1 wp304 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.304 OF 1995 Damodar Uddhav Gangal ...Petitioner vs. 1 Arun V. Mhatre 2 Vidyadhar Vinayak Mhatre 3 Smt.Sumati Vinayak Mhatre 4 Smt.Anusaya Vinayak Mhatre 5 Smt.Sunanda Vinayak Mhatre ...Respondents Mr.N.V.Walawalkar Sr.Advocate for the petitioner Mr.R.M.Acharya for the respondent CORAM :A.S.OKA,J. DATE :DECEMBER 8,2010 ORAL JUDGMENT : 1 Heard the learned senior counsel for the petitioner and the learned counsel for the respondents. By this petition under Article 227 of the Constitution of India, the petitioner-original defendant has challenged the concurrent decree of eviction passed against him. The respondents are the plaintiffs-landlords and the petitioner is the defendant-tenant. The suit premises comprises of four rooms more particularly described in paragraph 1 of the plaint. The case made out by the respondents is that from 1st August 1977, the petitioner failed and neglected to pay the rent and therefore, notice of demand was issued on 10th June 1979. It is alleged that after service of notice, the petitioner did not pay the arrears. Therefore, a suit was filed claiming a decree under section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act,1947 (hereinafter referred to as the said Act).Decree was also claimed on the ground of bona fide need. 2 wp304 2 The petitioner filed written statement and contested the suit. It was contended that though the suit premises was of the ownership of the respondents, the petitioner was in possession thereof as the owner. It is contended that in the year 1978, the respondents agreed to sell the larger property to the petitioner and his brother. It is contended that a sum of Rs.45,000/- was paid by the petitioner s brother to the respondents. It was contended that the transaction was acted upon in as much as when the premises on the first floor became vacant, the respondents handed over the possession thereof to the petitioner. It was contended that the respondents have not impleaded the necessary and proper parties to the suit in as much as the suit premises was let out jointly to the petitioner and his brother Chintamani. It is stated that his brother Chintamani died in the year 1978 and his legal representatives who are entitled to claim rights have not been impleaded as parties. It was contended that in view of the transaction entered into in the year 1978, the petitioner was not liable to pay rent. 3 The respondents examined second respondent as a witness. The petitioner stepped into witness box. The trial Court decreed the suit on the ground of denial of title and arrears of rent under section 12(3)(a) of the said Act. The trial Court recorded a finding that as the petitioner has denied the title of the respondents, he has incurred a forfeiture under sub clause 2 of clause (g) of section 111 of the Transfer of Property Act,1882 (hereinafter referred to as the said Act of 1882). The ground of bona fide need was not accepted. An appeal was preferred by the petitioner which has been dismissed by the Appellate Court upholding the ground of denial of title as well as the arrears of rent. 3 wp304 4 The learned senior counsel for the petitioner submitted that in the written statement a specific case was made out that the suit premises was let out to the petitioner and his brother and therefore, the legal representatives of his brother who died in the year 1978 were necessary and proper parties to the suit. He submitted that in fact earlier notice dated 5th February 1978 was addressed by the respondents to the petitioner as well as his brother. Inviting the attention of the Court to the cross examination of the second respondent, he submitted that the second respondent pleaded ignorance about the correctness of the suggestion as to whether the suit premises was jointly let out to the petitioner and his brother. He submitted that he came out with a new case that the suit premises was initially let out to the petitioner s brother and after his transfer, the same was let out to the petitioner. He submitted that admittedly there was no notice of demand served to the legal representatives of the petitioner s brother and that it is not the case of the respondents that the petitioner s brother was not survived by any legal representatives. He submitted that all these aspects which go to the root of the matter have been ignored by the trial Court and they have not been even considered by the Appellate Court. He submitted that the issues on the basis of alleged denial of title and forfeiture were not framed and therefore, the Courts below could not have passed the decree by holding that the petitioner has incurred forfeiture. He submitted that the demand notice is not valid as it was not addressed to the legal representatives of the of the joint tenant. 5 The learned counsel for the respondents submitted that issue regarding joint tenancy was not agitated by 4 wp304 the petitioner before the District Court in Appeal. He submitted that even the ground of non-joinder of necessary party was not urged before the Appellate Court. He submitted that in the written statement, the petitioner has set up a title in himself by contending that the respondents have ceased to be owners and he himself has become the owner. He, therefore, submitted that forfeiture under sub clause (2) clause (g) of section 111 of the said Act of 1882 will be squarely attracted. He submitted that the parties were aware that the issue regarding denial of title was involved and therefore, there is no prejudice even if the issue on forfeiture was not specifically framed. He submitted that no interference is called for. 6 I have carefully considered the submissions. There is no dispute about the fact that by demand notice dated 10th July 1979, arrears of rent were demanded from 1st August 1977. Admittedly, notice was served to the petitioner and within a period of one month from the date of service of notice, neither any amount was tendered by the petitioner nor any application for fixation of standard rent was filed by the petitioner. As far as the allegation regarding arrears is concerned, the only defence was that the petitioner has not paid rent from 1st August 1977 as there was a settlement of the rent account in the year 1978 when the respondents agreed to sell the property to the petitioner and his brother. It was contended that a sum of Rs.45,000/- was paid by the petitioner through his brother to the respondents. On this aspect, the finding of fact is that no documentary evidence was produced to show that a sum of Rs.45,000/- was paid to the respondents. Admittedly, after service of notice of demand, there was no reply sent by the petitioner contending that there was an agreement for 5 wp304 sale executed by the respondents. The concurrent finding recorded by both the Courts is that the petitioner could not substantiate his case regarding the alleged agreement made by the respondents for sale of the larger property to the petitioner. Apart from the fact that no documentary evidence was produced to substantiate the said contention, after appreciation of oral evidence on record, the Courts below have disbelieved the said case. There is no reason to find fault with the said finding. Thus, admitted position is that the petitioner was in arrears of rent from 1st August 1977 for a period of more than six months and that even after service of notice, the amount demanded was neither paid nor tendered by the petitioner. 7 Perusal of the Judgment of the Appellate Court shows that the contentions of the petitioner that his brother was a joint tenant along with him and that the suit was bad for non-joinder of the legal representatives of his deceased brother were not at all raised before the Appellate Court. There is no reference to the said contentions in the body of the Judgment. Moreover, even in the writ petition it is not the case made out that the said contentions were raised before the Appellate Court and that the same were not considered. Therefore, it is apparent that the issue of joint tenancy as well as the issue of non-joinder of necessary parties was not agitated by the petitioner in the appeal. Therefore, the petitioner cannot be permitted to agitate the said contentions in the writ petition. 8 As far as the decree on the ground of denial of title is concerned, there was no issue framed by the trial Court on the said aspect. There is nothing on record to show that the petitioner was put to notice that 6 wp304 the plea of forfeiture based on the denial of title was going to be raised. Without framing an issue, the trial Court held that there was a forfeiture on account of denial of title. Had there been an issue framed, the petitioner could have always made an effort to explain the factual statements made in the written statement. The petitioner has not denied the title of the respondents but the petitioner has come out with a case that there was an agreement of sale executed in his favour. In view of section 54 of the said Act of 1882, an agreement of sale does not create any interest in the property. Therefore, the decree passed on the ground of denial of title cannot be sustained. However, on admitted facts, the decree for possession under section 12(3)(a) will have to be confirmed. 9 At this stage, the learned senior counsel for the petitioner prays that the petitioner has become old and he has lost his wife. He prays that a longer time to vacate be granted subject to filing usual undertaking. The learned counsel for the respondents opposes the prayer for grant of a longer time. Considering the facts of the case, subject to giving undertakings, longer time till the end of November 2011 deserves to be granted. 10 Hence, I pass the following order : i) Decree passed on the ground of arrears of rent is confirmed. However, the decree on the ground of forfeiture is set aside. Thus, the decree of eviction stands confirmed. ii)Rule is partly made absolute in above terms with no order as to cost. iii) Decree for possession shall not be executed till 30th November 2011 subject to condition of the 7 wp304 petitioner and all adult members of his family filing usual undertakings in this Court to vacate the suit premises. If undertakings are not filed by the petitioner and all adult members of his family within a period of eight weeks from today, the decree for possession will forthwith become executable. JUDGE