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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

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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

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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

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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

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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

Kazhagam1 - where, in similar situation, the tenant deposited the rent in

Court which was considered as a valid deposit. The fact remains that the 1

(1998) 5 SCC 21

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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

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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

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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