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JainuddIn Abdul Rehman Shaikh Vs. Sitaram Damodhar Varvadhar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2554 of 1975
Judge
Reported in1981MhLJ498
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11, 12, 13 and 13(1)
AppellantJainuddIn Abdul Rehman Shaikh
RespondentSitaram Damodhar Varvadhar and ors.
Appellant AdvocateM.A. Rane and ; J.A. Barday, Advs.
Respondent AdvocateAjit P. Shah, Adv. for respondent No. 1
Excerpt:
tenancy - possession - sections 11, 12, 13 and 13 (1) of bombay rents, hotel and lodging house rates control act, 1947 - suit filed by one of co-owners against tenant for possession - suit decreed in favour of co-owner on ground of bona fide requirement of co-owner - tenant filed petition challenging decree - decree cannot be refused against one of co-owners if he satisfies necessary requirements of sections 12 and 13 - if other co-owners does not want that plaintiff co-owners should get exclusive possession his remedy will be by way of filing separate suit for partition and possession of suit premise - landlord can claim possession under section 13 (1) (g) for himself and for other co-owner - held, decree for possession in favour of one of co-owners sustained. - - 1 had made.....m.p. kanade, j.1. this application under article 227 of the constitution of india has been filed by the original defendant no. 1, tenant challenging the legality and correctness of the order passed by the learned assistant judge, sholapur, dated august 25, 1975.2. few relevant and material facts giving rise to this special civil application are as under:respondent no. 1 sitaram damodhar varadkar filed regular civil suit no. 1061 of 1969 in the court of the civil judge, junior division, sholapur. it is alleged by the plaintiff in his suit that the plaintiff and defendant no. 2, deceased sadashiv krishna varvadkar, the uncle and nephew respective are the owners of the suit premises, which is a cinema there are known as 'laxmi talkies' at sholapur bearing city survey nos. 8601 and 8603.....
Judgment:

M.P. Kanade, J.

1. This application under Article 227 of the Constitution of India has been filed by the original defendant No. 1, tenant challenging the legality and correctness of the order passed by the learned Assistant Judge, Sholapur, dated August 25, 1975.

2. Few relevant and material facts giving rise to this Special Civil Application are as under:

Respondent No. 1 Sitaram Damodhar Varadkar filed Regular Civil Suit No. 1061 of 1969 in the Court of the Civil Judge, Junior Division, Sholapur. It is alleged by the plaintiff in his suit that the plaintiff and defendant No. 2, deceased Sadashiv Krishna Varvadkar, the uncle and nephew respective are the owners of the suit premises, which is a cinema there are known as 'Laxmi Talkies' at Sholapur bearing City Survey Nos. 8601 and 8603 bearing Municipal House No. 64 and defendant No. 1 is the tenant in the suit premises at a monthly rent of Rs. 360/-. It appears that defendant No. 1 separately paid the rent half each to the plaintiff and original defendant No. 2. The tenant pays Rs. 180/- to the plaintiff and Rs. 180/- to defendant No. 2. It is alleged that the suit premises are managed by the plaintiff himself and it is, therefore, he filed the suit for recovery of rent against defendant No. 1 in the year 1967 as also another suit against defendant No. 1 being Regular Civil Suit No. 326 of 1967 since defendant No. 1 had constructed some portion of the premises without the permission of the plaintiff. It is alleged that both the suits were compromised and defendant No. 1 contained as a tenant in the suit premises. It is further alleged that defendant No. 1 was in arrears of rent since June 1, 1967 to September 1969 for 28 months and accordingly the tenant has become defaulter in payment of rent. A notice, dated October 26, 1969 is said to be served on the tenant. By the said notice, the plaintiff terminated the tenancy of defendant No. 1 as on November 30, 1969. It is further alleged that defendant No. 1 tenant had removed two rows of chairs from the first floor of the theatre and had removed wooden stair case worth Rs. 200/-, some wooden rafters and marble slabs without the permission of the plaintiff and caused damage to the property to the extent of Rs. 1000/-. It is further alleged that defendant No. 1 had made alterations by constructing a well on a passage of three feet in width and closed it, and thereby be caused obstructions to the passage of the plaintiff for his own use. The plaintiff also claimed possession of the suit premises for bona fide use and occupation for himself and for his children. Besides the civil suit, the plaintiff also filed an application being Misc. Application No. 284 of 1969 for determination of the standard rent of the suit premises. The plaintiff claimed Rs. 800/- per month as standard rent for the suit premises.

3. The said suit and application of the plaintiff were resisted by defendant No. 1 contending inter alia that at the time when he had taken the suit premises on rent it was not in a fit condition to be used as cinema theatre for exhibiting pictures and, therefore, he was required to effect repairs and to provide furniture for which he was required to spend about Rs. 40,000/- to Rs. 45,000/-. He admitted that he pays half the rent to each of the owners the plaintiff and defendant No. 2. It is further contended by defendant No. 1 that the suit filed by the plaintiff alone was not maintainable. Defendant No. 2 was a proper and necessary party to the suit. Defendant No. 1 further contended that the notice is defective and invalid. The notice of termination ought to have been issued by both the owners and in the absence of consent of defendant No. 2, the notice of termination of tenancy is invalid. It was also further contended by defendant No. 1 that the suit filed by the plaintiff alone is not maintainable without the consent and approval of defendant No. 2, who is co-owner of the suit premises. Lastly it was contended by defendant No. 1 that the plaintiff's prayer for bona fide use and occupation of the suit premises for himself and for his children is not true and correct.

4. Defendant No. 2 also resisted an application for standard rent and contended that the standard rent of Rs. 360/- was reasonable and proper. Defendant No. 2 also filed his written statement. It is contended by defendant No. 2 that the notice of termination of tenancy issued by the plaintiff alone is not valid. The suit filed by the plaintiff alone is not maintainable. Further it is contended that the plaintiff's bona fide use and occupation is not valid and he opposed the said prayer for possession on the ground of bona fide requirement of the suit premises. In effect, he supported the tenant's case that an order of eviction should not be passed and possession of the suit premises should not be restored to the plaintiff alone. With regard to standard rent, defendant No. 2 contended that Rs. 360/- would be proper and reasonable rent of the suit premises.

5. On the aforesaid pleadings of the parties, the learned Judge of the trial Court was pleased to frame as many as 14 issues and directed the parties to lead their evidence in support of their respective contentions. The parties led evidence oral as well as documentary and on appreciation and consideration of the evidence on record, the learned trial Judge was pleased to dismiss the plaintiff's suit on the ground that the notice of termination of tenancy of defendant No. 1 is invalid. Only issues Nos. 2 and 3 viz. the requirement of the suit premises for his own bona fide use and occupation, and if a decree for eviction is not passed, he will suffer a greater hardship, were recorded in favour of plaintiff. However, on the point of legality of the notice, the plaintiff's suit was dismissed by the trial Court, by the judgment and decree, dated December 15, 1971.

6. The plaintiff landlord feeling aggrieved by the aforesaid judgment and decree passed by the trial Court, preferred an appeal to the District Judge of Sholapur being Civil Appeal No. 69 of 1972. That appeal was heard by the learned Assistant Judge, Sholapur and after hearing the parties the learned Judge of the Appellate Court was pleased to allow the appeal. The decree of the lower Court was set aside and defendant No. 1 was directed to deliver possession of the suit premises to the plaintiff. The learned Judge of the appeal Court confirmed all the findings recorded by trial Court except the finding as to the legality of the notice and the standard rent of the suit premises. The learned Judge of the appeal Court was also pleased to confirm the finding as to the bona fide requirement of the suit premises for the use and occupation of the landlord and on the ground of comparative hardship, by the judgment and decree, dated August 25, 1975. The said judgment and decree passed by the learned Assistant Judge, Sholapur is challenged in this Special Civil Application under Article 227 of the Constitution of India.

7. Shri M.A. Rane, the learned Counsel appearing on behalf of the petitioner herein, urged that the suit by one of the co-owners is not maintainable. It is also argued that the claim of one of the co-owners for personal requirement of the suit premises for use and occupation is not maintainable, when the other co-owner does not give his consent. It is also submitted by Shri Rane that the concurrent findings of fact recorded by the courts below as to the bona fide and reasonable requirement of the landlord and his comparative hardship are vitiated by an error of law. Lastly, it is urged that the finding as to the standard rent at the rate of Rs. 800/- per month is not justified by the record of the case.

8. The concurrent findings on issue Nos. 2 and 3 are attacked by Shri Rane on the ground that certain important circumstantial evidence has not been taken into account while recording the findings. In support of his submission Shri Rane relied upon Supreme Court judgment in Damadilal and others v. Parashram and others, : AIR1976SC2229 . It is observed in the said judgment that finding of fact arrived at ignoring important and relevant evidence is bad in law. While relying upon the said observation, Shri Rane pointed out that the strained relationship between the plaintiff and defendant No. 1 since 1960 or thereafter has been totally ignored by the learned Assistant Judge, Sholapur. He relied upon the admission made by the plaintiff that the relations between the plaintiff and defendant No. 1 were not cordial and they were strained. It is true, from the evidence it appears, that the relations between the plaintiff on the one hand and defendant No. 1 on the other were not cordial. Secondly, Shri Rane pointed out that there were three suits filed by the plaintiff against defendant No. 1 in respect of the suit premises for eviction. The first suit No. 326 of 1967 and Civil suit No. 734 of 1967 came to be settled between the parties. The third suit filed by the plaintiff is Regular Civil suit No. 379 of 1968. The said suit was for permanent injunction restraining defendant No. 1 from carrying out certain work in the theatre. There was also a criminal complaint between the parties. It is argued that in the circumstances of the case those strained relationship ought to have been taken into account while recording a finding on bona fide requirement and comparative hardship. According to Shri Rane, the strained relations between the landlord and tenant is a circumstance and material to consider bona fide requirement. As a matter of fact, no such issue was framed in the trial Court. Having regard to the other issues, the evidence must have been led by the parties or questions might have been asked in the cross-examination of the plaintiff and defendant No. 2. It is rather difficult to accept this submission of Shri Rane that the strained relations between the landlord and the tenant is a circumstances which has got to be taken into account for the purpose of recording a finding for bona fide requirement. In order to get a decree for possession on the ground of bona fide requirement, the plaintiff has to prove his requirement. He has to satisfy the Court that there is an element of necessity for obtaining order of eviction on the ground of bona fide requirement. Now, it is well settled the in order to record a finding on bona fide requirement the Court has got to take into account not only the need of the landlord, but in the said need there must be an element of necessity. A mere sweet will, convenience, vim and fancy of the landlord will not be enough to show that the landlord requires the premises. The landlord must show certain circumstances or facts proving his need and some necessity for the landlord. The need should be based on hard reality. It is not a question of sentiment, desire or strained relations of parties. The requirement of the landlord will have to be assessed with a standard of a prudent man. There are essential requirements in order to record a finding as to the bona fide requirement. In my view, it is not necessary to take a circumstance of strained relationship between the landlord and tenant in order to record a finding on the bona fide requirement. The strained relations between the parties will be hardly relevant for such finding. The learned appellate Judge was justified on appreciation of evidence to confirm the finding record by the trial Court on issue Nos. 2 and 3.

9. With regard to finding as to the hardship, Shri Rane submitted that the lower Court as well as the Appellate Court had not properly balanced the hardship of the landlord plaintiff and tenant defendant No. 1. Shri Rane pointed out that right from the year 1955, or even earlier to the year 1955, the tenant was conducting the theatre and if a decree for eviction is passed against him, a greater hardship will be caused to the tenant. This is a pure question of fact. Both the Courts below on appreciation of evidence recorded a finding that the plaintiff shall suffer a greater hardship. There is no error apparent on the face of record in recording findings on issue Nos. 2 and 3. This Court, while entertaining an application under Article 227 of the Constitution of India shall not be justified in interfering with those findings. This Court cannot convert into itself as an Appellate Court to reappreciate the evidence and record a finding. In these circumstances, there is no substance in the contention raised by Shri Rane.

10. Then, Shri Rane on behalf of the petitioner argued on the question of legality and validity of the notice issued by one of the co-owners of the suit premises. It is pointed out that in the present case, defendant No. 2 who is the co-owner of the plaintiff has been added as party to the suit. Defendant No. 2 has filed his written statement and contended that the quit notice terminating the tenancy of the tenant defendant No. 1 was not legal. He opposed the plaintiff's suit for eviction on the ground of bona fide requirement. In the said circumstances, it is argued that the notice of termination ought to have been issued by all the owners.

11. In support of his contention, Shri Rane strongly relied upon the observations of the Full Bench judgment of the Gujarat High Court in Nanalal Girdharlal and another v. Gulamnabai Jamalbhai Motorwala and others, : AIR1973Guj131 . As against this, Shri Ajit P. Shah the learned Counsel appearing on behalf of respondent No. 1 cited two Supreme Court judgment sin support of the contention that the notice issued by one of the co-owners would be valid, reported in Shri Ram Pasricha v. Jagannath and others, : [1977]1SCR395 and Smt. Kanta Goel v. B.P. Pathak and others, : [1977]3SCR412 . In both the above authorities, it is observed :---

'It is only the landlord who can terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant'.

In paragraph 29 at page 2339 of the judgment in Shri Ram Pasricha v. Jagannath and others (supra) it is further observed :

'Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of section 13(1)(f). It is not necessary to establish that the plaintiff is only owner of the property for the purpose of section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledge landlord of the defendants'.

This observations has been followed by the later judgment in : [1977]3SCR412 (supra). The said observations is reproduced in para 7 of the said judgment. It is further observed in para 7 of the said judgment that the law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction fails. It is, however, further stated in the same para :

'We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner'.

Mr. Ajit Shah also relied upon two more cases in support of his contention, one, of the Calcutta High Court in Dwarka Nath Mitter and others v. Tara Prosunna Roy and others, I.L.R. 17 Cal 163 and second of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, : [1980]1SCR334 . Shri Rane having carefully read the said judgment in : [1977]3SCR412 , tried to take advantage of the observations made in paragraph 7 of the judgment and contended that the two authorities of the Supreme Court referred to above would not apply to the facts of the present case. It is urged that in the present case admittedly there are two owner of the suit premises, the plaintiff and the other defendant No. 2. Defendant No. 2 has not given his consent for filing the suit by the plaintiff against defendant No. 1. Defendant No. 2 has opposed the claim of the plaintiff for bona fide requirement. In the said circumstances, a decree on the ground of bona fide requirement of the plaintiff alone, according to the second defendant, could not be justified as observed by the Supreme Court. This contention is resisted by Shri Ajit P. Shah on several grounds.

12. Shri Shah submitted that the plaintiff for all practical purposes is an acknowledge landlord of the tenant. Defendant No. 2 may be proper party, but not a necessary party to the suit, in view of the observations made in two Supreme Court cases referred to above. A co-owner is entitled to file a suit for bona fide requirement for himself or for the members of his family. No relief is claimed in the present case against defendant No. 2. It is further argued that in a suit for eviction against the tenant by the co-owner the interest of the other co-owners cannot be affected in any way. If one of the co-owners files a suit against the tenant and obtains possession of the suit premises, the premises encumbered by induction of the tenant is removed if the plaintiff's suit succeeds. If a co-owner is not satisfied with a decree for exclusive possession in favour of one of the co-owners, his remedy is only to file a separate suit for partition and get his share democrated. It would be dangerous proposition that in cases of this type, a co-owner as a defendant can oppose the suit of one of the co-owners for possession of the suit premises claiming a decree for eviction of the tenant. There is a considerable substance in the contention of Shri Shah. It is now well settled that in view of the judgments in A.I.R. 1976 SC 2235 and : [1977]3SCR412 , referred to above, one of the co-owners can file a suit for eviction against the tenant. The landlord who had let out his premises to a tenant and heirs succeeded to his estate and one of the co-heirs files a suit for eviction against the tenant on he ground of bona fide requirement for himself, his mother or married brother, such a suit shall be maintainable, and decree for possession in favour of one of the co-owners shall be passed.

13. I am unable to appreciate the submission of Shri Rane that in case where the co-owners does not give his consent for institution of the suit by one of the co-owners and resists such a suit, if filed, no decree on the ground of bona fide requirement for use and occupation can be passed. In my view, having regard to the observations made by the Supreme Court in the cases referred to above, the co-owner may be added as a party but he cannot be considered a necessary party to the suit by one of the co-owners. He cannot resists the suit of the co-owner and contend that no decree can be passed in favour of the co-owner on any of the grounds given in the Rent Act. On the contrary, there is the admission of the landlord's rent farmer that no maintenance contract had been entered into by the landlords for the due upkeep of the lift. In other words, the landlords sat back, did nothing towards keeping the lift in a working condition and want only allowed the lift to develop the defects listed by the Lift Inspector which were within their power and control to prevent by taking reasonable care which they totally and absolutely failed to do. It does not behave the landlords not to carry out the barest of repairs undertake no maintenance, take no proper and reasonable care of the lift and thereafter plead helplessness on their part. The degree of the landlord's culpability is demonstrated by the starting fact that the Lift Inspector found the machine room being to discontinue from doing. Take for instance, the tenant is damaging the suit premises, causing waste to it, sub-letting the premises or demolishing the same and without the permission of the landlord altering the structure or constructing a permanent structure and if a co-owner files a suit on the grounds mentioned above against the tenant for eviction, how the co-owner can oppose such a suit? If one of the co-owners is trying to remove the encumbrance on the tenanted premises within the ambit of the provisions of the Rent Act, then the decree for eviction in any way will not be inconsistent with, or contrary to the interest of the co-owners. In such a suit if a co-owner is added as a party, no relief can be asked against him. If the co-owner obtains possession in pursuance of the decree passed in his favour by the competent Court, his possession will be deemed to be the possession on behalf of all the co-owners. And if the co-owner is not happy with possession of the other co-owners, his remedy is only to file a separate suit for petition and possession and get his share in a proper proceedings democrated. Shri Rane has no disputed that the co-owners can file a suit for bona fide requirement for his use and occupation of the suit premises for himself or for any member of his family. However his grievance is that if a co-owner opposes such suit, no decree for exclusive possession in favour of one of the co-owners can be passed. It is rather not possible to accept this submission of Shri Rane. Because in such a suit filed by one of the co-owners for eviction, it cannot be detrimental to the interest of the other co-owners. Take a case where the tenant does not pay arrears of rent and a suit is filed for recovery of arrears of rent making the co-owners as party defendant, can he oppose the said suit on the round that the rent should not be paid to the co-owners. Take a case, where a suit for eviction is opposed on the ground of causing damage to the building let out to a tenant, or causing waste of some kind, can the co-owners join the hands with the tenant to oppose the suit contending that the decree should not be passed in favour of co-owners. It will be dangerous proposition to allow the co-owners to oppose such a suit for a eviction by another co-owners or any grounds whatsoever, joining the hands with recalcitrant tenant and refuse to give consent for institution of the suit. In these circumstances and having regard to the observations made by the Supreme Court in the two cases referred to above, the contention of Shri Rane cannot be accepted.

14. Shri Rane further argue that under the general law it is possible to take such a view that the co-owners cannot resist the suit filed by the other co-owners for possession of the tenanted premises and that he is not in agreement with the co-owners to file such a suit for an action for eviction against the tenant, he may file a civil suit for partition and get his share democrated. But having regard to the specific provision of the Bombay Rent Act, which protects the rights of the tenants, if the co-owners resists the suit or does not give his consent or agree with the contention of the plaintiff, then the decree for eviction cannot be passed, on the ground of bona fide requirement for personal use and occupation. It is true that the rights of the tenants to a large extent are protected by the provision of the Rent Act. The landlord cannot evict the tenant unless he satisfy the Court that the requirements of the landlord as provided by the provisions of sections 12 and 13 of the Rent Act are fulfilled. The landlord who filed a suit for bona fide requirement of the suit premises for use and occupation, he has got to satisfy the Court that there is an element of necessity for filing a suit for eviction of the tenant. Mere desires is not sufficient to pass a decree for eviction. Secondly, the landlord has got to satisfy the Court that there is a greater hardship to the landlord than to the tenant if a decree for eviction is refused. Unless those two requirements are satisfied, no decree can be passed. The question in this case is as to whether the requirement of one of co-owners is having been satisfied, the Court can refuse to pass a decree on the ground that his co-owners is opposing the said decree. In my view, the decree cannot be refused against one of the co-owners, if he satisfied the necessary requirement of the provision of sections 12 and 13 of the Bombay Rent Act. If the other co-owners does not want that the plaintiff co-owners should get exclusive possession his remedy will be by way of filing separate suit for partition and possession of the suit premise. Now, it is well settled that the landlord can claim possession under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 for himself or for the members of his family, including the members of the family of the other co-owners. I do not find any impediment or a provision in the Bombay Rent Act, which would give co-owner a right to oppose the decree for eviction on the ground of bona fide requirement, because a co-owner is not supporting the other co-owners suit for possession. In view of the observations made above, the contention raised by Shri Rane must fail. Further the contention of Shri Rant, that the notice terminating the tenancy by one of the co-owners does not survive in view of the decision of the Supreme Court in V. Dhanpal Chettiar v. Yasodai Ammal (supra).

15. Shri Rane lastly argued that the Appellate Court has committed an error in reversing the finding as to the standard rent of the suit premises. It is submitted that the finding, that Rs. 360/- was the concessional rent of the suit premises, is not justified by the record. According to Shri Rane the total seats in the Cinema theatre were 617 which had been reduced to 390 seats and it was, therefore, the rent of the suit premises had been reduced and it was not by way of concessional rent, it was fixed at Rs. 360/-. There is no substance in this contention also. It is essentially a question of fact. Normally this Court should not interfere with the find of fact regard to the standard rent. In order to remove any ambiguity, it is necessary to state few facts.

16. It is an admitted fact that the plaintiff and defendant No. 2 purchased the suit property in the year 1942 for an amount of Rs. 31,000/-. Initially, the suit premises were used to perform dramas and Tamashas. In the year 1943, one Kisanprasad was paying the rent at the rate of Rs. 23.50 per day which comes to Rs. 700/- per month. In the year 1943 the said premises were leased out to one Khajabai Abdul Rehman at the rate of Rs. 500/- per month. In the year 1946, Tamsaha theatre was converted into Cinema theatre and an amount of Rs. 24,000/- was spent for remodelling the said theatre. After remodelling, it was let out on March 17, 1947 to one Nallamandu restored possession somewhere in 1950-51 to the landlords. In 1951-52 again it was let out to one Nagnath Baburao Rasale at the rate of 600/- per month. The plaintiff has stated that it was a depression period for the Cinema business and, therefore, an amount was reduced. It is further stated that an amount of Rs. 6,000/- was deposited by the said Resale with the plaintiff as an advance without interest. From these two facts, namely, the depression in the Cinema business and a deposit of Rs. 6,000/- without interest it may be stated that there was no reduction as such in the rent. The tenant Rasale, it appears, did not pay the rent at all till July 2, 1955. In 1955, the suit premises were let out to the petitioner defendant No. 1. It has come in evidence of the plaintiff and defendant No. 2 also that when the premises were let to defendant No. 1 an amount of Rs. 22,000/- by way of arrears of rent was due from Rasale. Defendant No. 1 was conducting the theatre since 1952-53 and he continued to conduct the said theatre. Resale is said to have stated the if the suit premises are let out to defendant No. 1, he may restore possession to defendant No. 1 and not to the plaintiff and defendant No. 2. It was, under the said circumstances, the suit premises were let out to defendant No. 1 at the rate of Rs. 360/- per month. The Assistant Judge has taken into consideration the evidence in respect of the concessional rent at the rate of Rs. 360/-. Shri Ajit P. Shah read out of the evidence of plaintiff and defendant No. 2. Defendant No. 2 who is supporting defendant No. 1's case has stated in paragraph 8 of his deposition :

'It is true that Jainuddin was leased out the suit premises at lesser rent than Rasale and Nallamandu. It is true that we were unable to get possession through Rasale. Rasale told us that if we were ready to lease out Jainuddin at Rs. 360/- per month rent, then alone the possession will be delivered and as such we ware constrained to lease out the suit premise to the defendant No. 1 at the rate of Rs. 360/-. We also were required to grant remission of the rent arrears accumulated. It is true that we had no alternative but to lease out at lesser rent than the rent paid by previous tenants under the circumstances'.

Having regard to the statement of defendant No. 2 it is not possible to say that the finding recorded by the Appellate Court with regard to concessional rent is perverse. There is sufficient evidence on record to come to the conclusion that the rent at the rate of Rs. 360/- per month appears to be the concessional rent. It is not disputed by defendant No. 1 that the premises were let out at one time at the rate of Rs. 800/- per month, particularly, after remodelling the theatre. Therefore, it appears that the learned Assistant Judge was right in coming to the conclusion that the standard rent of the suit premises would be at Rs. 800/- per month. Exhibit 69 is a licence dated July 20, 1951, granted by the District Superintendent of Police, Sholapur. The tenant defendant No. 1 has stated in his deposition that the theatre can accommodate 400 persons. From the record and depositions of plaintiff, defendant Nos. 1 and 2, it is not possible to come to the conclusion that the rent at the rate of Rs. 360/- is reduced rent because the reduction in the seats was made. It is nobody's case that there was reduction in the rent because of the reduction in the seats. What is contended by defendant No. 1 is that the rent was agreed at the rate of Rs. 360/- and that will be the standard rent. As stated above, after remodelling and even after July 20, 1951 on which day the order of the Superintendent of Police was passed on Exhibit 69, the suit premises were let out at Rs. 600/- in the year 1951-52. Having regard to all these, facts, material on record and circumstances, the learned Assistant Judge has correctly arrived at the conclusion that the standard rent of the suit premises will be at the rate of Rs. 800/-. I do not find any error muchless an error apparent on the face of the record to interfere with said finding and it is, therefore, the submission of Shri Rane in this regard also deserves to be rejected.

In the result, the rule in this special civil application stands discharged with costs throughout.


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