Dismissed

Ramdavar Tilakdhari Yadav (Since Deceased) v. Ramlakhan Sadal Yadav and Others

Bombay HC23 Sept 2013CRA/226/2013

Case brief

AI extract

What is this about?

The High Court in Civil Revision Application No. 226 of 2013 dismissed the application challenging a rent control suit decree. The court held that the lower courts correctly found unlawful subletting and recorded no error in rejecting the claim of joint tenancy or residence in the suit premises.

What did the court decide?

The Civil Revision Application was dismissed; the impugned orders of the Small Causes Court were affirmed.

Ramdavar Tilakdhari Yadav (Since Deceased) Vs Ramlakhan… — Landlord and Tenant | Bombay HC (2013)

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14.cra.226.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 226 OF 2013

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Ramdavar Tilakdhari Yadav (since deceased) 1a. Mrs.Munji w/o Late Ramdavar Tilakdhari Yadav and others

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.. Applicants

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Vs.

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Ramlakhan Sadal Yadav

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.. Respondent

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Mr. Vivek Kumar R. Dubey, for Applicants. Mr.V.E.Pereira, for Respondent.

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CORAM : R.G.KETKAR, J . DATE : 23^rd September, 2013

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P.C. :

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. Heard Mr.Vivek Kumar R. Dubey, learned Counsel for the

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applicants and Mr.Vincent Pereira, learned Counsel for the respondent at length.

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By this application under section 115 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), the original defendants have challenged the judgment and decree dated 16/08/2003 passed by the learned Judge, Court Room No. 26 of the Court of Small Causes at Bombay in R.A.E Suit No. 1319 of 1991 as also the judgment and decree dated 09/01/2013 passed by the Appellate Bench of the Court of Small Causes at Bombay in Appeal No. 847 of 2003. By these orders, the Courts below decreed the suit instituted by the respondent

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(hereinafter referred to as plaintiff) on the ground of unlawful subletting i.e section 13(1) (e) of the Bombay Rents, Hotel and lodging House Rates Control Act, 1947 (for short 'Act'). The Courts below also negatived the contention raised by the applicants (hereinafter referred to as defendants) that the suit premises is situate in slum area.

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In support of this application, Mr.Dubey invited my attention to i) the suit instituted by the plaintiff and in particular, paragraph 5 of plaint ii) written statement and in particular, paragraphs 5 and paragraph 7 thereof iii) the cross examination of the defendant which is to the effect as follows.

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“The old Ration Card dated 16/01/1985 bearing No. 801266 shown in the new Ration Card as per the xerox copy produced in the court by me and not exhibited was returned to the Rationing Authority at the time of obtaining the new one. I do not have xerox copy of the said old Ration Card.”

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He submitted that in the first place, the plaintiff did not assert that the younger brother of the defendant was inducted as a sub-tenant. Secondly, even in the plaint, no assertions were made about the consideration paid by the defendant's younger brother to him. In any case, defendant's younger brother being a family member, the Courts below committed serious error in decreeing the suit on the ground of unlawful subletting. He therefore submitted that matter requires consideration.

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On the other hand, Mr.Pereira supported the impugned orders. He submitted that defendants specifically came out with a case

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that right from 1972, that is to say from the inception of the tenancy, the defendant and his younger brother were joint tenants in respect of the suit premises. He submitted that sub-tenant is not required to be impleaded as defendant. In any case, if the younger brother was claiming independent right in respect of the suit premises, he should have made application for impleadment. He invited my attention to paragraph 3 of the written statement wherein, plea was raised about failure of the plaintiff to join his younger brother and constituted attorney of the plaintiff as a defendant.

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I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. As noted earlier, the plaintiff has instituted suit against the defendants on the ground of unlawful subletting. The Courts below after appreciating the evidence on record have concurrently held that the plaintiff has established the ground of unlawful subletting. In particular, in paragraph 10, the Appellate Court has recorded that the defendant is not residing in the suit premises and the defendant came out with a case that his brother is residing in the suit premises along with him since inception. The brother of the defendant was examined. He also claimed joint tenancy of the suit premises along with the defendant as also he is residing in the suit premises since inception that to say from 1972. The Appellate Court observed that there is absolutely no evidence in support of these

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assertions. The name of the defendant's brother is shown independently in the ration card. The ration card only shows name of the defendant, his wife and his daughter and grand children. The Appellate Court observed that there is absolutely no evidence of the defendant that he is joint tenant and residing in the suit premises since inception. Defendant during the course of cross examination admitted that he retired in the year 1990 and after receiving provident fund of Rs.1,00,000/-, he shifted to his native place at Azamgad in Uttar Pradesh.

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After appreciating the evidence, the Appellate Court specifically recorded the finding that defendant is not residing in the suit premises since 1990 and the suit premises is in exclusive use and occupation of his brother. Insofar as plea of joint tenancy is concerned, the Appellate Court observed that there is absolutely no evidence to substantiate this plea. Infact, the defendant specifically admitted that when he came to reside in the suit premises in December 1972, he was residing alone in the suit premises and that rent receipt was issued in his name. The Appellate Court thereafter held that the defendant has left the suit premises some time in the year 1990 after his retirement. After considering the evidence on record, the Appellate Court further recorded a finding that there is no evidence to show that defendant's brother was residing in the suit premises with his family members.

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After hearing the learned Counsel appearing for the

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parties and also after perusing the impugned orders, I do not find that the Courts below committed any error in reaching the conclusions referred hereinabove. Mr.Dubey was not in a position to show that findings recorded by the Courts below are based upon no evidence or that on the basis of evidence on record, no reasonable or prudent man would have come to those conclusions .

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No case is made out for invocation of powers under section 115 of the C.P.C. In the result, the application fails and the same is dismissed.

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At this stage, Mr.Dubey orally applies for the continuation of the order dated 29/07/2013 for a period of 6 weeks from today. He further states that within 2 weeks from today, applicants and all adult family members residing with them will file usual undertaking in this Court incorporating therein;

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I) That they are in possession and nobody else is in possession

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II) That the applicants have neither created third party interests nor partied with possession of the suit premises

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III) That the applicants will hereinafter neither create third party interests nor part with possession of the suit premises

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IV) That the applicants will clear all the arrears of rent, if any, within 4 weeks from today.

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Subject to the applicants filing usual undertaking in the aforesaid terms in this Court within two weeks from today after giving advance copy to the other side, ad-interim order dated 29/07/2013 shall remain in force for a period of 6 weeks from today.

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Order accordingly.

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(R.G.KETKAR, J.)

Ramdavar Tilakdhari Yadav (Since Deceased) v. Ramlakhan Sadal Yadav and Others

Case brief

What is this about?

What did the court decide?

Ramdavar Tilakdhari Yadav (Since Deceased) v. Ramlakhan Sadal Yadav and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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