Gowardhandas Vishnudas Gandhi vs Shri Mohammed Hanif Hajigulam Atar and Since Deceased by his Heirs

A.M. Khanwilkar, J.—This writ petition under Article 227 of Constitution of India is directed against the judgment and order passed by the Additional District Judge, Satara dated 6th October, 1986 in Regular Civil Appeal No. 76 of 1984.

The Petitioner is the landlord in respect of the property bearing House No. 266, Bhavani Peth, Satara city. The Respondents are heirs of original tenant/original Respondent. The Respondents are monthly tenants of the business premises situated on the first floor of the said property at monthly rent of Rs. 18/- plus education cess. According to the Petitioner the Respondents failed and neglected to pay the monthly rent from 31.12.1975 onwards continuously for more than 6 months. Consequently, the petitioner issued suit notice to the original tenant dated 27.9.1978 thereby terminating the tenancy of the Respondents by end of October 1978. In spite of the said notice the tenant did not offer the demanded rent nor raised any dispute regarding the standard rent application within one month but denied that he was in arrears. The tenant on the other hand claimed that he had deposited a sum of Rs. 5.000/- with the Petitioner on 19th February, 1974, pursuant to the agreement between them that the said amount would be adjusted towards the monthly rent. Since the tenant refused to vacate the premises, the Petitioner eventually filed Civil Suit No. 532 of 1978 before the 2nd Joint Civil Judge, J.D., Satara for recovery of arrears of rent and possession of the suit property against the tenant on the ground of default and personal bona fide requirement. The said suit was resisted by the tenant. The parties went to trial and adduced evidence - both oral and documentary in support of their respective claims. The Trial Court after considering the material on record was pleased to dismiss the suit preferred by the Petitioner on both the counts.

Being dissatisfied the Petitioner preferred appeal being Regular Civil Appeal No. 76 of 1984 before the Additional District Judge, Satara. Even the Additional District Judge, Satara confirmed the finding of facts recorded by the Trial Court and was pleased to dismiss the appeal preferred by the Petitioner.

It is against the aforesaid concurrent findings of facts, the petitioner has filed the present writ petition under Article 227 of the Constitution of India. No doubt, it is well settled that the High Court should be slow in exercising writ jurisdiction under Article 227 against the concurrent findings of fact recorded by the Courts below. However, for the reasons more elaborately recorded in the latter part of this judgment, I think, this is one case, where interference with the orders passed by the Lower Courts is called for to remove the manifest injustice which has occasioned.

In so far as the ground of bona fide requirement is concerned, on examining the reasons recorded by the two Courts below for refusing decree on the said ground, the same do not appear to be manifestly wrong or perverse. The Trial Court has held that, the Petitioner has failed to prove the bona fide and personal requirement, by taking into consideration the fact that the plaintiff had not stepped into the witness box to prove his personal requirement; that there was evidence that plaintiff was gainfully engaged at Pune and living with his family members at Pune and had no genuine intention to shift at Satara: that there is no threat of eviction in respect of the premises which af e personally occupied by him; that another tenant Mundrawale had vacated premises in his occupation but instead of occupying the same the plaintiff allowed it to be let out to one Mahadik tailor recently. For the said reasons the Trial Court concluded that no case of bona fide requirement was made out. The Appellate Court in para 12 of the judgment has affirmed the said conclusion reached by the Trial Court.

The learned Counsel for the Petitioner argued that it was enough for the Petitioner to state that suit premises were required by him, whereas the Courts below have equated the test of bona fide need and/or requirement with dire absolute or compelling need of the Petitioner. He therefore criticized the finding recorded by the two Courts below and relied upon decision of the Apex Court in Raghunath G. Panhale (Dead) By Lrs. Vs. M/s. Chaganlal Sundarji and Co., .

Having considered the said argument, I am of the view that no doubt the Apex Court has taken the view that bona fide need or requirement cannot be equated with dire or absolute or compelling need However, from the circumstances which have come on record, it is more than established that the Petitioner is staying at Pune along with his family and engaged in the business as Chartered Accountant and has no reason as to why he would prefer to shift at Satara. This by itself may not be a sound circumstance, however, the Trial Court has rightly relied on the circumstance that the Petitioner could have occupied the premises of Mundrawale, when he had vacated the premises in his occupation, but the petitioner allowed it to be let out to one Mahadik tailor very recently. In my view this circumstance was strong enough for the Courts below to negative the plea of bona fide requirement of the Petitioner particularly because the Petitioner has neither himself nor through his Attorney convincingly explained as to the compelling circumstances for letting out the said premises which had become available to him instead of availing the same. Moreover, there is no explanation forthcoming as to what action the Petitioner has taken against his erstwhile tenant Mundrawale or the newly inducted tenant Mahadik for having entered into transaction behind his back and keeping him in the dark. In my view, since the two Courts below have recorded a finding of fact, after having taken into account all the circumstances - which cannot be said to be irrelevant or extraneous, or merely because another view is possible, I am not inclined to interfere with the said finding of fact in exercise of writ jurisdiction. Accordingly, the ground of bona fide need and requirement pressed into service by the Petitioner should fail and is hereby rejected.

Now coming to the ground of arrears of rent, although both the Courts have concurrently found that the Petitioner has failed to prove his case that the amount deposited by the tenant has been refunded by him, however, they have misdirected themselves in recording a finding that if the said amount is adjusted towards the rent which was payable no cause of action can be said have arisen for decreeing the suit u/s 12(3)(a) of the Act. This approach clearly overlooks the well settled legal position. The learned Counsel for the Petitioner has relied on the decisions of the Apex Court in Maganlal Chhotabhai Desai Vs. Chandrakant Motilal, ; Jamnadas Harkchand v. Narauanalal Bansi Lal, AIR 1970 SC 1221 and the decision of the Division Bench of this Court in Sohrab N. Tavaria Vs. Jafferali G. Padamsee, -to contend that recovery of any over paid rent shall have to be done within 6 months from the date of payment as mandated u/s 20 of the Bombay Rent Act. He submits that if the amount which is overpaid is incapable of recovery because of the bar of limitation it cannot be permitted to be deducted or adjusted towards the arrears of rent. He submits that right of recovery by deductions is barred, at the same time as a right of recovery of suit, and if the tenant seeks recovery of the over paid amount, he must bring the suit or make the deduction within 6 months from the date of deposits. Applying this principle the learned Counsel for the Petitioner contends that undisputedly the deposit was made by the tenant on 19.12.1974, therefore, as per Section 20 of the Rent Act, the tenant was entitled for recovery or adjustment of the over paid rent within 6 months therefrom. In the present case the tenant was seeking adjustment of the rent with effect from 1.1.1976, which was much after 6 months from the date of deposit made on 19.12.1974. If the aforesaid legal position is applied to the facts of the present case, I am afraid, though the tenant, has succeeded in establishing the fact that he had deposited the amount of Rs. 5,000/- on 19.12.1974 as also the fact that the Petitioner has failed to prove that the said amount has been refunded to the tenant, yet, in view of the legal bar, would not be entitled for any adjustments of the deposit so made on 19.12.1974 after expiry of 6 months therefrom. Consequently, the deposit so made on 19.12.1974 can be of no avail to save the tenant from the rigours of Section 12(3)(a) of Rent Act. In other words, after the suit notice, admittedly the tenant has neither paid the demanded arrears of rent nor raised dispute regarding standard rent within one month from the date of receipt of the said notice, Section 12(3)(a) would be attracted straight way. This is so because no adjustment could be permitted in law in respect of the amount of Rs. 5,000/- which was deposited with the Petitioner on 19.12.1974 at the relevant point of time. In other words, the tenant having failed to offer the arrears of rent or raise dispute regarding standard rent within one month from the date of receipt of suit notice, he has made himself liable to suffer the decree of eviction u/s 12(3)(a) of Rent Act. It is well settled that the Court has no discretion but to pass a decree of eviction, once a ground u/s 12(3)(a) is made out. In the circumstances, the suit filed by the Petitioner against the Respondents on the ground of default arid arrears of rent will have to be decreed within the meaning of Section 12(3)(a) of the Bombay Rent Act.

For the reasons aforesaid, the writ petition is allowed with no order as to costs. Rule is made absolute. The judgments and orders passed by the Courts below in respect to the ground of default are set aside and instead the suit filed by the Petitioner being Civil Suit No. 532 of 1978 for recovery of arrears of rent and possession of the suit property against the tenant/ Respondent, on the ground of default only, is decreed.

Certified copy expedited.

Parties to act on the copy of this order duly authenticated by Sheristedar of the Court.