DINESH JAGANNATH KHANDELWAL Vs. KUNDANLAL PERUMAL CHHABRIYA

JUDGEMENT

(1.) In this petition under Articles 226 & 227 of the Constitution of India, tenant has challenged the reversing judgment dated 29/8/2006 delivered by Additional District Judge, Nagpur in Regular Civil Appeal 301 of 2004. This judgment in an appeal under Section 34 of Maharashtra Rent Control Act, 1999 sets aside the judgment & decree dated 30/4/2004 dismissing Regular Civil Suit 165/2000 of respondent/ landlord delivered by Additional Small Causes Court, Nagpur, and orders petitioner tenant to hand over vacant possession to him within 3 months. It also directs an inquiry under O.20 R.12 pf Civil Procedure Code. On 18/4/2007 while admitting the writ petition for final hearing, this Court has stayed the operation & effect of the impugned appellate judgment.

(2.) The Suit as filed on 14/6/2000 was having title as under S. 24 of the Maharashtra Rent Control Act, 1999 ( Rent Act for short). The tenant then filed an application for its dismissal but landlord sought an amendment to the plaint and sought eviction of tenant on the grounds like bona fide need and nuisance etc. Tenant filed written statement disputing all factual aspects. He pointed out that after the suit was filed, the lease was further renewed on 2/9/2000 and suit itself became infructuous. The renewal is alleged to be by an agreement & memorandum of understanding entered into on 2/9/2000 for executing the renewed lease with grievance that the landlord did not remain present on 4/9/2000 before the Subregistrar of the documents for its due registration. The landlord has alleged that there was no such understanding or an agreement for entering into a renewed lease deed and the xerox copies placed on record by tenant are forged. There are counter reports of hand writing experts on landlord's signatures on these disputed documents but then at this stage said controversy is not very relevant though both the sides have argued in some details on it. The tenant filed on 5/9/2000 an application at Exh. 17 for rejection of plaint but it remained undecided by the Small Cause Court. On 30/4/2004, it dismissed the Suit after holding that landlords were not entitled to decree for possession under Rent Act as per section 24, or u/s 16(1)(a),(b),(c),(e) or(g). Section 16 enables the court to restore possession to landlord if it is satisfied that tenant has committed an act prohibited by section 108(O) of T.P. Act i.e. a ground under S.16(1)(a). Clause (b) is erection permanent structure without landlord's written consent, Clause (c) is being guilty of conduct which is nuisance or annoyance , (e) is unlawful subletting or licensing while sub clause (g) deals with ground of reasonable & bona fide need. The respondent landlords then filed Appeal as mentioned above which came to be allowed by accepting bona fide need , permanent alteration and efflux of time as per lease agreement. During final arguments before me, when tenant demonstrated that amendment allowed by the Small Cause Court was not carried out completely, landlords moved Civil Applications 2668 & 2669 of 2009 to pay deficit court fees and to amend the plaint for that purpose. At hearing of this application tenant pointed out that same exercise was also necessary in Appeal memo. After hearing both sides, these applications were allowed by me on 9/12/2009 and landlords were allowed to pay the deficit court fees and amend plaint as also appeal memo suitably for said purpose.

(3.) Adv. J.M. Gandhi for Petitioner tenant has contended that the basic plaint as filed is only under S. 24 of Rent Act and as it came to be filed not before the authorized revenue officer but before the civil court, its presentation itself is bad and void. Any subsequent amendment thereto can not therefore instill life in it. He argues that the amendments allowed by this Court are only in the interest of revenue and does not affect his challenge raised since before the Trial Court vide Exh.17/27 left undecided by it. He further points out that though the paragraphs 9A to 9H were added by amendment in plaint on 4/4/2001, the title clause was not corrected. The stand of the tenant that there was renewal of lease and proceedings under S. 24 have become infructuous lead the landlord to effect the amendment. Tenant was given only xerox copy of agreement to renew as also memorandum and originals were retained by the landlords who later avoided to have it registered and came up with plea of fabrication. He invites attention to cross examination of landlord to show that at one place, landlord Kundanlal i.e. plaintiff 1 accepted his sign on disputed xerox of renewal and how later he adopted very cautious approach during further evidence. He takes the Court through judgment of Small Cause Court to urge how on merits no substance is found in landlords' case and finding of absence of jurisdiction to go into renewal dispute recorded by it . In this context, he attempted to demonstrate how finding of permanent alteration or bona fide requirement reached by Appellate Court is misconceived. The said court ought to have accepted the renewal and the xerox renewal agreement and dismissed the appeal of landlords. He points out that after landlords avoided the registration, tenant immediately sent a telegram on 4/9/2000 but landlords even did not bother to reply to it. Evidence of witness DW3 Shri Kulkarni is also heavily relied upon with contention that nothing material could come out in his crossexamination.