Smt. Amritpal Jagmohan Sethi vs Haribhau Pundlik Ingole
2017 Latest Caselaw 2377 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CIVIL REIVISION APPLICATION NO.40 OF 2017.


 Smt. Amritpal Jagmohan Sethi,
 Aged about 66 years, Occupation - Business, 
 R/o Plot No.13, Modern Co-operative
 Housing Society's Somalwada Layout,
 Opposite Airport, Wardha Road, Nagpur.                           ....       APPLICANT


                     VERSUS


 Haribhau Pundlik Ingole,
 Aged about 62 years, Occupation - Service, 
 Resident of 151, Bajaj Nagar, Nagpur.                            ....  NON-APPLICANT

 ______________________________________________________________

             Shri S.V. Bhutada, Advocate for the applicant, 
            Shri A.M. Ghare, Advocate for the non-applicant.
  ______________________________________________________________

                               CORAM : N.W. SAMBRE, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 03-04-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 05-05-2017


 JUDGMENT : 

The present revision is against the judgment and order

passed by the Ad hoc District Judge, Nagpur in Regular Civil Appeal

No.208/2014 on 25-01-2017 confirming the decree in the suit being

Regular Civil Suit No.193/2006 decided on 29-03-2014 thereby

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directing the present applicant-applicant to handover possession of the

suit premises.

2. The facts as are necessary for deciding the present revision

are as under :

The non-applicant herein claims to be absolute owner of

suit property being Plot No.13, Corporation House No.1913/2013,

Ward No.75, Khasra No.152/4-5, Mouza-Somalwada, District-Nagpur,

admeasuring 450 square meters having a ground floor construction of

150 meters.

The present applicant came to be inducted as tenant on

monthly basis commencing from first day of English Calendar month.

It is alleged by the plaintiff/present non-applicant that the

applicant/original defendant purchased adjoining plot being Plot

No.12 and approached the present non-applicant that since she intends

to carry out residential construction thereon, the property of the

present non-applicant be given on lease to her so that she can execute

and supervise the construction.

Accordingly, the suit house was given on lease for a period

from 01-02-1998 till 31-12-2000 and it was agreed that the present

applicant will vacate the suit house after expiry of the lease period.

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It is claimed by the non-applicant in the suit that at the

relevant time he was residing in joint family alongwith his father,

brothers at Plot No.151, Bajaj Nagar, Nagpur. After the death of

father, two brothers separated from common mess whereas the present

non-applicant and his brother Vilas residing together by sharing

common kitchen.

In view of growth of the family, the exiting premises were

found to be inadequate as there is no separate study room for grown

up children and bedrooms for marriageable son. It is also claimed that

the non-applicant does not own any other house for residential

purpose in Nagpur and need same for bonafide use.

As the suit premises were not vacated after a lease period,

it is claimed that he was required to initiate the suit in question. The

non-applicant claimed that the applicant constructed restaurant on his

plot and started misusing the suit premises. It is alleged that the

present applicant has constructed permanent structure in the rear

margin of the plot without any permission of the non-applicant. It is

also alleged that the premises are required for bona fide need. As such

a decree for possession of the suit premises, arrears of rent, damages

and enquiry into mesne profits was sought.

Vide Exhibit No.18 the present applicant resisted the claim

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denying the entire claim made by the non-applicant/plaintiff and

sought dismissal of the suit.

3. Having regard to the claim as was put before the learned

trial Court, the trial Court framed points and recorded its findings

thereon which are as under :

Points Findings

1) Whether plaintiff proves that tenancy of the defendant came to be terminated by legal and valid notice ? - Yes.

2) Whether defendant is in arrears of rent ? - Yes.

3) Whether plaintiff proves that the defendant has committed any act contrary to the provision of clause (6) of Sec. 108 of Transfer of Property Act, 1882 ? - Yes.

4) Whether plaintiff proves that the defendant without landlord's consent given in writing erected on the suit premises any permanent structure ? - Yes.

 5) Whether plaintiff prove that defendant
     guilty of conduct which is nuisance ?                    -    Yes.

 6) Whether plaintiff proves bonafide need
     and reasonable requirement of the suit 
     property ?                              -    Yes.

 7) To whom comparative greater hardship
     will be caused in the event of decree is 
     passed, rather than refused to pass it ? -    To the plaintiffs
                                                     if refused to pass.                    



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 8) Whether plaintiff proves that defendant
     has not used the suit property for which
     it was let out ?                         -    Yes.

 9) Whether suit is tenable and
      maintainable ?                                   -    Yes.

 10) What order ?                                      -    As per final order suit
                                                            is decreed with costs.

4. The learned Judge after analysing pleadings, oral and

documentary evidence brought before it, decreed the suit of non-

applicant vide judgment and order dated 29 th March, 2014, which is

prompted the present applicant to prefer an appeal being Regular Civil

Appeal No.208/2014.

5. An application under Order XLI Rule 27 of the Civil

Procedure Code for grant of permission to lead additional evidence

came to be moved in the said appeal, which was resisted by the present

non-applicant. Same came to be rejected by the learned District Judge

on 12th February, 2016. The learned District Judge has dealt with the

appeal preferred under Section 34 of the Maharashtra Rent Control

Act, 1999 and vide its judgment dated 25-01-2017 was pleased to

dismiss the same. As such the present revision.

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6. The learned Counsel for the applicant/original

defendant/tenant would urge that the learned trial Court has granted

permission on two counts i.e. erection of permanent structure (Section

13(1)(b) Bombay Rents, Hotel and Lodging House Rates Control Act

and Section 16(1)(g) of the Maharashtra Rent Control Act i.e. bonafide

need). According to him, in 1998, the present applicant has inducted

herself in the hotel business and the fact was well within the

knowledge of the non-applicant. He would urge that the misuse as has

been alleged for the purpose of commercial house is without any basis

as there is no evidence brought on record to that effect. According to

him, property at Chhatrapati Nagar is joint family property of five

brothers, which is about 5000 square feet of area and 3000 square feet

of construction consisting of ground plus two storied. As such he

would try to impress upon the Court that there is alternate

accommodation available to the plaintiff. According to him, an

application was moved being Exhibit No.108 before the learned trial

Judge for issuance of witness summons to Assistant Assessor, Nagpur

Municipal Corporation so as to prove availability of alternate

accommodation to the plaintiff and suppression of the said material by

the plaintiff from the Court, which is rejected by the order dated 12 th

March, 2014. He would try to create a case for remand based on the

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said issue. He would then take me through the judgment delivered by

the learned Appellate Court and submits that the view taken by the

appellate Court of not permitting the present applicant to examine the

Tax Assessor is contrary to the judgment of this Court in the matter of

Vasant Mahadeo Gujar vs. Baitulla Ismail Shaikh and Another

reported in 2016(4) ALL MR 173. The said judgment is also pressed

into service by canvassing the ground of suppression of availability of

alternate premises and as such like a bona fide need, erection of

permanent structure and availability of alternate premises to the

tenant. According to him, the law laid down in the aforesaid judgment

is not appreciating in true perspective. He would then urge that under

Section 16(1)(g) of the Maharashtra Rent Control Act what was

expected by both the Courts below is to examine and satisfy the

requirement of bona fide need and would draw support from the

judgment of Vasant Mahadeo Gujar vs. Baitulla Ismail Shaikh and

Another cited supra. The issue of comparative hardship according to

him is not properly appreciated. While inviting the attention of this

Court to the judgment in the matter of Dattatraya Savlaram

Ghadigaonkar since deceased through L.Rs Savita Dattatraya

Ghadigaonkar and others vs. Satyapal Uttamchand Chaudhary

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since deceased through L.Rs. Vivek Stayapal Chaudhari and another

reported in 2011(6) Mh.L.J. 500, he would urge that the claim of

erection of permanent structure without and as such the violation of

Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates

Control Act is not in tune with the tests laid down in the said

judgment. According to him, there was an oral permission for

construction of structure. According to him, this Court in the matter of

Parvati Kevalram Moorjani vs. Madanlal Anraj Porwal and others

reported in 1987 Mh.L.J. 917 has observed in paragraph Nos.8 and 9

that in case if the erection as has been of a structure is not permanent

in nature, same will not amounting of violation of Section 13(1)(b) of

the Bombay Rents, Hotel and Lodging House Rates Control Act.

According to him, though the construction was carried out, it was not

objected till the date of filing of the suit and as such it is a case of

acquiesce as the construction of servant house is without any damage

to the original structure.

7. He would then urge that the mesne profits is ordered from

the date of suit, however, it has to be from the date of the termination

of the tenancy that is from the date of drawing a decree.

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8. Per contra, the learned Counsel for the non-

applicant/owner submits that the claim in the plaint was almost

accepted by the present applicant as there was no specific denial. The

case of alternate premises with specific details was not placed on

record. He would then urge that the landlord is the best judge of his

need and he can choose the premises as per his convenience. He

would try to justify the findings recored by both the Courts below on

the issue of alternate accommodation. By relying upon the cross-

examination of the defendant/applicant, he would urge that there is

suppression as regards the availability of alternate accommodation to

tenant. He would then urge that the additional illegal construction is

very much admitted and there is no written permission as

contemplated under Section 16(1)(b) of the Maharashtra Rent Control

Act for carrying out such construction. According to him, as there are

concurrent findings the revision lacks merit muchless the lacks in issue

of jurisdiction and as such is liable to be rejected.

9. With the assistance of learned counsel for the respective

parties, I analysed the judgments of the trial Court as well as the lower

appellate Court

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10. The plaintiff in order to prove his case relied upon the

sale-deed of plot at Exhibit No.23, tax receipts at Exhibit Nos.24 and

25, sale-deed of plot of the present applicant/defendant at Exhibit

No.26, photographs of the property at Exhibit Nos.86, 87, 88, and 93,

the evidence of his son P.W.2 at Exhibit No.61 and such of the other

documents as were necessary according to him. On behalf of the

defendant, she was examined at Exhibit No.98 and additional affidavit

at Exhibit No.103 with certified copy of Regular Civil Suit

No.873/2007 is fallen into account by both the Courts below.

11. The issue for the payment of rent was brought before this

Court in an earlier round of litigation in Writ Petition No.61/2014.

P.W.1 plaintiff in his cross-examination stated about the bona fide

need, residence of his other two brothers at Chhatrapati Square. It is

stated by him that his son Amit is in the advertising business and the

marriage was solemnized in 2009 and as such there is genuine and

bonafide requirement need of the premises in question. He has

deposed that there is an illegal construction of about 100 square feet

and has not issued any written permission for such construction nor

any oral permission. The trial Court thereafter proceeded to assess the

oral evidence and decreed the suit.

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12. The lower appellate Court after evaluating the claim of the

plaintiff and the defendant afresh dismissed the appeal. The appellate

Court was gone into the depth of the watter, appreciated the evidence

in the backdrop of pleadings. The same is already considered herein

above.

13. So far as the contention of the present applicant that her

application for summoning the Tax Assessor of the Nagpur Municipal

Corporation was rejected by the learned trial Court and also by the

appellate Court under Order XLI Rule 27 of the Civil Procedure Code is

concerned, it is required to be noted that on bare perusal of this

application, it depicts that the applicant has not disclosed any details

as regards holding of alternate accommodation by the plaintiff/non-

applicant. What is claimed by the applicant is that she intends to

prove the issue of having an alternate accommodation to the plaintiff

by examining the Tax Assessor of the Corporation. She has not made

any independent efforts or any enquiry so as to find out any alternate

accommodation of the plaintiff. Her intention is that of to gather

evidence before the Courts below by examining Tax Assessor of the

Corporation on the said issue This attempt on the part of the

defendant having been appreciated, the contention before the trial

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Court and the appellate Court is nothing but an act of making an

enquiry and use of the Court proceedings, its machinery for gathering

the evidence, so as to form basis of defeating the claim of the plaintiff.

Such attempt on the part of the defendant/applicant in any case is not

permissible in law and Court would never act in the aid of such a party

who intends to misuse the Court process for the purpose of gathering

the evidence. In my opinion, the rejection of the claim of the

applicant/defendant at Exhibit No.108 moved before the trial Court on

12th March, 2014 and the application moved under Order XLI Rule 27

of the Civil Procedure Code seeking permission to lead additional

evidence before the appellate Court was rightly rejected. As such the

said contention of the present applicant/original defendant is liable to

be rejected.

14. This takes me to the next submission of the non-applicant

as regard the erection of permanent structure and grant of permission

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

House Rates Control Act.

15. Both the Courts below concurrently held that there is no

written permission as contemplated under the provisions of Section 16

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of the Maharashtra Rent Control Act, 1999. It is then to be noted that

it is brought on record that the present applicant is running a hotel on

his adjoining plot being Plot No.12 and the suit premises are used as a

go-down and also for accommodating staff of the hotel.

16. The present applicant/original defendant has admitted

about construction of servant quarters over the suit premises. Such

construction is admittedly contrary to the terms of the lease agreement

at Exhibit No.28. The admission in the written statement which is at

Exhibit No.18 speaks of construction of servant quarters, however,

same is qualified by stating that there was a permission from the non-

applicant/landlord. The nature of construction as is carried out since

is admittedly contrary to the agreement of lease at Exhibit No.28 and

in view of the admission given in Exhibit No.18-written statement in

my opinion no interference is warranted. Though the reliance is

placed on the judgment of Parvati Kevalram Moorjani vs. Madanlal

Anraj Porwal and others and Dattatraya Savlaram Ghadigaonkar vs.

Satyapal Uttamchand Chaudhari cited Supra so as to infer that no

violation could be inferred pursuant to Section 16(1)(b) of the

Maharashtra Rent Control Act, however, once the Courts below having

appreciated the evidence on record in the background of the pleadings

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made therein the claim for interference in the revisional jurisdiction on

the said issue, is in my opinion, unwarranted particularly having

regards to appreciation of the evidence and pleadings by both the

Courts below. The claim that illegal construction should have been

reported to the local authority and it is local authority who has every

right to take action is of hardly any significance while dealing with the

case in hand. What is required to be appreciated by the Court is

whether the plaintiff/landlord has proved carrying out of illegal

construction. Defendant/ applicant in categorical terms in Exhibit

No.18 has admitted about the same. In view of above, the test as is

tried to be relied upon in the judgment in Parvati Kevalram Moorjani

vs. Madanlal Anraj Porwal and others and Dattatraya Savlaram

Ghadigaonkar vs. Satyapal Uttamchand Chaudhari cited Supra

particularly in the backdrop of admission given by the defendant will

be of hardly any consequence. As such no illegality could be noticed

from the said findings.

17. This takes me to the next submission of the present

applicant as regards the assessment of the bona fide need including

suppression of material of availability of alternate accommodation.

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18. It is not in dispute that the landlord is termed to be the

best judge of his bona fide requirement and of choosing the right

property of amongst the available property with him. By examining

himself and his son the landlord has proved that the small family has

grown to macro family. He has a married son and he needs premises

for his bona fide need as the existing premises where he was residing in

joint mess with his brother is not sufficient. He has also described

about the other property at Chhatrapati Nagar, which is in possession

of other two brothers which is put to commercial use as such is not

worth for accommodating the applicant for the residential purpose.

According to him, the premises are required for his own use and the

lease period as is mentioned in Exhibit No.28 was already expired in

2000. The said material evidence, in my opinion, sufficient to infer the

bona fide need of the non-applicant. Though this Court is not required

to appreciate the evidence in the revisional jurisdiction unless there is

palpable and prima facie indispensable error of law in the matter of

appreciation of evidence or legal provisions, in my opinion, once there

are concurrent findings recorded and no material is placed on record

so as to infer that the findings recorded by both the Courts below are

perverse and contrary to the legal provisions, this Court is required to

be slow in interfering with the findings.

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19. It is then to be noted that the issue of comparative

hardship as is sought to be pleaded will be of hardly any consequence

when the fact remains that the applicant is running a hotel on adjacent

plot No.12 and using the premises owned by the non-applicant for

residential and other use.

20. The trial Court has rightly proceeded to order mesne

profits in accordance with provisions of Order XX Rule 12 of the Civil

Procedure Code.

21. In the above referred backdrop, in my view, no case for

interference in the revisional jurisdiction is made out, as this Court has

not noticed any case of failure to exercise the jurisdiction or any

jurisdictional error. The revision, as such, fails and stand rejected with

costs.

JUDGE adgokar