2011(5) ALL MR 721
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
S.S. SHINDE, J.
Smt. Gumfabai Dattalal Jaiswal & Anr.Vs.Suresh Laxminarayan Jaiswal & Anr.
Civil Revision Application No.195 of 2009
9th August, 2011
Petitioner Counsel: Mr. P.V. MANDLIK,Mr.AMOL GANDHI
Respondent Counsel: Mr. M.M. PATIL-BEEDKAR
(A) Hyderabad Houses (Rent, Eviction and Lease) Control Act (1954) S.15 - Eviction - Wilful default in payment of rent by tenant - No evidence placed on record that tenants have made efforts to make payment of rent - Findings recorded are in consonance with evidence brought on record - Order of eviction by Appellate Court is not without jurisdiction - Revision application liable to be dismissed. 1992 Mh. L.J. 804, 1990 Mh.L.J. 957, 2006 AIR SCW 45, 1999(4) ALL MR 415 : 2000(1) Mh. L.J. 315 Referred. (Para 19)
(B) Hyderabad Houses (Rent, Eviction and Lease) Control Act (1954) S.15 - Eviction - Revision against order of eviction for default in payment of rent - Maintainability of Cross objection is not traceable in Act. 2005(2) ALL MR 320 Referred. (Para 20)
(C) Hyderabad Houses (Rent, Eviction and Lease) Control Act (1954) S.15 - Eviction - Wilful default in payment of rent by tenant - Findings as to default recorded by Appellate Court are confirmed - Issue of bonafide requirement of landlord needs no adjudication - Revision application by tenants liable to be dismissed. (Para 20)
Himayat Ali Ashraf Ali Jaidi Vs. Murari Purushottam Tapaswi, 1992 Mh.L.J. 804 [Para 7]
Marotirao s/o Bhaurao Vs. Kashinath Singh s/o Gangusingh Raut, 1990 Mh.L.J. 957 [Para 7]
Sait Nagjee Purushotham Vs. Vimlabai Prabhulal and Ors., 2006 AIR SCW 45 [Para 11]
M/s Moosaji Mohammad Ali Master Vs. M/s Gulam Ali Dadabhai Amreliwala, 2005(2) ALL MR 320 [Para 12,20]
Nanded Wine Mart Vs. Suresh Shankarlal Dhoot, 1999(4) ALL MR 415=2000 (1) Mh.L.J. 315 [Para 14]
2. This Civil Revision Application is filed challenging the judgment and order dated 1st October, 2009, passed by the learned Principal District Judge, Nanded in HRCA No.1/2007, arising out of the judgment and order dated 16th May, 2007 in Case No.RCA(15)18/1994 passed by the learned SDO/Rent Controller, Nanded.
3. It is the case of the petitioners/tenants that the respondents/landlords filed an Eviction Petition under Section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (hereinafter to be referred to as the Rent Control Act), against the original defendants/tenants, before the SDO/Rent Controller, Nanded, on the ground of bonafide requirement of the landlord and willful default on the part of the tenants.
The Rent Controller rejected the said petition vide judgment and order dated 16th May, 2007. Feeling aggrieved thereby, the presnet respondents Nos.1 and 2 filed H.R.C.A.No.1/2007 in the Court of District Judge, Nanded. The learned Principal District Judge, Nanded, allowed the appeal and set aside the judgment and order dated 16th May, 2007 passed by the Rent Controller, by judgment and order dated 1st October, 2009 on the ground of willful default and passed the decree of eviction against the defendants. Being aggrieved by the said decision, this Civil Revision Application is filed by the petitioners/tenants.
4. The learned Sr. Counsel, appearing for the petitioners/tenant, submits that the Appellate Court erred in holding that the petitioners/tenants have committed wilful default. Further, the Appellate court erred in holding that the suit is not bad for nonjoinder of all the necessary parties. It is further argued that the issue regarding comparative hardship should have been adjudicated by the lower Appellate Court, however, the appellate court concluded that the issue of comparative hardship would not survive. The findings recorded by the Appellate court are perverse and contrary to the evidence on record and contrary to the provisions of the Rent Control Act.
It is the case of the petitioners/tenants that initially, rent of the premises in question was @ Rs.750/- and in view of the provisions of Section 12 of the Rent Control Act, increase in agreed rent is not permissible and there was no any proceeding filed by the landlord before the Court for increase of the rent or for determination of fair rent. Under such circumstances, the finding of the court that the rent was at Rs.2,000/- per month and the defendants have committed willful default in payment of rent, is contrary to the evidence on record and contrary to the provisions of law.
5. The Appellate court, relying upon the outcome of the civil suit, has concluded that the petitioners have committed willful default. In fact, the period, which has been considered in the civil suit, is for the subsequent period and, therefore, the Appellate Court committed an error in relying on the outcome of the said civil suit. It is further argued that the suit premises, i.e. Shop, was given on rent of Rs.750/- per month in April 1992 and this was the agreed rent between the parties.
6. Section 12(2) of the Rent Control Act provides that, " Where the fair rent of a house has not been so determined, the landlord is not entitled to receive any sum/any amount in addition to the agreed rent." Therefore, according to learned Sr. Counsel for the petitioners/tenants, from the evidence on record it cannot be said that the respondents/landlord were justified in increasing the rent than agreed. It is further submitted that the tenants has deposited the agreed rent before the court below and have also deposited the rent, therefore, according to the learned Sr. Counsel, the finding recorded by the Appellate court relating to the willful default, is perverse and contrary to the provisions of the Rent Control Act.
7. Learned Sr. Counsel, relying upon the reported judgment in the case of Himayat Ali Ashraf Ali Jaidi Vs. Murari Purushottam Tapaswi - 1992 Mh.L.J. 804, would contend that, the landlord is not supposed to receive any sum in addition to "agreed rent"; and "agreed rent" is the rent first agreed; and the agreed increase as permitted by the Act.
The learned Sr. Counsel further placed reliance upon the reported judgment in the case of Marotirao s/o Bhaurao Vs. Kashinath Singh s/o Gangusingh Raut - 1990 Mh.L.J. 957 and submitted that the provision of Section 15(2) of the Rent Control Act, provides that the Court must give reasonable time to tenant for payment of rent. In the instant case, both the courts have given findings on the point of bonafide requirement, comparative hardship and causing nuisance of damages against the landlord and in favour of the tenant. The trial Court has given finding on the point of willful default against the landlord, but the Appellate court reversed that finding. In view of the above said finding and the provision contained in Sections 12 and 15 of the Rent Control Act, the finding assigned by the lower Appellate court, is not sustainable, therefore, the same may be set aside.
8. The learned Sr. Counsel further invited my attention to the Notes of written arguments, which are placed on record and the grounds set out in the CRA and submitted that the Civil Revision Application may be allowed.
10. On the other hand, learned Counsel appearing for the respondents/landlord submitted his response. The amendment was carried out in the eviction petition by landlord, whereby it was submitted that, the appellant - Dinesh in appeal, is educated unemployed and he wants to commence his business, for which, the said shop is required. The petitioners herein, who are the tenants, did not file any reply to the amendment and the additional grounds raised by the landlord, by way of amendment to the petition and, therefore, it needs to be presumed that the tenants have admitted the said grounds, including the ground of bonafide requirement, for the reason that the admitted facts need not be proved. According to the counsel for the respondents, the aforesaid material fact was totally ignored by the learned District Judge and the learned District Judge has drawn a perverse finding as regards bonafide requirement by holding that the landlords have house property in Anna Bhau Sathe Nagar, Kinwat and a site in Shivajingar locality, Kinwat. However, the learned District Judge addressed on the point that the said house properties are in the residential locality and those are not suitable and feasible for hotel business. Similarly, the landlord is the best judge of the suitable accommodation for his business. Hence, the finding on the point of bonafide requirement is absolutely perverse.
It is further submitted that the Appellate court should have held that since the tenants did not file their response/answer to the amended petition, the decree cannot be passed by holding that the defendants have accepted the contentions in the amended petition.
11. The learned Counsel invited my attention to the reported judgment of the Hon'ble Supreme Court in the case of Sait Nagjee Purushotham Vs. Vimlabai Prabhulal and Ors - 2006 AIR SCW 45, in which it is held, " It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always privilege of landlord to choose the nature of business and the place of business.". Therefore, the Counsel for the respondent would submit that the District Judge has recorded incorrect finding that since the landlord has house in other locality and, therefore, he is not in bonafide requirement of the suit property. It is further submitted that the suit premises are situated in the business locality and, therefore, the other premises, of which note is taken by the learned District Judge, are residential premises. Therefore, the learned District Judge was not correct in recording the finding that the respondents are not in bonafide need of the suit premises.
12. It is further submitted that the crossobjections filed in this CRA are maintainable. Similar view is taken by this court in the reported judgment in the case of M/s Moosaji Mohammad Ali Master Vs. M/s Gulam Ali Dadabhai Amreliwala 2005(2) ALL MR 320. According to the learned Counsel for the respondents, crossobjections can be filed or even it is permisible for the parties to challenge the adverse findings without filing the crossobjections. Therefore, the crossobjections filed in the CRA are maintainable and even otherwise also, the adverse findings can be challenged without filing the crossobjections in view of the reported judgment in the case of M/s Moosaji (cited supra).
13. It is further submitted that the District Judge has correctly appreciated that the judgment and decree in Special Civil Suit No. 62/1994, is on record and it is found that the defendants/tenants committed default in payment of rent for the period 1st March, 1992 to end of February 1994. It is further submitted that since the default is proved, the burden was on the tenants to show as to why the default was not willful. The explanation offered by the tenant for the alleged default is that, effort were made to pay the rent to the landlord, but it was not accepted. This explanation is bald for the reason that, if the tenant was willing to pay the rent, he could have paid by sending moneyorder, draft etc. But nothing to that effect is placed on record, hence the findings of the learned District Judge on the point of default in arrears of rent and willful default on the part of the tenants are absolutely just and proper.
14. It is further submitted that the view taken by this Court in the reported judgment in the case of Nanded Wine Mart Vs. Suresh Shankarlal Dhoot, reported in 2000 (1) Mh.L.J. 315 : [1999(4) ALL MR 415], fortifies the contention of the landlord on the point of default in rent and the said default was willful. It is further submitted that the practice of payent of accumulated rent can not be accepted by way of explanation or defense to infer that the default was not willful. The plea of practice of payment of accumulated rent shows basically that tenant fails to discharge his statutory duty as provided under clause (i) of Section 15(2) of the Rent Control Act. Therefore, the learned Counsel, appearing for the respondents, submits that the landlord has proved the claim for eviction of tenant on the ground of bonafide requirement of landlord as well as on the ground of willful default of tenant in payment of arrears of rent. Therefore, the eviction decree passed by the District Judge may be confirmed by rejecting the Civil Revision Application.
15. I have given due consideration to the submissions advanced by the learned Counsel for the parties; perused the relevant record; contents of CRA and annexures thereto; documents made available by the parties; written notes of arguments submitted and judgments of this Court as also the Hon'ble Apex court.
" Whether the respondents on the date of petition to the Rent Controller have fallen in arrears of rent having committed default ? If Yes ?
17. In paragraph 20 of the impugned judgment, the District court has made reference to Special Civil Suit No.62/1994, which was filed by the landlord for recovery of arrears of rent amounting to Rs.45,000/-. The said suit was decided and the issues involved in the said suit were, what was the rent of the suit premises and whether the respondents/tenants were the defaulters, etc. In the said suit, the Court held that the rate of rent was Rs.1,000/- per month from November 1992 and before that it was Rs.750/- per month. The Civil Court in the said proceedings held that the rent outstanding against the defendants/tenants was to the tune of Rs.22,000/- for the period from 1st march 1992 to 28th February, 1994. A copy of the judgment in Special Civil Suit No.62/1994 was placed on record of the trial Court.
18. The defendants in the suit have stated that settlement was arrived at between the parties, and according to the settlement, rent was tried to be paid to the appellants, but the same was refused. It was further contended by the respondents in the appeal (petitioners herein)that the rent of Rs.9,250/- has been paid through one Dinkar for the period November and December 1992 and from January 1993 to May 1993. The District Court, after appreciating the contentions of the landlord and tenant in respect of Special Civil Suit No.62/1994, found that the plea of the defendants that they have paid rent through one Dinkar has been negatived by the civil court in Special Civil Suit No.62/1994. Therefore, the Appellate Court came to the conclusion that the tenants have committed default in payment of rent. The Appellate court referred to the findings recorded by the civil court that the rent outstanding against the defendants/tenants was to the tune of Rs.22,000/- for the period 1st March, 1992 to 28th February, In paragraph 23 of the impugned judgment, the Appellate court has discussed whether the default in payment of rent committed by the tenant was willful or otherwise and recorded the finding that the landlord has proved that on the date on which the petition for eviction was made, the tenant had committed default in payment of rent. The explanation given by the defendants/tenants, that efforts were made to pay the rent to the landlord, but it was not accepted, is without any basis and obviously bald. It is further observed that, if the respondents/tenants were really interested and willing to pay rent to the landlord, they could have chosen various ways and means of payment; or at least endeavoured to pay rent by cash or by sending money orders, cheque, drafts etc. It is further observed that, no doubt an amount of Rs. 3,000/- was paid by the respondents/tenant by a cheque, as is a fact not in dispute, but the said amount was not in full satisfaction of the dues then outstanding.
19. It is well settled by this time that once the landlord establishes that the tenant has committed default in payment of rent, the burden is shouldered on the defendant/tenant to prove that the said default is not willful. The District Court, i.e. The Appellate Court, being the last court on facts, has recorded the finding, relying upon the judgment of the Civil Court in Special Civil Suit No.62/1994, that the rent outstanding against the tenants was to the tune of Rs.22,000/- for the period 1st march, 1992 to 28th February, 1994, and has concluded that the tenants are defaulters. It was argued by the tenants before the District Court that though they tried to pay the said amount through one Dinkar, this very fact was not proved by the tenants. There is no evidence placed on record to show that the tenants have made endeavour or efforts to make payment of rent by sending money order, draft etc, except one cheque of Rs. 3,000/-, which was not in full satisfaction of the dues then outstanding. Therefore, the findings recorded by the Appellate Court, on the point of willful default, are on the basis of evidence placed on record by the landlord and tenants. The said findings are in consonance with the evidence, which was placed on record. Thus, the findings are not perverse. The respondents failed to prove satisfactorily that the arrears of rent were actually paid and further to prove that the tenants are not willful defaulters.
At the cost of repetitions, it has to be observed that the Appellate court, i.e. The District Court, in this case is the last court on facts and in the revisional jurisdiction of this Court, it is not possible for this court to hold that the findings recorded by the District Court are perverse since those findings are in consonance with the evidence brought on record by the parties. The learned Principal District Judge, who has passed the impugned order, has jurisdiction to pass such order. The Appellate Court has exercised its jurisdiction vested in it by law and it has not exceeded the jurisdiction while passing the impugned judgment and order. There is no any illegality or irregularity committed by the District Court. The findings recorded by the District Court are in consonance with the evidence brought on record by the parties, and in particular, the judgment and order passed by the Civil Court in Special Civil Suit No.62/1994, where the civil court held that the rent outstanding against the defendants/tenants/ (present petitioners) was to the tune of Rs.22,000/- for the period from 1st March, 1992 to 28th February, 1994. Therefore, viewed from any angle, no case is made out by the petitioners herein to interfere in the impugned judgment and order passed by the Appellate Court.
20. The contentions of the learned Counsel for the respondents in this CRA that their crossobjection is maintainable in this CRA is not traceable in the Rent Control Act. However, the learned Counsel for the respondents is justified in contending that oral arguments of the respondents that even the landlord requires the suit premises for their bonafide need and requirement, is necessary to be appreciated in the light of judgment of this Court in the case of M/s Moosaji (cited supra). However, in the light of what has been observed in this judgment, the contention of the respondents about bonafide requirement of the suit premises, needs no further adjudication since the findings recorded by the Appellate Court in respect of the issue of willful default by the tenants, is confirmed.
At this stage, the learned Counsel appearing for the petitioners submits that eight months time may be granted to vacate the suit premises. It is not possible to grant the prayer of the petitioners. However, execution, operation and implementation of the impugned judgment and order is stayed for 12 weeks from today.