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Tuesday, August 16, 2016

Mere denying the title due to disputes between landlord and third party is not denial of title with bad motive = denial of title by the tenant, the District Court has found that this plea was necessitated because of the civil suit pending between the appellant and one Vishwanath Tandale, filed by the appellant himself before the Civil Court bearing RCS No.1044 of 1983. That suit was pending at the relevant time. The fact that the respondent-tenant rushed to the Rent Controller immediately after receipt of notice from the appellant, is indicative of a bonafide plea taken by the respondent-tenant regarding dispute of ownership of the suit shop; and a plea legitimately available to the respondent-tenant. ;the suit shop for his personal and bonafide need. - lack of pleading , can not be raised at Apex court stage = Firstly, because the original eviction application was limited to the ground of arrears of rent and willful default. Secondly, the ground of personal and bonafide requirement is an independent ground on which the appellant must pursue his remedy before the Rent Controller in the first instance and also succeed in substantiating the relevant material facts in that behalf.; Increase of rent by Tenant is accepted taking into consideration of lack of bonafide plea of necessity = While parting, we may take notice of the stand taken by the respondent-tenant that the appellant is not genuinely interested in using the premises for his personal use; but more interested in getting higher rent from the new tenant. The respondent-tenant, therefore, volunteers through counsel that considering the fact that the suit shop is commercial premises and in his occupation for quite some time, he would be willing to pay some additional amount to the landlord towards monthly rent of the suit shop. As per the agreement, the rate of rent is Rs.400/- per month, which, the respondent is now willing to increase up to Rs.10,000/- per month. We place this offer given by the respondent on record and would dispose off the appeal on that basis. Accordingly, even though we dismiss the appeal, we direct the respondents to pay a monthly rent in respect of the suit shop to the landlord at the rate of Rs.10,000/- per month w.e.f. 1st January, 2016. The additional rent amount for the period between 1st January, 2016 till 31st July 2016 be paid to the landlord within one month from the date of this order; and the respondents shall then continue to pay future rent at the rate of Rs.10,000/- per month before the fifth day of every English calendar month. Appeal is disposed of in the above terms.



                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                          CIVIL APPEAL NO.2606/2013

Baburao s/o Narayanrao Terkar                         ….….Appellant

                                   Versus

Pokhardas s/o Bhanumal Khatnani                      ....Respondents
died through L.Rs. and others

                             J U D G M E N T

A.M. KHANWILKAR, J.


      The application for early hearing is allowed.


2.    Appeal is taken up for hearing forthwith, by consent.


3.    This appeal challenges the judgment of the High  Court  of  Judicature
at Bombay, Bench at Aurangabad, in Civil Revision No.59 of  2007  dated  6th
September,  2011.  The  High  Court  dismissed  the   revision   application
preferred by the  appellant  and  thereby  confirmed  the  decision  of  the
District  Court  dismissing  the  eviction  application  preferred  by   the
appellant.


4.    Briefly stated, the appellant, claiming to be landlord in  respect  of
suit premises being shop admeasuring east-west 12ft. and  south-north  16ft.
situated at  Municipal  house  No.23/124/A,  corresponding  to  City  Survey
No.9572 in Cloth Lane, Latur, instituted  an  eviction  application  against
the respondent-tenant on the ground of arrears of rent  and  default  within
the meaning of Section 15 of  the  Hyderabad  Houses  (Rent,  Eviction,  and
Lease) Control Act, 1954.  It  was  the  case  of  the  appellant  that  the
respondent-tenant had failed and neglected  to  pay  rent  between  October,
1987 till March, 1988.  In fact, the appellant had issued a  notice  to  the
respondent-tenant on 20th January, 1988 calling upon  him  to  pay  rent  in
respect of the suit premises. That notice was  replied  by  the  respondent-
tenant on 22nd February, 1988, raising a dispute of ownership  of  the  suit
premises. The appellant then issued demand notice to  the  respondent-tenant
on 17th March, 1988 calling upon him to pay the arrears of rent.   No  reply
was  received  from  the  respondent-tenant.  As  a  result,   an   eviction
application was filed by the appellant.  The Rent Controller held  that  the
respondent-tenant had committed  default  and  was  liable  to  be  evicted.
Accordingly, an eviction order was passed by the  Rent  Controller  on  11th
April, 2005.  Against  that  decision,  the  respondent-tenant  preferred  a
statutory appeal before the District Judge at Latur being Rent  Appeal  No.5
of 2005. The District Court reversed the finding of  fact  recorded  by  the
Rent Controller. The Appellate Court found that the  respondent-tenant  upon
receipt of  notice  from  the  appellant  immediately  approached  the  Rent
Controller and deposited the amount towards rent as prescribed by  the  Rent
Controller. Further, the  appellant  admitted  in  his  evidence  of  having
withdrawn the amount  deposited  in  Court  by  the  respondent-tenant  till
Diwali 2003. On the factum of willful default by the respondent-tenant,  the
Appellate Court reversed the finding of the Rent Controller. As regards  the
factum of denial of title by  the  respondent-tenant,  the  Appellate  Court
held that the circumstances in which that plea was taken by the  respondent-
tenant was bonafide - considering  the  fact  that  the  appellant  landlord
himself had admitted that the dispute regarding ownership of suit  shop  was
the subject matter of the RCS No.1033 of 1983 filed by him before the  Civil
Court. Besides the  appellant,  one  Vishwanath  Tandale  also  claimed  his
ownership over the suit shop.  He had filed an affidavit in the  proceedings
before the Rent  Controller  to  which  the  appellant  was  a  party.   The
District Court, accordingly, allowed the appeal preferred by the respondent-
tenant and reversed the order passed by the Rent  Controller.  Consequently,
the eviction application filed by the appellant was dismissed.

5.    Against this decision, the appellant preferred a revision  application
before the High  Court.  The  High  Court  after  considering  the  relevant
material on record held that the finding of fact recorded  by  the  District
Court was flawless on both counts, namely, the factum of tenant not being  a
willful defaulter and also on the issue of justness of his plea to  question
the ownership in respect of the suit shop.   The  High  Court,  accordingly,
affirmed the view taken by the District Court  and  dismissed  the  revision
application. Against this decision, present appeal has  been  filed  by  the
landlord.


6.    According to the appellant, in  the  fact  situation  of  the  present
case, the decree of  eviction  passed  by  the  Rent  Controller  should  be
restored.  Inasmuch as, admittedly, the tenant failed to give reply  to  the
demand notice served on him nor offered  the  outstanding  rent  within  the
statutory period.  Thus, Section 15 (2) (i)  was  attracted.   Further,  the
tenant failed to regularly pay the amount towards rent during  the  pendency
of eviction proceedings. As a matter of fact, contends the counsel  for  the
appellant, the tenant having denied the  title  of  the  appellant  was  not
entitled  to  occupy  the  suit  shop.  Further,   the   original   eviction
application was filed by the appellant as back as in the year  1988  and  by
passage of time the appellant has already become 84 years  of  age.  He  has
three sons who are yet to settle down. It is contended  that  the  appellant
requires the suit shop for his personal and bonafide need for  which  reason
also order of eviction passed by the Rent  Controller  should  be  restored.
The  respondent-tenant,  on  the  other  hand,  contends  that  the   latter
contention raised by the appellant cannot be taken note of.   In  that,  the
present appeal arises  from  the  eviction  proceedings  instituted  by  the
appellant limited to the ground of  arrears  of  rent  and  willful  default
committed by the tenant. The ground on which  eviction  of  the  respondent-
tenant was prayed has been thoroughly examined by  the  District  Court  and
the finding of fact recorded by the District Court  has  found  favour  with
the High Court, which needs no  interference  in  the  present  appeal.  The
learned counsel for the respondent submitted that the plea of  personal  and
bonafide requirement is untenable.  As per her  instructions,  two  sons  of
the appellant have since expired.  The third son is gainfully  employed  and
doing  business  in  another  commercial  premises  in  possession  of   the
appellant. Moreover, the  appellant  has  sufficient  accommodation  in  his
possession. It is submitted that the  appeal  is  devoid  of  merit  and  be
dismissed.


7.    Having considered the rival submissions, we are in agreement with  the
view taken by the High Court that the evidence on record  leaves  no  manner
of doubt that after receipt of notice from the  appellant,  the  respondent-
tenant immediately rushed to the Rent  Controller  and  took  permission  to
deposit the amount towards rent of the suit shop. Further, in terms  of  the
liberty given by the Rent Controller  the  respondent-tenant  deposited  the
amount towards rent of the  suit  shop  before  the  Rent  Controller.  That
option was resorted to by the respondent-tenant because of dispute  relating
to ownership of the suit shop. The High Court justly adverted to the  dictum
in the case of Kannan  vs.  Tamil  Tahlir  Kalvi  Kazhagam[1]  -  where,  in
similar situation,  the  tenant  deposited  the  rent  in  Court  which  was
considered as a valid deposit. The fact  remains  that  the  amount  towards
arrears of rent was deposited by the respondent-tenant in the Court of  Rent
Controller on 15th April, 1988 and 25th April, 1988  before  institution  of
the eviction application; and intimation in that behalf  was  given  to  the
landlord.  The respondent-tenant continued to periodically deposit the  rent
amount in Court thereafter.  Further, the  appellant  in  his  evidence  has
admitted of having withdrawn the rent amount till Diwali 2003. This  finding
of fact recorded by the District Court  and  affirmed  by  the  High  Court,
being concurrent finding of fact,  need  no  interference.  As  a  necessary
corollary, it must follow that the respondent-tenant  was  not  a  defaulter
muchless willful defaulter.  Thus, the ground of default on  which  eviction
of the respondent-tenant was prayed is untenable.


8.    Even the other ground, about  denial  of  title  by  the  tenant,  the
District Court has found that this plea  was  necessitated  because  of  the
civil suit pending between the appellant and one Vishwanath  Tandale,  filed
by the appellant himself before the  Civil  Court  bearing  RCS  No.1044  of
1983. That suit was  pending  at  the  relevant  time.  The  fact  that  the
respondent-tenant rushed to the Rent Controller  immediately  after  receipt
of notice from the appellant, is indicative of a bonafide plea taken by  the
respondent-tenant regarding dispute of ownership of the  suit  shop;  and  a
plea legitimately available to the respondent-tenant. This  finding  of  the
District Court found favour with the High Court. Even  in  respect  of  this
finding no interference is called for, being flawless.



9.    That leaves us with the contention of the appellant,  raised  for  the
first time, that the appellant requires the suit shop for his  personal  and
bonafide need.  The factual position stated by the appellant in  support  of
this plea has been  stoutly  countered  by  the  respondent-tenant.  It  is,
however, not necessary for us to burden this judgment with the  said  issue.
Firstly, because the  original  eviction  application  was  limited  to  the
ground of arrears of rent and  willful  default.  Secondly,  the  ground  of
personal and bonafide requirement is an  independent  ground  on  which  the
appellant must pursue his remedy before the Rent  Controller  in  the  first
instance and also succeed in substantiating the relevant material  facts  in
that behalf.


10.   While  parting,  we  may  take  notice  of  the  stand  taken  by  the
respondent-tenant that the appellant is not genuinely  interested  in  using
the premises for his personal use; but more  interested  in  getting  higher
rent from the  new  tenant.  The  respondent-tenant,  therefore,  volunteers
through counsel that considering the fact that the suit shop  is  commercial
premises and in his occupation for quite some time, he would be  willing  to
pay some additional amount to the landlord towards monthly rent of the  suit
shop. As per the agreement, the rate of rent is Rs.400/- per  month,  which,
the respondent is now willing to increase up to Rs.10,000/-  per  month.  We
place this offer given by the respondent on record  and  would  dispose  off
the appeal on that basis.


11.   Accordingly,  even  though  we  dismiss  the  appeal,  we  direct  the
respondents to pay a monthly rent  in  respect  of  the  suit  shop  to  the
landlord at the rate of Rs.10,000/- per month w.e.f. 1st January, 2016.  The
additional rent amount for the period between 1st January,  2016  till  31st
July 2016 be paid to the landlord within one month from  the  date  of  this
order; and the respondents shall then continue to pay  future  rent  at  the
rate of Rs.10,000/-  per  month  before  the  fifth  day  of  every  English
calendar month. Appeal is disposed of in the above terms.  No  order  as  to
costs.

                                                             .………………………….CJI
                                                                (T.S.Thakur)

                                                             ..……………………………J.
                                                           (A.M. Khanwilkar)

                                                             ……………………………..J.
                                                      (Dr. D.Y. Chandrachud)
New Delhi,
August 16, 2016
-----------------------
[1]

      [2] (1998) 5 SCC 21


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