advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, July 2, 2016

suit filed for eviction - Notification was issued during pendency of suit covering the area under rent Acts - not retrospectively applies - during the pendency of the suit, the State Government issued a notification on 03.04.1980 under Section 2(3) and Section 6(1A) of the Act whereby the provisions of Bombay Rent Control Act were extended and made applicable to the area where the suit house was situated. In other words, on and after 03.04.1980, the rights of the landlord and tenant in relation to the suit house were to be governed by the provisions of the Act. = It was also stated that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act”) does not apply to the suit house.- since the plaintiff has already pleaded that his case also satisfies the requirements of relevant provisions of the Act and that pleadings are in conformity with the requirements of the Act, it is not necessary to remand the case to the Trial Court for its retrial under the Act nor it is necessary to send this case to the Rent Tribunal by virtue of Section 28 of the Act, which enables the Court to decide the suit. ;legal heir to legal heir not necessary when another legal heir of original defendant is safeguarding deceased legal heir's = It may be mentioned that during the pendency of this appeal, respondent No. 2, who was one of the legal representatives of original defendant, died. Since his interest was sufficiently safeguarded by the other respondents, who are related to him and hence, in our view, it is not necessary to bring his legal representatives on record and instead his name be deleted from the cause title. It be accordingly done. ; whether provisions of the Act are applicable to the case at hand by virtue of notification issued during the pendency of the civil suit had become insignificant and was of no consequence. It was for the reason that the appellate Court had already examined all the issues arising in the case in the light of the provisions of the Act and then held that the plaintiff is the owner of the suit house, that the defendant was the defaulter in paying monthly rent and was in arrears and the plaintiff's personal need for residence in the suit house is bona fide etc.- It is a settled law that when the first appellate Court, on appreciation of evidence, records a finding of fact on a particular issue then such finding is usually binding on the High Court while hearing revision against such order. It is only when any finding of fact is found to be wholly perverse or de hors to any provision of law or is recorded contrary to pleadings and evidence on record, interference in such finding may arise in appropriate cases but not otherwise.= the defendants are defaulters in paying monthly rent and that the plaintiff's need for residence in the suit house is bona fide and that the defendant was not able to prove greater hardship if the eviction decree is passed against him, in our view, the decree for eviction, arrears of rent and mesne profit was rightly passed against the defendant in relation to suit house. In the light of foregoing reasons, we are of the view that the High Court committed an error in remanding the case to the appellate Court for deciding these very issues afresh on their merits without there being any reason much less justifiable reason for passing such order. =In view of foregoing discussion, the appeal succeeds and is allowed. Impugned order is set aside and that of the order of the appellate Court restored.The respondents are granted three months’ time to vacate the suit house provided they deposit the entire decreetal amount within one month and give usual undertaking before the Trial Court to vacate the suit house on or before three months and pay damages at the same rate of rent for three months for use and occupation of the suit house. Let the compliance be made within one month. Failure to comply within time would disentitle the respondents to remain in occupation for three months and the appellants would be entitled to execute the decree against the respondents on the expiry of one month from the date of this judgment.

                             Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5674 OF 2007



      Kalidas Chunilal Patel
      (Dead) by L.Rs.                                    Appellant(s)




                             VERSUS


      Savitaben & Ors.                       Respondent(s)


                       J U D G M E N T




     Abhay Manohar Sapre, J.

     1)    This appeal is filed against the final judgment and order  dated
     17.06.2005 of the High Court of Gujarat at Ahmedabad in Civil Revision
     Application No. 110 of  1994  whereby  the  High  Court   allowed  the
     revision application filed by the respondents herein and  quashed  the
     judgment/order dated 12.10.1993 passed by the District Judge,  Bharuch
     in Civil Appeal No. 152 of 1982 and remanded the same to the  District
     Judge, Bharuch.
      2)    In order to appreciate the short  controversy  involved  in  the
      appeal, few facts need mention.
      3)     The  appellants  are  the   plaintiffs-landlord   whereas   the
      respondents are the defendants-tenant.
      4)    The suit house is situated  in  village  Sachan,  Taluka  Wagra,
      District Bharuch. One Bai Zaverben, widow  of  Chhaganbhai  Govindbhai
      Patel was the owner of the suit house.  She had let out the suit house
      to one Ranchhodbhai Govindbhai as her tenant  on  a  monthly  rent  of
      Rs.3/-.  He had also executed rent note in her favour.   Bai  Zaverben
      died in 1977. She had, however, executed  a  will  in  favour  of  one
      Kalidas  Chunnilal  Patel  (the  appellant   herein-since   dead   and
      represented by his legal representatives) bequeathing the  suit  house
      to him.  Kalidas Chunnilal Patel thus became the  sole  owner  of  the
      suit house on the strength of  will  after  her  death.  The  name  of
      Kalidas Chunnilal Patel was accordingly mutated in revenue records  as
      owner of the suit house. Kalidas Chunnilal Patel, by operation of law,
      then became landlord of the suit house
      5)    On 06.12.1978, Kalidas Chunnilal Patel served a legal notice  to
      Ranchhodbhai Govindbhai demanding arrears of rent from  26.04.1976  to
      06.12.1978 alleging that after the death of Bai Zaverben, he  has  not
      paid  any  rent  to  him.   Kalidas  Chunnilal  Patel  also   demanded
      possession of the  suit  house  alleging  therein  that  he  genuinely
      required the suit house for his personal residence. It was also stated
      that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
      (hereinafter referred to as "the Act”) does  not  apply  to  the  suit
      house. Ranchhodbhai Govindbhai, on receipt of the notice,  denied  the
      allegations made therein by sending his reply.
      6)    This led to filing of the civil suit by Kalidas Chunnilal  Patel
      being Regular  Civil  Suit  No.  183  of  1979   against  Ranchhodbhai
      Govindbhai in the Court of  2nd  Joint  Civil  Judge  (Sr.  Division),
      Bharuch at  Bharuch   claiming  a  money  decree  to  recover  Rs.94/-
      towards the arrears of rent for the period 26.04.1976  to  06.12.1978,
      notice charges Rs.13/- and mesne profit at  the  rate  of  Rs.3/-  per
      month from 06.12.1978. The plaintiff  also  claimed  eviction  of  the
      defendant from the suit house on the ground of his personal  need  for
      residence. The defendant denied the plaint averments.
      7)    It may here be mentioned that during the pendency of  the  suit,
      the State Government issued a notification on 03.04.1980 under Section
      2(3) and Section 6(1A) of the Act whereby  the  provisions  of  Bombay
      Rent Control Act were extended and made applicable to the  area  where
      the suit house was situated. In other words, on and after  03.04.1980,
      the rights of the landlord and tenant in relation to  the  suit  house
      were to be governed by the provisions of the Act.
      8)    The Trial Court on the basis of pleadings framed issues.   These
      issues were,
           “1)   Whether the plaintiff proves  that  the  defendant  is  in
           arrears of rent from 20.7.70?


           2)    Whether the plaintiff proves that  he  requires  the  suit
           premises for his bona fide use and occupation?


           3)    Whether the plaintiff proves that he has become the  owner
           of the suit premises?


           4)    Whether the defendant proves that the plaintiff has  filed
           this suit only out of malice because of  their  strained  social
           relations?


           5)    Whether the defendant proves that he has paid up the  rent
           upto 2.9.78 but he has not given any receipts?


           6)    Whether the defendant proves that greater  hardship  would
           be caused to him if the decree for possession is granted?


           7)    Whether the plaintiff is entitled to get the possession?


           8)    What amount, if any, the plaintiff is entitled to get?


           9)    What order and decree?”




      9)     The  parties  adduced  evidence.  Vide  judgment/decree   dated
      18.10.1982, the Trial Court decreed the plaintiff's suit.  It was held
      that the plaintiff is the landlord  of  the  suit  house  whereas  the
      defendant is his tenant, that the defendant is in arrears of rent  for
      the period specified in the plaint, that the provisions of the Act are
      not applicable to the suit house, that the  plaintiff  has  terminated
      the defendant's monthly tenancy by serving proper  quit  notice  under
      Section 106 of the Transfer of Property Act,  that a case is made  out
      by the plaintiff for passing  a  decree  for  possession  against  the
      defendant in relation to the suit house.
      10)   The Trial  Court,  with  these  findings,  passed  money  decree
      towards arrears of rent, notice charges and mesne profits and  further
      passed the decree for possession against the defendant in relation  to
      the suit house.
      11)   The defendant, felt aggrieved, filed first  appeal  being  Civil
      Appeal No. 152 of 1982 before the Court of  District  Judge,  Bharuch.
      Since in the meantime, original plaintiff and defendant  both  expired
      and hence their legal representatives were brought on record to enable
      them to continue the lis.
      12)   In appeal, the appellate Court examined the  question  regarding
      the applicability of the provisions of the  Act  to  the  suit  house.
      Indeed, we find from Para 14 of the appellate  judgment  that  it  was
      conceded by the parties through their lawyer that  the  provisions  of
      the Act are applicable to the suit house. In this view of the  matter,
      the appellate Court proceeded to  examine  the  next  question  as  to
      whether it is necessary to remand the case to the Trial Court once  it
      is held that the provisions of the Act applies to the suit house.  The
      appellate Court, however, came to a conclusion in Paras 16 and 17 that
      since the plaintiff has already pleaded that his case  also  satisfies
      the requirements of relevant provisions of the Act and that  pleadings
      are in conformity  with  the  requirements  of  the  Act,  it  is  not
      necessary to remand the case to the Trial Court for its retrial  under
      the Act nor it is necessary to send this case to the Rent Tribunal  by
      virtue of  Section 28 of the Act, which enables the  Court  to  decide
      the suit.
      13)   The appellate Court, accordingly, proceeded to examine the  case
      on merits with a view to find out as to whether the plaintiff was able
      to make out any case under the Act and,  if  so,  whether  the  decree
      passed by the Trial Court for arrears of rent holding the defendant to
      be the defaulter under the Act and  further  whether  the  decree  for
      eviction passed against the defendant on  the  ground  of  plaintiff’s
      personal need for his residence is legally and  factually  sustainable
      and whether it can be held to have been passed in conformity with  the
      provisions of the Act.
      14)   The appellate Court, on appreciation of evidence, held that  the
      plaintiff was able to make  out  a  case  that  the  defendant  was  a
      defaulter in payment of monthly rent and that he  failed  to  pay  the
      arrears of rent for a period specified in the plaint thereby  incurred
      a penalty of being evicted from the suit house as provided  under  the
      Act. So far as the  issue  regarding  plaintiff’s  personal  need  was
      concerned (Point No.3), the appellate Court held in Para 22  that  the
      counsel for the respondents has conceded that the respondents  do  not
      wish to challenge the finding of the Trial Court on this issue.
      15)   In the light of such concessional statement made, by  which  the
      challenge to the finding of the Trial Court on the issue  of  personal
      necessity was expressly given up by  the  respondents,  the  appellate
      Court was right in upholding the finding of the Trial  Court  on  this
      issue. It is after  recording  these  findings,  the  appellate  Court
      dismissed the appeal and upheld the judgment/decree of the Trial Court
      though on different reasoning of its own.
      16)   The defendants, felt aggrieved, filed civil revision in the High
      Court. By impugned order, the High Court allowed the revision and  set
      aside the judgment/order of the first appellate Court and remanded the
      case to the appellate Court with directions.
      17)   It is apposite  to  quote  the  directions  of  the  High  Court
      contained in the concluding Para of the order:
                 “The Revision Application is  allowed.  The  judgment  and
           order dated 12th October, 1993 passed by  the  learned  District
           Judge, Bharuch in Civil Appeal No. 152/1982 is quashed  and  set
           aside. The Civil Appeal is  remanded  to  the  learned  District
           judge, Bharuch. The learned District Judge, Bharuch shall remand
           the Regular Civil Suit No. 183/1979  to  the  trial  court  with
           appropriate direction either to transfer the suit  to  the  Rent
           Court or to allow amendment of the pleadings and to continue the
           suit as one under the Rent Act. Rule is  made  absolute  to  the
           aforesaid extent. The parties shall bear  their  own  cost.  The
           Registry shall send the writ forthwith.”


      18)   It is against the aforesaid order,  the  plaintiffs  filed  this
      appeal by way of  special leave before this Court.
      19)   Mr. Mayur R. Shah,  learned counsel appeared for the appellants.
      No one appeared for the respondents despite service.
      20)   It may be mentioned that during the  pendency  of  this  appeal,
      respondent No. 2, who was one of the legal representatives of original
      defendant, died. Since his interest was  sufficiently  safeguarded  by
      the other respondents, who are related to him and hence, in our  view,
      it is not necessary to bring his legal representatives on  record  and
      instead his name be deleted from the cause title.  It  be  accordingly
      done.
       21)  Having heard the learned counsel for the appellants (plaintiffs)
      and on perusal of the record of the case, we are inclined to allow the
      appeal and while setting aside the impugned order restore  the   order
      passed by the appellate Court.
      22)   In our considered opinion, the High Court erred in allowing  the
      Revision Petition filed by the defendants-tenant and thereby erred  in
      setting aside the order of the appellate Court.  Similarly,  the  High
      Court erred in remanding the case to the  appellate  Court  by  giving
      directions as to how the  issue  arising  in  the  case  needs  to  be
      decided.
      23)   In our considered opinion, the High Court failed to see that the
      question as to whether provisions of the Act  are  applicable  to  the
      case at hand by virtue of notification issued during the  pendency  of
      the civil suit had become insignificant and was of no consequence.  It
      was for the reason that the appellate Court had already  examined  all
      the issues arising in the case in the light of the provisions  of  the
      Act and then held that the plaintiff is the owner of the  suit  house,
      that the defendant was the defaulter in paying monthly rent and was in
      arrears and the  plaintiff's personal need for residence in  the  suit
      house is bona fide etc.
      24)   In other words, when the appellate Court  had  already  examined
      all questions arising in the case as if the provisions of the Act  are
      applicable to the suit house  and  then  recorded  the  aforementioned
      findings in plaintiff's favour, there was no need for the  High  Court
      to remand the case again to the appellate Court for deciding the  same
      issues. It was, in our opinion, an exercise in futility  and  was  not
      called for.
      25)   Instead, in our view, the High Court should  have  examined  the
      legality of the findings on merits with a  view  to  find  out  as  to
      whether the appellate Court was justified in recording the findings in
      plaintiff’s favour or not.
      26)   It is a settled law that when  the  first  appellate  Court,  on
      appreciation of evidence, records a finding of fact  on  a  particular
      issue then such finding is usually binding on  the  High  Court  while
      hearing revision against such order. It is only when  any  finding  of
      fact is found to be wholly perverse or de hors to any provision of law
      or  is  recorded  contrary  to  pleadings  and  evidence  on   record,
      interference in such finding may arise in appropriate  cases  but  not
      otherwise.
      27)   We have perused the  judgment  of  the  Trial  Court  and  first
      appellate Court and find that no case is made out to interfere in  the
      findings recorded by the first appellate Court.
      28)   In the first place, we find that all the  findings  recorded  by
      the  first  appellate  Court  are  based  on  proper  appreciation  of
      evidence. Secondly, these  findings  are  recorded  in  the  light  of
      requirement of provisions of the Act after reversing  the  finding  of
      the Trial Court on the issue of applicability of the provisions of the
      Act. Thirdly, the respondents are not here to convince us  as  to  why
      the findings of the first appellate Court were not binding on the High
      Court and why they were required to be set aside.  Fourthly,  we  have
      also not been able to notice any kind of infirmity  in  any  of  these
      findings so as to call for any interference in this appeal and lastly,
      in the light of findings, namely, that the defendants  are  defaulters
      in paying monthly rent and that the plaintiff's need for residence  in
      the suit house is bona fide and that the defendant  was  not  able  to
      prove greater hardship if the eviction decree is passed  against  him,
      in our view, the decree for eviction, arrears of rent and mesne profit
      was rightly passed against the defendant in relation  to  suit  house.
      Since these findings were rendered in conformity with the requirements
      of the Act, we find no good ground to set aside these findings.
      29)   In the light of foregoing reasons, we are of the view  that  the
      High Court committed an error in remanding the case to  the  appellate
      Court for deciding these very issues afresh on  their  merits  without
      there being any reason much less justifiable reason for  passing  such
      order.
      30)   Learned counsel for the appellants, however,  argued  the  legal
      issue regarding the applicability of the Act to the suit house  during
      the pendency of the suit. He placed reliance on the decisions of  this
      Court in Moti Ram vs. Suraj Bhan & Ors., (1960) 2  SCR  896  and  Shah
      Bhojraj Kuverji Oil Mills & Ginning Factory vs. Subhash Chandra Yograj
      Sinha, (1962) 2 SCR 159  in support of his submission.  In  our  view,
      it is not necessary to go into this question any  more  much  less  in
      detail in the light of our reasons given above.
      31)   In view of foregoing discussion,  the  appeal  succeeds  and  is
      allowed. Impugned order is set aside and that  of  the  order  of  the
      appellate Court restored.
      32)   The respondents are granted three months’  time  to  vacate  the
      suit house provided they deposit the entire  decreetal  amount  within
      one month and give usual undertaking before the Trial Court to  vacate
      the suit house on or before three months and pay damages at  the  same
      rate of rent for three months for  use  and  occupation  of  the  suit
      house.  Let the compliance be made within one month.
      33)   Failure to comply within time would disentitle  the  respondents
      to remain in occupation for three months and the appellants  would  be
      entitled to execute the decree against the respondents on  the  expiry
      of one month from the date of this judgment.
      34)   No costs.




     .……...................................J.
                                       [ABHAY MANOHAR SAPRE]





                 ………..................................J.
                                              [ASHOK BHUSHAN]
      New Delhi,
      June 29, 2016.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.