SUGANDHA BHASKAR BARVE Vs. FIROZE FAKRUDDIN SAMIWALA

JUDGEMENT

(1.) These Revision Applications are filed challenging the judgment and decree dtd. 8/9/2022 passed by the Appellate Bench of the Small Causes Court allowing (A1) Appeal No.107 of 2012 filed by the Respondent-Defendant and setting aside the eviction decree dtd. 30/7/2012 passed by the Small Causes Court in R.A.E. and R. Suit No.1146/1829 of 2003. The Small Causes Court had decreed the suit on the grounds of default in payment of rent and bonafide requirement, while rejecting the ground of erecting permanent structure without landlord's consent and unlawful subletting. In the Appeal filed by the tenant before the Appellate Bench, Plaintiff-landlord filed cross-objections. The Appellate Bench has allowed the tenant's Appeal and has set aside the eviction decree by answering the grounds of default in payment of rent and bonafide requirement in favour of the tenant. The cross-objections filed by the Plaintiff-landlord about rejection of grounds of putting up permanent structure and unlawful subletting are rejected. Aggrieved by the judgment and decree dtd. 8/9/2022 passed by the Appellate Bench allowing (A1) Appeal No. 107 of 2012, Civil Revision Application No.163 of 2023 is filed. Plaintiffs have also filed separate Civil Revision Application No.164 of 2023 to the extent of rejection of their cross-objections.

(2.) Original Plaintiff-Bhaskar Mukund Barve was the owner of the structure situated on plot of land bearing No.12A, Anand Nagar, Sion-Trombay Road, Chembur, Mumbai-71. Shop No.2 in the said structure admeasuring 150 sq.ft. is the suit premises, which was let out to Defendant's father-Fakruddin Ismailji alias Mulla Fakruddin Ismailjee by Tenancy Agreement dtd. 19/4/1976. Under the Agreement, monthly rent was agreed at Rs.100.00 and according to the Plaintiffs, additional amount of Rs.100.00 was payable for use of furniture and fixtures. The tenant carried on business of Kirana Stores from the suit premises and after the death of the original tenant, his son-Defendant started business of making chokes used in tubelight fittings. Plaintiff served Notice dtd. 13/5/1997 to one 'Janubai' (Defendant's brother) alleging non-payment of rent since March 1996 and referring to Clause-11 of the Tenancy Agreement, Plaintiff terminated the tenancy and called upon the addressee to handover possession of the suit premises. Landlord however did not initiate any steps in pursuance of that notice. Since Plaintiff was not recognising Defendant as tenant, he filed R.A.D. Suit No. 120/1999 against Plaintiff seeking declaration of tenancy. In that suit, a Notice was taken out for deposit of rent in the Court. After hearing both the sides, the notice was made absolute by order dtd. 3/7/2000, under which Defendant deposited the rent in respect of the suit premises at the rate of Rs.100.00 per month and continued to depositing the same.

(3.) Plaintiffs served notice dtd. 26/3/2003 to the Defendant alleging non-payment of rent from September 1996 and seeking recovery of possession of the suit premises on the grounds of non-payment of rent, bonafide requirement, unlawful subletting and unauthorised additions and alterations. The notice was replied by the Defendant on 5/4/2003 denying the allegations and contending that the rent was deposited in the Court till June 2003. In the above backdrop, Plaintiff filed R.A.E.& R. Suit No.1146/1829 of 2003 in the Court of Small Causes on 10/10/2003 seeking recovery of possession of the suit premises on the grounds of default in payment 21/10/2024 Neeta Sawant CRA-163-2003-FC of rent, unauthorised additions and alterations, bonafide requirement and unlawful subletting. After filing of R.A.E. and R. Suit No.1146/1829 of 2003, it appears that R.A.D. Suit No. 120/1999 came to be decreed on 10/6/2004 declaring the Defendant as the tenant in respect of the suit premises and allowing the Plaintiff to withdraw the deposited amount of rent. While decreeing the suit, the City Civil Court directed deposit of additional amount of Rs.100.00 per month from 1/4/1996 onwards. Accordingly, the Defendant deposited rent at the rate of Rs.200.00 per month in the Small Causes Court till May 2004.