Bombay High Court
Balaji Devasthan, Nagpur Thr. Its ... vs D.R. Bhagat (Deceased Lrs) M.D. ... on 22 January, 2018
Bench: Z.A. Haq
Judgment 1 wp3270.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3270 OF 2015
Balaji Devasthan, Itwari, Nagpur,
through its Secretary Shri Mohan
Govindrao Kashikar, Aged about
54 years, Occ.: Advocate,
R/o. Vyankoba Mule Road,
Satranjipura, Nagpur.
.... PETITIONER.
// VERSUS //
DHANNALAL RAMCHAND BHAGAT
Since deceased through Legal Representatives:
Shri Mohankumar S/o.Dhannalal Bhagat,
Since deceased through Legal Representatives:
1. Smt. Kantabai Wd/o. Mohankumar Bhagat,
aged about 58 years,
2. Mr Vishal S/o. Mohankumar Bhagat,
Aged about 41 years,
3. Mr Vyankatesh S/o. Mohankumar Bhagat,
Aged about 40 years,
4. Mr Vikram S/o. Mohankumar Bhagat,
Aged about 37 years,
5. Ms Kavita D/o. Mohankumar Bhagat,
Aged about 39 years,
6. Mr Vishwajit S/o. Mohankumar Bhagat,
Aged about 31 years,
7. Shri Om S/o. Dhannalal Bhagat,
Aged about 55 years, Occu.: Not known,
8. Shri Hanuman S/o. Dhannalal Bhagat,
Aged about 53 years, Occu.: Not known,
All R/o. Beside Namak Ganj Police Chowki,
Itwari, NAGPUR-440002.
.... RESPONDENTS
.
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Judgment 2 wp3270.15.odt
___________________________________________________________________
Shri N.H.Shams, Advocate for Petitioner.
Ms Kirti Satpute, Advocate for Respondent No.2.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JANUARY 22, 2018.
ORAL JUDGMENT :
1. Heard.
2. RULE. Rule made returnable forthwith.
3. The petitioner /landlord challenges the judgment and decree
passed by the subordinate Courts concurrently rejecting its claim for decree
for eviction, possession and other ancillary reliefs.
4. The petitioner-public trust is admittedly owner of the suit
property and is landlord, the respondents/defendants being the tenants. The
plaintiff had filed civil suit praying for decree for possession and arrears of
rent, under Sections 15, 16(n) and (g) of the Maharashtra Rent Control Act,
1999. The plaintiff contended that the tenancy was monthly, beginning on
the first day of English calendar and ending on the last day of the month,
the rent being payable after the expiry of the tenancy month by tenth day of
the following calendar month. According to the plaintiff, the defendants
were in arrears of rent from 1994 for 100 months, amounting to Rs.5,000/-
Judgment 3 wp3270.15.odt
and in addition the defendants were liable to pay the municipal taxes. The
plaintiff claims that several reminders were given to the defendants,
however, the arrears of rent were not paid. The plaintiff pleaded that the
suit premises were required for its bonafide use and it wanted to demolish
old structure and construct a new structure for various religious and social
activities in furtherance of the objects for which the trust is created. The
plaintiff further claimed that the defendants were not using the premises for
the purpose for which they were let out and this was clear from the remarks
on the postal envelope by which notices were sent to the defendants by
registered post acknowledgment due and were returned unserved. The
plaintiff further contended that the defendants had permitted some other
persons to use the premises in question for business other than the business
of timber and coal depot for which the premises were let out.
5. The defendants opposed the claim of the plaintiff by filing
written statement. In paragraph No.3 of the written statement, the
defendants admitted that they were in arrears of rent for 84 months
amounting to Rs.4,800/-. The defendants raised a bold plea, though legal
one, that the plaintiff was entitled to recover arrears of rent of three years
prior to filing of the civil suit and not more than that. The defendants
opposed the claim of the plaintiff on the other grounds.
The learned trial Judge dismissed the civil suit. The appeal filed
by the plaintiff is also dismissed by the District Court.
Judgment 4 wp3270.15.odt
6. The learned advocate for the petitioner/ plaintiff has submitted
that apart from the fact that the defendants accepted that they were in
arrears of rent for 84 months, the defendants failed to deposit the amount of
rent regularly before the trial Court and then before the District Court and
therefore, the plaintiff is entitled for decree for eviction as per Section 15(3)
of the Act of 1999.
7. The learned advocate for the respondent Nos. 1, 2, 4 and 8 have
submitted that the plaintiff has failed to prove that notice as required by sub-
section (2) of Section 15 of the Act of 1999 demanding the alleged arrears of
rent was sent by the plaintiff and was served on the defendants. It is
submitted that as the plaintiff failed to serve the notice of demand as
required by sub-section (2) of Section 15 of of the Act of 1999, the plaintiff is
not entitled for the decree of eviction and possession on the ground that the
defendants were in arrears of rent, It is argued that the case of the
defendants is that the rent was not payable monthly or yearly but was
payable on demand by the plaintiff. It is submitted that the civil suit is filed
on 3rd August, 2002 and the plaintiff deposited the amount of Rs.4,963/- on
27th November, 2002 towards arrears of rent, and the defendants had
further deposited Rs.4,654/- before the trial Court on 26 th March, 2007
towards arrears of rent for the period from August, 2002 till March, 2007. In
para 15 of the judgment passed by the learned District Judge, it is recorded
Judgment 5 wp3270.15.odt
that the defendants had deposited an amount of Rs.2,600/- towards the rent
and Rs.545/- towards the taxes, this deposit being for the rent till July, 2014
and towards taxes up to March, 2015. There is nothing on the record to show
about any payment/ deposit except as referred above. The defendants have
not placed anything on record to show that the facts recorded in paragraph
No.15 of the judgment passed by the learned District Judge are not correct.
8. In the facts of the case, it cannot be accepted that there was a
practice requiring the tenant to pay the amount of rent on demand of the
landlord. The tenant has failed to establish that such practice prevailed.
9. Now, the point which arises for consideration is whether, as per
Section 15(3) of the Act of 1999, the tenant is under an obligation to pay /
deposit the rent regularly during pendency of the civil suit and also during
pendency of the appeal before the District Court. As the tenant has failed to
establish that there was practice of paying rent in lump sum on demand by
the landlord, the tenant was under obligation to pay the rent regularly i.e.
every month. The facts on record show that the tenant has failed to pay /
deposit the amount of rent regularly during pendency of the civil suit and
also during pendency of the appeal before the District Court. Failure on the
part of the tenant to comply with the mandate of Section 15(3) of the Act of
1999 makes him liable to suffer decree for eviction.
Judgment 6 wp3270.15.odt
10. The submission made on behalf of the tenant that the landlord
is not entitled for decree for eviction as the landlord has failed to prove that
the notice as required by Section 15(2) of the Act of 1999 was served by him
on the tenant, is not of any relevance as the tenant is liable to be evicted for
not complying with the mandate of Section 15(3) of the Act of 1999 by not
paying /depositing the rent regularly during pendency of the civil suit and
also during pendency of the appeal before the District Court.
11. As I am satisfied that the landlord is entitled for decree for
eviction and possession on the above ground, the entitlement of the landlord
for decree for eviction and possession on other grounds is not being
considered.
12. In view of the above, following order is passed:
i) The impugned judgment and decree is set aside.
ii) It is held that the plaintiff is entitled for decree for eviction and
possession of the suit premises. The defendants shall deliver
vacant possession of the suit premises to the plaintiff till 30 th
June, 2018.
ii) The plaintiff would be entitled to claim inquiry under Order 20
Rule 12 of the Code of Civil Procedure for mesne profit for the
Judgment 7 wp3270.15.odt
period from the date of filing of the civil suit till possession of
the suit premises is handed over to the plaintiff.
The writ petition is allowed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
RRaut..
