Ramchandra S. Mahajan (Since ... vs Hafeez S/O Rahim Beg (Since ...
2023 Latest Caselaw 148 Bom

                                                          1                           220.WP.1104-2011.odt




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

                            WRIT PETITION NO. 1104 OF 2011
           ( Shri Ramchandra s/o Sakaram Mahajan (Dead), Thr. LR
                                     Vs.
                    Hafeez s/o Rahim Beg (Dead) Thr. LRs. )
Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. R.M. Sharma, Advocate for the Petitioner/s.

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 05th JANUARY, 2023

In a suit by the landlord for eviction on the ground of the arrears of rent having been demanded and not paid and thereafter not paid regularly within the meaning of Section 15 (3) of the Maharashtra Rent Control Act (for short "MRC Act"), the learned Trial Court by the judgment dated 27.04.2009 (page 55) directed eviction of the respondent/tenant from the suit premises and also an enquiry into future mesne profit.

2. In appeal, the Appellate Court by the judgment dated 30.11.2010 (page 82), has quashed and set aside the judgment to the extent of ejectment of the respondent/tenant from the suit premises.

3. The relationship of the landlord and tenant is an admitted position so also in view of the judgment in Letters Patent Appeal No. 108/2012 decided on 28.06.2012 the finding rendered therein, that the tenancy from month to month cannot now be gone into. The only question is whether eviction ought to be 2 220.WP.1104-2011.odt

ordered on account of the rent not been paid regularly within the meaning of Section 15(3) of the MRC Act.

4. Mr. Sharma, learned counsel for the petitioner/landlord submits, that the obligation of the respondent/tenant to pay the rent in a tenancy which is month to month is monthly and each and every occasion when the rent is not paid for the particular month the same would result in a default thereby attracting the provisions of Section 15(3) of the MRC Act mandating eviction. He further submits, that even if during the pendency of the suit, the payment is not paid from month to month or deposited in the Court, that would also buttress the plea regarding Section 15(3) of the MRC Act. It is also contended, that even if certain amounts are paid during the pendency of the suit, that by itself, would not whittle the rigor of Section 15(3) of the MRC Act. He further submits, that inspite of the tenant being aware of this position and his obligation to pay rent monthly, he has not paid the rent from January 2016 till March 2017 on account of which Civil Application (CAW) No. 689/2018 was filed before this Court which has been disposed of on account of deposit of payment of rent subsequently. He therefore submits, that the entire conduct of the respondent/tenant, would indicate that he has been regularly irregular in payment of rent, and therefore, the mandate of Section 15(3) of the MRC Act, would require direction of eviction. It is contended, that the learned Appellate Court clearly erred in law, in overturning the decree passed by the learned 3 220.WP.1104-2011.odt

Trial Court merely on the ground that the payment was being made on year to year basis (para 20 page 80), and therefore, there were no arrears. He further contends, that the reliance by the learned Appellate Court on provisions of Section 55 of the MRC Act, to hold that since there was no written agreement, the version of the respondent/tenant would prevail, is clearly misconceived as admittedly since the tenancy was oral, the provisions of Section 55 of the MRC Act, would not be attracted for which reliance is placed on Mangesh Dnyaneshwar Fulzele Vs. Mohan Purushottam Agrawal (HUF), Thr. Its Karta Mohan Purushottam Agrawal, Writ Petition No. 4293/2018 decided on 12.02.2019 para 7. He therefore submits, that since the default in payment for rent every month, is writ large on the face of record the decree of eviction as passed by the learned Small Causes Court, ought not to have been upset by the learned Appellate Court, for which reliance is placed upon Suman Shankar Unde since deceased through her LRs. Shankar Martand Unde Vs. Shamsunder Lekhraj Khatri, 2005 (4) Mh.L.J. 462 para 7.

5. Mr. Bastian learned counsel for the respondent/tenant, is absent.

6. In order to afford an opportunity, list the matter on 11.01.2023.

Signed By:SHRIKANT DAMODHAR BHIMTE JUDGE SD. Bhimte Signing Date:06.01.2023 18:22