1999(2) ALL MR 2
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
T.K. CHANDRASHEKHARA DAS, J.
Yeshwant Subrao Bidkar Vs. Shikandar Allabaksha Nagaraji
Writ Petition No. 1811 of 1993
4th February, 1999
Petitioner Counsel: Shri. R. D. SAWANT for Shri DILIP B. BHOSALE
(A) Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.12 - Arrears of rent - Application for fixation of standard rent pending in revisional court - Tenant cannot be said to be in arrears though it would have been proper for the tenant to have expressed before revisional court his readiness and willingness to pay arrears as soon as revision was over - But that will not justify interference by High Court in writ jurisdiction.
Constitution of India, Art. 226. (Para 2)
(B) Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.13 (1)(h) - Finding about necessity to reconstruct house - Trial court elaborately discussing the aspect and also citing report of commissioner who opined that house needed reconstruction - Lower appellate court erroneously observing that petitioner's case was restricted to ground of bona fide requirements - Matter remanded to Lower appellate Court for reconsidering ground of reconstruction. (Paras 3, 5)
JUDGMENT
JUDGMENT :- Mr. R. D. Sawant, Advocate, holding for Dilip Bhosale, appeared for the petitioner. None has appeared for the respondent.
2. This petition arises out of an application filed by the petitioner landlord for eviction of the respondent tenant on the grounds of arrears of rent, bonafide requirement for own occupation of the landlord and also for the reconstruction, as the building is in very dilapidated condition. All these grounds have been accepted by the trial court and an eviction was ordered. On Appeal, the order of the trial court was reversed. As regards the arrears of rent, during the period of revision against the order, fixing the standard rent was pending, the lower appellate court observed that when the revision is pending against the order of fixation of standard rent, one cannot hold technically that the tenant is in arrears. The learned counsel for the petitioner, however, contended that the proper course for the tenant would have been to express his willingness before revisional court that he is ready and willing to pay the arrears of rent as soon as the revision is over. I do not think that the appellate court's reasoning is completely faulty. Of course the ideal thing would have been for the tenant to express his willingness and readiness to pay the arrears of rent as soon as the revision is over. But that alone will not be sufficient for me to interfere with the findings of the Appellate Court under article 226 of the Constitution of India. That conclusion will not justify the interference by this court in exercise of its power under Article 226 of the Constitution unless it is shown that there is patent illegality in the order. Therefore, so far as finding of the lower appellate court that there is no default on the part of the tenant is concerned, it is confirmed.
3. Another contention raised by the counsel for the petitioner is that the lower appellate court has restricted its consideration only on the ground of bonafide requirement and it has expressly brushed aside the ground of reconstruction of the dilapidated building. In paragraph 5 of the judgement of the lower appellate court what is stated that the petitioner's case is restricted only under section 13(1)(g) and he is not praying for a decree under section 13(1)(h) of the Bombay Rent Act, was factually incorrect in the light of the averments contained in para 4 of the plaint. More over the trial court in extenso discussed this aspect of the matter. In that circumstances, the observation of the appellate court was erroneous. It may be noted here that a commission was taken out in this case and a report was submitted and the report specifically contains that it is a very old building, age of 70 years, constructed in mud and cracks are appeared on the wall and requires reconstruction. Ignoring this report, the lower appellate court has made above observations. Therefore, it requires reconsideration by the lower appellate court.
4. So far as bonafide requirement is concerned, I find no fault with the finding of the appellate court and in regard to the decree under section 13(1)(g), I confirm the finding of the lower appellate Court.
5. Therefore, the lower appellate court is directed to focus its attention only to the ground of reconstruction as contemplated under section 13(1)(h) of the Bombay Rent Act. For that purpose only the matter is remanded back. The lower appellate court's order is set aside to that extent.
6. The writ petition is accordingly allowed. Rule is made absolute in the above terms.