Bhagwandas T. Puthran (Deceased ... vs Jayant Ganpatrao Buty (Deceased ...
2021 Latest Caselaw 215 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH AT NAGPUR

                    Writ Petition No. 1066 of 2020

       PETITIONERS: 1.             Bhagwandas Timappa Puthran
                                   (since deceased through his LRs)
                               1-a] Sandeep son of Bhagwandas Puthran,
                                   Aged about 48 years,
                                   Occupation : Business,

                               1-b] Yadesh son of Bhagwandas Puthran,
                                    Aged about 49 years,
                                    Occupation : Business,

                                   Both R/o Shalimar Restaurant and Bar,
                                   Buty Marg, Sitabuldi, Nagpur.

                                        Vs.

       RESPONDENTS :               Jayant Ganpatrao Buty
                                   (since deceased through his LRs)

                               1-a) Bhagyashree wd/o Jayant Buty,
                                    Aged about 70 years,
                                    Occupation-Household,

                               1-b) Yashodhan / Madan son of Jayant Buty,
                                    Aged about 47 years,
                                    Occupation : Business,

                               1-c) Umesh / Onkar son of Jayant Buty,
                                    Aged about 40 years,
                                    Occupation - Business,
                                    All R/o 306, RT Road, Civil Lines, Nagpur.

                       Mr. S.V. Bhutada, Advocate for petitioners.
                       Mr. P. N. Kothari, Advocate for respondents.


                                   CORAM :                MANISH PITALE, J.

                                   RESERVED ON :          16.12.2020

                                   PRONOUNCED ON : 06.01.2021



::: Uploaded on - 06/01/2021                       ::: Downloaded on - 06/02/2021 22:05:34 :::
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          JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

with the consent of learned counsel appearing for rival parties.

2. By this Writ Petition, the petitioners, who are the legal

representatives of the original tenant, have approached this

Court, challenging judgment and order dated 19/10/2019,

passed by the District Court at Nagpur, whereby an appeal filed

by them stood dismissed, as a consequence of which, decree

passed by the Small Causes Court evicting them from the suit

property stood confirmed.

3. The litigation between the parties has been travelling

through the process of the Court since the year 2004. For the

sake of convenience, the petitioners are being referred to as

"tenant" and the respondents are referred to as "landlord".

Initially, the proceedings stood initiated by the landlord against

the tenant by filing of a Regular Civil Suit, seeking possession

from the tenant. It was dismissed and against the same, the

landlord moved an appeal. The appeal stood allowed in favour

of the landlord, against which the tenant approached this

Court in Second Appeal in the year 2011. The said Second

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Appeal was disposed of on 05/09/2012, when the landlord

conceded that considering the nature of the suit, the

jurisdiction would actually be with the Small Causes Court. As

a consequence, the matter stood relegated to the Small Causes

Court and it was re-registered in the year 2013. It was the

case of the landlord that an open piece of land was given on

rent to the tenant and that the tenant had initially put up a

temporary structure to run a restaurant and thereafter, the

tenant had illegally converted it into a permanent structure,

running a bar and restaurant therein. Although written

statement was filed on behalf of the tenant, thereafter, there

was no further participation in the proceedings. The landlord

led evidence in support of his pleadings and the suit was

decreed on 19/12/2014.

4. The tenant filed an appeal before the District Court at

Nagpur and by judgment and order dated 04/10/2017, the

appeal was partly allowed, the judgment and decree of the

Small Causes Court was set aside and the matter was remitted

to the said Court for fresh consideration. The landlord

approached this Court by filing a Writ Petition, challenging the

remand order. By judgment and order dated 27/06/2019, this

Court allowed the Writ Petition, setting aside the remand order

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of the District Court and directed that the District Court shall

decide the appeal of the tenant considering the material and

evidence on record. While passing the aforesaid order, this

Court specifically observed that it would be a travesty of justice

if dilatory tactics adopted by parties like the tenant herein

were permitted and matters stood remitted to give

opportunities to such parties, who of their own volition opted

to remain away from the proceedings. The said order passed by

this Court was challenged before the Hon'ble Supreme Court,

but, the Special Leave Petition was dismissed on 23/08/2019,

thereby confirming the order passed by this Court.

5. Thereupon, the District Court took up the appeal for

consideration, in terms of the directions given by this Court

and the impugned order was passed dismissing the appeal of

the tenant. It is relevant that even after remand of the

proceedings before the District Court, the tenant filed an

application for permission to amend the written statement

ostensibly to bring on record subsequent events. The said

application was rejected by the District Court and the parties

were directed to advance their final arguments. The District

Court in the impugned judgment and order formulated points

on the question of validity of the notice of termination of

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tenancy issued by the landlord, whether the findings of the

Trial Court on the question of changing nature of the

temporary structure to permanent by the tenant was correct

and whether the aspect of bona-fide and reasonable

requirement of the landlord, as also the aspect of comparative

hardship were correctly decided. The District Court in the

impugned judgment and order rendered findings on the said

points in favour of the landlord and dismissed the appeal.

6. In support of the present Writ Petition, Mr. S.V.

Bhutada, learned counsel appearing for the petitioner - tenant

submitted that when the structure on the plot rented out to the

tenant was constructed with full consent of the landlord and

when there was already a temporary structure existing,

whether it could be said that the plot given to the tenant was

covered under the expression "premises" under Section 7(9) of

the Maharashtra Rent Control Act, 1999. It was further argued

that in any case, when the litigation was instituted by the

landlord for the first time in the year 2004, the structure was

already existing on the plot and, therefore, the tenant was

entitled for protection under the provisions of the aforesaid

Rent Act. It was emphasized that the relevant date was not

when the possession of the plot was handed over to the tenant,

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but, the relevant date in the facts and circumstances of the

present case in the context of availability of the protection of

the aforesaid Act, was the date on which the landlord initiated

the proceedings to seek possession of the premises. According

to the learned counsel for the tenant, the Courts below failed

to appreciate this aspect of the matter while holding against

the tenant. The learned counsel for the tenant relied upon

judgments of the Hon'ble Supreme Court in the cases of Mrs.

Dossibai N.B. Jeejeebhoy Vs. Khemchand Gourmal AIR 1966

SC 1939 and Puwada Venkateswara Rao Vs. Chidamana

Venkata Ramana AIR 1976 SC 869 and judgment of this Court

in the case of Meghji Kanji Patel Vs. Kundanmal Chamanlal

Mehtani AIR 1968, BOMBAY 387. It was further claimed that

the correct position of law was stated in the judgment of this

Court in the case of Govindram bros. Pvt. Ltd. and others Vs.

Alexander Benedict Joseph Pereira 1995 (1) Mh.L.J. 115 and

that perhaps the said position was erroneously applied in a

recent judgment in the case of Narendra Harilal Jethwa Vs.

Shri Bholadasji Mandir, Nashik and others 2019 (6) Mh.L.J.

885. On this basis, it was submitted that the Writ Petition of

the petitioner - tenant deserved to be allowed by following the

dictum laid down in the case of Govindram bros. Pvt. Ltd. and

others Vs. Alexander Benedict Joseph Pereira (supra).

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7. On the other hand, Mr. P. N. Kothari, learned counsel

appearing for the respondent - landlord, submitted that in the

first place, the arguments sought to be raised before this Court

were never raised before the courts below. It was submitted

that in any case, there were concurrent orders against the

petitioner - tenant and that there was very limited scope to

interfere with the findings rendered by the two Courts below

under Article 227 of the Constitution of India. It was

submitted that the evidence led by the respondent - landlord

had remained uncontroverted and that, therefore, there was no

substance in the contentions sought to be raised on behalf of

the petitioner - tenant. It was further submitted that the

position of law laid down in the aforesaid judgment of this

Court in the case of Narendra Harilal Jethwa Vs. Shri Bholadasji

Mandir, Nashik and others (supra), was correct and the judgment

of this Court in the case of Govindram bros. Pvt. Ltd. and others

Vs. Alexander Benedict Joseph Pereira (supra), was considered

when the said subsequent judgment was rendered. It was

submitted that the position of law clearly applied in favour of

the respondent - landlord, in the facts and circumstances of

the present case. It was submitted that the petitioner - tenant

was not entitled to claim protection of the said Rent Control

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Act and that the decree passed in favour of the respondent -

landlord deserved to be confirmed.

8. The learned counsel for the respondent - landlord

relied upon judgments of this Court in the cases of Shantabai

Tukaram Choudhary Vs. A.K. Builders 2019 (5) Mh.L.J. 297

and Orbit Super Market Pvt. Ltd., Nagpur Vs. Mukta Arvind

Bobde and others 2019 (6) Mh.L.J. 614.

9. Before considering the rival contentions raised on

behalf of the parties, it is necessary to emphasize that this

Court in the present proceedings is considering the correctness

or otherwise of the conclusions rendered by the two Courts

below concurrently, while exercising jurisdiction under Article

227 of the Constitution of India. In the aforesaid judgments,

on which reliance is placed on behalf of the respondent -

landlord i.e. Shantabai Tukaram Choudhary VS. A.K. Builders

(supra) and Orbit Super Market Pvt. Ltd., Nagpur Vs. Mukta

Arvind Bobde and others (supra), this Court has specifically

held that interference in orders passed by the Courts below can

be made under Article 227 of the Constitution of India only in

exceptional cases where patent perversity is found in such

findings rendered by the Courts below. The said findings can

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be interfered with only if this Court concludes that they are

rendered upon manifest misreading of the evidence, thereby

rendering them perverse and unsustainable. Thus, it is evident

that the petitioner - tenant has to satisfy a tough test to

succeed in the present Writ Petition to overturn the concurrent

findings rendered against the petitioner - tenant.

10. Applying the said test to the material available on

record, it is found that in the present case evidence of the

landlord is available on record to the effect that when the

petitioner - tenant was inducted in the premises in question it

was an open piece of land. The pleadings as well as evidence

of the respondent - landlord on this point has remained

uncontroverted and unchallenged throughout. Therefore, the

findings of the two Courts below are on the said factual basis

and the other finding is concerned with the validity of the

notice issued by the respondent - landlord to evict the

petitioner - tenant. On facts, the two Courts below have

concurrently found in favour of the respondent - landlord. In

fact, a feeble attempt was made on behalf of the petitioner -

tenant to claim that in the present case, there was lack of

evidence to prove service of notice on the petitioner - tenant in

accordance with law and that, therefore, the decree deserved

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to be set aside. But, this Court has perused the evidence on

record as also the analysis of the same by the two Courts below

and it is found that there is absolutely no substance in the said

contention sought to be raised on behalf of the petitioner -

tenant. Therefore, on facts, there is no scope to come to any

conclusion that the findings rendered by the two Courts below

concurrently are based on any misreading of the evidence and

material on record or that they are perverse in any manner.

11. It is perhaps for this reason that the learned counsel

appearing for the petitioner - tenant sought to principally

argue the aforesaid question of law as to the availability of the

protection of the said Rent Control Act, to contend that the

decree passed against the petitioner - tenant deserved to be set

aside. Much emphasis was placed on the judgment of this

Court in the case of Govindram bros. Pvt. Ltd. and others Vs.

Alexander Benedict Joseph Pereira (supra), to contend that the

Courts below ought to have thrown out the suit filed by the

respondent - landlord on the ground that the protection of the

said Rent Control Act was available to the petitioner - tenant.

It is for this reason that the learned counsel appearing for the

petitioner - tenant has sought to indicate that the recent

subsequent judgment in the case of Narendra Harilal Jethwa Vs.

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Shri Bholadasji Mandir, Nashik and others (supra), lays down a

very wide proposition and that it may need reconsideration.

The learned counsel for the petitioner - tenant has referred to

other judgments also, only to further support the aforesaid

contention regarding alleged availability of protection of the

Rent Control Act.

12. This Court has considered the contentions raised by

the learned counsel for the rival parties on the aforesaid

specific question. A perusal of the recent judgment in the case

of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir, Nashik and

others (supra), would show that the earlier judgment in the

case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict

Joseph Pereira (supra), has been referred to, taken into

consideration and then conclusions have been rendered.

13. It has been held in the said recent judgment in the

case of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir, Nashik

and others (supra) that upon determination of a lease, subject

to contract to the contrary, the lessee is under a statutory

obligation to hand over the property to the lessor in the state

in which he received it. It has been categorically held that

when the lease was of an open plot, the lessee was under an

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obligation to hand over the suit property in the state in which

he received it and that even if the lessee was permitted to raise

construction in the suit property and he did not remove it, it

cannot be held that the suit property assumes the character of

"premises" under Section 7(9) of the aforesaid Rent Control

Act. On this basis, it was held that the protection of the Rent

Control Act was not available to the petitioner - tenant.

14. In the case of Govindram bros. Pvt. Ltd. and others Vs.

Alexander Benedict Joseph Pereira (supra), this Court referred to

the object of the Rent Control Act, 1947 and, inter-alia, held

that when the petitioners before this Court therein raised

construction on the property after obtaining non-agricultural

permission, the protection under the Act of 1947, became

available. In the present case, the pleadings and evidence of

the respondent - landlord, which remained uncontroverted,

categorically proved the fact that open piece of land was given

to the petitioner - tenant. In this context, it becomes relevant

to refer to the definition of "premises" under Section 7(9) of

the said Rent Act, 1999. It defines a premises as any building

or part of a building let or given on license, including gardens,

garages, etc. appurtenant to such building and any fittings

affixed to such building. In the present case, the

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uncontroverted evidence on record shows that an open piece of

land was let out to the petitioner - tenant. Therefore, there is

no question of the petitioner - tenant claiming advantage of

the definition of "premises" in the aforesaid Rent Control Act to

claim that when the proceedings were initiated in the year

2004, he became eligible for protection under the said Rent

Act. The evidence on record shows that after the open piece of

land was let out to the petitioner - tenant, initially he

constructed a temporary tin structure to run a Restaurant and

then constructed permanent structure to run a bar and

restaurant. This was in defiance of the applicable laws and

now the petitioner - tenant cannot be permitted to turn

around and claim that he was entitled to protection under the

aforesaid Rent Act.

15. Viewed from that angle, there is substance in the

contention raised on behalf of the respondent - landlord that

the ratio of the judgment of this Court in the case of Govindram bros. Pvt. Ltd. and others Vs. Alexander Benedict Joseph Pereira

(supra), does not apply and that the petitioner - tenant cannot

take any advantage of the same. It was correctly submitted

that the law laid down in the recent judgment of this Court in

the case of Narendra Harilal Jethwa Vs. Shri Bholadasji Mandir,

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Nashik and others (supra), after taking into consideration the

judgment in the case of Govindram bros. Pvt. Ltd. and others Vs.

Alexander Benedict Joseph Pereira (supra), was correct in law

and there was no question of reconsideration of the same.

16. As noted above, the pleadings and evidence on record

clearly show that the respondent - landlord successfully made

out a case for eviction of the petitioner - tenant. On facts, the

findings rendered by the two Courts below concurrently cannot

be said to be erroneous at all. The concurrent findings of the

two Courts below do not deserve interference from this Court

under Article 227 of the Constitution of India. The question of

law sought to be raised on behalf of the petitioner - tenant was

one more desperate attempt to somehow cling on to the

property, but, there is no substance in the said contention.

17. Therefore, this Court finds that there is no merit in

the present Writ Petition. Accordingly, it is dismissed. There

shall be no order as to costs. Rule is discharged.

JUDGE MP Deshpande