DHONDIBA VITHALRAO JAGTAP Vs. PARUBAI MALHARI MORE

JUDGEMENT

(1.) THIS writ petition arises out of the suit filed being Civil Suit No. 245 of 1981, on the file of the 2nd Additional Small Causes Court, Pune where the plaintiffs who are the landlords of C. T. S. No. 52/1, Mangalwar Peth, Pune, sought eviction of the tenant Smt. Parubai Malhari More on four grounds: namely, defaulting payment of rent, bona fide need for their own occupation, alternative accommodation and non user. The trial Court decreed the suit on all these four grounds. The appellate Court, the findings entered by the trial Court on these issues were reversed and set aside the decree of eviction. It is in this circumstances, that the petitioners approach this Court by way of this writ petition. During the pendency of the writ petition, the original defendant Smt. Parubai More died and present respondents were impleaded and were served by this Court on 21-7-1997.

(2.) I have examined the judgments of the courts below and heard the arguments of the learned Counsel for the petitioners and respondents. I find reasoning stated by the lower appellate Court for setting aside the trial Court judgment and decree for eviction is perverse and illegal. The trial Court found on the issue of alternative accommodation that Smt. Parubai More instead of staying in the suit premises, permanently was staying in Door No. 215. Mangalwar Peth. It is pertinent to note that even the suit summons were sent to her at the address 215, Mangalwar Peth. Even suit notice was sent on that address. Her explanation at the time of examination was that she was staying at Door No. 215, temporarily for treatment. The trial Court had perused the evidence of D. W. 2. examined on behalf of the tenant. Mr. Manjulal Dhumal D. W. 2 had produced ration card purported to be of Zopadi No. 215, Plot No. 4, Mangalwar Peth. But the trial Court has found that the ration card actually produced by him was in respect of No. 55/56, Somwar Peth, Pune. It is pertinent to note that Mr. Manjulal Dhumal D. W. 2 was sought to be examined on behalf of the tenant to show that defendants stay in 215, Zopadi was only temporary for treatment and 215 is belonging to Manjunath Dhumal. However, the documentary evidence, as indicated above, proves otherwise and the trial Court has rightly held that the tenants contention that she was staying temporarily in Zopadi No. 215 cannot be believed. Against this fact finding, the appellate Court has found fault with the landlord for non production of any documentary evidence from corporation to show that Zopadi bearing No. 215 belongs to D. W. No. 2. I fail to appreciate that reasoning of the lower appellate Court. Even the evidence produced by the tenant itself belied her statement that she was temporarily staying in Zopadi No. 215. I do not think the lower appellate Court was justified in insisting on further evidence to be adduced by the landlord, that too, documentary evidence to prove that she was staying in Zopadi No. 215. In view of this, I do not think the Lower Appellate Court was justified in upsetting the findings on the alternative accommodation. While examining the issue of alternative accommodation, the trial Court has taken into consideration the evidence of landlord which has not been controverted that the suit premises has been always found locked. Therefore, the issues of alternative accommodation and non user as has been held by the trial Court has to be upheld.

(3.) THE next important issue is regarding the arrears of rent. The trial Court found that there was default in the payment of rent. Mainly, the trial Court, to arrive at this conclusion has relied upon the facts that the tenant has not produced any receipts for having paid the rent. Whereas it has come out in the evidence that in the earlier occasion, the receipts have been issued by the landlord. It is primary duty of the tenant who asserts that he has paid rent, to produce rent receipts and in the absence of sufficient explanation for non production of such rent receipts his statement cannot be believed. In the trial Court the witness was examined on behalf of the landlord. The lower appellate Court relied on the admission made by the witness on behalf of the landlord that he is in possession of the receipt book showing arrears of rent from 1. 12. 1974 and his inability to say as to whether any rent has been paid to his father, and his refusal to accept some amounts, will discharge the tenant from his burden who asserts that he has paid rent to the landlord. Therefore, in this case also the findings of the lower appellate Court is perverse and is liable to be set aside. Lower appellate Court erroneously rejected the findings of the trial Court about his default of payment of rent.