Writ Petition No. 6006 of 2006. Case: Dinesh Jagannath Khandelwal Vs Kundanlal S/o Perumal, Smt. Ranibai W/o Kundanlal, Rajesh S/o Kundanlal and Nandlal S/o Kundanlal. High Court of Bombay (India)
| Case Number | Writ Petition No. 6006 of 2006 |
| Counsel | For the Appellant: J.M. Gandhi, Adv. and For the Respondents: C.S. Kaptan, Adv. |
| Judges | B.P. Dharmadhikari, J. |
| Issue | Maharashtra Rent Control Act, 1999 - Sections 7(15), 10(2), 15, 15(3), 16, 16(1), 24 and 34; Transfer of Property Act, 1882 - Section 108 and 108(O); Haryana Urban (Control of Rent and Eviction) Act, 1973; East Punjab Urban Rent Restriction Act, 1949 - Section 13(2); Bombay Rents, Hotel and Lodging House Rates Control Act - Section 13(1); ... |
| Judgement Date | January 04, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
B.P. Dharmadhikari, J., (Nagpur Bench)
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In this petition under Articles 226 & 227 of the Constitution of India, tenant has challenged the reversing judgment dated 29/8/2006 delivered by Additional District Judge, Nagpur in Regular Civil Appeal 301 of 2004. This judgment in an appeal under Section 34 of Maharashtra Rent Control Act, 1999 sets aside the judgment & decree dated 30/4/2004 dismissing Regular Civil Suit 165/2000 of respondent/ landlord delivered by Additional Small Causes Court, Nagpur, and orders petitioner tenant to hand over vacant possession to him within 3 months. It also directs an inquiry under Order 20 Rule 12 of Civil Procedure Code. On 18/4/2007 while admitting the writ petition for final hearing, this Court has stayed the operation & effect of the impugned appellate judgment.
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The Suit as filed on 14/6/2000 was having title as under Section 24 of the Maharashtra Rent Control Act, 1999 ( Rent Act for short). The tenant then filed an application for its dismissal but landlord sought an amendment to the plaint and sought eviction of tenant on the grounds like bona fide need and nuisance etc. Tenant filed written statement disputing all factual aspects. He pointed out that after the suit was filed, the lease was further renewed on 2/9/2000 and suit itself became infructuous. The renewal is alleged to be by an agreement & memorandum of understanding entered into on 2/9/2000 for executing the renewed lease with grievance that the landlord did not remain present on 4/9/2000 before the Sub-registrar of the documents for its due registration. The landlord has alleged that there was no such understanding or an agreement for entering into a renewed lease deed and the xerox copies placed on record by tenant are forged. There are counter reports of hand writing experts on landlord's signatures on these disputed documents but then at this stage said controversy is not very relevant though both the sides have argued in some details on it. The tenant filed on 5/9/2000 an application at Exh. 17 for rejection of plaint but it remained undecided by the Small Cause Court. On 30/4/2004, it dismissed the Suit after holding that landlords were not entitled to decree for possession under Rent Act as per Section 24, or Under Section 16(1)(a),(b),(c),(e) or(g). Section 16 enables the court to restore possession to landlord if it is satisfied that tenant has committed an act prohibited by Section 108(O) of T.P. Act i.e. a ground under Section 16(1)(a). Clause (b) is erection permanent structure without landlord's written consent, Clause (c) is being guilty of conduct which is nuisance or annoyance, (e) is unlawful subletting or licensing while sub Clause (g) deals with ground of reasonable & bona fide need. The respondent landlords then filed Appeal as mentioned above which came to be allowed by accepting bona fide need, permanent alteration and efflux of time as per lease agreement. During final arguments before me, when tenant demonstrated that amendment allowed by the Small Cause Court was not carried out completely, landlords moved Civil Applications 2668 & 2669 of 2009 to pay deficit court fees and to amend the plaint for that purpose. At hearing of this application tenant pointed out that same exercise was also necessary in Appeal memo. After hearing both sides, these applications were allowed by me on 9/12/2009 and landlords were allowed to pay the deficit court fees and amend plaint as also appeal memo suitably for said purpose. Accordingly the court fees have been paid and the amendments have been carried out by the respondents landlords.
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Adv. J.M. Gandhi for Petitioner tenant has contended that the basic plaint as filed is only under Section 24 of Rent Act and as it came to be filed not before the authorized revenue officer but before the civil court, its presentation itself is bad and void. Any subsequent amendment thereto can not therefore instill life in it. He argues that the amendments allowed by this Court are only in the interest of revenue and does not affect his challenge raised since before the Trial Court vide Exh.17/27 left undecided by it. He further points out that though the paragraphs 9A to 9H were added by amendment in plaint on 4/4/2001, the title clause was not corrected. The stand of the tenant that there was renewal of lease and proceedings under Section 24 have become infructuous lead the landlord to effect the amendment. Tenant was given only xerox copy of agreement to renew as also memorandum and originals were retained by the landlords who later avoided to have it registered and came up with plea of fabrication. He invites attention to cross examination of landlord to show that at one place, landlord Kundanlal i.e. plaintiff 1 accepted his sign on disputed xerox of renewal and how later he adopted very cautious approach during further evidence. He takes the Court through judgment of Small Cause Court to urge how on merits no substance is found in landlords' case and finding of absence of jurisdiction to go into renewal dispute recorded by it. In this context, he attempted to demonstrate how finding of permanent alteration or bona fide requirement reached by Appellate Court is misconceived. The said court ought to have accepted the renewal and the xerox renewal agreement and dismissed the appeal of landlords. He points out that after landlords avoided the registration, tenant immediately sent a telegram on 4/9/2000 but landlords even did not bother to reply to it. Evidence of witness DW3 Shri Kulkarni is also heavily relied upon with contention that nothing material could come out in his cross-examination.
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In the light of other evidence on record, Adv. Gandhi further argues that use of tenanted premises for shop & godown was never discontinued and in some part thereof a cabin was erected as office. This can not be construed as change of user to grant decree of eviction. The change by raising a cabin is neither structural nor permanent, and eviction under Clause 16(1)(b) on that account is unsustainable. To explain his stance, he also takes support of Section 108 of Transfer of Property Act, 1882. He also pleads that alleged attempt to cut open the door or change of floor do not constitute nuisance in the eye of law to support the decree for ejectment under Clause 16(1)(c) of Rent Act. To show that the case for bona fide need was not made out time & again extent of premises available with the landlords and suppression of existing businesses with sons is being harped upon. Photographs duly exhibited are also shown to urge how landlords lied about its nature. The contention is finding about comparative hardship is eclipsed because of erroneous approach in this respect by Appellate Court. The landlords never pleaded any greater hardship to them or lesser to the tenant in the matter. He has relied upon several precedents to buttress his contentions and I find it appropriate to refer to the same in the course of the consideration at appropriate places.
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Adv. Kaptan has stressed that plaint as filed contained requisite pleadings pointing out entitlement of landlords to eviction even under other heads i.e. under Section 16 of the Rent Act and construing it as only under Section 24 is erroneous. He takes the Court through the plaint and also relevant provisions of Rent Act. Mere label or wrong provision quoted as title is not fatal and to substantiate it, he cites some precedents. Immediately after the objection was raised, court's powers under Order 6 Rule 17 CPC were invoked and paragraphs 9A to 9H were added which relate back to the date of institution of the suit. It needs to be noted that there is no paragraph as "9F" and paragraphs added by amendment are 9A to 9E & then 9G and 9H. This permission to amend granted by the Small Causes court on 4/4/2001 was never challenged by the tenant and has attained finality. To show that amendments so allowed relate back to the date of institution of the suit or then pleadings need liberal approach, he relied upon some case-law & I find it convenient to refer to it at appropriate juncture.
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To point out that there was no renewal & the fraud played by the tenant by fabrication of documents, he narrates chronology and states that on 5/9/2000, tenant filed Order 7 Rule 11 CPC application at Exh. 17 with copy of letter dated 5/9/2000 about forwarding of two cheques. He argues that tenant had no guts to swear about the alleged telegram dated 4/9/2000. He invites attention to copy of telegram to show anamolies and inconsistencies apparent there from and cross-examination of the tenant to urge that every thing in relation to renewal defence was pre-planned. Evidence of the handwriting expert Shri Kotwal was also shown to demonstrate that expert was not given correct signatures for use as standard signatures. Original documents i.e. xerox looked into by Small Cause court and Appellate Court are also commented upon by showing the records & proceedings of small Cause court. Evidence of tenant's witness i.e. DW3 Shri Kulkarni is also criticized as without any merit.
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Adv. Kaptan points out that eviction has been ordered by the Appellate Court under Section 16(1)(a)(b)(c) &(g) of the Rent Act. Subclauses (a) attracts Section 108(o) of T.P. Act and contingencies contemplated in it are mutually exclusive. As various parts of Section 108(o) are disjunctive, alteration prohibited therein need not be permanent because of explanation appended to Section 16(1)(a) of Rent Act. That explanation does not qualify the "change" in substantive part of clause(1) but it only refers to last part of Section 108(O) of TP Act. He further relies on sub Clause (b) of Section 16(1) of Rent Act for this purpose which is deliberately kept independent of sub clause(a). According to him terms of lease at Exh. 63 agreed between the parties are final in this respect and hence, decree under both these subclauses of Section 16(1) of the Rent Act is...
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