1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION No. 48 OF 2009 Vimlabai W/o Bhikanrao @ Bhikansing Devre, Age 60 years, Occu. Business, R/o H.M. No. 5-36-135, Khokadpura, Aurangabad ...PETITIONER VERSUS 1] Gaurabai Shankarsingh Pardeshi, Age 56 years, Occu. Household, R/o Khokadpura, Aurangabad through her G.P.A. Narendra Prasad S/o Dayal Prasad Tiwari. 2] Narendra Prasad S/o Dayal Prasad Tiwari, Age 52 years, Occu. Business, R/o Khokadpura, Aurangabad ..RESPONDENTS. ... ... Mr.R.L. Chabda, Advocate for Petitioner Mr. V.B. Patil, Advocate for respondent No. 2 CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 30th September, 2010 JUDGMENT PRONOUNCED ON : 6th October, 2010 JUDGMENT: Rule, Rule made returnable forthwith. Heard 2 finally with the consent of parties. 2. This revision is filed, challenging the Judgment and order dated 30th April, 2009 passed by the Principal District Judge, Aurangabad in Rent Appeal bearing No. 9 of 2003. 3. It is the case of the revision applicant that she is tenant of one room, in House bearing 5-36-135, situated at Khokadpura, Aurangabad on monthly rent of Rs. 125/-. The respondent No. 1 is the land-lady. It is further case of the petitioner, that the respondent No. 1 filed eviction proceedings against the present petitioner before the Rent Controller, Aurangabad bearing case No. 1994/ARC/80, on the ground that the petitioner has committed willful default in payment of the rent. The petitioner pursuant to the summons, appeared and resisted the claim of the respondent No. 1, the evidence was laid. The learned Additional Rent Controller, vide its Judgment and Order dated 21st July, 2003 was pleased to allow the said eviction proceeding and directed the petitioner to vacate the said premises. 3 4. The petitioner being aggrieved by the said Judgment, filed appeal before the District Court bearing Rent Appeal No. 9 of 2003. The said appeal also dismissed by the District Court, vide its Judgment and order dated 30th April, 2009. Hence this Civil Revision Application, filed by the petitioner before this Court. 5. The learned Counsel appearing for the petitioner, submitted that the findings recorded by the Courts below that the petitioner is willful defaulter is perverse finding. The Courts below have not properly appreciated the distinction between defaulter and willful defaulter. It is further submitted that the respondent No. 1 herein purchased the suit property from the original land-lord in the year 1995. Therefore, there was no right to the respondent No. 2 to evict the petitioner, on the ground of alleged arrears of rent accrued prior to 1995. It is further submitted that the respondent No. 1 herein was General Power of Attorney of the original land-lady. It is further submitted that the respondent No. 2 herein who is power of attorney has purchased suit property in 1995. The respondent No. 1 land-lady 4 did not stepped into witness box, and therefore, suit ought to have been dismissed. The learned Counsel further submitted that there was no willful default in payment of the rent. It is further submitted that recovery of suit, filed in the year 1992, and therefore, the respondent No. 2 herein has no right to claim the arrears of the rent in the said suit. 6. On the other hand, learned Counsel appearing for the respondent submitted that there are concurrent findings of facts that the petitioner is willful defaulter. The respondent No. 2 has purchased the suit property by way of registered sale-deed in 1995. He was earlier General Power of Attorney holder of respondent No. 1, and in that capacity suit was prosecuted by him. Therefore, Counsel for the respondent No. 2 would submit that the Civil Revision Application is devoid of any merits and same is deserves to be dismissed. 7. I have carefully perused the appeal memo along with its annexures, and documents placed on record. I have also carefully, perused the impugned Judgments and order. Both the Courts below have 5 referred to the orders passed by the Civil Court in Civil Suit filed by the respondent for recovery of rent. The Appellate Court, has also referred to the cross-examination of the tenant i.e. present petitioner in which she has admitted that two suits were filed in Civil Court for recovery of rent. She further deposed in her cross-examination taht in the year 1995, the petitioner has got executed the decree against her, and then she paid rent to the petitioner. She had also admitted that for recovery of rent her household goods were seized and there was three / four suits for recovery of rent against her. It is further admitted that she is doing the business of dairy in the suit premises and she is able to pay the rent of Rs. 125/- easily, however, she had deliberately not paid the rent regularly. 8. The Appellate Court has referred to the Judgment of this Court, in a case of “Shrikrishna Oil Mill Latur V/s. Radhakisan Ramchandra” reported in 2000 (2) MH.L.J. 645” and held that the controller has no option but to direct the tenant to put the land-lord in possession of the building, if there is a willful default in payment of rent. The Apex Court has 6 further observed that if the tenant had not paid or deposited the rent due by him in respect of suit premises within 15 days after the expiry of the time fixed in the agreement of tenancy or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. Then the tenant becomes defaulter. The Appellate Court in para No. 13 has referred to the terms of agreement between the land-lady and tenant. According to the said agreement the rent was supposed to be paid on or before 5th day of the every month. The tenant did not pay rent regularly. The Appellate Court has also referred to S.C.S. No. 25 of 1992 for recovery of rent from 01/03/1992 to 31/12/1992 and S.C.S. No. 24 of 192 for recovery of rent for the period from 1/03/1993 to 01/02/1994 and both the suits were decreed with costs. But even after, decree of the suits Vimalabai i.e. petitioner herein, did not pay the rent. Therefore, the decree for attachment was drawn. The Appellate Court has also recorded submission of the petitioner in para No. 14 that the petitioner use to send the rent amount by money orders. However, the land-lady refused to accept the money orders. The money orders receipts / coupons are not filed before the Lower 7 Court to point out that she has sent rent through money orders and the land-lady refuse to accept the same. The Appellate Court in para No. 16 has observed that no amount has been deposited in the prescribed time, and it is deposited in the Court after two suits have been decreed against the appellant. Therefore, considering documentary evidence on record, it can be easily inferred that there is a willful default on the part of the tenant in paying rent of the suit premises. 9. On careful perusal of the impugned Judgment and also other documents placed on record, on willful default, I do not see, any perversity in the findings recorded by the courts below. Both the Courts have taken into consideration evidence brought on record, and also decrees passed by the Civil Court. There are concurrent findings of facts and said findings are not perverse. Therefore, no case is made out to off-set the concurrent findings of facts. 10. The another argument of the Counsel appearing for the petitioner that the respondent No. 2 herein is 8 not entitled for the decree of eviction. Since, the alleged willful default or payment of arrears of rent is for the period of 1992 to 1994, and recovery of suit was filed in 1992, when the respondent No. 2 was not owner of the property. The Counsel for the appellant in support of his contention placed reliance of the Apex Court Judgment, in a case of “ N.M. Engineer and others V/s. Narendra Singh Virdi and another, reported in AIR 1995, SC 448” and contended that where in a deed by which the right, title and interest in the property in dispute was released in favour of one of the co-owners nowhere any assignment of rent was made, the assignee was not entitled to rent before assignment and the amount due prior to the deed could not constitute arrears of rent as it was merely an actionable claim. 11. The facts of the present case, stands on different footing. In the instant case, the respondent No. 2 was General Power of Attorney and he prosecuted the suit for respondent No. 1 before the competent Court. The respondent No. 2 purchased the property in 1995. However, fact remains that respondent No. 2 was General Power of Attorney for original land-lady and 9 he represented the respondent No. 1 in the proceedings before rent controller and Appellate Court. Therefore, there is no force in the contention of the petitioner that the respondent No. 2 was not entitled for the reliefs granted by the Courts below. Once there are concurrent finding of facts on willful default, and no jurisdictional error has been brought to the notice, in my opinion, Civil Revision Application cannot be entertained and same deserves to be rejected. Hence Civil Revision Application stands rejected. In view of the dismissal of the Civil Revision Application, Civil Application, if any stands disposed of accordingly. 12. It is needless to mention that if the parties amicably wish to compromise / settle the dispute, dismissal of this Civil Revision Application should not be hurdle in said compromise. [S.S. SHINDE, J] SDM*48.09 CRA