1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No.5240/2007 Chandrabhan S/o Janjilal Ahuja Vs. Dinanath S/o Umaji Pathrabe Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. CORAM : A.P. LAVANDE, J. DATED : 07/08/2008. Heard Mr. Purohit, learned counsel for the petitioner and Mr. Shelat, learned counsel for the respondent. By this petition, the petitioner challenges the judgment and decree dated 9.8.2007 passed by the Ad-hoc District Judge-9, Nagpur in Regular Civil Appeal No. 518/2006 dismissing the appeal preferred by the petitioner against the judgment and decree dated 20.9.2006 passed by the Additional Judge, Small Causes Court , Nagpur. The petitioner is the tenant of the landlord. The respondent filed Regular Civil Suit No. 98/2006 for eviction and recovery of rent and possession of the tenanted premises under Section 16(1)(g) of Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the Act”). The suit 2 premises admeasuring 11 ft x 14 ft on the ground floor of the house of the respondent bearing Municipal Corporation No. 201-D situated at Itwari, Nagpur were let out to the petitioner and he was paying monthly rent of Rs. 500/-. It was the case of the respondent that his family consisted of two sons and three daughters and two daughters were married and since his children were grown up, he was in need of premises occupied by the petitioner. It was the case of the respondent that he was in possession of 390 sq. ft. which was not sufficient for accommodation of all the members of the family. The suit was contested by the petitioner and upon appreciation of the evidence led by the parties, the trial Court decreed the suit holding that need of the respondent for additional accommodation was bona fide. Against the said decree, appeal was preferred, which has also been dismissed. Aggrieved, the petitioner has approached this Court invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. After filing of the petition, the petitioner filed an application for amendment which was allowed by this Court. In the said amendment application, the petitioner urged that the suit premises fall in slum area and since the 3 suit in question was instituted without obtaining prior permission of the Competent Authority as required under Section 22 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (“the Slum Act” for short) the impugned orders passed by both the Courts below are liable to be set aside. The respondent has filed reply disputing that the suit premises fall within the slum area and has further contended that the Slum Act is not applicable. At the outset, Mr. Purohit, learned counsel for the petitioner submitted that the petitioner after filing of the Writ Petition learnt that the suit premises fall within the slum area and, therefore, he is entitled to urge this point in support of his contentions in the petition. According to Mr. Shelat, learned counsel for the respondent, the petitioner is not entitled to urge this point for the first time in this Court since he could have taken this point before the lower Courts. He further submitted that the point raised is not pure question of law but it is a mixed question of law and facts, for which the parties are entitled to lead evidence. According to Mr. Shelat, the petitioner having not taken this point before the Courts below, he is not entitled to 4 urge this point for the first time in this Court and the same has been taken only to delay the proceedings. Per contra, Mr. Purohit, learned counsel for the petitioner submitted that since the point goes to the root of the matter and touches jurisdiction of the authorities under the Act, the petitioner is entitled to urge this point for the first time in the writ petition. In support of this submission, Mr. Purohit, learned counsel for the petitioner relied upon the following authorities:- (i) Chief Engineer, HYDEL Project and others vs. Ravinder Nath and others : 2008 (3) Mh. L. J. 65; (ii) Surya Dev Rai vs. Ram Chander Rai & others : AIR 2003 SC 3044; (iii) Gopikisan Agarwal vs. District Judge, Bhandara and others :1966 Mh.LJ. 321; and (iv) Government of Andhra Pradesh and others vs. Karri Chinna Venkata Reddy and others : AIR 1994 SC 591. It is pertinent to note that the petitioner claims that after filing of the petition, he came know that the suit premises are situated within the slum area and, therefore, the proceedings for eviction from the suit premises were not maintainable. Had the petitioner been 5 diligent during pendency of the proceedings before the lower Courts, the petitioner could have well taken this point before the Courts below so as to enable the Courts to adjudicate upon the plea. The petitioner having not taken this point before both the Courts below without any justifiable cause, he cannot be permitted to contend that the premises are situated within slum area and the orders passed by the Courts below are liable to be set aside for the first time in this Court. The point urged by the petitioner regarding applicability of Slums Act is not a pure question of law but mixed question of law and fact inasmuch as the respondent has denied that the suit premises fall in the slum area and, therefore, in order to adjudicate this point, evidence has to be necessarily led by both the parties. I do not find that the petitioner has made out any ground for permitting him to raise this point for the first time in this Court. Insofar as the authorities cited by Mr. Puranik are concerned, I do not deem it necessary to refer to them inasmuch as in none of those authorities the issue involved was identical with the issue involved in the present petition. No doubt, it is well settled that if the point of law goes to the root of the matter and can be spelt out on the basis of the pleadings and the materials on 6 record, a party is entitled to raise this point for the first time in this Court. This is not the situation in the present case. It cannot be said that on the basis of materials on record, both the Courts below had no jurisdiction to decide the dispute. I am, therefore, inclined to permit the petitioner to urge this point taken in the petition. Insofar as the merits of the matter are concerned, according to the petitioner, the petitioner has suppressed the facts in the application inasmuch as although the respondent is in possession of 780 sq. ft. of area, he has suppressed this fact and stated that he was in possession of only 390 sq. ft. Mr. Shelat has invited my attention to the written statement wherein the petitioner has clearly admitted that the averment made in the plaint that the respondent is in possession of area 390 sq. ft. Having admitted this fact, the petitioner is not entitled to urge that there is suppression of facts by the respondent. Moreover, a careful reading of cross-examination of the respondent discloses that he admitted that he is occupying 390 square feet area on the first floor and equal area is available on the ground floor but, nowhere it has come on record that the respondent is in possession of the premises on the ground floor. Therefore, the 7 submission of Mr. Puranik that the respondent has suppressed the material facts has no merit. Insofar as bona fide need of the respondent and comparative hardship are concerned, both the Courts below have concurrently held that the need of the respondent is bona fide and having regard to the status of the respondent vis-a-vis of the petitioner, more hardship would be caused to the respondent, if the relief is not granted. I do not find any perversity in the findings given by the trial Court on these issues. It cannot be said that the findings given by the Courts below are based on no evidence or that both the Courts have misconstrued the evidence led by the parties on this issue. For the reasons aforesaid, I do not find any ground to interfere with the impugned orders passed by both the Courts below. Hence, the petition is rejected. At this stage, Mr. Purohit, learned counsel for the petitioner states that the petitioner may be granted liberty to urge the ground regarding maintainability of the suit due to applicability of the Slum Act in the executing proceedings. The question of granting liberty after having dismissed the petition does not arise. Needless to mention that a party is entitled to 8 take all possible defences available in law in the proceedings filed against him. JUDGE Ambulkar