Law Web: How to appreciate evidence if landlord is denying that tenant has sent rent by money order?

Similarly, in case of Kamlabai B. Kabade vs. Laxmibai J.

Jagtap and ors.2001(2) MH.L.J. 905, this Court has held that refusal of rent sent by

money order constitutes deemed acceptance of rent. In such a
situation, there would be no cause of action either to issue notice or
to institute a suit on the ground of default.
46] The failure to examine postman, in facts and circumstances of
the present, is by no means sufficient to upset the concurrent
findings that rents were indeed sent by money order and refused by

the respondent landlords. There are records of money order
dispatches over considerable period. The amounts dispatched and
the endorsement thereon are substantially clear. The deposition on
behalf of the applicants as well as respondentlandlords, does
substantially establish that consequent upon purchase of suit
premises by the respondentlandlords some time in the year 1992,
rents have been dispatched by the applicants by way of money
orders and same have been refused by the respondentlandlords. In
such circumstances, there is no question of ignoring all such
materials and relying upon a singular and bald assertion on the part
of the respondentlandlords that the rents dispatched by money
orders were never refused by them. Any conclusion that rents were
not refused, in the facts and circumstances of the present case,
would be contrary to the weight of evidence on record. The Appeal
Court, therefore, has exceeded its jurisdiction or in any case,
committed an error of law apparent on face of record.

The failure to examine postman, in facts and circumstances of
the present, is by no means sufficient to upset the concurrent
findings that rents were indeed sent by money order and refused by respondent landlords.

N THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 770 OF 2013
Vasant Mahadeo Gujar vs. Baitulla Ismail Shaikh & anr.

CORAM : M. S. SONAK, J.

Date of Pronouncing the Judgment : 04 August 2015
Citation: 2016 (4) ALLMR 174

1] Rule and interim relief was granted in these Civil Revision
Applications by speaking order dated 4 February 2014. As against
the same, the respondentlandlords preferred Special Leave Petitions
before the Apex Court, which were dismissed on 2 May 2014.
However, the Apex Court requested this Court to dispose of the

pending Civil Revision Applications expeditiously. It is in these
circumstances, that two Civil Revision Applications were taken up
for final disposal.
2] The learned counsel for the parties requested that these two
Civil Revision Applications be disposed of by common judgment and
order. Even otherwise, the respondentlandlords in the two Civil
Revision Applications are one and same. The tenants who have
instituted these Civil Revision Applications occupy parts of the same
House No.86. The impugned orders proceed on basis of substantially
similar facts and reasoning. After certain stage, common evidence
came to be recorded in the two matters. For all these reasons, it
would indeed be appropriate if these two Civil Revision Applications
are disposed of by this common judgment and order.
3] The Civil Revision Application No. 770 of 2013 is instituted by
Vasant M. Gujar (Gujar). This concern two rooms, together admeasuring
about 240 sq.ft. in House No. 86, Dr. Sabane Road,
Mahabaleshwar (suit premises No.1), of which the respondents are
the landlords. The suit premises No.1 were let out by one Mr. Bhise,

the previous owner since last several decades. The suit premises are
being used by the tenant Gujar for residential purposes.
4] The Civil Revision Application No. 167 of 2014 has been
instituted by Smt. Khatija Panhalkar and others (Panhalkar). This
concerns road facing premises admeasuring about 40 sq.ft., again
being part of House No. 86, Dr. Sabane Road, Mahabaleshwar (suit
premises No.2) of which, the very same respondents as in Civil
Revision Application No. 770 of 2013 are landlords. The suit
premises No.2 are being used by the tenant Panhalkar for sale of
handicrafts, Mahabaleshwar sticks etc. last several decades.
5] At least two portions of House No.86 of which the suit
premises form a part, are in possession of the landlords. One of the
portion is immediately adjacent to suit premises No.1 and the same
was used for residential purposes. The second is immediately
adjacent to suit premises No.2 and is used by the landlords for
commercial purposes. There is reference to yet another portion/shed
in the occupation of tenant Gujar. However, no proceedings are
initiated in respect of the said portion/shed and accordingly it is

clarified that the present proceedings do not concern with such
portion/shed.
6] The landlords instituted Regular Civil Suit No. 137 of 2010
(old Regular Civil Suit No. 241 of 2002) against the tenant Gujar
seeking eviction from the suit premises No.1 on the grounds of
default in payment of rent, reasonable and bona fide requirement
and that the premises are required for immediate purpose of
demolition ordered by municipal authorities. These are grounds
contemplated by Sections 15, 16(1)(g) and 16(1)(k) of the
Maharashtra Rent Control Act, 1999 (Rent Act).
7] The landlords also instituted Regular Civil Suit No. 136 of
2010 (old Regular Civil Suit No. 239 of 2002) against the tenant
Panhalkar for eviction on the same grounds. There was however, an
additional ground that the tenant Panhalkar had without the
landlords' consent in writing erected upon the suit premises No.2 a
permanent structure. This is a ground contemplated by Section
16(1)(b) of the Rent Act.

8] The two suits were taken up for consideration together by the
Civil Judge, Junior Division at Mahabaleshwar (Trial Court). The
examinationinchief was recorded separately in the two cases to
begin with. However, after some stage, at the request of the parties,
common evidence was recorded. Even the crossexamination of
Baitulla Shaikh is common in both cases. The Trial Court, by
judgment and order dated 4 July 2011 decreed two suits on the
ground of reasonable and bona fide requirement as also on the
ground that the suit premises are required for immediate purpose of
demolition ordered by the Municipal Authorities. However, decree of
eviction on other grounds was declined.
9] The tenants appealed to the District Court (Appeal Court).
The landlords instituted crossobjections seeking decree of eviction
on the remaining grounds as well. The Appeal Court by its judgment
and order dated 4 July 2013 has dismissed the tenants' appeal and
allowed the landlords crossobjections. Hence, the present Civil
Revision Applications, by the tenants.
10] In the suit against the tenant Gujar, it appears that the
landlords had raised the ground that the tenant Gujar had acquired

an alternate suitable accommodation in Namdeo Cooperative
Housing Society. Under the Rent Act, the acquisition of alternate
premises is not a ground for eviction. The Trial Court is not clear
whether eviction was made on this ground. However, it does appear
that this aspect was taken into consideration by the Trial Court in
dealing with the issue of comparative hardship. The Appeal Court
has, however, not adverted to this aspect at all.
11] In the appeals, both the tenants had taken out applications
under Order 41 Rule 27 of the Code of Civil Procedure (1908)
seeking leave to produce additional evidence. The Appeal Court, in
making the impugned judgment and decree dated 4 July 2013, has
not dealt with or disposed of the said applications. The arguments
before the Appeal Court had concluded on 15 January 2013 and the
impugned judgment and decree was made on 4 July 2013.
12] In the aforesaid circumstances, Mr. Talkute and Mr.Warunjikar,
learned counsel for the tenants, in support of both the Civil Revision
Applications, have urged the following :
(a) There is failure to exercise jurisdiction by not even
adverting to, much less deciding the applications under Order
41 Rule 27 of the CPC;

(b) The delay of more than six months in pronouncing the
impugned judgment and decree, after the conclusion of
arguments is contrary to the provisions contained in Order 20
Rule 1 of CPC, as interpreted by the Apex Court and this Court
in its several rulings, on the subject;
(c) The Appeal Court has committed an error of law,
apparent on face of record in interpreting Section 15 of the
Rent Act, in the manner it has. The interpretation is contrary
to both, the text as well as the rulings of this Court on the
subject. This is a case where rents were regularly offered and
dispatched by way of money orders. The rents were, however,
refused by the landlords. In such circumstances, there is no
obligation upon the tenants to comply with conditions
prescribed in Section 15(3) of the Rent Act. It is always open
to a tenant to establish and prove that the tenant was always
ready and willing to pay rent and therefore, there was no
cause of action to even initiate proceedings for eviction under
Section 15(1) of the Rent Act. Besides, a careful perusal of the
impugned orders would indicate that concurrently the two
Courts have accepted that there was no default in payment of

rents. There is, in any case, ample evidence on record to
establish that there was no default in payment of rent;
(d) From the notice purporting to determine tenancy,
pleadings as well as depositions, it is apparent that eviction
was applied for in order to demolish the suit premises and to
erect thereupon a new building. The ground for eviction was
therefore, relatable to Section 16(1)(i) of the Rent Act and not
to Section 16(1)(g) thereof. Accordingly, it was incumbent to
record satisfaction and secure compliances of the conditions
specified in subsections (4),(5), (6) and (7) of Section 16 of
the Rent Act before any decree under Section 16(1)(i) of the
Rent Act is made. There being no consideration whatsoever of
the provisions in the subsections, the impugned judgment
and decrees are in excess of jurisdiction or in any case vitiated
by illegality or material irregularities;
(e) There was a blatant suppression of material particulars
with regard to several premises owned and occupied by the
landlords. Therefore, applying the principles laid down by this
Court in case of Tarachand Hassaram Shamdasani Vs.

Durgashankar G. Shrof1
, as well as other rulings, no decree
of eviction on the ground of reasonable and bona fide
requirement, could ever have been made. Even otherwise, the
two Courts have neither applied the true and correct tests in
such matters nor has relevant evidence on record been
considered. Even the aspect of comparative hardship has not
been adverted to independently;
(f) There was no case made out for eviction under Section
16(1)(k) of the Rent Act. There is material on record which
establishes that the landlords were intentionally and
maliciously damaging the suit premises with the sole object of
inviting demolition notices. There is no satisfaction recorded
that the suit premises were required for 'immediate purpose of
demolition'. In any case, the demolition notices, on basis of
which the suits came to be instituted did not relate to the
entire suit premises. There is clear misinterpretation of the
provisions contained in Section 16(1)(k) of the Rent Act.
(g) There is no case made out to evict the tenant Panhalkar
under Section 16(1)(b) of the Rent Act. The Trial Court had
1 2004(Suppl) Bom.C.R.333

rightly declined the eviction on this ground. The finding of the
Appeal Court is vitiated by clear perversity. The explanation to
Section 16(1)(b) of the Rent Act has been completely ignored.
(h) In general, for the aforesaid reasons, the learned
counsel for the tenants submitted that the impugned judgment
and decrees are in excess of jurisdiction and in any case,
vitiated by illegality and material irregularities.
13] Mr. P.B. Shah and Mr. A.V. Anturkar, learned counsel for the
landlords, separately advanced submissions in support of the
impugned judgments and decrees. They submitted that there are
concurrent findings recorded by the two Courts which are borne
from the material on record. There is accordingly, no warrant to
interfere with the same in the exercise of limited revisional
jurisdiction.
14] The learned counsel for the landlords further submitted that
on the basis of evidence led by the tenants, it is apparent that there
were defaults in payment of rents. The tenants neither raised any
dispute with regard to the standard rent nor did they avail the
option under Section 15(3) of the Rent Act. Accordingly, the Appeal

Court was right in directing eviction under Section 15 of the Rent
Act.
15] The learned counsel for the landlords further submitted that in
this case, Municipal Authorities had issued no less than four notices
for demolition of House No.86, of which the suit premises were only
a part. The allegations of malice or mala fide were vaguely made and
the same was rightly rejected by the Appeal Court. Accordingly, they
submitted that the ground as contemplated by Section 16(1)(k) of
the Rent Act was clearly made out.
16] As regards the ground of reasonable and bona fide
requirement, Mr. Anturkar, appearing for the landlords in Civil
Revision Application No. 167 of 2014 conceded that the pleadings
did make out a case under Section 16(1)(i) of the Rent Act and
therefore, no decree of eviction could be made without securing
compliances under subsections (4),(5),(6) & (7) of Section 16 of
the Rent Act. However, Mr. Shah, learned counsel appearing in Civil
Revision Application No. 770 of 2013 for the very same landlords
joined issue and submitted that notwithstanding such pleadings, a
decree of eviction on the grounds of reasonable and bona fide

requirement can always be made under Section 16(1)(g) of the Rent
Act. In this regard, Mr. Shah placed reliance upon the decision of the
Apex Court in case of Ramniklal P. Mehta vs. Indradaman A.
Sheth2
and of this Court in case of Sharadchandra V. Chitnis Vs.
Mrs. Neela Ashok Korde & anr.3

17] Finally, Mr. Anturkar submitted that the material on record
clearly bears out that the tenant Panhalkar had carried out
construction of permanent nature and therefore, the decree under
Section 16(1)(b) of the Rent Act, as made by the Appeal Court, was
in perfect order.
18] The learned counsel for both the parties made reference to
certain decisions of the Apex Court as well as this Court to which
reference shall be made in the course of this common judgment and
order.
19] The rival contentions now fall for my determination.
2 AIR 1964 SC 1676
3 2008(4) MAH.L.J. 873

Non consideration of the Applications under Order 41, Rule 27 of
the CPC
20] There is nothing in the record and at least none was
demonstrated by the learned counsel appearing for the landlords
that the tenants' applications under Order 41 Rule 27 of the CPC
were considered and disposed of by the Appeal Court at the stage of
making the impugned orders. This clearly, amounts to failure to
exercise jurisdiction.
21] In case of Eastern Equipment & Sales Limited vs. ING Yash
Kumar Khanna4
, the Apex Court has observed thus:
5. We have heard learned counsel for the parties and after
considering the facts and circumstances of the present case, we
are of the view that in order to decide the pending appeal in
which the application under Order 41 Rule 27 of the Code of
Civil Procedure was filed ought to have been taken by the
appellate court along with the application for acceptance of
additional evidence under Order 41 Rule 27 of the Code of
Civil Procedure.
6. In that view of the matter and without going into the
merits as to whether the application under Order 41 Rule 27
of the Code of Civil Procedure was rightly rejected by the
appellate court as well as by the High Court, we set aside the
order of the High Court as well as of the appellate court
rejecting the application under Order 41 Rule 27 of the Code
of Civil Procedure and we direct that the appellate court shall
decide the pending appeal along with the application under
Order 41 Rule 27 of the Code of Civil Procedure on merits
4 (2008) 12 Supreme Court Cases 739

within a period of three months from the date of supply of a
copy of this order to the appellate court. The appeal is allowed
to the extent indicated above. There will be no order as to
costs.
7. The view that we have expressed can be supported by a
decision of this Court in Jaipur Development Authority v.
Kailashwati Devi (1997) (7) SCC 297.”
22] Similarly, in case of Muzaffar Ali vs. Dasaram5
, the Apex
Court remanded the matter for reconsideration of the Second
Appeal, where the second Appellate Court had failed to consider the
reasons assigned by the first Appellate Court for rejection of an
application under Order 41 Rule 27 of the CPC. In paragraphs 3 and
4, the Apex Court observed thus:
3. It is true that the first appellate court, while deciding
the first appeal, had given reasons for rejection of the said
application but the ground for such rejection was, as noted
hereinabove, not considered by the High Court. That being the
position, we set aside the judgment of the High Court and
direct it to decide the appeal afresh on merits and in
accordance with law along with the application under Order
41 Rule 27 CPC and the reasons given by the first appellate
court for its rejection.
4. The High Court is now requested to decide the second
appeal along with the application under Order 41 Rule 27
CPC on merits within a period of three months from the date
of supply of a copy of this order. While deciding the same, the
High Court shall also consider the reasons for rejection of the
application under Order 41 Rule 27 CPC given by the
appellate court.
5 (2009) 2 SCC 654

23] In the aforesaid circumstances, this would call for remand to
the Appeal Court. However, the suits in the present case were
instituted in the year 2002. As discussed hereinafter, the tenants
have made out a case to upset the eviction orders upon other
substantive grounds. Remand, in the circumstances, would only
prolong the life of the litigation. Accordingly, no remand is ordered
upon this ground.
Delay of more than six months in making the impugned orders
dated 4 July 2013
24] The record reveals that oral arguments before the Trial Court
concluded on 15 January 2013. Thereafter, Roznama reveals that the
matters were adjourned at least on five to six occasions for 'reply'.
The significance of such adjournments or for that matter 'reply' after
conclusion of final arguments in the appeal, is by no means
discernible. However, abruptly, on 4 July 2013, the impugned orders
came to be pronounced. There is no record of any reply as such,
being filed by any of the parties on any of the adjourned dates. In
effect, there is delay of over six months in making the impugned
orders, after the conclusion of the arguments. The record also
indicates that all the parties had filed written notes of arguments on
record.

25] The learned counsel for the tenants submitted that the delay
constitutes breach of principles laid down in the Order 20 Rule 1 of
the CPC and the impugned orders deserve to be set aside on the
grounds of delay alone. On the other hand learned counsel for the
landlords submitted that this was the case where notes of written
arguments had been filed before the Appeal Court and therefore, the
impugned orders are not vitiated on this score.
26] In the case of R.C. Sharma Vs. Union of India6
, the Apex
Court made strong observations in the context of delay in delivery of
judgment after conclusion of arguments. In the said case, the Apex
Court observed observed thus:
Nevertheless an unreasonable delay between hearing of
arguments and delivery of judgment, unless explained by
exceptional or extraordinary circumstances, is highly
undesirable even when written arguments are submitted. It is
not unlikely that some points which the litigant considers
important may have escaped notice. But, what is more
important is that litigants must have complete confidence in
the results of litigation. This confidence tends to be shaken if
there is excessive delay between hearing of arguments and
delivery of judgments.
27] In the case of Anil Rai vs. State of Bihar7
, the Apex Court
again made strong observations and went on to suggest that the
6 1976(3) SCC 574
7 (2001) 7 SCC 318

delay in delivery of judgments after the conclusion of arguments,
might by itself, constitute a ground for setting aside such orders and
a remand for rehearing. The Division Bench of this Court in case of
of Debang R. Vora vs. Union of India8
, in fact set aside the order
made by CEGAT on the ground of delay alone and remanded the
matter for fresh consideration. The Division Bench of this Court in
case of Pradeep K.R. Sangodker Vs. State of Goa and The District
Consumer Dispute Rederssal Forum9
, upon analysis of several
rulings on this subject, issued directions to judicial as well as quasi
judicial authorities in the State of Goa to deliver judgments within a
period of three months from the date of conclusion of arguments.
The contention that written arguments were on record and
therefore, delay did not matter was rejected in case of R.C. Sharma
(supra) by observing that it is not unlikely that such points which
the litigant considers important may have escaped notice
28] Applying the aforesaid principles to the facts and
circumstances of the present case, it shall have to be held that the
delay in pronouncement of the impugned order by the Appeal Court
is indeed inordinate and unexplained. However, as noted earlier, the
8 2004 (2) Mh.L.J. 208
9 Writ Petition No. 281 of 2006 decided on 24.08.2006 : (MANU/MH/1246/2006

learned counsel for the landlords do not seek a remand. There are
other substantial grounds to upset the impugned orders. This is also
not a case where any of the parties had moved this Court
complaining about the delay in pronouncement of the impugned
order and applied for withdrawal of the case from the Bench or
sought a fresh hearing. Upon cumulative consideration of all these
circumstances, it would not be appropriate to set aside the
impugned judgments and decrees and remand the matter for fresh
consideration on the ground of delay between conclusion of
arguments and pronouncement of judgment.
Default in payment of rents (Section 15 of the Rent Act)
29] The landlords, in their notice dated 4 February 2002 issued
under Section 15 (2) of the Rent Act, alleged that the tenants have
not bothered to pay any rents to the landlords from the year 1992.
Demand was made of arrears in an amount of Rs.3400/ from the
tenant Gujar. Similarly, notice dated 31 May 2002 was issued to the
tenant Panhalkar quantifying arrears in an amount of Rs.2312/.
There are allegations/pleadings in the respective plaints are also to
the same effect.

30] The tenants' defence, both in their replies to the notices as
well as in written statement was that rents in respect of suit
premises were regularly sent to the landlords, inter alia, by means of
money orders. However, the same were refused, which refusal is
evident from the postal records. In such circumstances, the tenants
contended that they have always been ready and willing to pay the
rents and therefore, in terms of Section 15(1) of the Rent Act, there
arises no question of making any decree of eviction on the ground of
nonpayment of rent. As a matter of abundant caution, the tenants
even deposited the arrears / rents deposited before the Trial Court.
However, it is common ground that such deposit is well beyond the
period of ninety days from the date of service of summons in the
suit.
31] The Trial Court, upon appreciation of the material on record,
in the form of both oral as well as documentary evidence recorded
conclusion that there was no default on the part of the tenants in
payment of rents. No decree of eviction was, therefore, made by the
Trial Court on this ground. The reasoning of the Trial Court is
contained in paragraph '13' of the judgment and decree dated 4 July
2011 (in case of Vasant Gujar) and the same reads thus:

13] In this regard, I have perused Section 15 of the
Maharashtra Rent Control Act. It gives threefold protection
to tenant in clause (1), (2) and (3) respectively. As per
Section 15(1) of the Maharashtra Rent Control Act, if the
tenant pays or is ready and willing to pay the amount of
standard rent and permitted increases then the landlord is
not entitle to recover the possession of tenanted premises. In
present case, admittedly, the rent of suit property is not paid
to the plaintiffs but, we have to see whether the defendant
was and is ready and willing to pay rent ? In this respect, it
is pertinent to note that, D.W.1 Mahesh had deposed that,
since 9/1/1992 defendant is sending the rent to plaintiff by
money order and plaintiff had refused the same. He has filed
receipts of money order, said are at Exh.257 to 296. I have
perused said money order receipts. On perusal of said receipts
it reveals that, receipts at Exh. 295 and 296 are accepted but
the plaintiff had refused other money orders of the rent.
Therefore, in my opinion, if the plaintiff is refusing the rent
and thereafter coming before the court on the ground of
default then he can not be allowed to do so and to take
benefit of his own wrong. It is clear that, the defendant had
sent the rent by money order but the plaintiff had refused it.
Further, plaintiffs had not proved that, they had made the
demand of rent to the defendant and defendant refused to
pay the rent. On the contrary, as stated above, it is the
plaintiff who had refused to accept the rent, therefore, in my
opinion, the act of defendant of sending the rent to plaintiff
by money order clearly shows that, the defendant was ready
and willing to pay the rent of suit property. Further, during
the pendency of suit the defendant had also deposited the
amount of rent in the court which shows that, the defendant
is ready and willing to pay the rent. Therefore, as defendant
is ready and willing to pay the rent, in my opinion, clause
no.2 and 3 of Section 15 of the Maharashtra Rent Control
Act will not be applicable to the present case.”
(emphasis supplied)
32] The reasoning of the Trial Court in declining a decree of
eviction on the ground of default in payment of rents in case of the

tenant Panhalkar is almost identical to the aforesaid, except that the
reasoning contained in paragraph 25 of the judgment and decree
dated 4 July 2011.
33] The Appeal Court has, however, reversed the Trial Court and
made a decree of eviction on the ground of default in payment of
rents. The reasoning of the Appeal Court, which is contained in
paragraphs 31 to 34 of the impugned judgment and decree dated 4
July 2013 (identical reasoning in the two cases), reads thus :
31] It is the defence that the defendants had endeavoured
to pay the arrears of rent by Money Order, but it was refused
by the landlords. According to D.W. 2 Ibrahim, the plaintiff
as has refused to accept the amount of Money Order, the
ground under Section 15 of the Act is not open. Exhs.295 and
296 are the receipts of Money Orders, having endorsement of
refusal by the addressee.
32] The documentary evidence reveals that first time, the
defendant has deposited the amount of rent on 4102004,
then on 24th June 2005. He has time and again deposited the
rent, but one fact is clear that no rent was paid before 710
1992, though the plaintiffs have purchased the suit property
on 9th January, 1992. For around nine months, the
defendant did not pay the rent, much less in time. He filed his
written statement on 21112002 by alleging that entire
arrears were paid. The statutory period of 90 days comes to
an end on 9122002. the defendant has been served with
suit summons on 992002. Thus, it was obligatory on his
part, especially when the plaintiffs are accusing him to be
defaulter, to deposit the entire arrears together with statutory
interest.

33] It is the defence that the defendant has endeavoured to
pay rent through Demand Draft, but it was also refused. On
this point, evidence of Vijay Kadam, the Manager of
Mahabaleshwar Urban Cooperative Bank, is to be viewed.
The said witness does not know, who applied for the Demand
Draft and in favour of whom it was issued. Thus, Exh. 415 is
just a Challan for issuance of Demand Draft. No further
details have been dispelled by his evidence. The defendant has
just placed on record photocopy of said Challan, which is not
admissible. Though assumed that the defendant has deposited
the arrears of rent, it is inclusive of 9% interest. Arrears of 13
years rent comes to Rs.7450/ and 9% interest comes to
Rs.4023/ total Rs.11,473/ has been deposited vide Exh.34
on 2nd September, 2004. This is in contravention of Subsection
(3) of Section 15 of the Act.
34] On going through the impugned Judgment, the learned
trial Court has emphasised the factum of refusal, however,
has failed to consider whether even after service of summons,
the defendant has failed to deposit the arrears. All three
clauses of Section 15, are parallel to each other. The plaintiffs
have purchased the suit premises in January, 1992. Since
then, the defendants did not pay the rent to them, at least up
to August, 1992. This material aspect of this matter is not
aptly considered by the trial Court. What is material is the
date of demand and deposit of amount of rent. Even after
service of Notice, dated 422002, amount was not paid.
Thus, mere offering the amount does not work. Thus, the
claim of plaintiffs falls under Subsection (3) of Section 15 of
the Act and the defendants are guilty of noncompliance
thereof.
For these reasons, I endorse my finding against Point
No. 4 in the affirmative.”
(emphasis supplied)
34] In order to appreciate the reasoning of the Appeal Court,
reference is necessary to the text of Section 15 of the Rent Act,
which reads thus:

15. No ejectment ordinarily to be made if tenant pays
or is ready and willing to pay standard rent and
permitted increases. (1) A landlord shall not be
entitled to the recovery of possession of any premises so long
as the tenant pays, or is ready and willing to pay, the amount
of the, standard rent and permitted increases, if any, and
observes and performs the other, conditions of the tenancy, in
so far as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be
instituted by a landlord against the tenant on the ground of
nonpayment of the standard rent or permitted increases due,
until the expiration of ninety days next after notice in writing
of the demand of the standard rent or permitted increases has
been served upon the tenant in the manner provided in section
106 of the Transfer of Property Act, 1882 (IV of 1882).
(3) No decree for eviction shall be passed by the
court in any suit for recovery of possession on the ground of
arrears of standard rent and permitted increases if, within a
period of ninety days from the date of service of the summons
of the suit, the tenant pays or tenders in court the standard
rent and permitted increases then due together with simple
interest on the amount of arrears at fifteen per cent per
annum; and thereafter continues to pay or tenders in court
regularly such standard rent and permitted increases till the
suit is finally decided and also pays cost of the suit as directed
by the court.
(4) Pending the disposal of any suit, the court may, out
of any amount paid or tendered by the tenant, pay to the
landlord such amount towards the payment of rent or
permitted increases due to him as the court thinks fit.
35] Section 15(1) of the Rent Act, in terms provides that a
landlord shall not be entitled to eviction of a tenant, so long as the
tenant pays, or is ready and willing to pay, the amount of the
standard rent and permitted increases, if any, and observes and
performs the other conditions of the tenancy, in so far as they are

consistent with the provisions of this Act. Clause 15(3) of the Rent
Act, however, is a legislative injunction to the Courts from making a
decree of eviction on the ground of default in payment of rent and
permitted increases, if , within a period of ninety days from the date
of service of summons in the suit, the tenant pays or tenders in
Court the standard rent and permitted increases then due together
with simple interest at the prescribed rates and thereafter, continues
to pay or tenders the same till the suit is finally decided and also
pays cost of the suit as directed by the Court.
36] The Appeal Court has made a decree of eviction by merely
recording that the applicants failed to comply with the provisions of
Section 15(3), in as much as arrears of rent, permitted increases
together with interest, were not deposited in the Court within ninety
days from the date of service of summons in the suit. There is no
consideration whatsoever of the tenants' plea that the tenants had
paid or in any case were ready and willing to pay rents and
permitted increases to the landlords, but it was the landlords who
had refused to accept the same.

37] From the scheme of Section 15 of the Rent Act, it is clear that
benefit under Section 15(3) of the Rent Act can be availed of by a
tenant, even if such tenant is admittedly, in default. From the tenor
of Section 15(3) of the Rent Act, it does appear that no Court can
make a decree of eviction on the grounds of default, where such
tenant deposits within ninety days, arrears of rent, permitted
increases and complies with other prescribed requirements. This,
however, does not mean and imply that resort to benefit under
Section 15(3) of the Rent Act is only mode available to a tenant to
avoid a decree of eviction on the ground of default. The tenant, can
always establish that he has paid or was always ready and willing to
pay the rent and the permitted increases to the landlord and on such
basis avoid a decree of eviction. In fact, Section 15(1) of the Rent
Act, in terms provides that a landlord shall not be entitled to a
decree of eviction so long as the tenant pays or is ready and willing
to pay the standard rent, permitted increases and observes other
terms and conditions of the tenancy, so far as they may consistent
with the provisions of the Rent Act.
38] The reasoning of the Appeal Court, in fact, constitutes an error
of law apparent on face of record. The Appeal Court does not appear

to have reversed the findings of the fact in the context of payment or
dispatch of money orders by the tenants and their refusal by the
landlords. The Appeal Court, however, makes decree of eviction on
the ground of noncompliance with the provisions contained in
Section 15(3) of the Rent Act. There is no consideration whatsoever
to the pleas of the tenants that rents were indeed tendered regularly
and punctually to the landlords, by means of money orders and the
same were refused by the landlords. The Appeal Court has held that
'all three clauses of Section 15 are parallel to each other'. This is an
error of law apparent on face of record. Even where, there is no
compliance with the provisions contained in Section 15(3) of the
Rent Act, it is always open to a tenant to establish the factum of
payment or the factum of readiness and willingness of payment of
rent. If such factum is indeed established, the landlords cannot
secure a decree of eviction on the ground of default in payment of
rents. This proposition which emerges upon the plain reading of the
provisions in Section 15 of the Rent Act, as also from the authorities
on the subject, has been ignored by the Appeal Court. The finding on
this aspect is therefore, vitiated by error of law apparent on face of
record.

39] In case of Suka Ishram Chaudhari vs. Jamnabai R.
Gujarathi & ors.10, the tenant had sent the rent amount to the
landlord through money order, but the landlord refused to accept
the same. Upon receipt of statutory notice under Section 12(2) of
the Bombay Rents, Hotel and Lodging Houses Rates Control, 1947
Act (1947 Act), the tenant failed to avail the benefit under Section
12(3)(a) of the 1947 Act and pay arrears and permitted increased
within one month from the date of receipt of notice. Accordingly, the
issue arose as to whether a decree of eviction could be made as there
was no compliance with the conditions prescribed under Section
12(3)(a) of the 1947 Act. The learned Single Judge of this Court
(R.R. Bhole, J.) held that no decree of eviction would be made as
long as the tenant was ready and willing to pay the rent. The
relevant observations are contained in paragraphs 5, 6 and 7, which
reads thus:
5. Section 12 of the Rent Act provides for ejectment of the
tenant by the landlord. It is divided into four clauses. The first
clause prohibits a landlord from recovering possession of any
premises so long as tenant pays and is ready and willing to
pay the amount of the standard rent and permitted increases,
if any, and observes and performs the other conditions of the
tenancy in so far as they are consistent with the provisions of
the Rent Act. Therefore, as long as the tenant is ready and
willing to pay and as long as he observes the conditions of
tenancy, landlord cannot recover possession of the premises.
The second clause directs the landlord to give a notice before a
10 AIR 1972 Bom 273
28/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
suit on the ground of nonpayment of rent is filed. A landlord
under this clause cannot file a suit until expiration of one
month next after the notice of the demand of standard rent.
The third clause deals with two kinds of arrears, Subclause
(a) deals with a tenant who is in arrears for a period of six
months or more; subclause (b) deals with a tenant, who is in
arrears for less than six months and subclause (c) provides
that if a tenant raises a dispute regarding the amount of
standard rent or permitted increases he is allowed to raise that
dispute; and if the tenant makes the payment of which he is
arrears within one month of the notice, then the landlord
cannot recover possession of the premises. But if he does not
raise any dispute and if he neglects to pay until expiration of
the period of one month after the notice then the Court has no
other alternative but to pass a decree for eviction. So far as
subclause (b) is concerned the tenant is asked to pay the
arrears on the first date of the hearing of the suit or before
such other date as the Court may fix and if he continues to pay
rent regularly in Court, then no decree can be passed against
him but if after notice and after filing of the suit he neither
pays the arrears on the first date of the hearing of the suit nor
before such other date as the Court may fix, then a decree for
eviction shall have to be passed. We are not concerned with the
fourth clause because that clause merely deals with
disbursement of the amount paid by the tenant in Court.
6. Now, therefore, under Section 12 of the Rent Act this
Court has to see whether the tenant was ready and willing to
pay rent; whether the landlord had given him necessary
notice; whether in this case, which is governed by Section
12(3)(a), the tenant is in arrears of rent for a period of six
months or more and whether the tenant has neglected to make
payment of the same. We have seen that the respondent had
been refusing to accept rent sent to him by money orders. The
arrears of rent according to the notice given by the landlord is
for a period from 11164 to 1565. The question, in view of
the fact that the tenant had sent rent by money orders and is
whether the tenant was still in arrears of rent. If the landlord
had accepted rent, the tenant would certainly not have been in
arrears and there could not have been any cause of action for
29/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
the notice to be served by the landlord on the tenant. Because
the landlord had been refusing to accept rent for the period for
which he was said to be in arrears the cause of action arose. In
my view the landlord cannot take advantage of his conduct in
not accepting rent sent by the tenant and then give a notice
saying that the tenant is in arrears of rent for more than six
months. The intention of the legislature when enacting Rent
Act could not have been to protect the landlord who refuses to
accept rent and after six months turns round to say that the
tenant is in arrears of rent for a period of six months or more.
In my view, therefore the facts and circumstances of the
instant case show that the petitioner tenant was ready and
willing to pay rent. The facts also show that the tenant was
not in arrears of rent voluntarily. It is because of the conduct
of the landlord that he fell in arrears at all. If that is so, then,
in my view, the view of the learned Assistant Judge in inferring
that the petitioner can be evicted under Section 12(3)(a) of
the Rent Act is erroneous. On the other hand the inference and
the legal effect of these proved facts is that the tenant cannot
be evicted because he was neither in arrears of rent nor can be
said to be not ready and willing to pay rent.
7. I am supported in this view of mine by a judgment of
Chandachud J. while deciding Civil Revision Application No.
1450 of 1961 on 16th April 1964. He had before him facts
similar to the facts of the instant case and he has taken the
same view as I am now taking.
(emphasis supplied)
40] In case of Abdul Gani Dinali Mom. V. Mohamed Yusuf
Mohamed Isak11
, another learned Single Judge of this Court
(Jahagirdar J.), disagreed with the view of Bhole, J. in Suka Ishram
Chaudhari (supra). Therefore, a reference was made to the Division
Bench in case of Sitram Maruti Nagpure vs. Fakirchand P. Dhase12
.
11 80 BLR 646
12 2008(1) Mh.LJ. 610
30/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
The Division Bench held that the view taken by Bhole, J. in case of
Suka Ishram Chaudhari (supra), is correct and the view taken by
the Jahagirdar, J., in case of Abdul Gani (supra) is overruled. The
relevant observations are contained in paragraphs 14, 15 and 16,
which read thus:
14. After having heard the learned Counsel for both sides in
the above and after perusal of all the aforesaid judgments, it is
very clear that Section 12 makes it abundantly clear that if
tenant pays or ready or willing to pay standard rent or
permitted increases, then no ejectment will be made. To put it
in other words, the landlord will be entitled to recover
possession of the premises only if the tenant fails to pay the
standard rent and permitted increases. In fact the said Section
12 clearly contemplates in a negative manner that no suit for
recovery of possession shall be instituted by the landlord
unless the landlord satisfies that the tenant was not ready and
willing to tender and had not paid the standard rent and
permitted increases for over a period of six months and in the
event, the tenant was not ready and willing to tender
standard rent and permitted increases, and that he has been
in arrears of over a period of six months, then the landlord
has to issue notice terminating the tenancy and demand the
standard rent and permitted increases within a month after
service of the notice. Even Section 12(3)(a) makes it clear that
where the rent is payable by the month and there is no dispute
regarding the amount of standard rent or permitted increases,
if such rent or increases are in arrears for a period of six
months or more and the tenant neglects to make payment
thereof until the expiration of period of one month after the
notice as referred in Subsection (2), the Court may pass a
decree for eviction in any such suit for recovery of possession.
By way of explanation, in the said section, it is provided that
in any case where there is dispute as to the amount of
standard rent or permitted increases recoverable under this
Act the tenant shall be deemed to be ready and willing to pay
such amount if, before the expiry of the period of one month
after notice referred to in Subsection (2), he makes an

application to the Court under Subsection (3) of Section 11
and thereafter pays or tenders the amount of rent or
permitted increases specified in the order made by the Court.
To put it in other words, the explanation is with regard to the
procedure, when there is a dispute with regard to the standard
rent. Where there is no dispute with regard to the standard
rent, the tenant has to show that he was always ready and
willing to tender rent and he must not be in arrears for more
than six months and in the event, the tenant was in arrears
for more than six months, the landlord has the right to serve
notice of termination and demand rent and permitted
increases, and if the tenant does not pay the same within one
month, in such a case, the landlord will be entitled for a
decree of eviction.
15. In view of the clear explanation of Section 12, if the
tenant raises a dispute with regard to the standard rent and
permitted increases, he has to approach the Court within a
period of one month from the notice of termination and make
deposit within a period of one month in the Court. On the
contrary, if there is no dispute, the tenant must show his
readiness and willingness to pay rent and permitted increases
and must keep regularly tendering the same, even by money
order and no landlord can take advantage, neither by refusing
to accept the same nor say that the tenant had not paid the
rent or tendered the rent. This fact has been rightly pointed
out by the Hon'ble Supreme Court in the case of Priya Ghosh
and Ors. v. Bajranglal Singhania and Anr . and it is held that
the landlord will be easily able to trap the tenant by refusing
to accept and turn round and to file a suit against the tenant.
That is why, the Hon'ble Supreme Court has clearly observed
that the law has to be construed in a fair manner and it is not
intended to trap the tenant into a situation so that the
landlord can evict the tenant.
16. Under the aforesaid facts and circumstances of the case,
we are clearly of the view that the view taken by Bhole, J. is
correct and the view taken by Jahagirdar, J. is overruled and
the same does not lay down the correct law.
(emphasis supplied)

41] The reasoning of the Appeal Court in the present case is
directly contrary to the law laid down by Bhole, J., in case of Suka
Ishram Chaudhari (supra), which is held as the correct view by the
Division Bench in case of Sitaram Nagpure (supra).
42] The learned counsel for the respondents, however, submitted
that there is no material on record in support of the applicants' plea
that rents were regularly and punctually sent to the landlord by
money order and that the same were refused by the landlord. In this
regard, Mr. Anturkar, learned senior counsel appearing for the
respondentlandlords in Civil Revision Application No. 167 of 2014,
on the basis of the documents evidencing money orders attempted to
demonstrate that there were certain unexplained gaps in the
despatch of money orders. Mr. Anturkar and Mr. Shah also submitted
that since the plea of refusal of money orders was denied by the
respondentlandlords, the applicants had to examine the postman in
order to establish refusal. In absence of the evidence of postman,
failure to accept the rents cannot be said to be proved and therefore,
the Appeal Court justify in making the decree on the ground of
default in payment of making rents.

43] It is not possible to accept the aforesaid contentions of the
learned counsel for the respondentlandlords. The Trial Court on the
basis of material on record, has recorded findings of fact that rents
were regularly and punctually sent by the applicants to the
respondentlandlords through money orders and that the same were
refused by the respondentlandlords. In record of such finding, the
Trial Court has adverted to the material on record in the form of
money order despatches, the endorsement made thereon as well as
the payment made thereby. The payments, relate not to some limited
period but to over a substantial length of time, i.e. from January
1992 to February/May 2002. There is material on record, which
establishes that the rents were paid and in any case, over
considerable period of time, were being accepted on yearly basis.
The Trial Court has also given due credence to the oral testimony,
inter alia, the deposition and crossexamination of the respondentlandlords.
On basis of all such materials, the findings of fact as to
absence of any default on the part of the applicants came to be
recorded by the Trial Court. There is absolute no perversity in the
record of such findings. The Appeal Court has in fact, not even
disturbed such findings. The Appeal Court, has merely criticized the
Trial Court for having 'emphasized the factum of refusal' but failed to

consider whether even after the service of summons the applicants
had failed to deposit arrears. Thus, the decree made by the Appeal
Court, is not on the basis of any default on the part of the applicants
in making payment of rents, but rather the decree is made on the
ground of failure on the part of the applicants to deposit the arrears
of rent within ninety days from the receipt of summons in the suit.
The Appeal Court in terms states that the decree is made, because
the claim of respondents (plaintiffs) fall under subsection (3) of
Section 15 of the Rent Act and 'the defendants are guilty of non
compliance thereof'. As noticed earlier, such reasoning is contrary to
scheme of Section 15 of the Rent Act, as also the decisions in case of
Suka Ishram Chaudhari (supra) and Sitaram Nagpure (supra).
44] The decision in case of Suka Ishram Chaudhari (supra) was
followed by the another learned Single Judge of this Court in case of
Madhukar Vaidya vs. Narayan H. Surve13
. In the said case, it was
observed thus:
7. …....... It would be relevant to point out that this
Court in Suka Ishram's, case was fully conscious of the said
legal position which is reiterated by the Apex Court in
Harbanslal's case. This Court in Suka Ishram's case at page
222 has referred to the broad principles that would cover the
cases under Section 12(3)(a) of the Bombay Rent Act,
nevertheless, in the facts of that case, which in my view are
13 2000 (102(3)) BOMLR 276

similar to the one in the present case, proceeded to hold that
the tenant cannot be evicted under Section 12(3)(a) of the
Bombay Rent Act. As aforesaid, it cannot be said that the
respondenttenant was a wilful defaulter prior to the issuance
of the suit notice or had failed and neglected to pay the rent
regularly. On the other hand, what appears from the record is
that the petitionerlandlord obviously wanted to create an
evidence against the respondenttenant to maintain the suit
for eviction on the ground of arrears of rent and therefore
refused to accept the money orders (Exhibits 36, 37 and 38)
sent by the respondent. The Courts below have therefore
rightly held that the petitionerlandlord had an oblique
motive in refusing to accept the money orders sent just before
the issuance of the suit notice and if the petitioner had
accepted the said money orders, in which case, there would
have been no cause of action for the petitioner to issue the
suit notice or to institute the suit on the ground of default.
The Courts below have consistently held that the respondent
has not neglected to pay the rent, which was the prerequisite
for applying Section 12(3)(a) of the Bombay Rent Act. I am
in full agreement with the concurrent finding of fact as well
as the conclusions reached by the Courts below.
45] Similarly, in case of Kamlabai B. Kabade vs. Laxmibai J.
Jagtap and ors.14, this Court has held that refusal of rent sent by
money order constitutes deemed acceptance of rent. In such a
situation, there would be no cause of action either to issue notice or
to institute a suit on the ground of default.
46] The failure to examine postman, in facts and circumstances of
the present, is by no means sufficient to upset the concurrent
findings that rents were indeed sent by money order and refused by
14 2001(2) MH.L.J. 905

the respondentlandlords. There are records of money order
dispatches over considerable period. The amounts dispatched and
the endorsement thereon are substantially clear. The deposition on
behalf of the applicants as well as respondentlandlords, does
substantially establish that consequent upon purchase of suit
premises by the respondentlandlords some time in the year 1992,
rents have been dispatched by the applicants by way of money
orders and same have been refused by the respondentlandlords. In
such circumstances, there is no question of ignoring all such
materials and relying upon a singular and bald assertion on the part
of the respondentlandlords that the rents dispatched by money
orders were never refused by them. Any conclusion that rents were
not refused, in the facts and circumstances of the present case,
would be contrary to the weight of evidence on record. The Appeal
Court, therefore, has exceeded its jurisdiction or in any case,
committed an error of law apparent on face of record.
Reasonable and Bona fide Requirement (Section 16(1)(g) of the
Rent Act)
47] In the notice preceding the institution of suits for eviction,
inter alia, on the ground that the suit premises are required by the
37/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
respondentlandlord reasonably and bona fide for occupation by
himself or by any person for whose benefit the premises are held,
the Applicants have set out the case that Baitulla Shaikh (plaintiff
No.1) has two sons Irfan B. Shaikh and Haroon B. Shaikh. That both
are aged 23 and 24 years respectively and are degree holders.
Similarly, Shri. C.K. Aris, Hamid (plaintiff No.2), apart from the suit
premises, has no other premises in Mahabaleshwar. Therefore, it was
stated that the respondentlandlords proposed to demolish the suit
premises and in their place construct a building for residence as
well as hotel business. The necessary plan in this regard has also
been approved by the Municipal Authorities and in the open space
appurtenant, pits have been dug and construction work commenced.
The allegations in the plaint, are also to this identical effect.
48] Section 16(1)(g) of the Rent Act entitles the landlord to
recover possession of the tenanted premises, if the same are
reasonably and bona fide required by the landlord for occupation by
himself or by any person for whose benefit the premises are held.
Section 16(1)(i) further provides that where premises are reasonably
and bona fide required by the landlord for the immediate purpose of
demolishing them and such demolition is to be made for the purpose
38/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
of erecting new building on the premises sought to be demolished,
then subject to certain conditions set out in subsections (4),(5),(6)
and (7) of Section 16 of the Rent Act, the Court may make a decree
of eviction.
49] In the context of decree of eviction under Section 16(1)(i),
subsection (4) of Section 16 of the Rent Act provides that a Court
may pass the decree only in respect of a part of the premises which
in its opinion is necessary to vacate for carrying out the work of
erection of new building. Subsection (5) of Section 16 of the Rent
Act renders unlawful, assignment of any decree of eviction obtained
on the grounds specified in Section 16(1)(i) of the Rent Act. Sub
section (6) of the Section 16 provides that no decree of eviction on
grounds specified in Section 16(1)(i) of the Rent Act shall be made,
unless the Court is satisfied that necessary funds for purpose of the
erection of new building are available with the landlord, the plans
and estimates of the new building have been properly prepared, that
the new building contained residential tenements not less than the
number of existing tenements which are sought to be demolished,
the landlord has given the necessary undertakings prescribed under
clause (d) of subclause (6) of Section 16 of the Rent Act. The
39/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
undertaking makes reference to the amendment and time schedule
in which the erection of new building will commence and conclude.
Subsection (7) of Section 16 of the said provides that where
possession of premises is recovered under Section 16(1)(i) of the
Rent Act and the premises are transferred by the landlord, or by
operation of law before the tenant or tenants are placed in
occupation, then such transfer shall be subject to the rights and
interests of such tenants.
50] Mr. Talkute relying upon the statements in notice dated 4
February 2002, the plaint as also the deposition of the landlords
submitted that the respondentlandlords intended to seek eviction
under Section 16(1)(i) and not Section 16(1)(g) of the Rent Act. If
this be so, Mr Talkute submitted that the conditions prescribed in
subsections (4) to (7) of Section 16 of the Rent Act had to be
complied with. In absence of any such compliance, no decree of
eviction would ever been made against the applicants.
51] In fact, Mr. Anturkar, learned senior counsel appearing for the
respondentlandlords in Civil Revision Application No. 167 of 2014
fairly conceded to the aforesaid position, in the light of the
40/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
averments in the legal notice, plaint and the deposition. However,
Mr. Shah, who appears for the same respondentlandlords in Civil
Revision Application No. 770 of 2013, submitted that
notwithstanding the statements/averments in the notice, plaint and
deposition, a decree of eviction was perfectly competent under
Section 16(1)(g) of the Rent Act. In this regard, Mr. Shah placed
reliance upon the decision of the Apex Court in case of Ramniklal P.
Mehta (supra) and Sharadchandra Chitnis (supra), which
according to him, have taken the view that where the possession of
the tenanted premises is required reasonably and bona fide for the
personal occupation of the landlord or members of the landlord's
family, eviction decree can be made despite the proposal being for
demolition of the suit premises and the erection of a new building
thereon.
52] The aforesaid issue does not call for any decision in the facts
and circumstances of the present case. This is because, the
respondentlandlords, in the present case, have not made out any
case for decree of eviction on the ground that the suit premises are
reasonably and bona fide required by them or any persons for whose
benefit the premises are held by them.
41/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
53] In notice as well as suit seeking eviction upon the grounds
contemplated by Section 16(1) (g) of the Rent Act, the respondentlandlords
have averred that the suit premises are required for the
purposes of residence as well as hotel business of the two sons Irfan
B. Shaikh and Haroon B. Shaikh as well as as Shri. C.K. Aris Hamid
(plaintiff No.2). The pleadings, are by no means clear and
categorical. However, in such matters, the pleadings, particularly in
the context of reasonable and bona fide requirement are requiring to
be liberally considered, as such the contentions of Mr. Talkute and
Mr.Warunjikar that the landlords' plea be rejected on grounds of
vagueness in the pleadings, cannot be accepted.
54] However, the respondentlandlords, have not at all been
candid with the Court insofar as the pleadings are concerned. In the
course of evidence, it has come on record that the respondentlandlords
have, besides the suit premises several other premises,
which are being used by them for purposes of commerce as well as
residence. Some of the premises, may have been acquired post the
institution of the suit including in particular, the premises acquired
by one of the sons of Baitullah Shaikh. Nevertheless, there were no
disclosures volunteered in the course of examinationinchief. Even
42/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
if, the premises subsequently acquired are left out of consideration,
there was a duty upon the respondentlandlords to fully and
candidly make disclosure about the premises in their occupation,
both for the purposes of residence as well as commerce and
thereafter to explain, howsoever briefly, the subsistence of the need
in respect of suit premises. The respondentlandlords have
completely failed in this aspect. Such nondisclosure is a relevant
consideration in the context of determining both the reasonability as
well as bona fides.
55] The tenants have managed to bring on record the material in
the context of occupation and control of several premises by the
respondentlandlords. Looking to the conduct of the respondentlandlords,
there is no certainty as to whether the premises in respect
of which the tenants have obtained and produced documents, are
only premises which are in the occupation of control of the
respondentlandlords or whether there are some others as well.
However, even on basis of the existing material on record, there was
no question of making any decree under Section 16(1) (g) of the
Rent Act.
43/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
56] There is record that the property in C.T.S. No. 137, 137/1,
137/2 and 137/3 at Dr. Sabane Road, Mahabaleshwar, Satara is in
the occupation of the respondentlandlords. Upon the said property,
the respondentlandlords, operate 'Hotel Blue Star'. Incidentally,
Dr.Sabane Road, Mahabaleshwar, is the very road upon which the
suit premises are situated. In the plaint, there was no reference in
respect of this property. There are documents which establish that
this property is in the occupation of the respondentlandlords. There
are admissions in this regard as well. Mr. Shah contended that
failure to disclose is not fatal, if it is established that a decree for
eviction can be sustained even if disclosure were to be made. That is
not a situation in the present case. Apart from this property, there
are several other properties in the occupation or control of the
respondentlandlords. The landlords have hotel business under the
name and style of 'Hotel Blue Star'. There are other businesses like
STD Booth, sale of handicrafts, Lucky Restaurant carried out by the
landlords at Mahabaleshwar itself. There was no disclosures in
regard to the premises and the businesses. Such disclosures were
necessary, if the requirement of the suit premises is to be regarded as
reasonable and bona fide.
44/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
57] There is again, the property at School Mohalla in CTS No.
252, Mahabaleshwar, Satara. The ownership of this property by
Shaikh Baitulla is not really in dispute. There is material in the form
of documents as well as admissions. The belated explanation is that
the property is ancestral property belonging to the joint family. This
by itself, is no excuse for nondisclosure. There is again reference to
the property at CTS No. 399 near Nagarpalika Society. This property
as also Municipal House No. 11 CTS No. 558 comprising six rooms
with Toilet bathroom have nexus with the two sons of Mr. Baitulla
Shaikh. The belated explanations that one of the properties is in the
name of Irfan's wife or that one of the properties has already been
rented out, again, afford no excuse for nondisclosure. The
respondentlandlords i.e., Baitulla Shaikh himself resides at 23/B,
Nagarpalika Society since last several years, though the explanation
is that the said property belongs to his motherinlaw. There is also
reference to a flat in Pune, which, however, in the facts and
circumstances of the present case, is really irrelevant. Nevertheless,
from the material on record, it is apparent that the landlords have in
their occupation several properties and carry on several businesses
and these facts were suppressed by the landlords in their plaints
seeking eviction on the ground of reasonable and bona fide
45/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
requirement. The belated explanation that some of the properties are
taken on rent or rented, that some of the properties are not in the
names of the landlords or that some of the properties are joint family
properties, hardly inspire any confidence. In any case, the reasons,
do not apply to all the properties in regard to which, the material
has been produced on record by the applicants. It was the duty of
the landlords to have made disclosure in their pleadings and
thereafter, offered explanation, howsoever brief, as to how despite
the occupation of all such properties, need in respect of the suit
premises subsists and is further bona fide and reasonable. Such
pleading or disclosure, would have enabled the applicants to meet
the case set out by the landlords. In absence of such disclosures on
vital and relevant matters, no decree of eviction under Section 16(1)
(g) of the Rent Act is sustainable.
58] In case of Tarachand Hassaram Shamdasani (supra), the
learned Single Judge of this Court has held that it is obligatory for
the landlord to disclose in the pleadings and in his evidence that the
fact that he owns other premises which were capable of being
utilized for the requirement pressed into service in the suit filed
against the tenant and to further disclose and explain that in spite of
46/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
those acquisitions, ownership of other premises, the requirement
which is pressed into service against the tenant would still survive. It
is only then the landlord would be entitled to invoke the ground of
reasonable and bona fide requirement and would succeed in
establishing that the need is indeed bona fide and reasonable. In the
said case also, there were no disclosures and the material with
regard to ownership of other premises came on record only during
the course of crossexamination. This was possible because the
tenants through their efforts managed to obtain information. This
Court, upset the concurrent findings as to bona fide and reasonable
requirement, where the landlord has suppressed such material
particulars. The relevant observations are contained in paragraphs,
7,8 and 9, extract of which reads thus:
7. …................That building can be used for residence.
These facts were indeed relevant for deciding the issue of
bonafide and reasonableness of the requirement of the
Plaintiff, but were not disclosed either in the pleadings or
atleast in the examinationinchief when the Plaintiff entered
the witness box. However, were elicited only during the cross
examination conducted by the Defendanttenant. This was
possible only because all these details were within the
knowledge of the Defendanttenant. In spite of such
overwhelming evidence on record, the Courts below have
proceeded to answer the issue of bonafide and reasonable
requirement in favour of the Respondent landlord. That
cannot be countenanced, to say the least.
8. To my mind, however, it is obligatory for the landlord
to disclose in the pleadings and in his evidence the fact that
47/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
he owns other premises which were capable of being utilized
for the requirement pressed into service in the suit filed
against the tenant and to further disclose and explain that
inspite of those acquisitions and ownership of other premises,
the requirement which is pressed into service against the
tenant would still survive. It is only then the landlord would
be entitled to invoke this ground and would succeed in
establishing his need to be bonafide and reasonable.
9. I have no hesitation in taking the view that in the fact
situation of the present case the Plaintiffs has failed to plead
and also depose in his evidence (examinationinchief) about
the ownership of other premises capable of being used for the
requirement pressed into service in the subject suit. Besides,
he has failed to disclose and explain that even the other
premises were not sufficient to satisfy the requirement pressed
into service in the suit against the tenant. Only when the
landlord pleads and proves all these material facts that the
Court would be able to adjudicate fully, completely and
effectually as to whether the requirement pressed into service
by the landlord in the suit so filed is bonafide and reasonable.
As mentioned earlier, it is well settled that the landlord is not
only required to establish his need to be bonafide but also to
be reasonable. If the landlord fails to plead or establish either
of this ingredient then the ground under Section 13(1)(g) of
the Act for eviction is unavailable to the landlord. Inherent in
this test is that if the landlord has failed to disclose relevant
materials in the pleading and in his evidence (examinationinchief),
dejure, the landlord has not approached the court
with clean hands. In such a case, it will be the duty of the
court to nonsuit the landlord with regard to this ground. It
will be useful to place reliance on the enunciation of the Apex
court in the case of S.P. Chengalvaraya Naidu's case (supra).
The Apex Court has observed that duty is cast upon the
Plaintiff to disclose all the facts, it is the duty of the Plaintiff
to come to Court with true case and prove it by true evidence.
The Apex Court has further observed that deliberate deception
with the desire of securing something by taking unfair
advantage of another, it is a deception in order to gain by
another's loss, it is a cheating intended to get an advantage.
Further, in Paragraph 6 it has observed that, non disclosure
48/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
of all the material and relevant facts at the trial tantamount
to playing fraud on the Court. A litigant, who approaches the
Court, is bound to produce all the documents executed by him
which are relevant to the litigation. Withholding of any vital
document in this case information, in order to gain
advantage on the other side then he would be guilty of fraud
on the Court as well as on the opposite party. Such a person
can be summarily thrown out at any stage of the litigation. If
this principle is to be applied to the facts of the present case, I
have no manner of doubt that the RespondentLandlord will
have to be non suited on this ground. Because, it is a case of
non disclosure of material facts and information, therefore,
one of approaching the Court with unclean hands. And as
observed by the Apex Court tantamount to playing fraud on
the court as well as the opposite side. In this case sheerly
because the Petitioner tenant was vigilant enough, could
muster the necessary information to confront the Respondent
landlord regarding his need being not bonafide and
reasonable.
(emphasis supplied)
59] In case of Narendra Gulabrao Zade vs. Shiocharan
Ghashiram Gupta since deceased through Lrs. Smt. Radhabai
Shivcharan Gupta & anr.15
, in the context of the necessity of
disclosure by the landlord, this Court has made following
observations:
9. The application as filed by the petitioner before the
Rent Controller does not contain a reference to other house
belonging to him and situated at Rajapeth i.e. within the
Municipal limits. The law requires the petitioner to prove his
bonafide need and for that to approach the Court of law with
clean hands. The petitioner could have explained inadequacy
or other lacunae in Rajapeth accommodation to justify his
preference of ground floor in occupation of the tenant. Had
there been such a case and pleading, the respondent – tenant
15 2011 (1) Mh.L.J. 839
49/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
would have then got an opportunity of cross examination and
then bonafides or otherwise of the need of the landlord could
have been judicially appreciated. Unfortunately, such a
course of action is not possible here. The respondent – tenant
has through cross examination of the petitioner placed on
record only the suppression of availability of other house at
Rajapeth with further fact that proceedings for eviction of
Mohan Singh Thakur therefrom were actually initiated and
later on compromised when Mohan Singh Thakur agreed to
increase the rent. Thus, this material brought on record by the
tenant is sufficient to substantiate that there is no bonafide
need of the landlord. Subsequent utilization of premises
vacated by Shri Mohan Singh Thakur for establishing a
business again raises several questions and as this fact is not
on record, the same cannot be considered here.
10. The reliance upon the judgment delivered by me and
reported in the case of Murlimanohar vs. Prabha
Bhattacharya, (supra) in this situation is misconceived.
There, the landlady and her sisters qualified gynecologists
were seeking eviction of tenant to start maternity home and
hospital. The tenant was urging that they can have their
complex and in that complex, the tenant also can be
accommodated. The evidence which has come on record there
has been appreciated and such insistence on the part of the
tenant was found to be unjustified. This Court has found that
in such situation, the landlord is the best judge of his need.
The judgment, therefore, has no application in present facts.
The landlord can claim to be a best judge of his need after he
fairly discloses all options available to him and shows some
reason for choosing particular option i.e. premises. It is this
election, effected by him after full knowledge and
appreciation, which cannot be interfered with judicially.
Here, the premises at Rajapeth were suppressed and hence it
cannot be said that the landlord has judged his need bonafide
in accordance with law. In this situation, I find that the
petitioner – landlord can initiate fresh proceedings in
accordance with law.
(emphasis supplied)
50/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
60] The two Courts have returned findings on the aspect of
reasonable and bona fide requirement in quite of perfunctory
manner. The two Courts, have permitted themselves to be
particularly influenced by the circumstances that the landlord
Baitulla Shaikh resides in the house, which is owned by his motherinlaw.
Although, the same might have been a relevant factor, it is to
be noted that the need pleaded by Baitulla Shaikh for purposes of
residence, was not his own, but rather the need pleaded was that of
his two sons. In fact, the pleadings with regard to need for residence
are sketchy. Though, it is held that the pleadings in the matter of
reasonable and bona fide requirement have to be considered
liberally, there are really, in this case, no pleadings worth the name
in the context of personal residential requirement of Baitulla Shaikh.
Therefore, the Courts were clearly in error in laying undue emphasis
upon the circumstances that the house in which the Baitulla Shaikh
resides for number of years is in the name of his motherinlaw.
There was no case pleaded by Baitulla Shaikh that he is put to any
inconvenience on this ground. In fact, Baitulla Shaikh chose to
suppress any details about the factum of his residence.
51/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
61] The two Courts have further held that the landlord, is the
final arbiter in the matter of his need and it is neither for the Courts,
much less the tenant to dictate any terms. There can be no quarrel
with the proposition per se. However, the intention of the legislature
is surely not to vest in a landlord some sort of unfettered discretion
in the matter. The Apex Court, in the case of M.M. Quasim Vs.
Manohar Lal Sharma16
, at paragraph 19, has observed thus:
19. ….........This approach betrays a woeful lack of
consciousness relatable to circumstances leading to enactment
of Rent Acts in almost all States in the country. The time
honoured notion that the right of reentry is unfettered and
that the owner landlord is the sole judge of his requirement
has been made to yield to the needs of the society which had
to enact the Rent Acts specifically devised to curb and fetter
the unrestricted right of reentry and to pro comparative
hardship vide that only on proving some enabling grounds set
out in the Rent Act the landlord can reenter. One such
ground is of personal requirement of landlord. When
examining a case of personal requirement, if it is pointed out
that there is some vacant premises with the landlord which he
can conveniently occupy, the element of need in his
requirement would be absent. To reject this aspect by saying
that the landlord has an unfettered right to choose the
premises is to negative the very raison de'etre of the Rent Act.
Undoubtedly, if it is shown by the tenant that the landlord
has some other vacant premises in his possession, that by
itself may not be sufficient to negative the landlord's claim but
in such a situation the Court would expect the landlord to
establish that the premises which is vacant is not suitable for
the purpose of his occupation or for the purpose for which he
requires the premises in respect of which the action is
commenced in the Court. It would, however, be a bald
statement unsupported by the Rent Act to say that the
16 (1981) 2 SCC 36
52/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
landlord has an unfettered right to choose whatever premises
he wants and that too irrespective of the fact that he has some
vacant premises in possession which he would not occupy and
try to seek to remove the tenant. This approach would put a
premium on the landlord's greed to throw out tenants paying
lower rent in the name of personal occupation and rent out
the premises in his possession at the market rate. To curb this
very tendency the Rent Act was enacted and, therefore, it
becomes the duty of the Court administering the Rent Act to
bear in mind the object and intendment of the legislature in
enacting the same. The Court must understand and
appreciate the relationship between legal rules and one of
necessities of life shelter and the way in which one part of the
society exacts tribute from another for permission to inhabit a
portion of the globe. In 'The Sociology of Law', edited by Pat
Carlen, the author examines the rent and rent legislation in
England and Wales and observes as under:
"The prevailing paradigms of neoclassical economics
and empiricist political theory have determined the
conceptual insularity of law and legal institutions, with
the result that they and other social events appear as
random existences independent of their historical
formation. The force of any theory comparative
hardship of law must of course lie in its explanatory
power, and this in turn depends on the wider image
of social relations which produces it".
(emphasis supplied)
62] In Civil Revision Application No. 770 of 2013, the Courts have
held against the applicant on the ground that the applicant had
acquired two rooms at Namdev Cooperative Housing Society and
that PW4, one Mukund, had stated that permission for constructing
a second floor can be granted by the Society. Apart from the
53/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
circumstance that the acquisition of alternate premises is no longer
ground under the Rent Act for eviction of a tenant, even if we
proceed on the basis that such a circumstance can legitimately be
taken into account in the matter of determination of comparative
hardship, the material on record indicates that the suit premises at
Namdeo Cooperative Housing Society are occupied by one of the
two married sons of the applicant. Besides, the two rooms in
Namdeo Cooperative Housing Society are not on ownership basis
but taken on rent from the municipality. The tenant Gujar has
further deposed that in the suit premises, which comprises two
rooms admeasuring 10 x 12 feet each, the said applicant resides
alongwith his parents, two sons and two daughters. The two
daughters are married, but often visit the suit premises. One of the
sons is married and has shifted to two room at Namdeo Cooperative
Housing Society. All such relevant materials have been totally
ignored by the two Courts.
63] The Trial Court, in the present case has considered the issue of
bona fide requirement and comparative hardship in a composite
manner rather than consider the two aspects separately. The Trial
Court, failed to appreciate that to begin with, it has to be determined
54/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
whether the landlords have made out a case that the suit premises
are required by them reasonably and bona fide. Upon record of
satisfaction in this regard, the Trial Court should have then adverted
to the predicates of Section 16(2) of the Rent Act, which mandate
that no decree of eviction shall be passed on the grounds specified in
Section 16(1)(g) of the Rent Act, if the Court is satisfied that having
regard to all the circumstances of the case, including the question
whether reasonable accommodation is acquired by landlord, greater
hardship would be caused by passing a decree than by refusing to
pass it. There is accordingly, clear failure to exercise jurisdiction
under Section 16(2) of the Rent Act, by confusing and mixing of two
issues of reasonable and bona fide requirement and comparative
hardship into one. The entire reasoning of two Courts is that the
landlords are the best judges and the final arbiters in matters of
reasonable and bona fide requirement and further that since the
tenant Gujar has two rooms in Namdev Cooperative Housing Society,
the respondentlandlords will suffer greater hardship. The landlords
are hoteliers having Hotels like Blue Star and Lucky Restaurant at
Mahabaleshwar itself. The landlords and their family members are
engaged in several businesses like STD Booth, sale of handicrafts
etc.. One of the landlords has been the President of Municipal
55/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
Council of Mahabaleshwar. The record indicates that the family
members of one of the landlords have served in Municipal Council in
some capacities or the other. In contrast, the tenant Gujar, who
resides in suit premises No.1 , is engaged in sale of 'Panipuri' and
other road side snacks. The tenant Panhalkar is engaged in sale of
handicraft items through suit premises No.2 which admeasure
around 40 sq.ft. Both the tenants have deposed that despite best
efforts, it is not possible for them to acquire other premises. There
are several premises in the occupation of the landlords which the
landlords did not even bother to disclose in the plaints. In these
circumstances, even if the issue of comparative hardship was
required to be decided, the same would have to be answered in
favour of the tenants. In any case, by ignoring of such relevant and
vital material on record, the Courts could not have answered such
issue in favour of the landlords.
64] This Court in case of BismilL Bee w/o. SK. Chand and
Khajamiyan S/o. Sk. Chand Vs. anwar S.o. Mohd. Akhtar17, has
held that the provisions of Section 16(2) of the Rent Act, cast a
statutory duty upon the Court to make an enquiry to the extent of
need of the landlord, even if such need is found to be reasonable and
17 2010(1) ALL MR 889
56/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
bona fide. The right of the landlord to seek eviction on one hand and
the protection granted to the tenant on the ground of comparative
hardship on the other hand, can be balanced by the Court by making
enquiry into the extent of need of landlord and even passing a
decree for partial eviction from the suit premises, to meet the ends
of justice. Such an exercise is required to be carried out by the Court
irrespective of the fact whether party demands it or not. If such
exercise is not carried out by the Court, then certainly it would result
not only in failure to jurisdiction, but also failure to perform
statutory and mandatory duty, resulting in failure of justice. Further,
Section 16(2) of the Rent Act mandates that the Court is to have
'regard to all circumstance of the case'. It further proceeds to state that
this would include the question whether other reasonable
accommodation is available for the landlord or the tenant. In this
context, it is necessary, for the Court to be alive to the financial
status of both the landlord as well as the tenant. The Court is also
expected to be alive to the situation regards scarcity of
accommodation at a particular place. In the present case, the two
Courts have failed to undertake any such exercise and the impugned
orders consequently are unsustainable.
57/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
The premises required for immediate purpose of demolition
ordered by Municipal Authorities (Section 16(1)(k) of the Rent
Act)
65] The Trial Court as well as the Appeal Court have upheld the
plea for eviction on the ground contemplated by Section 16(1)(k) of
the Rent Act. There is, however, variance in the reasoning adopted
by the Trial Court and Appeal Court.
66] Section 16(1)(k) of the Rent Act reads thus:
16(1)(k) that the premises are required for the immediate
purpose of demolition ordered by any municipal authority or
other competent authority;
67] The Trial Court, as reflected in the judgment and decree dated
4 July 2011, had framed the following issue in the context of
grounds for eviction under Section 16(1)(k) of the Rent Act.
(2) Whether the plaintiffs are entitled for possession on the
ground that suit property is in dilapidated condition and
ordered to be demolished by the local authority as being
dangerous for human habitation ?
68] From the manner in which the issue was cast by the Trial
Court as also the discussion in the judgments and decrees made by
the Trial Court and the Appeal Court, it is clear that both the Courts
have not even adverted to the aspect of as to whether the suit
58/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
premises were required for 'immediate purpose of demolition' as
contemplated by Section 16(1)(k) of the Rent Act. The italicised
expression, is not without a purpose or a mere surplasage. Before,
any decree of eviction can be made under Section 16(1)(k) of the
Rent Act, the Court has to satisfy itself that the suit premises are
required for the 'immediate purpose of demolition'. In the absence of
even the consideration of this aspect of immediacy, much less record
of any satisfaction in that regard, there is clear failure to exercise
jurisdiction. This position is no longer res integra.
69] The Apex Court, in case of P.O.P.R. and Sons (P) Ltd. vs.
Associates Publishers (Madras) Limited18
, has held that the
expression 'immediate purpose' in Section 14(1)(b) of the Tamilnadu
Buildings (Lease and Rent Control) Act, 1960 (Tamilnadu Act)
relates to directness rather than speed, although the absence of the
latter negatives the former. This expression denotes connection and
timely action, but not instant action, yet delayed action is a sign of
remoteness of purpose. The expression must be understood as
required in direct connection and timely purpose and not just some
secondary, remote or premature purpose. The legislative intent is
that the purpose should be immediate or direct and not mediate,
18 (1991) 1 SCC 301
59/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
remote, not direct or secondary. The Apex Court, in the context of
Section 14(1)(b) of the Tamilnadu Act as also observed that the
Court does not normally sit in judgment over the appreciation of
evidence and findings of fact rendered by authorities empowered
under a statute. However, if the authority has acted in excess of its
jurisdiction, asked itself wrong questions or misunderstood or
misapplied the law, failed to consider the relevant circumstances,
allowed itself to be persuaded by irrelevant circumstances, then the
findings are liable to be reversed as perverse by a Court exercising
judicial review. Any repository of power must act, in accordance with
the law and on basis of relevant evidence. The authorities must act
by reason and justice, not by private opinion.
70] The learned Single Judge of this Court in case of Mrs. Piadad
Fernander vs. K.M. Ramesh and ors.19
, in the context of provisions
contained in Section 13(1)(hhh) of the 1947 Act have held that
satisfaction regards immediacy is not a mere formality. The Court
must apply its mind to all facts and circumstances of the case
including the order of demolition and then come to the conclusion
one way or the other. The earlier decision of this court in Civil
Revision Application Nos. 1734 to 1748 of 1965 decided on 14
19 AIR 1970 Bombay 376
60/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
August 1967 (Bom.) was referred to and relied upon to hold that the
expression 'immediate' must be given its due weight in the context.
Mr. Justice Patel , in the decision rendered on 14 August 1967, has
observed thus:
“In my view, the word 'immediate' in the above clause has
been used by the legislature with some intent. If the
legislature wanted to provide that the landlords should be
entitled to recover possession for the purpose of demolition of
the property ordered by the Corporation there should have
been no necessity of using the word 'immediate' and even the
meaning it would have borne would be the same which Mr.
Dhanuka wants me to give to the above clause. It must be
remembered in this connection that between the issuing of the
notices by the Municipal Corporation for demolition of the
premises and the filing of a suit many things might intervene
and though at one time the Corporation might have thought
that a building was in such a ruinous condition that it must
be ordered to be demolished, the same state of affairs might
not continue to exist after the lapse of a few years. The word
'immediate' must be given its due effect in the context.”
71] This Court, again in the context of Section 13(1)(hhh) of the
1947 Act, in case of M.L. Sonavane vs. C.G. Sonar20, has held that
before any order of eviction under Section 13(1)(hhh) of the 1947
Act can be made, the Court must be satisfied upon two aspects. It
must be satisfied that a decree for possession has to be passed
against the a tenant and secondly, “premises are required for the
20 1981 Bom.R.C. 128
61/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
immediate purposes of demolition”. Unless the Court is satisfied about
the existence of both these things, it would be difficult to see how a
Court can pass a decree for eviction against a tenant. The
satisfaction must relate to the requirement of passing a decree for
possession against the tenant, and the immediate necessity of
demolition. The satisfaction of the Court is not a substitute for the
satisfaction of the local authority. Nor is it that Court must itself
enquire that the premises are in such a ruinous condition that they
are required to be demolished. That satisfaction is relegated to the
local authority. But, even apart from that satisfaction is still reserved
for the Court by the terms of the section, which deals with that
satisfaction with regard to the passing of a decree for possession
against the tenant, and the immediate purpose of demolition. If the
Court is satisfied, on a consideration of the subsequent events that
the premises are not required 'for the immediate purpose of
demolition', then, notwithstanding the order passed upon a bona fide
exercise of the power by the local authority, the Court may still
refuse to pass a decree.
72] Finally, in case of Manohar P. Rajpal vs. Satara City
Municipal Corporation, Satara and anr.21, which was relied upon
21 AIR 1992 Bom.R.C. 220
62/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
by both the Trial Court as well as Appeal Court, this Court has held
that it is open to the Rent Court, before making an order of eviction
under Section 13(1)(hhh) of 1947 Act to examine whether the order
made by the local authority is based upon relevant considerations
and not irrelevant ones. Further, some enquiry is also warranted in
the context of expression 'immediate purpose' since the expression is
not a mere surplusage and the same has to be considered having
regard to various circumstances, including subsequent events.
73] Now if the impugned judgments and decrees made by the
Trial Court and the Appeal Court are perused, it is clear that there is
no serious investigation as to whether the notice dated 23 January
2002, upon which the landlords have founded their cause of action
to seek eviction under Section 16(1)(k) of the Rent Act was issued
on basis of relevant considerations and after eschewing irrelevant
ones. Further there is no discussion at all on the issue of 'immediate
purpose of demolition'. As held in case of M.L. Sonavane (supra), the
record of satisfaction on the aforesaid twin aspects is necessary
before any eviction order can be made on basis of provisions pari
materia to Section 16 (1)(k) of the Rent Act. Therefore, in the
absence of even adverting to the significant aspect of 'immediate
63/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
purpose of demolition' , the impugned judgments and decrees cannot
be sustained.
74] The notice dated 23 January 2002, which as noted earlier, was
foundation of the institution of the suits by the landlords states that
inspection was carried out on 22 January 2002 and therein it was
revealed that the eastern wall of House No. 86B is bloated and there
are cracks therein. Similarly, wooden rafters have decayed and the
roof destabilized. This condition, poses danger to the persons
residing in the house as also passers by. The notice finally directs the
landlords to remove the dangerous part of the house and warns that
the Municipal Authority will not be responsible for any untoward
instances, including loss and life or property.
75] In the context of the provisions contained in Section 16(1)(k)
of the Rent Act as also the ruling in case of Manohar Rajpal
(supra), the correct question to be posed would be whether
demolition of the suit premises has indeed been ordered by the
Municipal Authorities and further, whether such orders are based
upon relevant considerations and not irrelevant ones. Some enquiry
64/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
is also warranted in the context of the expression 'immediate purpose'
employed in Section 16(1)(k) of the Rent Act. Apart from the
decision of the Apex Court in case of P.O.P.R. & Sons (P) Ltd.
(supra), this Court in case of M.L. Sonawane (supra), has held that
the word 'immediate' is not a surplusage and the same must be
construed having regard to the circumstances.
76] In the notice dated 23 January 2002, there is no reference to
the same being issued under Section 195 of the Maharashtra
Municipalities Act, 1965 (1965 Act), which is the law, which governs
the Municipal Authorities at Mahabaleshwar. This is significant
because there is a statutory appeal against the notice under Section
195 of the 1965 Act, which opportunity was denied to the tenants.
Further, the notice is not directly in the context of suit premises
occupied by the tenants, but rather pertains to certain portions of
House No.86B. The notice, does not require demolition of the entire
House No.86B, but rather requires removal of portions thereof,
including in particular eastern wall, rafters and roofing. On basis of
such notice, it is difficult to sustain an eviction order under Section
16(1)(k) of the Rent Act, particularly where no satisfaction
whatsoever has been recorded by the two Courts on the aspect of
65/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
'immediate purpose of demolition', which satisfaction, was required to
be recorded, both in terms of the context of Section 16(1)(k) of the
Rent Act as also the decision of this Court in case of M.L. Sonavane
(supra).
77] There is yet another significant aspect in the context of order
of eviction under Section 16(1)(k) of the Rent Act. On 6 August
2002, the tenants lodged the complaint to the Municipal Authorities
that the landlord Baitulla Shaikh was deliberately indulging in
weakening of the walls of the portion of House NO.86, in his
possession, with the objective of weakening the entire structure.
Based upon such complaint, on 29 August 2002, an inspection was
held by the Municipal Authority. Upon finding some merit in the
complaint of the tenants, the decision was taken to issue appropriate
notice to the landlords Baitulla Shaikh and C.K. Aris, Hamid.
Pursuant to such decision, the Municipal Authority, by notice dated
29 August 2002, notified the landlords that during inspection it was
revealed that the landlords are illegally and unauthorisedly
weakening the walls of House No. 86 and that in future, if the wall
collapses and causes loss to the life and property of the tenants,
then, it is the landlords, who will be entirely responsible for the
66/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
same. The documents like compliant of the tenants, inspection
report as well as notice dated 29 August 2002 have been proved in
the course of evidence and have been marked as Exhibits 223, 224
and 225. This vital material has been completely ignored by the two
Courts. Exclusion of relevant and vital material, is also a species of
perversity in the record of any finding of fact. The Court
Commissioner was also appointed and even the Report of the Court
Commissioner does not make out the case that the premises were
required for immediate purpose of demolition. The evidence of the
Municipal Engineers as well as the Court Commissioner, at the
highest indicates that certain portions of House No.86 are in need of
repairs. But the evidence does not make out any case that the suit
premises were required for the immediate purpose of demolition. By
virtually ignoring such material, the two Courts have proceeded to
make a decree of eviction under Section 16(1)(k) of the Rent Act.
This is an exercise in excess of jurisdiction. There is both illegality as
well as material irregularity in the record of findings of fact,
inasmuch as the Courts have failed to ask itself correct question in
the context of 'immediate purpose' and further failed to consider
relevant circumstances, rather the two Courts have allowed
themselves to be persuaded by irrelevant circumstances.
67/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:44 :::Bombay High Court
DSS cra-770-13 & 167-14
78] The learned counsel for the landlords, however, attempted to
make reference to certain subsequent notices issued by the
Municipal Authority during pendency of proceedings. One such
notice is dated 3 December 2005. Again, this notice makes no
reference to the Section 195 of the 1965 Act. Copy of this notice was
marked to Shri. Dastagir Dange and Shri. Sanjay Shinde, who were
stated to be the complainants. There is no question of placing any
reliance of such notice dated 3 December 2005, because the
Municipal Authority, by subsequent communication dated 16
December 2005 (Exhibit299) informed the tenants that further
enquiries were conducted in the context of complaint made by
Shri.Dattatray Deshmukh, which were the basis for issuance of
notice dated 23 January 2002 and it was revealed that the complaint
made by Shri. Dattatray Deshmukh was false. There is record of
letter dated 14 November 2005 addressed by Shri. Dattatray
Deshmukh stating that he had never made any complaint. The
communication dated 16 December 2005 has been marked (as
Exhibit299) in the record.
68/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:45 :::Bombay High Court
DSS cra-770-13 & 167-14
79] The learned counsel for the landlords also made reference to
notice dated 16 July 2009 (Exhibit196). This is a notice which
makes reference to Section 195 of the 1965 Act. As against this
notice, the appeal has been instituted by the tenants and the same is
pending consideration. That apart, even this notice directs the
demolition of eastern wall and states that the Municipal Authorities
will not be responsible for loss of life or property. What needs to be
emphasized is that even this notice dated 16 July 2009 does not
require demolition of the suit premises, but only the eastern wall of
House No.86. Then again, this notice makes reference to the Court
Commissioner Report, without really considering the contents of said
Report.
80] Upon cumulative consideration all the aforesaid circumstances
as well as law on the subject, the eviction under Section 16 (1)(k) of
the Rent Act is unsustainable. The Courts have not even adverted to,
much less recorded any satisfaction on the aspect of 'immediate
purpose of demolition'. This is an essential prerequisite before any
eviction order can be made under Section 16(1)(k) of the Rent Act,
as held by this Court in case of M.L. Sonavane (supra). Further, the
Courts have not even adverted to the issue as to whether notice
69/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:45 :::Bombay High Court
DSS cra-770-13 & 167-14
dated 23 January 2002 as also the subsequent notices indeed
required the demolition of the entire House No. 86 or for that matter
the entire suit premises. The Courts have also not eschewed the
irrelevant considerations or taken into account relevant
considerations. In particular, the Courts have totally ignored notice
dated 29 August 2002 (Exhibit155) issued by the Municipal
Authority to the landlords in the context of deliberate damage to the
walls by the landlords, in order to prejudice the tenants. The notice
dated 29 August 2002 issued by the Municipal Authority is backed
by the documents at Exhibit223 and 224 in the form of complaints
and notings in pursuance of inspection of House No. 86. The Courts
have also failed to take into consideration the communication dated
16 December 2005 (Exhibit299) which accepts that Shri. Dattatray
Deshmukh upon whose complaint, the notice dated 23 January 2002
was issued, had made no complaint at all in the matter. The Court
Commissioner's Report and evidence as also the Municipal
Engineer's evidence has not been adverted to by the two Courts in
proper perspective. Therefore, applying the principles set out in case
of M.L. Sonavane (supra) and Manohar Rajpal (supra), it is not
possible to sustain eviction under Section 16(1)(k) of the Rent Act.
70/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:45 :::Bombay High Court
DSS cra-770-13 & 167-14
Permanent construction without landlords' written consent
(Section 16(1)(b) of the Rent Act)
81] The landlords' had alleged that the tenant Panhalkar has
carried out a permanent construction on the suit premises No.2
without landlords' written consent and therefore, the ground for
eviction under Section 16(1)(b) of the Rent Act was made out, in so
far as the tenant Panhalkar is concerned. The Trial Court had in fact
held that the ground under Section 16(1)(b) of the Rent Act was not
made out by the landlords and therefore, declined to make decree of
eviction under Section 16(1)(b) of the Rent Act. The Appeal Court
has, however, reversed the Trial Court by mainly relying upon the
Report of the Commissioner at Exhibit122, which, according to the
Appeal Court, discloses that the tenant Panhalkar has erected a shed
on the front side of suit premises No.2 by implanting iron pole in
cement and concrete. The finding of the Appeal Court is vitiated by
perversity as well as nonapplication of mind.
82] In the plaint instituted against the tenant Panhalkar, the
allegation is that the tenant Panhalkar, in front of suit premises No.2
has erected that a shed on platform (Otta) and that erection of such
71/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:45 :::Bombay High Court
DSS cra-770-13 & 167-14
shed constitutes a permanent construction as envisaged by Section
16(1)(b) of the Rent Act.
83] The material on record, as analysed by the Trial Court clearly
reveals that the suit premises No.2, which are adjacent to almost
similar premises in the occupation of the landlords are used for the
purposes of sale of some handicrafts, Mahabaleshwar sticks etc.
During the tourist season, all such shops, erects temporary structures
to cover the small space between the actual shop and the road.
There is absolutely no element of any permanence in so far as the
erection of such temporary shed/covering is concerned. The
explanation to Section 16(1)(b), which has not even been adverted
to by the Appeal Court provides that the expression 'permanent
structure' does not include the carrying out of any work with the
permission wherever necessary, of the Municipal Authority, for
providing a wooden partition, standing cooking platform in kitchen,
door, lattice work or opening of a window necessary for ventilation,
a fall ceiling, installation of airconditioners, an exhaust outlet or a
smokechimney. There must be an element of permanency in the
structure, because a temporary structure of the nature described in
72/75
::: Uploaded on - 04/08/2015 ::: Downloaded on - 31/07/2016 18:50:45 :::Bombay High Court
DSS cra-770-13 & 167-14
the evidence adduced by the tenants, is not within the
contemplation of Section 16(1)(b) of the Rent Act.
84] In the present case, upon small space between the suit
premises No.2 and the road a temporary shed is put up. This shed, is
similar to the sheds erected by other shops on the same street. The
shed is basically some sort of protection to the customers from the
rains. There is neither any element of permanency, nor any question
of intention to put up any permanent structure upon the suit
premises. In these circumstances, there was absolutely no warrant
for the Appeal Court to reverse the Trial Court and make a decree
under Section 16(1)(b) of the Rent Act.
Miscellaneous Applications in these Civil Revision Applications
85] The tenants, by Civil Application Nos. 210 and 211 of 2015,
have applied for leave to produce additional evidence in these Civil
Revision Applications. Mainly, the tenants wish to bring on record
the details with regard to further and other premises acquired by or
in possession of the landlords and their children. This is in the
context of challenge to decrees of eviction on the grounds of

reasonable and bona fide requirement. Since it is held that the
landlords were not entitled to any decrees upon such ground, there
is no necessity to permit any further material / evidence in this
regard. Accordingly, Civil Application Nos. 210 and 211 of 2015 are
disposed of.
86] The landlords have taken out Civil Application Nos. 352 and
353 of 2014 seeking mesne profits from the tenants. Since the
eviction decrees are being set aside, there is no question of award of
any mesne profits. Accordingly, Civil Application Nos. 352 and 353
of 2014 are also disposed of.
Final Order
87] For all the aforesaid reasons, Civil Revision Application
Nos.770 of 2013 and 167 of 2014 are allowed and the impugned
judgments and decrees dated 4 July 2011 and 4 July 2013 are set
aside. Accordingly, Rule is made absolute in the two Civil Revision
Applications.
88] For the reasons set out in paragraph '85', Civil Application Nos.
210 and 211 of 2015 taken out by the tenants seeking leave to
produce additional evidence on record are disposed of.

89] As the two Civil Revision Applications have been allowed and
the eviction decrees are set aside, Civil Application Nos. 352 and 353
of 2014 seeking mesne profits from the tenants do not survive and
are consequently disposed of.
90] In the facts and circumstances as aforesaid, there shall be no
order as to costs.
(M.S. SONAK, J.)

Print Page

Pages

Sunday, 31 July 2016

How to appreciate evidence if landlord is denying that tenant has sent rent by money order?

No comments:

Post a Comment