1 (CRA67.07) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.67 OF 2007 1 Musa Imam Mujawar ) Age adult, Occupation – Service ) residing at S. No.24 Bopodi, ) Pune – 411003 (Deceased) ) Represented by his L.Rs. ) ) 1A) Smt. Khurshid Sayyed Mulla ) Age- 45 years, Occupation - ) Household, residing at S.No.24, ) Bopodi, Pune – 411003 ) ) 1B) Nadira Ramjan Mulla ) Age – 27 years, Occupation - ) Household, residing at c/o Zaan ) Hameed Mulla, Ganavesh Kagadi ) Galli, Kolhapur ) ..... Petitioners. V/s Shri Babulal Harishchandra Agarwal) Age about 47 years, Occupation - ) Business at 24 Bopodi, ) Pune – 422003 ) ..... Respondent. Mr. Mandar Limaye with Mr. S.M. Ketkar for the Petitioners. None for the Respondent. CORAM: V. M. KANADE, J. DATE : 15th June, 2011 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Petitioner. None appears on behalf of Respondent though 2 (CRA67.07) the Respondent is served. 2. Respondent is the original landlord. Petitioner is the original tenant. Landlord filed a suit for eviction against the tenant on the ground of bonafide requirement and arrears of rent. It was contended that after the suit notice was sent and served on the tenant, demand notice was sent and served on the tenant/Defendant. No payment was made within one month as stipulated by the provisions of section 21. The contention of the Plaintiff was that the tenant was in arrears of rent from 10/12/1978 onwards and, in the demand notice, he demanded an amount of Rs 2070/- by way of arrears of rent by his notice dated 7/5/1990. It was further contended that the Plaintiff had a large family and, therefore, he required the premises for his own personal use and occupation. Defendant/tenant filed his Written Statement and contended that immediately within one month from the date of service of demand notice, he had given reply to the notice and had also sent demand draft alongwith reply. It was contended, therefore, that on account of sending demand draft alongwith reply for the entire amount demanded by the Plaintiff, no cause of action had accrued in favour of the Plaintiff for filing the suit for eviction on the ground of arrears of rent. It was also contended that even after the suit was filed, money order was sent by the tenant to the landlord. However, the landlord refused to accept the money order. So far as 3 (CRA67.07) ground of bonafide requirement is concerned, it was contended that the Plaintiff owned a Chawl and also was in possession of two other rooms and, therefore, the requirement, as alleged, was not bonafide and genuine. Trial Court dismissed the suit on both counts. Lower Appellate Court, however, set aside the judgment and order passed by the Trial Court and allowed the appeal. Hence, tenant has preferred this Petition under Article 227 of the Constitution of India. 3. It is submitted that the lower Appellate Court has committed an error of law which is apparent on the face of record. Secondly, it is contended that the finding recorded by the lower Appellate Court is perverse. It is submitted that so far as ground of arrears is concerned, tenant had produced documentary evidence to show that he had procured a demand draft for the amount of Rs 2070/- from the Bank and the said documentary evidence was produced on record. It is contended that the demand draft was not encashed. It is submitted that though reply which was sent was admitted by the landlord, he did not admit that he had received the demand draft. 4. In my view, there is much substance in the submissions made by the learned Counsel for the tenant. Perusal of the cross-examination of the Plaintiff discloses that he has admitted in his cross-examination that he had received the 4 (CRA67.07) reply of the Defendant to his notice and he has further stated that he does not remember whether demand draft of Rs 2070/- was sent by the Defendant with his reply. He also admitted that he had refused the money order sent by the Defendant after filing the suit. It is pertinent to note that the Defendant/tenant had produced documents from the Bank which are at Exhibit-70. There is a letter dated 10/12/1992 of the Pune Merchant Co-operative Bank Limited which indicates that the Petitioner had obtained demand draft of Rs 2070/- from the Bank on 23/5/1990 as per Pay Slip No. 3190 and that the amount under the said draft was not paid. The lower Appellate Court after having noted the said documents and admission of the Plaintiff in the cross- examination, has held that the Defendant had admittedly not paid the rent to the Plaintiff. In my view, the said finding is patently perverse. Under section 12(3)(a), if the Defendant within one month from the receipt of demand notice, tenders the amount demanded by the landlord in the demand notice and the landlord refuses to accept it then, in that case, cause of action itself does not accrue in favour of the Plaintiff. The lower Appellate Court, therefore, has clearly committed an error of law which is apparent on the face of record, apart from the fact that the said observation made by the lower Appellate Court, to say the least, is perverse. 5. So far as the second ground of bonafide requirement is 5 (CRA67.07) concerned, the lower Appellate Court has noted the admission of the Plaintiff that he is the owner of Agarwal Chawl at Dapoli. The lower Appellate Court, however, comes to the conclusion that there is no documentary evidence to indicate that the Plaintiff is in actual possession of any room in the said Chawl, much less, the five rooms as deposed by the Defendant. Even assuming that the Plaintiff had established that his requirement was bonafide, the Court has to consider the question of hardship which would be caused. While taking into consideration the question of hardship, the Court is expected to consider to whom greater hardship would be caused. In the present case, taking into consideration the number of properties which are owned by the Plaintiff, it is apparent that if decree of eviction is not passed, greater hardship would not be caused to the Plaintiff since he has the means to obtain other accommodation. On the contrary, the same cannot be said about the Defendant. The lower Appellate Court, therefore, clearly erred in not taking into consideration the said aspect. Normally, this Court, while exercising its jurisdiction under Article 227 of the Constitution of India, is not expected to substitute the finding recorded by the lower Courts unless it comes to the conclusion that the lower Courts have committed an error of law which is apparent and, secondly, if the findings are perverse. After having perused the judgment and order of the lower Appellate Court, in my view, this is a fit case which calls for interference with the finding recorded by the lower 6 (CRA67.07) Appellate Court for the reasons mentioned hereinabove. Though the Respondent/Plaintiff is served, no appearance has been filed on behalf of the Respondent which also is an indication that the Respondent, really, is not keen in pursuing this case. 6. Civil Revision Application is, therefore, made absolute in terms of prayer clause (b). (V.M. KANADE, J.)