ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 3307 OF 1994 PETITION NO. 3307 OF 1994 PETITION NO. 3307 OF 1994 Sahadeo Sumiran Yadav, Age 66 years, R/o. Karjat, Dist.Raigad. ...Petitioner. Vs. 1. Bhagvati Prasad Pandu Gupta, Age 45 years. 2. Uma Shankar Dayadin Gupta, Age 19 years, R/o. Karjat, Dist. Raigad. ...Respondents. Mr.Satyajeet Mirajkar for the Petitioner. Shri R.S.Patil i/by Mr. A.K. Abhyankar for the Respondents. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 10th November, 2008. : 10th November, 2008. : 10th November, 2008. JUDGMENT:- JUDGMENT:- JUDGMENT:- The Petitioner - Landlord is owner of a Chwal at Karjat as Respondent No. 1 (Original Defendant No.1) was in arrears of rent from October, 1982 to 31/10/1983 and without permission/ consent inducted Respondent No.2 (Original Defendant No.2), therefore, invoked Section 12(3)(a) and Section 13(1) (e) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (for short, "The Bombay Rent Act"), after ( 2 ) issuing demand and termination notice dated 06/10/1983. 2. Both the Respondents contested the said suit dated 1st February, 1984. The parties led evidence. The Trial Court by order dated 30/04/1988 decreed the suit and directed the Defendants to hand over the vacant possession and also directed Defendant No.1 to pay arrears of rent. 3. Respondent No.2 only preferred Civil Appeal No. 103 of 1988 against the said order and not by Respondent No.1 - Original Defendant No.1. By the impugned order dated 11th February, 1994 the Appeal has been allowed. 4. There is an ample material on record to demonstrate that Defendant No.1 was in arrears of rent for more than 6 months and therefore, he is a habitual defaulter. The reasoning given by the Trial Court with this regard remained unchallenged by Defendant No.1 who was the Original tenant of the Petitioner/ Landlord. There is also a material on record to justify the decree as the said Defendant No.1 acquired the suitable alternative accommodation and, therefore, ( 3 ) left the premises in question since last 5 to 6 years. Except simple denial nothing was produced on record by Defendant No.1 to show that he paid the rent regularly. The fact that he acquired the alternative accommodation and left the premises and therefore, not paid the rent, also just cannot be overlooked. Defendant No.2 in this background no way can disprove the case of the Petitioner/ Landlord with regard to the aspect of unwillingness and non-payment of rent by Defendant No.1. There is evidence to the effect as recorded by the Trial Court that Defendant No.1 in his evidence admitted that the Petitioner / Landlord was issuing rent receipts to him; the demand of arrears of rent was made; and not paid the rent prior to the demand notice and even thereafter. 5. Therefore, the reasoning given by the Trial Court, based upon the evidence of Plaintiff and his witnesses in my view, is correct. The Appellate Court wrong in reversing the said finding based upon the alleged wrong description of the property and the fact that the Grampanchayat record shows the entry of Defendant No.2 as a tenant. The defence as raised by both the Respondents is self-destructive specially when Defendant No.1 when denied the arrears as well as ( 4 ) creation of sub-tenancy in his defence, as well as, in his evidence. If it is a question of wrong description of the property then the defence as raised by both the Defendants/ Respondents ought to have been on the basis of simple denial. Defendant No.1- Original tenant if left the premises as proved and Defendant No.2 is in occupation of the said premises and as recorded by the Appellate Court that Grampanchayat record has also shown entry of Defendant No.2 as a tenant that itself is sufficient to identify the suit premises as the same is not in dispute. 6. As noted, no challenge of any kind was raised by Defendant/ Respondent No.1. The decree became final and binding in all respect. The Trial Court Judgment and Order, therefore, as challenge made by Defendant no.2 in absence of Defendant No.1 with regard to the arrears of rent and sub-tenancy looses its foundation in all respects. The evidence on record, as recorded above, also supports the case of landlord-Plantiff that Defendant/ Respondent No.1 has subletted the suit premises to Defendant/ Respondent No.2 illegally. The reasoning given by the Appellate Court that Grampanchayat record shows the entry of Defendant No.2, in this background itself an additional factor ( 5 ) in support of Plaintiff’s case of sub-tenancy without written permission of Petitioner Landlord. There is nothing on record to justify and support the case as raised specifically by Defendant- Respondent No.2 that he is tenant of the Petitioner Landlord. There are no receipts or any documentary evidence on record to justify the same. The denial of Defendant No.1 with regard to the pleadings as well as material on record about sub-tenancy and arrears of rent itself is also additional factor to grant and maintain the eviction decree as passed by the Trial Court. The fact as recorded even by the Appellate Court that the Respondent Defendant No.2 was minor at the relevant time as he claimed to be in possession as tenant of Plaintiff. That itself falsify the case of Respondent No.2 that he was tenant of the Plaintiff since so many years. There is no material and evidence to justify even the long possession of Respondent - Defendant No.2. The entry in the Grampanchayat record in no way sufficient to decide the landlord-tenant relationship specially in absence of any consent and or permission granted by the landlord to record and or to make such entry on Grampanchayat record. There is also nothing on record to justify that Respondent - Defendant No.2 was the tenant of Defendant/ Respondent No.1. Wrong ( 6 ) description even if any, in the facts and circumstances of the case specially when there is a material on record to show that Original Defendant No.1 had left the premises 5 to 6 years before and Grampanchayat record as described Respondent No.2 as a tenant of the premises. The reasoning given by the Appellate Court to reverse the order passed by the Trial Court, is incorrect. The reliance on the evidence of Defendant No.2 in absence of challenge to the reasoning given by the Trial Court by Defendant No.1 which remained concluded and final, ought not to have been interfered with this. In my view the Appellate Court wrongly reappreciated the material and evidence and interfered with the order of eviction as passed by the Trial Court on the ground of Sub-tenancy as well as, arrears of rent against both the Respondents. 7. Taking all this into account, the impugned order dated 11/02/1994 passed by the Additional District Judge, Raigad in Civil Appeal No.103 of 1988 is quashed and set aside. The Judgment and Decree dated 30/04/1988 passed by the Civil Judge, Junior Division, Karjat in Civil Suit No.4 of 1984 is restored. ( 7 ) 8. The Writ Petition is allowed with no order as to costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)