1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.87 of 2009 Date of decision:24-11-2010 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/87-09cra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.87 OF 2009 Shri Narendra Damodar Gadgil, Age 60 years, Occu: Business, r/o. Block No.23 A, Shaskiy Karmachari, Sahakari Gruh Nirman Sansha Maryadit, Mahabal Colony, Jalgaon. ...PETITIONER (Orig.Defendant) VERSUS 1. Shri Abhay Sudhakar Kulkarni, Age 30, Occu: Service. 2. Shri Amol Sudhakar Kulkarni, Age 36, Occu. Service, Through alleged power of attorney Shri Shashikumar Gokulnath Joshi, Age 72, Occu: Retired, R/o. 9-B, Wani Building, Rest House road, Pachora, Tal.Pachora, Dist. Jalgaon. ...RESPONDENTS (Orig.Plaintiffs) ... Mr. S.P.Brahme, Adv., for petitioner. Mr.P.M.Shah, Senior Counsel, for Mr.P.S.Shendurnikar, Adv., for Respondent nos.1 and 2. ... CORAM: K.U.CHANDIWAL, J. DATE :24/11/2010 *** 3 JUDGMENT: 1. Heard finally. 2. This is tenant's revision, challenging concurrent findings recorded in Regular Civil Suit No.154/1999 by the learned Civil Judge, Junior Division, Jalgaon, and Regular Civil Appeal No.112/2007, by the learned District Judge, Jalgaon. 3. The eviction decree against the tenant is on two counts; default ( failure to pay the rent) thereby committing breach of Section 12 of the Bombay Rents, Hotel and Lodging House Rent Control Act 1947 ( for short, Rent Act) and change of user. 4. The tenant submits that he cannot be said to be a defaulter since there was an application under Section 11 of the Rent Act before filing the suit which was pending till decision of the suit. There is no evidence to establish change of user. The evidence of power of attorney cannot be said to be accepted. 5. The tenant claimed that he was a tenant of Block No.23-A, Mahabal Colony, Jalgaon, comprising of four rooms while the landlord disputed the same and proved that the tenant has unauthorizedly broke the lock of the fourth room 4 inspite of there being belongings of the landlord in the said room. The act of the tenant was alleged to be contrary to the provisions of Section 108(o) of Transfer of Property Act. The contention of the tenant that all four rooms were let out to him was negatived by both the Courts. The decree for fourth room, being unauthorizedly occupied will attract inbuilt protection of Section 108(d) of Transfer of Property Act in favour of landlord. 6. In the notice reply (Exh.36), the tenant came with a case that the articles lying in the fourth room of the landlord were kept out of mercy or due to love and affection. However, while dealing with application for appointment of the Commissioner moved by the landlord tenant took different stand. The landlord proved that in Feb.,2004, the tenant broke the lock and the articles belonging to the landlord were arranged at the loft. 7. Both the Courts accepted evidence of Harishchandra Mathur Vaishya ( PW No.2) who established that three rooms were let out to the tenant. It was categorically established, after demise of the landlord's parent, the power of attorney holder Mr.Joshi sent the household articles from Mumbai to Jalgaon in a truck which articles he had arranged in the room in 5 occupation of the landlord as the room was at the rear end of the block. He had locked the room and also the block and its keys were given to the neighbour Mr.Bhalode. Both the Courts believed this witness as there was nothing to shake his credibility. The tenant did not examine any witness to prove that it was all along four rooms given in occupation to him. The matter was even reported to Police, informing that the tenant had broke open the lock of the fourth room and destroyed few articles belonging to the landlord. 8. The tenant canvassed that the suit itself was not maintainable for want of appropriate description of the property, however, this could not be digested as the description of the property was never questioned in the pleadings by the tenant. The tenant contended that the premises was let out for composite purpose of commercial and residential use at the rate of Rs.200/- per month and he had made payment of advance rent of Rs. 2,000/- to the attorney of the landlord. 9. On analysis, it has been proved that there was default prior to the institution of the suit for the period from 1.1.1993, to 31.1.1993 for 73 months. Notice was sent to the tenant on 13th Feb.,1999, which was served on him on 15th 6 Feb.,1999. The tenant moved application under Section 11 on 15.3.1999 ( Miscellaneous Application No.63/1989) which came to be decided on 27.11.2006 along with the main petition. It is curious, there was no application in between from the tenant for either determination of the amount or any request for depositing the amount in the Court. It has been proved that even during pendency of the suit from 21.4.1999 to 27.11.2006, there was default in remittance of the rent. The conduct of the tenant illustrated, the suit was decreed on 27.11.2006, the standard rent was fixed, however, the amount, which the tenant has deposited, was not within the bracket of rent then due, costs and interest at the rate of 9 per cent. 10. The stand of the tenant of having paid Rs.2,000/- to the power of attorney Shri Joshi towards the advance rent is muffled and mutilated in his affidavit to the effect that it was the plaintiff who was in need of money for going to U.S.A. and, consequently, the tenant has paid rent upto 30.11.1999 to the plaintiff. Both the Courts found that the amount of Rs.2,000/- referred to be paid to the attorney is not established. Though the tenant canvassed a case that receipts were not issued by the landlord, however, he is not permitted to take advantage of his own wrong. There is nothing displayed, any 7 time, the tenant has sent the rent by any other mode of payment. 11. Learned Counsel for the tenant took recourse to the judgment of Hon'ble the Apex Court in the matter of Janki Vashdeo Bhojwani and another Vs. IndusInd Bank Ltd. and others ( AIR 2005 SC 439) to canvass that the evidence of power of attorney in terms of Order 3 Rule 1 and 2 of C.P.C. confines only in respect of the acts done by the power of attorney holder in exercise of the power granted by the instrument. The term "acts" would not include deposing in place and instead of principal. This judgment would not be applicable to the facts in the present case as the terms of the tenancy in respect of the premises was that the drawing such power of attorney is established and based on such attorney the evidence was adduced by Mr.Joshi. 12. Learned Counsel for the tenant submitted, since the tenant had made an application for fixation of standard rent within one month of the notice, and there was no interim rent fixed, there would not be default on the part of the tenant. He has relied to the judgment of this Court in the matter of Vasantrao Shankarrao Bhosale Vs. Suhas Ramchandra Apte 8 ( 2004 (4) Bom.C.R. 314). In those proceedings this Court found that several applications were moved by the tenant after the order dt.7th Nov., 1979, for an extension of time to effect deposit. Since there was no determination of interim standard rent, the tenant had sought an extension of time. The factual position of the present case is quite contrary. At no time, admittedly, the tenant has made any effort to show his inclination to pay the amount as disputed by him or to any other extent. Section 12(3)(b) of the Rent Act provides that no decree of eviction shall be passed if, on the first day of the hearing of the suit or, on or before such other date as the Court may fix, the tenant pays or tenders before the Court the standard rent and permitted increases. Under Section 12(3)(c), the tenant has to, thereafter, to continue to pay or tender in Court such rent or the permitted increases. 13. The crucial position about payment liability was considered by this Court in the matter of Rajandas Kisandas Khade V. Sardar Kankar Mongal, deceased by his heirs ( 1998 Bom.R.C. 132). Giving reference to the judgment in the matter of Kalandarali Akbarali Kazi v. Shaikh Gulam Ibrahim ( Mah.LJ 1997(1) 289), this Court indicated in paragraph no.5 as under: 9 "5. Both the Courts below have recorded concurrent findings of fact that the tenant was not ready and willing to pay the amount of rent. It is an admitted position before me that after the suit was filed in the month of August, 1976, till January 1981, no amount of rent was deposited by the tenant either in the application or in the civil suit. Thereafter also he was not regular in making the deposits. This finding recorded by the Appellate Court is not even challenged before me. It is not even contended that the findings of the Courts below are in any way wrong. Perusal of the judgment of this Court in Klandarali's case, Mah.LJ 1997(1) 289, makes it clear that the tenant must satisfy the conditions of Section 12(3) (b) of the Act by showing that he has been depositing the amount of rent regularly. In the present case, admittedly, the tenant has not deposited the amount of rent regularly. Considering that this petition is filed under Article 227 of the Constitution of India and the learned Counsel for the petitioner was not in a position to point out to me that there is any manifest or apparent error of law committed by the Courts below, who have recorded concurrent findings of fact against the petitioner-tenant, in my opinion, no interference is called for in the orders impugned in this petition. " 14. In Writ Petition No.4934/1984, reported in 1986 Bom.R.C. 316, this Court has held, " The mere fact that the tenant had made an application within a month of the service of the notice, did 10 not bring him within the protection of Section 12(3)(b). That section requires that a tenant who has received a notice of demand under Section 12(2) shall move the Court for fixation of the standard rent or the permitted increases and the Court shall forthwith specify the amount of rent or permitted increases which are to be deposited by the tenant etc. Here, the tenant does not appear to have moved the Court to do anything in particular, after filing Misc. Application No.55 of 1974. The empty formality of moving an application for determination of standard rent within a month of receipt of the demand notice under Section 12(2) is not enough. If the Court was under obligation to forthwith specify the amount payable by the tenant, it could do so, only if it was moved by the tenant." 15. Thus, scope of the three judgments of this Court explicitly demonstrated that the tenant cannot remain contented by mere filing an application for fixation of fair rent, he must take steps to get an interim order from the Court as early as possible without any delay and comply the obligations that the Court may pass under Section 12(3)(b) of the Rent Act. To revert back, the dates here-in-above display, the tenant merely filed application under Section 11 but did not press for any orders in that regard which proves that there is non compliance by the tenant of the statutory duty and obligation cast on him. This exercise of application by the tenant is a ploy to salvage the obligation, of regular 11 remittances. 16. Learned Senior Counsel representing the landlord took recourse to the judgments in the matters of Hindustan Aeronautics Ltd. vs. Ajit Prasad Tarway ( (1972) 3 SCC 195), 1969(3) SCC 807 ( M/s D.L.F.Hous. & Cont.Company Delhi V. Sarup Singh and others ), (1969) 3 SCC 813 ( Dadh Natahu Rajah ( Dead) by lawyers Vs. Angha Nathu Lamal (dead) by Lawyers and others, (1975) 1 SCC 25 (Shail Jafar Shaik Mahmood and others Vs. Mohd.Pasha Hakkani Saheb and others) and (1991) 3 SCC 130 ( Chandmal Vs. Firm Ram Chandra and others) and submitted that the scope in terms of Section 115 of revisional jurisdiction to the High Court is very limited. The High Court can interfere if the first appellate Court acts illegally or with material irregularity. Learned Senior Counsel also informs, the errors of fact and errors of law has its inbuilt limitation for the Court to have a roving inquiry under Section 115 of C.P.C. The revisional jurisdiction of the Rent Act, is limited and is confined strictly to the jurisdictional error or illegal exercise of the jurisdiction. 17. The tenant came with a case that the premises was let out to him for commercial purposes too. However, it was established that the licenses obtained by the tenant are not 12 immediately at the time of induction in the premises or at the very soon period. The bills on which the tenant has relied at Exhs. 65 to 70, for a period of 1990-1991 would not accelerate his case of tenancy to be for a commercial premises as there was nothing produced by the tenant from 1986-1987 or 1987-1988. Before the appellate Court, the tenant produced two bills dt.2.6.1988 and 23.2.1988 showing having purchased some material for M/s Navaidyam Traders, 23-A, Mahabal Colony, Jalgaon, however, there is no pleading that the plaintiff has a firm by name Navaidyam Traders. The appellate Court found that the tenant did not produce any shop license to show that the premises was let out to him since inception with sole object of carrying commercial activities. 18. The Courts found that the tenant has converted the premises to non residential user after 1990. Section 13(1)(a) and Section 13(1)(k) of the Rent Act, coupled with Section 108(o) of Transfer of Property Act illustrated, infraction on the petitioner tenant inviting action of eviction. 19. On analyzing entire evidence and findings of both the Courts, I do not see any error or perversity on the part of both the Courts in accepting landlord's case and negating 13 tenant's contentions. 20. An impression is generated, the tenant has not come to the Court with clean hands and is in habit of changing his stand, even taking undue advantage of compassionate approach of the attorney for the then minor landlords. 21. In the result, Civil Revision Application dismissed. No costs. Heard. The petitioner/tenant - Narendra Damodar Gadgil to vacate the suit premises and additional room up to 31st July, 2011. He will not create third party interest, nor part with possession, shall regularly remit the outgoings and the charges. Undertaking to be tendered in this Court within 30 days from today. (K.U.CHANDIWAL) JUDGE ... AGP/87-09cra (bdv)