1 241cra248­07 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL REVISION APPLICATION NO.248 OF 2007 Smt. Chandrabhaga Hamant Shinde .. Applicant V/s. Chandrakant Dinkar Shinde (Since deceased through his LR’s) Smt. Vijaya Chandrakant Shinde & Ors. .. Respondents ..... Mr. K. V. Saste for the Applicant. Mrs.Sujata S. Mogre for Respondents Nos.1A, 1C and 1D. ..... CORAM : A.S.OKA, J. DATE : DECEMBER 15, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the parties. This is a Revision Applicant filed by the original Plaintiffs. A suit for eviction was filed by the Applicant against the Respondents under the provisions of Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the said Act”). The suit was filed on the grounds of arrears of rent and bona fide need. The Courts below have dismissed the suit. 2. The case made out in the plaint is that the agreed rent in respect of the suit premises was Rs.100/­. It is alleged that as the original Defendant (predecessor of the Respondent) was in arrears of rent from 1st January, 1991 to 31st December, 1995, a 2 241cra248­07 notice of demand dated 22nd December, 1995 was issued. It is alleged that there was no compliance made with the notice of demand. In the plaint, it was pleaded that the Applicant is a widow. It is stated that her one of the two sons was taking eduction and the other sons was unemployed. It is alleged that a notice of demolition has been issued by the Chief Officer of the Municipal Council in respect of the house in which the suit premises is situated on the ground that the same is in dangerous and dilapidated condition. The suit was contested by the original Defendant by filing a written statement. It was pointed out in the written statement that on 3rd April, 1991 the Applicant dispossessed the original Defendant and locked the suit premises. Therefore, Regular Civil Suit No.81 of 1991 was filed by the original Defendant in which a temporary mandatory injunction was granted for restoration of possession and the said suit was ultimately decreed on 30th November, 1996. It was contended that the agreed rent was Rs.60/­ per month and an Applicant for fixation of standard rent was filed in the year 1997 in which rent at the rate of Rs.60/­ per month has been deposited. 3. The learned counsel appearing for the Applicant has taken the Court through the findings recorded by both the Courts below. He submitted that it is well settled that a landlord is the 3 241cra248­07 best judge of his own requirements and hence, there was no reason to doubt the requirement pleaded by the Applicant. He submitted that the Appellate Court has recorded a finding that an open space is available to the Applicant on which can he erect a house. He submitted that it was not for the tenant to dictate in what manner the landlord should enjoy his property. He submitted that requirement pleaded by the Applicant of the suit premises for her own business ought to have been accepted especially when it was brought on record that one of the sons of the Applicant was working as a labourer. He submitted that as far as the ground of arrears of rent is concerned, the demand was made for arrears at the rate of Rs.100/­ per month for a period of five years. He pointed out that within a period of one month from the receipt of the notice neither the amount was tendered as demanded nor an Applicant for fixing of standard rent was filed. He submitted that there is nothing on record to show that the standard rent Application filed by the original Defendant was within a period of 30 days from the date of receipt of the notice and that any interim rent was fixed by the trial Court in the said Applicant. He, therefore, submitted that the decree for possession under Section 12(3)(a) of the said Act must follow. He lastly submitted that the requirement of the possession of the suit premises for immediate demolition on the basis of the notice 4 241cra248­07 issued by the Municipal Council was clearly made out. The learned counsel appearing for the Respondents supported the impugned Judgments and decrees. 4. The first issue is regarding the arrears of rent. One of the contentions raised by the original Defendant was that the City Survey number of the suit premises mentioned in the suit notice is erroneous. The finding of the Courts below is that the notice was illegal and invalid. 5. The case made out by the original Defendant which is born out from the record is that on 3rd April, 1991 the Applicant forcibly evicted the original Defendant and the suit premises was locked. Therefore, the original tenant­Defendant was forced to file Regular Civil Suit No.81 of 1991. In the said suit, interim mandatory injunction was granted by which the possession of the Defendant was restored. The said suit was eventually decreed on 30th November, 1996, by passing a decree of restoration of possession. Thus, on 3rd April, 1991, the Defendant was dispossessed and he was placed in possession only on the basis of the interim relief granted by the trial Court. It is pertinent to note that the notice of demand was issued on 22nd December, 1995. The suit No. 81 of 1991 filed by the original Defendant was decreed on 30th November, 1996. Thus, the final decree of 5 241cra248­07 restoration of possession was passed by the trial Court only on 30th November, 1996. Till the disposal of the suit, the original Defendant remained in possession only on the basis of an interim order passed by the trial Court in the suit filed by the Respondent. The arrears demanded by the demand notice were for the period from 1st January, 1991 to 31st December, 1995. Hence, the trial Court has rightly observed that after dispossessing the Defendant , during the pendency of the suit for restoration of possession filed by the Defendant , the Applicant could not have demanded the rent. As stated earlier, the demand notice was served during the pendency of the said suit before the decree was passed in favour of the original Defendant. Therefore, the finding of the trial Court that the demand made by the notice was illegal appears to be fully justified. The reason is that the Applicant had chosen to dispossess the original tenant on 3rd April, 1991 and till 30th November, 1996 the original Defendant ­tenant was in possession only on the basis of the interim order passed by the Civil Court. Moreover, the Trial Court has referred to rental receipts, money orders at Exhibits 67 to 94 produced by the original Defendant . The Trial Court has also referred to money order coupons at Exhibits 128 to 135. The Court observed that these documents show that the Defendant had forwarded rent from April 1991 to February 1996 by money 6 241cra248­07 orders which were refused. Therefore, there is a finding of fact rightly recorded that the demand made under the notice of demand was illegal. 6. The second issue is regarding the bona fide need. As far as bona fide need is concerned, on the basis of the certified copy of the Judgment in Regular Civil Suit No.77 of 1982 on record of the trial Court, a finding has been recorded that the Applicant was declared as owner of house bearing City Survey No.3752 and the western half portion of City Survey No.3744. The said suit was decreed on 31st October, 1985. Thus, what is brought on record is that one house and western half portion of another house was available to the Applicant even before the institution of the suit. It must be noted here the crucial fact that decree has been passed of the declaration of ownership and injunction in the said suit has been completely suppressed by the Plaintiffs/Applicant while filing the present suit. This reflects on the alleged bona fide of the Applicant. Considering the availability of the said two houses, the Courts below and in particular the Appellate Court have negatived the plea of bona fide need. I find no fault in the findings recorded by the Courts below on these aspects. 7. As far as the third ground of eviction is concerned, the case 7 241cra248­07 is that the Chief Officer of the Municipal Council has issued a notice calling upon the Applicant to remove the suit premises. The notice dated 9th October, 1995 was produced on record. The finding of the Courts below and in particular the Appellate Court is that the notice does not relate to the structure in which the suit room in premises is situated. A Court Commissioner was appointed by the trial Court to visit the larger property. The report of the Court Commissioner shows that the eastern wall referred to in the notice dated 9th October, 1995 is of the room in possession of the Applicant and the suit premises was in good condition. Therefore, a finding of fact has been recorded that the suit premises is required for the purposes of demolition. Moreover, the Appellate Court has observed that the Court Commissioner appointed by it submitted a report in which it was pointed out that the suit premises was not in dilapidated condition and some other portion of the building was in dilapidated condition. 8. I find that the concurrent findings recorded by the Courts below are supported by the evidence on record. Hence, no case for interference is made out. Revision Applicant is rejected. 9. Rule is discharged with no order as to cost. (A.S.OKA, J.)