1 CRA Nos. 1351/1993 & 1011/1996 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.1351/1993 Mahendra s/o Ramdas Thakkar Age: 48 Yrs., occu. Business, R/o Vazeerabad, Nanded. - PETITIONER (Tenant) VERSUS Smt.Godavaribai alias Sushilabai w/o Dhondiraj Deshmukh (since died throgh L.Rs.) 1) Bhaskarrao s/o Sitaram Deshmukh Age:60 Yrs. Occ. Nil R/o Bhagyanagar, Nanded, District Nanded. 2) Ramchandra s/o Bhagwanrao Deshmukh Age: 35 yrs., occu.Contractor, R/o 10-1, Padmachaya, Near Hotel Print Travel, Bhagyanagar, Aurangabad. 3) Prashant s/o Bhagwanrao Deshmukh Age: 30 Yrs., occu. Contractor, R/o as above. 4) Prakash s/o Dattatraya Kulkarni, Age: 62 Yrs., occu. Advocate, R/o Vazirabad, Nanded, District Nanded. - RESPONDENTS (Landlord) ***** Mr.MN Navandar, Advocate for Petitioner; Mr.Pradeep Deshmukh, Adv. For Resp.Nos.1 to 3; Mr.PV Mandlik, Sr.Counsel with Mr.Amol Gandhi, Adv. For Respondent No.4. ----- 2 CRA Nos. 1351/1993 & 1011/1996 WITH CIVIL REVISION APPLICATION NO.1011 OF 1996 Dhondiraj Devidasrao Deshmukh (Died through L.Rs.) Smt.Godavaribai @ Sushilabai w/o Dhondiraj Deshmukh (died through Legal heirs.) 1(1) Bhaskar Sitaramrao Deshmukh Age: 65 Yrs., R/o Opp.Multipurpose High School Vazirabad, Nanded. 1(2)Ramchandra Bhagwanrao Deshmukh Age: 40 Yrs., occu. Builder, R/o Opp. Multipurpose High School, Vazirabad, Nanded. 1(3) Prashant s/o Bhagwanrao Deshmukh, Age: 35 Yrs., occ. Medical Practitioner, r/o 2, Vihang, Jaynagar, New Osmanpura, Aurangabad. 1(4) Prakash s/o Dattatraya Kulkarni, Age: 62 Yrs., occ. Advocate, R/o Vazirabad, Nanded, District Nanded. - PETITIONERS VERSUS Mahendra Ramdas Thakkar, Age: 25 Yrs., occu. Business, R/o Vazirabad, Dis.Nanded. - RESPONDENT ... Mr.Pradeep Deshmukh, Adv. for Petitioner Nos. 1(1) to 1(3); Mr.PV Mandlik, Sr.Counsel with Mr.Amol Gandhi, Adv. for Petitioner No.1(4). Mr.MN Navandar, Advocate for sole respondent. 3 CRA Nos. 1351/1993 & 1011/1996 CORAM : K.U.CHANDIWAL, J. DATE OF RESERVING JUDGMENT: 15th NOVEMBER,2011. DATE OF PRONOUNCING JUDGMENT: 30th NOVEMBER,2011 ORAL JUDGMENT: 1) Heard. 2) CRA No.1351/1993 is filed by the tenant; whereas CRA No. 1011/1996 is filed by the landlord on certain findings of first appellate court and dismissal of RCA No.30/1989.. 3) In CRA No.1351/1993 Rule was granted by this Court on 5th of April, 1994 and the revision applicant was directed to deposit damages @ Rs. 1500/- per month and liberty was granted to the respondents therein to withdraw the same. Such directions are scrupulously complied with; 4) In CRA No.1011/1996 Rule was granted on 6.2.1997. 5) The revision by the original tenant questions the judgment and decree in Regular Civil Appeal No.30/1989 dated 29.11.1993, in which the learned District Judge held that the order passed by the Rent Controller, on the ground of willful default, was liable to be set aside. However, the order, directing ejectment 4 CRA Nos. 1351/1993 & 1011/1996 of the tenant from the suit premises on the ground of alternate accommodation, was upheld. 6) Brief facts of the case, can be summarized as under: (a) Dhundiraj Deshmukh sought eviction of the suit premises, bearing Municipal House No. 3-5-57 and one godown, admeasuring 12' x 30' situated at Vazirabad, Nanded on the grounds, viz.:- i) personal bonafide requirement; ii) willful default in payment of rent’ and iii) alternate accommodation, against the tenant (revision applicant) before the learned Rent Controller, Nanded under Section 15 of Hyderabad Houses (Rent, Eviction and Rent) Control Act, 1954 (hereinafter to be referred as the Rent Control Act). (b) The learned Rent Controller, Nanded did not accede the request of eviction of the suit premises on the ground of bonafide requirement of Dhundiraj, however, decreed the petition on the ground of willful default and alternate accommodation. 7) Several off-shoots are occurred or created in the matter, as after death of owner – 5 CRA Nos. 1351/1993 & 1011/1996 Dhundiraj, his widow, viz. Godavaribai @ Sushila was brought on record. She too died on 10th March, 2001 and consequently, a dispute crept in respect of staking claim to the suit property. 8) A Special Civil Suit No.202/2006 is filed at Nanded by nephews of Godavaribai. Prakash claimed rights based on Will-Deed while Ramchandra and Bhaskar staked rights, being descendants/successors of deceased Dhundiraj and Smt. Godavaribai. 9) This Court directed, Special Civil Suit No.202/2006 filed by nephews of deceased Godavaribai against Prakash to be expeditiously disposed of in time frame. However, the parties have informed, the matter is not yet completed and awaiting disposal. These developments are referred, as the branch of Respondent nos.1A has supported the tenant Mahendra, the revision applicant. They assert to be natural legal heirs of deceased Godavaribai and have compromised the dispute amicably with revision applicant – Mahendra. They claimed, Prakash Kulkarni is staking rights based on fraudulent plea, which is subject matter of Special Civil Suit No.202/2006 and consequently, since the matter is subjudice, Prakash cannot claim possession or any right, title and interest in the suit property. 6 CRA Nos. 1351/1993 & 1011/1996 10) The aforesaid details have has deviated the main issue in both the revision applications, occasioned unfortunately due to death of Dhundiraj or his widow Godavaribai. 11) Mr.Navandar, learned Counsel for revision applicant – Mahendra, the tenant, submits that the finding of alternate accommodation to the tenant is now required to be re-considered in the light of changed circumstances,i.e. subsequent development, as the Gurudwara Board has taken back possession of other shops from the revision applicant on 8th December, 2003, for which, possession receipt is executed in favour of the revision applicant – Mahendra on 30.12.2003. 12) This has been brought on record by way of additional affidavit and consequently, the question would be as to whether or not eviction decree can be executed on this very ground when the Hon'ble Apex Court and this Court, in various verdicts, declared that subsequent development/s or events are necessary to be considered while pending the matter in the court law. Learned Counsel also submits, non-filing of application for amendment of pleadings, will not obliterate the situation. The subsequent developments/events 7 CRA Nos. 1351/1993 & 1011/1996 brought by way of affidavit, are sufficient to inform the court and act upon them. 13) The law does not permit tenant Mahendra to coin and take benefit of above referred Special Civil Suit pending between Prakash and Bhaskarrao. It would be the fate of said Special Civil Suit, which would independently decide the rights of the parties. For the present, he has to deal with his stand as to whether or not there was alternate accommodation on the date of the decree. 14) The evidence illustrate that tenant Mahendra had secured another shop premises just opposite to the suit premises. The contention, that he has vacated the subsequent premises, has no bearing, as it does not form pleading in the revision application. Mere slapping of the affidavit, that too without any coherent and cogent evidence to establish the same, would not make this Court to act upon in tune to submissions of tenant Mahendra. This Court, in the situation, is not in a legal position to consider the so-called subsequent development/s of tenant Mahendra tendering alternate accommodation, to repeat, for want of pleadings and evidence. The record illustrates, and not disputed, as on 1989 at least up to 2003, there 8 CRA Nos. 1351/1993 & 1011/1996 was alternate suitable accommodation for tenant Mahendra, opposite the suit premises. 15) The evidence establish that the suitable alternate accommodation acquired by tenant Mahendra was a shop, admeasuring 20’ x 25’, acquired in 1986 with mezzanine floor, it is used for storage and display of stock-in-trade. Mahendra had indeed admitted that he carried business activities from both the premises. Newly acquired shop was 1½ time bigger in size than the suit shop. 16) The learned Rent Controller and the learned District Judge rightly negated the contentions of Mahendra, the revision applicant, that the new/subsequent acquired premises is not alternate accommodation within the meaning of Section 15(2)(v) of the Rent Control Act, as it was an additional accommodation meant of his expanded business. The observations of both the courts are based on the assessment of the evidence and that there was no enormous/substantial increase in the business activities that the suit premises was found inadequate and consequently, tenant acquired new shop premises by way of additional accommodation for expanding his business affairs. 9 CRA Nos. 1351/1993 & 1011/1996 17) The decree was also passed by the learned Rent Controller on the ground of willful default. The landlord canvassed that the tenant committed defaults in payment of rent of the suit premises for the month of February 1987 and March 1987. This has been disputed by the tenant having committed any default. He has asserted that as per the instructions and understanding with the landlord and old practice, he deposited rent for those two months in advance in Saving Bank Account of the landlord with Bank of Maharashtra, Nanded. The assessment of evidence, carried by the learned District Judge as to the practice adopted by Landlord of accepting remittance of rent in the Saving Bank Account, needs to be believed, indeed does not call for interference. 18) The bonafide requirement was of Dhundiraj or his wife Godavaribai, however, since they are bereaved, the question of bonafide requirement will not subsist. This follows that the revision of the landlord, seeking challenge to the judgment and decree passed by the learned District Judge dated 29.11.1993 on the point of bonafide requirement, does not require any interference. 19) The revision before this Court has in- built restrictions. This Court can interfere in 10 CRA Nos. 1351/1993 & 1011/1996 the orders of first Appellate Court, if it has acted illegally or with material irregularity. On re-assessing the evidence, even in revision, I find there is no error on fact or error of law to involve a roving inquiry. Revisional jurisdiction under the Rent Control Act is limited and is confined strictly to the jurisdictional error or illegal exercise of jurisdiction. The grounds raised by the revision applicant/tenant Mahendra that he has lost/surrendered another tenanted premises to Gurudwara Board, to repeat, being not legally indicated and surreptitiously tried to be accelerated, has no decisive bearing to be considered. The judgments of the Supreme Court, to which reference is given by learned counsel for the revision applicant, will not flow to accede as they dwell upon different events and facts, as projected in the case before the Hon'ble Supreme Court. 20) In the case of Mohan Ismail Vs. Dinkar Vinayakrao Dorlikar - 2009 (13) Scale 454, the Hon'ble Supreme Court, while assessing the situation of bonafide requirement of the landlord, noticed, that the landlord had constructed two shops rooms subsequent to eviction decree and his son had also expired, second son had absconded for last 8-9 years, consequently, no orders of eviction could be 11 CRA Nos. 1351/1993 & 1011/1996 passed, without considering the subsequent events. Consequently, the Hon'ble Supreme Court observed, no orders of eviction could be passed and remanded the matter to the High court to frame an issue whether in view of subsequent events, bonafide requirement of landlord has already been satisfied or not. 21) In the mater of Jaiprakash Gupta Vs. Riyas – 2009 (13) Scale 466 and 2009 10 SCC 197, the Hon'ble Lordships were dealing with the aspects of bonafide requirement, comparative hardship to landlord and tenant has to required the suit premises. In the said case, subsequent development altered the conditions and Supreme Court held cognizance thereof should have been taken. To repeat, no such eventuality has emerged in the present case. 22) The theory of surrendering the suit premises is a camouflage and prima facie an eye- wash, generated to disturb the decree of eviction, awaiting for its fruits since 1989, and in particular, the landlords have lost their lives for such fruits. 23) CRA No.1351/1993 dismissed. Rule discharged. CA No.11225/2006 disposed of. 12 CRA Nos. 1351/1993 & 1011/1996 24) CRA No.1011/1996 dismissed. Rule discharged. 25) Revision applicant/tenant Mahendra to vacate the suit premises by 31st July, 2012. He will continue to deposit Rs.1500/- pursuant to the earlier directions dated 5.4.1994. sd/- (K.U.CHANDIWAL) JUDGE bdv/ fldr. 28.11.11