cra424.87 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 424 OF 1987 Mohammed Ismail s/o Syed Saheb age 45 years, occ. business r/o Udgir, Tq. Udgir Dist. Latur. .. APPLICANT VERSUS 1 Imambee w/o Mehtab Saheb age 75 years, occ. household r/o Udgir, Tq. Udgir Dist. Latur. 2 Shaikh Ahmed s/o Sk. Mehtab ( Deceased through LRs) 2-a Qureshi Mehmooda bee w/o Ahmedsaheb age 70 years, occ. household r/o Misri Gunj, Hyderabad. 2-b Qureshi Abdul Hammed s/o Ahmed Saheb age 45 years, occ. business r/o Ramnaspura, Hyderabad. 2-c Qureshi Yousuf s/o Ahmed Saheb age 40 years, occ. business r/o Misri Gunj, Hyderabad. 2-d Qureshi Jahangir s/o Ahmed Saheb age 37 years, occ. business r/o Misri Guj, Hyderabad 2-e Qureshi Mumtaz Begum d/o Ahmed Saheb age 42 years, occ. household cra424.87 2 r/o Phool Bagh, Hyderabad. 2-f Qureshi Ashia Begum d/o Ahmed Saheb age 30 years, occ. household r/o Ramnaspura, Hyderabad. .. RESPONDENTS Mr. K.G. Kadar, advocate for the applicant. Mr. V.C. Solshe, advocate for the respondents. ===== CORAM : R.M. BORDE, J. RESERVED ON : 16 th MARCH, 2011. PRONOUNCED ON : 6 th MAY, 2011. ORAL JUDGMENT : 1 Revision petitioner / tenant is challenging the concurrent orders passed by the courts below directing his eviction out of suit premises. 2 Respondents (hereinafter referred to as the ‘landlords’) initiated proceeding seeking eviction of the tenant / revision petitioner by presenting an application before the Rent Controller under provisions of section 15 of the Hyderabad Houses ( Rent, Eviction and Lease) Control Act, 1954. It is the contention of the landlord that the house in question was originally belonging to one Sk. Mehtab Saheb and after his demise his legal heirs succeeded to the property. Petitioner / tenant is in occupation of the shop cra424.87 3 premises let out to him on 19-10-1977 for monthly rent of Rs.83.32 p. It is the contention of the landlord that the tenant is wilful defaulter in payment of rent. Suit being Regular Civil Suit no. 167/1974 was presented by the landlord claiming recovery of arrears of rent which came to be decreed. Thus, it shows that the default committed by the tenant in paying rent is wilful. Landlord, therefore, issued a notice calling upon the tenant to handover vacant possession of the premises and terminating the tenancy of the tenant. Notice was replied by the tenant contending that the agreed yearly rent was Rs.800/- and not Rs.83.32 p as monthly rent. Ownership of landlord over the suit premises has been admitted by the tenant in reply to the notice. Application tendered by landlord seeking eviction of tenant was not contested by the tenant. Tenant, inspite of granting time for about six years for filing reply, failed to place his defence on record. The Rent Controller, therefore, proceeded to decide the matter on merits and allowed the application tendered by the landlord. The judgment and order passed by the Rent Controller was subjected to appeal in Rent Appeal no. 1/1986. Appeal came to be heard and disposed of by the District Judge, Latur who was pleased to dismiss the same by judgment and order dated 18-8-1987. 3 I have heard arguments advanced by respective counsel appearing cra424.87 4 for the parties. Mr. Kader, learned counsel appearing for the revision applicant contends that no adequate opportunity was extended by the Rent Controller to the tenant to defend his case properly. The matter was proceeded without there being any defence placed on record by the tenant. It is contended that it would be in the fitness of things to permit the tenant to present his written statement and to issue directions to the Rent Controller to proceed to decide the matter after extending an opportunity of hearing to the tenant. Learned counsel appearing for the respondents has supported the judgment delivered by both the courts below and contended that the matter was kept lingering for about seven years by the tenant. Inspite of granting sufficient opportunities, the tenant failed to place on record his written statement and as such, this is not a fit case for granting any further opportunity to the tenant. 4 I have perused the judgments and order passed by both the courts below. It is not disputed by the parties that the landlord except presenting an application did not lead any evidence in the matter. The Rent Controller proceeded to decide the application in the absence of there being any written statement presented by the tenant. The Rent Controller was of the opinion that as the contentions raised in the application were not cra424.87 5 controverted, it would be justifiable to pass an order directing eviction of the tenant. Eviction of tenant is requested on the ground of default in payment of rent. Landlord has put forth the case in respect of monthly tenancy and monthly rent payable by the tenant being Rs.83.32 p. Section 15(2)(i) of the Hyderabad Houses ( Rent, Eviction and Lease ) Control Act, 1954 provides thus :- 15 (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied- (i) that the tenant has not paid or tendered rent due by him in respect of the house, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which rent is payable; . It is the contention of the landlord that the primary responsibility of payment of monthly rent rests on the tenant. On plain reading of section 15(2)(i) of the Act, it would be clear that the Controller has to see whether the rent due was not paid or tendered within 15 days after expiry of time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which rent is payable. If landlord proves that tenant has not complied with cra424.87 6 requirement of Section 15(2)(i) in respect of tender of rent, the Controller has no option but to direct the tenant to put the landlord in possession of the building. In case tenant establishes that default is not wilful, the Controller may give the tenant a reasonable time not exceeding 15 days to pay or tender the rent due to the landlord. If the tenant fails to pay rent within 15 days after expiry of time fixed in the agreement or if there is no such agreement before the last date of the month next following that for which the rent is payable, there shall be presumed to be default on the part of the tenant and the right of the landlord to seek eviction of tenant arises subject only to the proviso to section 15(2). There is nothing in the section which enables the tenant to contend that right of landlord to seek eviction of tenant is lost merely because tenant pays or tenders the rent due to him subsequently. Reliance is placed on a judgment delivered by this court in the matter of Shrikrishna Oil Mill Vs. Radhakishan reported in 2000(2) Mh.L.J. 649. In the case in hand, however, there is absolutely no evidence placed on record by the landlord in respect of default committed by the tenant in payment of rent. There is even no affidavit tendered by the landlord on record to substantiate his case. In such circumstances, it was not open for the Rent Controller to pass an order directing eviction of tenant solely relying cra424.87 7 on the contentions raised in the application tendered by the landlord. The burden is on the landlord to put forth his case and to demonstrate as to whether there was monthly tenancy, whether there was existence of agreement and that tenant committed default in payment of rent, duration of default, amount receivable towards rent etc. In the instant matter, however, the landlord has not established, by leading cogent evidence, factual aspects. It has been held in the matter of Gopal Ramprasad Mundada vs. Ramling Mahaling Swami reported in Mh.L.R. 1982 Bom 254 that when there is no evidence placed on record to substantiate his case by the landlord, the Rent Controller is not empowered to pass an order directing eviction of tenant. The Rent Controller must be satisfied as regards the merits of the contentions raised by the landlord and existence of the grounds mentioned under section 15 of the Act, for directing eviction of the tenant. As has been held by this court in the matter of Namdeo Laxman Nawale vs. Chandrasen Khasiram Rajeshirke and others reported in 2001(2) Mh.L.J. 941 that before passing a decree of eviction, it is necessary for the court to get itself satisfied about the case pleaded by the landlord and the grounds on which eviction of the tenant is sought for. An order of eviction cannot be passed mechanically and without application of mind and merely because cra424.87 8 landlord desires eviction of the tenant. 5 Considering the facts arising in the instant matter that the landlord has failed to place on record any evidence in support of his application, it was an error on the part of the Rent Controller to pass an order directing eviction of the tenant. So far as failure of the tenant to file written statement is concerned, the landlord is justified in contending that inspite of granting several chances for a period of about six years, while the matter remained pending before the Rent Controller, the tenant failed to file his written statement. Tenant was not serious in defending his case. However, since I propose to remit the matter back to the Rent Controller for extending an opportunity to the landlord to place on record evidence in support of the claim, I deem it appropriate to grant an opportunity to the tenant to place on record his written statement. The tenant shall place on record his written statement on or before 30 th June 2011. In the event of failure to place on record his written statement before the given date, the tenant shall forfeit his entitlement to file written statement. The Rent Controller shall proceed to receive evidence that may be presented by the landlord in support of his claim and proceed to decide the application in accordance with law. cra424.87 9 6 For the reasons recorded above, civil revision application is allowed. Judgment and order passed by the Rent Controller, Udgir on 20-1-1986 in File No. 1979 RCA 3 and confirmed by the District Judge, Latur on 18-8-1987 in Rent Appeal no. 1/86 is quashed and set aside and the matter is remitted back to the Rent Controller for rendering decision in accordance with provisions of law. Rent Controller shall proceed to decide the matter in accordance with the directions contained in this judgment and dispose of the application as expeditiously as possible preferably by the end of the year 2011. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE ) JUDGE dyb