Dismissed

Gopikabai Rameshwar Oza and Ors. v. Lilawati Vijayrao Sutwane, Died. Thr. L.Rs. Sunil and Ors.

Bombay HC9 Nov 2011WP/4144/2011

Case brief

AI extract

What is this about?

Petitioners, original tenants, faced eviction for rent default after termination. They claimed a dispatch of a demand draft in 2001, but evidence was not proven due to witnesses' absence. The Court held the district authorities correct in finding no default since payment fell after eviction proceedings crystallized, dismissing the writ petition.

What did the court decide?

The writ petition was dismissed with no order as to costs.

Gopikabai Rameshwar Oza and Ors. Vs Lilawati Vijayrao… — Landlord and Tenant | Bombay HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 4144 OF 2011

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Gopikabai Rameshwar Oza and others .. Petitioners

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Versus

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Lilawati Vijayrao Sutwane Died through L.Rs Sunil and others .. Respondents

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Shri A. H. Kasliwal, Advocate for Petitioners. Shri S. D. Kulkarni, Advocate for Respondent Nos. i to iv.

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CORAM : S. V. GANGAPURWALA, J. DATE : 09TH NOVEMBER, 2011.

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PER COURT :

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. The petitioners were original tenants of land Sy. No. 6/2 to the extent of 5 Acres on an annual rent of Rs. 375/- for cultivation of sugar cane. The tenancy was terminated in 1979. The proceedings were taken up by the landlord and the petitioners were directed to hand over the possession of half of the land. The said order was confirmed upto the Apex Court and thereby the tenant handed over possession of half of the land. Thereafter, the tenants are in possession of 2 Acres and 20 Gunthas of land.

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The respondent/landlord initiated proceedings against the tenant for eviction on the ground of default. The said application for eviction was allowed. The petitioners preferred an appeal before the Sub Divisional Officer, Shrirampur, who dismissed the appeal and confirmed the findings of the first authority. The petitioners, thereafter preferred revision before the Maharashtra Revenue Tribunal. The M. R. T. dismissed the revision and confirmed the findings of both the authorities. Aggrieved thereby the present petition is filed.

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Shri Kasliwal, the learned counsel for petitioners strenuously contends that the M. R. T. and the authorities below have failed to consider the mandatory provision of Sec. 14, 25(1) and (2) and Sec. 43(A) of the Bombay Tenancy and Agricultural Lands Act. The Courts below have failed to appreciate the evidence in proper perspective and have arrived at erroneous conclusion. The learned counsel further contends that the demand draft of Rs. 937.50 was sent along with reply on 22.10.2001. The petitioners have proved by the evidence of the bank employees that the said demand draft in the name of the landlord was issued by the bank. The petitioners have also dispatched the same. The evidence in that regard is not

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shattered. If the landlord does not encash the demand draft, then the petitioners cannot be blamed for the same. According to the learned counsel, the petitioners could not have been evicted on the ground of default on payment of rent for the lapses on the part of the landlord i. e. in not encashing the demand draft. The petitioners have performed their duty.

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Shri Kulkarni, the learned counsel submits that, the authorities have properly considered all the aspects. The tenant was issued notice of default for every year. The learned counsel contends that the notices were issued for payment of rent as under :

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Date of Notice	Period of tenancy	Recovery of Tenancy Amount
04.06.1994 &	1979 to 1994	Rs. 6,000.00
25.07.1994
01.06.1995	1979 to 1995	Rs. 6,187.50
07.06.1996 &	1979 to 1996	Rs. 6,375.00
21.08.1996
30.06.1997	1979 to 1997	Rs. 6,562.50
27.08.1997	1979 to 1997	Rs. 6,562.50
02.06.1998	1979 to 1998	Rs. 6,750.00
24.08.1999	1979 to 1999	Rs. 6,937.50

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The learned counsel further contends that the

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respondent had never received the said demand draft and moreover, the demand draft which is said to have been issued is in October 2001 i. e. after filing of the proceedings for eviction. The proceedings for eviction were filed in the year 2000. According to the learned counsel, even the bank employees did not present themselves for further cross examination and their evidence is rightly not considered.

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With the assistance of learned counsel I have gone through the judgments. It is a fact that the notices were issued by the landlord on 27.08.97, 02.06.1998 and 24.08.1999. The replies to these notices were given on record after 1997. It is tried to be shown by the petitioners/tenants that the demand draft of Rs. 937.50 was issued on 22nd October, 2001. This shows that no payment was made for four consecutive years inspite of notices being issued by the landlord. Even the proceedings for eviction were filed on 22.01.2000. The payment by demand draft even according to the petitioners was tendered on 22nd October, 2001. The same cannot be mitigated to default which is already accrued and the cause of action seeking eviction having been crystallized.

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Even otherwise all the three Courts have concurrently held

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that the petitioners could not prove that the said demand draft was tendered. The bank employees who were examined to prove issuance of said demand draft did not present themselves for cross examination as has been observed by the Courts. In view of the fact that they did not make themselves available for further cross examination, the evidence of these witnesses could not have been considered and relied upon.

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Apart from fact that, the said aspect of demand draft being tendered to the landlord is not proved, still even assuming that the said demand draft was tendered in October 2001 that would not help the tenants, because as much as the same was tendered after the filing of eviction proceedings and right of the landlord to evict tenant on the ground of default being crystalized.

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In the light of the above, no error is committed by the Courts in allowing the application of the landlord for eviction of the tenants/petitioners. In the result the writ petition is dismissed, however, with no order as to costs.

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[ S. V. GANGAPURWALA, J. ]

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bsb/Nov. 11

Gopikabai Rameshwar Oza and Ors. v. Lilawati Vijayrao Sutwane, Died. Thr. L.Rs. Sunil and Ors.

Case brief

What is this about?

What did the court decide?

Gopikabai Rameshwar Oza and Ors. v. Lilawati Vijayrao Sutwane, Died. Thr. L.Rs. Sunil and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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