75 Yrs v. Harikisan

and Taluka – Shrirampur, Dist. : Ahmednagar. .... RESPONDENT 2 W.P. 2103.1993 - [ J ] Mr. S.S.Choudhari, Advocate for the Petitioners. Mr. A.H.Kasliwal, Advocate for the Respondent. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT: 20/03/2012. ORAL JUDGMENT :

1. The deceased Bhagirathibai W/o Gabaji Navle [ For short, ‘ deceased Bhagirathibai ’ ] had filed Petition for eviction under the provisions of the Bombay Rent Control Act, 1947 [ For short, ‘ Bombay Rent Act ’ ] against the present Respondent on the ground that the tenant has committed default in payment of rent, so also the plaintiff requires the suit premises for personal bonafide need. The trial Court dismissed the Suit filed by the Plaintiff and fixed the standard rent of the suit premises as ` 120/- per month excluding the municipal taxes. The landlord/plaintiff filed Appeal before the District Court, Ahmednagar [ For short, ‘ District Court ’ ]. The District Court dismissed the Appeal, confirmed the Judgment and decree passed by the trial Court. The landlord has assailed the said Judgment in the present Writ Petition.

2. Mr. S.S.Choudhari, learned counsel for the petitioners 3 W.P. 2103.1993 - [ J ] canvassed his oral submissions and also filed written notes of arguments. According to the learned counsel, the notice demanding the rent was issued by the landlord/plaintiff on 07/07/1980. The same was served on the tenant. The tenant did not deposit the rent within the period of one ( 1 ) month from the date of receipt of the notice, as such was liable to be evicted as contemplated U/s 12 ( 3 ) ( a ) of the Bombay Rent Act.

3. The learned counsel further contends that Balasaheb Navle had no authority to receive the rent. The receipt of the rent by Balasaheb Navle is of no consequence. The notice of attornment was given to the tenant on 16/10/1978, still the tenant avoided to pay the rent to Bhagirathibai. There was no question of payment of rent to Balasaheb Navle. Balasaheb Navle had no authority to recover the rent. The Power of Attorney with Balasaheb Navle was in respect of agricultural lands and he was not authorized to recover the rent. This aspect has not been considered by the Court.

4. The learned counsel further contends that the District Court failed to consider that the tenant has not paid the permitted increases which was over and above the standard rent fixed by the Court. The learned counsel further contends that the respondent/tenant is paying less amount of ` 586/- per year towards payment of permitted municipal 4 W.P. 2103.1993 - [ J ] taxes. According to the learned counsel, even during the pendency of the proceedings, the tenant has not deposited the rent, as such even Section 12 ( 3 ) ( b ) of the Bombay Rent Act is attracted. According to the learned counsel, the Court below has not properly appreciated the evidence on record nor have construed the provisions of Section 12 ( 3 ) ( a ) and ( b ) of the Bombay Rent Act properly.

5. Mr. A.H.Kasliwal, learned counsel for the Respondent supports the order and submits that the jurisdiction of this Court under Article 227 of the Constitution of India is very limited. It can not appreciate the whole evidence. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Shalini Shyam Shetty & Anr. V/s Rajendra Shankar Patil reported in 2010 ALL SCR – 1681 and another Judgment of the Apex Court in the case of State of Haryana & Ors. V/s Manoj Kumar reported in 2010 ALL SCR – 1362.

6. The learned counsel contends that even prior to the issuance of the notice, the tenant has filed an application for fixation of standard rent bearing Application No. 50 of 1980 on 06/01/1980 and the tenant continued to deposit the rent as directed by the Court. In view of that, as on the date of the issuance of the notice, there was no default. The provisions of Section 12 ( 3 ) ( a ) of the Bombay Rent Act are not 5 W.P. 2103.1993 - [ J ] attracted at all. The learned counsel submits that even during the pendency of the Suit and the Appeal, the amount was regularly deposited. Even the District Court has observed to that effect in para no. 13 of its Judgment. According to the learned counsel, no error has been committed by both the Courts in refusing the decree of eviction.

7. With the assistance of the learned counsel, I have gone through the Judgments.

8. This Court in its jurisdiction under Article 227 of the Constitution of India would not re-appreciate the whole evidence and would not interfere with the finding of fact unless it is shown that the said finding is perverse.

9. The trial Court as well as the District Court have concurrently concluded that the tenant was not in default of payment of rent. The notice demanding payment of rent was issued by Bhagirathibai on 07/07/1980. Earlier to the said issuance of the notice, on or about 06/01/1980, the tenant had already filed an application for fixation of standard rent. It has been observed by the Courts that the tenant had deposited the rent as per the order of the Court passed in the standard rent application regularly. 6 W.P. 2103.1993 - [ J ]

10. In view of the above, even prior to the issuance of the notice, the application for fixation of standard rent was filed and the tenant was depositing the rent as was directed by the Court. It can not be said that on the date of issuance of notice, the tenant was in arrears and as such the provisions of Section 12 ( 3 ) ( a ) of the Bombay Rent Act would not be attracted. Even otherwise both the Courts have held that the rent was being paid to Balasaheb Navle i.e. one of the sons of deceased Bhagirathibai. Even Balasaheb Navle has deposed before the Court and has accepted the factum of payment of rent by the tenant to him. Deceased Bhagirathibai had never objected to the receipt of the rent by Balasaheb Navle. The rent receipts are also produced on record. After the death of Bhagirathibai, Balasaheb Navle is also brought on record as one of her legal representatives. Even he has accepted that subsequently also the rent has been paid to him. The Courts also have observed that even after the attornment, the said arrangement was continued and Balasaheb Navle was accepting the rent.

11. In view of the above, the finding of the Court on the ground of default needs no interference.

12. The petitioners have not pressed about the ground of bonafide requirement. Even in the written notes of arguments, nothing 7 W.P. 2103.1993 - [ J ] has been submitted on the same. More over, the bonafide need was claimed of Bhagirathibai. Bhagirathibai is no more. The need also does not survive. Even one of the legal representatives of Bhagirathibai, who is brought on record, has not supported the case for bonafide requirement.

13. In view of the above conspectus of the matter, no case of interference is made out.

14. The Writ Petition as such is dismissed.

15. Rule discharged. No costs. KNP/W.P. 2103.1993 - [ J ] [ S.V. GANGAPURWALA,J. ]