HOMI BURJOR DHALLA Vs. HOSANG JAL GAZDER

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 2nd May 1996 passed by the VIth Additional District Judge, Pune in civil appeal No.1138 of 1988. The facts that are material and relevant for deciding this petition are that the petitioner Homi filed civil suit No.2097 of 1986 in the Small Causes Court, Pune claiming therein that he is the owner of bungalow by name Navaz Villa, situated at Shankar Sheth Road, Pune, that the defendant No.1 - Hosang Jal Gazder, who is respondent No.1 in the present petition, is the tenant of the eastern side of the ground floor flat comprising of two bedrooms, one hall, two bathrooms etc. It was the case of the petitioner in his Plaint that prior to January 1981, the defendant No.2 Mrs Frenny Jal Gazder was the tenant of the suit premises. It was claimed that prior to 18th December 1980, the suit premises were owned by the petitioner's mother who, by a gift deed, gifted the property to the petitioner. It was claimed that after the transfer of ownership, the tenancy of the defendant No.2 was attorned to the petitioner. It was further stated that by a communication dated 30th March 1981, the defendant No 2 transferred her tenancy in favour of the defendant No.1. It was thus alleged that it is the defendant No.1 who is the tenant of the suit premises. It was claimed that the defendant No.1 has secured a suitable alternate accommodation and therefore, the decree of eviction was sought against the defendant No.1 on that ground. The petitioner also sought a decree of eviction against the tenant on the ground that the landlord needs the suit premises for his bonafide occupation. The suit was resisted by the defendants. The Trial Court, on the basis of the evidence on record, by its judgment dated 27th September 1988 decreed the suit in favour of the plaintiff. The Trial Court held that it is the defendant No.1, who is the tenant, has admittedly secured suitable alternate accommodation. It was also held that the landlord needs the suit premises for his bonafide occupation. On the aspect of comparative hardship also, the finding was recorded in favour of the landlord. The judgment and decree passed by the Trial Court was challenged by the defendants in civil appeal No.1138 of 1988. That appeal was decided by the Appellate Court by its judgment dated 2nd May 1996. The appellate Court reversed the finding recorded by the Trial Court and held that it is the defendant No.2 who is the tenant and as she has admittedly not secured any alternate accommodation, the finding in that regard recorded by the Trial Court was reversed. The Appellate Court also reversed the finding recorded by the Trial Court on the aspect of bonafide need as also comparative hardship. As a result, the appeal was allowed, the judgment and decree passed by the Trial Court was set aside.

(2.) THE learned counsel appearing for the petitioner submits that the tenancy was given to the defendant No 2 when the father of the petitioner was the owner of the premises in the year 1968. Though the defendant No 2 was the tenant, initially rent receipts were given in the name of her elder son and after elder son shifted somewhere else, rent receipts were issued in the name of her younger son, the defendant No.1. The learned counsel submits that though the rent receipts were issued in the name of the son of the defendant No 2, the landlord treated the defendant No 2 as the tenant. It is clear from the communication at Exh.68 dated 26th March 1969 from the landlord to the defendant No.2. The learned counsel further submits that when the suit premises were transferred by the mother of the petitioner in favour of the petitioner, by communication dated 24th December 1980, it was the defendant No 2 who was informed about the transfer and she was asked to make payment of rent to the petitioner. The learned counsel further refers to the letter at Exh 58 from the mother of the petitioner who was the previous landlady, which is again addressed to the defendant No 2. The learned counsel therefore submits that though the rent receipts stood in the name of the defendant No.1, the mother of the petitioner who was the previous landlady, was treating the defendant No.2 as the tenant and therefore, all correspondence in relation to the suit premises was addressed to the defendant No.2 and not to her son in whose name the rent receipts stood. The learned counsel submits that however, there was a marked changed in the conduct, behaviour and attitude of both the parties when by letter dated 30th March 1981, the defendant No.2 informed the petitioner that the rent receipts should be sent in the name of the defendant No.1. The learned counsel submits that thereafter the petitioner started treating the defendant No.1 as his tenant, as can be seen from the letter dated 7th April 1981 at Exh 60 on the record wherein the landlord has stated that the rent receipts in the name of the defendant No.1 are being sent. The learned counsel submits that thereafter all the correspondence in relation to the suit premises was between the petitioner and the defendant No.1. The learned counsel, in that regard, refers to the letter dated 13th March 1983 at Exh.47, letter dated 12th November 1983 at Exh.48 and letter dated 18th December 1980 at Exh.49. The learned counsel submits that after March 1981, at the instance of the defendant No.2, the tenancy of the premises was transferred in favour of the defendant No.1 and thereafter there is no correspondence between the petitioner and the defendant No.2, the learned counsel submits that it is only after a notice terminating the tenancy of the defendant No.1 was issued on 21st July 1986, the defendant No.2 addressed a letter dated 19th November 1986 to the petitioner asking him to send rent receipt in her name. The learned counsel submits that the letter dated 30th March 1981 has to be read and seen in the light of the conduct of the parties as reflected from the correspondence between the parties which has been produced on record. According to the learned counsel, the Appellate Court has totally excluded from its consideration the correspondence between the parties that preceded the letter dated 30th March 1981 as also the correspondence and the conduct of the parties which followed the letter dated 30th March 1981. According to the learned counsel, the documents and the correspondence which was placed on record prior to 30th March 1981 and subsequent to 30th March 1981 were relevant documents for understanding the meaning and import of the letter dated 30th March 1981. The Appellate Court has excluded those relevant documents from its consideration and therefore the finding recorded by the Appellate Court suffers from non-application of mind to relevant aspect and evidence on record and therefore, in the submission of the learned counsel, as the finding recorded by the Appellate Court suffers from non-application of mind it is therefore recorded in breach of the principles of natural justice which can be interfered with by this Court in its jurisdiction under Article 227 of the Constitution of India.

(3.) NOW , if in the light of these rival submissions the record of the case is perused, it becomes clear that at no point of time, rent receipts were being issued by the landlord, whether it was the father of the petitioner and thereafter, it was the mother of the petitioner, the rent receipts were always either in the name of the elder son of the defendant No.2 or in the name of the defendant No.1. However, though rent receipts were being issued in the name of the defendant No.1, the then landlady viz. the mother of the petitioner, was treating the defendant No.2 as the tenant. It is clear from the communication dated 24th December 1980 which is at Exh.57 on the record. It became necessary to address this communication because the property was gifted by the mother of the petitioner to the petitioner on 18th December 1980 and therefore, the mother of the petitioner addressed the communication to the defendant No.2 informing her about the fact of gift and asking her to make payment of rent to the petitioner from 1st January 1989. This letter leaves one in no doubt that it was the defendant No.2 who was being treated as the tenant though on that date, the rent receipt was being issued by the landlady in the name of the defendant No.1. It appears that despite this letter, a cheque of the amount of rent was sent to the mother of the petitioner and therefore, the mother of the petitioner addressed a letter dated 3rd February 1981 which is at Exh.58 again to the defendant No.2 informing her that now she is no longer the landlady and that it is the petitioner who is the landlady and therefore, the payment of rent should be made to him. It is clear from the letter dated 3rd February 1981 that the mother of the petitioner was treating the defendant No.2 as the tenant inasmuch as it is stated in the letter that :