1 cra220.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.220 OF 2006 Shastri Construction Pvt.Ltd. ...Applicant vs. 1 Jeevan Jagannath Hendre 2 Kanifnath Jagannath Hendre 3 Anandibai Jagannath Hendre ...Respondents Mr.G.S.Godbole for the applicant Mr.Ketan Chotani for the respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE ON WHICH JUDGMENT IS RESERVED :NOVEMBER 22,2010 DATE ON WHICH JUDGMENT IS PRONOUNCED:DECEMBER 22,2010 JUDGMENT : 1 By this civil revision application, the revision applicant-original plaintiff has challenged the concurrent decrees passed by the trial Court and the Appellate Court by which a suit for recovery of arrears of rent has been dismissed. 2 The parties herein are hereinafter referred to with reference to their status before the trial Court. The plaintiff purchased the property bearing C.T.S no.83 at Budhwar Peth, Pune by two separate sale deeds. According to the case of the plaintiff, the defendants were occupying a shop premises on the ground floor of the building in C.T.S.No 83 as monthly tenants at the agreed monthly rent of Rs.6.75. 3 The plaintiff was proposing to construct a new 2 cra220.sxw building on the said property. According to the plaintiff, there were negotiations with the defendants and an agreement was arrived at by and between the plaintiff and the defendant. It is alleged that at that time, the defendants agreed to pay all the arrears of rent due and payable as on 30 th June 1993 to the tune of Rs.17,951.50. It is alleged that by 31 st May 1995, the liability of the defendants of payment of rent was increased to Rs.35,903/-. It is alleged that the defendants acknowledged their liability to pay the said amount on or before 31 st March 1997. The plaintiff relied upon the said acknowledgment. 4 It is alleged that the defendants did not pay rent as agreed. It is alleged that on 4 th February 1997, the defendants executed a writing by which they promised to pay total amount of Rs.51,513/- to the plaintiff on or before 4 th February 2000. It is alleged that the defendants did not keep their promise. Therefore, a suit for recovery of arrears of rent in the sum of Rs.51,513/- was filed by the plaintiff on 19 th October 2001. 5 A written statement was filed by the defendants for contesting the suit. The defendants denied to have executed a receipt dated 4 th February 1997. The defendants contended that they have not executed any acknowledgment as alleged by the plaintiff. It was contended that there was no relationship as landlord and tenant between the plaintiff and the defendants. It was alleged that though earlier there was relationship between the plaintiff and the first defendant as landlord and tenant the said relationship was not in existence on the date of institution of suit. It was contended that the entire amount towards arrears of rent payable by the first defendant was paid to the plaintiff on 6 th February 3 cra220.sxw 1997 at the time of execution of the agreement. It was contended by the first defendant that on 6 th February 1997, the plaintiff executed agreement for sale in his favour in respect of the shop premises. It was contended that the signatures were obtained by the plaintiff of the first and second defendants on blank papers for the purpose of securing balance payment under the said agreement. It was contended that the plaintiff had assured the defendants to get a loan in the sum of Rs. 1,00,000/- sanctioned from the Rupee Bank but the plaintiff could get the loan only of Rs.50,000/- sanctioned. It was contended that the first defendant collected the balance amount of Rs.50,000/- and offered the same to the plaintiff. However, the plaintiff started misusing the signed documents for demanding excessive amount. 6 The trial Court held that the suit was within limitation. However, the trial Court held that the plaintiff has failed to prove that the defendants have not paid the rent as claimed. The trial Court held that there was no jurisdiction vesting in it to pass a decree against the second defendant who was not the tenant. An appeal was preferred by the plaintiff. The Appellate Court has confirmed the decree of the trial Court. 7 The learned counsel for the applicant has taken the Court through the pleadings, notes of evidence and findings recorded by the Courts below. The learned counsel submitted that admittedly the first defendant was the tenant of the plaintiff. He submitted that the second defendant who was his son was jointly occupying the shop premises with the first defendant and was carrying on business jointly. The learned counsel submitted the second defendant cannot avoid liability under the writing 4 cra220.sxw executed by him. The learned counsel submitted that both the defendants had agreed and undertaken to repay the arrears of rent and therefore, suit for recovery of rent is maintainable before the Court of Small Causes. The learned counsel pointed out that the writing dated 4 th February 1997 is signed by both the defendants in which they acknowledged that they were liable to pay rent in the sum of Rs.15,610/- for the period between 1 st June 1995 to 31 st July 1997 and sum of Rs.35,903/- for the arrears of rent from 1 st August 1991 to 31 st March 1995. He pointed out that under the said writing, the defendants solemnly agreed to pay a sum of Rs.51,513/- on 4 th February 2000. He submitted that the signatures on the said writing were admitted by the defendants. He submitted that both the defendants did not enter the witness box and failed to prove the allegation that their signatures were obtained by the plaintiff under the pretext of obtaining loan from Rupee Bank. He submitted that the defendants failed to lead any evidence and therefore, the case made out by the plaintiff ought to have been accepted. He pointed out that the claim made by the plaintiff has been held to be within limitation by the trial Court. He submitted that the agreement dated 23 rd February 1991 records that the area of the premises originally held by the defendants was 127.5 sq.ft and under the agreement the plaintiff agreed to let out area of 145.5 sq. ft at the rent of Rs.3/- per sq. ft exclusive of taxes. He invited the attention of the Court to the evidence of one Shri Narayan Shastry who was examined on behalf of the plaintiff. He pointed out that there is no serious challenge to the execution of the document dated 4 th February 1997 in the cross examination of the said witness of the plaintiff. He submitted that as there was no serious challenge to the evidence of the said witness and as the defendants failed to enter the 5 cra220.sxw witness box, the case of the plaintiff ought to have been accepted. He submitted that as the writing dated 4 th February 1997 was proved and the execution thereof by the defendants was not disputed, the suit filed on 19 th October 2001 was within limitation. He pointed out the adverse findings of the Courts below and submitted that the findings were perverse. He submitted that as the Judgments of both the Courts below are perverse, the same be set aside and the decree be passed. 8 I have given careful consideration to the submissions. The case made out in the plaint is that as on 30 th June 1993, the defendants were in arrears of rent to the tune of Rs.17,951.50. It is the specific case in the paragraph 3 of the plaint is that by 30 th June 1993, possession of the shop in new structure was also delivered to the defendants and as such, by 31 st May 1995, the liability of the defendants to pay rent had increased to Rs.35,903/-. It must be noted here that in the affidavit in lieu of examination-in-chief of Narayan Shastry, there is no reference to any acknowledgment in writing of the liability by the defendants in the sum of Rs.35,903/- as on 31 st May 1995. The said witness produced the original writing dated 4 th February 1997 in evidence and identified the signatures of both the defendants on revenue stamps affixed on the said document and he identified the signatures of both the witnesses to the document. 9 In the cross examination, the said witness admitted that presently, the first defendant was not the tenant of the plaintiff and shop has been sold to the said plaintiff on ownership basis. Though the witness denied the suggestion that the 2 nd defendant was never the tenant, he admitted that he was not having any 6 cra220.sxw documentary evidence to show that he was the tenant. He admitted that the rent receipt in respect of the old premises was in the name of the first defendant and the agreement in respect of the new premises executed on 23 rd February 1991 was also executed only in favour of the first defendant. The said witness admitted that the arrears of Rs.17,151.50 was for the period from 1 st August 1991 at the rate of Rs.3/- per sq. ft. He admitted that the possession of the new premises was given to the defendants on about 30 th June 1993. He admitted that temporary accommodation was provided to the defendant without any charge till construction of the new premises. He admitted that the temporary accommodation was provided without charge for the period till the defendants received premises in new construction. He admitted that the plaintiff had not informed from 30 th June 1993 till the year 1997 to the defendant in writing about the arrears of rent. 10 Perusal of the agreement dated 23 rd February 1991 executed by and between the plaintiff and the first defendant shows that the second defendant is not party to the agreement. The said agreement recites that it was the first defendant who was the tenant in respect of the old premises. Under the said agreement new premises were let out to the first defendant. It is an admitted position that the possession of the new premises was handed over on 30 th June 1993. 11 Even according to the case of the plaintiff, as reflected from the agreement and the cross examination of their witness Narayan, it was the first defendant who was the tenant in respect of the old premises as well as new premises. There was no landlord-tenant relationship between the plaintiff and the second defendant in respect 7 cra220.sxw of the old premises and new premises. The plaintiff had invoked the jurisdiction of the Court under section 28 of the the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). Hence, as held by the Courts below, the said Court had no jurisdiction to entertain the suit as against the second defendant in absence of the landlord-tenant relationship between the plaintiff and the said defendant. It is pertinent to note that as reflected from the writing dated 4 th February 1997, according to the case of the plaintiff, the defendants were in arrears of rent for the period between 1 st August 1991 to 31 st May 1995 amounting to Rs.35,903/-. It is pertinent to note that even according to the case of the plaintiff, possession of the new premises was handed over on 30 th June 1993. He also admitted that temporary accommodation was provided to the defendants without any charge till the defendants received possession of the new premises. Thus, it must be noted that the admitted position is that the first defendant had vacated the original shop premises and was put in possession of the new shop premises on 30 th June 1993. It is pertinent to note that while handing over possession on 30 th June 1993, no grievance was made by the plaintiff regarding arrears of rent. The Courts below have therefore disbelieved the case of the plaintiff that as on 30 th June 1993, the defendants were in arrears of rent. The trial Court noted that by calculating the rent at the rate of Rs.3/- per sq. ft in respect of the new premises, the rent payable will be Rs.525/- and therefore, for the period from 1 st June 1995 to 31 st January 1997, the rent payable will be Rs.10,550/-. The trial Court pointed out that in the writing dated 4 th February 1997, the rent for the said period was shown as Rs.15,610/-. As far as Appellate court is concerned, it was observed that the 8 cra220.sxw pleading as regards claim for arrears from 1 st August 1991 to 31 st March 1995 was vague in as much as the first defendant vacated the original shop and was placed in possession of the new shop on 30 th June 1993 and there was no specific pleading since what date the possession of the original shop premises was taken over by the plaintiff. This observation is relevant in the context of the agreed position that till the date of handing over of the possession of the new shop premises, the 1 st defendant was not under an obligation to pay any occupancy charges in respect of the transit accommodation. Hence, it was held that the liability to pay rent in respect of new shop premises from 1 st April 1991 did not arise especially when the rent was claimed at a higher rate of Rs.3/- per sq. ft. Therefore, a part of the demand set out in the alleged acknowledgment was found to be not valid. The trial Court therefore held that the case made out by the defendants that their signatures were obtained by the plaintiff by making a representation that the same was required for obtaining loan appears to be probable. It was held that attesting witnesses to the alleged acknowledgment were the employees of the plaintiff. It is pertinent to note that admittedly the plaintiff sold the said shop to the defendants by agreement dated 6 th February 1997 for the price of Rs.1,05,000/- and the agreement dated 6 th February 1997 was silent about the alleged arrears. In the circumstances, the case of the plaintiff on the basis of the alleged acknowledgment dated 4 th February 1997 has been rightly rejected by the Courts below. If the defendants were really in arrears of rent, on 6 th February 1997, the plaintiff would not have sold the suit shop to the defendants. 12 Therefore, concurrent finding of fact recorded by 9 cra220.sxw both the Courts below is that the liability of the defendants was not established. 13 It is not possible to interfere with the concurrent findings of fact in revisional jurisdiction. Accordingly, I pass the following order : Revision application is rejected. Rule is discharged with no order as to costs. JUDGE