1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICLATION NO.997 OF 2002 with CIVIL APPLICATION NO.8004 of 2007. Samad Alikhan s/o Vilayat Alikhan Age: 48 Yrs., occu. Business, r/o 3-7-112/113, Apsara Dresses, GG Road, Vajirabad, Nanded. - PETITIONER VERSUS Amolak Singh s/o Gurbaxsingh Age: 34 Yrs., occ.Business, r/o Basant Basera, Near Boys Multipurpose High School (ZP), Vajirabad, Nanded. - RESPONDENT ***** Mr.PV Mandlik, Sr.Counsel for Petitioner; Mr.SP Deshmukh, Advocate for Respondent. ----- 2 CORAM : K.U.CHANDIWAL, J. DATE : 7th January, 2010. ORAL JUGMENT : 1) Heard Shri Mandlik, learned Sr.Counsel for the appellant/tenant and Shri Deshmukh for the respondent/landlord. 2) There is no controversy between the parties about the identity of the property or even the relations. The landlord moved the learned Rent Controller, Nanded, seeking eviction of the appellant/tenant on the ground of willful default and nuisance/waste to the property. The learned Rent Controller, Nanded, by his order dated 31st May, 2001, did not accede to the contentions of the landlord and dismissed the petition. The aggrieved landlord took the matter before the learned District Judge, at Nanded vide H.R.C.A.No.10/2001, preferring an appeal under Section 25 the Hyderabad Houses (Rent, Eviction and Lease) Control Act, (Act of 20 of 1954), (for 3 short, hereinafter to be referred to as Hyderabad Rent Act). The learned District Judge, Nanded (as then he was) by order dated 18th October, 2002 set aside the order of the learned Rent Controller, allowed the petition of the landlord by allowing both the appeals, viz. H.R.C.A.No.9/2001 and H.R.C.A.No.10/2001. The appellant/tenant was directed to deliver possession to the landlord within a period of two months from the date of order dated 18.10.2002. 3) Being aggrieved by the said orders of eviction, Civil Revision Application Nos. 997/2002 and 996/2002 were preferred by the tenant, the appellant. CRA No.996/2002 is disposed of as the tenant has vacated the premises. Now the question revolves to the premise where the business activities under the name and style “M/s Apsara Dresses” are carried by the tenant/appellant. 4) The learned Sr.Counsel while assailing 4 the order of the learned District Judge states that owner of the property was Gurubax Singh and not Amolak Singh and consequently the respondent Amolak Singh could not be branded to be landlord of the appellant. That apart, according to him, Gurubax Singh had 50 shops, shop is not required for personal use. There were adjustment of accounts from various purchases made by the family members from the shop of the tenant and consequently there could not be any default in remittance of the rent. The intervening wall between the two shops was not demolished by the tenant, but it was so done by landlord to facilitate business activities of the tenant, hence, according to learned Sr.Counsel, no nuisance or waste to the property. 5) These aspects agitated by learned Sr.Counsel are indeed exhaustively dealt with by the then learned District Judge while dealing with the appeal where the landlord sought eviction. 5 6) In the written statement before the Rent Controller, the tenant/appellant has accepted his relation with Amolak Singh as the landlord. Therefore, before this Court or before the District Judge it is not open for the tenant to agitate that Amolak Singh is not his landlord. In fact, if such defence is raised, the tenant has invited action for eviction in terms of provisions of the Hyderabad Rent Act. However, that aspect is left aside. 7) The contention that rent used to be adjusted by the landlord is again negatived as the rent receipts in the form of xerox tendered by the tenant/appellant rebel against his contention. All these rent receipts are issued by Amolak Singh, which on number of occasions indicate that some amount was directly paid by the tenant/appellant towards the municipal taxes, which have been adjusted towards rent for which necessary receipts are passed, even on few occasions, the tenant paid amount to employee of 6 Amolak Singh, which also Amolak Singh subsequently ratified by passing the receipts or chits are also issued by Amolak Singh which subsequently are accepted by Amolak Singh to have been so issued by him. The scenario in the matter largely demonstrated, there was no regular remittance of the rent from the tenant/appellant, which has indeed resulted in piling up the arrears. The contention that the default was not willful and the tenant has remitted the amount at the time of hearing or at the time of hearing before the Rent Controller by itself will not exonerate the tenant/appellant from the liability of being branded as a willful default. The default being established by the landlord, the burden is shifted on the tenant to establish that the default was not willful. However, no such exercise has been taken by the appellant/tenant to establish that the default was not willful. Such stand now taken, will not be available to be coined and addressed. Apparently, the tenant failed to make remittances of rent from July 1983 7 to October 1984 for 16 months. Such rent are subsequently remitted. The tenant also paid rent for the period from November, 1984 to October, 1985 on 29th July, 1986. The statement indicate, tenant/appellant used to remit the rent within the range of seven months to 36 months at a time. Thus, it was seen and observed, the tenant/appellant was not regular in remitting the rent month to month though the arrangement between the parties was of the monthly tenancy. 8) The contention that the intervening wall was removed by the landlord is negatived. Even in the grounds raised before this Court, inconsistent stand is taken by the appellant. At one stage he says the wall was demolished to facilitate business activities at the consent of the landlord, at the other stage, he says the landlord himself demolished the wall and at the third breath, he says, demolition of wall by the appellant/tenant by itself will not diminish value of the property. The tenancy of two shops 8 was distinct, rent was also independently paid for each shop. 9) The other contention raised by the appellant is that the rent was consolidated or it was enhanced from initial rent. These aspects were addressed before the learned District Judge for the first time without support of pleading or rather evidence. The learned District Judge justifiably rejected the said contentions, as they were not flowing in tune with the pleadings or evidence. 10) During the course of submissions, Mr. Mandlik pointed, and now not disputed by Mr.Deshmukh, that the landlord has at least 20 shops to his share from his father and his lifestyle is rest on collection of the rent. This may be factual aspect in the matter, however, that cannot be addressed in the present proceedings as the grounds of eviction are not bona fide requirement, but they are centering to 9 the point of willful default and waste/nuisance to the property. 11) Taking survey of all the facts, I find that there is no error on the part of the learned District Judge in passing the eviction decree against the tenant/appellant herein. The Civil Revision Application sans merit, it is dismissed. Rule discharged. CA disposed of. 12) Considering the present business activities and the dependent livelihood of the appellant/tenant, the request of Mr. Mandlik to extend time to vacate the premises for a period of 1 year cannot be granted. However, the tenant/appellant shall vacate the premises up to 31st of August, 2010. The tenant/appellant shall furnish an undertaking to the Registrar of this Court, within fifteen days from today, specifying, that the appellant will not alienate the property, will not create lease thereon and will not part possession thereof in favour of 10 anybody, will not sublet the property under any banner. Failure to give the undertaking, the concession granted today will automatically come to an end. sd/- (K.U.CHANDIWAL) JUDGE bdv/cra997.02 Authentic copy (BD VADNERE,PS)