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
