Rule. Rule made returnable forthwith.
With the consent of parties heard finally.
2. This Civil Revision Application is filed challenging the judgment and order dated 30th August, 2011, passed by the Principal District Judge, Beed, in Rent Appeal No. 2 of 2007, thereby confirming the judgment and order dated 23rd May, 2007, passed by the Rent Controller/Deputy Collector (Land Reforms), Beed, in File No. 98/RCA/DESK/03.
3. The revision applicant herein, is the tenant and the respondent herein, is the landlord. The respondent filed petition before the Rent Controller stating therein that, he is the owner of the suit premises as described in paragraph-1 of the petition filed before the Rent Controller. The revision applicant i.e. original respondent, is in possession of the suit premises, as tenant under the lease agreement entered into between the parties in the month of October, 1995. It was the case of the landlord that, though the lease agreement was entered between the parties in the month of October, 1995, however, rent note was executed on 27th January, 1996 i.e. nearly two months after commencement of tenancy as per the agreement. Initially, there was oral tenancy and later on reduced into writing on 27th January, 1996. As per the said agreement, the rent was fixed @ Rs. 400/- per month and same was to be paid soon after the commencement of next month, regularly and as per English calender month.
The father of the revision applicant was the previous tenant of the suit premises for about 9 to 10 years. Said premises were let out on rent for the business of father of the revision applicant. It is the case of the respondent landlord that, lease agreement with the father of the revision applicant came to an end and fresh lease agreement between the revision applicant and the respondent herein, was reduced into writing on 27th January, 1996. It is further case of the respondent herein that, the revision applicant paid rent till 31st December, 1996. But, thereafter, he avoided to pay rent and has not paid any rent till filing the petition before the Rent Controller for eviction. The father of the respondent sent the rent by money order, however, the same was not accepted by the respondent-landlord for the reason that, father of the revision applicant was no longer a tenant of the suit premises. It is the case of the respondent that, in spite of repeated demands, the revision-applicant never tendered the rent and thereby he committed default in payment of rent.
An amount of Rs.13,200/- towards accrued rent from 1st January, 1996 to 30th September, 1998 is due towards revision applicant-tenant. Moreover, the tenant is liable to pay the compensation for use and occupation of the suit premises of the period of holding over, after termination of his tenancy. The landlord has terminated his tenancy with effect from 1st October, 1998 by giving written notice dated 7th September, 1998.
4. It is the case of the landlord-respondent that, though there is no provision to deposit the rent amount before the Rent Controller, the father of the revision applicant filed an application with the Rent Controller for depositing the arrears towards rent. The said application was allowed by the Rent Controller, however, in Appeal filed by the respondent-landlord, the District Court held that, there is no provision for depositing the rent amount before the Rent Controller and thereby set aside the order of the Rent Controller, allowing the application of father of the revision applicant to deposit the rent. It is pertinent to note that, the Revision Applicant or his father did not prefer any further proceedings challenging the order in Appeal passed by the District Court.
5. The revision applicant herein, filed written statement before the Rent Controller and contested the claim of the landlord. The applicant denied that, he is/was tenant in the suit premises and in arrears of rent. It was the case of the applicant that, his father was/is tenant of the respondent-landlord and he is doing business alongwith his father. The applicant and his father have no different identity but are living as Joint Hindu Family. The father of the revision applicant is tenant of the suit premises and as such, he has never surrendered the tenancy. So also, he was regularly paying rent to the respondent-landlord. It is the respondent-landlord who refused to accept the rent and father of the applicant constrained to send the rent by money order to which also the respondent refused to accept, therefore, the father of the applicant approached to the Rent Controller with a prayer, seeking permission to deposit the rent before the Rent Controller. The applicant submitted that, neither the applicant nor his father is willful defaulter in payment of rent. The father of the applicant is tenant and his status as tenant is intact.
6. The Rent Controller by his judgment and order dated 23rd May, 2007 allowed the application of the landlord and directed the revision applicant-tenant to hand over the possession of the suit premises to the respondent-landlord within 30 days from the order of the Rent Controller.
Being aggrieved by the judgment and order dated 23rd May, 2007 passed by the Rent Controller, in File No. 98/RCA/DESK/3, the revision applicant herein, filed Rent Appeal before the District Court, Beed being Rent Appeal No. 2 of 2007. The said appeal came to be dismissed by confirming the findings recorded by the Rent Controller. Hence, this Civil Revision Application is filed by the revision applicant.
7. The learned Counsel appearing for the revision applicant submits that, notice sent by the respondent-land lord dated 12th August, 1996 is addressed to the applicant and his father and that itself indicates that, father's status as a tenant is intact. It is submitted that, the revision applicant or his father are not defaulter, much less willful defaulter. It is submitted that, though money orders were sent by the father of the revision applicant towards rent to the respondent-land lord, he refused to accept the same. It is submitted that, father of the applicant was tenant of the suit premises and there is no evidence on record to show that, the tenancy between father of the applicant and the respondent was terminated. It is submitted that, the family of the applicant is joint Hindu family and as such, the rent paid by him or his father does not make any difference and therefore, on this back drop, the applicant cannot be held willful defaulter in paying rent, since the father of the applicant had paid rent regularly. The application for eviction is not maintainable at all against the applicant because admittedly, the suit premises are let out for commercial purpose within the pretext of Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (For short, "said Act"). It is submitted that, because of lack of legal knowledge, the applicant did not enter into the witness box and therefore, the opportunity should have been given by the appellate Court to the applicant to prove his case. It is submitted that, the findings recorded by the Courts below that, the applicant is habitual defaulter, are without considering the fact that, the father of the applicant was/is sending rent to the respondent-landlord but the respondent-landlord himself has refused to accept the same. It is further submitted that, both the Courts below did not consider the provisions of the proviso to section 15 of the said Act while dealing with the case in hand, as such, they could have granted one opportunity to the applicant to correct himself and should have directed the applicant to pay arrears of rent within 15 days. The learned Counsel also invited my attention to the averments in the application, grounds taken therein, annexures thereto and submitted that, this Civil Revision Application deserves to be allowed. The learned Counsel further submitted that, without admitting, but for a moment assuming that, the applicant was defaulter, however, said default cannot be said to be willful default. It is submitted that, both the Courts below have not appreciated that, there is no willful default on the part of the applicant and committed error in passing the decree of eviction. In support of his contention that, unless there is willful default, no decree of eviction can be passed, the learned Counsel for the revision applicant pressed into service reported judgments of this Court in the cases of Bane Khan alias Munshi, Sharif Khan vs. Surajilal, Balaprasad Jaiswal [1983 LawSuit(BOM) 244, Marotirao Bhairao vs. Kashinath Singh Gangusingh Raut [1989 LawSuit(Bom) 304], Nandkuwarbai M. Patil vs. P.N. Shahane [1979 LawSuit(Bom) 98], Bhagwanrao, Baburao Gounder vs. Poonamchand, Ramnarayan Porwal [1983 LawSuit(BOM) 260 and Chunilal Anoopchand Dhoke vs. Shivprasad s/o Chaganlal Devidan [1982 LawSuit(Bom) 160]. The learned Counsel also pressed into service the reported judgment of the Supreme Court in the case of M/s. Shrikrishna Oil Mill vs. M/s. Radhakrishnan Ramchandra [AIR 2002 SC 562] and submitted that, the father of the applicant did offer rent amount by sending money orders to the respondent-landlord but he refused to accept the same and therefore, the applicant has not incurred any default in payment of rent. The learned Counsel further invited my attention to the exposition of the Supreme Court in the case of S. Sundaram Pillai, etc. vs. V.R. Pattabiraman and Kousalya Devi and others vs. P. Lakshminarayana Charya and others and Murugesa Mudhaliar vs. Selvaraj Chettiar and N.S. Dhanlakshmi Ammal vs. B.S. Ramachari, and Thahira Beevi vs. R.A. Muthiah Nadar and Balakrishnan vs. Fathima Bai and others and K.R. Krishnan vs. P. Bhanumati reported in 1985 S.C. 582(1) and submitted that, willful default must be intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. Therefore, the learned Counsel appearing for the revision applicant prays that, this Civil Revision Application may be allowed.
8. The learned Counsel appearing for the respondent i.e. landlord invited my attention to the findings recorded by the Rent Controller and the District Court and submitted that, there are concurrent findings of facts recorded by the Courts below and therefore, the Civil Revision Application may be rejected. It is submitted that, the revision application is totally misconceived and thus raises no jurisdictional error in the judgment and decree of both the lower Courts. It is submitted that, the revision applicant all along is fighting his battle with a specific case that, he was not at all a tenant of the respondent and that, it was his father who was a tenant. Both the lower Courts have elaborately discussed the said issue and have taken into consideration the rent note executed by the revision applicant himself on 27th January, 1996, which is an admitted document. Thus, admittedly the revision applicant was tenant of the respondent herein. It is submitted that, it is an admitted position that, in stead of revision applicant, his father used to send money orders of the rent, even after execution of the rent note dated 27th January, 1996 and same were rightly refused by the respondent-landlord, since father of the revision applicant has nothing to do with the tenancy after the revision applicant's execution of the fresh rent note on 27th January, 1996. At no point of time, the revision applicant has ever said that, he has tendered rent or sent any money orders to the respondent after the execution of rent note by him or even after the receipt of two notices sent by the respondent terminating the tenancy due to willful default by the revision applicant. It is further submitted that, both the Courts below in their respective judgment held that, the revision applicant did not make any attempt to pay rent in person or sending same by money orders or by any other accepted method. This deliberate conduct of the revision applicant proves the willful default of the revision applicant and thus as contended, the proviso to section 15 cannot be applied to the present case. It is submitted that, proviso to section 15 could not have been invoked since the revision applicant is consistently saying that, he is not tenant of the suit premises. Thus, it is only when the tenancy is admitted, that the said proviso can be made applicable.
The learned Counsel further submits that, in the present case, the revision applicant is contending that, it is his father who is tenant and thus the Rent Controller has no jurisdiction even to apply said proviso. It is further submitted that, the contention of the Revision Applicant that, suits for recovery of arrears of rent, filed after filing of eviction petition cannot be taken into account for showing that, the tenant was willful defaulter, has no merit. The same is not the correct proposition of law. Though the suit for recovery of arrears of rent is filed subsequently to the rent eviction petition, if it relates to the period which is prior to the filing of rent eviction petition, the same can be and rather will have to be considered. In the present case also, the respondent had filed a suit bearing Regular Civil Suit No. 3 of 1999 for recovery of arrears of rent for the period for which notice of termination of tenancy was issued by the respondent. Thus, it relates to the same period for which the respondent had issued notices to the revision applicant and thus the same clearly proves that the revision applicant was willful defaulter. It is submitted that, the judgment passed by the Civil Court in R.C.S. No. 3 of 1999 is referred by both the Courts below. It is submitted that, the revision applicant himself did not enter into witness box nor examined any other witness to prove his case. Thus, when the revision applicant has not even stepped into witness box, he cannot contend that, proper opportunity is not given to the revision applicant. In fact, nowhere the revision applicant contended that, he wanted to place on record some evidence but could not do so due to lack of opportunity. Thus, though prayer for remand is made, same is not made in the lower appellate Court and thus the same cannot be considered. It is submitted that, both the Courts have concurrently held that, the revision applicant is a willful defaulter and it is the revision applicant who is tenant and not his father and thus no evidence is placed on record by the applicant showing that at any point of time he has made an attempt to pay rent. It is also not contention of the revision applicant that, due to paucity, he was unable to pay rent. That cannot be a case because if at all there was any paucity, his father would not have sent money orders. Therefore, the learned Counsel appearing for the respondent-landlord submits that, the Civil Revision Application may be rejected.
9. At the outset, it would be relevant to refer few judgments of this Court and the Hon'ble Supreme Court in which scope of revision is explained by this Court and the Hon'ble Supreme Court.
In case of M.L. Sethi v/s Shri R.P. Kapoor, reported in A.I.R. 1972 SC 2379, the Supreme Court has observed that even gross errors of facts and law cannot be gone into in revisional jurisdiction. Yet, in another judgment in case of DLF Housing and Constructions Co. (P) Ltd. v/s Saroopsing and others, reported in AIR 1971 SC 2324,the Supreme Court held that while exercising revisional jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself. Yet in another judgment in the case of Managing Director (MIG) Hindustan Aeronautics Ltd., Balanagar Hyderabad and another v/s Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd., Balanagar Hyderabad, reported in AIR 1973 SC 76, the Honourable Supreme Court held that revisional Court can only see whether the Court below had jurisdiction. If it had jurisdiction to entertain the proceedings, the High Court cannot interfere. In the case of Harishankar and others vs. Rao Giridhari Lal Chowdhary, reported in AIR 1963 SC 698, the Supreme Court has distinguished between right of appeal and right of revision and held that, scope of revisional jurisdiction is limited. Yet in another judgment in the case of Faijulbee Hajeel and others vs. Yadali Amir Shaikh Ansari, reported in 1984(2) Bom.C.R. 253, the Division Bench of this Court held that the decision on question of facts is not amenable to revisional jurisdiction of the High Court. In the judgment in case of Sanjay Kumar Pandey and others v/s Gulabhar Sheikh and others, reported in AIR 2004 SC 3354, the Supreme Court held that the revisional court cannot refer to part of the evidence and reverse the findings of the fact. In paragraphs 4 and 5 , the Court has clarified that the revisional jurisdiction would be exercised in exceptional circumstances and normally the party should file independent suit to establish title.
It follows from the aforesaid expositions of the Supreme Court and this Court that, while exercising revisional jurisdiction either by High Court or any other Forum to whom said jurisdiction is conferred, has to exercise the same within permissible limit as intended by the Legislators.
Therefore, unless there is some jurisdictional error or findings recorded by the Rent Controller and confirmed by the District Court are perverse, no interference in the revisional jurisdiction is permissible.
10. An application filed by the respondent-landlord before the Rent Controller for eviction of the revision applicant-tenant from the suit premises was on the ground of willful default, at this juncture, it is apposite to refer the provisions of Section 15(2)(i) of the Hyderabad Houses (Rent,Eviction and Lease) Control Act, 1954, which reads thus:
"15. Eviction of Tenants
(1) A tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied:-
(i) that the tenant has not paid or tendered the rent due by him in respect of the house, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, or
(ii) ...
(iii) ...
(iv) ...
(v) ...
(vi) ...
the Controller, shall make an order directing the tenant to put the landlord in possession of the house, and if the controller is not so satisfied, he shall make an order rejecting the application:
Provided that in any case falling under clause (1) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid, give the tenant reasonable time, not exceeding 15 days, to pay or tender the rent to the landlord up to the date of such payment or tender."
11. In the present case, it is an admitted position that, the rent note is executed on 27th January, 1996 in favour of the revision applicant. Both the Courts below have held that, the revision applicant is in possession of the suit premises as a tenant and as per agreement entered in the month of October, 1995, reduced into writing on 27th January, 1996, the revision applicant is tenant of the suit premises. The Rent Controller framed as many as nine issues for its consideration/determination. The issue No.1, "Whether the petitioner i.e. original respondent-landlord prove that, the revision applicant i.e. tenant is in possession of the suit premises as a tenant, as per agreement entered into in October 1995, reduced into writing on 27th January, 1996?, has been answered in the affirmative. Another issue " Whether the revision applicant is willful defaulter?, is also answered in the affirmative. The third issue "Does the respondent landlord prove that, he has validly terminated the tenancy of the revision applicant with effect from 1st October, 1998?, is also answered in the affirmative. Both the Courts below have also held that, the landlord is entitled for possession of the suit premises by evicting revision applicant. The Rent Controller did frame specific issue "Does revision applicant i.e. original respondent prove that, his father (and not the respondent) is tenant of the suit premises?, is answered in the negative. Further issue " Does the respondent i.e. revision applicant herein prove that, lease agreement dated 27th January, 1996 was executed for the purpose other than creation of tenancy?, is also answered in the negative. Further issue " Whether the revision applicant prove that, his father is the tenant of the suit premises despite creation of tenancy in his favour?, is also answered in the negative. The said findings are confirmed by the District Court.
The contention of the revision applicant that, tenancy of his father is not terminated and his father continues to be the tenant in spite of the admitted position that, there was lease agreement dated 27th January, 1996 between the respondent-landlord and the revision applicant, has rightly been negated by the Rent Controller and confirmed by the District Court. It is the case of the revision applicant himself that, his father's tenancy is not terminated and therefore, the revision applicant is not liable to pay rent, has been negated by both the Courts below. Both the Courts below have taken a note that, two notices were sent to the revision applicant by the respondent landlord and inspite of specific notices, the applicant denied the payment of rent stating that, he is not a tenant of the suit premises and his father continues to be the tenant of the suit premises. In fact, when it is an admitted position that, there was agreement between respondent landlord and the revision applicant tenant in the month of October 1995 and which was reduced into writing on 27th January, 1996, there cannot be continuation of the tenancy of his father any further. At least from 27th January, 1996, the revision applicant, in view of the said lease agreement, has become the tenant of the suit premises and therefore, it was incumbent for him to pay the rent regularly. His contention that, his father sent the rent amount by money orders, is of no avail. The respondent landlord has rightly declined to accept the said money orders, since the revision applicant is tenant of the suit premises. The Courts below have also taken a note of the fact that, father of the revision applicant has transferred his business in favour of the revision applicant, and the revision applicant is carrying on his business in the suit premises.
Provision of Section 15(2)(i) of the said Act provided that, the tenant has not paid or tendered the rent due by him in respect of the house, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, the Controller shall make an order directing the tenant to put the landlord in possession of the house, and if the controller is not so satisfied, he shall make an order rejecting the application. Therefore, the aforesaid provision contemplates for the payment of rent by the tenant and in the present case, in view of the lease agreement dated 27th January, 1996, the revision applicant. Therefore, the contention of the revision applicant that, money orders sent by his father were towards rent, and non acceptance of the said money orders by the landlord, will not entitle the landlord to seek possession of the suit premises, is devoid of any merits. The revision applicant was supposed to pay the rent at least from the execution of the lease agreement on 27th January, 1996. The contention of the revision applicant that, in view of proviso to Section 15 of the said Act, the opportunity should have been given to the revision applicant, by the Rent Controller to allow him to deposit the arrears towards rent, is devoid of any merits. As observed earlier, throughout the proceedings, the revision applicant has taken a stand that, tenancy of his father is not terminated and therefore, his father is supposed to pay the rent and not the revision applicant. The revision applicant did not pray before the Rent Controller for invoking the proviso to Section 15, rather stand of the revision applicant before the Rent Controller was that, tenancy of his father is not yet terminated and therefore, the revision applicant is not liable to pay any rent. Therefore, the revision applicant knowing fully well that, he has entered into agreement with the respondent landlord on 27th January, 1996 in respect of the suit premises, in spite of receiving two notices from the respondent landlord to pay rent amount, has refused to pay rent on the ground that, still his father is tenant of the suit premises and the tenancy of his father is not yet terminated. Therefore, in my opinion, Rent Controller and the District Court have rightly recorded finding that, there is 'willful' default by the revision applicant. Apart from the above, the revision applicant did not enter into witness box to prove his case. There are concurrent findings of facts recorded by the Courts below.
Both the Courts below have taken into consideration the rent note executed by the revision applicant himself dated 27th January, 1996, which is an admitted document. Thus, the revision applicant was tenant of the suit premises. At no point of time, the revision applicant has ever stated that, he has tendered rent or sent money orders to the respondent landlord, after execution of the rent note by him or at least after receipt of two notices sent by the respondent landlord. The revision applicant did not make any attempt to pay rent in person or by sending the same by money order or by any other accepted method, even after receiving two notices by the respondent landlord and this conduct of the revision applicant certainly leads to the conclusion that, there is 'willful' default by the revision applicant. Both the Courts below have rightly relied upon the judgment in R.C.S. No. 3 of 1999 which was filed for recovery of arrears towards rent for the period for which notice of termination of the tenancy was issued by the respondent landlord. The said suit was decreed by the Civil Court. For entire period of two years, not a single attempt was made by the revision applicant to pay the rent. It is not necessary to reproduce herein the concurrent findings of facts recorded by the Courts below. Suffice it to say that, the said findings recorded by the Courts below are in consonance with the evidence on record and those are not perverse. It is not necessary to burden this judgment by reproducing the findings of facts recorded by the Rent Controller or by the District Court, when this Court is in agreement with those findings.
12. Therefore, for the reasons aforesaid, the Civil Revision Application sans merit. There is no any jurisdictional error committed by the Courts below or it is not the case that, the Courts below have not exercised the jurisdiction vested in them or exceeded jurisdiction or findings recorded by the Courts below are perverse. Therefore, the Civil Revision Application is devoid of any merits, same stands dismissed. Rule stands discharged. Interim relief stands vacated.
At this stage, the learned Counsel for the revision applicant prays for continuation of interim relief granted by this Court during the pendency of this Civil Revision Application. Since the interim relief was operating during the pendency of the Civil Revision Application, it is desirable that, the said order is continued for another four weeks. Accordingly, the interim order to continue for further four weeks from today. However, it is made clear that, the revision application shall not create any third party rights or alienate the suit property during the said period of four weeks from today. On expiry of period of four weeks from today, the interim order will cease to operate.