1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.3/2007 Raosaheb s/o Kundlikrao Suparkar Died through the legal heirs 1-A) Prabhabai w/o Raosaheb Suparkar age 58 yrs, Occ. Household, R/o Kacheri Road, Old Jalna Dist. Jalna. 1-B) Shilabai w/o Shahaji Waghmare age 45 yrs, Occ. Household. R/o as above. 1-C) Sushila w/o Ganesh Lunge age 43 yrs, Occ. Household R/o Daulgaon Raja,Tq. Deulgaon Raja District Buldhana. 1-D) Pratibha w/o Manoj Lad, age 29 yrs, Occ Household R/o Gawali Mohalla, Old jalna Dist Jalna. 1-E) Bhaguarati s/o Ramesh Lunge age 22 yrs, Occ Household r/o Post Office Road, Hingoli Dist Hingoli. 2 1-F) Ramesh s/o Raosaheb Suparkar age 34 yrs, Occ Agri R/o Kacheri road, Old jalna, Dist Jalna. 1-G) Ganesh s/o Raosaheb Suparkar, age 42 yrs, Occ. Agri r/o as above. 1-H) Suresh s/o Raosaheb Suparkar, age 30 yrs, Occ. Agri r/o as above. APPLICANTS. VERSUS Shashikant @ Vishnu s/o Rangnathrao Naik age 48 yrs, Occ Advocate, R/o Ganpati galli, Old Jalna Dist. Jalna. RESPONDENT Mr.S.J.Salunke i/by Mr. Shelke advocate for applicants. Mr. V.J. Dixit Sr. Counsel, advocate for respondent. CORAM : R.M.BORDE, J. DATE : 21 stAPRIL, 2011 .... ORAL JUDGMENT : 1. The petitioner/original tenant is raising exception to the order passed by Principal District Judge, Jalna on 14.12.2006 whereby the appeal tendered by tenant being Rent 3 Appeal No.1/2005 came to be dismissed and the order passed by the Rent Controller Jalna in File No.87/RC/CR-103 dated 31.12.2003 came to be confirmed. The respondent-landlord initiated proceedings for eviction of tenant by presenting an application to the Rent Controller Jalna under section 15 of Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. The eviction of the tenant is asked for by the landlord on the ground of default in payment of rent, bona fide need of the landlord to occupy the premises and on account of tenant having secured an alternate accommodation and having sublet the premises. The Rent Controller as well as District Judge have held in favour of the tenant on all counts and directed eviction of the tenant. 2. The tenant has controverted the contentions raised by the landlord in respect of need of the premises on account of his bona fide requirement. The contention raised by the landlord that he has committed default in payment of rent has been controverted by tenant, so also he has denied the 4 contentions raised by the land lord in respect of his having an alternate accommodation and he having sublet the business premises to others. With the assistance of learned counsels appearing for the parties I have gone through the order passed by the Rent Controller as well as Judgment and order passed by the District Court. I have also perused record and proceedings. So far as ground raised by the landlord seeking eviction of tenant on account of default committed by the tenant in paying the rent regularly is concerned, the landlord in his application before the Rent Controller has not given the details in respect of the default committed by the tenant. My attention has been invited to the application tendered by the landlord on 4.9.1987. It is vaguely stated in paragraph No.3 that the rent prescribed for the tenanted premises was Rs.30/- per month and tenancy was monthly tenancy and it was agreed that the tenant would pay the rent before 5th day of every month. It is stated in the application that the tenant is wilful defaulter. However, period of default has not been stated in the 5 application. The contention raised by the landlord in that behalf have been denied by the tenant in his written statement. The Rent Controller as well as the District Judge considering the admissions of the tenant in his deposition have drawn a conclusion that the tenant is not regular in paying the rent. It is stated in the cross examination by the tenant that he has paid the rent for period of nine months amounting to Rs.270/- in the year 2001. Learned counsel appearing for the petitioner has contended that firstly there are no details given by the landlord in his application in respect of the period of default allegedly committed by the tenant and as such the tenant was not supposed to tender his explanation in respect of reasons for his failure to pay the rent regularly. It was not expected in such circumstances of a tenant to give any explanation as contemplated by the proviso to section 15 of Rent Control Act. The petitioner is right in contending that it is the responsibility of the landlord to give clear details as regards the default committed by the tenant and in that event it would be possible 6 for the tenant to tender his explanation as to whether default as alleged by the landlord is wilful or not. It is necessary for a tenant to tender his explanation only in the event the landlord gives details as regards the default committed by the tenant. It is expected of the Rent Controller firstly to consider the contentions of the tenant in respect of the alleged default in payment of rent at the instance of tenant. If the Rent Controller is satisfied as regards the allegations in respect of default in payment of rent committed by the tenant, then he has to consider the explanation tendered by the tenant and arrive at the conclusion as to whether the default as alleged by the landlord is wilful or not. In the instant case, there are no details given by the landlord in respect of the alleged default at the instance of tenant, therefore, tenant was not expected to give his explanation as contemplated. In these circumstances, in my opinion finding recorded by the Rent Controller, as well as District Judge in respect of the tenant having committed default in paying the rent regularly is liable to be set aside. 7 3. It is also to be taken note of that the alleged admissions given by the tenant in respect of the payment of lump sum rent of Rs.270/- pertains to the year 2001. In the instant matter, the application for eviction was tendered in the year 1987 and therefore, it was not expected of tenant to tender an explanation. It was also not expected of tenant to put forth any explanation as regards default allegedly committed by him in payment of rent for the period subsequent to the presentation of the application. The Courts below were not justified in considering the statement in the cross examination of tenant to record findings in respect of default allegedly committed by the tenant in paying the rent. 4. My attention is invited to the judgment in the matter of Shri Nandlal Govindram Gunwani Vs. Ashok Balram Bedekar reported in 2000 (2) Bom.C.R.772. Paragraph no.12 of the judgment which is relevant for consideration is quoted below : “The Act contemplates that if such a 8 default is committed, the Controller shall make an order directing the tenant to put the landlord in possession. However, if the Controller is not satisfied in respect of such default, he shall reject the application. The proviso states that in any case failing under Clause (i) if the Controller is satisfied that the tenant’s default to pay or tender rent was not wilful he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days to pay or tender the rent to the landlord up to the date of such payment or tender. Thus the proviso comes into play in following circumstances. (a) that the landlord has proved the default as provided under Clause (i), (b) that the Controller is satisfied that the tenant’s default to pay or tender the rent was not wilful. Thus if the simplicitor first circumstances is proved but if there is no second circumstances proved, the proviso does not come into play and the Controller has to 9 pass an order of evicting the tenant and/or directing the tenant to put the landlord in possession. Thus, before tenant could ask for benefit of the proviso, the tenant must claim and prove to the satisfaction of the Controller that the tenant’s default to pay or tender rent was not wilful and, therefore, in a case of default the tenant has to come forward with an explanation and prove the said explanation so that the controller can be said to be satisfied that the tenant’s default to pay or tender the rent was not wilful, in the absence of such a plea and the explanation and proof of the same, the Controller has to pass an order directing the tenant to put the landlord in possession of the and, therefore, on an proper analysis of the provision in respect of the default and wilful default, it will be evident that the proviso in the present case qualifies main enactment and it is so embodied in the Act itself to become an integral part of the enactment and thus acquires a tenor and colour of substantive enactment. The 10 ultimate analysis, therefore, is that whenever the Rent Controller finds that the default as provided under clause (i) of subsection 15(2) is established, the Rent Controller shall find out as to whether the tenant has offered any explanation and/or has pointed out any facts which may point out that the tenant’s default to pay or tender the rent was not wilful and whether the said explanation of the facts have been proved and established by the tenant and thereafter the Controller will have to consider whether such explanation and the established fact is sufficient to satisfy the controller that the tenant’s default to pay or tender the rent was not wilful. Therefore, the burden to prove that the tenant’s default to pay or tender the rent was not wilful is on the tenant, because the circumstances and/or the facts as a result of which the tenant failed to pay rent and/or tender it and within the knowledge of the tenant which tenant can only alleged and prove. Therefore, even though primafacie it 11 appears to be negative burden, factually and in reality it is the positive burden on the tenant. This Court in the matter of (Shashikant Vs. Mohammad Naeemuddin and another) 8, reported in 1985 (1) Bom.C.R. 403 has observed after reproducing the relevant part of the proviso, as under : “In the instant case, there is clear proof that the tenant committed default in the payment of rent and hence it was the duty of the Rent Controller to get himself satisfied that the tenant’s default was not wilful. The wording of the proviso clearly goes to show that the burden lies upon the tenant to show that his default is not wilful” All the above discussion thus will find out that in order to get an order of eviction of a tenant and/or direction to the tenant to put the landlord in possession, the landlord shall prove that the tenant has committed default as stated in clause (i) and has not pleaded and/or offered any explanation to the satisfaction of the Controller that his 12 default to pay or tender the rent was not wilful. Secondly, the landlord has proved the default as per clause (i) but the tenant having satisfied the Controller that his default to pay and/or tender the rent was not wilful, failed to tender and pay the rent to the landlord within reasonable time not exceeding 15 days as offered by the Controller. Thirdly, having proved the default as per clause (i) and the tenant having pleaded the grounds that the default to pay or tender the rent was not wilful, failed to establish the said grounds and/or failed to satisfy the Controller.” 5. In the instant matter, as recorded above, there are no details given in application in respect of the default allegedly committed by the tenant, as such tenant was not expected to give any explanation as contemplated by proviso to section 15. In such circumstances, drawing any conclusion as regards the default committed by the tenant on the basis of a deficient pleadings and scanty evidence in that regard is an error apparent on the face of record. 13 6. Although, the landlord has not established the alleged default in payment of rent by the tenant, on consideration of the findings recorded by both the Courts below I am convinced that the landlord has established his case as regards the bona fide need in occupying the premises. 7. The landlord has claimed possession of the suit premises on the ground of bona fide requirement. Landlord is an Advocate by profession. He has stated in his application as well as in his affidavit that he needs premises for establishing his office. The area in occupation of the tenant is a shop premises. Need exhibited by the landlord for establishing his office as stated by him in his deposition is in respect of the area to the extent of 40’ x 60’. The area in occupation of all three tenants is to the extent of 45’x 15’. Inviting my attention to the statement in deposition of landlord it has been contended by the counsel appearing for tenant that, area in occupation of all three tenants is less than the need exhibited by the landlord and as such according to the petitioner need exhibited by the 14 landlord cannot be considered. Landlord in his deposition has also stated that he intends to re-construct the premises. On re-construction of the premises landlord’s need of the premises for establishing his office would be satisfied. Area in occupation of the office is less than need exhibited by the landlord cannot be a consideration of defeating claim of landlord for recovery of possession of tenanted premises for his bona fide requirement. Landlord has specifically stated in his pleading as well as in his deposition that the premises are suitable for establishing office and as such need of the premises exhibited by landlord is bona fide. It is not disputed that the landlord is an Advocate and he is practising at Jalna. It is also contended that landlord has other residential premises and his father is also an Advocate and at present he has joined his father’s office for conducting the profession and as such need exhibited by the landlord cannot be stated to be bona fide. It is not for the tenant to determine the suitability of premises from point of view of landlord or to dictate as to which 15 part of premises landlord shall occupy for his professional activities. It is the landlord who is the best judge of his requirement and it is for him to determine or to which premises are best suited for his establishing his office and it is not for the tenant to dictate the terms in that behalf. Counsel appearing for the petitioner has invited my attention to the Judgment in the matter of Marotirao Bhaurao, petitioner Vs. Kashinath Singh Gangusingh Raut respondent reported in [1990 (2) Mah L R 570]. It is contended that the object of the act is to prevent unreasonable eviction of a tenant. While considering the need of the landlord the Court has to take into consideration that the landlord does not own any non residential premises in the city, town or village and further that he is not entitled to the possession of such a non residential house. There is nothing placed on record to demonstrate that the landlord is in possession of any other non-residential premises which is suitable for his occupation and which he can choose for the purpose. The Apex Court in the matter of 16 Pratibha Devi Vs.T.V.Krishnan reported in (1996) 5 SCC page 353 has prescribed the correct test which has to be applied in finding out whether requirement of the landlord is bona fide or not. It is observed by the Apex Court in the aforesaid judgment thus : “The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how, and in what manner he should live or to prescribe for him a residential standard of their own. There is no law which deprives the landlord of the beneficial enjoyment of his property.” 8. Reference can also be made to a judgment of Calcutta High Court in the matter of Basant Lal Shaha Vs. P.C.Chakravarty reported in AIR 1950 Cal.249. It is observed in paragraph No.16 : “16. Where a landlord seeks to eject a 17 tenant on the ground of bona fide requirement within the meaning of proviso (f) of section 11 (1) of the Rent Control Act, 1948, he has to satisfy three tests : i) That he ‘requires’ the premises. ii) that such requirement is for his ‘own occupation’; and iii) that his requirement is ‘bona fide’ The word ‘require’ means more than mere wish or convenience of fancy of the landlord. The landlord must show some need or necessity. But it does not mean an absolute need or an absolute requirement in the sense that the landlord will not have any accommodation of any description and that he must actually be on the street before he can demand his own house for his own occupation.” It is observed thus in the case of Meenal Eknath Kshirsagar Vs. Traders and Agencies and another reported in 1997 (1) Mh.L.J.121. 9. Considering the ratio laid down by the Apex Court in the judgment cited supra and considering the findings and 18 facts recorded by the Courts below in respect of the bona fide requirement exhibited by the landlord, I am of the view that finding recorded by the Courts below in that regard need not be interfered with. So far as exercise of revisional powers by the High Court is concerned as laid down by this Court in the matter of Prabhakar s/o Tatyarao Mangulkar Vs. Suresh s/o Kishanrao Takalkar reported in 1985 (2) Bom.C.R.293 that “revisional powers under section 26 of the Act are limited in the terms of the section itself and it is necessarily narrow and the High Court will not be justified in reversing the finding taking a different view by introducing new factual circumstances.” So far as exercising revisional powers by the High Court is concerned, in the matter of Patel Valmik Himmatlal and others Vs. Patel Mohanlal Muljibhai reported in (1998) 7 SCC 383, While referring to the provisions of Bombay Rent Act, the Apex Court has ruled that, “the mere fact that a different view is possible on re-appreciation of the evidence cannot be a ground for the High Court to substitute its own findings while exercising 19 revisional jurisdiction.” In the matter of Ram Dass Vs. Davinder, reported in (2004) 3 SCC 684, it has been ruled by the Apex Court that, “the High Court cannot re-appreciate the evidence while exercising revisional jurisdiction.” 10. Considering the scope of exercise of revisional powers by this Court, I am of the view that concurrent findings recorded by the Courts below for directing the eviction of a tenant on the ground of bona fide requirement need not be interfered with. The Civil Revision Application is devoid of substance hence stands dismissed. Rule discharged. In the facts and circumstances of the case, no order as to costs. ( R.M.BORDE) JUDGE **** aaa/cra3.07