Bombay High Court
Ashok Rajmal Mehta vs M/S. Tirthankar Co on 1 August, 2022
Bench: Nitin W. Sambre
29 CRA-68-22.doc
BDP-SPS-TAC
BHARAT
DASHARATH
PANDIT IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by BHARAT
DASHARATH
CIVIL APPELLATE JURISDICTION
PANDIT
Date: 2022.08.03
18:48:22 +0530
CIVIL REVISION APPLICATION NO. 68 OF 2022
Dr. Ashok Rajmal Mehta ..... Applicant.
V/s
M/s Shree Tirthankar Co. ..... Respondent.
Ms. Shweta Sharma for the Applicant.
Mr. Sameer R. Bhalekar for the Respondent.
CORAM: NITIN W. SAMBRE, J.
DATE: AUGUST 01, 2022
P.C.:-
1] This Revision is by the Defendant to T.E. Suit No.105 of 2007.
2] Respondent/Plaintiff initiated aforesaid suit for recovery of
possession of the suit property. The said suit came to be decreed on
4/1/2016. Present Applicant feeling aggrieved preferred an appeal
being Appeal No.154 of 2017 which was also dismissed on
29/11/2021. As such, this Revision.
3] Facts necessary for deciding this Revision are as under:-
4] Plaintiff, a registered Firm claims to be landlord of the suit
property. It is claimed that same was let out to Tarabai, a deceased
mother of the present Applicant. Tenancy was terminated on
29 CRA-68-22.doc
13/12/1975. Defendant since failed to pay monthly rent for the
period from 1/4/1998 to 31/3/2002 at the rate of Rs 42.50 per month
so also neglected to pay municipal taxes and other incidental dues for
a period from 1/4/1998 to 31/3/2002, N.A. taxes etc has resulted into
initiation of the suit.
5] Present Applicant resisted the said claim by filing Written
Statement at Exhibit-11 and denied the claim. It was the contention
of the present Applicant/Defendant that suit being R.A.E. Suit
No.3483 of 1976 against Tarabai was dismissed and therefore present
suit was not maintainable. Further contentions are, lease deed was
suppressed and as such it is claimed that it was the duty of the
Plaintiff to pay taxes and other outgoings in respect of the suit
property.
6] Having regard to rival submissions, issues were framed at
Exhibit-18 as to whether plaintiff has validly terminated the tenancy
of the defendant and whether plaintiff is entitled to vacant possession
of the suit premises. Both the issues were answered against the
present Applicant.
7] While questioning both these judgments, Counsel for the
Applicant/tenant would urge that there was failure on the part of the
Respondent/Plaintiff to establish that Plaintiff has title to the property
and there exists landlord-tenant relationship. Additional contentions
are, attempt on the part of the Applicant to amend the Written
29 CRA-68-22.doc
Statement was rejected by the revisional court which has led to
Applicant losing an opportunity of leading evidence in the matter.
Counsel would urge that even from the appreciation of evidence of
Plaintiff, it can be inferred that Respondent/Plaintiff has failed to
establish their title over the suit property and that being so,
concurrent findings recorded by the courts below warrant interference
by remanding the matter with direction to the Trial Court to give an
opportunity to the Applicant to lead evidence thereby permitting
amendment to the Written Statement.
8] Aforesaid contentions are resisted by the Counsel for
Respondent/Plaintiff. He would urge that execution proceedings are
pending and some of the part of the encroachments/small structures is
subject matter of said execution proceedings. His contentions are,
sufficient opportunity was offered to the Applicant at the time of
conducting suit which the Applicant has failed to avail and that being
so, claim that Applicant was denied the opportunity to amend the suit,
particularly to lead evidence is without any basis. It is further claimed
by the Counsel for the non-applicant that issue as regards denial of
landlord-tenant relationship was never raised before the courts below.
9] I have appreciated the said submissions.
10] Perusal of the findings recorded by the Trial Court in categorical
terms reflect that non-applicant has examined P.W.1-Harshavardhan
and also placed on record documents in support of the claim put-
29 CRA-68-22.doc
forth, such as notice dated 30/6/2007, reply to the same, copy of
partnership deed, certified copy of registration of the Firm, Rent
Receipts for 1976 and 1978, Property Card of CTS No.187 alongwith
City Survey Plan and Tax Receipts.
11] Through oral evidence of non-applicant, aforesaid documents
were duly exhibited. Rent Receipts which are at Exhibit-29
collectively, prima facie demonstrate that mother of the Applicant was
tenant in the suit premises and has paid rent to the
Respondent/Plaintiff. Property Card and the City Survey Plan at
Exhibits-33 and 34 prima facie identify the suit property. Property
Card is sufficient to infer lawful title of the non-applicant to the suit
property. As against above, though it is claimed by the Counsel for the
Applicant that oral evidence does not reflect that property was duly
owned by the non-applicant, however once the aforesaid burden was
discharged by the non-applicant/Plaintiff, it was for the
Applicant/Defendant to discharge his burden and prove the aforesaid
fact. Applicant/Defendant has failed to adduce any evidence in the
matter. Though it is claimed that no opportunity was given to lead
evidence, however fact remains that after recording of evidence in the
matter has commenced, 'No evidence order' against the Applicant
came to be passed on 12/11/2014. However, his prayer for
permission to file on record evidence came to be allowed on
11/02/2015 subject to costs. Prayer of the Applicant for amendment
of the Written Statement was rejected by order dated 21/09/2015. In
spite of above, fact remains that Applicant has failed to lead any
29 CRA-68-22.doc
evidence in the matter. As such, claim put-forth by the Applicant that
Applicant was not given an opportunity to lead evidence is contrary to
the record. Rather opportunity which was made available that too at
the behest of the Applicant by showing indulgence by the Court below
was not availed by the Applicant by his own conduct.
12] In the backdrop of the aforesaid findings, it cannot be inferred
that Applicant was not given an opportunity to lead evidence or there
was denial of opportunity of hearing in the matter.
13] The notice issued to the Applicant by the landlord viz. Exhibit-23
and its reply at Exhibit-24 sufficiently speaks of failure of the
Applicant to pay arrears and also municipal taxes and other dues.
Rather, Applicant has come out with a case that the amount was not
quantified or in the alternative it was for the non-applicant landlord to
pay the municipal taxes. So as to establish the said fact, no sufficient
evidence was brought on record. As such, concurrent findings
recorded by both the courts below appear to be in tune with the
pleadings and appreciation of documentary and oral evidence on
record.
14] In this backdrop, I hardly see any reason which warrants
interference with the orders impugned. Revision Application as such
fails and same stands dismissed.
( NITIN W. SAMBRE, J. )
