Bombay High Court
Raosaheb Sahebarao Deshmukh vs Pandurang Vithoba Dawale on 16 February, 2021
Bench: C.V. Bhadang
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sneha N. CIVIL APPELLATE JURISDICTION
Chavan WRIT PETITION NO. 578 OF 2021
Digitally signed
by Sneha N. Raosaheb Sahebrao Deshmukh .. Petitioner
Chavan
Date: 2021.02.22
V/s.
18:19:59 +0530
Pandurang Vithoba Dawale ..Respondent
----
Mr. S.S. Aradhye for the Petitioner.
Mr. V.S. Talkute for the Respondent.
----
CORAM : C.V. BHADANG, J.
DATE : 16th FEBRUARY, 2021
:JUDGMENT:
1. Rule. Rule made returnable forthwith. The learned counsel
for the respondent waives service. Heard finally by consent of
parties.
2. The challenge in this petition is to the Judgment and Decree
dated 30.04.2019 passed by the learned District Judge at
Pandharpur, in Regular Civil Appeal No. 12 of 2017. By the
impugned judgment, the Appellate Court, while dismissing the
appeal filed by the petitioner, has confirmed the Judgment and
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Decree dated 22.12.2016 passed by the Civil Judge Junior Division
at Pandharpur in Regular Civil Suit No. 36 of 1995.
3. The brief facts necessary for the disposal of the petition may
be stated thus:
That the respondent (original plaintiff) filed the aforesaid suit
for eviction and possession of the petitioner from the suit premises,
which comprise of two rooms from out of a house situated on CTS
No. 3582 better known as 'Davale Wada' at Santpeth, Pandharpur,
which is more specifically described in the plaint.
4. The case made out in the plaint is that the petitioner is
occupying the suit premises as tenant thereof on an agreed monthly
rent of Rs.45/-. The tenancy month is according to the English
calendar month. The eviction was sought on the ground that the
petitioner was a defaulter and was in arrears of rent from
01.01.1993 to 30.09.1994 amounting to Rs.945/- and that the
petitioner has acquired alternate premises under a registered sale
deed dated 22.05.1990, which he has subsequently sold on
29.03.1993. The eviction was also sought on the ground that the
suit premises are reasonably and bonafide required by the
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respondent for his personal occupation. There was also a ground of
nuisance made out. For the purpose of disposal of the present
petition, it is not necessary to set out those allegations in details, as
that ground has not been upheld. Suffice it to mention that the
respondent issued a notice to the petitioner on 10.10.1994 inter alia
claiming the arrears of rent and possession and thereafter filed the
suit as aforesaid.
5. The petitioner resisted the suit. It was the material case made
out that the rent for the year 1993-1994 was sent by money order.
However, it was refused and therefore, the petitioner cannot be said
to be a defaulter or in the arrears of rent. It was contended that the
respondent was principally unhappy with the amount of rent and
therefore, was harassing the petitioner somehow or the other, to get
the possession of the suit premises. All other adverse allegations
were denied. It was denied that the respondent was in a reasonable
and bonafide need of the suit premises. It was contended that after
the receipt of summons on 18.02.1995, the petitioner had deposited
an amount of Rs.1,620/- in the court. It was also contended that on
a consideration of comparative hardship, it is the petitioner who
would suffer greater hardship, in the event the eviction decree is
passed.
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6. On the basis of the rival pleadings, the learned Trial Court
framed the following issues :
ISSUES
1. Whether the description of suit property is correct?
2. Does plaintiff prove that defendant has not paid rent of suit
premises for more than six months and that the defendant has
become defaulter?
3. Does he prove that the defendant has acquired suitable
alternative accommodation of his own?
4. Does plaintiff prove that the defendant has been guilty of conduct
which is a nuisance of annoyance to the plaintiff and adjoining or
neighbouring occupier?
5. What is due to the plaintiff, if any?
6. Is plaintiff entitled to the relief sought?
7. What order and decree?
7. The parties led oral and documentary evidence. The
respondent examined himself along with 12 other witnesses, while
the petitioner examined himself.
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8. The learned Trial Court answered issue nos. 1,2, 4, 6, 9 in the
affirmative and also answered the issue on comparative hardship in
favour of the respondent and decreed the suit.
9. Feeling aggrieved, the petitioner challenged the same before
the learned District Judge. The learned District Judge framed the
following points for determination.
POINTS
1. Does the plaintiff prove that the defendant has become defaulter
in payment of the rent of the suit premises?
2. Does the plaintiff prove that the suit premises are reasonably and
bonafide required by him for occupation by himself and by his
family members?
3. Does the plaintiff prove that if the decree for the recovery of the
suit premises is not passed by the court, he will suffer comparative
hardship than the defendant, if the decree is passed?
4. Does the plaintiff prove that the defendant has acquired
alternate accommodation for his residence?
5. Whether the Judgment and decree passed by the learned trial
court needs interference?
6. What order?
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10. The learned District Judge answered point nos. 1 to 4 in the
affirmative and dismissed the appeal by the impugned judgment and
decree. Hence, this petition.
11. I have heard Mr. Aaradhye, the learned counsel for the
petitioner and Mr. Talkute, the learned counsel for the respondent.
With the assistance of the learned counsel for the parties, I have
gone through the record.
12. Mr. Aaradhye, the learned counsel for the petitioner submitted
that the finding recorded by the learned Trial Court in paragraphs
20 and 22 of the judgment are contradictory. It is submitted that the
Trial Court having found that the petitioner had sent the rent for the
year 1993-94 by money order, which was refused by the respondent,
could not have directed eviction on the ground of default. Insofar as
the ground of bonafide personal occupation is concerned, it was
submitted that the courts below have failed to see that the property
which was purchased by the petitioner was required to be sold for
the purpose of marriage of the daughter of the petitioner. He,
therefore, submitted that courts below were in error in holding the
said ground as proved. It is submitted that even on the ground of
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comparative hardship, courts below were in error in answering the
said issue in favour of the respondent.
13. Mr. Talkute, the learned counsel for the respondent has
supported the impugned order. The learned counsel has placed
reliance on a full Bench decision of this Court in Babulal V/s. Suresh
and Ors.1 in order to submit that even where the tenant complies
with the notice and pays or tenders the rent as demanded, still the
landlord is entitled to seek eviction on the ground under section
15(3) of the the Maharashtra Rent Control Act ("Rent Act" for
short). It is submitted that the petitioner has not averred or proved
that he had made any attempt to search for an alternate
accommodation and therefore, the issue regarding the comparative
hardship has rightly been answered in favour of the respondent. For
this purpose, reliance is placed on the decision of this court in
Jahangir Abdul Saheb Zari v/s. Balwant Ramchandra Bhokare 2 The
learned counsel pointed out that there is total lack of pleadings, and
in the absence of the material pleadings, in the written statement,
the courts below have rightly disbelieved the defence.
1 2017 (4) MhLJ 406
2 2003(supp) Bom. C.R. 333
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14. I have carefully considered the rival circumstances and the
submissions made. It is true that in paragraph 20 of the judgment,
the learned Trial Court has found that the petitioner had sent an
amount of Rs.1080/- on 10.11.1994 by money order, representing
the rent for the period from 01.01.1993 to 30.09.1994, which is
apparent from the receipt at Exhibit 238. The endorsement below
Exhibit 237 shows that the said money order was refused. The
learned Trial Court, however has found that after the receipt of the
summons, it was necessary for the petitioner to have deposited the
rent for the said period along with interest and the costs which the
petitioner has failed to do. The learned Trial Court has therefore,
held that there is non compliance with the provisions of Section
15(3) of the Rent Act.
15. In the case of Babulal (supra) a reference was made to the
Full Bench in order to resolve the conflict of views expressed by the
Division Bench of this Court in Chandiram Dariyanumal Ahuja v/s.
Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola 1 and in the case
of Narhar Damodar Wani v/s Narmadabai T. Nave 2. The Full Bench
in para 24 has held that the decision in the case of Chandiram
1 2013(1) All MR 177
2 1984 Mh. L.J. 313
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(supra) lays down the correct proposition of law. This is what is held
in paragraph 25 of the judgment.
"25. To infer that once the tenant pays the amount
recorded in the notice or tenders the same, the landlord
ha no right to institute a suit for recovery of possession
for non-payment of those arrears or continue with such
proceeding for eviction and no decree for possession can
be asked for, is not within contemplation of provisions of
section 15 of the Act. The provision does not interfere
with the right of the landlord to initiate proceeding for
eviction, however, sub-section (2) of section 15
prescribes precondition for presentation of suit, that is to
say that no suit can be initiated without issuing a notice
within contemplation of said sub-section (2) of section
15 and tenant's entitlement to claim relief against
forfeiture shall be subject to fulfillment of conditions
stipulated under sub-section (1) and (3) of section 15 of
the Rent Act."
It can thus be seen that even where the landlord has accepted
the rent within contemplation of sub-section 2 of Section 15, still the
said provision does not interfere with the right of the landlord to
initiated the proceedings for eviction under sub-section 3 of Section
15 of the said Act. It can thus be seen that in the present case
notwithstanding the earlier refusal by the landlord, in the face of
non compliance with provisions of sub-section 3 of Section 15, the
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eviction decree on the said ground cannot be faulted with in view of
the fact that the rent along with interest and costs have not been
deposited by the petitioner as has been found by the courts below.
16. Coming to the issue of reasonable and bonafide requirement,
the first Appellate Court after thread bare consideration of evidence
in the context of the pleadings has found that there was a partition
of property at 'Dawale Wada' between respondent and his brothers
way back in the year 1970, which was much prior to the filing of the
suit. The first Appellate Court has therefore, held that the said
partition could not have been said to be effected to create a ground
for eviction. The learned District Judge, has also noticed that the
respondent was residing along with his two sons, out of whom one
was married and another was of marriageable age, which aspect was
not disputed. The respondent is in possession of the premises
consisting of 10 khans which was too small for the family of the
respondent. Although, it was contended on behalf of the petitioner
that the respondent was having a farm house in land Gut No. 94 at
Kasegaon, on the basis of the evidence of P.W. 3 Ramdas Chavan,
who is gramsevak of village Kasegaon during the period from 2003
to 2012 and on the basis of the extract of the house property No.
1660 (Exhibit 156) the Appellate Court has found that the said
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property is in the form of a tin shed constructed in bricks and stones,
admeasuring about 275 sq. ft. only. Further, it has been found on
the basis of the extract No. 157 that the said property was not in
existence. The learned District Judge has found and to my mind
rightly so that even assuming that the respondent was having such a
house in Gut No 94 at village Kasegaon, the petitioner could not
force the respondent to go to reside at village Kasegaon from
Pandharpur. It is trite that in such a case, the landlord is the best
judge of his need and it is not for the tenant to dictate how the
landlord should reside. The learned District Judge has also found
that there is lack of pleadings on the part of the petitioner about the
respondent having obtained possession of one room in 'Dawale
Wada', which was let out to Malaria office. The learned District
Judge has also found that there is no evidence to show that the said
room was allotted to the respondent in the partition between
respondent and his brothers in the year 1970. The learned District
Judge has found that petitioner has admitted in the cross
examination that he has a house property bearing CTS No. 4395 at
village Atpadi as well as his wife is also having another house
property being CTS No. 4393 at village Atpadi.
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17. In the case of Jahangir (supra) this Court taking note of the
decision of the Supreme court in Bega Begum & Ors. v/s. Abdul
Ahad Khan & Ors.1 has held that it is for the defendant/tenant to
establish on record that it was not possible for the tenant to secure
any alternate accommodation elsewhere in the entire city. That
evidence is not forthcoming in this case. Thus, in my considered
view, no exception can be taken even to the finding on the point of
comparative hardship.
18. Considering the over all circumstances, I find that the courts
below on a proper consideration of the oral and documentary
evidence on record have directed eviction and the findings so
recorded do not suffer from any infirmity so as to require
interference in the supervisory jurisdiction of this court under Article
227 of the Constitution of India. It is trite that the jurisdiction under
Article 227 is neither appellate nor revisional in nature. It is
essentially supervisory, with the object of ensuring that the courts
and Tribunals subordinate to this court, act within the bounds of
their authority and the judgments and orders do not result into any
manifest injustice. (see the decision in the case of Shalini Shetty and
1 (1979) 2 SCR 1
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Another v/s. Rajendra Shankar Patil 1 and Radhey Shyam and
Another V/s. Chhabi Nath and Ors.2)
19. The petition is without any merits and is accordingly
dismissed, with no order as to costs.
20. At this stage, the learned counsel for the petitioner has prayed
for stay of the decree for eviction for six weeks in order to enable
the petitioner to consider, further course of action, which is opposed
by the respondent. However, in order to afford a fair opportunity to
the petitioner, the execution and operation of the impugned
Judgment and Decree is hereby stayed for a period of six weeks.
C.V. BHADANG, J.
1 (2010) 8 Supreme Court Cases 329
2 (2009) 5 Supreme Court Cases 616
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