Vithal Sopan Raut vs Shri Vishnu Raoji Raut and Others

D.K. Deshmukh, J.—By this petition filed under Article 227 of the Constitution of India, the petitioner-tenant challenges the concurrent findings of fact recorded by both the Courts below under the Bombay Rent Act on the ground of bona fide need and the finding recorded in favour of the landlords by the Appellate Court on the ground of default.

The petitioner is a tenant in relation to open space admeasuring 20'' x 10'', C.T.S. No. 2514, situate at Barshi. The original landlord filed the suit claiming that he needs the suit premises for setting up of business of his son Yeshwant and also claiming that the tenant was in arrears of rent. The trial Court found the ground of bona fide need of the landlord as proved. However, it held that the tenant is not a defaulter. The Appellate Court confirmed the finding of the trial Court on the question of bona fide need. However, it reversed the finding of the trial Court on the question whether the petitioner-tenant is a defaulter or not.

The learned Counsel for the petitioner, on the question of the tenant being defaulter, submitted that both the Courts below have recorded findings of fact that on the date on which the suit was filed, the tenant was not in arrears of rent for a period exceeding six months. However, the Appellate Court has passed the decree on this ground because the tenant did not deposit the amount of rent during the pendency of the suit in the Court. Learned Counsel submitted that though the deposits were made late, they were accepted pursuant to the order of the court. Learned Counsel appearing for the respondents submitted that it is an admitted position that the deposits made by the tenant were not regular and that the tenant was late in making the deposits. He further submitted that the fact that the Court had permitted the tenant to make the deposits is irrelevant for finding out whether the tenant has complied with the requirements of Section 12(3)(b) of the Bombay Rent Act.

For consideration of the rival contentions, it becomes necessary to consider the provisions of Section 12(3)(b) of the Act. Section 12(3)(b) of the Act, as it stood at the relevant time, reads as under :

In any other case no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court.

It is to be seen that this Court in Kalandarali Akbarali Kazi Vs. Shaikh Gulam Ibrahim, relying on the observations of the Supreme Court in the case of Ganpat Ladha Vs. Sashikant Vishnu Shinde, has held that so far as the deposits to be made by the tenant u/s 12(3)(b) is concerned, there is no discretion in the Court. It is a duty cast on the tenant to make the deposits and therefore if the tenant is admittedly not regular in making the deposits, then the fact that the Court permitted him to make the deposits would not make any difference. In view of the judgment of this Court in Kalandarali''s case it is clear that there is an obligation cast on the tenant by Section 12(3)(b) of the Act to make deposits of rent regularly and the Court has no discretion in the matter. Therefore, the Appellate Court, in my opinion, was justified in reversing the finding of the trial Court on the question of default on the part of the tenant.

The next contention that is urged by the learned Counsel for the petitioner is that there is no sufficient evidence on record to establish the bona fide need of the landlord''s son for the premises. Learned Counsel for the respondents urged that the finding on the question of bona fide need is a concurrent finding on fact recorded by both the Courts below which is not to be disturbed by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, Considering this question, it is to be seen that I have already found that the decree of eviction passed against the tenant on the ground of default committed by the tenant is justified. Therefore, really speaking, the question whether the decree of eviction is to be passed also on the question of bona fide need or not loses its significance. However, in my opinion, learned Counsel for the respondents is right in urging that as the finding of fact on the question of bona fide need recorded by both the Courts below is concurrent, this Court will not be justified in disturbing such a finding in exercise of jurisdiction under Article 227 of the Constitution of India.

In the result, the petition fails and is dismissed. Rule discharged with no order as to costs.

At this stage, learned Counsel for the petitioner requests that the tenant should be given a reasonable time to vacate the suit premises. In the submission of the learned Counsel, six months would be reasonable time. Learned Counsel for the respondent does not oppose this request. He, however, submits that the petitioner should be directed to furnish an undertaking to this Court in the usual form. In this view of the matter, it is directed that the decree of eviction passed against the tenant shall not be executed till 31st August, 1997 on the tenant-petitioner submitting an undertaking to this Court in the usual form within a period of two weeks from today. Failure of the petitioner to submit the undertaking to this Court within the aforesaid period shall entitle the respondent-landlords to execute the decree immediately.

Certified copy expedited.