Sindhubai Narayan Pardeshi vs Nilima Nagesh Kuvar And Another
2017 Latest Caselaw 846 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     BENCH AT AURANGABAD               
                                     
             CIVIL REVISION APPLICATION NO.65/2017
                            WITH
              CIVIL APPLICATION NO.6751/2015

Smt.Sindhubai w/o Narayan Pardeshi,
Age 63 years, Occu. Household,
R/o Main Road Kotasthane Chawl,
Ward No.5, Shrirampur,
Tq.Shrirampur Dist.Ahmednagar         ..APPLICANT 
                                        (Org.defendant)

                 versus   

1.  Nilima Nagesh Kuvar,
    Age: 53 years, Occ.Household,

2.  Meera d/o Bansi Khandelkar,
    Age: 48 years, Occ.Household,

     Both R/o Main Road Kotasthane Chawl,
     Ward No.5, Shrirampur,
     Tq.Shrirampur Dist.Ahmednagar.   ..RESPONDENTS
                                        (Org.plaintiffs)
                          .....
Shri R.R. Karpe, Advocate for applicant.
Shri K.N. Shermale, Advocate for respondent nos.1 & 2.
Shri Naseem Shaikh, Advocate present. 
                          .....
  
                           CORAM: SUNIL P. DESHMUKH, J. 

DATE: 20.03.2017

ORAL JUDGMENT :

1] Learned counsel Shri Naseem Shaikh states that

in view of appearance of learned counsel Mr.K.N.Shermale

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for respondents no.1 & 2 in the civil revision

application, he be relieved from appearance, dispensing

with the usual procedure, seeking discharge from the

civil revision application.

2] Learned counsel Mr. Shermale states on

instructions that the respondents no.1 & 2 concede to

that, in view of his appearance, Mr. Naseem Shaikh be

discharged from appearance in the matter.

3] In view of aforesaid, Mr. Naseem Shaikh stands

discharged from appearance for the respondents no.1 & 2

in the present civil revision application (formerly

second appeal).

4] Matter to proceed accordingly.

5] Rule. Rule made returnable forthwith and with

the consent of learned counsel for the parties, civil

revision application is taken up for final disposal.

6] Heard learned counsel for the parties finally by

consent.

7] Regular Civil Suit bearing No.74 of 2008 for

eviction by present respondents, who are plaintiffs,

against the applicant - original defendant, on the ground

of commission of default referable to Section 15 of the

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Maharashtra Rent Control Act, 1999, and bona-fide

requirement came to be decreed. The suit had been

instituted on various grounds inter-alia default, bona-

fide and reasonable requirement of landlords and their

family members, causing permanent alteration to

structure and change of user. The trial Court had

decreed the suit on the ground of default referable to

Section 15 of the Act and had given negative findings

against the plaintiffs - respondents in respect of the

other grounds. The suit was decreed on 27.9.2012 against

which present applicant - defendant had moved District

Court under Appeal bearing No.123 of 2012. The appellate

Court as well had framed points with respect to default,

bona-fide and reasonable requirement of family members

and consequent issue of greater hardship, change of user

and about entitlement of the respondents - plaintiffs to

possession. The appellate Court too negatived the claim

of respondents - plaintiffs on rest of the grounds while

concurring with the trial Court and confirming the

eviction of applicant - defendant - tenant on the ground

of default.

8] After hearing the learned counsel for the

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parties, so far as the events as those have occurred,

there is no dispute either on facts or on the dates.

Learned counsel Mr. Karpe strenuously submits that since

there is no default in respect of payment of rent

immediately preceding date of institution of the suit,

as pursuant to the provisions of the Limitation Act, a

decree for arrears of rent could be possible for only

past three years. Default of a period preceding three

years of suit would not entail eviction on that ground as

recovery of said period would not be possible. He,

therefore, urges to indulge into request to reverse the

decree and dismiss the suit.

9] Learned counsel Mr.Shermale appearing for the

landlords contends that the submissions may ostensibly

appear to be persuasive, yet on little pondering over the

arguments, the same are only illusory and there is no

substance in the same. He points out observations of the

two Courts hitherto and particularly draws attention to

default for any period would constitute a good ground for

eviction, whether recovery of the amount is possible or

not and this has been the consistent view of the Supreme

Court. He, therefore, submits that both the Courts

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hitherto have rightly considered the matter in respect of

default and have relied on the judgment of the Supreme

Court in the case of Khadi Gram Udyog Trust v. Shri Ram

Chandraji Virajman Mandir reported in AIR 1978 SC 287.

10] The appellate Court has observed in paragraph

nos.8, 9 and 10, which are reproduced hereinbelow for

ready reference.

"8] In the present case, relationship between plaintiffs and defendant as landlord and tenant is not disputed. It is also not disputed that month of tenancy commences on first day and ends on last day of said month as per English Calender and by virtue of Standard Rent Petition No.18/1990 decided on 5-10-1991, standard rent of the suit house of Rs.50/- per month was fixed. As per provisions of Section 15(1) of the Maharashtra Rent Control Act, landlord is not entitled to recover possession of the premises so long as tenant pays, is ready and willing to pay standard rent and permitted increases. Further, according to Section 15(2) of the said Act, to institute a suit for recovery of possession on the ground of non payment, the tenant must fail to pay the standard rent or permitted increases within 90 days from the receipt of notice in writing regarding the demand of his dues. Further,

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according to Section 15(3) of the Act, if after institution of suit, within 90 days from the date of service of summons, a tenant paid or deposits the arrears of standard rent and permitted increases with simple interest on the amount of arrears at the rate of 15% p.a., landlord is not entitled to recover the possession. Hon'ble Supreme Court, in the case of Khadi Gram Udyog Trust vs. Shri Ram Chandraji Virajman Mandir : AIR 1978 Supreme Court 287 held that even though suit for recovery of arrears of rent is time barred, it is not a ground to deny decree of eviction on the ground of default. In the present case also, plaintiffs did not file suit for recovery of arrears of rent of Rs.8050/- which was time barred. According to defendant, she has paid rent of the suit house to the plaintiffs regularly and some times plaintiffs refused to accept the same. However, in cross examination, defendant admitted that she is ready to file the receipts of payment of rent. Accordingly, defendant has filed receipt of money order and receipt of amount deposited in the Court. The plaintiffs have claimed that since 1992 upto date of institution of suit, arrears of rent have not been paid by the defendant. The defendant filed receipt dated 15-10-1995 at Exh.47 which shows that in Civil Revision No.21/1991, defendant has deposited an amount of

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Rs.2250/- in the Court towards rent till December 1995. It reveals from the said receipt that it was rent for 45 months. When the said receipt (Exh.47) clarifies that rent was paid upto December 1995, it has to be held that rent was paid from March 1992 to December 1995. 9] Further, plaintiffs have filed two money orders, one is dated 17-6-2002 by which rent from January 2002 to June 2002 was paid and another is dated 31-1-2003 by which Rs.450/- paid towards rent from July 2002 to March 2003. Defendant has filed receipt issued by Assistant Superintendent of Court at Exh.46 dated 14-10- 2008 for Rs.3150/- i.e. rent for 63 months. Assuming that said amount was paid against the arrears of rent immediately preceding year of the suit, it was since April 2003 to July 2008. 10] Thus, from the above receipts i.e. Exh.46 to Exh.48, it is clear that defendant has paid rent from March 1992 upto December 1995 and from Jan 2002 to July 2008. The defendant has not produced on record any documentary evidence to show that she has paid the standard rent from January 1996 to December 2001 to the plaintiffs. Neither money order receipts nor Court receipts are produced on record by the defendant to show that she has paid the rent for the above said period. Hence, it can be held that defendant has committed default in payment of rent to the plaintiffs for the period from 1996 to 2001. In

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view of observations of Apex Court in the case of Khadi Gram Udyog (cited supra), even though suit is filed for recovery of time barred arrears of rent, it is not a ground to deny decree of eviction on the ground of defaulter. The finding recorded by trial Court in this respect is legal and proper and it does not require any interference at the hands of this Court. Hence, I answer point no.1 in the affirmative."

11] From the aforesaid, additionally, it emerges

that although an amount of Rs.3150/- has been paid in

October, 2008, it is not the case of the tenant that the

said amount comprises of the interest pursuant to Section

15(3). It further transpires, after hearing the learned

counsel, that the tenant had not been regular in payment

of rent as required u/s 15 during the pendency of the

litigation.

12] Having regard to aforesaid, it emerges that the

tenant hardly has any case to defend on the ground of

default. The findings recorded by the two Courts

hitherto do not appear to be either arbitrary or

perverse. As such, exercise of revisional powers in the

present facts and circumstances does not appear to be

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called for. Civil revision application stands dismissed.

Rule is discharged.

13] At this stage, learned counsel Mr.Karpe seeks

time for vacating the suit premises. Learned counsel

Mr.Shermale purports to resist the said prayer.

14] However, it would be expedient and appropriate

to give some time for vacating the suit premises. Having

regard to that, the applicant - tenant has been in the

suit premises since 1990, it would be appropriate that

the applicant shall vacate the suit premises within a

period of six months from today subject to conditions

given hereinbelow :-

" The applicant shall vacate the suit premises

peacefully within a period of six months from

today, without creation of any third party

interest or any encumbrance of any sort or

transfer in any way and he himself shall handover

vacant possession of suit premises to the

respondents without demur and without creating any

hurdle, and on the condition that he shall

continue to pay to the landlord compensation for

occupation of this period of six months at the

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same rate as rent was being paid. Time of six

months for vacating the suit premises is being

granted subject of course to filing of an

undertaking to aforesaid effect. Undertaking be

filed by the applicant within a period of six

weeks from today in this Court. In case of

failure to file undertaking within stipulated

period, it would be open for the plaintiffs to

proceed with the execution."

15] In view of aforesaid, Civil Application No.6751

of 2015 also stands disposed of.

(SUNIL P. DESHMUKH, J.)

ndk/c203174.odt