AI Structured Summary
Not yet generated for this judgment
Judgment
B.P. Dharmadhikari, J.—By this application for review, the applicants tenants are seeking review of the judgment dated 21.10.2010 delivered in Writ Petition No. 711/2010. In that Writ Petition styled as one under Articles 226 and 227 of the Constitution of India, they had questioned the judgment dated 12.12.2006 passed by the learned 2nd Additional Judge, Small Causes Court, Nagpur in Regular Civil Suit No. 326/2002 and subsequent judgment and decree dated 9.12.2009 of Appellate Court in Regular Civil Appeal No. 24/2007. The Respondents landlord had sought their eviction on the ground that the premises were required on account of bona fide need. The trial Court as also the Appellate Court accepted that need and this Court rejected tenants'' Writ Petition on 21.10.2010. The learned Counsel for the tenants had sought time of eight weeks to approach the Hon''ble Apex Court. That request was opposed but then the said period was granted on condition of tenants'' depositing all monetary part as per the impugned judgment and decree. Thereafter, this Review Application came to be filed on 15.11.2010.
Perusal of Application for Review as drafted shows that the effort of the applicants is to place their arguments in writing before this Court. The Respondents have not filed any reply to it.
I have heard learned senior Advocate Shri M G Bhangde with Advocate D.N. Dani for applicants and Advocate R L Khapre for heirs of deceased landlord.
Shri Bhangde, after pointing out the facts in brief, has invited attention to the fact that Application for Review is in shape of written note of arguments. He contends that judgment of the Hon''ble Apex Court cited before this Court i.e. Amarjit Singh Vs. Smt. Khatoon Quamarain, has not been properly appreciated. According to him, the purpose for which said judgment was pressed into service is missed by this Court. He contends that the landlord had sold adjoining premises after the need arose and the distinction, therefore, noticed by this Court is really nonexistent. The acceptance of case of the landlord that he was constrained to sell the premises vacated by tenant to pay a sum of amount to his daughters is also hallenged on the ground that it is not a valid justification for not occupying the remises vacated by that tenant Dr. Kamble. It is urged that this Court has not referred to or considered these submissions.
The next contention is about the pleadings of the landlord in earlier proceedings and in suit before Small Cause Court. It is urged that the trial Court considered the said aspect in paragraph 20 of its judgment, without considering the aspect of pleading and Appellate Court also did not look into previous rent control proceedings or its impact on present matter. It is urged that this Court has not referred to or considered even this submission.
The third contention is about the reference made to cross-examination of Mohammed Afzal, son of the landlord. It is stated that this was not the part of hearing before this Court and none of the parties had invited attention to that cross-examination. The judgment of the Ho''ble Apex Court is relied upon to urge that this Court could not have decided the petition on facts which were not argued before it. The learned senior Advocate states that the tenants did not get opportunity to deal with that aspect. The contention is material which could have been pointed out to this Court, therefore, could not be relied upon. Attention is invited to Ground (iii) in Review Application for this purpose. It is further contended that the findings of this Court that the landlord''s story of paying an amount of Rs. 2 lakhs each to his daughters was not challenged before this Court as false or fabricated, is erroneous and, for that purpose, attention is invited to cross-examination of landlord where his deposition about such payment to daughters has been assailed. Lastly, it is urged that this Court has erroneously observed that there was No. prejudice caused to the tenants on account of alleged absence of plea or then that tenants got adequate opportunity and have also used it. It is contended that this issue of "no prejudice" and "no opportunity" was never argued on behalf of the Respondents. It is contended that tenants could not crossexamine Mohammed Afzal on the document he had produced namely, marks sheet etc.
Two judgments of the Hon''ble Apex Court i.e. reported at Indian Charge Chrome Ltd. and Another Vs. Union of India (UOI) and Others, & Smt. Poonam Vs. Sumit Tanwar, ) are relied upon to support this the above contentions.
Shri R L Khapre, learned Counsel for Respondents has urged that old proceedings before the Rent Controller were not relevant and need of Mohammad Afzal arose after he obtained Diploma i.e. after completion of education. According to him, this Court has correctly appreciated the situation. He further contends that necessary details about the need were already pleaded and it was not necessary to plead evidence. The mark sheet and Diploma certificate of Mohammed Afzal were produced before the trial Court and were allowed to be exhibited by tenants without any objection. It is urged that findings of Appellate Court on need are not questioned. He, therefore, prayed for dismissal of Review Application with heavy costs.
The perusal of judgment reported in Indian Charge Chrome Ltd.and Anr. v. Union of India and Ors. (supra) reveals that there the Hon''ble Apex Court has pointed out what may constitute an error apparent on face of the record. The Hon''ble Apex Court noticed that contention was raised but there has been omission to consider it. Because of said error of non consideration, the Hon''ble Apex Court has found that there was error apparent on the face of the record. The Hon''ble Apex Court has also observed that the absence of opportunity to explain the order dated 14.1.1999 as noted in paragraph 14 of the judgment also constituted an error apparent. In Poonam v. Sumit Tanwar ( supra) in paragraph 22, the Hon''ble Apex Court has noted that in case the counsel for Petitioner is not able to raise a factual or legal issue, though such a point may have good merit, the Court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in this behalf. Such a judgment may be violative of principles of natural justice. Attention was also invited to an article on "Rendering Judgments Some Basics" by Hon''ble Judge of Supreme Court in Action Committee, Un-Aided Pvt. Schools and Others Vs. Director of Education, Delhi and Others, where the Hon''ble judge has observed at page 8 that if a Judge wants to rely on precedents or decisions unearthed by Judge by his own research, he has give an opportunity to the parties to comment upon or distinguish the same. Thus, effort of learned senior counsel is to urge that this Court of its own cannot pick and chose any material even from record and use it against the tenants/Petitioners.
Perusal of judgment delivered in Writ Petition on 21.10.2010 reveals the reference to earlier rent control proceedings in paragraph 3 in arguments of learned Senior counsel. In Paragraph 4 issuance of notice by landlord to Petitioner claiming tenants'' premises for business purpose of his two sons and then filing of Regular Civil Suit No. 326/2002 and decree therein by Small Cause Court, is also mentioned. The Small Cause Court had decreed the suit on the ground of default in payment of rent as also on account of bona fide need. The Appellate Court, then, set aside the decree on the ground of default in payment of rent, but confirmed the finding of the trial Court on need. Filing of earlier Writ Petition No. 418/2009 on 30th April, 2009 and remand of matter back to lower Appellate Court and then judgment of lower Appellate Court confirming the decree of trial Court on account of bona fide, need is also mentioned. The contention that premises of Dr. Kamble were vacated and were available to landlord to occupy and hence non occupation thereof militates that his bona fide need is noted in paragraph No. 5. Absence of pleadings for supporting sale of premises vacated by tenants and not starting business of his sons therein, is also then noted and argument that in absence of plea such explanation could not have been accepted, is also noted. The contention that son Mohammed Afzal had, at the time of sale of those premises, not completed his education was not pleaded or was not proved, is also noted with further arguments that it could not have been accepted as justification for not occupying those premises vacated by the tenant Dr. Kamble. Reliance upon judgment of Hon''ble Apex Court in Amarjit Singh v. Smt. Khatoon is also noted.
In Paragraph 8, the judgment of Hon''ble Apex Court in Amarjit Singh v. Smt. Khatoon, is also noted and after considering the facts therein the effort has been made to find out the law as laid down therein. It is noted that conduct of landlady in letting it out for higher rent disentitled her to tenanted premises and this Court thereafter has noted that said judgment had No. relevance in present facts where the premises were sold by landlord due to his domestic situation.
The filing of suit on 23.7.2002 and production of certificate of Diploma in Mechanical Engineering dated 30.6.2003 is noted in Paragraph 11. The premises of earlier tenant Dr. Kamble were sold on 1.10.2001. Legal notice dated 19.3.2002 is looked into and it is noted that landlord disclosed that out of his four sons two had done Diploma in Electrical Trade from ITI and needed premises to start their own business. The fact that sale of block vacated by Dr. Kamble was within the knowledge of tenants is also noted. The contention in the suit that son of landlord, by name, Mohammed Afzal, is unemployed is also noted. The story of landlord that he was required to give amount of Rs. 2 lakhs each to his two married daughters to avoid any dispute and for that purpose he sold premises vacated by Dr. Kamble or then he used balance amount of that sale consideration for further construction of his residential house and to clear the outstanding dues is also noted. The amendment in this respect, as allowed by trial Court, is also noticed. The evidence of Mohammad. Afzal has been looked into and it has been noted that he has deposed according to these pleadings.
In this background, reference is made to paragraph 22 of cross-examination of Mohammed Afzal as conducted by tenants. The tenants had permitted mark sheet and Diploma of Mohammad Afzal to come on record and have also cross examined him about his need and about premises vacated by Dr. Kamble. It is in this background, this Court has noted that tenants got adequate opportunity to challenge the need as pleaded and they also use it effectively have come on record. The findings in paragraph 12 also show that there were No. arguments before this Court that said story of paying amount of Rs. 2 lakhs each to his daughters, was not argued before this Court as false or fabricated.
The judgment of Hon''ble Apex Court in Amarjit Singh v. Smt. Khatoon, has therefore, been appropriately dealt with and after noticing its ratio, same is found not applicable in the present facts. Efforts in review to demonstrate otherwise is therefore unwarranted and unsustainable. The fact of earlier proceedings before Rent Controller, Dr. Kamble vacating the tenanted premises, sale of those premises, are again all looked into by this Court. The contention that attention of this Court was not invited to paragraph 21 of cross-examination of Mohd. Afzal by Respondentlandlord cannot be accepted as valid grounds for review. The Petitioners/tenants who suffered concurrent adverse findings cannot expect to succeed by not pointing out to this Court material available against them on record or then by raising such technical objections. The documents i.e. mark sheet and Diploma certificate are after sale of tenanted premises earlier occupied by tenant Dr. Kamble, as is apparent from Exhs. 47 and 48. The applicants tenants cross examined Mohd. Afzal in relation to those documents and that cross-examination has been looked into by this Court. The applicants tenants have not raised objection to production of those documents or to its use as evidence in examinationinchief, but proceeded to crossexamine Mohd. Afzal. Thus, having acquiesced in such trial and proceedings, the applicants tenants cannot be permitted to turn around and contend that absence of pleading has caused him any prejudice.
Not pointing out material available on record to a Court considering the question under Article 226 or Article 227 of the Constitution of India by Petitioner cannot be a valid ground to sustain such proceedings. Arguments about "no prejudice" or "no opportunity", observance of this Court in paragraph 13 of its judgment, are equally misconceived. These are the findings of this Court after due appreciation. The Hon''ble Apex Court has in Poonam v. Sumit Tanwar (supra) considered the question of scope of interference under Article 32 of the Constitution of India and a proceedings before it were for awarding decree for divorce by annulling marriage of parties by waiving statutory period of six months provided u/s 13B(2) of the Hindu Marriage Act 1955. The observations in paragraph 22 show that when Petitioner''s counsel was not able to raise any factual or legal challenge, the Court cannot allow petition on such challenge as other side does not get fair opportunity to answer the line of reasoning adopted. The observance, therefore, are about Petitioner''s counsel failing to make a factual or legal issue. The Hon''ble Apex Court has thus refused to alter the position prevailing to the prejudice of Respondent before it. Here, the material against parties has come on record before the trial Court. Both the parties had opportunity to bring it on record and to assist the trial Court in its appreciation. The finding of trial Court in this respect has then been looked into by the first Appellate Court in the light of arguments advanced by respective counsel. That Appellate Court has found No. substance in contention of present applicant and, therefore ,has dismissed their Appeal. Thus, whatever material is available against the tenant on record is looked into by two courts. That material was within knowledge of Petitioners when he argued his Writ Petition before this Court. The Petitioners, therefore, cannot contend that use of that material by this Court is not proper. On the contrary, in view of concurrent adverse judgments, it was their duty to point out to this Court all material available on record against them and to explain it if they wanted a finding in their favour. The Petitioners failure to point out that material to this Court cannot be capitalized upon by throwing that burden on the Respondent landlord .If this line of argument is accepted, it will mean that all such petitions where Respondents fail to appear, must automatically be decreed/ allowed by this Court.
This Court has found material inconsistent with contention of applicants on record and upheld concurrent findings on "need". Arguments of "not considered" or "new case" in Review are, therefore, unsustainable. In this view of the matter, I do not see any substance in Review as filed. Review Application is, therefore, dismissed. No. order as to costs.