Sunday, 31 July 2016

How to appreciate evidence if landlord is denying that tenant has sent rent by money order?

 Similarly, in case of  Kamlabai B. Kabade vs. Laxmibai J.
Jagtap and ors.2001(2) MH.L.J. 905, this Court has held that refusal of rent sent by
money   order   constitutes   deemed   acceptance   of   rent.   In   such   a
situation, there would be no cause of action either to issue notice or
to institute a suit on the ground of default. 

46]  The failure to examine postman, in facts and circumstances of
the   present,   is   by   no   means   sufficient   to   upset   the   concurrent
findings that rents were indeed sent by money order and refused by

the   respondent ­landlords.   There   are   records   of   money   order
dispatches over considerable period. The amounts dispatched and
the endorsement thereon are substantially clear. The deposition on
behalf   of   the   applicants   as   well   as   respondent­landlords,   does
substantially   establish   that   consequent   upon   purchase   of   suit
premises by the respondent­landlords some time in the year 1992,
rents   have   been   dispatched   by   the   applicants   by   way   of   money
orders and same have been refused by the respondent­landlords. In
such   circumstances,   there   is   no   question   of   ignoring   all   such
materials and relying upon a singular and bald assertion on the part
of   the   respondent­landlords   that   the   rents   dispatched   by   money
orders were never refused by them. Any conclusion that rents were
not   refused,   in   the   facts   and  circumstances  of  the   present  case,
would be contrary to the weight of evidence on record. The Appeal
Court,   therefore,   has   exceeded   its   jurisdiction   or   in   any   case,
committed an error of law apparent on face of record.  

The failure to examine postman, in facts and circumstances of
the   present,   is   by   no   means   sufficient   to   upset   the   concurrent
findings that rents were indeed sent by money order and refused by
  respondent­ landlords.  
N THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL   APPELLATE  JURISDICTION
CIVIL REVISION APPLICATION NO. 770 OF 2013  
Vasant Mahadeo Gujar  ..  Applicant 
vs.
Baitulla Ismail Shaikh & anr.  .. Respondents
CORAM :  M. S. SONAK, J.
 Date of Pronouncing the Judgment  :   04 August 2015
Citation: 2016 (4) ALLMR 174



1] Rule and interim relief was granted in these Civil Revision
Applications by speaking order dated 4 February 2014. As against
the same, the respondent­landlords preferred Special Leave Petitions
before   the   Apex   Court,   which   were   dismissed   on   2   May   2014.
However, the Apex Court requested this Court to dispose of the
pending   Civil   Revision   Applications   expeditiously.   It   is   in   these
circumstances, that two Civil Revision Applications were taken up
for final disposal.
2] The learned counsel for the parties requested that these two
Civil Revision Applications be disposed of by common judgment and
order. Even  otherwise,  the  respondent­landlords  in  the  two  Civil
Revision   Applications   are   one   and   same.   The   tenants   who   have
instituted these Civil Revision Applications occupy parts of the same
House No.86. The impugned orders proceed on basis of substantially
similar facts and reasoning. After certain stage, common evidence
came to be recorded in the two matters. For all these reasons, it
would indeed be appropriate if these two Civil Revision Applications
are disposed of by this common judgment and order.  
3] The Civil Revision Application No. 770 of 2013 is instituted by
Vasant   M.   Gujar   (Gujar).   This   concern   two   rooms,   together   admeasuring
about 240 sq.ft. in House No. 86,   Dr. Sabane Road,
Mahabaleshwar (suit premises No.1), of which the respondents are
the landlords. The suit premises No.1 were let out by one Mr. Bhise, 
the previous owner since last several decades. The suit premises are
being used by the tenant Gujar for residential purposes. 
4] The   Civil   Revision   Application   No.   167   of   2014   has   been
instituted by Smt. Khatija Panhalkar and others (Panhalkar). This
concerns road facing premises ad­measuring about 40 sq.ft., again
being part of House No. 86,  Dr. Sabane Road, Mahabaleshwar (suit
premises No.2)  of  which,  the  very  same  respondents  as in  Civil
Revision   Application   No.   770   of   2013   are   landlords.   The   suit
premises No.2 are being used by the tenant Panhalkar for sale of
handicrafts, Mahabaleshwar sticks etc. last several decades.
5] At   least   two   portions   of   House   No.86   of   which   the   suit
premises form a part, are in possession of the landlords. One of the
portion is immediately adjacent to suit premises No.1 and the same
was   used   for   residential   purposes.   The   second   is   immediately
adjacent to suit premises No.2 and is used by the  landlords for
commercial purposes. There is reference to yet another portion/shed
in   the   occupation   of   tenant   Gujar.   However,  no   proceedings   are
initiated in respect of the said portion/shed and accordingly it is 
clarified   that   the   present   proceedings   do   not   concern   with   such
portion/shed.  
6] The landlords instituted Regular Civil Suit No. 137 of 2010
(old Regular Civil Suit No. 241 of 2002) against the tenant Gujar
seeking  eviction   from   the   suit   premises  No.1  on   the   grounds   of
default in payment of rent, reasonable and  bona fide  requirement
and   that   the   premises   are   required   for   immediate   purpose   of
demolition   ordered   by   municipal   authorities.   These   are   grounds
contemplated   by   Sections   15,   16(1)(g)   and   16(1)(k)   of   the
Maharashtra Rent Control Act, 1999 (Rent Act).
7] The landlords also instituted Regular Civil Suit No. 136 of
2010 (old Regular Civil Suit No. 239 of 2002) against the tenant
Panhalkar for eviction on the same grounds. There was however, an
additional   ground   that   the   tenant   Panhalkar   had   without   the
landlords' consent in writing erected upon the suit premises No.2  a
permanent   structure.   This   is   a   ground   contemplated   by   Section
16(1)(b) of the Rent Act. 
8] The two suits were taken up for consideration together by the
Civil Judge, Junior Division at Mahabaleshwar (Trial Court). The
examination­in­chief was recorded separately in the two cases to
begin with. However, after some stage, at the request of the parties,
common   evidence   was   recorded.   Even   the   cross­examination   of
Baitulla   Shaikh   is   common   in   both   cases.   The   Trial   Court,   by
judgment and order dated 4 July 2011 decreed two suits on the
ground   of   reasonable   and  bona   fide  requirement   as   also   on   the
ground that the suit premises are required for immediate purpose of
demolition ordered by the Municipal Authorities. However, decree of
eviction on other grounds was declined.  
9] The tenants appealed to the District Court (Appeal Court).
The landlords instituted cross­objections seeking decree of eviction
on the remaining grounds as well. The Appeal Court by its judgment
and order dated 4 July 2013 has dismissed the tenants' appeal and
allowed   the   landlords   cross­objections.   Hence,   the   present   Civil
Revision Applications, by the tenants. 
10] In   the   suit   against   the   tenant   Gujar,   it   appears   that   the
landlords had raised the ground that the tenant Gujar had acquired
an   alternate   suitable   accommodation   in   Namdeo   Cooperative
Housing Society.   Under the Rent Act, the acquisition of alternate
premises is not a ground for eviction. The Trial Court is not clear
whether eviction was made on this ground. However, it does appear
that this aspect was taken into consideration by the Trial Court in
dealing with the issue of comparative hardship. The Appeal Court
has, however, not adverted to this aspect at all. 
11] In the appeals, both the tenants had taken out applications
under  Order  41 Rule  27 of the  Code  of  Civil  Procedure (1908)
seeking leave to produce additional evidence. The Appeal Court, in
making the impugned judgment and decree dated 4 July 2013, has
not dealt with or disposed of the said applications.   The arguments
before the Appeal Court had concluded on 15 January 2013 and the
impugned judgment and decree was made on 4 July 2013. 
12] In the aforesaid circumstances, Mr. Talkute and Mr.Warunjikar,
learned counsel for the tenants, in support of both the Civil Revision
Applications, have urged the following :
(a) There   is   failure   to   exercise   jurisdiction   by   not   even
adverting to, much less deciding the applications under Order
41 Rule 27 of the CPC;
(b) The delay of more than six months in pronouncing the
impugned   judgment   and   decree,   after   the   conclusion   of
arguments is contrary to the provisions contained in Order 20
Rule 1 of CPC, as interpreted by the Apex Court and this Court
in its several rulings, on the subject;
(c) The   Appeal   Court   has   committed   an   error   of   law,
apparent on face of record in interpreting Section 15 of the
Rent Act, in the manner it has. The interpretation is contrary
to both, the text as well as the rulings of this Court on the
subject. This is a case where rents were regularly offered and
dispatched by way of money orders. The rents were, however,
refused by the landlords. In such circumstances, there is no
obligation   upon   the   tenants   to   comply   with   conditions
prescribed in Section 15(3) of the Rent Act. It is always open
to a tenant to establish and prove that the tenant was always
ready and   willing to pay rent   and therefore, there was no
cause of action to even initiate proceedings for eviction under
Section 15(1) of the Rent Act. Besides, a careful perusal of the
impugned orders would indicate that concurrently the two
Courts have accepted that there  was no default in payment of
rents.  There   is,   in   any  case,  ample   evidence   on   record   to
establish that there was no default in payment of rent;
(d) From   the   notice   purporting   to   determine   tenancy,
pleadings as well as depositions, it is apparent that eviction
was applied for in order to demolish the suit premises and to
erect thereupon a new building. The ground for eviction was
therefore, relatable to Section 16(1)(i) of the Rent Act and not
to Section 16(1)(g) thereof. Accordingly, it was incumbent to
record satisfaction and secure compliances of the conditions
specified in sub­sections (4),(5), (6) and (7) of Section 16 of
the Rent Act before any decree under Section 16(1)(i) of the
Rent Act is made. There being no consideration whatsoever of
the provisions in the  sub­sections, the impugned judgment
and decrees are in excess of jurisdiction or in any case vitiated
by illegality or material irregularities; 
(e) There was a blatant suppression of material particulars
with regard to several premises owned and occupied by the
landlords. Therefore, applying the principles laid down by this
Court   in   case   of  Tarachand   Hassaram   Shamdasani   Vs.
Durgashankar G. Shrof1
, as well as other rulings, no decree
of   eviction   on   the   ground   of   reasonable   and  bona   fide
requirement, could ever have been made. Even otherwise, the
two Courts have neither applied the true and correct tests in
such   matters   nor   has   relevant   evidence   on   record   been
considered. Even the aspect of comparative hardship has not
been adverted to independently;
(f) There was no case made out for eviction under Section
16(1)(k) of the Rent Act. There is material on record which
establishes   that   the   landlords   were   intentionally   and
maliciously damaging the suit premises with the sole object of
inviting demolition notices. There is no satisfaction recorded
that the suit premises were required for 'immediate purpose of
demolition'.  In any case, the demolition notices, on basis of
which the suits came to be instituted did not relate to the
entire suit premises. There is clear misinterpretation of the
provisions  contained in Section 16(1)(k) of the Rent Act. 
(g) There is no case made out to evict the tenant Panhalkar
under Section 16(1)(b) of the Rent Act. The Trial Court  had
1 2004(Suppl) Bom.C.R.333
rightly declined the eviction on this ground. The finding of the
Appeal Court is vitiated by clear perversity. The explanation to
Section 16(1)(b) of the Rent Act has been completely ignored.
(h) In   general,   for   the   aforesaid   reasons,   the   learned
counsel for the tenants submitted that the impugned judgment
and  decrees are  in  excess  of   jurisdiction   and  in  any  case,
vitiated by illegality and material irregularities. 
13] Mr. P.B. Shah and Mr. A.V. Anturkar, learned counsel for the
landlords,   separately   advanced   submissions   in   support   of   the
impugned judgments and decrees. They submitted that there are
concurrent findings recorded by the two Courts which are borne
from the material on record. There is accordingly, no warrant to
interfere   with   the   same   in   the   exercise   of   limited   revisional
jurisdiction. 
14] The learned counsel for the landlords further submitted that
on the basis of evidence led by the tenants, it is apparent that there
were defaults in payment of rents.  The tenants neither raised any
dispute  with regard to the  standard  rent nor did they avail  the
option under Section 15(3) of the Rent Act. Accordingly, the Appeal
Court was right in directing eviction under Section 15 of the Rent
Act. 
15] The learned counsel for the landlords further submitted that in
this case, Municipal Authorities had issued no less than four notices
for demolition of House No.86, of which the suit premises were only
a part. The allegations of malice or mala fide were vaguely made and
the same was rightly rejected by the Appeal Court. Accordingly, they
submitted that the ground as contemplated by Section 16(1)(k) of
the Rent Act was clearly made out.
16] As   regards   the   ground   of  reasonable   and  bona   fide
requirement,    Mr.   Anturkar,   appearing   for   the   landlords   in   Civil
Revision Application No. 167 of 2014 conceded that the pleadings
did make out a case under Section 16(1)(i) of the Rent Act and
therefore, no decree of eviction could be made without securing
compliances under sub­sections (4),(5),(6) & (7) of Section 16 of
the Rent Act. However, Mr. Shah, learned counsel appearing in Civil
Revision Application No. 770 of 2013 for the very same landlords
joined issue and submitted that notwithstanding such pleadings, a
decree   of   eviction   on   the   grounds   of  reasonable   and  bona   fide
requirement can always be made under Section 16(1)(g) of the Rent
Act. In this regard, Mr. Shah placed reliance upon the decision of the
Apex  Court   in  case  of  Ramniklal P. Mehta vs. Indradaman A.
Sheth2
 and of this Court in case of  Sharadchandra V. Chitnis Vs.
Mrs. Neela Ashok Korde & anr.3

17] Finally, Mr. Anturkar submitted that the material on record
clearly   bears   out   that   the   tenant   Panhalkar   had   carried   out
construction of permanent nature and therefore, the decree under
Section 16(1)(b) of the Rent Act, as made by the Appeal Court, was
in perfect order. 
18] The learned counsel for both the parties made reference to
certain decisions of the Apex Court as well as this Court to which
reference shall be made in the course of this common judgment and
order.
19] The rival contentions now fall for my determination.
2 AIR 1964 SC 1676
3 2008(4) MAH.L.J. 873
Non consideration of the Applications under Order 41, Rule 27 of
the CPC
20] There   is   nothing   in   the   record   and   at   least   none   was
demonstrated by the learned counsel appearing for the landlords
that the  tenants' applications under Order 41 Rule 27 of the CPC
were considered and disposed of by the Appeal Court at the stage of
making the  impugned orders. This clearly, amounts to failure to
exercise jurisdiction. 
21] In case of Eastern Equipment & Sales Limited vs. ING Yash
Kumar Khanna4
, the Apex Court has observed thus:
5. We have heard learned counsel for the parties and after
considering the facts and circumstances of the present case, we
are of the view that in order to decide the pending appeal in
which the application under Order 41 Rule 27 of the Code of
Civil Procedure was filed ought to have been taken by the
appellate court along with the application for acceptance of
additional evidence under Order 41 Rule 27 of the Code of
Civil Procedure.
6. In that view of the matter and without going into the
merits as to whether the application under Order 41 Rule 27
of the Code of  Civil  Procedure  was rightly  rejected  by  the
appellate court as well as by the High Court, we set aside the
order  of the High   Court as  well  as  of the appellate court
rejecting the application under Order 41 Rule 27 of the Code
of Civil Procedure and we direct that the appellate court shall
decide the pending appeal along with the application under
Order 41 Rule 27 of the Code of Civil Procedure on merits
4 (2008) 12 Supreme Court Cases 739
within a period of three months from the date of supply of a
copy of this order to the appellate court. The appeal is allowed
to the extent indicated above. There will be no order as to
costs. 
7. The view that we have expressed can be supported by a
decision   of   this   Court   in  Jaipur   Development   Authority   v.
Kailashwati Devi ­  (1997) (7) SCC 297.”
22] Similarly, in case of  Muzaffar Ali vs. Dasaram5
, the Apex
Court   remanded   the   matter   for   reconsideration   of   the   Second
Appeal, where the second Appellate Court had failed to consider the
reasons assigned by the first Appellate Court for rejection of an
application under Order 41 Rule 27 of the CPC. In paragraphs 3 and
4, the Apex Court observed thus:
3. It is true that the first appellate court, while deciding
the first appeal, had given reasons for rejection of the said
application but the ground for such rejection was, as noted
hereinabove, not considered by the High Court. That being the
position, we set aside the judgment of the High Court and
direct   it   to   decide   the   appeal   afresh   on   merits   and   in
accordance with law along with the application under Order
41 Rule 27 CPC and the reasons given by the first appellate
court for its rejection.
4. The High Court is now requested to decide the second
appeal along with the application under Order 41 Rule 27
CPC on merits within a period of three months from the date
of supply of a copy of this order. While deciding the same, the
High Court shall also consider the reasons for rejection of the
application   under   Order   41   Rule   27   CPC   given   by   the
appellate court.
5 (2009) 2 SCC 654
23] In the aforesaid circumstances, this would call for remand to
the   Appeal   Court.   However,   the   suits   in   the   present   case   were
instituted in the year 2002. As discussed hereinafter, the tenants
have   made   out   a   case   to   upset   the   eviction   orders   upon   other
substantive   grounds.   Remand,   in   the   circumstances,   would   only
prolong the life of the litigation. Accordingly, no remand is ordered
upon this ground.  
Delay of more than six months in making the impugned orders
dated 4 July 2013
24] The record reveals that oral arguments before the Trial Court
concluded on 15 January 2013. Thereafter, Roznama reveals that the
matters were adjourned at least on five to six occasions for 'reply'.
The significance of such adjournments or for that matter 'reply' after
conclusion   of   final   arguments   in   the   appeal,   is   by   no   means
discernible. However,  abruptly, on 4 July 2013, the impugned orders
came to be pronounced. There is no record of any reply as such,
being filed by any of the parties on any of the adjourned dates. In
effect, there is delay of over six months in making the impugned
orders,   after   the   conclusion   of   the   arguments.   The   record   also
indicates that all the parties had filed written notes of arguments on
record.
25] The learned counsel for the tenants submitted that the delay
constitutes breach of principles laid down in the Order 20 Rule 1 of
the CPC   and the impugned orders deserve to be set aside on the
grounds of delay alone. On the other hand learned counsel for the
landlords submitted that this was the case where notes of written
arguments had been filed before the Appeal Court and therefore, the
impugned orders are not vitiated on this score. 
26] In the case of  R.C. Sharma Vs. Union of India6
, the Apex
Court made strong observations in the context of delay in delivery of
judgment after conclusion of arguments. In the said case, the Apex
Court observed observed thus:
Nevertheless   an   unreasonable   delay   between   hearing   of
arguments   and   delivery   of   judgment,   unless   explained   by
exceptional   or   extraordinary   circumstances,   is   highly
undesirable even when written arguments are submitted. It is
not unlikely that some points which the litigant considers
important   may   have   escaped   notice.   But,   what   is   more
important is that litigants must have complete confidence in
the results of litigation. This confidence tends to be shaken if
there is excessive delay between hearing of arguments and
delivery of judgments. 
27] In the case of  Anil Rai vs. State of Bihar7
, the Apex Court
again made strong observations and went on to suggest that the
6 1976(3) SCC 574
7 (2001) 7 SCC 318
delay in delivery of judgments after the conclusion of   arguments,
might by itself, constitute a  ground for setting aside such orders and
a remand for re­hearing. The Division Bench of this Court in case of
of Debang R. Vora vs. Union of India8
, in fact set aside the order
made by CEGAT on the ground of delay alone and remanded the
matter for fresh consideration. The Division Bench of this Court in
case of  Pradeep K.R. Sangodker Vs. State of Goa and The District
Consumer   Dispute   Rederssal   Forum9
,  upon   analysis   of   several
rulings on this subject, issued directions to judicial as well as quasi
judicial authorities in the State of Goa to deliver judgments within a
period of three months from the date of conclusion of arguments.
The   contention   that   written   arguments   were   on   record   and
therefore, delay did not matter was rejected in case of R.C. Sharma
(supra) by observing that  it is not unlikely that such points which
the litigant considers important may have escaped notice
28] Applying   the   aforesaid   principles   to   the   facts   and
circumstances of the present case, it shall have to be held that the
delay in pronouncement of the impugned order by the Appeal Court
is indeed inordinate and unexplained. However, as noted earlier, the
8 2004 (2) Mh.L.J. 208
9 Writ Petition No. 281 of 2006 decided on 24.08.2006 : (MANU/MH/1246/2006
learned counsel for the landlords do not seek a remand. There are
other substantial grounds to upset the impugned orders. This is also
not   a   case   where   any   of   the   parties   had   moved   this   Court
complaining about the delay in pronouncement of the impugned
order and applied for withdrawal of the case from the Bench or
sought a fresh hearing. Upon cumulative consideration of all these
circumstances,   it   would   not   be   appropriate   to   set   aside   the
impugned judgments and decrees and remand the matter for fresh
consideration   on   the   ground   of   delay   between   conclusion   of
arguments and pronouncement of judgment.   
Default in payment of rents (Section 15 of the Rent Act)
29] The landlords, in their notice dated 4 February 2002 issued
under Section 15 (2) of the Rent Act, alleged that the tenants have
not bothered to pay any rents to the landlords from the year 1992.
Demand was made of arrears in an amount of Rs.3400/­ from the
tenant Gujar. Similarly, notice dated 31 May 2002 was issued to the
tenant Panhalkar quantifying arrears in an amount of Rs.2312/­.
There are allegations/pleadings in the respective plaints are also to
the same effect. 
30] The tenants' defence, both in their replies to the notices as
well   as   in   written   statement   was   that   rents   in   respect   of   suit
premises were regularly sent to the landlords, inter alia, by means of
money orders. However, the same were refused, which refusal is
evident from the postal records. In such circumstances, the tenants
contended that they have always been ready and willing to pay the
rents and therefore, in terms of Section 15(1) of the Rent Act, there
arises no question of making any decree of eviction on the ground of
non­payment of rent. As a matter of abundant caution, the tenants
even deposited the arrears / rents deposited before the Trial Court.
However, it is common ground that such deposit is well beyond the
period of ninety days from the date of service of summons in the
suit. 
31] The Trial Court, upon appreciation of the material on record,
in the form of both oral as well as documentary evidence recorded
conclusion that there was no default on the part of the tenants in
payment of rents. No decree of eviction was, therefore, made by the
Trial   Court   on   this   ground.   The   reasoning   of   the   Trial   Court   is
contained in paragraph '13' of the judgment and decree dated 4 July
2011 (in case of Vasant Gujar) and the same reads thus: 
13] In   this   regard,   I   have   perused   Section   15   of   the
Maharashtra Rent Control Act. It gives three­fold protection
to  tenant  in  clause  (1),  (2)  and  (3)  respectively. As  per
Section 15(1) of the Maharashtra Rent Control Act, if the
tenant pays or is ready and willing to pay the amount of
standard rent and permitted increases then the landlord is
not entitle to recover the possession of tenanted premises. In
present case, admittedly, the rent of suit property is not paid
to the plaintiffs but, we have to see whether the defendant
was and is ready and willing to pay rent ? In this respect, it
is pertinent to note that, D.W.1 Mahesh had deposed that,
since 9/1/1992 defendant is sending the rent to plaintiff by
money order and plaintiff had refused the same. He has filed
receipts of money order, said are at Exh.257 to 296. I have
perused said money order receipts. On perusal of said receipts
it reveals that, receipts at Exh. 295 and 296 are accepted but
the plaintiff had refused other  money  orders of the rent.
Therefore, in my opinion, if the plaintiff is refusing the rent
and thereafter  coming before the court on the ground of
default then he can not be allowed to do so and to take
benefit of his own wrong. It is clear that, the defendant had
sent the rent by money order but the plaintiff had refused it.
Further, plaintiffs had not proved that, they had made the
demand of rent to the defendant and defendant refused to
pay  the rent. On the contrary, as stated  above, it is the
plaintiff who had refused to accept the rent, therefore, in my
opinion, the act of defendant of sending the rent to plaintiff
by money order clearly shows that, the defendant was ready
and willing to pay the rent of suit property. Further, during
the pendency of suit the defendant had also deposited the
amount of rent in the court which shows that, the defendant
is ready and willing to pay the rent. Therefore, as defendant
is ready and willing to pay the rent, in my opinion, clause
no.2 and 3 of Section 15 of the Maharashtra Rent Control
Act will not be applicable to the present case.”
(emphasis supplied)
32] The   reasoning   of   the   Trial   Court   in   declining   a   decree   of
eviction on the ground of default in payment of rents in case of the
tenant Panhalkar is almost identical to the aforesaid, except that the
reasoning contained in paragraph 25 of the judgment and decree
dated 4 July 2011.
33] The Appeal Court has, however, reversed the Trial Court and
made a decree of eviction on the ground of default in payment of
rents. The reasoning of the Appeal Court, which is contained in
paragraphs 31 to 34 of the impugned judgment and decree dated 4
July 2013 (identical reasoning in the two cases), reads thus  :
31] It is the defence that the defendants had endeavoured
to pay the arrears of rent by Money Order, but it was refused
by the landlords. According to D.W. 2 Ibrahim, the plaintiff
as has refused to accept the amount of Money Order, the
ground under Section 15 of the Act is not open. Exhs.295 and
296 are the receipts of Money Orders, having endorsement of
refusal by the addressee. 
32] The documentary evidence reveals that first time, the
defendant has deposited the amount of rent on 4­10­2004,
then on 24th June 2005. He has time and again deposited the
rent, but one fact is clear that no rent was paid before 7­10­
1992, though the plaintiffs have purchased the suit property
on   9th  January,   1992.     For   around   nine   months,   the
defendant did not pay the rent, much less in time. He filed his
written   statement   on   21­11­2002   by   alleging   that   entire
arrears were paid. The statutory period of 90 days comes to
an end on 9­12­2002. the defendant has been served with
suit summons on 9­9­2002. Thus, it was obligatory on his
part, especially when the plaintiffs are accusing him to be
defaulter, to deposit the entire arrears together with statutory
interest. 
33] It is the defence that the defendant has endeavoured to
pay rent through Demand Draft, but it was also refused. On
this   point,   evidence   of   Vijay   Kadam,   the   Manager   of
Mahabaleshwar Urban Cooperative Bank, is to be viewed.
The said witness does not know, who applied for the Demand
Draft and in favour of whom it was issued. Thus, Exh. 415 is
just a  Challan for  issuance  of Demand  Draft.  No further
details have been dispelled by his evidence. The defendant has
just placed on record photo­copy of said Challan, which is not
admissible. Though assumed that the defendant has deposited
the arrears of rent, it is inclusive of 9% interest. Arrears of 13
years rent comes  to  Rs.7450/­ and  9%  interest  comes to
Rs.4023/­ total Rs.11,473/­ has been deposited vide Exh.34
on 2nd  September, 2004. This is in contravention of Subsection
(3) of Section 15 of the Act. 
34] On going through the impugned Judgment, the learned
trial Court has emphasised the factum of refusal, however,
has failed to consider whether even after service of summons,
the defendant  has  failed  to  deposit  the  arrears.  All  three
clauses of Section 15, are parallel to each other. The plaintiffs
have purchased the suit premises in January, 1992. Since
then, the defendants did not pay the rent to them, at least up
to August, 1992. This material aspect of this matter is not
aptly considered by the trial Court. What is material is the
date of demand and deposit of amount of rent. Even after
service   of   Notice,   dated   4­2­2002,   amount   was  not   paid.
Thus, mere offering the amount does not work. Thus, the
claim of plaintiffs falls under Sub­section (3) of Section 15 of
the   Act   and   the   defendants   are   guilty   of   non­compliance
thereof.
For these reasons, I endorse my finding against Point
No. 4 in the affirmative.”
(emphasis supplied)
34] In   order   to   appreciate   the   reasoning   of   the   Appeal   Court,
reference is necessary to the text of Section 15 of the Rent Act,
which reads thus:
15. No ejectment ordinarily to be made if tenant pays
or   is   ready   and   willing   to   pay   standard   rent   and
permitted increases. ­   (1)   A   landlord   shall   not   be
entitled to the recovery of possession of any premises so long
as the tenant pays, or is ready and willing to pay, the amount
of the, standard rent and permitted increases, if any, and
observes and performs the other, conditions of the tenancy, in
so far as they are consistent with the provisions of this Act.
(2)  No   suit   for   recovery   of   possession   shall   be
instituted by a landlord against the tenant on the ground of
non­payment of the standard rent or permitted increases due,
until the expiration of ninety days next after notice in writing
of the demand of the standard rent or permitted increases has
been served upon the tenant in the manner provided in section
106 of the Transfer of Property Act, 1882 (IV of 1882).
(3)  No   decree   for   eviction   shall   be   passed   by   the
court in any suit for recovery of possession on the ground of
arrears of standard rent and permitted increases if, within a
period of ninety days from the date of service of the summons
of the suit, the tenant pays or tenders in court the standard
rent and permitted increases then due together with simple
interest   on   the   amount   of   arrears   at   fifteen   per   cent   per
annum; and thereafter continues to pay or tenders in court
regularly such standard rent and permitted increases till the
suit is finally decided and also pays cost of the suit as directed
by the court.
(4) Pending the disposal of any suit, the court may, out
of any amount paid or tendered by the tenant, pay to the
landlord   such   amount   towards   the   payment   of   rent   or
permitted increases due to him as the court thinks fit.
35] Section   15(1)   of   the   Rent   Act,   in   terms   provides   that  a
landlord shall not be entitled to eviction of a tenant, so long as the
tenant   pays,   or   is   ready   and   willing   to   pay,   the   amount   of   the
standard   rent   and  permitted   increases,   if   any,  and  observes  and
performs the other conditions of the  tenancy, in so far as they are
consistent with the provisions of this Act. Clause 15(3) of the Rent
Act, however, is a legislative injunction to the Courts from making a
decree of eviction on the ground of default in payment of rent and
permitted increases, if , within a period of ninety days from the date
of service of summons in the suit, the tenant pays or tenders in
Court the standard rent and permitted increases then due together
with simple interest at the prescribed rates and thereafter, continues
to pay or tenders the same till the suit is  finally decided and also
pays cost of the suit as directed by the Court.
36] The Appeal Court has made a decree of eviction by merely
recording that the applicants failed to comply with the provisions of
Section 15(3), in as much as arrears of rent, permitted increases
together with interest, were not deposited in the Court within ninety
days from the date of service of summons in the suit. There is no
consideration whatsoever of the tenants' plea that the tenants had
paid   or   in   any   case   were   ready   and   willing   to   pay   rents   and
permitted increases to the landlords, but it was the landlords who
had refused to accept the same. 
37] From the scheme of Section 15 of the Rent Act, it is clear that
benefit under Section 15(3) of the Rent Act can be availed of by a
tenant, even if such tenant is admittedly, in default. From the tenor
of Section 15(3) of the Rent Act, it does appear that no Court can
make a decree of eviction on the grounds of default, where such
tenant   deposits   within   ninety   days,   arrears   of   rent,   permitted
increases and complies with other prescribed requirements. This,
however,  does  not  mean   and  imply  that  resort  to  benefit  under
Section 15(3) of the Rent Act is only mode available to a tenant to
avoid a decree of eviction on the ground of default. The tenant, can
always establish that he has paid or was always ready and willing to
pay the rent and the permitted increases to the landlord and on such
basis avoid a decree of eviction. In fact, Section 15(1) of the Rent
Act, in terms provides that a landlord shall not be entitled to a
decree of eviction so long as the tenant pays or is ready and willing
to pay the standard rent, permitted increases and observes other
terms and conditions of the tenancy, so far as they may consistent
with the provisions of the Rent Act. 
38] The reasoning of the Appeal Court, in fact, constitutes an error
of law apparent on face of record. The Appeal Court does not appear
to have reversed the findings of the fact in the context of payment or
dispatch of money orders by the tenants and their refusal by the
landlords. The Appeal Court, however, makes decree of eviction on
the   ground   of   non­compliance   with   the   provisions   contained   in
Section 15(3) of the Rent Act. There is no consideration whatsoever
to the pleas of the tenants that rents were indeed tendered regularly
and punctually to the landlords, by means of money orders and the
same were refused by the landlords. The Appeal Court has held that
'all three clauses of Section 15 are parallel to each other'.  This is an
error of law apparent on face of record. Even where, there is no
compliance with the provisions contained in Section 15(3) of the
Rent Act, it is always open to a tenant to establish the factum of
payment or the factum of readiness and willingness of payment of
rent.   If   such   factum   is   indeed   established,   the   landlords   cannot
secure a decree of eviction on the ground of default in payment of
rents. This proposition which emerges upon the plain reading of the
provisions in Section 15 of the Rent Act, as also from the authorities
on the subject, has been ignored by the Appeal Court. The finding on
this aspect is therefore, vitiated by error of law apparent on face of
record.  
39] In   case   of  Suka   Ishram   Chaudhari   vs.   Jamnabai   R.
Gujarathi & ors.10, the tenant had sent the rent amount to the
landlord through money order, but the landlord refused to accept
the same. Upon receipt of statutory notice under Section 12(2) of
the Bombay Rents, Hotel and Lodging Houses Rates Control, 1947
Act (1947 Act), the tenant failed to avail the benefit under Section
12(3)(a) of the 1947 Act and pay arrears and permitted increased
within one month from the date of receipt of notice. Accordingly, the
issue arose as to whether a decree of eviction could be made as there
was no compliance with the conditions prescribed under Section
12(3)(a) of the 1947 Act. The learned Single Judge of this Court
(R.R. Bhole, J.) held that no decree of eviction would be made as
long   as   the   tenant   was   ready   and   willing   to   pay   the   rent.   The
relevant observations are contained in paragraphs 5, 6 and 7, which
reads thus:
5. Section 12 of the Rent Act provides for ejectment of the
tenant by the landlord. It is divided into four clauses. The first
clause prohibits a landlord from recovering possession of any
premises so long as tenant pays and is ready and willing to
pay the amount of the standard rent and permitted increases,
if any, and observes and performs the other conditions of the
tenancy in so far as they are consistent with the provisions of
the  Rent Act. Therefore, as long as the tenant is ready and
willing to pay and as long as he observes the conditions of
tenancy, landlord cannot recover possession of the premises.
The second clause directs the landlord to give a notice before a
10 AIR 1972 Bom 273
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suit on the ground of non­payment of rent is filed. A landlord
under this clause cannot file a suit until expiration of one
month next after the notice of the demand of standard rent.
The third clause deals with two kinds of arrears, Sub­clause
(a) deals with a tenant who is in arrears for a period of six
months or more; sub­clause (b) deals with a tenant, who is in
arrears for less than six months and sub­clause (c) provides
that if a tenant raises a dispute regarding the amount  of
standard rent or permitted increases he is allowed to raise that
dispute; and if the tenant makes the payment of which he is
arrears within one month of the notice, then the landlord
cannot recover possession of the premises. But if he does not
raise any dispute and if he neglects to pay until expiration of
the period of one month after the notice then the Court has no
other alternative but to pass a decree for eviction. So far as
sub­clause (b) is concerned the tenant is asked to pay the
arrears on the first date of the hearing of the suit or before
such other date as the Court may fix and if he continues to pay
rent regularly in Court, then no decree can be passed against
him but if after notice and after filing of the suit he neither
pays the arrears on the first date of the hearing of the suit nor
before such other date as the Court may fix, then a decree for
eviction shall have to be passed. We are not concerned with the
fourth   clause   because   that   clause   merely   deals   with
disbursement of the amount paid by the tenant in Court.
6. Now, therefore, under  Section 12  of the Rent Act this
Court has to see whether the tenant was ready and willing to
pay   rent;   whether   the   landlord   had   given   him   necessary
notice; whether  in this case, which  is governed by  Section
12(3)(a), the tenant is in arrears of rent for a period of six
months or more and whether the tenant has neglected to make
payment of the same. We have seen that the respondent had
been refusing to accept rent sent to him by money orders. The
arrears of rent according to the notice given by the landlord is
for a period from 1­11­64 to 1­5­65. The question, in view of
the fact that the tenant had sent rent by money orders and is
whether the tenant was still in arrears of rent. If the landlord
had accepted rent, the tenant would certainly not have been in
arrears and there could not have been any cause of action for
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the notice to be served by the landlord on the tenant. Because
the landlord had been refusing to accept rent for the period for
which he was said to be in arrears the cause of action arose. In
my view the landlord cannot take advantage of his conduct in
not accepting rent sent by the tenant and then give a notice
saying that the tenant is in arrears of rent for more than six
    months. The intention of the legislature when enacting      Rent
    Act   could not have been to protect the landlord who refuses to
accept rent and after six months turns round to say that the
tenant is in arrears of rent for a period of six months or more.
In   my   view,   therefore   the   facts   and   circumstances   of   the
instant case show that the petitioner ­ tenant was ready and
willing to pay rent. The facts also show that the tenant was
not in arrears of rent voluntarily. It is because of the conduct
of the landlord that he fell in arrears at all. If that is so, then,
in my view, the view of the learned Assistant Judge in inferring
    that the petitioner can be evicted under      Section 12(3)(a)    of
the Rent Act is erroneous. On the other hand the inference and
the legal effect of these proved facts is that the tenant cannot
be evicted because he was neither in arrears of rent nor can be
said to be not ready and willing to pay rent. 
7.  I am supported in this view of mine by a judgment of
Chandachud J. while deciding Civil Revision Application No.
1450 of 1961 on 16th April 1964. He had before him facts
similar to the facts of the instant case and he has taken the
same view as I am now taking. 
(emphasis supplied)
40] In   case   of  Abdul   Gani   Dinali   Mom.   V.   Mohamed   Yusuf
Mohamed   Isak11
,  another   learned   Single   Judge   of   this   Court
(Jahagirdar J.), disagreed with the view of Bhole, J. in Suka Ishram
Chaudhari (supra). Therefore, a reference was made to the Division
Bench in case of Sitram Maruti Nagpure vs. Fakirchand P. Dhase12
.
11 80 BLR 646
12 2008(1) Mh.LJ. 610
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The Division Bench held that the view taken by Bhole, J. in case of
Suka Ishram Chaudhari (supra), is correct and the view taken by
the Jahagirdar, J., in case of Abdul Gani (supra) is overruled. The
relevant observations are contained in paragraphs 14, 15 and 16,
which read thus:
14. After having heard the learned Counsel for both sides in
the above and after perusal of all the aforesaid judgments, it is
very clear that  Section 12  makes it abundantly clear that if
tenant   pays   or   ready   or   willing   to   pay   standard   rent   or
permitted increases, then no ejectment will be made. To put it
in   other   words,   the   landlord   will   be   entitled   to   recover
possession of the premises only if the tenant fails to pay the
standard rent and permitted increases. In fact the said Section
12 clearly contemplates in a negative manner that no suit for
recovery   of   possession   shall   be   instituted   by   the   landlord
unless the landlord satisfies that the tenant was not ready and
willing to tender and had not paid the standard rent and
permitted increases for over a period of six months and in the
event,   the   tenant   was   not   ready   and   willing   to   tender
standard rent and permitted increases, and that he has been
in arrears of over a period of six months, then the landlord
has to issue notice terminating the tenancy and demand the
standard rent and permitted increases within a month after
service of the notice. Even Section 12(3)(a) makes it clear that
where the rent is payable by the month and there is no dispute
regarding the amount of standard rent or permitted increases,
if such rent or increases are in arrears for a period of six
months or more and the tenant neglects to make payment
thereof until the expiration of period of one month after the
notice as referred in Sub­section (2), the Court may pass a
decree for eviction in any such suit for recovery of possession.
By way of explanation, in the said section, it is provided that
in   any   case   where   there   is   dispute   as   to   the   amount   of
standard rent or permitted increases recoverable under this
Act the tenant shall be deemed to be ready and willing to pay
such amount if, before the expiry of the period of one month
after   notice   referred   to   in   Sub­section   (2),   he   makes   an

application to the Court under Sub­section (3) of Section 11
and   thereafter   pays   or   tenders   the   amount   of   rent   or
permitted increases specified in the order made by the Court.
To put it in other words, the explanation is with regard to the
procedure, when there is a dispute with regard to the standard
rent. Where there is no dispute with regard to the standard
rent, the tenant has to show that he was always ready and
willing to tender rent and he must not be in arrears for more
than six months and in the event, the tenant was in arrears
for more than six months, the landlord has the right to serve
notice   of   termination   and   demand   rent   and   permitted
increases, and if the tenant does not pay the same within one
month, in such a case, the landlord will be entitled for a
decree of eviction.
15. In view of the clear explanation of  Section 12, if the
tenant raises a dispute with regard to the standard rent and
permitted increases, he has to approach the Court within a
period of one month from the notice of termination and make
deposit within a period of one month in the Court. On the
contrary, if there is no dispute, the tenant must show his
readiness and willingness to pay rent and permitted increases
and must keep regularly tendering the same, even by money
order and no landlord can take advantage, neither by refusing
to accept the same nor say that the tenant had not paid the
rent or tendered the rent.  This fact has been rightly pointed
    out by the Hon'ble Supreme Court in the case of     Priya Ghosh
and Ors. v. Bajranglal Singhania and Anr    . and it is held that
the landlord will be easily able to trap the tenant by refusing
to accept and turn round and to file a suit against the tenant.
That is why, the Hon'ble Supreme Court has clearly observed
that the law has to be construed in a fair manner and it is not
intended   to   trap   the   tenant   into   a   situation   so   that   the
landlord can evict the tenant.
16.  Under the aforesaid facts and circumstances of the case,
we are clearly of the view that the view taken by Bhole, J. is
correct and the view taken by Jahagirdar, J. is over­ruled and
the same does not lay down the correct law. 
(emphasis supplied)

41] The   reasoning   of   the   Appeal   Court   in   the   present   case   is
directly contrary to the law laid down by Bhole, J., in case of Suka
Ishram Chaudhari (supra), which is held as the correct view by the
Division Bench in case of Sitaram Nagpure (supra).
42] The learned counsel for the respondents, however, submitted
that there is no material on record in support of the applicants' plea
that rents were regularly and punctually sent to the landlord by
money order and that the same were refused by the landlord. In this
regard,   Mr.   Anturkar,   learned   senior   counsel   appearing   for   the
respondent­landlords in Civil Revision Application No. 167 of 2014,
on the basis of the documents evidencing money orders attempted to
demonstrate   that   there   were   certain   unexplained   gaps   in   the
despatch of money orders. Mr. Anturkar and Mr. Shah also submitted
that since the plea of refusal of money orders was denied by the
respondent­landlords, the applicants had to examine the postman in
order to establish refusal. In absence of the evidence of postman,
failure to accept the rents cannot be said to be proved and therefore,
the Appeal Court justify in making the decree on the ground of
default in payment of making rents.

43] It is not possible to accept the aforesaid contentions of the
learned counsel for the respondent­landlords. The Trial Court on the
basis of material on record, has recorded findings of fact that rents
were   regularly   and   punctually   sent   by   the   applicants   to   the
respondent­landlords through money orders and that the same were
refused by the respondent­landlords. In record of such finding, the
Trial Court has adverted to the material on record in the form of
money order despatches, the endorsement made thereon as well as
the payment made thereby. The payments, relate not to some limited
period but to over a substantial length of time, i.e. from January
1992 to February/May 2002. There is material on record, which
establishes   that   the   rents   were   paid   and   in   any   case,   over
considerable period of time, were being accepted on yearly basis.
The Trial Court has also given due credence to the oral testimony,
inter alia,  the deposition and cross­examination of the respondentlandlords.
On basis of all such materials, the findings of fact as to
absence of any default on the part of the applicants came to be
recorded by the Trial Court. There is absolute no perversity in the
record of such findings. The Appeal Court has in fact, not even
disturbed such findings. The Appeal Court, has merely criticized the
Trial Court for having 'emphasized the factum of refusal'  but failed to

consider whether even after the service of summons the applicants
had failed to deposit arrears. Thus, the decree made by the Appeal
Court, is not on the basis of any default on the part of the applicants
in making payment of rents, but rather the decree is made on the
ground of failure on the part of the applicants to deposit the arrears
of rent within ninety days from the receipt of summons in the suit.
The Appeal Court in terms states that the decree is made, because
the claim of respondents (plaintiffs) fall under sub­section (3) of
Section 15 of the Rent Act and 'the defendants are guilty of non
compliance thereof'. As noticed earlier, such reasoning is contrary to
scheme of Section 15 of the Rent Act, as also the decisions in case of
Suka Ishram Chaudhari (supra) and Sitaram Nagpure (supra).
44]  The decision in case of Suka Ishram Chaudhari (supra)  was
followed by the another learned Single Judge of this Court in case of
Madhukar Vaidya vs. Narayan H. Surve13
. In the said case, it was
observed thus:­
7. …....... It would be relevant to point out that this
Court in Suka Ishram's, case was fully conscious of the said
legal   position   which   is   reiterated   by   the   Apex   Court   in
Harbanslal's case. This Court in Suka Ishram's case at page
222 has referred to the broad principles that would cover the
cases   under   Section   12(3)(a)   of   the   Bombay   Rent   Act,
nevertheless, in the facts of that case, which in my view are
13 2000 (102(3)) BOMLR 276

similar to the one in the present case, proceeded to hold that
the tenant cannot be evicted under Section 12(3)(a) of the
Bombay Rent Act. As aforesaid, it cannot be said that the
respondent­tenant was a wilful defaulter prior to the issuance
of the suit notice or had failed and neglected to pay the rent
regularly. On the other hand, what appears from the record is
that the petitioner­landlord obviously wanted to create an
evidence against the respondent­tenant to maintain the suit
for eviction on the ground of arrears of rent and therefore
refused to accept the money orders (Exhibits 36, 37 and 38)
sent   by   the   respondent.   The   Courts   below   have   therefore
rightly   held   that   the   petitioner­landlord   had   an   oblique
motive in refusing to accept the money orders sent just before
the   issuance   of   the   suit   notice   and   if   the   petitioner   had
accepted the said money orders, in which case, there would
have been no cause of action for the petitioner to issue the
suit notice or to institute the suit on the ground of default.
The Courts below have consistently held that the respondent
has not neglected to pay the rent, which was the prerequisite
for applying Section 12(3)(a) of the Bombay Rent Act. I am
in full agreement with the concurrent finding of fact as well
as the conclusions reached by the Courts below.
45] Similarly, in case of  Kamlabai B. Kabade vs. Laxmibai J.
Jagtap and ors.14, this Court has held that refusal of rent sent by
money   order   constitutes   deemed   acceptance   of   rent.   In   such   a
situation, there would be no cause of action either to issue notice or
to institute a suit on the ground of default. 
46]  The failure to examine postman, in facts and circumstances of
the   present,   is   by   no   means   sufficient   to   upset   the   concurrent
findings that rents were indeed sent by money order and refused by
14 2001(2) MH.L.J. 905

the   respondent­landlords.   There   are   records   of   money   order
dispatches over considerable period. The amounts dispatched and
the endorsement thereon are substantially clear. The deposition on
behalf   of   the   applicants   as   well   as   respondent­landlords,   does
substantially   establish   that   consequent   upon   purchase   of   suit
premises by the respondent­landlords some time in the year 1992,
rents   have   been   dispatched   by   the   applicants   by   way   of   money
orders and same have been refused by the respondent­landlords. In
such   circumstances,   there   is   no   question   of   ignoring   all   such
materials and relying upon a singular and bald assertion on the part
of   the   respondent­landlords   that   the   rents   dispatched   by   money
orders were never refused by them. Any conclusion that rents were
not   refused,   in   the   facts   and  circumstances  of  the   present  case,
would be contrary to the weight of evidence on record. The Appeal
Court,   therefore,   has   exceeded   its   jurisdiction   or   in   any   case,
committed an error of law apparent on face of record.  
Reasonable and Bona fide Requirement (Section 16(1)(g) of the 
Rent Act)
47] In the notice preceding the institution of suits for eviction,
inter alia, on the ground that the suit premises are required by the
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respondent­landlord   reasonably   and  bona   fide  for   occupation   by
himself or by any person for whose benefit the premises are held,
the Applicants have set out the case that Baitulla Shaikh (plaintiff
No.1) has two sons Irfan B. Shaikh and Haroon B. Shaikh. That both
are   aged   23   and   24   years   respectively   and   are   degree   holders.
Similarly, Shri. C.K. Aris, Hamid (plaintiff No.2), apart from the suit
premises, has no other premises in Mahabaleshwar. Therefore, it was
stated that the respondent­landlords proposed to demolish the suit
premises and in their place construct a   building for residence as
well as hotel business. The necessary plan in this regard has also
been approved by the Municipal Authorities and in the open space
appurtenant, pits have been dug and construction work commenced.
The allegations in the plaint, are also to this identical effect.
48] Section   16(1)(g)   of   the   Rent   Act   entitles   the   landlord   to
recover   possession   of   the   tenanted   premises,   if   the   same   are
reasonably and bona fide required by the landlord for occupation by
himself or by any person for whose benefit the premises are held.
Section 16(1)(i) further provides that where premises are reasonably
and bona fide required by the landlord for the immediate purpose of
demolishing them and such demolition is to be made for the purpose
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of erecting new building on the premises sought to be demolished,
then subject to certain conditions set out in sub­sections (4),(5),(6)
and (7) of Section 16 of the Rent Act, the Court may make a decree
of eviction.
49] In the context of decree of eviction under Section 16(1)(i),
sub­section (4) of Section 16 of the Rent Act provides that a Court
may pass the decree only in respect of a part of the premises which
in its opinion is necessary to vacate for carrying out the work of
erection of new building. Sub­section (5) of Section 16 of the Rent
Act renders unlawful, assignment of any decree of eviction obtained
on the grounds specified in Section 16(1)(i) of the Rent Act. Sub
section (6) of the Section 16 provides that no decree of eviction on
grounds specified in Section 16(1)(i) of the Rent Act shall be made,
unless the Court is satisfied that necessary funds for purpose of the
erection of new building are available with the landlord, the plans
and estimates of the new building have been properly prepared, that
the new building contained residential tenements not less than the
number of existing tenements which are sought to be demolished,
the landlord has given the necessary undertakings prescribed under
clause (d) of sub­clause (6) of Section 16 of the  Rent Act. The
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undertaking makes reference to the amendment and time schedule
in which the erection of new building will commence and conclude.
Sub­section   (7)   of   Section   16   of   the   said   provides   that   where
possession of premises is recovered under Section 16(1)(i) of the
Rent Act and the premises are transferred by the landlord, or by
operation   of   law   before   the   tenant   or   tenants   are   placed   in
occupation, then such transfer shall be subject to the rights and
interests of such tenants. 
50] Mr.  Talkute  relying upon  the  statements in  notice  dated 4
February 2002, the plaint as also the deposition of the landlords
submitted that the respondent­landlords intended to seek eviction
under Section 16(1)(i) and not Section 16(1)(g) of the Rent Act. If
this be so, Mr Talkute submitted that the conditions prescribed in
sub­sections (4) to (7) of Section 16 of the Rent Act had to be
complied with.   In absence of any such compliance, no decree of
eviction would ever been made against the applicants. 
51]  In fact, Mr. Anturkar, learned senior counsel appearing for the
respondent­landlords in Civil Revision Application No. 167 of 2014
fairly   conceded   to   the   aforesaid   position,   in   the   light   of   the
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averments in the legal notice, plaint and the deposition. However,
Mr. Shah, who appears for the same respondent­landlords in Civil
Revision   Application   No.   770   of   2013,   submitted   that
notwithstanding the statements/averments in the notice, plaint and
deposition,   a   decree   of   eviction   was   perfectly   competent   under
Section 16(1)(g) of the Rent Act. In this regard, Mr. Shah placed
reliance upon the decision of the Apex Court in case of Ramniklal P.
Mehta   (supra)  and  Sharadchandra   Chitnis   (supra),  which
according to him, have taken the view that where the possession of
the tenanted premises is required reasonably and bona fide for the
personal occupation of the landlord or members of the landlord's
family, eviction decree can be made despite the proposal being for
demolition of the suit premises and the erection of a new building
thereon.
52] The aforesaid issue does not call for any decision in the facts
and   circumstances   of   the   present   case.   This   is   because,   the
respondent­landlords, in the present case, have not made out any
case for decree of eviction on the ground that the suit premises are
reasonably and bona fide required by them or any persons for whose
benefit the premises are held by them.
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53]   In notice as well as suit seeking eviction upon the grounds
contemplated by Section 16(1) (g) of the Rent Act, the respondentlandlords
have averred that the suit premises are required for the
purposes of residence as well as hotel business of the two sons Irfan
B. Shaikh and Haroon B. Shaikh as well as as Shri. C.K. Aris Hamid
(plaintiff   No.2).   The   pleadings,   are   by   no   means   clear   and
categorical. However, in such matters, the pleadings, particularly in
the context of reasonable and bona fide requirement are requiring to
be liberally considered, as such the contentions of Mr. Talkute and
Mr.Warunjikar that the landlords' plea be rejected on grounds of
vagueness in the pleadings, cannot be accepted.
54] However,   the   respondent­landlords,   have   not   at   all   been
candid with the Court insofar as the pleadings are concerned. In the
course   of   evidence,   it   has   come   on   record   that   the   respondentlandlords
have, besides the suit premises several other premises,
which are being used by them for purposes of commerce as well as
residence. Some of the premises, may have been acquired post the
institution of the suit including in particular, the premises acquired
by one of the sons of Baitullah Shaikh. Nevertheless, there were no
disclosures volunteered in the course of examination­in­chief. Even
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if, the premises subsequently acquired are left out of consideration,
there   was   a   duty   upon   the   respondent­landlords   to   fully   and
candidly make disclosure about the premises in their occupation,
both   for   the   purposes   of   residence   as   well   as   commerce   and
thereafter to explain, howsoever briefly, the subsistence of the need
in   respect   of   suit   premises.   The   respondent­landlords   have
completely failed in this aspect. Such non­disclosure is a relevant
consideration in the context of determining both the reasonability as
well as bona fides.
55]  The tenants have managed to bring on record the material in
the context of occupation and control of several premises by the
respondent­landlords.  Looking  to  the  conduct   of   the  respondentlandlords,
there is no certainty as to whether the premises in respect
of which the tenants have obtained and produced documents, are
only   premises   which   are   in   the   occupation   of   control   of   the
respondent­landlords   or   whether   there   are   some   others   as   well.
However, even on basis of the existing material on record, there was
no question of making any decree under Section 16(1) (g) of the
Rent Act.
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56]   There is record that the property in C.T.S. No. 137, 137/1,
137/2 and 137/3 at Dr. Sabane Road, Mahabaleshwar, Satara is in
the occupation of the respondent­landlords. Upon the said property,
the   respondent­landlords,   operate   'Hotel   Blue   Star'.   Incidentally,
Dr.Sabane Road, Mahabaleshwar, is the very road upon which the
suit premises are situated. In the plaint, there was no reference in
respect of this property. There are documents which establish that
this property is in the occupation of the respondent­landlords. There
are   admissions   in   this   regard   as   well.   Mr.   Shah   contended   that
failure to disclose is not fatal, if it is established that a decree for
eviction can be sustained even if disclosure were to be made. That is
not a situation in the present case. Apart from this property, there
are   several   other   properties   in   the   occupation   or   control   of   the
respondent­landlords. The landlords have hotel business under the
name and style of 'Hotel Blue Star'. There are other businesses like
STD Booth, sale of handicrafts, Lucky Restaurant carried out by the
landlords   at   Mahabaleshwar   itself.   There   was   no   disclosures   in
regard to the premises and the businesses. Such disclosures were
necessary, if the requirement of the suit premises is to be regarded as
reasonable and bona fide.  
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57] There is again, the property at School Mohalla in CTS No.
252,   Mahabaleshwar,   Satara.   The   ownership   of   this   property   by
Shaikh Baitulla is not really in dispute. There is material in the form
of documents as well as admissions. The belated explanation is that
the property is ancestral property belonging to the joint family. This
by itself, is no excuse for non­disclosure. There is again reference to
the property at CTS No. 399 near Nagarpalika Society. This property
as also Municipal House No. 11 CTS No. 558 comprising six rooms
with Toilet bathroom have nexus with the two sons of Mr. Baitulla
Shaikh. The belated explanations that one of the properties is in the
name of Irfan's wife or that one of the properties has already been
rented   out,   again,   afford   no   excuse   for   non­disclosure.   The
respondent­landlords i.e., Baitulla Shaikh himself resides at 23/B,
Nagarpalika Society since last several years, though the explanation
is that the said property belongs to his mother­in­law. There is also
reference   to   a   flat   in   Pune,   which,   however,   in   the   facts   and
circumstances of the present case, is really irrelevant. Nevertheless,
from the material on record, it is apparent that the landlords have in
their occupation several properties and carry on several businesses
and these facts were suppressed by the landlords in their plaints
seeking   eviction   on   the   ground   of   reasonable   and  bona   fide
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requirement. The belated explanation that some of the properties are
taken on rent or rented, that some of the properties are not in the
names of the landlords or that some of the properties are joint family
properties, hardly inspire any confidence. In any case, the reasons,
do not apply to all the properties in regard to which, the material
has been produced on record by the applicants. It was the duty of
the   landlords   to   have   made   disclosure   in   their   pleadings   and
thereafter, offered explanation, howsoever brief, as to how despite
the occupation of all such properties, need in respect of the suit
premises   subsists   and   is   further  bona   fide  and   reasonable.   Such
pleading or disclosure, would have enabled the applicants to meet
the case set out by the landlords. In absence of such disclosures on
vital and relevant matters, no decree of eviction under Section 16(1)
(g) of the Rent Act is sustainable.
58]   In case of  Tarachand Hassaram Shamdasani (supra),  the
learned Single Judge of this Court has held that it is obligatory for
the landlord to disclose in the pleadings and in his evidence that the
fact   that   he   owns   other   premises   which   were   capable   of   being
utilized for the requirement pressed into service in the suit filed
against the tenant and to further disclose and explain that in spite of
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those  acquisitions, ownership  of other premises, the  requirement
which is pressed into service against the tenant would still survive. It
is only then the landlord would be entitled to invoke the ground of
reasonable   and  bona   fide  requirement   and   would   succeed   in
establishing that the need is indeed bona fide and reasonable. In the
said   case   also,   there   were   no   disclosures   and   the   material   with
regard to ownership of other premises came on record only during
the   course   of   cross­examination.   This   was   possible   because   the
tenants through their efforts managed to obtain information. This
Court, upset the concurrent findings as to bona fide and reasonable
requirement,   where   the   landlord   has   suppressed   such   material
particulars. The relevant observations are contained in paragraphs,
7,8 and 9, extract of which reads thus:
7. …................That building can be used for residence.
These facts were indeed  relevant  for  deciding   the issue of
bonafide   and   reasonableness   of   the   requirement   of   the
Plaintiff, but were not disclosed either in the pleadings or
atleast in the examination­in­chief when the Plaintiff entered
the witness box. However, were elicited only during the cross
examination  conducted  by  the  Defendant­tenant.  This was
possible   only   because   all   these   details   were   within   the
knowledge   of   the   Defendant­tenant.   In   spite   of   such
overwhelming   evidence   on   record,   the   Courts   below   have
proceeded to answer the issue of bonafide and reasonable
requirement   in   favour   of   the   Respondent   landlord.   That
cannot be countenanced, to say the least.
8.     To my mind, however, it is obligatory for the landlord
to disclose in the pleadings and in his evidence the fact that
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he owns other premises which were capable of being utilized
for   the   requirement   pressed   into   service   in   the   suit   filed
against the tenant and to further disclose and explain that
inspite of those acquisitions and ownership of other premises,
the   requirement   which   is   pressed   into   service   against   the
tenant would still survive. It is only then the landlord would
be   entitled   to   invoke   this   ground   and   would   succeed   in
establishing his need to be bonafide and reasonable.
9.  I have no hesitation in taking the view that in the fact
situation of the present case the Plaintiffs has failed to plead
and also depose in his evidence (examination­in­chief) about
the ownership of other premises capable of being used for the
requirement pressed into service in the subject suit. Besides,
he has  failed  to  disclose   and  explain  that  even  the  other
premises were not sufficient to satisfy the requirement pressed
into service in the suit against the tenant. Only when the
landlord pleads and proves all these material facts that the
Court   would   be   able   to   adjudicate   fully,   completely   and
effectually as to whether the requirement pressed into service
by the landlord in the suit so filed is bonafide and reasonable.
As mentioned earlier, it is well settled that the landlord is not
only required to establish his need to be bonafide but also to
be reasonable. If the landlord fails to plead or establish either
of this ingredient then the ground under Section 13(1)(g) of
the Act for eviction is unavailable to the landlord. Inherent in
this test is that if the landlord has failed to disclose relevant
materials in the pleading and in his evidence (examinationin­chief),
dejure, the landlord has not approached the court
with clean hands. In such a case, it will be the duty of the
court to non­suit the landlord with regard to this ground. It
will be useful to place reliance on the enunciation of the Apex
court in the case of S.P. Chengalvaraya Naidu's case (supra).
The   Apex   Court   has   observed   that   duty   is   cast   upon   the
Plaintiff to disclose all the facts, it is the duty of the Plaintiff
to come to Court with true case and prove it by true evidence.
The Apex Court has further observed that deliberate deception
with   the   desire   of   securing   something   by   taking   unfair
advantage of another, it is a deception in order to gain by
another's loss, it is a cheating intended to get an advantage.
Further, in Paragraph 6 it has observed that, non disclosure
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of all the material and relevant facts at the trial tantamount
to playing fraud on the Court. A litigant, who approaches the
Court, is bound to produce all the documents executed by him
which are relevant to the litigation. Withholding of any vital
document   in   this   case   information,   in   order   to   gain
advantage on the other side then he would be guilty of fraud
on the Court as well as on the opposite party. Such a person
can be summarily thrown out at any stage of the litigation. If
this principle is to be applied to the facts of the present case, I
have no manner of doubt that the Respondent­Landlord will
have to be non suited on this ground. Because, it is a case of
non disclosure of material facts and information, therefore,
one of approaching the Court with unclean hands. And as
observed by the Apex Court tantamount to playing fraud on
the court as well as the opposite side. In this case sheerly
because   the   Petitioner   tenant   was   vigilant   enough,   could
muster the necessary information to confront the Respondent
landlord   regarding   his   need   being   not   bonafide   and
reasonable.
(emphasis supplied)
59] In   case   of  Narendra   Gulabrao   Zade   vs.   Shiocharan
Ghashiram   Gupta   since   deceased   through   Lrs.   Smt.   Radhabai
Shivcharan   Gupta   &   anr.15
,  in   the   context   of   the   necessity   of
disclosure   by   the   landlord,   this   Court   has   made   following
observations:
9. The application as filed by the petitioner before the
Rent Controller does not contain a reference to other house
belonging to him and situated at Rajapeth i.e. within the
Municipal limits. The law requires the petitioner to prove his
bonafide need and for that to approach the Court of law with
clean hands. The petitioner could have explained inadequacy
or other lacunae in Rajapeth accommodation to justify his
preference of ground floor in occupation of the tenant. Had
there been such a case and pleading, the respondent – tenant
15 2011 (1) Mh.L.J. 839
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would have then got an opportunity of cross examination and
then bonafides or otherwise of the need of the landlord could
    have been         judicially   appreciated.   Unfortunately,   such   a
course of action is not possible here. The respondent – tenant
has through cross examination of the petitioner placed on
record only the suppression of availability of other house at
Rajapeth with further fact that proceedings for eviction of
Mohan Singh Thakur therefrom were actually initiated and
later on compromised when Mohan Singh Thakur agreed to
increase the rent. Thus, this material brought on record by the
tenant is sufficient to substantiate that there is no bonafide
need   of   the   landlord.   Subsequent   utilization   of   premises
vacated   by   Shri   Mohan   Singh   Thakur   for   establishing   a
business again raises several questions and as this fact is not
on record, the same cannot be considered here.
10.  The reliance upon the judgment delivered by me and
reported   in   the   case   of  Murlimanohar   vs.   Prabha
Bhattacharya,   (supra)   in   this   situation   is   misconceived.
There,   the  landlady   and   her  sisters  qualified   gynecologists
were seeking eviction of tenant to start maternity home and
hospital. The  tenant  was urging  that they  can  have their
complex   and   in   that   complex,   the   tenant   also   can   be
accommodated. The evidence which has come on record there
has been appreciated and such insistence on the part of the
tenant was found to be unjustified. This Court has found that
in such situation, the landlord is the best judge of his need.
The judgment, therefore, has no application in present facts.
The landlord can claim to be a best judge of his need after he
fairly discloses all options available to him and shows some
reason for choosing particular option i.e. premises. It is this
election,   effected   by   him   after   full   knowledge   and
appreciation,     which   cannot   be   interfered   with   judicially.
Here, the premises at Rajapeth were suppressed and hence it
cannot be said that the landlord has judged his need bonafide
in   accordance   with   law.  In  this   situation,   I   find   that   the
petitioner   –   landlord   can   initiate   fresh   proceedings   in
accordance with law. 
(emphasis supplied)
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 60] The   two   Courts   have   returned   findings   on   the   aspect   of
reasonable   and  bona   fide  requirement   in   quite   of   perfunctory
manner.   The   two   Courts,   have   permitted   themselves   to   be
particularly   influenced   by   the   circumstances   that   the   landlord
Baitulla Shaikh resides in the house, which is owned by his motherin­law.
Although, the same might have been a relevant factor, it is to
be noted that the need pleaded by Baitulla Shaikh for purposes of
residence, was not his own, but rather the need pleaded was that of
his two sons. In fact, the pleadings with regard to need for residence
are sketchy. Though, it is held that the pleadings in the matter of
reasonable   and  bona   fide  requirement   have   to   be   considered
liberally, there are really, in this case, no pleadings worth the name
in the context of personal residential requirement of Baitulla Shaikh.
Therefore, the Courts were clearly in error in laying undue emphasis
upon the circumstances that the house in which the Baitulla Shaikh
resides for number of years is in the name of his mother­in­law.
There was no case pleaded by Baitulla Shaikh that he is put to any
inconvenience   on   this   ground.   In   fact,   Baitulla   Shaikh   chose   to
suppress any details about the factum of his residence. 
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61]   The two Courts have further held that the landlord, is the
final arbiter in the matter of his need and it is neither for the Courts,
much less the tenant to dictate any terms. There can be no quarrel
with the proposition per se. However, the intention of the legislature
is surely not to vest in a landlord some sort of unfettered discretion
in the matter. The Apex Court, in the case of  M.M. Quasim Vs.
Manohar Lal Sharma16
, at paragraph 19, has observed thus: 
19. ….........This   approach   betrays   a   woeful   lack   of
consciousness relatable to circumstances leading to enactment
of  Rent Acts in almost all States in the country. The time
honoured notion that the right of re­entry is unfettered and
that the owner landlord is the sole judge of his requirement
has been made to yield to the needs of the society which had
to enact the Rent Acts  specifically devised to curb and fetter
the   unrestricted   right   of   re­entry   and   to   pro   comparative
hardship vide that only on proving some enabling grounds set
out   in   the  Rent   Act   the   landlord   can   re­enter.   One   such
ground   is   of   personal   requirement   of   landlord.   When
examining a case of personal requirement, if it is pointed out
that there is some vacant premises with the landlord which he
can   conveniently   occupy,   the   element   of   need   in   his
requirement would be absent. To reject this aspect by saying
that   the   landlord   has   an   unfettered   right   to   choose   the
    premises is to negative the very raison de'etre of the     Rent Act.
Undoubtedly, if it is shown by the tenant that the landlord
has some other vacant premises in his possession, that by
itself may not be sufficient to negative the landlord's claim but
in such a situation the Court would expect the landlord to
establish that the premises which is vacant is not suitable for
the purpose of his occupation or for the purpose for which he
requires   the   premises   in   respect   of   which   the   action   is
commenced   in   the   Court.   It   would,   however,   be   a   bald
    statement   unsupported   by   the      Rent   Act    to   say   that   the
16 (1981) 2 SCC 36
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landlord has an unfettered right to choose whatever premises
he wants and that too irrespective of the fact that he has some
vacant premises in possession which he would not occupy and
try to seek to remove the tenant. This approach would put a
premium on the landlord's greed to throw out tenants paying
lower rent in the name of personal occupation and rent out
the premises in his possession at the market rate. To curb this
    very tendency the      Rent Act    was enacted and, therefore, it
    becomes the duty of the Court administering the     Rent Act   to
bear in mind the object and intendment of the legislature in
enacting   the   same.   The   Court   must   understand   and
appreciate the relationship between legal rules and one of
necessities of life shelter and the way in which one part of the
society exacts tribute from another for permission to inhabit a
portion of the globe. In 'The Sociology of Law', edited by Pat
Carlen, the author examines the rent and rent legislation in
England and Wales and observes as under:
"The prevailing paradigms of neo­classical economics  
and empiricist political theory have determined the  
conceptual insularity of law and legal institutions, with
the result that they and other social events appear as 
random   existences   independent   of   their   historical  
formation.   The   force   of   any   theory  comparative  
hardship of law must of  course lie in its explanatory  
power, and this in turn  depends on the wider image 
of social relations which  produces it".
(emphasis supplied)
62] In Civil Revision Application No. 770 of 2013, the Courts have
held against the applicant on the ground that the applicant had
acquired two rooms at Namdev Cooperative Housing Society and
that PW­4, one Mukund, had stated that permission for constructing
a   second   floor   can   be   granted   by   the   Society.   Apart   from   the
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circumstance that the acquisition of alternate premises is no longer
ground under the  Rent  Act for  eviction  of a tenant, even if  we
proceed on the basis that such a circumstance can legitimately be
taken into account in the matter of determination of comparative
hardship, the material on record indicates that the suit premises at
Namdeo Cooperative Housing Society are occupied by one of the
two   married   sons   of   the   applicant.   Besides,   the   two   rooms   in
Namdeo Cooperative Housing Society are not on ownership basis
but   taken   on   rent   from   the   municipality.   The   tenant   Gujar   has
further   deposed   that   in   the   suit   premises,   which   comprises   two
rooms ad­measuring 10 x 12 feet each, the said applicant resides
alongwith   his   parents,   two   sons   and   two   daughters.   The   two
daughters are married, but often visit the suit premises. One of the
sons is married and has shifted to two room at Namdeo Cooperative
Housing   Society.   All   such   relevant   materials   have   been   totally
ignored by the two Courts. 
63] The Trial Court, in the present case has considered the issue of
bona   fide  requirement   and   comparative   hardship   in   a   composite
manner rather than consider the two aspects separately. The Trial
Court, failed to appreciate that to begin with, it has to be determined
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whether the landlords have made out a case that the suit premises
are  required  by them  reasonably and  bona  fide.  Upon   record of
satisfaction in this regard, the Trial Court should have then adverted
to the predicates of Section 16(2) of the Rent Act, which mandate
that no decree of eviction shall be passed on the grounds specified in
Section 16(1)(g) of the Rent Act, if the Court is satisfied that having
regard to all the circumstances of the case, including the question
whether reasonable accommodation is acquired by landlord, greater
hardship would be caused by passing a decree than by refusing to
pass it. There is accordingly, clear failure to exercise jurisdiction
under Section 16(2) of the Rent Act, by confusing and mixing of two
issues  of  reasonable  and  bona  fide  requirement and  comparative
hardship into one. The entire reasoning of two Courts is that the
landlords are the best judges and the final arbiters in matters of
reasonable and  bona fide  requirement and further that since the
tenant Gujar has two rooms in Namdev Cooperative Housing Society,
the respondent­landlords will suffer greater hardship.  The landlords
are hoteliers having Hotels like Blue Star and Lucky Restaurant at
Mahabaleshwar itself. The landlords and their family members are
engaged in several businesses like STD Booth, sale of handicrafts
etc..   One   of   the   landlords   has   been   the   President   of   Municipal
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Council   of   Mahabaleshwar.   The   record   indicates   that   the   family
members of one of the landlords have served in Municipal Council in
some capacities or  the  other. In  contrast, the  tenant Gujar, who
resides in suit premises No.1 , is engaged in sale of 'Panipuri'  and
other road side snacks.  The tenant Panhalkar is engaged in sale of
handicraft   items   through   suit   premises   No.2   which   ad­measure
around 40 sq.ft. Both the tenants have deposed that despite best
efforts, it is not possible for them to acquire other premises. There
are several premises in the occupation of the landlords which the
landlords did not even bother to disclose in the plaints. In these
circumstances,   even   if   the   issue   of   comparative   hardship   was
required to be decided, the same would have to be answered in
favour of the tenants. In any case, by ignoring of such relevant and
vital material on record, the Courts could not have answered such
issue in favour of the landlords. 
64]   This  Court  in  case   of  BismilL Bee w/o. SK. Chand and
Khajamiyan S/o. Sk. Chand Vs. anwar S.o. Mohd. Akhtar17, has
held that the provisions of Section 16(2) of the Rent Act, cast a
statutory duty upon the Court to make an enquiry to the extent of
need of the landlord, even if such need is found to be reasonable and
17 2010(1) ALL MR 889
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bona fide. The right of the landlord to seek eviction on one hand and
the  protection granted to the tenant on the ground of comparative
hardship on the other hand, can be balanced by the Court by making
enquiry into the  extent of  need of  landlord and even passing a
decree for partial eviction from the suit premises, to meet the ends
of justice. Such an exercise is required to be carried out by the Court
irrespective of the fact whether party demands it or not. If such
exercise is not carried out by the Court, then certainly it would result
not   only   in   failure   to   jurisdiction,   but   also   failure   to   perform
statutory and mandatory duty, resulting in failure of justice. Further,
Section 16(2) of the Rent Act mandates that the Court is to have
'regard to all circumstance of the case'. It further proceeds to state that
this   would   include   the   question   whether   other   reasonable
accommodation is available for the landlord or the tenant. In this
context, it is necessary, for the Court to be alive to the financial
status of both the landlord as well as the tenant. The Court is also
expected   to   be   alive   to   the   situation   regards   scarcity   of
accommodation at a particular place. In the present case, the two
Courts have failed to undertake any such exercise and the impugned
orders consequently are unsustainable.  
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The   premises   required   for   immediate   purpose   of   demolition
ordered by Municipal Authorities (Section 16(1)(k) of the Rent
Act)
65] The Trial Court as well as the Appeal Court have upheld the
plea for eviction on the ground contemplated by Section 16(1)(k) of
the Rent Act. There is, however, variance in the reasoning adopted
by the Trial Court and Appeal Court. 
66] Section 16(1)(k) of the Rent Act reads thus:
16(1)(k)  ­ that the premises are required for the immediate
purpose of demolition ordered by any municipal authority or
other competent authority; 
67] The Trial Court, as reflected in the judgment and decree dated
4   July   2011,   had   framed   the   following   issue   in   the   context   of
grounds for eviction under Section 16(1)(k) of the Rent Act.
(2) Whether the plaintiffs are entitled for possession on the
ground that suit property is in dilapidated condition and
ordered to be demolished by the local authority as being
dangerous for human habitation ?
68] From the manner in which the issue was cast by the Trial
Court as also the discussion in the judgments and decrees made by
the Trial Court and the Appeal  Court, it is clear that both the Courts
have  not even  adverted to the  aspect of  as to whether the  suit
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premises were required   for   'immediate purpose of demolition'  as
contemplated by Section 16(1)(k) of the Rent Act. The italicised
expression, is not without a purpose or a mere surplasage. Before,
any decree of eviction can be made under Section 16(1)(k) of the
Rent Act, the Court has to satisfy itself that the suit premises are
required for the 'immediate purpose of demolition'. In the absence of
even the consideration of this aspect of immediacy, much less record
of any satisfaction in that regard, there is clear failure to exercise
jurisdiction. This position is no longer res integra. 
69]   The Apex Court, in case of  P.O.P.R. and Sons (P) Ltd. vs.
Associates Publishers (Madras) Limited18
,   has   held   that   the
expression 'immediate purpose' in Section 14(1)(b) of the Tamilnadu
Buildings   (Lease   and   Rent   Control)   Act,   1960   (Tamilnadu   Act)
relates to directness rather than speed, although the absence of the
latter negatives the former. This expression denotes connection and
timely  action, but not instant action,  yet delayed action is a sign of
remoteness   of   purpose.   The   expression   must   be   understood   as
required in direct connection and timely purpose and not just some
secondary, remote or premature purpose. The legislative intent is
that the purpose should be immediate or direct and not mediate,
18 (1991) 1 SCC 301
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remote, not direct or secondary. The Apex Court, in the context of
Section 14(1)(b) of the Tamilnadu Act as also observed that the
Court does not normally sit in judgment over the appreciation of
evidence and findings of fact rendered by authorities empowered
under a statute. However, if the authority has acted in excess of its
jurisdiction,   asked   itself   wrong   questions   or   misunderstood   or
misapplied the law, failed to consider the relevant circumstances,
allowed itself to be persuaded by irrelevant circumstances, then the
findings are liable to be reversed as perverse by a Court exercising
judicial review. Any repository of power must act, in accordance with
the law and on basis of relevant evidence. The authorities must act
by reason and justice, not by private opinion. 
70] The learned Single Judge of this Court in case of Mrs. Piadad
Fernander vs. K.M. Ramesh and ors.19
, in the context of provisions
contained in Section 13(1)(hhh) of the 1947 Act have held that
satisfaction regards immediacy is not a mere formality. The Court
must   apply   its   mind   to   all   facts   and   circumstances   of   the   case
including the order of demolition and then come to the conclusion
one way or the other. The earlier decision of this court in Civil
Revision   Application   Nos. 1734  to  1748  of  1965  decided  on   14
19 AIR 1970 Bombay 376
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August 1967 (Bom.) was referred to and relied upon to hold that the
expression 'immediate' must be given its due weight in the context.
Mr. Justice Patel , in the decision rendered on 14 August 1967, has
observed thus:
“In my view, the word 'immediate' in the above clause has
been   used   by   the   legislature   with   some   intent.   If   the
legislature wanted to provide that the landlords should be
entitled to recover possession for the purpose of demolition of
the property ordered by the Corporation there should have
been no necessity of using the word 'immediate' and even the
meaning it would have borne would be the same which Mr.
Dhanuka wants me to give to the above clause. It must be
remembered in this connection that between the issuing of the
notices by the Municipal Corporation for demolition of the
premises and the filing of a suit many things might intervene
and though at one time the Corporation might have thought
that a building was in such a ruinous condition that it must
be ordered to be demolished, the same state of affairs might
not continue to exist after the lapse of a few years. The word
'immediate' must be given its due effect in the context.” 
71] This Court, again in the context of Section 13(1)(hhh) of the
1947 Act, in case of M.L. Sonavane vs. C.G. Sonar20, has held that
before any order of eviction under Section 13(1)(hhh) of the 1947
Act can be made, the Court must be satisfied upon two aspects. It
must  be   satisfied   that   a  decree   for   possession   has  to   be   passed
against the a tenant and secondly, “premises are required for the
20 1981 Bom.R.C. 128
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immediate purposes of demolition”. Unless the Court is satisfied about
the existence of both these things, it would be difficult to see how a
Court   can   pass   a   decree   for   eviction   against   a   tenant.   The
satisfaction must relate to the requirement of passing a decree for
possession   against   the   tenant,   and   the   immediate   necessity   of
demolition. The satisfaction of the Court is not a substitute for the
satisfaction of the local authority. Nor is it that Court must itself
enquire that the premises are in such a ruinous condition that they
are required to be demolished. That satisfaction is relegated to the
local authority. But, even apart from that satisfaction is still reserved
for the Court by the terms of the section, which deals with that
satisfaction with regard to the passing of a decree for possession
against the tenant, and the immediate purpose of demolition. If the
Court is satisfied, on a consideration of the subsequent events that
the   premises   are   not   required   'for   the   immediate   purpose   of
demolition', then, notwithstanding the order passed upon a bona fide
exercise of the power by the local authority, the Court may still
refuse to pass a decree. 
72] Finally,   in   case   of  Manohar   P.   Rajpal   vs.   Satara   City
Municipal Corporation, Satara and anr.21, which was relied upon
21 AIR 1992 Bom.R.C. 220
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by both the Trial Court as well as Appeal Court, this Court has held
that it is open to the Rent Court, before making an order of eviction
under Section 13(1)(hhh) of 1947 Act to examine whether the order
made by the local authority is based upon  relevant considerations
and not irrelevant ones.  Further, some enquiry is also warranted in
the context of expression 'immediate purpose'  since the expression is
not a mere surplusage and the same has to be considered having
regard to various circumstances, including subsequent events.
73] Now if the impugned judgments and decrees made by the
Trial Court and the Appeal Court are perused, it is clear that there is
no serious investigation as to whether the notice  dated 23 January
2002, upon which the landlords have founded their cause of action
to seek eviction under Section 16(1)(k) of the Rent Act was issued
on basis of relevant considerations and after eschewing irrelevant
ones. Further there is no discussion at all on the issue of 'immediate
purpose of demolition'. As held in case of M.L. Sonavane (supra), the
record   of   satisfaction   on   the   aforesaid   twin   aspects   is   necessary
before any eviction order can be made on basis of provisions  pari
materia  to   Section   16   (1)(k)  of  the   Rent   Act.  Therefore,  in   the
absence of even adverting to the significant aspect of 'immediate 
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purpose of demolition' , the impugned judgments and decrees cannot
be sustained.
74] The notice dated 23 January 2002, which as noted earlier, was
foundation of the institution of the suits by the landlords states that
inspection was carried out on 22 January 2002 and  therein it was
revealed that the eastern wall of House No. 86B is bloated and there
are cracks therein. Similarly, wooden rafters have decayed and the
roof   destabilized.   This   condition,   poses   danger   to   the   persons
residing in the house as also passers by. The notice finally directs the
landlords to remove the dangerous part of the house and warns that
the Municipal Authority will not be responsible for any untoward
instances, including loss and life or property. 
75] In the context of the provisions contained in Section 16(1)(k)
of   the   Rent   Act   as   also   the   ruling   in   case   of  Manohar   Rajpal
(supra),  the   correct   question   to   be   posed   would   be   whether
demolition of the  suit premises has indeed been ordered by the
Municipal Authorities and further, whether such orders are based
upon relevant considerations and not irrelevant ones. Some enquiry
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is also warranted in the context of the expression 'immediate purpose'
employed   in   Section   16(1)(k)   of   the   Rent   Act.   Apart   from   the
decision of the Apex Court   in case of  P.O.P.R. & Sons (P) Ltd.
(supra), this Court in case of M.L. Sonawane (supra), has held that
the word 'immediate'  is not a surplusage and the  same must be
construed having regard to the circumstances. 
76] In the notice dated 23 January 2002, there is no reference to
the   same   being   issued   under   Section   195   of   the   Maharashtra
Municipalities Act, 1965 (1965 Act), which is the law, which governs
the   Municipal   Authorities   at   Mahabaleshwar.   This   is   significant
because there is a statutory appeal against the notice under Section
195 of the 1965 Act, which opportunity was denied to the tenants.
Further, the notice is not directly in the context of suit premises
occupied by the tenants, but rather pertains to certain portions of
House No.86B. The notice, does not require demolition of the entire
House   No.86B,   but   rather   requires   removal   of   portions   thereof,
including in particular eastern wall, rafters and roofing. On basis of
such notice, it is difficult to sustain an eviction order under Section
16(1)(k)   of   the   Rent   Act,   particularly   where   no   satisfaction
whatsoever has been recorded by the two Courts on the aspect of
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'immediate purpose of demolition', which satisfaction, was required to
be recorded, both in terms of the context of Section 16(1)(k) of the
Rent Act as also the decision of this Court in case of M.L. Sonavane
(supra). 
77] There is yet another significant aspect in the context of order
of eviction under   Section 16(1)(k) of the Rent Act. On 6 August
2002, the tenants lodged the complaint to the Municipal Authorities
that   the   landlord   Baitulla   Shaikh   was   deliberately   indulging   in
weakening   of   the   walls   of   the   portion   of   House   NO.86,   in   his
possession, with the  objective  of  weakening the  entire  structure.
Based upon such complaint, on 29 August 2002, an inspection was
held by the Municipal Authority. Upon finding some merit in the
complaint of the tenants, the decision was taken to issue appropriate
notice   to   the   landlords   Baitulla   Shaikh   and    C.K.   Aris,   Hamid.
Pursuant to such decision, the Municipal Authority, by notice dated
29 August 2002, notified the landlords that during inspection it was
revealed   that   the   landlords   are   illegally   and   unauthorisedly
weakening the walls of House No. 86 and that in future, if the wall
collapses and causes loss to the life and property of the tenants,
then, it is the landlords, who will be entirely responsible for the
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same.   The   documents   like   compliant   of   the   tenants,   inspection
report as well as notice dated 29 August 2002 have been proved in
the course of evidence and have been marked as Exhibits 223, 224
and 225. This vital material has been completely ignored by the two
Courts. Exclusion of relevant and vital material, is also a species of
perversity   in   the   record   of   any   finding   of   fact.   The   Court
Commissioner was also appointed and even the Report of the Court
Commissioner does not make out the case that the premises were
required for immediate purpose of demolition. The evidence of the
Municipal   Engineers   as   well   as   the   Court   Commissioner,   at   the
highest indicates that certain portions of House No.86 are in need of
repairs. But the evidence does not make out any case that the suit
premises were required for the immediate purpose of demolition. By
virtually ignoring such material, the two Courts have proceeded to
make a decree of eviction under Section 16(1)(k) of the Rent Act.
This is an exercise in excess of jurisdiction. There is both illegality as
well   as   material   irregularity   in   the   record   of   findings   of   fact,
inasmuch as the Courts have failed to ask itself correct question in
the  context of  'immediate  purpose'  and further failed to consider
relevant   circumstances,   rather   the   two   Courts   have   allowed
themselves to be persuaded by irrelevant circumstances.
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78] The learned counsel for the landlords, however, attempted to
make   reference   to   certain   subsequent   notices   issued   by   the
Municipal   Authority   during   pendency   of   proceedings.   One   such
notice   is   dated   3   December   2005.   Again,   this   notice   makes   no
reference to the Section 195 of the 1965 Act. Copy of this notice was
marked to Shri. Dastagir Dange and Shri. Sanjay Shinde, who were
stated to be the complainants. There is no question of placing any
reliance   of   such   notice   dated   3   December   2005,   because   the
Municipal   Authority,   by   subsequent   communication   dated   16
December   2005   (Exhibit­299)   informed   the   tenants   that   further
enquiries   were   conducted   in   the   context   of   complaint   made   by
Shri.Dattatray   Deshmukh,   which   were   the   basis   for   issuance   of
notice dated 23 January 2002 and it was revealed that the complaint
made by Shri. Dattatray Deshmukh was false. There is record of
letter   dated   14   November   2005   addressed   by   Shri.   Dattatray
Deshmukh   stating   that   he   had   never   made   any   complaint.   The
communication   dated   16   December   2005   has   been   marked   (as
Exhibit­299) in the record. 
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79] The learned counsel for the landlords also made reference to
notice dated 16 July 2009 (Exhibit­196). This is a notice which
makes reference to Section 195 of the 1965 Act. As against this
notice, the appeal has been instituted by the tenants and the same is
pending   consideration.   That   apart,   even   this   notice   directs   the
demolition of eastern wall and states that the Municipal Authorities
will not be responsible for loss of life or property. What needs to be
emphasized is that even this notice dated 16 July 2009 does not
require demolition of the suit premises, but only the eastern wall of
House No.86. Then again, this notice makes reference to the Court
Commissioner Report, without really considering the contents of said
Report.
80] Upon cumulative consideration all the aforesaid circumstances
as well as law on the subject, the eviction under Section 16 (1)(k) of
the Rent Act is unsustainable. The Courts have not even adverted to,
much  less  recorded   any  satisfaction  on   the   aspect   of   'immediate
purpose of demolition'.  This is an essential pre­requisite before any
eviction order can be made under Section 16(1)(k) of the Rent Act,
as held by this Court in case of M.L. Sonavane (supra). Further, the
Courts have not even adverted to the issue as to whether notice
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dated   23   January   2002   as   also   the   subsequent   notices   indeed
required the demolition of the entire House No. 86 or for that matter
the entire suit premises. The Courts have also not eschewed the
irrelevant   considerations   or   taken   into   account   relevant
considerations. In particular, the Courts have totally ignored notice
dated   29   August   2002   (Exhibit­155)   issued   by   the   Municipal
Authority to the landlords in the context of deliberate damage to the
walls by the landlords, in order to prejudice the tenants. The notice
dated 29 August 2002 issued by the Municipal Authority is backed
by the documents at Exhibit­223 and 224 in the form of complaints
and notings in pursuance of inspection of House No. 86. The Courts
have also failed to take into consideration the communication dated
16 December 2005 (Exhibit­299) which accepts that Shri. Dattatray
Deshmukh upon whose complaint, the notice dated 23 January 2002
was issued, had made no complaint at all in the matter. The Court
Commissioner's   Report   and   evidence   as   also   the   Municipal
Engineer's evidence has not been adverted to by the two Courts in
proper perspective. Therefore, applying the principles set out in case
of M.L. Sonavane (supra) and Manohar Rajpal (supra), it is not
possible to sustain eviction under Section 16(1)(k) of the Rent Act. 
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Permanent   construction   without   landlords'   written   consent
(Section 16(1)(b) of the Rent Act)
81] The   landlords'   had   alleged   that   the   tenant   Panhalkar   has
carried  out  a  permanent  construction  on   the   suit   premises  No.2
without landlords' written consent and therefore, the ground for
eviction under Section 16(1)(b) of the Rent Act was made out, in so
far as the tenant Panhalkar is concerned. The Trial Court had in fact
held that the ground under Section 16(1)(b) of the Rent Act was not
made out by the landlords and therefore, declined to make decree of
eviction under Section 16(1)(b) of the Rent Act. The Appeal Court
has, however, reversed the Trial Court by mainly relying upon the
Report of the Commissioner at Exhibit­122, which, according to the
Appeal Court, discloses that the tenant Panhalkar has erected a shed
on the front side of suit premises No.2 by implanting iron pole in
cement and concrete. The finding of the Appeal Court is vitiated by
perversity as well as non­application of mind. 
82] In   the   plaint   instituted   against   the   tenant   Panhalkar,   the
allegation is that the tenant Panhalkar, in front of suit premises No.2
has erected that a shed on platform (Otta) and that erection of such 
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shed constitutes a permanent construction as envisaged by Section
16(1)(b) of the Rent Act.
83] The material on record, as analysed by the Trial Court clearly
reveals that the suit premises No.2, which are adjacent to almost
similar premises in the occupation of the landlords are  used for the
purposes   of   sale   of   some   handicrafts,   Mahabaleshwar   sticks   etc.
During the tourist season, all such shops, erects temporary structures
to cover the small space between the actual shop and the road.
There is absolutely no element of any permanence in so far as the
erection   of   such   temporary   shed/covering   is   concerned.   The
explanation to Section 16(1)(b), which has not even been adverted
to   by   the   Appeal   Court   provides   that   the   expression   'permanent
structure'  does not include the carrying out of any work with the
permission   wherever   necessary,   of   the   Municipal   Authority,   for
providing a wooden partition, standing cooking platform in kitchen,
door, lattice work or opening of a window necessary for ventilation,
a fall ceiling, installation of air­conditioners, an exhaust outlet or a
smoke­chimney.   There must be an element of permanency in the
structure, because a temporary structure of the nature described in 
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the   evidence   adduced   by   the   tenants,   is   not   within   the
contemplation of Section 16(1)(b) of the Rent Act. 
84] In   the   present   case,   upon   small   space   between   the   suit
premises No.2 and the road a temporary shed is put up. This shed, is
similar to the sheds erected by other shops on the same street. The
shed is basically some sort of protection to the customers from the
rains. There is neither any element of  permanency, nor any question
of   intention   to   put   up   any   permanent   structure   upon   the   suit
premises. In these circumstances, there was absolutely no warrant
for the Appeal Court to reverse the Trial Court and make a decree
under Section 16(1)(b) of the Rent Act. 
Miscellaneous Applications in these Civil Revision Applications
85] The tenants, by Civil Application Nos. 210 and  211 of 2015,
have applied for leave to produce additional evidence in these Civil
Revision Applications. Mainly, the tenants wish to bring on record
the details with regard to further and other premises acquired by or
in  possession  of  the   landlords and  their   children. This  is in   the
context   of   challenge   to   decrees   of   eviction   on   the   grounds   of

reasonable   and  bona   fide  requirement.   Since   it   is   held   that   the
landlords were not entitled to any decrees upon such ground, there
is no necessity to permit any further material / evidence in this
regard. Accordingly, Civil Application Nos. 210 and 211 of 2015 are
disposed of.
86] The landlords have taken out Civil Application Nos. 352 and
353   of   2014   seeking   mesne   profits   from   the   tenants.   Since   the
eviction decrees are being set aside, there is no question of award of
any mesne profits. Accordingly, Civil Application Nos. 352 and  353
of 2014 are also disposed of.
Final Order
87] For   all   the   aforesaid   reasons,   Civil   Revision   Application
Nos.770 of 2013 and 167 of 2014 are allowed and the impugned
judgments and decrees dated 4 July 2011 and 4 July 2013 are set
aside. Accordingly, Rule is made absolute in the two Civil Revision
Applications.  
88] For the reasons set out in paragraph '85', Civil Application Nos.
210 and 211 of 2015 taken out by the tenants seeking leave to
produce additional evidence on record are disposed of. 
89] As the two Civil Revision Applications have been allowed and
the eviction decrees are set aside, Civil Application Nos. 352 and 353
of 2014 seeking mesne profits from the tenants do not survive and
are consequently disposed of.
90] In the facts and circumstances as aforesaid, there shall be no
order as to costs.
(M.S. SONAK, J.)


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