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2001 DIGILAW 596 (BOM)

Pramod R. Mhaske v. D. Oliver

2001-07-20

A.M.KHANWILKAR

body2001
JUDGMENT - A.M. KHANWILKAR, J.:---This writ petition under Article 227 of the Constitution of India takes exception of the order passed by 10th Additional District Judge, Pune dated September 15, 1989 in Civil Appeal No. 93 of 1986. 2. The present petition is directed against the concurrent finding of facts recorded by two courts below both on the issue of default and petitioner-tenant having constructed permanent structure. 3. In so far as the ground of default is concerned, the relevant facts are that the petitioner-tenant was stated to be in arrears towards monthly rent with effect from 1st June, 1979 till the date of notice and also towards the education cess with effect from 1st October, 1962 till the date of notice. In the circumstances, the respondent-landlord issued demand notice on March 24, 1980. It is the petitioner's case that after receipt of the said demand notice, the petitioner remitted the requisite demanded amount by money order on the known address of the respondent-landlord at Bombay, which money order could not be delivered due to non-availability of the respondent and the same was returned back. Immediately thereafter, the petitioner-tenant claims to have remitted the demanded amount by another money order which was, however, accepted by the respondent-landlord in April, 1980. In this backdrop it is contended that since the petitioner was ready and willing to pay the amount demanded towards arrears of rent and permitted increases coupled with the fact that the amount was actually tendered and eventually accepted by the landlord, there was no cause of action for instituting the suit within the meaning of section 12(3)(a) of Bombay Rent Act. In this context, it is submitted that since there was no cause of action to maintain the suit under section 12(3)(a), the Court could not have decreed the suit on the ground of non-compliance of section 12(3)(b) as has been done in the present case. It is, therefore, submitted that the decree of eviction passed against the petitioner on the ground of default is contrary to the settled legal position. 4. In so far as ground of petitioner having erected permanent structure is concerned, the landlord's case is that the petitioner has constructed a shed on the open space adjacent to the suit premises which was not let out to the petitioner. 4. In so far as ground of petitioner having erected permanent structure is concerned, the landlord's case is that the petitioner has constructed a shed on the open space adjacent to the suit premises which was not let out to the petitioner. The other allegation is that the petitioner has erected a mezzanine floor and the nature of construction is nothing but permanent structure which has caused damage to the suit premises in as much as when the same is to be removed, it is bound to cause damage to the suit premises. The courts below have concurrently found that the petitioner has erected shed on the open space adjacent to the suit premises which was not let out to the petitioner. However, the Appellate Court has taken the view that since the shed was adjacent to the suit premises, it was erected by the petitioner for the beneficial enjoyment of the suit premises and therefore, formed part of the premises. In so far as the erection of mezzanine floor is concerned, the Court below has found that the evidence would establish that the said structure has been erected by the petitioner and the nature of construction is such that it cannot be removed without causing damage to the suit premises. In the circumstances, both the courts below have decreed the suit even on the ground that the petitioner-tenant has erected permanent structure. In so far as the former structure is concerned viz. the shed constructed in open space, the learned Counsel contends that since the said structure was constructed on the open plot which was not let out, therefore, the provisions of Bombay Rent Act would not apply and no cause of action can be said to have occasioned for institution of suit for erecting such a permanent structure. With regard to the later structure is concerned, the contention on behalf of the petitioner is that the same has not been erected by the petitioner and therefore, no decree could be passed against the petitioner. 5. Although the respondent has been served and has entered appearance of Mr. S.S. Kelwadi, none appears when the matter is called out for hearing. 6. After considering the submissions advanced by learned Counsel for the petitioner and going through the records including the judgments of two courts below, I find no substance in this writ petition. 5. Although the respondent has been served and has entered appearance of Mr. S.S. Kelwadi, none appears when the matter is called out for hearing. 6. After considering the submissions advanced by learned Counsel for the petitioner and going through the records including the judgments of two courts below, I find no substance in this writ petition. Although the learned Counsel may be justified in assailing the correctness of the view taken by two courts below so far as view on the issue of default is concerned, that however, would not in any way affect the ultimate conclusion or the decree for possession passed by the courts below. In other words, the decree can still be sustained on the ground of petitioner having erected the permanent structure. 7. In so far as the ground of default is concerned, it is rightly contended by learned Counsel for the petitioner that after the suit notice was received, the petitioner immediately sent the demanded amount by money order within one month which was attempted to be delivered to the respondent at his known Bombay address in March, 1980 but the same could not be delivered due to unavailability of the respondent at the relevant point of time and the same was therefore returned to the petitioner, which fact has been admitted by the respondent in his evidence. Undisputedly, the petitioner, immediately thereafter, sent another money order to the respondent-landlord which has been duly accepted in April, 1980. In that sense the petitioner cannot be said to be negligent or not ready and willing to pay the rent within the meaning of section 12(3)(a) of the Act. The petitioner having tendered the amount by money order well within one month from the receipt of suit notice on the known address of the respondent, but the same could not be actually made over to the respondent-landlord due to circumstances wholly beyond the control of the petitioner, in law, it will have to be presumed that the amount sent by money order within one month was a valid tender. In such a situation, the rigours of section 12(3)(a) will have no application. In any case, the admitted position is that when the first money order was returned to the petitioner, the petitioner immediately sent another money order and remitted the entire demanded amount, which money order has been received by the landlord in April, 1980. In such a situation, the rigours of section 12(3)(a) will have no application. In any case, the admitted position is that when the first money order was returned to the petitioner, the petitioner immediately sent another money order and remitted the entire demanded amount, which money order has been received by the landlord in April, 1980. Understood thus, there was no cause of action for maintaining suit for eviction against the petitioner on the ground of section 12(3)(a) of the Act. In the absence of such cause of action, the Court could not have proceeded to decree the suit under section 12(3)(b) of the Act. This position is well settled as is evident from the reported decision of this Court in (Narhar Damodar Wani v. Narmadabai)1, 1984 Mh.L.J. 313. In the circumstances, the decree passed by two courts below cannot be sustained in law. 8. Coming to the next ground on which the decree has been passed by the Court below, though the petitioner may be justified in contending that reasons given by the Appellate Court in decreeing the suit in so far as construction of shed on the open space is concerned can be assailed, but that would not change the ultimate conclusion reached by the Court below that the petitioner had erected permanent structure. For our purpose, it would be suffice to confine the matter with regard to the concurrent findings recorded by two courts below that the petitioner had erected mezzanine floor in the suit premises by the help of wooden beams and pillars. The courts below have therefore, after considering the relevant materials on record found that, the offending structure was erected by the petitioner, was permanent structure, entitling the landlord to determine the tenancy of the petitioner and seek recovery of possession. The courts below have also concurrently found that the mezzanine floor erected by the petitioner cannot be removed without causing damage to the demised premises. In the wake of concurrent findings on this issue, it is not open for this Court to reappreciate the evidence on record to take a different view in the matter. In fact, I find no infirmity either in the approach adopted by two courts below while recording the above said finding, nor there is any error apparent on the face of the record or any perversity in the finding demonstrated by the petitioner before this Court. In fact, I find no infirmity either in the approach adopted by two courts below while recording the above said finding, nor there is any error apparent on the face of the record or any perversity in the finding demonstrated by the petitioner before this Court. In the circumstances, I would confine the discussion with regard to the ground of permanent structure in relation to the erection of mezzanine floor to uphold the decree of eviction on that count. 9. This, however, need not be construed that the petitioner has succeeded in assailing the correctness of the finding recorded by two courts below with regard to the erection of the shed in the open space. The two courts below have concurrently found that the shed was not in existence and the shed has been erected by the petitioner in the open space which was not let out to the petitioner. In the wake of this finding, the courts below ought to have examined the matter in the context of section 13(1)(a) of the Rent Act in which eventuality the landlord could determine the tenancy on the ground that the tenant has committed an act contrary to the provisions of Clause (o) of section 108 of Transfer of Property Act. The fact situation in the present case would surely be covered by the said provision. However, since the courts below have not proceeded to decide the matter in this context, I would refrain myself from expressing any conclusive opinion in this behalf. 10. Accordingly, the decree of eviction passed against the petitioner by the courts below is upheld on the ground that the petitioner-tenant has erected a permanent structure in the demised premises. For the aforesaid reasons, this petition should fail and the same is, therefore, dismissed with no order as to costs. Petition dismissed. -----