YESHWANT SUBRAO BIDKAR Vs. SHIKANDAR ALLABAKSHA NAGARAJI

JUDGEMENT

(1.) MR. R. D. Sawant, Advocate, holding for Dilip Bhosale, appeared for the petitioner. None has appeared for the respondent.

(2.) THIS petition arises out of an application filed by the petitioner landlord for eviction of the respondent tenant on the grounds of arrears of rent, bona fide requirement for own occupation of the landlord and also for the reconstruction, as the building is in very dilapidated condition. All these grounds have been accepted by the trial Court and an eviction was ordered. On Appeal, the order of the trial Court was reversed. As regards the arrears of rent, during the period of revision against the order, fixing the standard rent was pending, the lower Appellate Court observed that when the revision is pending against the order of fixation of standard rent, one cannot hold technically that the tenant is in arrears. The learned Counsel for the petitioner, however, contended that the proper course for the tenant would have been to express his willingness before revisional Court that he is ready and willing to pay the arrears of rent as soon as the revision is over. I do not think that the Appellate Courts reasoning is completely faulty. Of course the ideal thing would have been for the tenant to express his willingness and readiness to pay the arrears of rent as soon as the revision is over. But that alone will not be sufficient for me to interfere with the findings of the Appellate Court under Article 226 of the Constitution of India. That conclusion will not justify the interference by this Court in exercise of its power under Article 226 of the Constitution unless it is shown that there is patent illegality in the order. Therefore, so far as finding of the lower Appellate Court that there is no default on the part of the tenant is concerned, it is confirmed.

(3.) ANOTHER contention raised by the Counsel for the petitioner is that the lower Appellate Court has restricted its consideration only on the ground of bona fide requirement and it has expressly brushed aside the ground of reconstruction of the dilapidated building. In paragraph 5 of the judgement of the lower Appellate Court what is stated that the petitioners case is restricted only under section 13 (1) (g) and he is not praying for a decree under section 13 (1) (h) of the Bombay Rent Act, was factually incorrect in the light of the averments contained in para 4 of the plaint. Moreover the trial Court in extenso discussed this aspect of the matter. In that circumstances, the observation of the appellate Court was erroneous. It may be noted here that a commission was taken out in this case and a report was submitted and the report specifically contain that it is a very old building, age of 70 years, constructed in mud and cracks are appeared on the wall and requires reconstruction. Ignoring this report, the lower Appellate Court has made above observations. Therefore, it requires reconsideration by the lower Appellate Court.