Bombay High Court
Prakash Dattaram Parulekat & Others vs Dattaram Damodar Diukar & Others on 4 December, 1998
Equivalent citations: 2000(1)BOMCR458, 1999 A I H C 1705, (1999) 3 MAH LJ 792, (1999) 2 MAHLR 591, (2000) 1 RENCJ 283, (1999) 2 RENCR 89, (1999) 2 RENTLR 121, (2000) 1 BOM CR 458
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. This petition arises from the judgment of the Administrative Tribunal passed on 18th August, 1997 in Eviction Appeal No. 16 of 1992. By the impunged judgment, the tribunal has allowed the Appeal filed by the respondents against the Order of the Rent Controller dated 25th May, 1992 and while setting aside the Order of the Rent Controller has allowed the application of the respondents for the eviction of the petitioners on the ground of bona fide personal requirement as well as on the ground of non payment of rent under section 22(2)(a) of the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 hereinafter called as "the said Act".
2. The petitioners are in occupation of southernmost compartment of House No. 115 situated in the property bearing Chalta No. 36 of P.T. Sheet No. 123 of city of Mapusa. The premises are situated at Dattawadi, Mapusa within Ward No. 9 of Mapusa Municipal Council.
3. Sometime in 1968, the original owners of the premises and the predecessors of the respondents filed Civil Suit No. 99 of 1968 on the ground that the predecessor of the petitioner No. 6 and the father of the respondents No. 1 to 5 on the ground that the lessee Gopinath had sub-let the premises to Dattaram, father of the petitioners No. 1 to 5 without the permission in writing from the owners. The suit was dismissed by the Civil Judge, Junior Division, Mapusa by Decree dated 25th January, 1971 and the Appeal preferred against the same was also dismissed by the District Judge, Panaji by Judgment and Order dated 28th February, 1975.
4. The father of respondents No. 1 to 5 thereafter filed another suit for eviction against said Gopinath in the Court of Rent Controller, Panaji bearing No. Rent/47/1978 on the ground that Gopinath had not paid the rent since 12th February, 1968 and had sub-let the premises without written permission to said Dattaram and had ceased to reside in the suit premises and that the suit premises were required for his personal occupation. The eviction suit was dismissed by the Rent Controller by Order dated 28th February, 1981. There was no appeal against the said order.
5. The third and the present proceedings were initiated on 13th October, 1986 being case No. Rent/ARC/68/86 on the ground of non payment of arrears of rent from July, 1978 to April, 1986, excavation of tiles, sub-letting of the premises without their written consent and failure to occupy the premises for a continuous period of four months as well as on the ground that the premises are required for bona fide occupation of the respondent No. 1 herein. The claim of the respondents was disputed and denied by the petitioners. The Additional Rent Controller, Mapusa who heard the matter holding that the respondents have failed to make out the case, dismissed the application for eviction by Order dated 25th May, 1992. Being aggrieved, the respondents preferred the appeal being Appeal No. 16 of 1992 before the Administrative Tribunal and by the impugned Order dated 18th August, 1997, the Tribunal as already stated allowed the Appeal on two grounds namely on the ground of non payment of rent and need for personal occupation of the respondent No. 1 and rejected the case on the ground of sub-letting as well as on the ground of non occupation of the premises.
6. While assailing the impugned Order, Shri S.G. Dessai, learned Senior Advocate appearing for the petitioners submitted that the findings arrived at by the Tribunal are so perverse, illegal and arbitrary that they are not borne out from the records, apart from the fact that the Tribunal adopted a totally wrong approach while appreciating the materials on record and has further allowed to re-open the issues which were already finally decided between the parties by a competent Court and which had attained finality for all purposes. On the other hand, it is the contention of Shri A.N.S. Nadkarni, learned Advocate appearing for the respondents that the Tribunal after analysing the materials on record in proper perspective has held that non payment of rent has been established as well as the need of the premises for personal occupation for the respondent No. 1 and both the findings are findings of fact based on the evidence and not permissible for the petitioners to seek the indulgence of this Court in writ jurisdiction to appreciate the evidence on record.
7. On perusal of the impugned judgment, the period in respect of which arrears of rent is from July, 1978 to April, 1986. The findings are that the petitioners on service of summons of the proceedings, deposited the rent for the months from September, 1981 till December, 1986, whereas the rent in respect of the period from March, 1981 to August, 1981 was found to be deposited in earlier and disposed case i.e. No, Rent/47/1978. Records also disclose that the said Rent Case No. 47/1978 was disposed of on 28th February, 1981. The Tribunal has also held that the respondents were justified in refusing rent sent by Money Orders by the petitioner Laxmibai, widow of Dattaram Parulekar since she was not the tenant in respect of the suit premises. In this respect, Shri S.G. Dessai, learned Senior Advocate appearing for the petitioners drawing my attention to the impugned judgment has submitted that the issue regarding landlord-tenant relationship between the parties was finally decided in Civil Suit No. 99 of 1968 and the Tribunal could not have been gone into the said issue over and again to hold contrary to the decision in the Civil Suit and the said issue. The contention of Shri A.N.S. Nadkarni, learned Advocate on the other hand is that the point of res judicata was never raised before the Lower Court and, therefore, there was no question of finding fault with the Tribunal having arrived at the finding about the absence of relationship of landlord and tenant between the parties. The impugned judgment clearly discloses that in Civil Suit No. 99 of 1968 the issue as to whether both, Gopinath and Dattaram, were the lessees in respect of the premises of the respondents was very much under consideration. In fact, the relevant issue in the said civil suit reproduced by the Tribunal in its judgment reads thus:-
"Whether the defendants- "the said Gopinath and Dattaram" proved that though the contract was made in the name of defendant No. 1, the same lease from the beginning was made for the occupation of premises by the defendants or brother and mother?"
The judgment of the Tribunal further discloses that the Civil Judge had answered the issue in the affirmative and in favour of Gopinath and Dattaram. In other words, the case of Gopinath and Dattaram that the lease of the suit premises, though the agreement thereof was executed in the name of Gopinath, was for the benefit of all the family members of Gopinath and Dattaram and the said contention was upheld in the said civil suit between the parties. In other words, the lease of the suit premises was not restricted in favour of Gopinath. It is an undisputed fact that the said judgment was subjected to appeal and the Appellate Court had dismissed the said appeal. There was no further challenge to the said decision by the respondents herein or their predecessors. In other words, the finding regarding the fact that the lease in respect of the suit premises is for the benefit of all members of the family of Gopinath and Dattaram attained finality having been adjudicated by a competent Court of law and, therefore, it was not permissible for the Tribunal to said issue and to arrive at a total different conclusion. Once, the said issue was not open before the Rent Controller for readjudication on account of finality arrived at by the decision of the Civil Court, it was not permissible for the Tribunal in the instant case to deal with the said issue afresh. Besides, in the written statement filed by the petitioners in Rent Case it was clearly stated that there was a Civil Suit between the parties wherein the Civil Court had clearly held that a lease was from the beginning for the occupation of the petitioners and their brother and mother. Therefore, the said issue could not have been re-opened before the Rent Controller. Mere absence of the expression "barred by principle of res judicata" in the written statement would not debar either the petitioners or the Tribunal from overlooking the fact that the Civil Court had finally decided the said issue and, therefore, it was not open for the Tribunal to go into the said issue afresh.
8. Once, it is clear that the lease was for the purpose of occupation of all the family members of the petitioners, the finding of the Tribunal that the respondents were justified in refusing the rent sent by Money Order by Laxmibai, the mother of the petitioners herein, cannot be sustained. Once, it is clear that Laxmibai was also one of the tenants in respect of the suit premises and this fact has been confirmed by the judgment of the Civil Court, it is apparent that the finding of the Tribunal that the refusal of the Money Order sent by Laxmibai in respect of the rent of the suit premises was justified is perverse and arbitrary. In fact, once it is held that Laxmibai was one of the tenants, there was no justification for the respondents to refuse the rent sent by her by Money Order. In that view of the matter, therefore, there is no case made out by the respondent regarding the non payment of rent. If the rent sent by Money Orders were illegally refused by the respondents then, it cannot be a ground for eviction on account of non payment of rent in respect of the period from September, 1981 to December, 1986.
9. As regards the period from March, 1981 to August, 1981, undisputedly, the rent was deposited in the Court of Rent Controller in Case No. Rent/47/ 1978. It is a fact that the said case was finally disposed of on 28th February, 1981. The contention of Shri A.N.A. Nadkarni, learned Advocate appearing for the respondents is that the alleged deposit is admittedly in different proceedings and that too which were already disposed of; being so, the same cannot be of any advantage to the petitioners to justify payment of rent. The learned Advocate sought to rely upon the judgment of the Division Bench of this Court in the matter of Vinod Kumar Gosalia and others v. Frank Silva Lobo Norton and others, reported in 1987(2) Bom.C.R. 613 and submitted that even time barred rent is required to be deposited by the tenant moment proceedings for eviction on the ground of non payment of rent are initiated. Being so, failure on the part of the petitioners to deposit the rent in the proceedings in which the allegation of non payment of rent had been made, certainly justifies the eviction order passed by the Tribunal.
10. Section 22(3) provides that no order for eviction of a tenant shall be passed on the grounds specified in Clause (a) of sub-section (2) if the tenant, thereof within 30 days from the service of notice of the proceedings on him pays to the landlord or deposits with the Controller the arrears of rent due by him upto the date of such payment, together with the cost of application. Sub-section (4) of section 22 provides that in any proceeding falling under Clause (a) of sub-section (2), if the Controller on the application being made to it, is satisfied that the tenant's default to pay, tender or deposit the rent was not without reasonable cause, he may, notwithstanding anything contained in sub-section (3) or in section 32, after giving the parties an opportunity of being heard, grant reasonable time to the tenant to pay or tender the rent due by him to the landlord upto the date of such payment or tender and on such payment or tender the application shall stand rejected. Section 32(1) provides that no tenant against whom a proceeding for eviction has been instituted by a landlord under the said Act shall be entitled to contest the proceedings under the said Act unless the tenant pays to the landlord or deposits with the Controller all the arrears of rent due in respect of the building upto the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings. Sub-section (2) of section 32 provides that the deposit of rent under sub-section (1) shall be made within such time and in such manner as may be prescribed. Rule 7 of Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Rules, 1968 hereinafter called as "the said Rules" provide for time within which and the manner of making the deposit of rent under section 32. It provides that a tenant, against whom proceedings for eviction are instituted by a landlord under the said Act, shall deposit all the arrears of rent due in respect of the building within one month from the date on which notice is served on him for the first time about such proceedings and shall continue to deposit the rent which may subsequently become due in respect of the building within 15 days from the date on which such rent shall become payable by him. It further provides that a tenant who desires to deposit the rent shall either personally or through an authorised agent make an application to the Controller in writing for the same and on such application being made the Controller shall pass an order directing the Treasury Office specified in the order to accept the deposit of the rent. For that purpose the Controller shall also countersign the challan form in triplicate. The tenant thereafter shall deposit the rent in the Treasury Office as directed by the Controller. It is pertinent to note that there is no special form of challan as such prescribed under the said Rules for the deposit of the rent, and the form of normal challan used in Government Offices is used for such deposits and the number of the case is always mentioned in the challan while depositing the rent in respect of which case the rent is deposited. It is undisputed that the rent for the period from March, 1981 to August, 1981 was deposited in Case No. 47/78. There is, however, no dispute between the parties that the said case was between the same parties and was in relation to the same suit premises. The plain reading of the various provisions contained in sections 22 and 32 of the said Act and Rule 7 of the said Rules, it is apparent that the deposit of rent is with the Rent Controller. References to the case number in challan while depositing the rent is to facilitate to know that the amount deposited pertains to rent in respect of particular case. Referring to such numbers in the challans, it becomes evident and easy to find out whether the depositor has deposited the rent in relation to particular proceedings or not. In other words, the disclosure of Rent Case number in the challan assists the Rent Controller to find out in which case the deposit has been made. This facilitate to identify the premises in respect of which the rent is deposited. For all purposes, however, the deposit is to the credit of the Rent Controller in the Treasury Office. No person is allowed to withdraw the said amount without necessary order by the Rent Controller. In other words, the Rent Controller is the custodian of such rent deposited by the tenant in respect of various premises involved in different cases before it. Such deposits lie in one account and with the Rent Controller; it is in fact immaterial as to in which case the rent is deposited. What is relevant is that the rent must be either paid to the landlord or must be available with the Rent Controller so that the landlord can withdraw the same. If, the rent is deposited in a case different from one in which the landlord/respondents were not parties to the same, the case would have been perhaps different. In the case in hand, it is not disputed that the parties in this case were also the parties in Rent Case No. 47/78. That apart, the premises involved in Rent Case No. 47/78 and in the matter in hand are also the same. In these set of facts, it cannot be said that the rent deposited in Case No. 47/78 cannot ensure to the benefit of the landlord/respondents. The respondents are certainly entitled to withdraw the said amount. The amount of rent was always available for the landlord to withdraw the same by the order of Rent Controller. Therefore, there is no case of any default by the petitioners in depositing the rent. Being so, the ground for eviction on account of non payment of rent was not at all available to the respondents and, therefore, the Tribunal has clearly acted arbitrarily and illegally in allowing the application of the respondents for eviction of the petitioners on the ground of non payment of rent. The findings in that regard are totally perverse and arbitrary and cannot be sustained and liable to be quashed and set aside.
11. The next ground on which the eviction has been ordered is on the ground of need of the premises for personal occupation of the respondent No. 1. In that regard, the submission of the learned Advocate for the petitioners is that the basic approach of the Tribunal in the matter of analysis of the materials on record is totally wrong inasmuch as the onus of proving that there is no bona fide need has been cast on the tenant without the respondents discharging the burden of proving that the premises were required for the personal occupation of the respondent No. 1. According to the learned Advocate, the impugned Order ex-facie discloses that there is no evidence on record in respect of the contention of the respondents that the premises in question were bona fide required for personal occupation of the respondent No. 1. As against this, it is the contention of Shri A.N.S. Nadkarni, learned Advocate appearing for the respondents that the onus of proving that there is no bona fide need of the premises for occupation of the landlord is always on the tenant. Considering the finding of the Tribunal that it is for the landlord to decide and choose where he should live and once respondents have expressed desire to occupy the suit premises as being required for their occupation, it was for the petitioners to disprove the same by placing on record positive evidence in that respect and the petitioners have failed to do so. Hence, no fault can be found with the findings arrived at by the Tribunal.
12. The learned Advocate for the petitioners sought to rely upon the various judgments of the Apex Court and Delhi High Court. They are in the matters of Rahabhar Productions Put. Ltd. v. Rajendra K. Tandon, , S.J. Ebenezer v. Velayudhan and others, . In the matter of M.M. Quasim v. Manohar Lal Sharma and others, and of the Delhi High Court in the matter of Ramlal v. Sh. Bharat Singh, reported 1992(1) R.C.J. 553 and Jagat Narain and others v. Mamleshwar Pershad and others, reported in A.I.R. 1986 Delhi 111. As against this, the learned Advocate Shri A.N.A. Nadkarni appearing for the respondents sought to rely upon the judgment of the Apex Court in the matter of Meenal Eknath Kshirsagar v. Traders and Agencies and another, .
13. As regards the finding of the Tribunal that the landlord/respondent has sufficiently proved about the bona fide personal requirement of the suit premises for the respondent No. 1, the same has been arrived at after observing that admittedly the landlord has four buildings, one of them is occupied by the brother of the respondent Manvendra and his family and the second and third by the tenants and the fourth by the paternal uncle by name Pandurang Diukar. It is also admitted position that the Tribunal has held that presently the respondent No. 1 resides in the house which has been taken on lease at Margao. Moreover, the Tribunal has not considered whether the other buildings which are stated to be in occupation of tenants, as to since when they are occupied by the tenants and since when the requirement for personal occupation of the respondent No. 1 arose. In this regard, the testimony of the respondent No. 1 before the Rent Controller discloses that apart from his claim that the suit premises are required for his bona fide occupation, the respondents have not disclosed any fact justifying or even remotely suggesting the need of the suit premises for his occupation. No doubt, he has been staying in rental premises at Margao. Undisputedly, the premises are situated at Mapusa which are at a distance of more than 50 kms. away from Margao. The testimony of the respondent No. 1 discloses that his business activities are restricted to the city of Margao. His two other brothers are also having business activities in the city of Margao and that of Vasco. As regards the other buildings in Mapusa which are rented out, the respondent No. 1 when he was questioned in the cross-examination as to since when the premises were rented out, the respondent No. 1 has expressed his inability to disclose the fact on the ground that he did not know since when the same were leased out. The undisputed fact is that the premises are belonging to the respondent No. 1 and prior to that to his parents. There is also a statement in the testimony of the respondent No. 1 that in addition to those four buildings there was one more building at Mapusa behind Bank of India but the same had collapsed. However, he was unable to tell the Court as to when the same had collapsed. Once, it is admitted fact by the respondents that there are about four more premises of the respondents within the city area of Mapusa and the same have been leased out, it was necessary for the respondents to disclose since when they have been leased out. This fact is relevant since if the said premises were leased out after the cause of action regarding personal occupation had arisen, certainly the application for eviction against the petitioners on the ground of need for personal occupation would not lie unless the respondents are able to establish as to why the respondents had chosen to seek eviction of the petitioners alone and why the respondents want the suit premises alone in comparison with the other premises which were vacant and were subsequently let out. There is no material in that regard on record nor there is any finding of the Tribunal on that point.
14. There is no doubt that the landlord is the best Judge of his residential requirement and the Apex Court in that regard has clearly held in Meenal Eknath Kshirsagar v. Traders and Agencies and another (supra) that it is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient, it is not for the courts to dictate to him to continue to occupy such premises. The decision of the Apex Court, therefore, clearly disclose that when a landlord owns more than one building and he wants to occupy a particular building it is necessary for such landlord to disclose as to why he chooses that particular building for his occupation and thereby justify the eviction of the tenant from such premises. In this regard, the Apex Court in the matter of Rahabhar Productions Put. Ltd. v. Rajendra K. Tandon (supra) has clearly held that the bona fide requirement of landlord should be genuine, honest and conceived in good faith. The landlord's desire for possession, however honest it might otherwise be, has, inevitably a subjective element in it. The "desire" to become "requirement" must have the objective element of a need which can be decided only by taking all the relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. Similar is the decision of the Apex Court in the matter of S.J. Ebenezer v. Velayudhan and others (supra) wherein it has been held that while considering the question of bona fide what is necessary to bear in mind is that mere "desire" on the part of the landlord is not enough. The desire must be tested objectively and not subjectively. The burden also lies upon the landlord to establish that he genuinely requires the accommodation. The landlord has no unfettered right to choose the premises so as to defeat the rights of the tenant in occupation of rental premises and that is why the Apex Court in the matter of M. M. Quasim v. Manohar Lal (supra) has held that when examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. Considering this aspect, when the facts on record disclose existence of more than one building available for the landlord and the landlord claims that the same has been rented out, it is necessary to find out whether the same were rented out prior to the arising of need of the premises for the personal occupation of the landlord or thereafter. In case where the other premises were rented out after such need had arisen, the application for eviction will have to be dismissed since in such cases it cannot be said that the need is bona fide. Similar are the decisions of the Delhi High Court referred to by the learned Advocate for the petitioners.
15. Considering the above aspect, therefore, the findings arrived at by the Tribunal on the point of need of premises for personal occupation of the respondent No. 1, are arbitrary and perverse and not borne out from the records and, therefore, cannot be sustained.
16. In the result, the petition succeeds and the impugned Order is liable to be quashed and set aside and the application for eviction of the petitioners filed by the respondents is liable to be dismissed.
17. The impugned Order is accordingly hereby quashed and set aside. The application filed by the respondents for eviction of the petitioners from the suit premises on the ground of non payment of rent and need of premises for personal occupation in Rent Case No. Rent/ARC/68/86 before the Rent Controller, North Goa, Panaji and decided by the Additional Rent Controller, Mapusa is hereby dismissed. Rule is made absolute in the above terms. The respondents to pay costs of Rs. 2000/- to the petitioners.
20. Petition succeed.