Devdatt Narayan Shetti vs Prahladbhai Punjiram Parekh

A.J. Shastri, J

[1] The present group of Civil Revision Applications are filed under Section 29(2) of the Bombay Rent, Hotel and Lodging Housing Rates (Control)

Act, 1947 (hereinafter referred as to the “Actâ€) arising out of common question of law and facts except the number of property and the suit. The

same are requested to be disposed of and dealt with by present common judgment and order by the learned advocates appearing for the respective

parties. Accordingly, the Court has considered the same by treating Civil Revision Application No.212 of 2018 as a lead matter. The conclusion and

the background would govern the other revision applications hence, facts are taken from the aforesaid lead matter.

[2] The case of the petitioner - plaintiff is that he is the owner of property known as Udipi Hotel premises in Paldi in T.P. Scheme No. 3/6 varied in

final Plot No.843 in which the respondent is a monthly tenant in the property bearing M.C.No.30/2011 at a monthly rent of Rs.40/-. The tenancy was

on the basis of calendar month. The property in question previously belonged to one Kantilal Veljibhai Savala and Reupesh Kantilal Savala, which

came to be purchased with tenant’s possession by sale deed, dated 07.06.2000 with a right to recover past arrears of rent from the tenants. It is

further the case of the petitioner that respondent was in arrears of rent right from 01.08.1988. The attornment notice was given by the petitioner after

the execution of sale deed and the respondent was asked to pay and clear the arrears of rent having not complied with the present petitioner, and

therefore, H.R.P. Suit No.2310 of 2004 was filed by the petitioner in the Small Causes Court, Ahmedabad for recovery of possession of rent. The said

suit proceeded and the same came to be dismissed on 31.01.2008. It is further the case of the petitioner that in the meantime, present respondent

tenant had also filed H.R.P. Suit No.9191 of 2001 against the previous landlord Kantilal Veljibhai for temporary as well as permanent injunction, but

the said Kantilal Veljibhai did not appear in the suit, therefore, temporary injunction to the respondent tenant was granted which came to be confirmed.

It is further the case of the petitioner that claim of the tenant is that in the said previous proceedings, the rent has been paid, but still however, the suit

came to be dismissed vide judgment and order dated 31.01.2008. Feeling aggrieved and dissatisfied with the said judgment and decree, the petitioner

preferred an appeal under Section 29 of the Act, which was numbered as Civil Appeal No.153 of 2008 and the Appellate Bench of Small Causes

Court after hearing the parties was pleased to dismiss the appeal vide judgment and order dated 12.10.2017 and these judgments and orders are made

the subject matter of present revision application under Section 29(2) of the Act.

[3] The Court originally had issued notice to the respondent on 05.04.2018, and after passage of time, these revision applications have come up for

consideration before this Court on 08.07.2019.

[4] The other sets of Civil Revision Applications are same in which the petitioner is common, but defendants are different and property numbers are

also different. But, in substance the stand of the petitioner, on the facts as well as law, is stated to be same without much detailing out the facts of

those revision applications. The Court has examined the stand of the petitioner, which is common in all revision applications.

[5] Learned advocate Mr.P.B.Khambholja appearing on behalf of the petitioner has vehemently contended that both the courts below have

concurrently erred in passing the impugned orders, both the courts below have not appreciated the fact that tenancy was terminated by atornment

notice dated 25.03.2004, both the courts below have not properly construed the provisions contained under Sections 12(3)(a) and 12(3)(b) of the Act

and difference between the said provisions have also not been properly construed. The ingredients of Section 12(3) (a) of the act has also not been

properly applied in the background of facts, which are on record, and therefore, the erroneous approach shown by the Court deserves to be rectified

by passing suitable order in the present revision applications. It has further been contended that if the payment is not made within a period of one

month, the construction of protection has to be viewed from the said circumstances. The Courts below have not even clarified as to which amount or

how much amount is deposited in the early suit whether it is outstanding amount of the required period or not, is also not appreciated by the courts

below. Learned advocate Mr. Khambholja has further submitted that tenants are under an obligation to pay the errors of rent, the moment notice is

received by them within a period as contemplated under Section 12(3)(a) of the Act. Here is the case, in which, undisputedly, no such amount is paid

which entitles petitioner to obtain a decree of eviction. Learned advocate Mr. Khambholja with a view to substantiate these contentions has placed

reliance upon two decisions delivered by the Apex Court, which are in the case of Bhaiya Punjalal Bhagwanddin versus Dave Bhagwatprasad

Prabhuprasad and others reported in AIR 1963 SC 120 and in the case of Shri Vidya Prachar Trust versus Pt. Basant Ram reported in AIR 1969 SC

1273. By placing reliance upon the aforesaid decisions, learned advocate Mr. Khambholja appearing for the petitioner has requested the Court to allow

the revision applications by granting reliefs as prayed for. No other submissions have been made.

[6] To contradict the stand taken by learned advocate Mr. Khambholja appearing for the petitioner, learned advocate Mr.Manharkumar M.Parmar

appearing for the respondent - tenant has vehemently contended that suit is covered under the relevant provisions, has rightly been construed by both

the courts below and the municipal tax is to be paid by the tenant and the construction of Section 12 of the Act is justifiably concluded. It has further

been submitted that attornment notice which has been given, prior thereto, the rent has already been deposited in the suit which has been filed by

erstwhile landlord and there is no arrears of rent which would entitle any decree of eviction. Learned advocate Mr. Parmar appearing for the

respondent has further submitted that this being a concurrent decision and the finding of facts, may not be dislodged or substituted in exercise of

revisional jurisdiction. It has further been contended that law does not permit occupier of the premises, a double payment from the landlord and here is

the case, in which, undisputedly, so called arrears of rent is already deposited and it is the petitioner who has shown unwillingness to withdraw the said

amount deposited for the reasons best known to him, and therefore, the tenant cannot be found to be faulted on any of the ground, as contended. It

has further been submitted that the judgment which has been tried to be relied upon, are altogether in a different set of circumstances hence, are not

possible to be applied in a mechanical manner. Hence, no case is made out by the petitioner for seeking decree of eviction.

[7] It is not in dispute that prior to attornment notice, the suit was very much pending in the Court between the tenant and the erstwhile owner /

landlord in which the regular deposit was already made of the alleged arrears of rent, and therefore, at the time when attornment notice was given,

there was no issue about arrears of rent, therefore, also Section 12(2) of the Act cannot be made applicable. However, be that as it may, Act, the

concurrent finding of fact may not be disturbed in the interest of justice.

[8] Having heard learned advocates appearing for the respective parties and having gone through material on record, ex faice, it appears to this Court

that undisputedly there was a suit pending prior to attornment notice and in that proceeding, the respondent - tenants have deposited the rent which

factum is concurrently held by both the courts and it has further been found by both the courts that it is the plaintiff of the present suit i.e. petitioner,

who has chosen not to withdraw the said amount which has been deposited. As a result of this, at the time when attornment notice was given, it was

found by both the courts below that there was no issue related to arrears of rent. The detailed examination of evidence is undertaken by the courts

below and on the basis of admitted assertion of the petitioner - plaintiff, a conclusion is arrived at that no ground is made out to have eviction. The

detailed conclusion based upon appreciation of material on record which is contained in paragraph No.8 deserves to be reproduced hereinafter:

“8. Alter hearing both the party learned advocate of the party and gone through the pleadings of plaintiff and defendant alongwith document as well

as oral evidence before me , l find no substance in the argument of learned advocate of the plaintiff regarding defendant tenant become tenant in

arrears for more than six month, looking to the fact of above case because, here plaintiff himself admitted in his plaint that above defendant tenant in

the reply declared that he is deposited rent in the Small Cause Court, Ahmedabad and allowed him to withdraw from the Small Cause Court,

Ahmedabad and also he give one application in the old H.R.P.SU1T for joining above defendant as a new landlord but which is objected above

plaintiff, so, court rejected. So, looking to the above above conduct plaintiff also it become clear that plaintiff deliberately not interested to withdraw

the rent amount from the Small Cause Court, Ahmedabad even though defendant shown his willingness to withdraw the above deposited rent amount

from the court by the plaintiff so, in that case also to prove above case, u/s.12(3)(a) of Bombay Rent Act, one of the main ingredients must be prove

by the plaintiff i.e. defendant is not ready and willingness to pay the due rent amount and is become tenant in arrears for more than six month as

alleged by the plaintiff but, here looking to the admission of plaintiff and reply of the defendant which is undisputed that above defendant already

deposited rent in the former H.R.P.SUlT No. 919/2001 which is filed by defendant tenant against old landlord and also allowed above new landlord to

withdraw to above rent amount. So, it's become crystal clear that above defendant shown his ready and willingness to pay rent to the present plaintiff,

not only that it is also not prove above defendant tenant become tenant in arrears tor more than six month because he is already deposited rent in the

Small Cause Court, Ahmedabad when notice issue by the plaintiff so, in that case plaintiff is not prove all the ingredients which is required u/s 12(3)(a)

of the Bombay Rent Act in that case looking to the tact of this case court can not presume that defendant is negligent on the part of paying rent to the

present plaintiff so, in that case the ratio of citations of Hon'ble Apex Court on which plaintiff relies also not support the case of the plaintiff as per

fact and evidence of above case because, the fact of above cited case different from the tact of this case and also I do not agree with the argument

advanced by the plaintiff that as per the duty of the tenant which is mentioned in the Transfer of Property Act u/s. 108. Defendant tenant is not

perform as per his duty because, without cost of repetition again, it's become very clear that defendant already allowed above plaintiff to withdraw

due rent amount from Small Cause Court, Ahmedabad and shown his duty to pay the rent to the present plaintiss. So, following citation which are

referred plaintiff are not applicable to this case which are as under-

III I.C. 530(1928) ALLIBHOY ADAMJl SHElK JIWANJl v/s. GORDHANDAS JEENABHOY

A.I.R. 1940 Rangeo-84 Head Note In matter of MAUNGPYU & Ors.

A.I.R. 1941 Bom.286 Head Note(B) In the matter of HAJI NARSIRUDDIN KARIM MAHOMED AND 0RS. V/S. PATEL HAJl UMERJI

ADDAM & CO.

A.I.R. 1969 S.C. 1273 In the matter of SHRl VlDYA PRACHAR TRUST V/S PT. BASANI RAM

1966 Gujarat Law Reporter 1061 In the matter of MRS. MANORAMA.S. MASUREKAR V/S MRS. DHANLAXMI G.SHAH & ORS.

A.I.R. 1988 S.C. 181 / In the matter of JAYWANT S.KULKARNI & ORS. V/S MINOCHAR DOSABHAI SHROFF & ORS.

1977  G.L.R.  (VOL.18)  In  the  matter  of CHAMPAKLAL DAHYABHAI NATALL V/S. SARASWATIBEN W/o

SHAMBHUBHAI ATMARAM MEHTA

JT 2006(10) 566 In the matter of M/S. HOTEL KINGS & ORS. V/S. SARA FARHAN LUKMANI & ORS

Hence on aforesaid reason and discussion my findings tor the issue no.1 in the negative, for issue no.2 in the affirmative, tor the issue no.3 negative,

for the issue no.4 as per order, for the issue no.5 in the negative, for the issue no.6 in the negative i.e. plaintiff is not entitled to get possession of the

suit premises u/s. 12(3)(a) of the Bombay Rent Act. So, as per aforesaid findings in final conclusion for the issue no.7 as per final order, I pass

following orderâ€​

[9] This detailed conclusion, which has been arrived at by the trial court, is re-examined by the Appellate Court independently and the Appellate Court

also on the basis of material on record has categorically found on true interpretation of Section 12 of the Act and Section 108(1) of the T.P. Act and

has found that defendant - tenants are not in arrears of rent at all. Even, the earlier application to join the present plaintiff in the former suit was also

not entertained, as the plaintiff has deliberately not joined himself in the former suit, and therefore, after appreciating the conduct and the relevant

provisions contained under the Act, even the Appellate Court has also found that there is no question of arrears of rent. On the contrary, a specific

willingness of defendant is observed for allowing the plaintiff to withdraw the amount which has been so deposited. That being so, the Court found no

exception to deviate from the conclusion arrived at by the trial Court. The detailed assertions which are contained in paragraphs 10, 11, 12 of the

Appellate Court are sufficient enough to convey that there is no perversity nor any irregularity of material in nature nor any non-application of mind is

reflected by the Courts below in passing the impugned orders. Hence, the same are reproduced hereinafter:

“9. The learned advocate for the appellant-plaintiff-landlord has vehemently argued that the defendant has deliberately not paid due rent amount to

the plaintiff. The defendant is liable to pay due rent amount under Section 12 of the Rent Act and as per Section 108(1) of the T.P. Act Although he

has not paid and the defendant-tenant cannot or suggets, the landlord to withdraw any amount from the Court. So such type of conduct caused against

the tenant regarding he has ready and willing to pay rent. Therefore, he has paid for eviction decree on the ground of arrears of rent.

The learned advocate for the respondent has resisted the arguments advanced by the learned advocate for the appellant and stated that the

defendant has deposited the due rent amount in the Court in HRP suit which is filed against the old owner. Thenafter the defendant had given

application to join the present plaintiff in the farmer suit but the present plaintiff had taken strong objection and therefore, the Court has rejected the

said application. It is shown that the present plaintiff has deliberately not joined in the former suit. Further he has stated that defendant has given

willingness to withdraw the due rent amount deposited by him in the Court although present plaintiff has not withdraw it. Therefore, it cannot be said

that the defendant is tenant in arrears of rent. Moreover, the defendant has deposited due rent amount in the Court and also informed the present

plaintiff in reply notice. Therefore, the plaintiff is ready and willing to pay due rent amount so plaintiff is protected under Rent Act. Therefore, he has

prayed to dismissed this appeal.

Looking to the submissions of the parties and papers on record, the plaintiff has purchased the suit premises on date 07.06.2002 by way of sale

deed and it is informed this fact by attornment notice dated 14.10. 2002. In sale deed the old landlord has given right to him to recover the due rent

amount from the tenant. Thenafter the plaintiff has given legal notice for arrears of rent vide exh.30 on dated 25.03.2004 and ask due rent amount

from dated 01.08.1988 to 29.02.2004 total Rs.7480/ -. 0n the other hand the defendant has given reply of the demand notice on dated 23.04.2004 vide

exh.45 and stated that he has deposited due rent amount in former suit filed against the old owner and he has also given willingness to withdraw the

said rent mount which is deposited in the Court to the plaintiff. Thenafter, the plaintiff has filed the suit and stated that the defendant has not paid due

rent amount and therefore, the defendant is tenant in arrears of rent. Looking to this fact, it is transpires that the defendant has deposited entire due

rent amount in the former HRP Suit No.919/2001 which is filed by the defendant against the old owner in 2001 and the present plaintiff has given

attornment notice in 2002. Thenafter the the defendant has tried to join the present plaintiff in the former suit but the court has rejected the said

application. It is shown that the present plaintiff has known this fact regarding former shit. Moreover, the defendant has given willingness to withdraw

the due rent amount which is deposited in the former suit to the present plaintiff, in his reply notice as well as in the written statement.

Moreover, the defendant has submitted pursis vide exh.52 and declared that he has deposited due rent amount in HRP Suit No.919/2001 from

2003 and thenafter he has deposited due rent amount in present suit. Looking to the averments of this pursis, it is transpires that the defendant has

deposited due rent amount in the Court. Moreover, as per the above discussion, it is transpires that this defendant has given willingness to withdraw

the said amount therefore, we are of the opinion that, it cannot be said that the defendant is tenant in arrears of rent for more than six months at the

time of demand notice. Therefore, the notice cannot said illegal and valid.

Thus, the plaintiff is not tenant in arrears of rent for more than six months at the time of the demand notice. Therefore, the plaintiff is also not

entitled to get vacant possession of the suit premises on the ground of arrears of rent. Moreover, the plaintiff has deposited due rent amount in the

Court and given willingness to withdraw and informed this fact to the present plaintiff. Thus present plaintiff can withdraw the said amount in the

Court. But he cannot to do so, therefore, it cannot be said that the defendant is not ready and willing to pay the rent amount.â€​

[10] Now in the light of aforesaid two concurrent findings of the fact to sit as a second forum in pending of suit is impermissible in view of a well

sounded proposition of law laid down in a decision in the case of Rukmini Amma Saradamma versus Kallyani Sulochana and others reported in AIR

1993 SC 1616, paragraph 21 is sufficient enough to indicate. Hence, reproduced hereinafter:

“21. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to

act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High

Court was not right in re-appreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Ext. C1 and C2

mahazar). In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ""propriety"" it

cannot mean that there could be a re-appreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a re-

appreciation of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are

unable to agree with the reasoning of the High Court with reference to the exercise of revisional jurisdiction. “

[11] Additionally, the Court is also of the opinion that unless and until there is any irregularity or perversity reflecting in exercising jurisdiction vested in

law, the High Court normally should not sit over as an appellate authority. Resultantly, such concurrent finding of fact not being erroneous, this Court

is not inclined to interfere with. There appears to be a true construction of relevant provisions of Rent Act, this Court is not in a position to substitute

the finding. Accordingly, the revision application is not sounding any confidence for granting any relief.

[12] In the wake of aforesaid situation, the proposition of law, which has been narrated by the learned advocate by placing reliance upon the decisions,

which are delivered, have no application for the simple reason that background of fact here is quite different from what has been prevailing on the

cases which have been cited. The decision in the case of Bhaiya Punjalal Bhagwanddin (supra) in which a tenant had paid rent after institution of the

suit and in that situation, the Hon'ble Supreme Court has stated that there is no discretion left with the Court, but to pass an order of eviction under

Section 12 Sub Section 2 of the Act. But here is the case on hand, in which, undisputedly, the amount of rent for this very premises in question has

been deposited in the earlier suit, the tenant has shown willingness and given consent to allow the present plaintiff to withdraw such amount of rent

which has been deposited. But, here is the plaintiff who has chosen deliberately not to withdraw the said amount just to create an artificial

circumstance of arrears of rent after attornment notice and that has found not in favour of the petitioner, and as such, this Court is of the opinion that

no error is committed by the courts below and the ratio laid down by the Apex Court in a situation like this is not possible to be applied as a straitjacket

formula.

[13] The same is the case with respect to another decision which is in the case of Shri Vidya Prachar Trust (supra) wherein also non-payment of rent

was due, but the background of fact is not like the present controversy, and essentially, a close reading of the said judgment would make it clear that in

a different statute effect of Section 31 of the Relief of Indebtedness Act is dealt with which in considered opinion of this Court is not possible to be

applied here. As a result of this, no case is made out in the present Civil Revision Application to call for any interference.

[14] Looking to the scope contained under Section 29(2) of the Rent Act, the record indicates that there is neither any perversity nor any irregularity

material enough in exercising jurisdiction, so as to exercise revisional jurisdiction. As a result of this, revision application being devoid of merit, stands

dismissed with no order as to costs. Notice is discharged.

[15] Since other sets of revision applications which are heard along with this, are raising similar issue and common submissions were made, those Civil

Revision Applications are also dismissed hereby by, by present common judgment and order. Notice is discharged.