cra8.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 8 OF 2011 Sk. Umraobi w/o Sk. Ahmed Saheb ( Deceased through LR) Mrs. Abida Sultana Haji Sk. Abdul Razzak age 60 years, occ. household r/o Kambala Hill Road, K-Ke court 4 th floor, Mumbai 400 036 Through GPA Sk. Subhan Amir age 81 years, occ. business r/o Sahani clinic, Manik Chowk Ahmednagar. .. PETITIONER VERSUS Sk. Tayyab Sk. Hasan age 45 years, occ. painter r/o H.No. 1595, Kamathipura Zendi Gate, Ahmednagar. .. RESPONDENT Mr. R.R. Mantri, advocate for the applicant. Mr. V.P. Latange, advocate for the respondent. ===== CORAM : R.M. BORDE, J. RESERVED ON : 22 nd MARCH, 2011 PRONOUNCED ON : 5 th APRIL, 2011 PER COURT : cra8.11 2 1 Heard. Rule. With the consent of the parties, petition is taken up for final disposal at admission stage. 2 Petitioner / original landlady has challenged the judgment and decree passed by the Ad-hoc District Judge – 1, Ahmednagar in Regular Civil Appeal no. 215/2006 on 8-11-2010 whereby the appeal presented by the respondent / original tenant came to be allowed and the matter came to be remitted back to the Court of Civil Judge, Jr.Dn., Ahmednagar for fresh decision with further direction that the plaintiff / petitioner herein be permitted to adduce evidence in the form of affidavit and to examine herself on oath for affirming the contents of the affidavit with opportunity to defendant to cross examine her on law points. 3 Petitioner / landlady presented Regular Civil Suit no. 25/2004 claiming a decree of eviction from suit premises against respondent / tenant on the ground of default in payment of rent as well as bonafide requirement of the landlady to occupy the premises. It appears that even though tenant appeared in the proceeding, he failed to file written statement and as such, cra8.11 3 landlady tendered her affidavit in lieu of examination-in-chief and closed her evidence. Trial court on consideration of the affidavit presented by the landlady proceeded to pass decree of eviction against the tenant. Respondent / tenant preferred appeal being Regular Civil Appeal no. 215/2006 which came to be allowed and the matter was remitted back to the trial court by the first appellate court, in view of judgment and decree passed on 8-10-2010. 4 Mr. R.R. Mantri, learned counsel appearing for the revision petitioner, has contended that the first appellate court has erred in allowing the appeal and remitting the matter back to the trial court. It is contended that admittedly there is no written statement opposing the contentions raised by plaintiff. It is further contended that the tenant is defaulter in payment of rent and even during the pendency of the proceeding before the trial court or the first appellate court, respondent / tenant did not deposit the rent. It is contended that the landlady died during the pendency of the proceeding and her heirs are brought on record and the litigation is being prosecuted by her heirs. It is contended that the tenant is interested only in delaying the proceeding and, considering the facts and circumstances of the case, there cra8.11 4 was absolutely no need to remand the matter back to the trial court. First appellate court placed reliance on the judgment in the matter of Namdeo Laxman Nawale vrs. Chndrasen Khasiram Rajeshirke and others reported in 2001(2) Mh.L.J. 941 and observed that unless the affiant i.e. landlady herein appears before the court and deposes in respect of the contents of the affidavit, the evidence in the form of affidavit cannot be taken into consideration. According to the learned counsel for the revision petitioner, the court while dealing with the matter had taken into consideration the unamended provisions and in view of provisions of Rule 4 Order XVIII of the Code of Civil Procedure, an affidavit can be taken into consideration as evidence of plaintiff and there was no need for the petitioner / landlady to appear before the court and depose in the proceeding. It is contended that landlady presented an application informing the court that she is prepared to appear in the proceeding for facilitating her cross examination by the tenant. However, there was no order passed on the application and the application was merely filed. 5 In the matter of F.D.C. Limited, Mumbai vs. Federation of Medical Representatives reported in 2003(3) Mh.L.J. 327, this court has dealt with the cra8.11 5 aspect of procedure to be followed after presentation of affidavit in lieu of examination-in-chief of the witness. This court considered Rule 5 Order XVIII of the Code of Civil Procedure and observed that in a suit where decree passed is appealable, mere production of affidavit of witness will not be sufficient. Such affidavit cannot be treated to be affirmation of the contents of the affidavit unless the deponent enters the witness box and deposes that the contents of the affidavit are as per his say and the affidavit bears his signature. This court has held that the said statement on oath by the deponent is to be recorded by following the procedure laid down by Rule 5 Order XVIII of the Code of Civil Procedure. The view taken by the court in the matter referred above has been affirmed in the judgment in the matter of Miscellany Marketiers Pvt. Ltd. vrs. Sun-N-Sand Hotel Pvt Ltd. reported in 2010(1) Mh.L.J. 396 wherein this court permitted the petitioner therein to cure the defects by permitting affirmation to be made subsequently. In the instant matter also the appellate court following the ratio laid down in the matter cited supra permitted the petitioner to cure the defects. 6 Another aspect that is taken into consideration is that the landlord cra8.11 6 cannot seek eviction of the tenant on the ground of bonafide requirement or even on the ground of failure of the tenant to intentionally pay the arrears of rent, by merely producing his affidavit on record. As has been held by this court in the matter of Jainabi Ahmed Sahid X Mohd. Ibrahim reported in 1986 Mh.L.R. 42 that affidavit in itself would not be sufficient evidence for holding that the landlord has proved his bonafide requirement under provisions of Section 15 of the Hyderabad Rent Control Act. It is held in the matter of Gopal Ramprasad Mundada vrs. Ramling Mahaling Swami reported in 1982 Mh.L.R. Bom. 254 that when there is no evidence on record, the Rent Controller is not empowered to pass an order unless the Rent Controller is satisfied on merits that any one of the grounds mentioned under Section 15 of the Hyderabad Rent Control Act are proved. 7 In the matter of Namdeo Laxman Nawale vs. Chandrasen Khkasiram Rajeshree and others (cited supra) it is held by this court that before passing a decree of eviction it is necessary for the court to get itself satisfied about the case pleaded by the landlord and the ground on which eviction of the tenant is sought for. An order of eviction cannot be passed mechanically and without application of mind and merely because landlady desires cra8.11 7 eviction of the tenant. It is observed in paragraph no. 5 of the judgment thus: 5 Undisputedly, the suit was filed for eviction of the petitioner on the ground contemplated under section 13 of the Bombay Rent Act and the same included the ground of need of the premises for bona fide occupation of the respondent No. 1. Section 13(2) clearly provides that no decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) unless the issue of comparative hardship is considered and decided based on the materials on record. Accordingly it is necessary for the Court to satisfy itself that the decree of eviction would not result in greater hardship to the tenant than to the landlord. Even sub-section (1) of Section 13 clearly states that a landlord shall be entitled to recover the possession of any premises if the Court is satisfied about the ground on which the eviction is sought for. In other words, it is necessary for the Court to get itself satisfied about the case pleaded by the landlord and the ground on which eviction of the tenant is sought for. An order of eviction cannot be passed mechanically and without application of mind and merely because landlord desires eviction of the tenant. The landlord seeking eviction of tenant has necessarily to make out a case sufficient to entitle him to get the order of eviction, and therefore, in that regard it is necessary for the landlord to establish his case with cogent evidence. . In the instant matter, the landlady has not made out a case for claiming decree of eviction by leading cogent and independent evidence confirming requirement of law. The first appellate court was therefore cra8.11 8 justified in allowing the appeal and remitting the matter back to the trial court for re-consideration. Thus, there is no merit in the civil revision application and the same stands dismissed. Rule discharged. No costs. ( R. M. BORDE ) JUDGE dyb