vsa 1 CRA246_2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 246 OF 2007 Malegaon Welfare Trust ...Applicants vs. Vasant Tanaji Rokade & Anr. ...Respondents Mr. N.R. Bubna for the Applicants Mr. A.R. Kapadnis for Respondent Nos. 1 & 2 CORAM : A.S.OKA,J. DATE : 13th December, 2011 ORAL JUDGMENT: The Revision Applicants, who are the original plaintiffs have challenged the judgment and decree dated 23rd November, 2001 passed by the learned Additional District Judge by which the judgment and decree dated 11th November, 1997 passed by the Trial Court in a suit filed by the applicants was set aside and the suit filed by the applicants was dismissed. 2. The suit premises is the residential room admeasuring 13 feet X 12 feet, more particularly described in the plaint. The 1st applicant is a public trust and the other applicants are its trustees. According to the case of the applicants, suit premises was let out to the second respondent for residential purposes at the monthly rent of Rs.60/-. It is alleged that the second respondent attempted to sublet the suit premises to the first respondent and therefore, a suit for injunction was filed by the applicants. It is alleged that inspite of order of ad-interim injunction, the second respondent has sublet the suit premises to the first respondent. The respondents are the real brothers. It is alleged that rent was not paid since August 1990 and therefore, a notice of demand dated 20th January, 1994 vsa 2 CRA246_2007 was issued by the applicants to both the respondents. It is alleged that the notice was received by the first respondent. The same notice was re-issued on 14th February, 1994 and it is alleged that both the respondents did not accept the said notice. It is alleged that from August 1990 till the end of February, 1994 the rent was not paid. It is alleged that the second respondent has carried out permanent additions and alterations to the suit premises. 3. The suit was contested by the first respondent by filing written statement. It is his contention that a sum of Rs.2000/- was paid by the second respondent to the rent collector. It is denied that the second respondent has sublet the suit premises to the first respondent. Service of notice is denied by the first respondent. 4. The Trial Court passed a decree on the grounds of default and illegal subletting. The Trial court also passed a decree on the ground of acquisition of suitable residence. The decree for possession passed by the Trial Court was set aside by the Appellate Court by the impugned judgment and decree. 5. The learned counsel appearing for the applicants pointed out that apart from the fact that interest at the rate of 9% p.a. on the arrears of rent was not deposited by the second respondent, in fact when a sum of Rs.3,900/- was deposited by the first respondent in the Trial Court on 20th June, 1997, total arrears payable by the second respondent for the period of 82 months amounted to Rs.4,920/-. He submitted that this fact was glossed over by the Appellate Court. He submitted that the case that the suit premises was let out to Joint Hindu Family was introduced for the first time at the time of recording of evidence and therefore, the same vsa 3 CRA246_2007 could not have been accepted by the Appellate Court. He submitted that once it is accepted that second respondent was the tenant, the acquisition of suitable residence is established from the admission of the first respondent himself. He, therefore, submitted that the judgment of the Appellate Court is perverse. The counsel for the Respondent supported the decree. 6. I have carefully considered the submissions. The first issue will be regarding the arrears of rent. The suit was filed in the year 1994 and, therefore, the same will be governed by Section 12(3) of the Bombay Rent, Hotel and Lodging, houses rates Control Act, 1947 (herein referred to as the said Act) as amended by the Maharashtra Act No. 18 of 1987. In view of Sub-section (3) of Section 12 of the said Act, a tenant could have obtained a relief against forfeiture only by depositing the entire arrears due with simple interest thereon at the rate of 9%p.a. together with costs of the suit on or before the first date of hearing of the suit. In the present case, as set out in the plaint, the arrears payable were from August, 1990. The finding of both the Court below is that the first respondent deposited a sum of Rs.3,900/- on 20th June, 1997. The arrears payable as of that date were atleast of 84 months at the rate of Rs.60/- per month. Thus, the amount of arrears of rent as of that date was much more than a sum of Rs.3,900/-. Thus, not only that the entire arrears were not deposited, even the interest @9% and the cost amount was not deposited. Therefore, on failure to comply with the requirements of Sub-section (3) of Section 12, the Trial Court passed a decree on the ground of arrears of rent. The said finding as regards arrears was set aside by the Appellate Court by a very cryptic finding. In para 12 of the judgment, the Appellate Court has observed as under: “..... It is revealed from the record that vsa 4 CRA246_2007 Defendant No. 2 deposited an amount of Rs.3,900/- in the Court before 1st day of hearing of the suit, i.e. before framing of issues. It can be easily said that Defendant No. 2 has deposited arrears of rent and excess amount before the date of hearing of the suit. In fact, excess amount is quite sufficient to cover the costs of the suit and interest. It cannot be ignored that dispute of wilful default will be governed as per amended section 12 of the Bombay Rent Control Act, which took place in the year 1987. Since the arrears of rent and costs of the suit with interest is deposited by the Defendant No. 2 before the 1st day of hearing of the suit, it cannot be said that the Defendants were not ready and willing to pay the rent and they became willful defaulter. In such circumstances, I am of the opinion that ground of wilful defaulter is not duly established and hence I answer issue no. 1 in the affirmative and issue no. 2 is negative.” 7. There is absolutely no material on record to show that the entire arrears of rent, interest at the rate of 9% per annum and costs was deposited by any of the respondents. Thus, the finding of the Trial Court on the issue of arrears has been erroneously set aside by the Appellate court by holding that the entire arrears along with interest and costs amount was deposited though there was absolutely no evidence to come to the said conclusion. 8. As pointed out earlier only the first respondent filed written statement. In the written statement, the allegations of sub-tenancy have been denied. In paragraph 5 of the plaint it is alleged that the second respondent vsa 5 CRA246_2007 has sublet the suit premises to the first respondent. In paragraph 5 of the written statement, there is a general denial of the said averments. However, it is not the case made out that the tenancy was taken by a Joint Hindu family. Thus, the Trial Court observed that there is no pleading that the suit premises was not let out to the second respondent, but it was let out to the Hindu undivided family of the first and second respondents. The Trial Court observed that this case was made out for the first time at the stage of recording of evidence. Therefore, the Trial Court rejected the case made out by the first respondent that the name of the second respondent was shown as a tenant in his capacity as the Karta of Joint Hindu family. The Appellate Court has recorded a very cryptic finding holding that the suit premises was let out to the Joint family of the respondents. The said finding could not have been recorded in absence of any such pleading in the written statement. 9. It is necessary to make a reference to the finding of the Trial Court on the issue of acquisition of suitable residence. In paragraph 13 Trial Court has held as: “13. Copy of said complaint at Exh. 76 which is admittedly the second defendant in his cross examination shows the residence of first defendant at Shejwal Nagar Badgaon Road, Chaligaon, Dist. Jalgaon. The complaint contains averments that the complainant (first defendant) was occupying the shop premises situated at Hirapura road and a house situated at Gramastha Karyalaya, Badgaon Road, Chalisgaon, Dist. Jalgaon, both belonging to the first accused one Mr. K.Y. Jorvekar. It vsa 6 CRA246_2007 further mentions that the first defendant took said premises on rent in July 1993. The second defendant did not produce the extract of voters' list since 1972 and the latest one to show that the entire joint family was residing in the suit premises. The defendants have one more brother namely Mr. Shashikant and mother Laxmibai and father Tanaji. If such voters' lists were produced that could have thrown light on this aspect, and certainly that would have consolidated the second defendants case. It is also pertinent to note that the second defendant did not raise the plea of non-joinder of other members of so called Hindu Joint Family. In these circumstances, the voters list at Exh. 72 and ration card at Exh. 75 do nto further his case.” 10. The reference to the complaint, is to the criminal complaint filed by the second respondent. It is pertinent to note that the first respondent did not come out with the case that being a member of the family of the second respondent, he was residing in the suit premises. The contention raised at the time of hearing of the suit was that the second respondent was not the tenant but the tenancy was for the benefit of Joint Hindu family. Once such contention was raised, the burden was on the first respondent to show that though the tenancy was in the name of the second respondent, he was occupying the suit premises as a matter of right. The first respondent failed to substantiate the case that the Joint hindu family was the tenant. This is a case where the person who is not a tenant is admittedly in possession of the suit premises and he has failed to prove in what capacity he is in possession of the suit premises. Therefore, the vsa 7 CRA246_2007 Trial Court has drawn an inference of sub-tenancy. Therefore, there was no reason for the Appellate Court to disturb the finding of the Trial court on the issue of illegal sub-tenancy. As pointed out earlier the Appellate Court has recorded a finding that the second respondent, who is the tenant was residing at Shejwal Nagar, Badgaon Road, Chalisgaon, District Jalgaon. He was having a shop premises at Hirapur Road in Chalisgaon. Therefore, the acquisition of suitable residence by second respondent was also duly established. 11. Hence, the Revision Application succeeds and I pass the following Order: (i) The impugned judgment and decree dated 23rd November, 2001 is quashed and set aside and the decree passed by the Trial Court in Regular Civil Suit No. 174/1994 is restored. (ii) Rule is made absolute on the above terms. (A.S. OKA, J.)