ONKAR GURUSIDDAPPA GADVE Vs. DATTATRAYA SHAMRAO KHORE

JUDGEMENT

(1.) THIS writ petition takes exception to the order passed by the Third District Judge, Sangli dated January 13, 1992 in Regular Civil Appeal No. 235 of 1986. Petitioners filed suit for recovery of possession of the demised premises situated in building known as Gadave Building at Miraj on the ground of bona fide requirement and default against the original defendant Dattatraya Shamrao Khore who was tenant on monthly rent of Rs. 30/ -. The plaint, as filed before the trial Court, merely states that the suit property is required for bona fide and reasonable requirement of plaintiff No. 1. No other details have been given in the plaint regarding nature of requirement of the plaintiff No. 1. The plaint further asserts that the suit property was earlier Joint family property and has gone in partition to the exclusive share of plaintiff No. 1 and, he has, therefore, become owner of the said property. In so far as the ground of default is concerned, relevant facts are that: both the petitioners gave notice to the original defendant, Predecessor of the respondents herein, on August 31, 1978, calling upon him to pay the arrears of the rent since July, 1974 till the date of notice, which is for a period of more than six months in terms of section 12 of the Bombay Rent Act. The said notice was received by the defendant and immediately thereafter within one month therefrom, the defendant filed Miscellaneous Application for fixation of standard rent on 27th September, 1978. The defendant also took out application under section 11 (3) of the Bombay Rent Act on September 30, 1978 for permission to deposit the amount as demanded in the suit notice in Court. This permission was granted whereafter on the same day the defendant deposited the entire amount as demanded under the suit notice. In that sense, defendant extricated from the rigours of section 12 (3) (a) of the Bombay Rent Act. On the other hand the stand taken on behalf of the petitioners is that the said standard rent application was filed only against the petitioner No. 2 who had no concern with the suit property after the partition in 1977 and that the property absolutely vested in petitioner No. 1. It is further contended on behalf of the petitioners that the defendant intentionally filed standard rent application only against petitioner No. 2 and therefore, filing of the said application was of no avail and did not absolve the tenant from the rigours of the section 12 (3) (a) of the Act.

(2.) BOTH parties contested the matter. The respondent tenant appears before the trial Court and contested the suit by filing written statement. In the written statement specific stand was taken on behalf of the tenant that the petitioner No. 2 was not the landlord and no intimation or attornment has been done in that behalf. In so far as the ground of bona fide and reasonable requirement is concerned, the defendant contended that the claim pressed by the petitioners was false and without any substance much less bereft of any particulars so as to make out cause of action. Inspite of such pleadings it is not in dispute that the trial Court framed issue also on bona fide requirement and proceeded with the trial. Both the parties adduced evidence in support of their rival contentions. Plaintiffs examined 5 witnesses including themselves, in support of their stand regarding bona fide and reasonable requirement of plaintiff No. 1 as well as with regard to the ground of default. The defendant also stepped into the witness box and also examined other witnesses in support of his claim. The fact remains that both the parties adduced elaborate evidence and the defendant permitted evidence on the issue of bona fide requirement to come on record. On the basis of the evidence, the trial Court proceeded to decree the suit on both the grounds. The trial Court held that the plaintiffs established the ground of bona fide and reasonable requirement of plaintiff No. 1. Even on the issue of greater hardship, it held that greater hardship would be caused to the plaintiffs by refusing to grant decree. Even the ground of default has been answered by the trial Court against the defendant by holding that the case was covered by section 12 (3 (a) of the Act.

(3.) AGAINST the said decision the respondents herein took the matter in appeal before the District Court in Regular Civil Appeal No. 193. The Appellate Court has reversed the decree on both the grounds. According to the Appellate Court, the pleadings on the issue of bona fide requirement were absolutely vague and that the trial Court has committed error in permitting the evidence to be let in by the plaintiffs on factual matrix which were not pleaded in the plaint. The Appellate Court accordingly was of the opinion that the entire evidence adduced, which was not supported by pleadings was irrelevant and could not be looked into. Nevertheless, the Appellate Court proceeded to analyse the evidence and held that it is impossible to accept the version of the plaintiffs that the plaintiffs were residing in a stable owned by P. W. No. 3 as contended. According to the Appellate Court, the plaintiffs had created the record to justify the ground of bona fide requirement. On the other hand, it found that the plaintiffs were well-placed in the life and were respectable members of the society in that plaintiff No. 1 was the Councillor of the Village Municipality at one point of time. Accordingly, the Appellate Court reversed the findings with regard to the ground of bona fide and reasonable requirement holding that the plaintiffs failed to establish bona fide and reasonable requirement of plaintiff No. 1. With regard to the ground of default, the Appellate Court took a view that the provisions of section 12 (3) (a) had no application to the fact situation of the present case. The Appellate Court further proceeded to hold that since section 12 (3) (a) was not available, suit for recovery of possession on the ground of default itself was not maintainable and the Court could not have proceeded to consider the ground of default within the meaning of section 12 of the Act. Accordingly, the Appellate Court allowed the appeal preferred by the respondent and rejected the prayer for recovery of the possession. The Appellate Court however held that the plaintiffs were entitled to recover sum of Rs. 1500/- towards arrears of rent deposited by the defendant in Court and also entitled to receive future rents if any. It is this decision which is subject matter of writ petition under Article 227 of the Constitution of India before this Court.