Smt.Satyabhamabai ... vs Shri. Shantaram Kamlakar Mhatre & ...
2017 Latest Caselaw 8176 Bom

Dinesh Sherla                                                                       214-wp-3211-97



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE  JURISDICTION
                       WRIT PETITION NO. 3211 OF 1997   
         Smt. Satyabhamabai J. Shelar
         through her L.Rs.
         Chandrakant J. Shelar and anr.               .. Petitioners
                                                       
                vs.
         Shantaram K. Mhatre and anr.                 .. Respondents
                                                                     
         Mr.   S.S.   Patwardhan   a/w.   Mr.   Bhushan   V.   Mandlik   for   the 
         Petitioners.
         None for the Respondents.          

                                               CORAM :  M. S. SONAK, J.

                                               DATE     :    13 OCTOBER 2017.

         ORAL JUDGEMNT :- 

         1]      Heard   Mr.   S.S.   Patwardhan   and   Mr.   Bhushan   V.   Mandlik, 

         learned counsel for the petitioner.  



         2]      The   petitioner   -   landlord   challenges   the   orders   dated   10 th 

January 1992 and 17th February 1997, by which, the Trial Court and

Appeal Court have declined the landlord decree of eviction in R.C.S

Suit No. 9 of 1986.

3] The petitioner had applied for eviction on the ground that

respondent No.1 had unlawfully sublet the suit premises to

respondent No.2 and further, the respondents, failed to use the suit

premises in a responsible manner and caused nuisance or annoyance

Dinesh Sherla 214-wp-3211-97

to the neighboring or adjoining occupants. In short, the landlord,

had invoked, the grounds in Section 13(1)(e) and 13(1)(c) of the

Bombay Rent Act, 1947 (said Act).

4] The learned counsel for the petitioner submits that the two

courts misdirected themselves in law by holding that the ground of

subletting was not proved because, the petitioner, in the notice

issued to the respondents prior to the institution of the suit had not

raised such a ground. Learned counsel points out that the said Act

does not require any notice to be issued to the tenants before

instituting suit on the grounds contemplated by Section 13(1)(e) or

Section 13(1)(c) of the said Act. Learned counsel points out that the

respondent No.1 had in fact made a complaint to the police

authorities that respondent No.2 was in illegal occupation of the suit

premises. This aspect has also not been considered by the two

courts.

5] The learned counsel for the petitioner further submits that

there was overwhelming evidence on record to establish that the

respondents were using the suit premises irresponsibly. In fact, one

portion of the suit premises caved in, thereby, causing nuisance and

Dinesh Sherla 214-wp-3211-97

annoyance to the tenant leaving on the ground floor. The learned

counsel submits that this was a fit case for making an eviction decree

under Section 13(1)(c) of the said Act.

6] Having considering the submissions of learned counsel for

the petitioner and perused the materials on record, there is no case

made out to interfere with the concurrent findings of fact recorded

by the two courts. The petitioner has not demonstrated any

perversity. There is really no evidence on record to order eviction on

the grounds raised. The jurisdiction under Article 227 of the

Constitution of India is not appellate and no interference is

warranted, unless, a case of perversity is made out.

7] Learned counsel for the petitioner is entirely right in his

submission that there is no requirement of landlord issuing any

notice prior to the institution of a suit seeking eviction under Section

13(1)(e) and Section 13(1)(c) of the said Act. Therefore, the mere

fact that there was no reference to allegation of subletting in the

notice issued, could not be a valid ground for denying relief.

However, relief is denied by the two courts mainly on the basis that

there is no evidence to establish any subletting by respondent No.1

Dinesh Sherla 214-wp-3211-97

in favour of his own son, respondent No.2. The failure to refer to this

aspect in the notice issued by the petitioner before the institution of

the suit, is only an additional circumstance.

8] Admittedly, respondent No.2 is the son of respondent No.1.

Both the respondents have deposed to the fact that there was no

subletting involved and respondent No.2 was always residing in the

suit premises as a member of the family of respondent No.1, i.e., his

son. The circumstances of the police complaint have also been

explained. There is no perversity in the record of concurrent findings

of fact.

9] On the aspect of nuisance, there are hardly any pleadings or

proof to make out a case for eviction under Section 13(1)(c) of the

said Act. The two courts, have appreciated the evidence on record

and found the same totally insufficient to make out a case for

eviction under Section 13(1)(c) of the said Act. Again, no perversity

is demonstrated.

10] For the aforesaid reasons, there is no merit in this petition.

The petition is therefore, dismissed. There shall, however, be no

order as to costs.

(M. S. SONAK, J.)