1 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1781 OF 1991. Hari Pandurang Patil, Age 62 years, Occ.Service, Residing at House No.285, Navi Peth, Jalgaon, Dist. Jalgaon. ... Petitioner. Versus 1. Anupsing Mahendrasing Shikh, Age 62 years, Occ. Contractor, residing at House No.285, Navi Peth, Jalgaon, Dist.Jalgaon. 2. Namdeo Waman Narkhede, Age 62 years, Occ.Contractor, residing at B/318, Sangam Society, Zilla Peth, Jalgaon, Dist.Jalgaon. ... Respondents. ... Mr.Sanket S.Kulkarni, advocate holding for Mr.V.T.Choudhari, advocate for the petitioner. Mr.S.P.Deshmukh, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 18.02.2010. 2 ORAL JUDGMENT 1. By this petition, the petitioner impugns judgment and order rendered by learned 3rd Additional District Judge, Jalgaon in Civil Appeal No.88/1983. By the impugned judgment, the first appellate Court reversed the judgment and order rendered by the learned Joint Civil Judge (J.D.), dismissing suit for eviction of the petitioner. Indisputably, house property bearing CTS No.2121/43 situated at Navi Peth locality at Jalgaon is the ancestral property of the Respondent No.1. The Respondent No.1 used to collect rent in respect of house property and was authorised to induct tenants for himself and his brother. The petitioner is in possession of the suit tenement, which is situated in the house property in question. 2. The Respondent No.1 (landlord) filed suit for eviction alleging that the Respondent No.2 was his tenant in respect of the suit tenement and had committed default in payment of rent. It was further alleged that the Respondent 3 No.2, who is the original tenant, illegally and unauthorizedly subletted the suit tenement in favour of the petitioner. It was alleged that the Respondent No.2 was in arrears of rent amount of Rs.1800/- (Rupees one thousand eight hundred) for period between 1.2.1969 till 30.11.1978. The Respondent No.1 had issued notice to the Respondent No.2 on 12.12.1978, whereby the tenancy rights of the latter were determined with effect from 3l.12.1978. A copy of the said notice was given to the petitioner. Though, the Respondent NO.2 did not reply the said notice, yet, the petitioner gave reply and claimed that he was the tenant in respect of the suit tenement. He denied that he was in arrears of the rent amount. He further denied that he had paid rent to the Respondent No.1 till end of 1973. He contended that the suit was filed in collusion with the Respondent No.2. He asserted that the Respondent No.1 was collecting excessive rent from him. He submitted separate application (Misc.Application No.12/1979) for fixation of standard rent. 4 3. The parties went to trial over issues settled below Exh.19. The learned Civil Judge came to the conclusion that there was no tangible material to substantiate contention of the Respondent No.1 as regards alleged transaction of subletting in favour of the petitioner by the Respondent No.2. The learned Civil Judge held that the Respondent No.1 failed to prove that the petitioner committed defaults in payment of the rent. It was held that the petitioner was tenant of the suit tenement and was entitled to protection. The learned Civil Judge fixed amount of Rs.50/- (Rupees fifty only) as standard rent for the suit tenement. In keeping with such findings, the suit was dismissed. Aggrieved thereby, the Respondent No.1 preferred appeal which was allowed by the first appellate Court vide the impugned judgment and order. Needless to say, there are contrary findings of the two Courts below on the material issues involved in the present matter. 4. The first appellate Court reached finding about alleged subletting in favour of the 5 petitioner in view of certain circumstances. The petitioner had filed copy of voters list in order to show that he was occupant of the suit tenement. The copy of the voters list is discarded by the learned Additional District Judge on the ground that it does not bear signature of any Officer and though it was printed on white paper, yet, some names were printed on yellow paper. The trial Court had believed version of D.W. Vilas who corroborated the entries in the voters list. He is public servant. He corroborated the recitals of the certified copy (Exh.67). He was independent witness. He had no business to speak lie. He admitted that name of the petitioner and his family members were written on white paper by hand and the same was affixed to the voters list, whereas the other voters list was printed in brown colour paper. The authenticity of such entries was corroborated by DW Vilas because he personally prepared the copy from the original list. In such a case merely because some of the names were printed on brown colour paper and that of the petitioner and his family members were 6 written on white colour paper, the evidence could not be given go-by. Assuming for a moment that the extract of the voters list was doctored in order to substantiate the contention of the petitioner that he was occupant of the suit tenement in the year 1971-72, it is difficult to appreciate as to what prevented the Respondent No.l from filing copy of the correct voters list which was printed on brown paper and was the true voters list which indicated name of the occupant in respect of the suit tenement. The piece of evidence appearing in the context of the occupancy for the relevant year, in the shape of copy of the voters list, seems to have been discarded without good reasons. 5. The learned Additional District Judge observed that DW 3 Ukhardu admitted that he had seen the defendant No.1 (Respondent No.2) leaving the suit block but he can not tell the date of his leaving. It is further observed that DW Ukhardu though stated that the petitioner is a tenant in the suit tenement since 1971 still he could not state the exact date or month of his 7 occupation when in fact, he was mediator for getting the suit tenement for him. It is on account of socalled deficiencies in the version of DW Ukhardu that the first appellate Court inferred subletting of the suit tenement to the petitioner by the Respondent No.2. This kind of observations by the learned Additional District Judge are based on misreading of the version of DW Ukhardu and are therefore, perverse in nature. On appreciation of the evidence of DW Ukhardu, it could not have been stated that there was any admission about subletting of the suit tenement by the Respondent No.2 in favour of the petitioner. What he admitted may be reproduced as below : "I have seen defendant No.1 (Respondent No.2) when he has left suit premises of the plaintiff (Respondent No.1). I had not seen the suit premises prior to when I had gone along with the defendant No.2 (petitioner) for the first time." 8 This statement of DW Ukhardu, looked from any angle, does not amount to admission of subletting transaction of the suit tenement in favour of the petitioner by the Respondent No.2. Needless to say, the learned Additional District Judge conveniently twisted a part of the version of DW Ukhardu while reaching conclusion that the transaction was of subletting in favour of the petitioner. 6. The petitioner had placed on record post-cards (Exh.69 to Exh.73) which revealed that he had received relevant letters at the address of the suit tenement in the year 1971. These letters were received by him in or about July and August 1971 and one of the same (Exh.73) was received in the month of November 1972. The petitioner proved that the post-cards were received by him on the address of the suit tenement during the relevant period. There was no counter proof to believe that these post-cards were fabricated by putting false postal stamps on them. The learned Additional District Judge did not consider this material evidence which 9 indicated that the petitioner was in actual possession of the suit tenement during 1971-72. 7. The matter does not stop here. The petitioner placed on record original application (Exh.74) and copy of the original receipt (Exh. 75) issued by the amalgamated Electricity Company Ltd., Jalgaon branch. The application dated 17.10.1971 (Exh.74) was confronted to the Respondent No.1. He admitted his signature on the said application. Thus, there is good deal of evidence to infer that under signature of the Respondent No.1, application was submitted to the Electricity Company for installation of electric meter No.6/1990 in a part of the house property for which the payment was made by the petitioner vide receipt (Exh.75). This material evidence is also not discussed by the first appellate Court. Obviously, these are glaring omissions committed by the first appellate Court which tantamount to perversity in the judicial process. 8. So far as the commencement of the period of occupation by the petitioner is 10 concerned, there is oath against oath. The petitioner stated before the trial Court that he was residing in the suit tenement since 1.7.1971. He further deposed that he used to pay rent to the Respondent No.1. He asserted that the Respondent No.1 never issued rent receipts. He deposed that he had taken note of the payments on the calendar for the year 1971 onwards. The entries on the calendar of-course could not be implicitly relied on. The first appellate Court noticed that previously the petitioner was residing at Bhusawal and had no much reason to shift the residence to Jalgaon and, therefore, his version was found unacceptable. I find it difficult to go along such reasoning. The personal difficulties of the petitioner could have prompted him to shift the residence from small township of Bhusawal to the District place i.e. Jalgaon. Much capital could not have been made of such shifting of the residence. One can not be oblivious of the fact that distance between Jalgaon and Bhusawal is only of 28 Kms. I may take judicial notice of the fact that there are several modes of conveyance including the 11 number of trains to connect Bhusawal with Jalgaon and the journey is hardly of about 20 minutes which could facilitate easy commuting of the petitioner from Jalgaon to Bhusawal. 9. The tenor of the impugned judgment reveals that the first appellate Court assumed that burden of proof was on the petitioner to establish that he was lawful tenant and had occupied the suit tenement since 1.7.1971 as alleged by him. Copy of the notice issued by the Respondent No.1 to the Respondent No.2 reveals that the Respondent No.1 categorically alleged that the petitioner was in actual possession of the suit tenement since 5/6 years before issuance of the notice of termination. The said termination notice (Exh.A - dt.12.12.1978) was addressed to the Respondent No.2. It was stated in the quit notice (Exh.A) that since 5/6 years, the Respondent No.2 had illegally subletted the suit tenement to the petitioner. It was further stated that the petitioner had no right to continue the possession of the suit tenement. Needless to say, the recitals of the quit notice 12 (Exh.A) indicated that at least since 1972 the possession of the suit tenement was with the petitioner. This material admission is over- looked by the first appellate Court. The conduct of the parties was also not properly considered by the first appellate Court. The Respondent No. 1 did not produce any record about payment of the rent by the Respondent No.2 before filing of the suit but had produced counter-foils to show that after filing of the eviction suit, the payment was made by the Respondent No.2. The Respondent No.2 did not enter the witness box nor any evidence was led to prove the alleged transaction of sub-tenancy. The other tenants of the house property could have been examined in order to show as to how and since when the petitioner was residing and when the suit tenement was left by the Respondent No.2. It is in the wake of these circumstances that reply notice dated 3l.12.1978 (Exh.B) should have been considered by the first appellate Court. The petitioner immediately replied that the Respondent No.2 had left the tenement and had handed over possession to the Respondent No.1. He alleged that because both 13 the Respondents were dealing in business of contracts, they had made collusion with each other. The averment of collusion was made at the first available opportunity. It was expected therefore, that the Respondent No.1 would summon the Respondent No.2 in order to establish the so- called allegations of the subletting. That was not done. 10. For sake of argument, even if it is assumed that the petitioner was inducted in the suit tenement as a sub-tenant of the Respondent No.2 then also it is difficult to to countenance the eviction decree. For, there is reliable material on record to show that he was in actual possession of the suit tenement prior to 1.2.1973. A Single Bench of this Court in "Dattatraya Pyurshottam Bhave since deceased through his L.Rs. Pramila Dattatraya Bhave Vs. Jayant Sitaram Joshi and others" 2003 (3) Mh.L.J. 161, held that the ground of unlawful subletting would become unavailable against sub-tenant as well for unlawful subletting prior to 1.2.1973. This Court held that no decree could be passed 14 U/s 13(1)(e) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (For short, Bombay Rent Act). Thus, on account of amendment by Act 18 of 1987, there is umbrella of protection provided to the sub-tenants who were found in occupation of the tenement prior to 1.2.1973. The first appellate Court failed to see that such statutory protection was available to the petitioner from eviction decree as contemplated U/s 13(1)(e) of the Bombay Rent Act. Needless to say, the impugned judgment is rendered without considering the relevant material on record and the legal aspects. 11. Mr.Deshmukh, learned advocate would submit that the petitioner failed to prove that he was licensee as on 1.2.1973. He invited my attention to the observations in "Kantilal Somabhai Kothari Vs. Udayvare Raghavendra Acharya and others" 2007 (1) Mh.L.J.9. The petitioner never admitted that he was licensee nor it was contention of the Respondent No.1 that the petitioner was inducted as a licensee. It was the specific case of the Respondent No.1 that the 15 petitioner was inducted as a sub-tenant. Once it is found that the transaction of sub-tenancy is not duly proved and even if it is assumed to be so then also the petitioner is not liable to be evicted in view of the amended Act. Hence, the impugned decree is unsustainable. 12. Mr.Deshmukh, also referred to certain observations in "Nivritti Namdeo Thite Vs. Hemraj Gulabchand Daga" 2007 (3) Mh.L.J.846 and "Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and another" AIR 1975 Supreme Court 1297. The Apex Court held that the power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. This Court also followed the track in "Nivritti Namdeo Thite Vs. Hemraj Gulabchand Daga" (supra). There can not be two opinion that the limited jurisdiction under Article 227 of the Constitution of India can not be expanded so as to reappreciate the evidence of the parties. Still, however, perverse findings of the first appellate Court can not be stamped with immunity for the reason that they 16 are based on appreciation of evidence even though such appreciation is patently erroneous. In this view of the matter, the petition can not be dismissed because the petitioner challenges the judgment of the first appellate Court which is based on so-called appreciation of evidence. 13. Mr.Deshmukh, would submit that the petitioner failed to prove payment of rent and, therefore, the next ground for eviction is still available to the Respondent No.1. He contended that the petitioner could be regarded as willful defaulter. It appears that the trial Court duly considered the fact that the petitioner was never called upon to pay the rent arrears. He was served with only a copy of quit notice. No demand was made to him. Unless there is specific demand made by the landlord and unless the tenant fails to pay the agreed rent or standard rent as the case may be, within a period of thirty (30) days of such demand, the ground of default is unavailable in view of the language used in Section 12 of the Bombay Rent Act. It need not be reiterated that the Respondent NO.1 issued 17 only a copy of notice addressed to the Respondent No.2, to the petitioner without making any demand of rent from the petitioner. Under the circumstances, the petitioner was not under legal obligation to tender the rent arrears in order to save himself from the eviction decree in contemplation of probable action U/s 12(1)(b) of the Bombay Rent Act. 14. To conclude, it may be said that both the grounds that of alleged subletting and alleged willful default in making the payment of rent arrears, were not available to the Respondent No.1. The eviction decree rendered by the first appellate Court is bad in law. Hence, the petition is allowed. The impugned judgment and order is set aside. No costs. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp178191