Mr. Sabaji Vittal Desai (Since ... vs Sou. Chhaya M. Patkar
2021 Latest Caselaw 3480 Bom

                                                                         21 CRA 72-20



                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 Sneha                               CIVIL APPELLATE JURISDICTION
 N.
 Chavan
                                  CIVIL REVISION APPLICATION NO. 72 OF 2020
Digitally signed
by Sneha N.
Chavan
Date: 2021.03.01   Mr. Sabaji Vitthal Desai (since deceased)
18:51:29 +0530
                   Through Lrs. Rajesh Sabaji Desai & Anr.             ..Applicants
                         V/s.

                   Sou. Chhaya Mohan Patkar                            ..Respondent
                                                    ----
                   Mr. Sagar Joshi for the Applicants.

                   Mr. Rajesh Datar for the Respondent.
                                                   ----
                                               CORAM : C.V. BHADANG, J.

                                               DATE     : 24th FEBRUARY, 2021

                   P.C.

1. The challenge in this revision application is to the judgment

and order dated 15.02.2017 passed by the learned District Judge at

Thane in Civil Appeal No. 34 of 2012. By the impugned judgment,

the learned District Judge, while dismissing the appeal filed by the

applicant, has confirmed the judgment and decree dated 31.10.2011

passed by the learned 6th Joint Civil Judge Junior Division, at Thane

in Regular Civil Suit No. 648 of 2016.

The net result is that there is a decree of eviction passed

against the applicants inter alia on the ground that the applicants

have not used the premises for a period of more than 6 months.

                          Sneha Chavan                                            page 1 of 8
                                                     21 CRA 72-20


2       The subject matter of dispute happens to be a room

admeasuring 12 ft X 13 ft along with open space (varanda)

admeasuring about 3 x12 ft situated at Chhaya Mohan Patkar

Chawl, Shastri Nagar, Thane(West), which is more specifically

described in the plaint. The applicants happen to be the tenants in

respect of the said premises of the respondent.

3. According to the respondent, the monthly rent is Rs.35/-

inclusive of taxes and cess, which are at present Rs.18.30 per month.

The respondent claims that the applicants were irregular in the

matter of payment of rent and permitted increases and were in

arrears of rent from 01.01.1992, in spite of repeated request and

demands. The respondent issued a notice dated 04.03.2006 thereby

terminating the tenancy, on expiry of the period of 90 days from the

receipt of the notice and sought possession along with arrears of

rent etc. The said notice was returned after the postal authority

served an intimation on the applicants. The respondent also sent a

copy of notice under postal certificate. It is contended that the

applicants failed to deliver possession as well as clear the arrears,

which led the respondent to file aforesaid suit for possession and

arrears of rent etc.

Sneha Chavan page 2 of 8 21 CRA 72-20

4. The suit was resisted on behalf of the applicants. It was

contended that the applicants were residing in the suit premises

since more than 30 years and were paying Rs.25 per month as rent

inclusive of taxes. The applicants were also paying the light bill and

water taxes separately. All other adverse allegations were denied. It

was denied that the applicant No.1 along with his wife and nephew

have shifted in another premises and the allegations about non user

were denied.

5 On the basis of the rival contentions, the learned Trial Court

framed as many as fifteen issues.

6. At the trial, the respondent examined her husband Mohan

Patkar (PW-1), who also happens to be her Power of Attorney

holder. The respondent also examined Shreekant Mane (PW-2),

Shreenath Dubey (PW-3), Pramod Kalekar (PW-4) and Prashanti

Mane (PW-5) and produced certain documents. The original

defendant examined himself as (DW-1) and one Anant Ghogale

(DW-2)

7. The learned Trial Court answered the material issue nos. 2, 3

and 7 in the affirmative and decreed the suit. The applicant

Sneha Chavan page 3 of 8 21 CRA 72-20

unsuccessfully challenged the same before the first Appellate Court.

Hence, this revision.

8. I have heard Mr. Joshi, the learned counsel for the applicants

and Mr. Datar, the learned counsel for the respondent. With the

assistance of the learned counsel for the parties, I have gone

through the record.

9. Mr. Joshi, the learned counsel for the applicants has submitted

that Issue No.2 as framed by the Trial Court namely whether the

applicant (defendant) has secured alternate accommodation, could

not have been framed. It is submitted that Section 16 of the

Maharashtra Rent Control Act, 1999 ('the Act' for short) does not

provide a ground for eviction namely that of the tenant having

secured an alternate accommodation. It is next submitted that the

power of attorney, which was executed by the respondent in favour

of PW-1 on 26.06.2002 did not authorise PW-1 to depose on behalf

of the respondent, in the aforesaid suit. It is, thus, submitted that

the evidence of PW-1 was inconsequential and ought to have been

discarded. He, therefore, submitted that the impugned Judgment

and Decree be set aside. Except these, there are no other

contentions raised.

     Sneha Chavan                                             page 4 of 8
                                                      21 CRA 72-20

10. Mr. Datar, the learned counsel for the respondent has

supported the impugned judgment. It is submitted that the ground

about the tenant having secured an alternate accommodation has

been given up by the respondent before the first Appellate Court. It

is submitted that the power of attorney was executed in the year

2002 i.e. prior to the institution of the suit in the year 2006 and

therefore, cannot possibly have a reference to the said suit. It is

submitted that the power of attorney holder i.e. PW-1 is the husband

of respondent and it has come on record that he was also issuing

rent receipts and therefore, was in know of the facts of the case. He,

therefore, submitted that absence of the specific reference to the

civil suit in the power of attorney is inconsequential. It is submitted

that it has sufficiently been proved on the record that there was non

user of suit premises for a period of 6 months prior to the filing of

the suit and therefore, the eviction decree does not call for any

interference.

11. I have considered the rival circumstances and the submissions

made and I do not find that any case for interference is made out. It

is true that Section 16 of the Act, in terns does not set out a ground

for eviction namely that the tenant has secured an alternate

accommodation. It is also true that the Trial Court had framed issue

Sneha Chavan page 5 of 8 21 CRA 72-20

No.2 to that effect. However, a perusal of the para 13 of the

judgment of the first Appellate Court would indicate that it was

conceded on behalf of the respondent that issue no.2 was wrongly

framed. The appellate court is right in refusing to remand the matter

as mere framing of a wrong issue was not sufficient for remand of

the matter. Thus, the consideration has primarily to be confined to

the ground of non user.

12. The contention that the power of attorney does not

specifically mention the number of the suit has rightly not been

accepted. It is necessary to note that the power of attorney was

executed in the year 2002 while the suit itself was filed in the year

2006 and therefore, the power of attorney possibly cannot contain

the specific number of the suit. That apart, it has come on record

that PW-1 who is the husband of the respondent, was dealing with

the applicant in respect of the suit property and had infact issued

the rent receipts. It can thus, be seen that the PW-1 was in know of

the facts of the case and therefore, his evidence could be read and

relied upon. PW-2 Mr. Mane was the Manager of Mane and Vartak

Gas Agency. He stated that the wife of the defendant Sou. A.S.

Desai, was their customer since 18.08.1992 having consumer No.

608335. She had applied for a second gas cylinder on 24.06.1994

Sneha Chavan page 6 of 8 21 CRA 72-20

and cash memo was produced at Exhibit 28 along with letter head

Exhibit 29 and copy of the voucher Exhibit 30. This witness stated

that the address of the wife of the applicant was shown as Flat No.2,

Upvan Society, Shivai Nagar, Thane. PW-3 is an employee working

with MSEB since 1977, in whose evidence it has come on record that

there was no consumption as such in the suit premises for the period

from 1997 to June 2010.

13. PW-4 is one Mr. Kalekar, who was working as a Secretary of

Shivai Nagar Upavan Co-op. Housing Society since 2002, of which

the applicant was also a member since 1989 having purchased Block

No.2. Lastly, PW-5 is the Nayab Tahsildar, who had produced a

voters list Exhibit 65, in which the name of the defendant, his wife

and son were appearing at serial Nos. 96 to 98 with the address at

Shivai Nagar, Upavan Co. Op. Housing Society. The said list was

published on 30.10.2010. Thus, there is sufficient evidence on

record that the tenant was not residing in the suit premises since

more than 6 months prior to the filing of the suit. PW-1 had

admitted that he is unable to file electricity bill of the suit premises

for the period from 2002 to 2006. Considering the over all

evidence, the first Appellate Court had held the ground under

Section 16 (1)(n) of the said Act to be proved. The said finding

Sneha Chavan page 7 of 8 21 CRA 72-20

does not suffer from any infirmity so as to require interference in the

revisional jurisdiction.

14. The revision application is without any merit and is accordingly

dismissed, with no order as to costs.

C.V. BHADANG, J.

    Sneha Chavan                                              page 8 of 8