1 C.R.A.106.03 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICTION NO.106 OF 2003 Dinesh S/o Amratlal Thakkar, Age : 50 Years, Occup.: Business R/o Vazirabad, Nande, District Nanded. ...PETITIONER (Ori.Respondent.) VERSUS Premchand S/o Bhagwandas Wakharia, Age: 60 Years, Occup.: Business. R/o Vazirabad, Nanded, District Nanded. Died L.Rs. (Ori. Petitioner.) 1-A. Jaiyesh S/o Premchand Wakharia Age : 31, Occup: Business R/o NearAmba Mandir, Vazirabad, Nanded. 1-B. Rita W/o Bhopendra Mayani, Age: 37, Occup.Household, R/o Raipur. 1-C. Gitta W/o Pinakin Sodha, Age: 27, Occup.: Household, R/o Nagpur. 1-D. Sharmila W/o Vipul Katkoria, Age: 62, Occup. Household, R/o Vazirabad,Near Amba Mandir, Nanded. ...RESPONDENTS ... Mr.M.V.Deshpande,Advocate for petitioner. None for respondents. ... 2 C.R.A.106.03 CORAM: S.S. SHINDE, J. DATE : 23RD AUGUST, 2011 JUDGMENT : . This Civil Revision Application is filed challenging the judgment and order of eviction dated 30th June, 2001 passed by Rent Controller Nanded, in proceeding No RCA (15)-10/96 and the judgment and order dated 3rd January, 2003 in HRCA No. 16 of 2001. The applicant-tenant herein is original defendant and respondent is landlord. 2. Respondent initiated proceedings against the applicant herein before the Rent Controller under section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (For short “said Act”), on three grounds i.e.(i) willful default in payment of rent by tenant for period from January 1993 to February 1996, (ii) Alternate accommodation secured by tenant, (iii) Bonafide requirement of landlord and that the tenant has locked the suit premises and kept it out of use. 3 C.R.A.106.03 3. The applicant herein appeared before the Rent Controller and filed written statement contending therein that he is tenant of the suit premises from last ten years having tenancy over five rooms with latrine and bathroom. He denied that, he has committed any willful default. It was contended by the tenant that rent was rendered by him, but the landlord refused to accept the same. All other contentions raised by landlord are also refuted by the applicant-tenant. In additional facts, he further contended that, respondent and his family members are living in suit premises and that there is no personal bonafide requirement of landlord, as the landlord has got three blocks on ground floor, three blocks on first floor and five blocks on second floor and all of them are leased out to different tenants. It was further contended that, since the landlord started avoiding to accept the rent, hence rent was tendered by money orders. . The Rent Controller after recording evidence 4 C.R.A.106.03 and hearing the parties, by the judgment and order dated 30th June, 2001 allowed the petition for eviction on three grounds i.e. (i) Willful default in payment of rent,(ii) Tenant has secured alternate accommodation (iii) Personal bonafide requirement of the landlord. 4. Being aggrieved by the judgment and order of the Rent Controller, the applicant-herein filed Appeal before District Court, Nanded, on 10th September, 2001. The said Appeal came to be registered as HRCA No.16 of 2001. . The said Appeal was finally heard by the District Judge, Nanded and after hearing both sides on 3rd January, 2003, the appeal came to be dismissed. Hence, this Civil Revision Application. 5. Learned counsel appearing for revision applicant submits that the learned Rent Controller has failed to exercise the jurisdiction by not assigning proper reasons while deciding the issues 5 C.R.A.106.03 framed. It is further submitted that Rent Controller has committed error of law by not taking into consideration the money order receipts with endorsement of refusal to accept as proper tender of rent by the tenant and therefore it is error committed by the Rent Controller in holding tenant as willful defaulter. . It is further submitted that, the Rent Controller failed to give an opportunity to the applicant to pay or tender the rent by exercising powers conferred by clause (i) of sub-section 2 of the Section 15 of the said Act. It is further submitted that Rent Controller has committed error of law while deciding issue No. 2 by holding that, tenant has secured alternate accommodation when flat owned by tenant is at Bombay and the house is in the name of wife of tenant at Nanded. It is further submitted that District Court has exceeded its jurisdiction, while deciding the question of willful default, when it is undisputedly established that the tenant had tendered rent, but 6 C.R.A.106.03 landlord refused to accept the same. The District Court committed error of law by not considering the provisions of section 15 sub-section 2(i) of the said Act, which contemplates tendering the rent due. . It is further submitted that, it ought to have been held by the lower Appellate Court that the landlord having 10 more tenants in the said building and to accommodate his only son, all those tenants being more than necessary for the landlord and instead of securing premises occupied by other tenants the landlord has intentionally proceeded against present tenant taking undue advantage of necessity of the tenant to remain at Bombay for medical treatment. 6. Learned Counsel appearing for the applicant invited my attention to the grounds taken in the Civil Revision Application, annexures thereto and other documents placed on record and submitted that this Court may allow this Civil Revision 7 C.R.A.106.03 Application. 7. Learned Counsel appearing for applicant has tendered across the bar, the Civil Application (Stamp) No. 21637 of 2011 in Civil Revision Application with, prayer to allow the applicant to bring on record subsequent developments i.e. agreement for sale and payment of amount towards arrears of rent. 8. Though, respondent is duly served and appearance is entered by the counsel on behalf of the respondent, when the matter is finally heard none appears for respondent. 9. I have given due consideration to the submissions of the learned counsel appearing for the applicant. Prayer of the counsel for the applicant to allow Civil Application tendered across the bar at the time of final haring of the Civil Revision Application cannot be entertained. It is also relevant to mention that in absence of 8 C.R.A.106.03 the counsel of respondent it is not possible for this Court to accept the contentions in the Civil Application and further to appreciate the anexures to the Civil Application, when such application along with documents is presented by the applicant at the time of final hearing of the Civil Revision Application. 10. Respondent-landlord filed claim under section 15 of the Hyderabad Rent Control Act, for eviction of the premises i.e. M.H.No.3-1-100 ground floor two blocks consisting of six rooms from the Eastern side of the building. The said claim was filed before Rent Controller at Nanded. In the said claim application in para No.2 it is stated that, landlord has leased out suit premises before about ten years back, and the respondent is tenant of said premises owned by the respondent herein. . It is further contended that monthly rent of the suit premises was Rs.1000/-. Till 1992 rent was Rs.900/- per month. Since, January 1993 the 9 C.R.A.106.03 monthly rent was agreed to be paid by the original respondent to the original petitioner at the rate of Rs.1000/-. It is further stated that agreed monthly rent is to be paid at the end of the month. Monthly tenancy commences from 1st day of month as per English calender. It is further stated that whenever respondent has paid monthly rent to the petitioner, he passed receipts. It is further stated that in spite of several requests respondent has not paid monthly rent from January 1993 to February 1996 for 38 months total amounting to Rs. 38,000/-, therefore, respondent i.e. applicant herein is willful defaulter. It is further stated that tenant is having his own premises at Vazirabad, Nanded. He is also having alternative accommodation. It is further stated that son of the claim petitioner i.e. landlord, named, Jayesh became major. He is in need of the suit premises. The petitioner, as such, is in personal bonafide need of the suit premises. Therefore, he is entitled to evict respondent- tenant and comparative hardship was also prayed in 10 C.R.A.106.03 the claim petition. It was also contended that tenant most of the time is residing at Bombay. He is having big property at Kandiwali, Bombay. Most of the time respondent tenant is keeping the premises under lock, as he is not in need of the premises. . It is further stated that respondent is not paying the Municipal Taxes, Electricity charges and water taxes. Respondent-tenant has flatly refused either to pay the rent or to vacate the premises, and it gave rise to cause of action for filing claim petition, on 8th March, 2006. 11. Respondent/Applicant-herein had filed written statement before the Rent Controller. So far as averments in para Nos. 5 to 14 of the claim petition, the tenant merely denied the same. No any particulars are mentioned in the said written statement that for the period from January 1993 to February 1996 for 38 months by which mode payment of rent was deposited/paid to the landlord. 11 C.R.A.106.03 Though, it is strenuously argued by the counsel for the applicant that certain money orders were sent and receipts of those money orders are produced on record, in written statement there is no mention about such receipts or particulars about such receipts or particulars in respect of payment towards rent for 38 months i.e. from January 1993 to February 1996. It appears that after filing written statement by the applicant i.e. tenant, after hearing the parties three issues were framed by the Rent Controller. (i) The respondent is willful defaulter in payment of rent? (ii) The respondent is having alternative accommodation and he is keeping the suit premises closed? (iii) He requires the suit premises for personal bonafide use? 12. It further appears that oral evidence of both sides was recorded. The petitioner examined 12 C.R.A.106.03 himself. Son of the respondent-tenant came to be examined on behalf of the tenant as power of attorney. After hearing arguments for the learned Advocate appearing for the parties, all three issues reproduced herein above are answered in the affirmative. The Rent Controller has recorded findings that landlord has filed Civil suit for recovery of arrears of rent, which is pending. In the said suit, the tenant has not filed any evidence to show that, he paid rent from January 1993 to till July, 1997. Therefore, it is observed that, respondent i.e. tenant has miserably failed to prove that he has paid the rent and has not made any default in payment of rent. . It appears that, the tenant submitted before the Rent Controller that, he has paid rent till 1987, thereafter the petitioner refused to accept the rent and therefore rent was sent by money orders, however, said money orders were refused by the landlord. It is true that photo copies of 13 C.R.A.106.03 the money orders dated 21st August 1997, 9th October, 1997, 26th February 1998, and 15th November, 1998, sending rent for certain months in the year 1997 and 1998, and same came to be returned back with an endorsement ”refused to accept” and “Could not meet, period over, returned” etc. However, it appears that, revision applicant i.e. tenant has not produced on record anything for the period January 1993 to February 1996. Therefore, it appears that realizing default on the part of revision applicant i.e. tenant belatedly made attempt to send money orders that to for the year 1997 and 1998. However, as rightly concluded by the Rent Controller and District Court that for the period January 1993 to February 1996, revision applicant/tenant has made default in payment of rent and further applicant tenant has failed to prove that the said default in payment of rent is not willful default. Therefore, the findings recorded by the Rent Controller, which are confirmed by the District Court on the point of willful default needs no interference. 14 C.R.A.106.03 . Submission of the counsel for the applicant that Rent Controller ought to have exercised powers conferred by clause (i) of sub-section 2 of Section 15 of the said Act, and should have given an opportunity to the tenant to pay or tender rent is concerned, admittedly no application was filed by the tenant, therefore, it appears that Rent Controller had no occasion to consider the prayer of the tenant. Secondly, the proviso to section 15(2)(i) of the Said Act can be made applicable when Controller is satisfied that tenant committed default to pay or tender rent was not willful. However, in the present case, tenant has failed to prove that default in payment of rent is not willful default. . As stated earlier, nothing was placed on record in the nature of receipts of the money orders sent towards rent for the period of January, 1993 till February 1996. Therefore, in my opinion, in absence of application by tenant or in absence of proving fact that the default 15 C.R.A.106.03 committed in payment of rent was not willful default, there was no question of invoking provisions of section 15(2)(i) of the said Act. 13. So far as ground No.7, which was taken in the application, filed before the Rent Controller that tenant is having his own premises at Vazirabad, Nanded is concerned, while replying para No.7, the tenant has simply denied the said averment. However, after appreciation of evidence, which was placed on record, the Rent controller found that from perusal of the extract of Property Tax Assessment Register, the tenant has own residential premises bearing Municipal No. 2-12-273/2-12-221 situated at Vajirabad, Nanded which is in possession of the tenant himself. There is also evidence on record, which suggest that wife of the tenant is having flat at Bombay in their possession. Therefore, the findings recorded by the Rent Controller that respondent is having alternative accommodation for his residence at Nanded, is confirmed by the District Court 16 C.R.A.106.03 cannot be interfered in the rivisional jurisdiction. There is concurrent findings of fact recorded by both the Courts, which is inconsonance with evidence brought on record, therefore, in revisional jurisdiction no such concurrent findings of facts can be disturbed in absence of any perversity shown in those findings. Therefore, the findings recorded by the Rent Controller that the tenant is having alternative accommodation for his residence at Nanded needs no interference. 14. Third point which was framed by Rent Controller that landlord requires suit premises for personal bonafide use is concerned, the Rent Controller has recorded findings that present accommodation is insufficient for residence of landlord since his wife, father, mother and sister are staying with landlord. It is also observed by the Rent Controller that tenant has failed to prove that there are other blocks, which are available in the building are vacant, therefore, 17 C.R.A.106.03 the findings recorded by the Rent Controller that present accommodation is insufficient for the residence of the landlord and his family members and further other blocks in the building have been occupied by the tenants, and confirmed by the District Court, needs no interference. . Therefore, taking overall view of the matter, I am of the considered view, that concurrent findings of facts recorded by both Courts on the point of willful default, the revision applicant i.e tenant, is having residential premises bearing Municipal No. 2-12-273/2-12-221 situated at Vaizrabad, Nanded, which is in possession of tenant and further said premises are required for bonafide use of the landlord are inconsonance with the evidence brought on record. Therefore, viewed from any angle, no case is made out to interfere in the concurrent findings of facts recorded by the Courts below, since no any perversity is shown in 18 C.R.A.106.03 the said findings recorded. The Court has not exceeded its jurisdiction, therefore, there is no scope for interference in the revisional jurisdiction. The applicant has failed to bring to the notice of this Court that the Rent Controller or District Court has committed any illegality or irregularity, while deciding the proceedings before them. 15. In that view of the matter, Civil Revision application is devoid of any merit, same stands rejected. Rule stands discharged. Record and Proceedings be immediately send back to the concerned Court. 16. At this stage, learned counsel appearing for the revision applicant prays for continuation of interim relief granted by this Court during pendency of Civil Revision application for further four weeks. Prayer is reasonable. The effect and operation of the judgment pronounced today is 19 C.R.A.106.03 stayed for further six weeks. On expiry of six weeks period protection of six weeks granted to the petitioner will come to an end. Sd/- [S.S. SHINDE, J.] MTK