Mohan Bhimrao Awatade v. Prafulla Ramrao Moharil & Ors.

Section 16(1)(g) of the Act of 1999. The trial Court held that the respondent No.1 had proved that the petitioner was in arrears of rent from 01/01/2003 to 31/07/2005 and the respondent No.1 was entitled to recover the said arrears. The trial Court found that the defendant had not paid the rent to the plaintiff after 31/01/1992. The trial Court, however, held that the petitioner had tried to pay the rent to the landlord by money order and, therefore, it was clear that the petitioner was ready and willing to pay the rent. According to the trial Court, the need of the landlord was not genuine and the respondent No.1 merely desired to occupy the suit premises. The trial Court found that six rooms were vacated by the other tenants of the respondent No.1 and the respondent No.1 could have as well used those rooms for his residence. The trial Court, therefore, dismissed the suit filed by the respondent No.

1. An appeal preferred by the respondent No.1 against the judgment of the trial Court was allowed by the impugned judgment dated 18/01/2012. The first appellate Court reversed the findings recorded by the trial Court and held that the respondent No.1 was entitled to possession under Sections 15 and 16(1)(g) of the Maharashtra Rent Control Act, 1999. The learned counsel for the petitioner submitted that the first appellate Court was not justified in reversing the findings recorded by the trial Court on the issue of bona fide need without considering the fact that the some other premises became vacant during the pendency of the proceedings and the respondent No.1 should have utilized those premises for his residence. It is submitted by taking this Court through the wp3639.12-order plaint pleadings that the landlord merely desired to occupy the premises and a decree for possession under Section 16(1)(g) of the Act of 1999 could not have been passed on the mere desire of the landlord. It is submitted that the trial Court had rightly considered this aspect of the matter while answering the issue against the respondent No.1. It is then submitted on behalf of the petitioner that the first appellate Court committed an error in granting a decree for possession in favour of the respondent No.1 under Section 15 of the Maharashtra Rent Control Act, 1999. It is submitted that the petitioner was always ready and willing to pay the rent to the respondent No.1-landlord and the trial Court has rightly answered that issue in favour of the petitioner. It is submitted that the petitioner had tried to tender the rent to the landlord by money order in June, 2005 and thereafter. Since the landlord had refused to accept the money order, it was clear that the petitioner was ready and willing to pay the rent. The learned counsel submitted that though the arrears of rent were not deposited in the trial Court within a period of three months from the receipt of the summons by the petitioner, it was deposited during the pendency of the suit. Shri Mohta, the learned counsel for the respondent No.1, supported the order passed by the first appellate Court and submitted that both the Courts have recorded a clear finding of fact that the petitioner had not paid the rent to the respondent No.1 since 1992. It is submitted that if the petitioner was ready and willing to pay the rent, the petitioner would not have failed to deposit the rent for several years. It is submitted that for the first time, the petitioner tried to tender the rent by money order in June, 2005 and considering this aspect of the matter the first appellate Court has rightly held that the respondent was entitled to possession under wp3639.12-order Section 15 of the Maharashtra Rent Control Act, 1999. It is submitted that the conduct of the petitioner in not paying the rent for a large number of years clearly shows that the petitioner was not ready and willing to pay the rent to the landlord. In any case, according to the learned counsel, the petitioner had not deposited the arrears of rent within a period of ninety days from the receipt of the suit summons and the first appellate Court had rightly reversed the findings recorded by the trial Court on this issue and granted a decree for possession in favour of the respondent No.1 under Section 15 of the Maharashtra Rent Control Act, 1999. The learned counsel for the respondent No.1 submitted that though the first appellate Court has not considered the fact about the availability of the six vacant rooms, which came in possession of the respondent No.1 during the pendency of the proceedings, the first appellate Court has considered the other evidence on record to hold that the respondent No.1 was entitled to possession under Section 16(1)(g) of the Maharashtra Rent Control Act. On hearing the learned counsel for the parties, it appears that the first appellate Court was justified in granting a decree for possession under Section 15 of the Maharashtra Rent Control Act, 1999. Both the Courts have recorded a concurrent finding of fact that the petitioner had failed to prove that he had paid the rent to the landlord from 1992 onwards. Even the trial Court, while dismissing the suit of the respondent No.1 under Section 15 of the Maharashtra Rent Control Act, 1999, has observed that the petitioner had utterly failed to prove that he had repaired the four wheelers of the respondent No.1 and the amount was to be adjusted towards the repairing charges of the four wheelers. A finding of fact has been recorded by both the Courts that the petitioner was wp3639.12-order in arrears of rent from January, 2003 to July, 2005. The finding of the trial Court that the petitioner was ready and willing to pay the rent to the landlord but the landlord refused to accept the same is perverse, more so, when the trial Court has recorded that the petitioner had failed to pay the rent to the landlord after 1992 onwards. Merely because the petitioner tried to tender the rent for the first time in June, 2005 by money order it cannot be said that the petitioner was ready and willing to pay the monthly rent to the landlord. If the petitioner really desired to pay the rent to the respondent No.1 and the respondent No.1 was refusing the rent, the petitioner could have as well sent the rent by money order since the year 1992 or for that matter since June, 2003 at least. However, the petitioner had sent the rent by money order to the respondent No.1 for the first time in June, 2005. The observation of the trial Court that the petitioner was ready and willing to pay the rent to the landlord and the landlord was refusing to accept the same is perverse and is not based on any evidence except the tendering of money orders since June,

2005. It appears that the respondent No.1 had asked the petitioner to pay the rent only for a period of nearly three years, by giving a go-bye to the rent which remained unpaid from 1992. However, that does not mean that the petitioner was ready and willing to pay the rent during the period from 1992 to June, 2005. There is a finding of fact recorded by the trial Court that the petitioner had failed to pay the rent since 1992 and the case of the petitioner that the rent was adjusted towards the repairing charges was not accepted by the trial Court. In this background, the trial Court could not have observed that the petitioner was ready and willing to tender the rent merely because the petitioner had sent the rent by money order in June, 2005. If a tenant is ready and willing to wp3639.12-order tender the rent and the landlord is not accepting the same, the tenant can as well send the rent by money order immediately. The petitioner cannot be heard to say that the petitioner was not at fault as he had sent the rent by money order in June, 2005 though the rent was not paid to the landlord since 1992. The finding of fact recorded by the trial Court on this issue was surely perverse and the first appellate Court committed no error in reversing the finding and holding that the landlord was entitled to possession under Section 15 of the Maharashtra Rent Control Act, 1999. It is also necessary to note that the tenant was not only in arrears of rent from 1992 till the institution of the suit but also failed to tender the arrears of rent in the Court within a period of three months from the date of receipt of the suit summons. This was an additional factor to be considered by the Courts for granting the relief of possession in favour of the landlord under Section 15 of the Maharashtra Rent Control Act, 1999. There is some force in the submission made on behalf of the petitioner that the first appellate was not justified in reversing the finding recorded by the trial Court on the issue of bona fide need of the landlord to occupy the premises without considering the fact that the six rooms came in possession of the landlord during the pendency of the litigation. The trial Court had considered this aspect of the matter. However, the first appellate Court reversed the finding on that issue without considering the aforesaid fact which ought to have been considered while considering the issue of bona fide need. The finding recorded by the first appellate Court on the issue of bona fide need cannot be sustained. Normally, the matter would have been remanded to the first appellate Court for reconsideration of the issue but since the decree under Section 15 of the Maharashtra Rent wp3639.12-order Control Act, 1999 is confirmed, it would not be necessary to do so as the landlord would be entitled to possession under the same. Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned judgment dated 18/01/2012 is modified. The decree passed by the first appellate Court under Section 15 of the Maharashtra Rent Control Act, 1999 stands confirmed. The part of the judgment granting a decree for possession under Section 16(1)(g) of the Maharashtra Rent Control Act, 1999 is quashed and set aside. There would be no order as to costs. The learned counsel for the petitioner seeks a stay of the order for a period of four weeks as an interim stay was operating in favour of the petitioner since 11/09/2012. The request is strongly opposed by the learned counsel for the respondent. However, since the stay was operating in favour of the petitioner and since the petitioner desires to challenge this order, the interim order is continued for a period of three weeks only. JUDGE KHUNTE