{1} cra2808.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 28 OF 2008 Sattar s/o Adamji Memon, age: 60 years, Occ: Trade, R/o Sutar Galli, Nandurbar, Tq. & District Nandurbar. Petitioner Versus Dinmohammad Suleman Mistri, (deceased) through his L.Rs: 1 Pyarmohmmad Dinmohmmad Mistri, age: 62 years, Occ: business; 2 Abdul Gani Dinmohmmad Mistri, age: 60 years, Occ: business; 3 Harun Dinmohmmad Mistri, age: 58 years, Occ: business; 4 Ismail Dinmohmmad Mistri, age: 56 years, Occ: business; Nos.1 to 4 R/o Sutar Galli, Nandurbar, Tq. & Dist.Nandurbar. 5 Smt.Hajrabi Jauje Subhanjee, age: 54 years, Occ: Household, R/o Bashir Rajjak Cycle Store, Rahu Gate, At Post Ladnu, Dist. Nagore. 6 Smt.Jaunabbi Jauje Mohmmad, {2} cra2808.odt Husein Rangrej, age: 52 years, Occ: Household, R/o Mohmmad Faruque Rajastani Mistri, Rangrej Building, Opp. Panchayat Samiti, Osmanabad, Dist. Osmanabad. Respondents Mr.Milind Patil, advocate for the petitioner. Mr.S.V.Natu, advocate for respondent no.1. CORAM : R.M.BORDE, J. DATE : 24 th March, 2011 JUDGMENT: 1 The petitioner herein, referred to as the tenant, is challenging concurrent orders passed by the Courts below directing his eviction out of the tenanted premises. 2 Respondent-landlord instituted Regular Civil Suit No. 95 of 1995 claiming recovery of possession of tenanted premises as well as for recovery of arrears of rent amounting to Rs.2412/- along with interest. Respondent – original plaintiff (landlord) claims to have purchased the suit property bearing Municipal House No. 2116, situate at Nandurbar, from one Niyajbee Subhan Mistri. Father of defendant – deceased Adamji was inducted as tenant on monthly tenancy of Rs.18/- per month. Adamji died on 04.09.1984 and thereafter the defendant, being his son, occupied the tenanted premises. The previous owner of the property {3} cra2808.odt Niyajbee had instituted a suit bearing R.C.S. No. 10 of 1985 against the defendant, however, plaint was returned for proper presentation for the reason that the Court did not have pecuniary jurisdiction to entertain the suit. The subsequent purchaser of the suit premises / plaintiff herein has presented instant suit claiming recovery of arrears of rent as well as possession. Before instituting the suit, plaintiff issued a notice terminating tenancy of the tenant and calling upon the defendant to pay the rent. On receipt of the notice, defendant tenant raised fictitious issues, as such, plaintiff was constrained to institute the suit. 3 It is the contention of the plaintiff that the defendant has fallen in arrears in payment of rent for the period between 01.09.1984 to 31.10.1995 amounting to Rs.2412/-. It is also contended by plaintiff that the defendant has damaged suit property and effected permanent structural alterations without permission of the landlord. Plaintiff has also claimed recovery of possession of the tenanted premises for bona fide personal use. 4 Defendant has resisted the suit by filing written statement at Exhibit-12 and denied the averments raised by the plaintiff. It is the contention of the defendant that the previous owner of the property never demanded the rent orally or in writing. Defendant tried to tender rent to the previous owner as well as the plaintiff, however, plaintiff, only with an intention to obtain {4} cra2808.odt possession of the tenanted premises, refused to accept the rent. It is also contended that previous suit instituted by erstwhile owner, being R.C.S. No.10/85 has been withdrawn without seeking permission of the Court, as such, instant suit is hit by the principle of constructive res judicata. The defendant has denied to have caused damage to the suit tenement or having made permanent repairs without permission of the landlord. Defendant has also controverted the contention raised by the plaintiff in respect of bona fide need exhibited by the plaintiff for possessing the suit premises. 5 On the basis of pleadings, issues were framed and after receiving evidence, the trial Court granted decree in favour of the plaintiff-landlord. 6 An application was tendered by the defendant, being Misc. Application No.30/95 for fixation of standard rent and said application was also taken up for consideration by the trial Court along with Regular Civil Suit No.95/1995. In the application presented by defendant, he has disputed the amount of rent claimed by plaintiff in his notice dated 06.11.1995. Defendant tendered an application claiming fixation of standard rent on 11.12.1995. The suit for recovery of tenanted premises was instituted by the plaintiff landlord on 12.12.1995. The application tendered by the defendant tenant under Section 11 of the Bombay {5} cra2808.odt Rents, Hotel and Lodging House Rates Control Act for fixation of standard rent has been turned down by the trial Court. 7 Defendant-tenant challenged the judgment and order passed by the trial Court directing his eviction out of the suit premises by presenting Civil Appeal No.12/1999. Defendant tenant also presented a Revision Application challenging the order passed by the trial Court in Misc. Application No.30/95, being C.R.A. No. 1/99. Both the matters were taken up for consideration by the Ad hoc Additional District Judge, Nandurbar, simultaneously and after hearing the arguments of the parties, the appellate Court was pleased to dismiss the appeal presented by the tenant as well as C.R.A. No.1/99. 8 Petitioner-tenant has assailed the order passed by the trial Court, which has been confirmed by the first appellate Court, directing his eviction out of the suit premises, by presenting instant Civil Revision Application. 9 I have heard arguments advanced by Shri Milind Patil, learned Counsel appearing for petitioner – tenant and Shri S.V.Natu, learned Counsel appearing for Respondent No.1- landlord. 10 It is vehemently contended by the Counsel appearing {6} cra2808.odt for petitioner – tenant that the orders passed by the Courts below directing eviction of petitioner-tenant are illegal and without appreciating the material evidence placed on record. The learned Counsel has invited my attention to the admission recorded in the deposition of plaintiff-landlord to the effect that previously plaintiff or erstwhile owner Niyajbee did not admit the defendant to be a tenant of the suit premises. It is, thus, contended that in view of the admission recorded in the deposition of the plaintiff, suit instituted by plaintiff, claiming recovery of tenanted premises under the provisions of Bombay Rent Control Act, is not entertainable. 11 Another objection raised by the petitioner is in respect of the findings recorded by the Courts below regarding causing damage to the tenanted premises by defendant-tenant. It is the contention of the defendant that the plaintiff, in his plaint itself, has described the suit property as two storied building (Ground + one floor), whereas, in his evidence, plaintiff has raised a contention that the defendant has caused damage to the second floor, which, in itself, is without any foundation in the pleadings. It is, thus, contention of the petitioner that the Courts below have considered the evidence, which has no foundation in the pleadings raised by the plaintiff. Thus, the finding in respect of causing damage to the tenanted premises and directing eviction of the tenant on the said ground, is based on inadmissible evidence and {7} cra2808.odt as such, is required to be set aside. It is also contended by the petitioner that the finding recorded by the Courts below in respect of the tenant being wilful defaulter is perverse. The Courts below have recorded a finding that the tenant has paid the rent recoverable from him amounting to Rs.2412/- and in spite of recording such finding, has proceeded to pass a decree directing eviction of the tenant on the ground that he has failed to deposit the amount of interest. It is the contention of the defendant that it was the responsibility of the trial Court to determine the amount of interest and cost and then pass an order in that regard and without passing such order, directing the tenant to pay the amount of interest and cost, it would not permissible for the trial Court as well as the first appellate Court to record a finding that the tenant is defaulter in payment of rent on account of his failure to deposit the amount of interest. 12 Learned Counsel appearing for Respondent No.1- landlord has supported the judgments and orders passed by the Courts below and contended that in exercise of revisional jurisdiction, the concurrent findings, recorded by the Courts below based on appreciation of evidence, need not be interfered. 13 I have perused evidence of the plaintiff who has stated in his cross examination that he or his predecessor-in-title previously did not recognise the defendant as tenant. The stray {8} cra2808.odt admission is in respect of the previous litigation initiated by the erstwhile owner Niyajbee. So far as instant suit is concerned, there is a specific averment in respect of induction of father of defendant as tenant in the suit premises in the year 1948-49 on monthly rent of Rs.18/-. In his written statement, defendant has asserted that his father was inducted as tenant and he was occupying suit premises along with his father. The stray sentence appearing in the cross examination is in respect of Regular Civil Suit No. 10/1985 instituted by the predecessor-in-title of the plaintiff. The plaint in the said suit was returned by the trial Court for proper presentation and no action was taken thereafter by the predecessor-in-title of the plaintiff. Defendant has tendered an application, being Misc. Application No.30/1995 claiming fixation of standard rent and the said application also proceeds on the basis that plaintiff is the landlord and defendant is tenant in respect of suit premises. The argument advanced, placing emphasis on the stray sentence appearing in the cross examination of plaintiff, which also is out of context so far as controversy involved in the instant suit is concerned, is not acceptable. 14 Another objection raised is in respect of the finding recorded by the Courts below to the effect that defendant-tenant is responsible for causing permanent damage to the tenanted premises. Plaintiff-landlord, in his plaint, has raised a ground {9} cra2808.odt regarding causing damage to the tenanted premises by the defendant. It has appeared in the evidence led by the plaintiff that the suit property consisted of ground plus two floors, whereas, defendant-tenant has pulled down tin sheets as well as windows and doors affixed to the second floor, thus, rendering the building consisting of only ground plus one floor. Plaintiff has asked recovery of possession of ground plus one story premises, which was the situation existing on the date of presentation of the suit. There is no inconsistency between pleadings and evidence led by the plaintiff. There is sufficient evidence placed on record by the landlord to the effect that second floor of the building was pulled down by the tenant rendering suit premises to only ground plus one floor structure. The Courts below have appreciated the evidence placed on record by the plaintiff and arrived at a finding that the tenant is guilty of causing permanent damage to the suit premises and is, therefore, liable to be evicted. The concurrent findings recorded by the Courts below, based on appreciation of evidence, need not be interfered with while exercising revisional jurisdiction by this Court. 15 It is the contention of petitioner-tenant that the Courts below have erred in recording a finding that the tenant is wilful defaulter in paying the rent. My attention has been invited to the finding recorded by the Courts below that defendant-tenant has deposited arrears of rent in Misc. Application No.30/1995. It {10} cra2808.odt is also the contention of defendant that once defendant raises a dispute in respect of quantum of rent recoverable by the landlord, unless the Court records a finding in respect of standard rent, it was not permissible to brand the defendant as defaulter. It is also contended that an application was tendered in Misc. Application No.30/1995 seeking permission to deposit the rent at the rate claimed by the landlord, which was allowed by the trial Court and accordingly the amount recoverable towards arrears of rent was deposited in the trial Court. It is, thus, contended that in view of provisions of Section 12 of the Bombay Rent Control Act, decree for recovery of possession of tenanted premises ought not to have been passed by the Courts below. 16 It is not disputed that the tenant presented an application being Misc. Application No.30/1995 under Section 11 of the Act requesting the Court to fix standard rent. The application was presented on 11.12.1995 after receipt of notice from the landlord directing the tenant to pay arrears of rent and to hand over possession of suit premises on the ground of his failure to pay rent for the period between 1984 till 1995. However, instead of tendering the amount of arrears of rent to the landlord and/or depositing the same in the suit presented by the plaintiff seeking eviction of tenant, on the first day of hearing, the tenant proceeded to present an application seeking permission of the Court to deposit the arrears of rent only on 25.10.1996. The suit claiming {11} cra2808.odt recovery of possession of tenanted premises was presented by the plaintiff-landlord on 12.12.1995. The notice claiming possession of tenanted premises was issued by the landlord on 06.11.1995, which was received by the tenant on 08.11.1995 and the application claiming fixation of standard rent was presented on 11.12.1995. Thus, it is contended by plaintiff-landlord that initiation of proceedings under Section 11 of the Bombay Rent Control Act by the tenant are not bona fide, is liable to be accepted. There is voluminous evidence placed on record supporting claim of the landlord that there was an agreement in respect of payment of rent executed between father of defendant and one Mangilal and rate of rent prescribed was Rs.18/- per month. The premises were let out to the father of defendant in 1948 and till the year 1995, defendant-tenant did not deem it necessary to present an application seeking fixation of standard rent, whereas, he presented such an application only after receipt of notice from the landlord directing his eviction on the ground of failure to pay the rent from 1984 onwards. The application claiming fixation of standard rent under Section 11 was presented a day earlier to the presentation of suit by plaintiff-landlord claiming eviction of tenant. The defendant, in turn, has admitted that his father was paying rent at the rate of Rs.18/- per month without any complaint. As such, it was not permissible for the defendant to raise a dispute in respect of standard rent after 47 years. The Courts below have rightly recorded a finding that the dispute {12} cra2808.odt raised by defendant in respect of quantum of rent is not bona fide one. 17 Reliance is placed on the judgment in the matter of Yeshbai and another Vs. Ganpat Irappa Jangam and another, reported in AIR 1975 Bombay 20, wherein it has been recorded that, the dispute referable to Section 12 is a “bona fide dispute” and not “any dispute”. The Courts below, in the instant matter, were justified in recording a finding that the dispute in respect of monthly rent payable by the tenant, raised by him, was not bona fide and the Courts below were, thus, justified in rejecting the application tendered by defendant-tenant claiming fixation of standard rent. 18 It is vehemently contended by the petitioner that passing of an order by the Civil Court after ascertaining exact amount of interest and cost payable by the tenant is a precondition for passing any order under Section 12 of the Act directing eviction of the tenant. Heavy reliance is placed on the judgment of the Apex Court in the matter of Rakesh Wadhwan Vs. Jagdamba Industrial Corporation, reported in 2002 (5) SCC 440 [ = 2002 AIR (SC) 2004]. The provisions of Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 had fallen for interpretation before the Apex Court. The proviso to Section 13(2) of the Punjab Rent Act provides that if the tenant, on the first {13} cra2808.odt hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid. In the reported matter, the tenant did pay the amount of rent along with interest at the rate of 6% p.a., however, the rate of rent deposited by the tenant was disputed by the landlord. The tenant raised a contention that it was obligatory for the Controller to pass an order after quantifying arrears of rent and amount of interest and cost and in spite of such assessment, if the tenant fails to pay the amount, he can be branded as defaulter. The Apex Court, interpreting the provisions of Section 13(2) proviso, ruled that it was obligatory for the Rent Controller to assess the amount of rent, interest and cost and only after such assessment, tenant is obliged to deposit the amount. The Rent Controller, in the reported matter, did not comply with the provisions of Section 13(2) proviso, as such, the matter was remitted back to the Rent Controller. 19 Relying upon the reported judgment in the matter cited supra, it is contended that in the instant matter also, it is obligatory for the trial Court to assess the dues recoverable from the tenant and only after such assessment and in the event of failure of the tenant to deposit the amount, decree of eviction can be passed under Section 12 of the Act. The arguments advanced {14} cra2808.odt are not acceptable for the reason that the provisions of East Punjab Act and Bombay Rent Control Act are not pari materia. Section 12 of the Bombay Rent Control Act is quoted below: 12(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act. (2) No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non- payment of the standard rent or permitted increases due until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882. (3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the ground of arrears of standard rent and permitted increases if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and together with simple interest on the amount of arrears of such standard rent and permitted increases at the rate of nine percent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court: Provided that, the relief provided under this sub- {15} cra2808.odt section shall not be available to a tenant to whom relief against forfeiture was given in any two suits previously instituted by the landlord against such tenant. (4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increase due to him as the Court thinks fit. Explanation I – In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of section11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. Explanation II – For the purposes of sub-section (2) reference to “standard rent” and “permitted increase” shall include reference to “interim standard rent” and “interim permitted increases” specified under sub-section (3) or (4) of section 11. Explanation III – For the purposes of this section where, a tenant has deducted any amount from the rent due to the landlord under section 173C of the Bombay Municipal Corporation Act for recovery or any water tax or charges paid by him to the Commissioner, the tenant shall be deemed to have paid the rent to the extent of deductions so made by him. 20 In the instant matter, tenant did not present any application as contemplated by Section 12(3) of the Act on the first day of hearing of the suit expressing his willingness to tender in {16} cra2808.odt Court the standard rent and permitted increases then due together with simple interest on such standard rent at the rate of 9% p.a. The tenant, however, proceeded to file a dispute under Section 11 of the Act, requesting the Court to fix standard rent, which dispute raised by the tenant, is found to be not a bona fide. The provisions of Section 12 (3) of the Act, which prohibits passing decree of eviction in the event of payment of arrears of standard rent and permitted increases on the first day of hearing by the tenant. In the instant matter, the tenant did not present even an application as contemplated by sub-section (3) of Section 12 of the Act, however, he proceeded to file an application in another proceedings, being Misc. Application No.30/1995, that too belatedly on 25.10.1996 and thereafter proceeded to deposit the rent. Explanation I to Section 12 provides that when there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act, the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in sub-section (2), he makes an application to the Court under sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court. In the instant matter, the notice was issued by the landlord on 06.11.1995, whereas, application under Section 11 itself was filed beyond one month on 11.12.1995 and tenant proceeded to present an application requesting the Court to permit him to deposit the {17} cra2808.odt amount towards rent in the month of October 1996. Thus, benefit of Explanation I of Section 12 also cannot be claimed by the tenant. Admittedly, the tenant has not paid the amount of interest on arrears as well as the cost and as such, the Courts below were justified in holding that the tenant is a defaulter in payment of rent and directing his eviction. The order directing eviction of the tenant, as has been recorded above, is also required to be confirmed on account of tenant having caused permanent damage to the tenanted premises. The findings of facts, based on appreciation of evidence placed on record, recorded by the Courts below, need not be interfered with while exercising revisional powers. So far as scope of exercise of revisional jurisdiction of this Court is concerned, reliance can be placed on the judgment of the Apex Court in the matter of Patel Valmik Himmatlal & others Vs. Patel Mohanlal Muljibhai, reported in (1998) 7 SCC 383. While referring to the provisions of Bombay Rent Act, the Apex Court has ruled that, “the mere fact that a different view is possible on reappreciation of the evidence cannot be a ground for the High Court to substitute its own