{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.58 OF 2011 Shantilal Chandaji Gandhi, age: 70 years, Occ: Business, R/o Pansare Lane/Old Ghas Lane, Ahmednagar, Dist.Ahmednagar. Petitioner Versus Kumud Prabhakar Ambhore, age: 55 years, Occ: Household, R/o Kategalli, Ahmednagar, District Ahmednagar. Respondent Mr.V.J.Dixit, Senior Counsel i/by Mr.S.B.Khan, advocate for petitioner. Mr.P.R.Katneshwarkar, advocate i/by Mr.N.S.Jaju, advocate for respondent. CORAM : R.M.BORDE, J. Reserved on : 29 th March, 2011 Pronounced on: 13 th April, 2011 ORDER: 1 Petitioner-tenant is raising exception to the concurrent orders passed by the Courts below in respect of eviction of the petitioner from the tenanted premises. 2 Respondent-landlady presented suit bearing R.C.S. No. 409/2005 against the tenant - petitioner herein claiming eviction {2} of the tenant and recovery of possession of the tenanted premises on two grounds. It is contended by the landlady that the tenant is defaulter in payment of rent and permitted increases and secondly, premises in question are required for business purposes of her son. 3 The contentions raised by landlady have been controverted by the respondent contending that he is not defaulter in payment of rent. So far as the ground of bona fide requirement raised by landlady is concerned, it is contended by the tenant that husband of the landlady and her sons are conducting business of selling utensils in the adjoining premises. They do possess business premises for carrying out the business activity. The tenant is in possession of the only business premises, which is source of his and his family’s livelihood. It is contended that more hardship would be caused to him if the decree of eviction is passed. 4 The trial Court, after considering the rival contentions, was pleased to hold that the landlady has proved that the suit premises are reasonably and bona fide required for business purposes of plaintiff’s son. The trial Court negatived the contentions raised by the plaintiff in respect of recovery of possession of the tenanted premises on the ground of wilful default in payment of rent and permitted increases by the tenant. {3} 5 The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No.08/2010, which came to be heard and disposed of by District Judge-3, Ahmednagar, who, after considering the contentions of both the parties, was pleased to dismiss the appeal in view of the judgment and decree passed on 15.12.2010. 6 Shri Dixit, learned Senior Counsel appearing for the petitioner, has contended that the suit presented by the plaintiff before the 4th Joint Civil Judge, Senior Division, Ahmednagar, and decision in the suit by the Court of 4th Joint Civil Judge, Senior Division, is in contravention of provisions of Section 33 of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the Act of 1999”). It is contended that as per the provisions of Section 33(1)(c) of the Act of 1999, the suit shall have to be presented seeking a decree of eviction in the Court of Civil Judge, Junior Division, having jurisdiction in the area in which the premises are situate or if there is no such Civil Judge, to the Court of Civil Judge, Senior Division, having ordinary jurisdiction. It is contended that tenanted premises are situate within the jurisdiction of Ahmednagar city and there is Court of Civil Judge, Junior Division and as such, it was not competent for the Court of Civil Judge, Senior Division, to entertain the suit. The provisions of Section 33 of the Maharashtra Rent Control Act, 1999, are in {4} pari materia with the provisions of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1948 (hereinafter referred to as “Bombay Rent Act)”). Reliance is placed on the judgment in the matter of Vijaykumar s/o Vinayakrao Pathak Vs. Madhukar s/o Dinkar Chitale, reported in 2002 (5) Mh.L.J. 415. It was held in the reported matter that application for execution of a decree of eviction shall have to be instituted in the Court of Civil Judge, Junior Division and not in the Court of Civil Judge, Senior Division, wherever there is a Court of Civil Judge, Junior Division available. 7 The learned Single Judge of this Court, while dealing with Writ Petition No.1816 of 2004 (Sureshchandra Soni Vs. Devichand Gandhi), has considered the issue and placing reliance on the judgment delivered by the Division Bench in the case of Savitribai and another Vs. Vithal Hari Petakar, reported in AIR 1981 Bombay 430, held that while interpreting the provisions of Section 28 (1)(b) of the Bombay Rent Act, one has to take into consideration the scheme of the Bombay Civil Courts Act, 1869. The non obstante clause in Section 28 of the Bombay Rent Act do not exclude the provisions of Bombay Civil Courts Act, 1869. The Division Bench in Savitribai’s case (supra), has held that Section 28(1)(b) read in the light of scheme of Bombay Civil Courts Act, 1869, mean that where there are no Courts of Civil Judge, Junior Division, established under the Bombay Civil Courts Act, the suits {5} or proceedings under the Bombay Rents Act would be triable by the Principal Judge of the Court i.e. Civil Judge, Senior Division, or by any of the Joint Judges, whether he be a Joint Civil Judge, Junior Division or Senior Division to whom the matter has been referred by the Principal Judge. It is also to be taken note of that at Ahmednagar there is a Court of Civil Judge, Senior Division, established under the provisions of Bombay Civil Courts Act, 1869. 8 Considering the ratio laid down in the matter of Savitribai (supra), the argument advanced by the petitioner that the suit ought to have been tried by the Court of Civil Judge, Junior Division, is required to be turned down. In this context, it would be useful to refer to the judgment of the Full Bench of this Court in the matter of Ranchhodlal Vallabhdas Vs. Mahendrakumar Ambalal, reported in AIR 1956 Bombay 481. The Full Bench, in paragraphs 4 & 6 of the judgment, has observed thus: “4 Any other construction would lead to this rather curious result that whereas the Legislature trusted Courts of Civil Judges, Junior Division in taluka places to try rent suits, they insisted on only the senior most Civil Judge trying similar suits in district places like Ahmedabad and Poona. No logical reason has been suggested by Mr.Shah why the Legislature should have intended to make this distinction. {6} All that he could intend was that it may be a lacuna in the legislation; and that we must give effect to legislations as we find it. Before we can come to the conclusion that there is a lacuna in any law passed by the Legislature, our attempt must be to give such a construction to a law passed by the Legislature as would avoid any such lacuna and avoid any such anomalies, and in our opinion the clear language of S.28(2) (a) leaves no doubt that, that is the only construction possible. 6 There is one other question which also arises on this reference and that is whether apart from the power of the Principal Judge of the Civil Court to refer cases to his colleagues under S.23, para 5, the District Judge himself could transfer a suit from the Small Cause Court and direct a joint Senior Civil Judge or a Junior Civil Judge to try that suit & the determination of that question depends upon whether S.28 of the Rent Act has in any way abrogated the provisions of S.24, Civil P.C. In our opinion, S.28 of the Rent Act does not affect the right of the District Judge under S.24 , Civil P.C. in the slightest degree. If a rent suit is pending in the Small Cause Court, then under S.24, Civil P.C., the District Court has the power to transfer it to a Court subordinate to the District Judge provided that Court is competent to try the suit. Therefore, the District Judge could only exercise his power under S.24, Civil P.C. of transferring rent suits provided he transfers {7} those suits to those ordinary Courts upon which special jurisdiction has been conferred by S.28 of the Rent Act, and therefore, if the District Judge withdraws the suit from the Small Cause Court and transfers it to a Joint Senior Civil Judge or to a Junior Civil Judge, he is validly and properly exercising his power under S.24, Civil P.C. because both the joint Senior Civil Judge and the Junior Judge have jurisdiction to try the rent suit under S.28.” 9 As stated above, the provisions of Section 28 of the Bombay Rent Act are pari materia with the provisions of Section 33 of the Maharashtra Rent Control Act. Thus, in view of the law laid down by the Full Bench of this Court, while interpreting provisions of Section 28 of the Bombay Rents Act as well as the view adopted by the learned Single Judge of this Court while dealing with Writ Petition No.1816 of 2004 (Sureshchandra Soni Vs. Devichand Gandhi), the argument advanced by the petitioner that the Civil Judge, Senior Division, is not competent to decide the suit, is required to be turned down. 10 It is contended by the petitioner – tenant that the landlady has terminated tenancy of the tenant by issuing notice on 07.09.1988 and suit seeking eviction of the tenant presented in the year 1995 is beyond prescribed period of limitation. It is to be noted that after issuing notice on 07.09.1988, the landlady did not file the suit immediately. Although by issuing notice on 07.09.1988, tenancy of the tenant was terminated, however, the {8} landlady accepted the rent for subsequent period till presentation of the suit in 2005 and the tenant also paid rent to the landlady. The payment of rent by the tenant and acceptance thereof by the landlady is not disputed by either of the parties. Thus, the relationship of landlady and tenant subsisted in spite of issuance of notice by the landlady in the year 1988. The argument advanced by the petitioner – tenant that the tenancy stand terminated in the year 1988 and as such, suit presented in the year 2005, would be beyond prescribed period of limitation, does not hold water and the objection shall have to be turned down. 11 It is contended that the landlady does not require the premises bona fide as there is already an existing business being run by the family in adjoining premises. It is specifically contended by the landlady that the premises are needed for establishing business for her son, who is unemployed. It is for the landlady to assess her need of requirement of the premises. It is not disputed that husband of the landlady is dealing in business of selling utensils. It is also not disputed that her another son is major and is unemployed. The need exhibited by the landlady in respect of requirement of premises cannot be said to be fictitious. Moreover, both the Courts below, on appreciation of evidence, placed on record by the parties, have recorded a finding that the need exhibited by the plaintiff in respect of requirement of premises for establishing business for the son of landlady is {9} reasonable and bona fide. This Court, in revisional jurisdiction, need not probe into the question of facts, which has been dealt with and answered by the Courts below on appreciation of evidence. 12 It is also contended that the trial Court prohibited the tenant from leading evidence in the matter. My attention is invited to the order passed below Exhibit-78 by the trial Court on 24.06.2009. While considering the application tendered by the tenant for summoning the witnesses, in clause 6 of the operative order, it is directed that the defendant would not be permitted to lead any more evidence after completion of evidence of three proposed witnesses. Learned Senior Counsel appearing for the petitioner, is not, however, in a position to point out that as to what evidence his client proposed to present before the trial Court or what evidence, either oral or documentary, the tenant intended to present before the trial Court. There was no such application presented either before the trial Court or before the first appellate Court exhibiting desire by the tenant to lead any further evidence. The tenant has also not made any grievance before the first appellate Court by tendering any application giving particulars as to the nature of the evidence tenant wishes to bring on record, either oral or documentary. It appears that there were ample opportunities given to the tenant since presentation of the suit in the year 2005 till the year 2009 and while considering the {10} application for summoning additional witnesses on his behalf at belated stage, the trial Court granted him permission to examine the witnesses. The trial Court, it appears, was of the opinion that the tenant is trying to protract the litigation, as such, direction debarring him from leading further evidence, appears to have been issued. However, as stated above, the tenant has not, either before the trial Court or before the first appellate Court, given any particulars as to what evidence he proposes to bring on record nor such an application was made either before the trial Court or the first appellate Court. In this Revision Application also, no such particulars are given by the tenant as to in what manner he is prejudiced on account of the order passed by the 4th Joint Civil Judge, Senior Division, Ahmednagar, on 24.06.2009. In the absence of the particulars and in the absence of tendering any request in respect of leading any further evidence with full particulars thereof, it cannot be held that any prejudice is caused to the tenant – petitioner herein. The tenant has been given fullest opportunity to lead his evidence. The proceedings initiated by the landlady in the year 2005 were decided and the judgment was delivered by the trial Court only on 05.12.2009. It is also clear on perusal of record that issues were framed by the trial Court on 07.08.2006 and the affidavit of the plaintiff’s witness was presented on 07.08.2008 and thereafter recording of evidence in the matter was continued till end of the year 2009. The trial Court was quite liberal in granting adjournments to both the sides to {11} facilitate them to lead evidence. In these circumstances, it cannot be concluded that the defendant-tenant is prejudiced in any manner, nor an inference can be drawn that the trial Court has unreasonably prohibited the tenant from leading evidence in the matter. 13 It is contended that the Courts below have not considered the question of comparative hardship. However, on going through the judgments passed by the Courts below, it is revealed that the question has been considered in appropriate manner and finding has been recorded that the hardship, that would be caused to the landlady, would be more, if the suit is dismissed. The concurrent findings recorded by the Courts below, based on appreciation of evidence, need not be interfered with. 14 A reference can be made to the judgment of the Apex Court in the matter of Patel Valmik Himmatlal & 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 reappreciation of the evidence cannot be a ground for the High Court to substitute its own findings while exercising revisional jurisdiction.” 15 In the matter of Ram Dass Vs. Davinder, reported in {12} (2004) 3 SCC 684, it has been ruled by the Apex Court that, “the High Court cannot reappreciate the evidence while exercising revisional jurisdiction.” In the reported matter, the judgment recorded by the High Court by upsetting the concurrent findings of the authorities below on reappreciating the evidence, has been set aside by the Apex Court. 16 Considering the scope of revisional jurisdiction exercisable by this Court, I am of the view that no interference is called for in the instant matter. Civil Revision Application is without substance. 17 Hence, Civil Revision Application stands rejected. R.M.BORDE JUDGE adb/cra5811