Research › Search › Judgment

Bombay High Court · body

2009 DIGILAW 1589 (BOM)

Joaquim S. Gomes v. Kashinath S. Borkar

2009-11-24

R.M.SAVANT

body2009
ORAL JUDGMENT R.M. Savant, J.–This petition filed under Section 227 of the Constitution of India, takes exception to the judgment and order dated 13.08.2003, passed by the Presiding Officer of the Administrative Tribunal, Panaji, by which order, the appeal filed by the respondent No. 1 herein against the judgment and order of the Additional Rent Controller, dated 8.3.1996, came to be allowed and the eviction of the respondent No. 1 from the suit premises came to be set aside. 2. The facts necessary to be cited are stated thus : The petitioner herein, who is the Applicant before the Rent Controller, is the landlord of the suit premises being House No. 196, hereinafter referred to as the 'suit property', which is situated in the larger property owned by the petitioner under Chalta Nos. 74, 75, 76, 77, 79, 80, 81, 82, 83, 184, 185, 186 and 187 of P.T. Sheet No. 241 of Margao City. The said suit property was given on a lease basis on a monthly rent of Rs. 50/- and the terms between the applicant and the respondent No. 1 (for short, the respondent), were that of the licensor and licensee. Taking exception to the fact that the respondent was storing and repacking salt in the suit premises. The petitioner had filed a civil suit in the Court of the Civil Judge, Junior Division, at Margao, for eviction of the respondent. Since the respondent took the plea that he is a tenant in respect of the said premises, the petitioner withdrew the said suit and filed eviction proceedings. The eviction of the respondent was sought on the ground that the respondent had not paid rest from May 1998 and that from the month of August 1997 or thereabout, the respondent had started the business of re-packing salt in the suit premises without the permission of the applicant and was storing truck loads of salt in the suit premises and was utilizing the suit premises for the said business and that the suit house is being damaged and, therefore, the applicant was entitled to the eviction of the respondent. It would be relevant to reproduce Paras 2, 8, 9 and 10 of the said application. The same are re-produced herein under : "2. It would be relevant to reproduce Paras 2, 8, 9 and 10 of the said application. The same are re-produced herein under : "2. In the said property, the applicant has his own residential house and also constructed different structures and some of them are given on lease/leave and licence to different persons. The house bearing No. 196 is leased out to the Respondent on a monthly rent of Rs. 50/-. 8. On or about the month of August 1987 the Respondent started business of repacking of salt in the suit premises without the permission of the plaintiff. 9. The respondent is storing truck loads of sacs containing salt in the suit premises and utilizing the suit house for business purpose. 10. The suit house is being damaged and destroyed with the storing activities of salt." 3. The respondent filed his written statement and denied the case of the applicant in toto. In so far as the arrears of the rents were concerned, the respondent stated that the reasons for non-payment were explained to the applicant by notice addressed to him and thereafter the rent was deposited in the Bank and ultimately the unpaid amount of the rent has been deposited before the Rent Controller after the applicant had filed the said application. In so far as the allegation of the change of user on the basis of which eviction was sought, in paragraph 7 of the written statement, the respondent denied that the premises were ever used for commercial purposes. The respondent basically averred that the business of re-packing salt was commenced by the respondent but all the activities were done at the shop at Gandhi market at Margao, which is owned by the respondent. The respondent specifically denied that business of re-packing of salt was done in the suit premises. The respondent also further specifically denied that he stored truck load of salt in the suit premises and also denied that the said premises are utilized for the purpose of business. The Rent Controller on the basis of the pleadings of the parties, framed two issues namely as under : (1) Whether the applicant proves that the respondent is in arrears? (2) Whether the applicant proves that the Respondent has changed the use of the suit premises? 4. The Rent Controller on the basis of the pleadings of the parties, framed two issues namely as under : (1) Whether the applicant proves that the respondent is in arrears? (2) Whether the applicant proves that the Respondent has changed the use of the suit premises? 4. In so far as the first issue was concerned, the learned Rent Controller answered it in the negative and in so far as the second issue was concerned, the learned Rent Controller answered, it in the affirmative. The reasons of the Rent Controller were based on the evidence which was led by the parties before him and relying upon the evidence of the respondent himself i.e. his sons were doing the business there from the year 1987 through a sopo and for the purpose of this business. the salt is brought in bags and stored outside the suit premises and on the ground that no independent witness has been brought by the respondent to contradict the evidence of the applicant and by holding that the storing of the salt and re- packing of the same leads to processing Industry which can be termed as business, allowed the application filed by the applicant and directed the respondent to give vacant possession of the suit premises within 30 days of the order. 5. Being aggrieved by the said eviction order passed by the learned Rent Controller, the respondent filed Eviction Appeal No. 12/1996. 6. The Administrative Tribunal framed points for determination namely whether the evidence on record substantiated the case that the respondent changed the portion of his residential premises for the purpose of re-packing of salt and whether the learned Rent Controller committed illegality in appreciating the evidence on record and ordered the eviction of the appellant from the suit premises. The Administrative Tribunal has observed that the respondent had moved an application on 13.4.1994 for framing of an additional issue namely whether the appellant proves that the suit house is being damaged and destroyed by the respondent by storing salt in the suit house and since the applicant did not object to the framing of the said issue, accordingly, the said additional issue was framed. 7. 7. The Administration Tribunal on a consideration of the evidence adduced by the applicant, was of the view that the Applicant should have brought on record particulars and details in the manner in which the appellant is conducting the business of re-packing salt in the portion of the suit premises. The evidence on record, according to the Tribunal, should have been on the aspect of the business being carried out continuously and to what extent such business was carried out. The Administrative Tribunal held that the evidence adduced on behalf of the Applicant was casual and vague and was not sufficient to bring home the case of change of user alleged by the applicant namely on account of carrying on the business of re-packing of salt in a portion of the suit premises. 8. In so far as the ground of damage to the suit premises is concerned, though the Rent Controller did not discuss the said ground, the Tribunal was of the view that the evidence on record, was not sufficient to show that on account of storing of salt, the house was damaged. The Administrative Tribunal held that in the absence of any evidence of the fact that due to the storing of the salt, the suit premises are damaged. The contention of the Applicant that the respondent was carrying on business of re- packing of salt in the portion of the suit premises, is negatived. The Administrative Tribunal further went on to observe that the mere fact that the respondent has stated in his evidence that the salt is brought in bags and stored outside the suit premises, could not mean that he is carrying on the business of re-packing of salt in the suit premises. The Administrative Tribunal observed that the evidence adduced by the Respondent indicated that the salt was kept outside the suit premises and the business of re-packing is done at the Gandhi market. The Administrative Tribunal observed that the evidence adduced by the Respondent indicated that the salt was kept outside the suit premises and the business of re-packing is done at the Gandhi market. The Tribunal concluded that in the absence of cogent evidence that the appellant is carrying on the business of re-packing of salt in the portion of the suit premises as also in the absence of any evidence that due to the storing of the salt, the suit premises are damaged, the Tribunal was of the view, that the learned Rent Controller had answered the issue No. 2 concerning the change of user wrongly in the affirmative and, therefore, allowed the appeal and set aside the order of eviction passed by the learned Rent Controller. 9. I have heard the learned Counsel for the petitioner, Shri Usgaonkar, and the learned Counsel for the respondent No.1. Shri Diniz. 10. On behalf of the petitioner, learned Counsel Shri Usgaonkar contended that the Administrative Tribunal had erred in setting aside the order of eviction passed by the learned Rent Controller. The learned Counsel, submitted that in the teeth of the evidence on record, it is proved that the respondent had carried on activities which amount to change of user so as come within the ambit of Section 22(b)(ii) of the Goa Rent Control Act. The learned Counsel relying on Section 2(e) and Section 22, submitted that it is the admission of the Respondent that the salt was being stored outside the suit premises and in view of the inclusive definition contained in Section 2(e) of the term "building", the said salt though stored outside the suit premises, would come within the ambit of said inclusive definition and, therefore, had to be held as within the suit premises. The learned Counsel relying upon the evidence of the respondent, contended that the admission in the said evidence of the respondent namely that the salt was stored outside the suit premises, was enough to bring home the ground of change of user. The learned Counsel submitted that the Tribunal has erred in interfering with the eviction Order passed by the Rent Controller on the ground that though it has been stated by the respondent that storage of salt was made outside the premises, however, the re-packing has not been proved by the applicant. The learned Counsel submitted that the Tribunal has erred in interfering with the eviction Order passed by the Rent Controller on the ground that though it has been stated by the respondent that storage of salt was made outside the premises, however, the re-packing has not been proved by the applicant. The learned Counsel submitted that the storage and re-packing are two aspects of the same commercial activity involving salt and that the two aspects have been independently pleaded by the applicant in the application as also corroborated in the evidence. The learned Counsel submitted that the Tribunal has, therefore, erred in glossing over the said aspect of storage by only laying emphasis on repacking. The learned Counsel lastly submitted that in the teeth of the evidence which was on record, there is an error apparent inasmuch as the aspect of storage which has been admitted by the respondent has not at all been taken into consideration. 11. On the other hand. it is submitted by Shri Diniz, the learned Counsel for the respondent that the case initially sought to be advanced by the petitioner was that the aspect of storage was intrinsically linked with the ground of damage to the suit premises on the basis of which eviction was sought and therefore, according to the learned Counsel, once damage was not proved by the applicant, the said aspect of storage would not stand. This was notwithstanding the fact that the storage, if any, was outside the suit premises. The learned Counsel for the respondent further submitted that the case now sought to be advanced on behalf of the applicant that the storage even if outside the suit premises would come within the ambit of the term "building", was never the case of the applicant before the Rent Controller as the pleadings in the application are very specific wherein it has been mentioned that the storage and repacking was in the suit premises and, therefore, the eviction was sought on the ground of change of user as contemplated in Section 22 (b)(ii) of the said Act. The learned Counsel further submitted that only because it has come in evidence that the respondent was storing the goods outside that the case that it comes within the definition "building" as mentioned in Section 2(e) of the Rent Control Act, is sought to be advanced. The learned Counsel further submitted that only because it has come in evidence that the respondent was storing the goods outside that the case that it comes within the definition "building" as mentioned in Section 2(e) of the Rent Control Act, is sought to be advanced. The learned Counsel further submitted that in fact an additional issue had been framed by the Rent Controller on the basis of the application filed by the Respondent which was specifically relating to the aspect of storage and, therefore, once the Court has recorded a finding that damage was not proved, the aspect of storage does not stand to scrutiny. The learned Counsel further submitted that it was for the applicant to prove all the ingredients of change of user and the Administrative Tribunal in exercise of the appellate powers having held that the said aspect of change of user has not been proved by leading cogent evidence, the said finding of the Tribunal does not call for any interference by this Court in its writ jurisdiction. The learned Counsel in support of the said proposition relied upon the judgment of the Apex Court reported in 1970 (2) SCC 290 in the matter of M.K. Palaniappa Chettiar and another v. A. Pennuswami Pillai, Paras 3 and 4 of the said report are material are re-produced herein under : "3. The first point urged on behalf of the tenant is that there was no error of jurisdiction in the decisions of the Rent Controller, the appellate authority, or the District Court and consequently, the High Court did not have jurisdiction to interfere in exercise of its power under Section 115 of the Code of Civil Procedure. The High Court interfered under Section 115 CPC, on the view that on the facts found and on the pleadings, the suit for eviction should have been decreed. The view taken was that the tenant never took up the plea that, even if a part of the premises had been used for residential purposes, it did not amount to use against the terms of the lease, so that this plea was not open to be considered by the lower Courts. The plea that was raised by the tenant was that the lease itself was for the dual purpose of residence as well as trade; and that plea having failed. The application for eviction should have been allowed. The plea that was raised by the tenant was that the lease itself was for the dual purpose of residence as well as trade; and that plea having failed. The application for eviction should have been allowed. On the face of it, this order made by the High Court does not proceed on the basis that any error of jurisdiction was committed by the lower Courts. The Courts had the jurisdiction either to grant the application or to reject it, depending on whether the landlord succeeded in proving that the tenant had used the building for a purpose other than the one for which it was let out, or failed to do so. Even if the finding by the lower Courts was incorrect, it would be an error committed by those Courts in the decision itself in proper exercise of their jurisdiction. It could not be held that, in giving such a decision, the Courts exercised jurisdiction not vested in them. At the highest, the only criticism that could be levelled was that their decision suffered from an error of law; but however gross an error of law committed by those Courts, the High Court could not interfere under Section 115 of the Code of Civil Procedure, specially when there was no procedural error committed by those Courts. This principle was clearly laid down by this Court in Keshardeo Chamria v. Radha Kissen Chamria and others and vice versa. The same principle was affirmed in Pandurang Dhoni Chougule v. Maruti Hari Jadhav. The errors committed by the Courts do not relate to any question of fact which would determine their jurisdiction to deal with the proceedings before them. The error was purely in giving the decision in a case which they had jurisdiction to decide the dispute that was raised before them. In these circumstances, it is clear that the High Court was wrong in interfering with the setting aside the concurrent findings of the three lower Courts, acting under Section 115 of the Code of Civil Procedure. 4. Even on the alternative point pressed before us that the High Court itself took an incorrect view, we are inclined to accept the submission made on behalf of the tenant. 4. Even on the alternative point pressed before us that the High Court itself took an incorrect view, we are inclined to accept the submission made on behalf of the tenant. The finding recorded by the revisional Court acting under Section 25(1)(b)(ii) of the Act was to the effect that the portion of the building, which was being used by the tenant for cooking, was very negligible, while the rest of the building was being continued to be used for the purpose for which it was taken on lease. On this finding, the lower Courts were quite correct in holding that there had been no such conversion in breach of the terms of the lease as would, render the tenant liable to eviction. The High Court interfered because, in its opinion, the lower Courts were not competent to decide the case on this basis as no plea had been taken on behalf of the tenant that, even if the lease was for trade purposes only and a part of the building had been used for residence, it did not amount to use in contravention of the, terms of the lease. In taking this view, the High Court lost sight of the fact that in this case, the landlord came as the application for eviction of the tenant and the burden was on the landlord to prove all the ingredients which entitled him to seek eviction. It was, therefore, for the landlord to establish, independently of the plea of the tenant, that the tenants use was in breach of the terms of the lease. When the landlord failed to show that any substantial part of the building was being used for a purpose different from the purpose for which the building had been let out, the claim of the landlord had to fail irrespective of the plea taken by the tenant to resist the application. On this ground also, the High Court had no justification to interfere." 12. On this ground also, the High Court had no justification to interfere." 12. The learned Counsel further submitted that apart from the fact that the storage was outside the suit premises the occasional user of the suit premises for a different purpose would not amount to change of user and for the said purpose, relied upon the Judgment of the Apex Court reported in 1990 (Supp) SCC 654, in the matter of Kisan Dayanu Mano v. Vithal Vishynu Mohandalo as also the judgment of the Apex Court reported in 2001 (5) SCC 133 , in the matter of Atul Castings Ltd. v. Bawa Gurvachan Singh. In the said judgment, one room of the residential premises was sought to be used as an office. In the said context, the Apex Court observed that the interpretation of the provisions must be purposive and not unduly restricted or narrow. It was observed that if the provisions are interpreted in a restrictive and narrow manner, it would be difficult for any tenant occupying a residential building to protect himself from arbitrary eviction and even to have a freedom to use the building even for residential purposes as he wants. The learned Counsel lastly submitted that the Administrative Tribunal having recorded findings of fact on the aspect of change of user, this Court should not interfere in its writ jurisdiction under Article 227 of the Constitution of India and relied upon the case reported in AIR 1984 SC 38 , in the matter of Mohd Yunus v. Mohd. Mustaqim and others, Para 7 of the said judgment is material and is re-produced herein under : ''7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an error apparent on the face of the record, much less an error of law. In this case, there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court, or Tribunal purports to be based or to correct errors of law in the decision." 13. I have considered the rival contentions. It would be pertinent to note that the application filed before the Rent Controller is in respect of the suit premises being House No. 196, which was leased out to the respondent. Though the application does not set out specifically the provisions on which the eviction was sought, the grounds set out in paragraphs 8, 9 and 10 are an indicia as to on what grounds the eviction is sought. The ground mentioned in paragraph 8 stands apart from the ground mentioned in paragraphs 9 and 10. The ground mentioned in paragraphs 8 alleges change of user without the permission of the applicant/landlord whereas the ground mentioned in paragraphs 9 and 10 is intrinsically connected with the ground of damage on the basis of which the eviction was sought. The applicant had filed the eviction application specifically on the ground that the respondent was packing and storing salt in the suit premises. The case now sought to, be canvassed on behalf of the plaintiff that even the storage of salt outside the suit premises would also amount to a change of user of the suit premises was never pleaded and, in fact, no evidence has been led on behalf of the applicant in that behalf. It is only to connect the ground with the evidence of the respondent, which is on record that the said case is now sought to be advanced by the applicant. It is only to connect the ground with the evidence of the respondent, which is on record that the said case is now sought to be advanced by the applicant. There is, therefore, merit in the submission of Shri Diniz that the said case as now sought to be advanced is considering the evidence which has come on record, namely the statement of the respondent that the storage was outside the suit premises, in my view, the applicant now cannot be allowed to raise the said plea which has not been taken in the proceedings before the Rent Controller. The absence of specific pleadings in the application, would not allow the applicant leverage to take advantage of the same so as to contend that even the storage outside the suit premises would come within the definition of "building" as contained in Section 2(e) of the said Act. The applicant should have approached the Rent Controller with specific pleadings as to how the same amounts to a breach of the lease. The pleadings ought to have been more elaborate in that regard. In the absence of pleadings, the learned Counsel for the applicant is not entitled to contend that even storage outside would come within the ambit of the word building as defined in the Act. 14. Another aspect which is required to be considered is that an additional issue was framed on the application of the applicant to the effect that whether the applicant proves that the suit house is damaged and destroyed by the respondent by storing salt in the suit house. The framing of the said additional issue would indicate that the storage of salt was connected with the ground of damage on the basis of which the eviction was sought by the applicant. It would be significant to note that the applicant failed to substantiate the said ground of damage as there was absolutely no evidence on record in support thereof, therefore, both the Courts below i.e. the learned Rent Controller as well as the Administrative Tribunal have rejected the said ground. Implicit in the said rejection is the fact that both the Courts below have negatived the case of the applicant that the storage was in the suit premises itself. Implicit in the said rejection is the fact that both the Courts below have negatived the case of the applicant that the storage was in the suit premises itself. There is, therefore, merit in the submission of Shri Diniz that the said aspect of storage cannot be independently taken into consideration divorced from the ground of damage on the basis of which, eviction has been sought by the applicant. It has also come on record in the evidence of the respondent that the storage, if at all was outside the premises and also occasionally when it rained, etc., or when the salt was received at odd times this coupled with the evidence on record, in my view, substantiates the case of the respondent that eviction could not be ordered only because there was an occasional storage that too outside the suit property, as substantially the suit property was being used for the purpose for which it was leased out to the respondent. This is the alternate submission advanced by the learned Counsel for the respondent assuming that the applicant is entitled to contend that the storage outside could come within the sweep of the definition of "building" as posited in the said Act. As held by the Apex Court, a stray or occasional user for other purpose, cannot be said to amount to a change of user and giving a purposive interpretation to the provisions, it cannot be said that in the instant case, the storage even if assumed to be outside the premises, cannot warrant an order of eviction against the Respondent. It is pertinent to note that the Administrative Tribunal on are-appreciation of evidence that was before it, came to a conclusion that the applicant has failed to prove the change of user. The Tribunal has gone threadbare into the evidence that was adduced by the parties and on such appreciation of evidence, the Tribunal in so far as the case of change of user is concerned, has observed that the evidence adduced by the applicant is vague and was not sufficient to establish the case that the respondent was carrying on with the business of repacking of salt in a portion of the suit premises. In respect of the ground of damage the Tribunal has observed that in the absence of any evidence of the fact that due to the storing of the salt, the suit premises are damaged, the contention of the applicant that the respondent was carrying on business of repacking of salt in the portion of the suit premises is negatived. The Tribunal has pertinently observed that the evidence was to the effect that, in the course of business, sometimes the salt would be kept outside the suit premises and, in case the repacking was done, the same was done at the shop of the respondent in the Gandhi market. The Tribunal, has therefore recorded a finding of fact. The learned Counsel for the petitioner tried to draw my attention to the evidence which was on record and demonstrate that how the findings recorded by the Administrative Tribunal were not in consonance with the evidence on record. I am afraid such a course is not open for this Court in its writ jurisdiction under Article 227 of the Constitution of India as this Court is not sitting as an Appellate Court so as to re-appreciate the evidence all over again. 15. As observed by the Apex Court, merely because another view is possible on the basis of the evidence which is on record, this Court cannot interdict in its writ jurisdiction under Article 227 of the Constitution of India. In that view of the matter, the judgment and order of the Administrative Tribunal does not call for any interference. 16. There is, therefore, no merit in the above writ petition, which is accordingly dismissed and rule discharged. Petition dismissed.