of the amount and suit was decreed. It

was submitted in the application (Exh.25) that after filing of the

appeal when the counsel was preparing the matter and had gone

through the entire brief, he came to know about some more facts

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and as such application (Exh.25) was filed. It was submitted in the

application that the appellant/applicant cannot be allowed to suffer

for the fault of her lawyer. It was lastly submitted that on the

backdrop of these facts, the decree passed by the trial Court needs to

be set aside.

6] The application was opposed by the respondent/

plaintiff by filing say. It was submitted in the say that filing of

application is clearly an afterthought attempt and the appellant/

applicant only wanted to protract the proceeding. The learned

District Judge, on hearing the parties and on a perusal of the

material placed on record, rejected the application.

7] Mr. Mohta, the learned counsel for the petitioner

submitted that the petitioner is an illiterate poor lady, not conversant

with the legal niceties. The learned counsel then submitted that as

the application under Section 15(3) of the Act of 1999 was filed

through the counsel seeking permission to deposit the arrears of

rent, the petitioner/applicant was under an impression that some

orders would be passed on the application. He further submitted

that the petitioner had handed over the amount of arrears of rent to

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be deposited in the Court to the counsel representing her. He further

submitted that the petitioner was under an impression that the

counsel would take necessary steps so as to deposit the amount. The

learned counsel then submitted that only after the judgment and

decree was passed, the appeal was preferred by the petitioner and

when she subsequently changed the counsel and when another

counsel was studying the brief, the fact of not depositing the amount

in the Court by the counsel came to the knowledge of the petitioner.

The learned counsel vehemently submitted that the petitioner was

fully dependent on the counsel representing her and was under bona

fide impression that the counsel would intimate her about the orders

passed on the application. The learned counsel for the petitioner

then submitted that the learned District Judge failed to consider the

relevant provisions of Section 15 of the Act of 1999. He submitted

that the petitioner was ready and willing to pay the standard rent

and permitted increases and as such, neither any order of ejectment

could have been passed nor the learned trial Court could have

decreed the suit. The learned counsel then submitted that the

learned District Judge could have allowed the application and could

have assessed the ground raised by the applicant by permitting the

parties to lead evidence, more particularly, would have assessed the

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ground on the backdrop of the petitioner establishing her case by

substantial material. He submitted that no prejudice could have

been caused to the respondent, if the application was allowed by the

learned District Judge.

8] Per contra, Mr. Dangre, the learned counsel for the

respondent vehemently opposed the petition. The learned counsel

submitted that the respondent instituted the suit raising the grounds

that the petitioner was occupying the premises as a tenant since

1979, the petitioner failed to pay rent from January, 1980, she was

in arrears of rent for long period though, the rent was a paltry

amount. He submitted that notice was issued by the respondent

demanding rent and in spite of issuance of notice, the petitioner

failed to pay the rent and as such the respondent was left with choice

but to approach the Court. The learned counsel for the respondent

then submitted that the application filed by the petitioner seeking

permission to deposit arrears of rent with simple interest @ 15% per

annum was firstly an eyewash as the application was not in

consonance with the provisions of the Act of 1999, more particularly

Section 15(3). The learned counsel submitted that the petitioner

had also not placed on record the true facts. He submitted that the

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application for amendment in the memo of appeal was also on

misrepresentation of the facts. The learned counsel submitted that

though, in the application (Exh.25) the petitioner submitted that no

orders were passed on the application seeking permission to deposit

arrears of rent, in fact the order was passed on the said application

on 23.07.2009. The learned counsel for the respondent placed on

record a copy of said order for perusal of this Court. The copy of

order is taken on record and marked as "X" for identification. The

learned counsel then submitted that while allowing the application

by order dated 23.07.2009, the trial Court permitted the

petitioner /applicant to deposit the amount within stipulated period

of one month. The learned counsel submitted that in spite of the

directons of the trial Court, the petitioner failed to deposit the

amount.

9] Mr. Dangre, the learned counsel for the respondent then

submitted that the petitioner filed the appeal along with an

application for condonation of delay. He submitted that while

allowing the application for condonation of delay, the appellate

Court observed that the appeal would be decided on or before

31.03.2015. He submitted that the petitioner sought certain

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adjournments in the appeal and on 28.10.2015 filed application for

raising additional grounds in the memo of appeal. Thus, it is the

submission of the learned counsel for the respondent that the

petitioner was only interested in protracting the appeal proceeding

and as such, the conduct of a party interested in protracting the

proceedings is an additional ground for dismissing the petition. The

learned counsel then submitted that even if application (Exh.25)

could have been allowed by the learned District Judge, the petitioner

cannot be benefited as the petitioner has failed to comply the

requirement of provisions of Section 15(3) of the Act of 1999.

10] On the backdrop of the submissions of the learned

counsel appearing for the parties, I have gone through the material

placed on record. It would be useful for our purposes to refer to the

relevant provision of the Act namely Section 15(3) of the

Maharashtra Rent Control Act, 1999, as the petitioner had filed

application seeking permission to deposit arrears of rent, which

reads thus -

15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent with permitted increases - 1) .......... (2) .......

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(3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in court the standard rent and permitted increases then due together with simple interest on the amount of arrears of fifteen per cent per annum; and thereafter continues to pay or tenders in court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court."

11] On a perusal of the above referred provision, I find

considerable merit in the submission of the learned counsel for the

respondent. There was also merit in the submission of the learned

counsel for the respondent that mere willingness of a party to

deposit arrears of rent is not the compliance of Section 15(3) of the

Act. He submitted that application filed by the petitioner was with a

qualifying statement for depositing the rent. He submitted that as

per Section 15(3), the party is required to continue to pay or tender

in the Court regularly standard rent and permitted increased till the

suit is finally decided. If the application filed by the petitioner is

perused, it reveals that the petitioner had submitted in the

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application that she is ready and willing to pay arrears of rent for a

period of 36 months only. The submission of the learned counsel for

the respondent is Section 15 of the Act does not prohibit the landlord

to claim arrears for the period more than 36 months. There is no

such stipulation of the period in the said provision is the submission

of the learned counsel. He then submitted that as the statement in

the application was a qualifying statement, the petitioner cannot

submit that the petitioner was ready and willing to pay arrears of

rent.

12] I also find considerable merit in the submission of the

learned counsel for the respondent that the petitioner has suppressed

certain material facts. From a perusal of the copy of order dated

23.07.2009 placed on record, it clearly reveals that the application

filed by the petitioner was allowed by the trial Court and the

petitioner was directed to deposit the amount within one month

period subject to its legal consequences. There is also merit in the

submission of the learned counsel that the petitioner had made

attempts to protract the appeal proceedings. As stated above, the

suit was decreed on 30.01.2013 and the appeal was filed on

02.04.2013, whereas the application for raising additional grounds

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in the memo of appeal was filed on 28.10.2015. It was brought to

the notice of the learned District Judge that the Court had observed

that the appeal would be decided before March, 2015 and the

appellant is protracting the proceedings on one or the other ground.

Perusal of the material further shows that though, it was the specific

case of the petitioner that she handed over the amount of arrears of

rent to her counsel for depositing in the Court and the counsel failed

to deposit the same, the petitioner, who was subjected to the oral

evidence nowhere stated before the Court about the factum of

handing over the amount to the counsel for depositing the same in

the Court and the counsel failed to deposit the same. The trial Court

observed in respect of examination of the petitioner at paragraph 8

of the judgment, thus -

8] ........... This apart, it also clear from the record that defendant neither paid rent after receipt of suit summons nor deposited rent in the Court during the trial. She has admitted in her cross-examination that she is in arrears of rent since 01.01.1980. She has also admitted that plaintiff has demanded rent by his notice from 01.01.80. She has admitted further that she has received the notice and she has also deposited some amount in the Court, however, there is no documentary evidence filed on record. The court

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record also show that defendant after her appearance never deposited anyr ent in the court during the trial. As such it is established on record that defendant is in arrears of rent since 01.01.80. Hence, I answer point no.2 in affirmative."

13] Considering all the above referred facts, the grounds

raised in the present petition in challenge to the order impugned

hold no water. The order impugned in the petition neither suffers

from any illegality nor from any irregularity. The petition thus being

wholly meritless, deserves to be dismissed and the same is

accordingly dismissed.

Rule stands discharged. No order as to costs.

JUDGE Diwale