1 C.R.A.59.07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 59 OF 2007 Baburao S/o Narayanrao Terkar, Age: 76 Years, Occup.:Business, R/o Kapad Lane, Latur ..PETITIONER. (Ori. Petitioner) VERSUS Pokhardas S/o Bhanumal Khatnani, Died Through L.Rs. 1. Smt. Ambabai Pokhardas Khatnani, Age : 81 Years, Occup: Nil 2. Prabhudas S/o Pokhardas Khatnani, Age: 51 Years, Occup. Business. 3. Rajkumar S/o Pokhardas Khatnani,Age: 46 Years, Occup.: Business, 4. Ashokkumar S/o Pokhardas Khatnani, Age : 43 Years, Occup.: Business, All R/o Shivaji Chowk, Latur, District Latur. ...RESPONDENTS (Ori. Respondents) ... Mr.U.K.Patil, Advocate holding for Mr.P.G.Rodge, Advocate for petitioner. Mr.G.O.Wattamwar,Advocate for respondents. ... CORAM: S.S. SHINDE, J. RESERVED ON 23RD AUGUST, 2011 PRONOUNCED ON 6TH SEPTEMBER, 2011 2 C.R.A.59.07 JUDGMENT : . This Civil Revision Application takes exception to the Judgment and order dated 26th February, 2007, passed by the Principal District Judge, Latur , in Rent Appeal No. 05 of 2005. The revision applicant has also prayed that impugned judgment and order be set aside and judgment and order dated 11.04.2005, passed by the Sub- Divisional Officer and Rent Controller, Latur, in File No. 1988/RCA/A/7 may kindly be restored. 2. Revision applicant herein is landlord and Deceased Original-respondent was tenant of the suit premises. Revision applicant will be hereinafter referred to as ‘LandLord’ and Respondent herein will be referred to as ‘Tenant’ for convenience. . The landlord sought possession of the suit premises, which is shop situated at Latur from the tenant. According to the landlord, there was agreement of rent of the suit shop between 3 C.R.A.59.07 himself and the tenant. The last deed of rent was dated 1st November, 1986. The tenant agreed to pay the rent at the rate of Rs.400/- per month and same to be paid till within first five days of every month. . The tenant has paid rent to the landlord till September, 1987, as per the agreement. Since October, 1987 till March, 1988 rent was neither paid nor tendered by the tenant. No fresh “Rent- Note” was executed between the landlord and tenant. . The landlord, therefore, had given notice to the tenant on 20th January, 1988 and demanded the rent. The tenant replied the notice on 22nd February, 1988. He informed the landlord that as there is dispute of ownership of the suit premises, he could not tender the rent. He also requested the landlord to show proof of the ownership of the suit preemies before paying any rent by him. 4 C.R.A.59.07 3. The landlord purchased the suit shop from Bhamabai Atmaram Hanchate. The suit shop was in possession of the tenant, as tenant, at that time also. The landlord had given information to the tenant about his transaction. Thereafter, “Rent- Note” came to be executed in between the landlord and tenant in the year 1986. The tenant was paying the rent to the landlord i.e. revision applicant till September, 1987. Since, the tenant denied the ownership of the landlord over the suit property, it is case of the revision applicant that he is entitled to get possession of the suit premises from the tenant. 4. The landlord again issued a notice on 07.03.1988 requesting the tenant to pay the rent. The tenant has not paid rent on the demand, within stipulated period of the notice. It is case of the landlord that even the said notice was not replied by the tenant. The landlord, therefore, filed suit for possession of suit shop, situated at Kapad Lane having Municipal House No. 23:124. 5 C.R.A.59.07 5. The tenant resisted the claim and he stated that there was rent agreement between himself and landlord and he agreed to pay the rent monthly. However, relatives of the landlord filed suit in the Civil Court at Latur bearing R.C.S.No. 1044 of 1983 for ownership of the suit shop. Both the parties claiming ownership, gave notices to the tenant, claiming their ownership and asking him to pay the rent to them. Since, there was dispute about ownership, the tenant denied ownership of petitioner over the suit premises. 6. As there was dispute about ownership, the tenant intimated to the landlord and also his relative that rent would be deposited in the Court itself. The tenant deposited the rent of the disputed shop before the Rent Controller on 04.04.1988. The tenant deposited arrears of rent on 15.4.1988 and on 25.04.1988 and he continued to deposit the rent before the District Court thereafter. It is case of the tenant that the said rent, which was deposited by him has been 6 C.R.A.59.07 withdrawn by the landlord. Therefore, the tenant asserted that, he is not willful defaulter and ultimately prays that eviction petition filed by the landlord deserves to be dismissed. 7. The landlord has filed his own affidavit in support of his petition for eviction. As against it, the tenant examined his son, as power of attorney in support of his claim. The Rent Controller has accepted the claim of the landlord holding that the tenant is willful defaulter and landlord is entitled to possession of the suit shop. The Rent Controller allowed the petition of the landlord and passed the order of eviction of tenant. 8. Being aggrieved by the Judgment and Order of the Rent Controller, the tenant filed Appeal against the order of eviction. The Principal District Judge Latur, after recording the evidence and hearing the parties at length framed points for consideration/determination and by his 7 C.R.A.59.07 Judgment and order dated 26.02.2007 allowed the appeal filed by the tenant i.e. respondent-herein. The order passed by the Rent Controller was quashed and set aside and petition for eviction was dismissed. Hence, this Civil Revision Application. 9. The learned counsel appearing for the revision applicant submits that on 01.11.1986 the tenant executed rent note (HkkMsfpBBh ) in favour of one Bhamabai Hanchate. Also Rent notes were issued by the tenant on 16.11.1982, 05.11.1983, 25.10.1984, 01.11.1986 and 22.10.1987, wherein monthly rent was to be paid in advance before 1st to 5th day of every calender month. It is further argued that the tenant did not pay the rent as per rent notes from October 1987 onwards and hence notice was issued to the tenant by landlord on 20.01.1988 for payment of arrears of dues and rent payable. Such notice was issued by RPAD. It is further submitted that on 22.02.1988 the said notice was replied by the tenant denying the payment of rent on account 8 C.R.A.59.07 of ownership of the landlord and further seeking explanation from landlord to prove the ownership alleging that rent is alleged to be payable six monthly/yearly and he is not defaulter. . It is further argued that on 17.03.1988 the landlord further issued notice to the tenant pointing out that though tenant has executed “Rent Notes” and paid monthly rent till October, 1987, further denial to pay the rent is nothing but a willful default and therefore there is right in favour of the landlord to bring tenancy to an end. It is argued by the learned counsel for the landlord that the landlord pointed out that he has filed Civil Suit bearing R.C.S.No. 1044 of 1983 against Vishwanath Tandale. In the said suit tenant filed affidavit on 18.09.1984 and denied ownership of the petitioner-landlord, hence tenant who denied ownership of the landlord should be rightly evicted as per section 15(2)(vi) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (Hereinafter for short “Said 9 C.R.A.59.07 Act”). . It is further submitted that tenant did not reply to the notice of eviction and therefore, landlord was constrained to file eviction application/petition under section 15(2)(i) and 15(2)(vi) of the said Act, before the Rent Controller, at Latur being file No. 88/Rent/CR/7 on 3rd June 1988. It is submitted that the Rent Controller on 15.02.1996 has allowed the eviction petition, however, the District Court in Rent Appeal No. 03 of 1996 set aside the order of the Rent Controller and matter was remanded back to the Rent Controller by order dated 21st October, 2000, with direction to decide the issue of willful default etc. On 11.04.2005, Rent Controller allowed the petition of the landlord and tenant was directed to evict premises within 30 days. The said order is set aside by the District Court, without considering that the tenant failed to pay the monthly rent from October, 1987 onwards, in spite of the “Rent-Note” 10 C.R.A.59.07 and further denied monthly rent by filing reply to the notice of landlord. 10. According to the learned counsel for landlord, the case in hand squarely covers under the provisions of Section 15(2)(i) of the said Act. It is further submitted by the counsel for the landlord that denial of ownership by the tenant in his reply dated 22nd February, 1988 is squarely cover under section 15(2)(vi) of the said Act. . It is further submitted that affidavit filed by the tenant on 18.09.1984 in R.C.S.No. 1044 of 1983 denying ownership of the landlord to favour Vishwanath clearly shows that tenant has intentionally denied the ownership of the landlord with intention to avoid rent and hence valid ground to evict the tenant under section 15(2)(vi) of the said Act. It is further argued that when District Court by framing issue held that as per rent agreement rent was to be paid monthly, hence 11 C.R.A.59.07 failure to pay the same from October, 1987 till March 1988, by the tenant comes under willful default as per the provisions of said Act. As there is no evidence from the tenant to prove that he has paid rent from October, 1987 to March, 1988. . It is further submitted that the District Court has committed error by giving contrary findings that the tenant-respondent is not willful defaulter in spite of the fact that the tenant admitted in his cross-examination that he did not pay monthly rent for the period of six months prior to 18.04.1988. It is further submitted that observations of the District Court that “even though before 15.04.1988 no rent was paid continuously for six months it can not be styled as a willful default”, such observations are contrary to the evidence on record. 11. It is submitted that once District Court arrived to the conclusion that the tenancy was of 12 C.R.A.59.07 monthly in nature, in that case the provision of Section 15(2)(i) of the said Act, is applicable to the case in hand, as per the evidence on record. It is further submitted that the District Court committed error in allowing the appeal of the tenant when admittedly tenant was in default of payment of monthly rent from October, 1987 to March, 1988. The District Court should have considered that depositing rent by tenant before Rent Controller under section 14(3) of the said Act, on 15.04.1988 and 25.04.1988 does not cover willful default which was committed from October, 1987 to March, 1988. It is further submitted that the tenant has deposited rent before the Rent Controller on 15.04.1988 and 25.04.1988. . It is submitted that, admittedly the application by the landlord before the Rent Controller was for eviction under section 15(2)(i) and 15(2)(vi) of the said Act, as such findings of the District Court is not correct and not applicable to the eviction proceeding. It is 13 C.R.A.59.07 further submitted that, the District Court has proceeded on wrong assumption that the eviction proceeding of the landlord is actually for the recovery of rent, though the proceeding initiated by the landlord was for eviction on the point of willful default and denial of ownership by the tenant. It is further submitted that tenant has also admitted that he is having wholesale cloth store in Gurukrupa Market, Latur. He is also having three storied building in Kapad Lane and having business of clothing shop. . It is submitted that, son of the tenant -respondent Pokhardas, by name Prabhudas has adduced evidence before the Court, as a power of attorney and has admitted that they are having four business and having sufficient premises. It is submitted that, the said witness has also admitted that he has not paid the rent to the landlord in pursuance to the notice dated 20.01.1988 for payment of rent due from October 1987 to April, 1988. It is contention of the 14 C.R.A.59.07 counsel that, this evidence is not taken into consideration by the District Judge. It is submitted that observation of the rent Controller that the tenant is willful defaulter on the point of section 15(2)(i) and section 15(2)(vi) of the Act requires to be upheld by this Court. 12. The learned counsel for the revision applicant in support of his submissions placed reliance on the reported judgment in the case of Shrikrishna Oil Mill, Latur Vs. Radhakishan Ramchandra, reported in 2000(2) MH.L.J.644 and submitted that once default is proved by landlord burden to proof that he is not a willful defaulter is on tenant. Payments made during pendency of proceedings cannot be considered for deciding whether he is a willful defaulter or not a willful defaulter. . Learned counsel also invited my attention to other aspects dealt with in above mentioned judgment and submitted that, said judgment is 15 C.R.A.59.07 squarely applicable in the facts of the present case. Learned counsel further invited my attention to the reported judgment of the Hon’ble Supreme Court in the case of Mangilal Vs. Sugan Chand Rathi (deceased) and after him his Heirs and Legal representatives and another reported in AIR 1965 S.C.101(1), and in particular para No. 6 of the said judgment. . Learned counsel further placed reliance on the reported judgment of this Court in the case of Nanded Wine Mart through its partners Vs. Ratnashaw Dishaw Jilla and another Vs. Suresh Shankarlal Dhoot, reported in 2000(1) Mh.L.J,315 and submitted that, default in payment of rent by tenant, burden to prove that default was not willful is on tenant. Learned counsel also invited my attention to para NO.13 of the said Judgment and submitted that practice of payment of accumulated rent cannot be accepted by way of explanation or defence. Learned counsel also 16 C.R.A.59.07 invited my attention to reported judgment of this Court in the case of Sureshchandra Bagwantrao Dhiphode Vs. Uttam Dattatrya Jadhav and others, in Civil Revision Application No. 86 of 2004 decided on 05 th October, 2010. 13. Learned counsel appearing for the applicant relying on the said judgments submitted that, when rent controller has held in favour of the landlord on both counts i.e willful default and bonafide requirement, it was incumbent upon the appellate Court to record cogent and sufficient reasons while reversing those findings. 14. The learned counsel for the revision applicant also invited my attention to the grounds taken in the revision application and annexures thereto, the original record received from the Court below and submitted that this revision application deserves to be allowed. 15. On the other hand, learned counsel 17 C.R.A.59.07 appearing for tenant i.e. respondent herein submitted that tenant has paid rent to the landlord till September, 1987 as per agreement, but from October, 1987 to till March 1988, rent was not paid by the tenant and no fresh “Rent- Note” was executed between the tenant and landlord. The Landlord gave notice to the tenant on 20.01.1988 and demanded the rent. The said notice was replied on 22nd February 1988. It is further submitted that the landlord himself has stated that R.C.S.No. 1044 of 1983 about ownership of the suit shop is filed by him. . It is submitted that the parties in the said suit are claiming ownership and both of them gave notice to the tenant claiming their ownership and asking him to pay rent to them. Therefore, rent is deposited in the Court with permission on 04.04.1988. It is submitted that one Vishwanath Tandale issued notice to tenant for demanding rent on 06.11.1987 with claiming ownership over the suit shop. 18 C.R.A.59.07 . It is submitted that the District Court has rightly decided the aspect wherein in absence of claim of the landlord for eviction of bonafide personal use, Rent Controller should not have given finding about the said aspect. Learned counsel invited my attention to para No. 8 of the Judgment of the District Court and submitted that, the District Court has rightly recorded that order of Rent Controller in respect of bonafide need/requirement was prima facie illegal and which was beyond scope of eviction petition. . It is submitted that the Rent Controller has not taken into consideration that there was Civil Suit being R.C.S.No. 1044 of 1983 pending before the Civil Court. One Vishwanath Tandale was claiming his ownership over the suit premises. Vishwanath Tandale has also filed affidavit in the said proceedings before the Rent Controller for adding himself as party to the said proceeding with permission of Rent Controller and in his affidavit he contended that the petitioner i.e. 19 C.R.A.59.07 revision applicant is not owner of the shop. . It is submitted that, the landlord/revision applicant himself has admitted in his cross examination that there was dispute in between himself and Vishwanath Tandale about ownership of the suit shop and suit was filed by Revision applicant against Vishwanath Tandale. . It is further submitted that because of the said proceedings between Vishwanath Tandale and Revision applicant, the tenant deposited the rent in the Court, as tenant was aware about the said proceedings. It is submitted that respondent tenant had asked the landlord to prove his ownership before paying any rent, which was not amounting disclaimer of the title forfeiting the tenancy of these respondents over the suit shop. Therefore, according to the counsel for the respondent, order of Rent Controller has rightly set aside by the District Court. 20 C.R.A.59.07 16. Learned counsel invited my attention to para NO. 15 of the Judgment of the District Court and submitted that on the date, the suit for eviction was filed there was no rent due towards respondent-tenant. On the contrary, respondent- tenant has moved an application before Rent Controller for allowing to deposit the rent in the Court as there was dispute about the ownership of suit shop between the petitioner and Vishwanath Tandale. It is submitted that the tenant has paid rent and deposited the same in the Court on 15.04.1988 and 25.04.1988, after taking due permission from the Rent Controller. . Learned counsel invited my attention the cross-examination of landlord where he has admitted that he has withdrawn rent deposited by the tenant. It is further argued that, thereafter tenant has paid rent every year and the landlord has received the rent till Diwali 2003 and he has not filed suit for recovery of rent. It is further submitted that thereafter tenant denied to 21 C.R.A.59.07 deposit the rent. Learned counsel further submitted that, as directed by this Court, the rent is being deposited regularly in the Court. . It is further submitted that, in para No. 19 of the Judgment, the District Court has rightly held that till filing of the suit there was no default in the payment of rent by the tenant and there was no rent due towards tenant on the date of suit. There was no case of the landlord to claim eviction of the tenant on the ground of willful default and suit itself is without cause of action. 17. It is further submitted that in para No.23 of the judgment, the District Court has rightly held that the landlord has denied about dispute of ownership of the suit. The landlord has admitted in his cross-examination that tenant has deposited the rent till Diwali-2003 in the Court and he has not filed suit for recovery of rent against the tenant and there was no dispute before and after 22 C.R.A.59.07 filing of the suit about payment of the rent. It is further submitted that the tenant deposited the rent in the Court and said fact is also stated by tenant in his reply to the notice dated 17.03.1988. It is further submitted that there is no any evidence on record to prove that tenant ever denied or refused to make any payment of rent. It has also submitted that there is no dispute about payment of rent from 1982 till the date of suit. Respondent-tenant never denied or refused to pay the rent to petitioner,therefore, he is not willful defaulter. It is further submitted that while filing affidavit before this Court the tenant has placed on record the receipts of payment rent to show that entire rent payment has been paid even during pending proceedings before this Court. 18. Learned Counsel invited my attention to the reported judgment of the Supreme Court in the case of M/s Shrikrishan Oil Mill Vs. M/s Radhakrishan Ramchandra reported in AIR 2002 S.C.562 and 23 C.R.A.59.07 submitted that if rent deposited by the tenant in the Court was accepted by landlord, subsequent petition by landlord for eviction of tenant on ground of default in payment of rent is not maintainable. . Learned counsel further placed reliance on the reported judgment of the Hon’ble Supreme Court in the Case of S. Sundaram Pillai etc Vs. V.R. Pattabiraman reported in AIR 1985 SC 582(1) and submitted that if entire arrears paid by tenant within notice period, in that case suit for eviction on the ground of past conduct of the tenant is not maintainable. . Learned Counsel further placed reliance on the judgment in the case of Motilal S/o Chandulal Darak Vs. Abdul Mazid S/o Taz Mahammad Kacchi reported in 1981 Bom.C.R. 817 and submitted that the scheme of Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 is to prevent unreasonable eviction of tenant by the landlord. 24 C.R.A.59.07 Learned Counsel further placed reliance on the reported Judgment of the Supreme Court in the case of Kannan Vs. Tamil Tahlir Kalvi Kazhagam reported in 1998(5) SCC 21 and submitted that if there is dispute regarding person entitled to receive the rent as there was several claimant, as the tenant was having bonafide doubt he filed application for deposit of rent and if he started depositing the rent with prescribed authority held it amounted to valid deposit of rent under the law. . Learned counsel also placed reliance on the reported judgment of the Supreme Court in the case of M. Naresh Kumar Vs. B. Naglaxmi reported in 1998(5) SCC 331 and submitted that even if rent is paid after every two months or three months collectively and if the same was being accepted by the landlord without protest and there was practice between the parties to pay and accept the rent collectively for two or three months, therefore, it can not be said that there was willful default in payment of rent. 25 C.R.A.59.07 19. Learned counsel also placed reliance on the reported judgment in the case of Arun Harendra Deotale Vs. Narhar S.o Mahadeorao Pande reported in 2004(1) ALL M.R.536 and submitted that revision application is devoid of merit and same deserves to be dismissed. 20. I have heard learned counsel appearing for revision applicant and respondent at length. With assistance of the learned counsels for the parties, I have also perused the original record made available for perusal. Two main points, raised by the revision applicant i.e. landlord, are that, respondent-tenant committed default in payment of rent for period October, 1987 till March 1988 and therefore he is willful defaulter and secondly denial of ownership/title of revision applicant by respondent/tenant in respect of suit premises. . According to revision applicant, the provisions of section 15(2)(i) and (vi) of the Act 26 C.R.A.59.07 are attracted in the present Case. Provision of section 15(2)(i) reads thus- 15.(1) ... (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the controller, after giving the tenant a reasonable opportunity of showing cause against the application is satisfied. (i) that the tenant has not paid or tendered the rent due by him in respect of the