1 CIV.RA NO.309/2003 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.309 OF 2003 Ramkrishna s/o Nandlal Lahoti, Age: 52 years, Occu: Business, r/o Lahoti Bhawan, Parli-Vaijnath, Dist.Beed. ...APPLICANT (Ori.Applicant- L.R.) VERSUS 1. Subhash s/o Maleshappa Muglikar, Age: 40 years, Occu: Business, r/o. Panchsheel Nagar, Parli-Vaijnath, Dist. Beed. 2. Dileep s/o Maleshappa Muglikar, Age: 32 years, Occu: Business, r/o. Panchsheel Nagar, Parli-Vaijnath, Dist. Beed. 3. Pradeep s/o Maleshappa Muglikar, Age: 30 years, Occu: & r/o. as above. 4. Rajesh s/o Maleshappa Muglikar, Age: 25 years, Occu. & R/o as above. 5. Sow.Kasturbai w/o. Basvaraj Khane, Age: 35 years, Occu: Household, r/o. Vivekanand Nagar, Parli, Tq.Parli (V), Dist.Beed. (R.Nos.1 to 5 Ori.Respondent) 6. Omprakash s/o Nandlal Lahoti, Age: 48 years, Occu: Business, r/o c/o. Yeshoda Super Shoppee, Ulkanagari, Shankara Residency, Garkheda Parisar, Aurangabad. 2 CIV.RA NO.309/2003 7. Laxminarayan s/o Nandlal Lahoti, Age: 44 years, Occu: Business, r/o c/o M/s Bankatlal Nandlal Lahoti, Mondha Market Yard, Parli-Vaijnath, Dist. Beed. 8. Vedprakash s/o Nandlal Lahoti, Age: 39 years, Occu:Business, r/o c/o Jaipal Class Stores, Station Road, Parli-Vaijnath, Dist. Beed. 9. Jaipal s/o Nandlal Lahoti, Age: 34 years, Occu: Business, r/o Rangoli Matching Centre, Station Road, Parli-Vaijnath. 10. Sow.Kamla w/o Rameshwar Rathi, Age: 67 years, Occu: Household, r/o c/o. Prof.R.M.Rathi, "Samarpan", 32, Samarth Nagar, Aurangabad. 11. Sow.Janka alias Sheela Ramnarayan Rathi, Age: 56 years, Occu. Household, r/o. 58, Falcon Dr.Hawthom Woods, IL 60047-7559. 12. Sow Aruna Satyanarayan Janpake, Age: 43 years, Occu: Household, r/o Guru Govindsing Hospital Campus, Doctor's quarters, Nanded. 13. Sow.Karuna Satyanarayan Pallod, Age: 38 years, Occu:Household, r/o. Papnas Road, Pallod Niwas, Latur. 14. Sow.Sukhdas Shelendra Karwa, Age: 36 years, Occu: Household, r/o. State Bank Colony, Dayanand College Road, Solapur. 3 CIV.RA NO.309/2003 ...RESPONDENTS (R.Nos.6 to 14 Ori.L.Rs.of Applicant) ... Mrs. M.A.Kulkarni, Adv., for the petitioners. Mrs.Ranjana D.Reddi, Adv., for respondent nos. 1 to 5. Respondent nos.6 To 10,12 To 14 Served.; R/11 formal Party. ... CORAM: K.U.CHANDIWAL, J. DATE : 17/12/2011 *** ORAL JUDGMENT: 1. Heard extensively. The Civil Revision Application was admitted on 26.1.2007 though appears to have been filed on 8.4.2004. 2. The eviction decree recorded by the learned Rent Controller / Deputy Collector, Beed, dated 9.12.1999, against Maleshappa and respondent was questioned before the learned District Judge at Beed in Rent Appeal No.2/2000. He allowed the appeal of Maleshappa and the respondent Subhash by setting aside the judgment and decree of eviction dated 9.12.1999 and, consequently, the original petitioner / landlord is in revision, challenging legality of the orders of the learned District Judge disturbing the eviction decree. 4 CIV.RA NO.309/2003 3. The parties are referred as landlord and tenant since the relations are not in controversy. In the year 1957 the shop premises was let out to Maleshappa, the original tenant, by Nandlal, original landlord. Eviction proceedings are initiated by landlord Nandlal against Maleshappa in 1985. It took time due to several rounds of litigation to get its disposal in 1999. As stated above, this has happened due to death of Maleshappa on 6th Feb.,1991 and also of the landlord Nandlal on 6th March, 1998. Now, the legal representatives are before the Court. 4. Before the Rent Controller, since Nandlal was alive, he recorded his evidence and though Maleshappa was available he did not step in the witness box; his son Subhash entered and gave his evidence as on 11.4.1990. 5. The eviction proceedings were on two counts; (a) willful default, (b) bona fide requirement of the landlord. The proceedings are under Special Statute, the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 ( 20 of 1954) (hereinafter referred as "the said Act"). Section 15 of the said Act deals with eviction, including for bona fide requirement or on account of default in payment of rent by the tenant. The landlord Nandlal, in his evidence, 5 CIV.RA NO.309/2003 dated 14th Sept.,1988, has stated that the rent for eleven months was Rs.1001/-. Since the tenant did not remit the rentals, Civil Suit Nos. 95/1966, 141/1967, 269/1969, 280/1966, 154/1975, 205/1978 were filed and all the suits were decreed. 6. The record illustrate that tenant moved the learned Rent Controller for fixation of rent and by order dated 6.11.1970, the learned Rent Controller fixed the annual rent at Rs.700/-. 7. The decrees of arrears of rent are not controverted by the tenant. There is no challenge to the decrees of the arrears. 8. Learned Counsel representing the tenant submits, by virtue of admission of Nandlal in his evidence that the tenant has been remitting rent in the landlord's Bank account and the landlord being withdrawing the same, is a sufficient admission to dislodge claims of any default against the tenant. This assertion is difficult to digest on two counts: (a) there is nothing about the money decrees are disturbed, and (b) the remittances allegedly shown in the passbook referred even by the learned District Judge do not inform of specific credit entries by the tenant as there 6 CIV.RA NO.309/2003 are numerous entries of credits and withdrawal by the landlord from his Bank account reflected in the passbook. Even after fixation of the rent at the rate of Rs.700/- per annum, the tenant did not bother to remit the rent in the manner it was agreed upon. Even if the entries in the passbook are accepted, it is partial remittance and even not in tune to the annual payment schedule which, to repeat, tenant has invited decrees for arrears of rent, even after 1970. Landlord's admission of deposit by tenant has to be read with these accepted facts. These aspects, unfortunately, were lost sight by the learned District Judge in holding that the tenant is not at default. Under the law, if there are money decrees, the burden is on the tenant to discharge that default in arrears of rent was not willful. Though scope of revision under Section 26 of the said Act is limited, with the assistance of learned Counsel, I have read evidence of Nandlal as well as of Subhash. At no place Subhash asserts of bona fides on his part or on the part of his father, to venture the remittances of rent and that the landlord was dodging such remittances to brand him as a defaulter. The conduct shows that even after the eviction proceedings being looming large, the habit of avoiding the rent is continued, thereby inviting troubles for himself. The original record is 7 CIV.RA NO.309/2003 browsed, shows that rentals of Rs.100/- dated 8.1.1980, Rs.100, dt.11.12.1970, Rs.80, 13.5.1980, Rs.100, dated 27.3.1980 and Rs.100, dt.25.11.1980 are, intermittently, sent by the tenant, by money orders after evidence. Thus, the findings recorded by the Rent Controller are in tune with the record but the learned District Judge, on erroneous assumption that it was annual payment of rent and discarded the same on an uncanny so called admission of landlord. The observation that a notice under Section 106 of Transfer of Property Act was inevitable, and hence he brushed aside the eviction, is illegal. The reasons assigned by the learned District Judge inconceivable and contrary to the record. 9. Learned District Judge, unfortunately, lost sight of Constitution Bench judgment in V. Dhanapal Chettiar vs Yesodai Ammal (1979 AIR 1745) wherein the Constitution Bench has, in no uncertain terms illustrated that in eviction proceedings under any State Rent Control Act, giving of notice under Section 106 of Transfer of Property Act is not necessary. Inspite of this, the learned District Judge disturbed the eviction decree for want of such notice. 10. Then comes the bona fide requirement of the landlord Nandlal. As stated earlier, he too 8 CIV.RA NO.309/2003 could not bear the situation and expired on 6th March, 1988. His evidence illustrate, the premises is needed for his family members/children. After his death, the litigation is carried over by his eldest son Ramkrishna who has, by virtue of family arrangement, received the suit shop to his share and he desired to carry on business for himself as he is activating in rental premises. There is no evidence from Ramkrishna in the proceedings as the evidence is alone of Nandlal and his other witnesses, showing bona fide requirement, however, his needs having been spelt by Nandlal will not obliterate the situation. I find, after death of Nandlal, the bona fide requirement certainly will be of his eldest son. 11. Learned District Judge gave reference to business conducted by other three sons of Nandlal in three shops, however, that will not dilute / defuse claims and contentions of another son, the eldest Shri Ramkrishna. Having 2/3 premises by landlord used by his son will not dis-entitle Ramkrishna to get his premises for self and son, who is already carrying business of identical nature in rental area. Observation of the learned District Judge on this count also calls for criticism. 12. The proceedings being under special Statute, as stated earlier, Section 26 thereof 9 CIV.RA NO.309/2003 specifically inhibits certain area to travel; one of which is to re-assess the evidence, however, since there are contrary findings recorded by the learned District Judge, with the assistance of learned Counsel for the parties, I have assessed the evidence to find that the learned District Judge erred in going contrary to the record and, rather, running on his surmises and assumptions. Consequently, the order of the learned District Judge calls for interference and the order of the learned Rent Controller dated 9/12/1999, needs to be restored. Hence order: (a) Revision Application allowed. Rule made absolute with costs. (b) Heard Smt.Kulkarni and Smt.Reddi for the respective parties. Considering the plight of the tenant, as argued by Smt. Reddi, the tenant to vacate the suit premises upto 31st July, 2012. However, a regular undertaking be furnished within four weeks from today to the satisfaction of the learned Registrar of this Court. (K.U.CHANDIWAL) JUDGE AGP/309-03civra