1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Revision Application No.100 of 2010 (Shri Rameshchandra s/o Shri Mansukhlal Agrawal v. Smt. Savita w/o Shri Inderchand Agarwal) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri A. Shelat with Ms M.D. Bhambhwani, Advocates for Applicant. Shri B.P. Agrawal, Advocate for Respondent. Coram : R.K. Deshpande, J. Dated : 30 th November, 2010 1. This civil revision application is preferred by the tenant, who was the defendant in Regular Civil Suit No.227 of 2000, in which the decree for eviction and possession was passed on 21-8-2003. In Special Darkhast Case No.53 of 2007, two objections were raised by the applicant/judgment-debtor – first, the licence granted was a permanent licence, as contemplated by Section 60 of the Easements Act, and the same was not revocable, and secondly, the landlord had purchased two houses, and this fact was concealed by the landlord, which amounts to practising the fraud. Both these objections are considered by the Court of Small Causes in its order dated 30-8-2010 passed in Special Darkhast Case No.53 of 2007. After considering the decisions of the Apex Court in S.P. Chengalvarya Naidu (Dead) by LRs. v. Jagannath (Dead) by LRs. and others, reported in 2 AIR 1994 SC 853, and in Harayana Vidhyut Prasaran Nigam Ltd. v. Gulshan Lal, reported in 2009 AIR SCW 5739, it has been held by the Court of Small Causes that there is no question of fraud and that the Executing Court cannot go beyond the decree to re-open the issues. Thus, both these objections have been rejected by the Court of Small Causes. 2. Aggrieved by the order dated 30-8-2010 passed by the Court of Small Causes, Civil Revision Application No.40 of 2010 has been preferred before the District Court, Nagpur. The learned District Judge-8, Nagpur, by his judgment and order dated 6-9-2010, has rejected the said revision application and confirmed the order passed by the Court of Small Causes. The relevant consideration of the Appellate Court appears in paras 9, 10 and 11, which are reproduced below : “9. As to point No.2 and 3 : Two points were raised before me namely in view of the alleged premises being given on permanent license, the same could not be revoked in view of Section 60 of the Easement Act. It is further contended that this house number was different and hence the document was not considered by the court below. At the outset, this objection was never pleaded in both the applications at Exhs.13 and 38. All that was contended that there is different house number. This is no mention of said alleged agreement in these application. The learned counsel tried to relied upon the affidavit at Exh.89 before the learned trial court to buttress his stand. Even in Exh.89, no such contention was taken of inexecutability of the order and that applicant has erected the structure as a licensee and the 3 same cannot be revoked. Even otherwise same contention cannot be considered for the reason that the applicant identifies himself as the tenant of the said plot. Admittedly the tenant cannot be permitted to erect structure. If such permission may be granted, it does not fall within the purview of license under Section 60 of the Easement Act. Considering the same the said contention is not applicable to the present facts and circumstances. Hence the law laid down in the rulings – Rahimbax vs. Samsu and others, reported in 1950 NJL 460, and M.F. De Souza vs. Children's Education Uplift Society, reported in AIR 1959 Bombay 533, is not applicable.” “10. The other contention raised is that the decree holder withheld the fact of acquisition of other premises. This contention was available to the tenant/applicant, the learned Trial court and this application in this regard was preferred in Reg. Civil Suit no.497/03 dt. 26.02.2004. Thus this contention also does not hold any water at this stage, just because other premises are available, may not entitle the tenant to raise the objection from challenging the bona fide requirement of the landlord. This is settled principle of law in number of cases. What is necessary is eclipse of bona fide requirement. Thus, mere acquisition of other premises will not make the requirement of the landlord mala fide, hence also this ground cannot be considered.” “11. The Hon'ble High Court in the writ petition No.1298 & 1299 has clearly held, all the grounds to be frivolous and made with mala fide intention to cause the 4 hindrance in execution proceedings. The Hon'ble High Court directed the trial Court to execute the decree. The said order in fact implies that the objection raised by the J.Dr. have been overruled and rejected. Considering the same the lower Trial court has come to correct conclusion and its order requires no interference.” 3. Shri Shelat, the learned counsel appearing for the applicant, submits that the Courts have relied upon the judgment of this Court rendered on earlier occasion in Writ Petitions No.1298 and 1299 of 2009, decided on 8-7-2009. He submits that the question of purchase of two houses by the landlord pending the decision of the proceedings was not considered in the said judgment and on this count, the Courts below were wrong in relying upon the said judgment delivered by this Court. 4. Perusal of the findings recorded by the Appellate Court, which are reproduced above, clearly show that the said findings are not exclusively based upon the decision of this Court. The Appellate Court has considered both the objection of the applicant/judgment-debtor on merits and it has concurred with the decision of the Courts of Small Causes. Thus, there is no perversity or jurisdictional error brought to my notice. 5. In the result, there is no substance in the present civil revision application and the same is, therefore, dismissed. Judge pdl