1 cra69.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 69 OF 2004 1. Karim begum w/o Md. Ibrahim, Age: 55 years, Occ: Household., R/o. Mangalwlada Hingoli, District Hingoli. 2. Bismilabee w/o Ibrahim, Age: 65 years, Occ: Business, R/o. Mangalwada, Hingoli, District Hingoli. 3. Abdul Hafeez s/o Sk. Abdul Razzak, Age: 30 years, Occ: Business, R/o. Mangalwada, Hingoli, District Hingoli. (General Power of Attorney for both the above applicant). ...APPLICANTS VERSUS Vishwanath s/o Ganpatrao died L.Rs. 1. Laxmikant V. Vyawhare. 2. Prabhakar V. Vyawhare. 3. Ratnakar V. Vyawhare. ...RESPONDENTS ... Mr. Md. Mustafa Ahmed Momin, Advocate for revision applicants. Mr. S.S. Rathi, Advocate for respondents. ... 2 cra69.04 CORAM: S.S. SHINDE, J. DATE : 21ST JUNE, 2011 ORAL JUDGMENT : This Civil Revision Application is filed challenging the judgment and order dated 03-06-2002 passed by the Rent Controller, Hingoli in Rent Case No. 87-RC-0-28 and the judgment and order dated 14-10-2003 in Rent Appeal No.4 of 2002 passed by the District Judge, Parbhani. 2. The revision applicants herein are the original defendants in the Rent Control Proceeding which was decided by the Rent Controller, Hingoli. The Rent Controller, Hingoli held that the revision applicants are the willful defaulters. Being aggrieved by the order of the Rent Controller, Hingoli, the applicants herein filed appeal before the appellate Court. 3. The dispute is in respect of shop premises bearing Plot No. 19 situated in Sadar 3 cra69.04 Bazar, Hingoli. It is admitted position that the respondents herein are the owners of the suit premises. The suit premises were given on rent to the deceased Ibrahim s/o Abdul Raheman on monthly rent of Rs.100/-. 4. The respondents herein initiated eviction proceedings in the year 1987 against the applicants herein before the Rent Controller. It is the contention of the respondents herein that deceased Ibrahim paid rent for the suit premises upto 27-10-1981, however, he did not pay the rent regularly thereafter. The applicants herein, on 06-03-1986 paid Rs.1000/- and sent Rs.300/- by money order towards the rent. However, the said amount of rent was not paid by the applicants in time and therefore, the respondents adjusted that amount towards the rent for the period till March 1983. In spite of the said payment, the applicants herein were in arrears of rent for a period from 27-04-1983 to 27-08-1986. The respondents herein, therefore, filed suit in Civil Court, Hingoli 4 cra69.04 against the applicants for recovery of arrears of rent. It is admitted position that the said suit came to be decided finally even before the Rent Controller passed the final orders. 5. As stated earlier, the Rent Controller concluded that the applicants herein are willful defaulters and passed the decree of eviction. The appellate Court confirmed the said order of the Rent Controller. Counsel for the revision applicants submits that the findings recorded by the Rent Controller and the appellate Court are without referring to any particular documents or the written statement filed by the applicants herein. According to learned Counsel appearing for the applicants, the findings recorded by the Courts below are without any basis. There are no reasons, that too, detailed reasons are not recorded by the Rent Controller or the appellate Court in support of their decision holding that the applicants are defaulters. Learned Counsel further submitted that this Court in revisional 5 cra69.04 jurisdiction can certainly look into the issues that too, if the findings are perverse or without any basis or if the Court failed to exercise the jurisdiction vested in it. According to learned Counsel for the applicants, when the written statement of the applicants was available before the Rent Controller, Rent Controller was not correct in not referring the said written statement. It is further submitted that even there is no any reference to the findings recorded by the Civil Court in the suit which was filed for recovery of the arrears of rent. 6. Learned Counsel appearing for the applicants also invited my attention to the grounds taken in the revision application, annexures thereto and other documents and also record available in this case and submitted that the findings recorded by the Rent Controller and the appellate Court cannot be sustained. 7. On the other hand, learned Counsel 6 cra69.04 appearing for the respondents submitted that since there are concurrent findings recorded by the Courts below that revision applicants are willful defaulter, this Court may not interfere in revisional jurisdiction. The scope of revision is very limited. Learned Counsel further submitted that even if it assumed for a moment that, the Rent Controller has not recorded finding in detail, the appellate Court, referring to the evidence of the original plaintiff and one another witness, has given findings that the revision applicants are willful defaulters. Learned Counsel invited my attention to Para-12,13 and 14 of the impugned judgment of the appellate Court and submitted that the respondents did not enter into witness box to counter statement of the plaintiff, and therefore, statement of the plaintiff on oath has been rightly accepted by the appellate Court and Rent Controller. 8. Learned Counsel appearing for the respondents, in support of his contention that the 7 cra69.04 appellate Court has same powers as that of the Court of the original jurisdiction invited my attention to the following reported judgments of this Court. (1) Gurucharansingh Mohansingh Jamadar vs. Nanded Sikh Gurudwara Sachkhand Shri Hazur Saheb Board through its Special Officer cum Superintendent, Nanded. 1982(2) Bom.C.R. 5. (2) Gangabisan Panalal Joshi and others vs. Dattatraya Chandrasa Bilade and another. AIR 1984 Bombay 334. (3) Pandurang s/o Vasudeo Govardhan vs. Kadappa s/o Sadashivrao Sherkhane. 1985(1) Bom.C.R. 52. . Relying on the said authorities, Counsel for the respondents submitted that the appellate Court has power and jurisdiction like jurisdiction of the original Court. Therefore, the appellate 8 cra69.04 Court, after appreciating the evidence of the plaintiff and one witness, has reached to the correct conclusion that the applicants herein are willful defaulters. Learned Counsel further submitted that the findings recorded by the Courts below are not contrary to the record or perverse, therefore, there is no scope to interfere in the said findings. Learned Counsel further submitted that this revision application is devoid of any merits and deserves to be dismissed. 9. I have given due consideration to the submissions of the learned Counsel appearing for the parties. It is true that the appellate Court has jurisdiction like the Court of the original jurisdiction to record evidence, to summon witnesses and record findings. Therefore, there is no dispute on that point. Upon perusal of the findings recorded by the Rent Controller, I do not find any specific findings and discussion to conclude that the applicants are willful defaulters. The Rent Controller has not discussed 9 cra69.04 about the period for which the default in payment of rent amount has been committed by the applicants-tenants. There is no discussion in detail, for which period the applicants were defaulters or willful defaulters. There is no reference to the written statement filed by the applicants herein. Merely because the applicants did not enter into witness box is no ground to hold that, they are defaulters or willful defaulters. The Rent Controller should have perused the written statement filed by the revision applicants. It is admitted position that the written statement was on record. Rent Controller while answering issue No.1 i.e. whether applicant proves that non applicant is willful defaulter, has recorded the findings as under: "The present non applicant Karim Begum and Bismilla bee also not paid the rent to applicant, and they have not filed any documentary evidence before me that she is defaulter for payment of rent. I am also satisfied 10 cra69.04 and come to the conclusion that the tenant is a willful defaulter. In this case there is a clear proof that the tenant committed default in the payment of rent. The non applicant says that she sent money orders to applicant, but they have not filed the receipts of money orders. When the doors of the Civil Court and Rent Controller are open to accept the rent amount why the non applicant has not deposited the rent amount in Civil Court as well as in this Court." 10. Upon perusal of aforesaid findings in the judgment of the Rent Controller, it is clear that the Rent Controller has concluded that, 'there is a clear proof that the tenant has committed default in the payment of the rent'. However, in its entire judgment, there is no categorical findings in detail about how the tenant has committed default in the payment of rent. No period is mentioned in the reasoning part. There is no discussion how the tenant has committed 11 cra69.04 default in the payment of rent. Therefore, the findings recorded by the Rent Controller on willful default suffers from non recording of reasons. 11. Upon careful perusal of the judgment and order passed by the appellate Court, in Para-12 there is reference to the statement of the plaintiff and another witness who deposed before the Court. The Court has recorded findings in Para-13 and 14. In Para-14 the appellate Court has recorded thus : "14. In the light of this background, the evidence given in examination in chief by Vishwanath that the rent was not paid by the tenant Ibrahim regularly month to month is to be scrutinised. It appears that in the present case, there is no writing showing any particular date for payment of monthly rent. Therefore, it will have 12 cra69.04 to be presumed that the tenant was duty bound to make payment of rent by the last date of succeeding month. Such payment of rent is not made by the tenant Ibrahim. On the contrary, it is established from the evidence of Vishwanath that the tenant Ibrahim did not pay rent as required by clause (i) of sub section (2) of Section 15 of the Rent Control Act." (Emphasis supplied). 12 Upon perusal of the findings in Para-14 as reproduced hereinabove, it is crystal clear that the appellate Court has not analysed the evidence of Vishwanath. That apart, there is no reference to the written statement filed by the applicants in the reasoning part. The Court has concluded that such payment of rent is not paid by tenant Ibrahim. In fact, the Court was duty bound to record the reasons for arriving to such a conclusion. There is no discussion about the period for which there is a default or willful 13 cra69.04 default in the payment of rent. 13. Therefore, taking overall view of the matter, in my opinion, findings recorded by the Courts below are without any basis. If both the Courts wanted to conclude that the applicants herein are willful defaulters, in that case, detail reasons should have been recorded by the Courts below including period for which the applicants-tenants are defaulters and how much amount, they were suppose to deposit towards rent. 14. Learned Counsel appearing for the respondents was at pains to argue that, even in revisional jurisdiction the Court can look into the record and can appreciate the evidence. However, it is not possible for this Court to appreciate or reappreciate the evidence and record the findings. 15. Therefore, taking overall view of the matter, in my opinion, findings recorded by the 14 cra69.04 Rent Controller and the appellate Court are perverse and general and do not refer to any particulars. Therefore, the impugned judgment and order passed by the Rent Controller and also the appellate Court is quashed and set aside. Rent Control Case No. 1987-RC-O-28 is restored to its original file. The Rent Controller is directed to decide the case afresh after giving opportunity to the parties. However, it is made clear that the Rent Controller should decide the case on the basis of evidence and documents which are already formed part of record. It is made clear that the parties will have to make their submissions before the Rent Controller on the basis of evidence and documents which are already on the file. There is no question of filing any additional documents or further evidence. 16. Civil Revision Application is allowed to the above extent and same stands disposed of in above terms. 15 cra69.04 17. Original Record and Proceedings be sent back to the concerned Court forthwith. 18. Since the matter is pending in this Court from 2004, it is desirable that the Rent Controller should hear the case as expeditiously as possible and decide the same within six months from today. 19. Parties are directed to appear before the concerned Court on 18-07-2011. sd/- [S.S. SHINDE, J.] sut/JUN11