SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5988 OF 1988 Shri Shyam Bhagwandas Kewalramani since deceased by his legal heirs. 1) Mrs.Mohani Shyam Kewalramani 2) Miss.Lalita Shyam Kewalramani 3) Miss.Pramila Shyam Kewalramani 4) Mr.Vinod Shyam Kewalramani All residing at : 229-330, Mangalwar Peth, Pune-411 011 ...Petitioners Versus Mr.Murli Kisanchand Melwani, since deceased by his legal heirs: 1(A) Dilip Murli Melwani, Age 38 years, Occ.Profession 1(B) Anand Murli Melwani, Age 35 years, Occ.Profession 1(C) Neelu Murli Melwani @ Neelu Anil Sonawane, Age 36 years, Occ.Housewife All R/o. 25/2, Shivaji Nagar, Tanaji Wadi, Guru Kunj Apartment, PUNE 411 005. ...... Mr.Umesh Mankapure for Petitioners. Mr.S.M.Kamble for Respondents. Mr.Dilip Murli Melwani, Respondent No.1(A) present in-person. : 2 : ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. SEPTEMBER 10, 2008. JUDGMENT : JUDGMENT : JUDGMENT : 1. Counsel for the Petitioners assures to carry out amendment in the course of the day. 2. Mr.Kamble, Advocate pressed for discharge, as the Petitioner No.1(A) Mr.Dilip Murli Melwani, wants to appear in-person. 3. In the circumstances, the appearance of Mr.Kamble, Advocate be effaced from the record, as he is discharged. 4. Heard both the parties. 5. This Writ Petition by the tenant under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the IVth Additional District Judge, Pune dated 30th September 1988 in Civil Appeal No.476 of 1984. : 3 : Briefly stated, the Respondent/landlord, in respect of the suit premises, instituted Suit for recovery of possession thereof on the ground under Section 13(1)(b) and Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as ‘the Act of 1947’). 6. The Trial Court, by Judgment and Decree dated 13th March 1984 decreed the Suit on both counts in favour of the Respondent/Plaintiff. Against the said decision, Petitioner/tenant carried the matter in Appeal. The Appeal came to be partly allowed by the impugned Judgment and Decree. In that, the Appellate Court allowed the Appeal preferred by the tenant to the extent of ground under Section 13(1)(b) of the Act of 1947, however, the Appeal filed by the tenant in respect of ground under Section 12 of the Act came to be rejected. In other words, both the Courts below have concurrently opined that the Petitioners are liable to be evicted from the suit premises on the ground of wilful default. The present Writ Petition questions the correctness of the said concurrent view taken by the two Courts below. : 4 : 7. At the outset, it needs to be mentioned that it is not in dispute that the original Respondent had issued demand notice to the Petitioners on 23rd March 1982 calling upon the Petitioners/tenants to pay the arrears of rent for a period of over six months preceding the date of issuance of the notice. The fact asserted by the Respondent that the tenancy in respect of the suit premises was monthly tenancy and the rent was payable monthly is not in issue. It is also not in dispute that the demand notice was duly received by the tenant and the tenant did not respond to the said notice at all either by paying the outstanding dues demanded in the suit notice or for that matter, raising dispute of standard rent in respect of the suit premises within one month from the receipt thereof. The only contention raised on behalf of the Petitioners/tenants was that the original Respondent was not the landlord but one Rahimuddin to whom the Petitioners had paid rent. This was the core issue considered by the Trial Court as well as the Appellate Court. : 5 : 8. Both the Courts below have analysed the entire oral as well as documentary evidence on record as well as the pleadings of the parties in the context of this issue and have answered the same against the tenant. The lower Court has adverted to the oral evidence of PW 3 who was at the relevant time partner in business conducted from the suit premises in the name and style as ‘Mechana Echoppe’. He has stated that the premises were let out to him by the original Respondent in the year 1964, which were used for conducting the partnership business in the name of ‘Mechana Echoppe and Petroleum Equipment Service Organisation’. He has then deposed that the partnership was dissolved in November 1970. After dissolution of the partnership, the premises were continued to be used by the other partner for conducting business in the name of Mechana Echoppe. The said PW 3 has proved document Exhibit 34 dated 27th December 1967 which is in the handwriting of the Defendant himself. The said document mentions that amount of Rs.3,000/- (Rupees Three Thousand) was paid to the Plaintiff in presence of PW 3. The Plaintiff signed the said document Exhibit 34 in : 6 : his presence. The said amount was paid by the Defendant/Petitioner herein to the Plaintiff/original Respondent as advance for rent in respect of the suit shop. He has also spoken about the endorsement made by him in his own handwriting stating that rent of Rs.950/- (Rupees Nine Hundred Fifty) was adjusted towards the end of July 1960 and the balance amount of Rs.2,050/- (Rupees Two Thousand Fifty) was paid to the Defendant (Petitioner). This was contemporaneous record which has been duly proved by the Plaintiff to indicate that the Plaintiff was the landlord in respect of the suit premises. Besides this document, the Court below have adverted to the correspondence entered by the Defendant with the Court Receiver such as Exhibits 56, 57 and 58, wherein the Defendant asserted that the advance amount of Rs.3,000/- (Rupees Three Thousand) was paid to the Plaintiff/landlord in respect of the suit shed on assurance of the Plaintiff that the said amount would be adjusted towards the future rent by him. This is clear admission of the Defendant No.1. accepting the status of the Plaintiff as landlord in respect of the suit : 7 : premises. There is another contemporaneous record relied upon by the Court below to answer the issue against the Petitioner/Defendant. The Court below has also considered the fact that attornment letters were given to the tenants. The list of tenants was mentioned to the Court Receiver along with the particulars of rent received and to be recovered including suit shed which was used for business in the name of Mechana Echoppe. The Courts below, besides abovesaid evidence, have considered other tangible material to answer the issue against the Petitioner as can be discerned from the Judgment of the Appellate Court from Paragraph 19 onwards. It was seriously contended before the lower Court that the real landlord in respect of the suit premises was one Mr.Rahimuddin. To support that stand, the Petitioners/Defendants have relied on receipt Exhibit 136 dated 15th April 1981. However, the Court below has rightly noted that the said document would be of no avail to the tenant as Rahimuddin has not been examined and made available for cross-examination. Besides, the Court below has adverted to other circumstances including the fact that the claim of Rahimuddin to : 8 : be owner of the suit property has been negatived right up to this Court. The bogie of Rahimuddin being the landlord was raised by the Defendant solely on the basis of Exhibit 136 which is receipt dated 15th April 1981. On the other hand, the Courts below have found that there was substantial evidence to which reference has been already made in the earlier part of this order and highlighted by the Appellate Court in the impugned Judgment which would belie the claim of the Defendant. Instead, the inevitable conclusion to be deduced from the said evidence is that the Defendant was regularly paying monthly rent to the Plaintiff in the past. Besides, the Defendant himself wrote to the Court Receiver asserting that he has already paid his dues to the Plaintiff in the past and was entitled for adjustment of the said amount. All these circumstances and evidence taken into account by the two Courts below clearly establish the fact that there was relationship of landlord and tenant between the Plaintiff and the Defendant. 9. Assuming that Rahimuddin claims to be the owner of the suit property, the fact remains that : 9 : the Plaintiff was the landlord in respect of the suit premises and had let out the same to Kailash Lad, who in turn allowed the suit premises to be used for partnership business in which the Defendant was one of the partner. After the dissolution of the said partnership business, the Defendant continued to occupy the suit premises and conducted business in the same name and also continued to pay monthly rent to the Plaintiff. These are strong circumstances taken into account by the Courts below to hold that the Petitioners were the tenants and the Respondent was the landlord in respect of the suit premises. This concurrent finding of fact recorded by two Courts below is founded on tangible oral as well as documentary evidence on record. There is no reason to doubt the correctness of the said finding of fact reached by the Court below. 10. It is not open for this Court in exercise of writ jurisdiction to overturn such well considered opinion of the two Courts below on question of fact. No manifest error has been brought to my notice which will persuade me to take : 10 : a different view. Assuming that another view is possible, that cannot be the basis for interference in exercise of writ jurisdiction under Article 227 of the Constitution of India unless the Petitioner was to demonstrate the perversity in the approach of the Courts below or for that matter, that the Courts below have committed manifest error or error apparent on the face of the record which would cause serious miscarriage of justice. The Petitioners are not in a position to make good any of these aspects. 11. Taking overall view of the matter, therefore, I find no reason to depart from the conclusion reached by the two Courts below in decreeing the suit against the Defendant on the ground of wilful default within the meaning of Section 12 of the Act of 1947 in the fact situation of the present case. Hence, this Petition fails. The same is dismissed. A.M.KHANWILKAR, J.