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Gurucharansingh Mohansingh Jamadar Vs. Nanded Sikh Gurudwara Sachkhand Shri Hazur Saheb Board Through Its Special Officer-cum-superintendent - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 472 of 1980
Judge
Reported in1982(2)BomCR5
ActsHyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 - Sections 15(2) and 26
AppellantGurucharansingh Mohansingh Jamadar
RespondentNanded Sikh Gurudwara Sachkhand Shri Hazur Saheb Board Through Its Special Officer-cum-superintenden
Appellant AdvocateA.G. Godhamgaonkar, Adv.
Respondent AdvocateM.D. Pathak, Adv.
DispositionApplication dismissed
Excerpt:
.....in payment of the arrears of rent as well as rent for the current months. 10. it is next urged by shri godhamgaonkar that the courts below have not considered the proviso to section 15 of the hyderabad rent act and this clearly amounts to non-application of mind on the part of the courts below. according to shri godhamgaonkar, the rent controller ought to have given 15 day's time to the tenant to deposit arrears of rent and if the tenant were to fail to deposit the said amount during the said period, then only the rent controller would have been at liberty to pass the ejectment order. if the collector, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied -(i) that the tenant has not paid or tendered the rent due by him in respect of the..........for ejectment be not passed.4. on these rival contentions, the parties went for trial. before the rent controller, the respondent lead the evidence of bill collector and filed some documents on record. the tenant, in spite of several opportunities being given to him by the rent controller, did not choose to remain present and file any evidence on record. with the result, the rent controller accepted the evidence of the bill collector and came to the conclusion that having regard to the period for which the tenant remained in arrears itself shows that he was a wilful defaulter and, accordingly, he held the tenant to be a wilful defaulter and passed a decree for eviction. the order of the rent controller is dated august 6, 1979.5. aggrieved by this order, the tenant preferred an appeal to.....
Judgment:

S.P. Kurdurkar, J.

1. This civil revision application under section 26 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, (hereinafter referred to as 'the Hyderabad Rent Act') is filed by the petitioner-tenant challenging the concurrent orders of eviction passed by the courts below.

2. The respondent is the Nanded Sikh Gurudwara Sachkhand Shri Hazur Saheb Board (hereinafter referred to as 'the Gurudwara') represented through its Special Officer-cum-Superintendent. The respondent is the landlord. It is no more in dispute that two rooms bearing No. 13 Municipal House No. 3-1-356 situated at Gurudwara is the subject-matter of the present litigation. There is also no dispute about the relationship between the parties. There is also no dispute that the monthly contractual rent in respect of the suit premises is Rs. 13.75 p. The tenant remained in arrears of rent from August 1968 to September 1975 roughly for 86 months. The total amount of rent in arrears was Rs. 1182.50 p. when quit notice was issued by the respondent on October 4, 1975. In spite of this notice, it is admitted position that the tenant did not deposit or pay any amount towards arrears to the respondent. On December 18, 1975, the respondent filed an application under section 15 of the Hyderabad Rent Act for eviction of the tenant. The only ground on which the ejectment was sought is that the tenant is a wilful defaulter who did not pay the rent for 86 months in spite of repeated demands made on behalf of the respondent. The respondent, therefore, prayed that the decree for ejectment be passed against the tenant.

3. The tenant by his written statement filed on October 19, 1976, denied that he was a wilful defaulter. The tenant, however, admitted that he was in arrears for 86 months but, according to him, as he was jobless and suffering from various diseases, he was unable to pay the rent to the respondent. The tenant further stated that he was all along requesting the respondent to give him time to pay the arrears. According to the tenant, he is not a wilful defaulter but defaults occurred due to the peculiar circumstances relating to his ill-health and being jobless. Lastly it was stated by the tenant that the Gurudwara also owe Rs. 3,000/- to him in respect of the structure purchased by the Gurudwara and, therefore, that amount may be treated as payment towards the arrears of rent and the decree for ejectment be not passed.

4. On these rival contentions, the parties went for trial. Before the Rent Controller, the respondent lead the evidence of Bill Collector and filed some documents on record. The tenant, in spite of several opportunities being given to him by the Rent Controller, did not choose to remain present and file any evidence on record. With the result, the Rent Controller accepted the evidence of the Bill Collector and came to the conclusion that having regard to the period for which the tenant remained in arrears itself shows that he was a wilful defaulter and, accordingly, he held the tenant to be a wilful defaulter and passed a decree for eviction. The order of the Rent Controller is dated August 6, 1979.

5. Aggrieved by this order, the tenant preferred an appeal to the District Court at Nanded. The learned District Judge on reappraisal of the oral and documentary evidence on record by a judgment and order dated April 25, 1980, dismissed the appeal and confirmed the order passed by the Rent Controller. It is against these concurrent judgments and orders of the courts below, the tenant has filed this civil revision application to this Court under section 26 of the Hyderabad Rent Act.

6. Shri A.G. Godhamgaonkar, learned Advocate appears on behalf of the petitioner-tenant, whereas Shri M.D. Pathak, learned Advocate appears for the respondent. Both the learned advocates informed the Court that the parties have consented for the matter being heard at Aurangabad and I, therefore, proceed to hear the matter.

7. Shri Godhamgaonkar learned Advocate for the petitioner-tenant, firstly submitted that the Deputy Collector had not given sufficient opportunity to the tenant to lead oral and documentary evidence and, therefore, the matter should be remanded back to the Rent Controller. I see no substance in this contention. I have gone through the proceeding sheet and it is clear that on several occasions the matter was required to be adjourned as the Advocate as well as the tenant were absent. In my opinion, if this was the conduct of the tenant, no blame whatsoever can be thrown on the Rent Controller for not giving sufficient opportunity to the party to lead evidence.

8. It is next urged by Shri Godhamgaonkar that none of the courts below have recorded a finding that the tenant is a wilful defaulter. According to Shri Godhamgaonkar, mere finding that a tenant is a defaulter does not amount to a wilful default and does not enable the landlord to obtain a decree for ejectment. Shri Godhamgaonkar, in support of this submission, heavily relied upon the provisions of section 15 of the Hyderabad Rent Act. It is true that under the Hyderabad Rent Act, what is required to be proved by the landlord is that the tenant on the date of the filing of the ejectment application was a wilful defaulter. This wilful default is to be considered from the attending circumstances and these circumstances may vary from case to case. I have, therefore, to consider in the present case as to whether the tenant is a wilful defaulter or not. Although the courts below have not recorded a finding in so many words that the tenant is a wilful defaulter, but after going through the judgments of the courts below, I am of the opinion that they did record the finding that the tenant is a wilful defaulter but the specific words, namely, that the tenant is a wilful defaulter, have not been used in the judgments. From the set of facts of the case, there can be no other opinion possible except to hold the tenant a wilful defaulter. The tenant did not pay the rent from August 1968 to September 1975. The evidence of the Bill Collector shows that every month he demanded rent from the tenant but the tenant refused to pay. The evidence further shows that the tenant has been attending to his job and services and in addition doing some work in the workshop. It has come in the evidence that the son of the tenant has been working in the Maharashtra State Road Transport Corporation (S.T.) at Parbhani. I am referring to this evidence because, a grievance is made by Shri Godhamgaonkar that the tenant was jobless during this period. On the face of this evidence, I do not see any substance in the contention of Shri Godhamgaonkar that the financial condition of the tenant was so precarious during these months that it prohibited him from paying any rent. I see no substance in this argument.

9. It is then urged by Shri Godhamgaonkar in connection with the wilful default that the tenant was suffering from various diseases and, therefore, he was unable to pay rent and, therefore, there was no intention on the part of the tenant to commit the wilful default. So far as this story in connection with the serious diseases of the tenant goes, it is again without any foundation. Even in the written statement as well as in the memorandum of appeal the tenant was unable to state what type of serious diseases he was suffering from. Even in the present petition also, the tenant was unable to disclose the nature of his ailment. In my opinion, this plea of ailment is a mere myth and without any substance. If these two concessionary arguments advanced on behalf of the tenant are rejected and if the evidence of the bill collector is perused, I am of the opinion that the tenant is a wilful defaulter and the courts below have rightly passed a decree for ejectment against the tenant on the ground that the tenant is a wilful defaulter for 86 months. In this connection, we have also to see the conduct of the tenant. In spite of the notice as well as the filing of the petition in the year 1975, till the appeal came to be disposed of by the learned District Judge on April 25, 1980, the tenant never deposited a pie even for the current months also in the courts or otherwise paid to the respondent. This conduct of the tenant, in my opinion, clearly exhibits the approach of the tenant in payment of the arrears of rent as well as rent for the current months.

10. It is next urged by Shri Godhamgaonkar that the courts below have not considered the proviso to section 15 of the Hyderabad Rent Act and this clearly amounts to non-application of mind on the part of the courts below. According to Shri Godhamgaonkar, the Rent Controller ought to have given 15 day's time to the tenant to deposit arrears of rent and if the tenant were to fail to deposit the said amount during the said period, then only the Rent Controller would have been at liberty to pass the ejectment order. This submission is again based on misconception of reading of the said proviso. A reference to Clause (i) of sub-section (2) of section 15 may be made in order to appreciate the contentions of Shri Godhamgaonkar. The said section 15(2)(i) is reproduced as below :

'15. Eviction of tenants........ ........ .......

(2) A landlord who seeks to evict his tenant shall apply to the Collector for a direction in that behalf. If the Collector, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied ---(i) that the tenant has not paid or tendered the rent due by him in respect of the house, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which rent is payable; or .. ...'

Proviso to section 15 reads as follows :

'Provided that in any case falling under Clause (i), if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful he may, before making an order as aforesaid, give the tenant a reasonable time, not exceeding 15 days, to pay or tender the rent to the landlord up to the date of such payment or tender.'

On reading Clause (i) of sub-section (2) of section 15 and the proviso thereto, in my opinion, a condition precedent to invoke the provisions of proviso is that the Controller must be satisfied that the tenant's default to pay or tender the rent was not a wilful default. If this condition is satisfied by the tenant, then only the tenant is entitled to invoke the provisions of the said proviso. In the present case, both the courts below have concluded that the tenant is a wilful defaulter and, therefore, in my opinion, the proviso will have no application. The second submission of Shri Godhamgaonkar, therefore, is devoid of any merits.

11. Lastly, it was urged by Shri Godhamgaonkar that the Gurudwara owes Rs. 3,000/- to the tenant in respect of a structure which was purchased by the Gurudwara. According to him, the structure was put up by the tenant on the land of the Gurudwara and under the settlement the Gurudwara had agreed to purchase the same for Rs. 3,000/-. Shri Godhamgaonkar heavily relied upon the resolution No. 26 dated April 29/30, 1977, in respect of this submission. This said resolution has been referred to by the learned District Judge in paragraph 9 of his judgment. In my opinion, this resolution does not help the tenant at all. This resolution was passed in the month of April 1977 whereas the petition was filed under section 15 of the Hyderabad Rent Act on December 18, 1975. Therefore, I will have to consider the position as it stood on the date of the filing of the petition under section 15 of the Hyderabad Rent Act. However, it is open to parties to arrive at a settlement in a subsequent proceeding in which they may make a provision in respect of the earlier defaults. The said resolution No. 26 does not make any reference whatsoever to the proceedings instituted by the respondent for ejectment of the tenant under section 15 of the Hyderabad Rent Act on December 18, 1975. I fail to understand how Shri Godhamgaonkar could connect this resolution with the claims of the respondent set out in petition filed by them on December 18, 1975. This submission of Shri Godhamgaonkar, therefore, is without any substance.

12. Shri Godhamgaonkar lastly submitted that some time may be given to the tenant to surrender the possession of the suit premises. Shri M.D. Pathak appearing for the respondent, strongly opposed this contention and submitted that the tenant who has been held as a wilful defaulter should not be given any more time to surrender the possession. It appears that there are some monetary claims to be settled between the parties. I, therefore, do not think that it would be out of place to grant some time to the tenant to surrender the possession of the suit premises. I, therefore, direct that the decree for eviction passed by the Court below and confirmed by me in this Revision Application No. 472 of 1980 shall not be executed till December 31, 1981.

13. In the result, this revision application fails and is dismissed. Rule is discharged with no order as to the costs.


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