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BOMBAY HIGH COURT
Shinde S.S. J.
Rajaram Keshav Dhobi & Anr. —Applicant
versus
Narayan Jairam Marathe —Respondent
Civil Revision Application No. 145 & 190 of 2009
Decided on 25-8/30-9-2010
Counsel for the Parties:
For the Applicant: B.N. Patil in C.R. Appeal No. 145/2009 & 190/2009
For the Respondent: in C.R. Appeal. No. 190/2009 & S.P. Shah in C.R. Appl. No. 145/2009.
IMPORTANT POINT
Revisional Court cannot interfere with concurrent findings of fact recorded by courts below.
Headnote:(i) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947—Section 13—Tenancy—Eviction—Dismissal of eviction suit and appeal on ground that plaintiff has failed to prove that the suit premises are required for reasonable and bona fide requirement by plaintiff for their occupation—There are concurrent findings of facts recorded by courts below, that landlord/plaintiff failed to prove that suit premises are reasonably and bona fide requirement of plaintiff for their occupation—Courts below have taken plausible view in consonance with evidence brought on record by parties—Civil Revision Applications are rejected. (Paras 16, 18, 21, 28 to 31)
(ii) Civil Procedure Code, 1908—Section 115—Revision can be entertained by High Court, in a case no appeal lies from decision of subordinate Court, and if such subordinate Court appears to have exercised his jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in exercise of its jurisdiction illegally or with material irregularity—Under Section 115 High Court cannot re-appreciate evidence and cannot set aside concurrent findings of Courts below, by taking different view of evidence—High Court is empowered to interfere with findings of fact if findings are perverse or there has been non-appreciation or no consideration of material evidence on record by courts below. (Para 14)
Result: Civil Revision Applications rejected.
Shinde S.S., J.—Rule, Rule made returnable forthwith. Herd finally with the consent of parties.
2. Both the Civil Revision Applications are filed, challenging the judgment and decree dated 11th August, 2009 passed by the Ad hoc District Judge-l, Amalner, Dist. Jalgaon, in Regular Civil Appeal No.15 of 2004. This Court vide order dated 17th February, 2010 in Civil Revision Application No.190 of 2009 observed that the revision is to be finally heard, at the stage of admission. Further this Court was pleased to call record and proceedings and accordingly record and proceedings are received from the concerned Court.
The applicant in Civil Revision Application No.145 of 2009 i.e. Rajaram Keshav Dhobi is original plaintiff and the applicant Shri Narayan Jairam Marathe in Civil Revision Application No.190 of 2009 is original defendant in Regular Civil Suit No.159 of 1994. The said suit was filed for possession by the landlord/plaintiffs on the ground of personal occupation, business and construction for their residence against the defendants, by claiming a decree for eviction as provided under Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called as “the Act”) .
3. Brief facts as disclosed in the plaint are as under:
The plaintiffs claimed to be landlord of the house property T.P. No.133 within area of boundaries mentioned in para No.1 of the plaint. The western site of premises as described in para No. 1 let to the defendant’s father by their uncle at monthly rent of Rs. 5.25/ -as per English Calender. The tiled hut on area 16 x 10 erected by the landlord’s ancestor at the suit premises. (hereinafter called it as “suit premises”).
The father of defendant died on 14th October, 1993 in house owned by defendant in Gurukul Co-operative Housing Society at Amalner. The defendant is a member of said housing society. He has constructed three rooms house and residing along with his family there. It was contended in the plaint that the defendant unnecessary retained possession over the suit premises. The plaintiff further contended that, suit premises are required for residence and business and for further construction of entire area of T.P. No. 133. They have prepared a map and sanctioned it by Municipal Council, Amalner. According to plaintiff they have constructed area which was possessed by them. The remaining proposed construction area is in possession of the defendant, where they want to construct kitchen, latrine etc. But could not construct it. Since the plaintiffs required the suit premises for residence they issued notice dated 15th June, 1994 for termination ,of tenancy to the defendant. Since defendant failed to handover possession, the plaintiffs filed Suit bearing Regular Civil Suit No. 159 of 1994.
4. The defendant resisted the claim by filing written statement (Exh. 14). The plaintiffs bona fide requirement of suit premises was disputed by the defendants. It was also stated in the written statement that the suit is bad for non-joinder of necessary /certain parties. It was also stated in the written statement, that plaintiffs did file Regular Civil Suit No.104 of 1974 against the father of the defendant and said suit came to be dismissed. Therefore, principle of res judicata squarely applies to the case, and therefore, Regular Civil Suit No.159 of 1994 being barred by principle of res judicata, should not be heard at all by the trial Court. The written statement also includes other contentions of the defendant.
5. The trial Court after closing of the evidence adduced by the parties, written notes, of arguments (at Exh. 256 and Exh. 258) respectively, framed necessary issues for determination. The trial Court has framed as many as seven issues for its determination and consideration. So far personal and bona fide requirement of the plaintiff is concerned, the issue No. 2 was framed by the trial Court and said issue has been answered in negative. The issue No.4 i.e. “Whether
