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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.11 OF 2016
Syed Muneer Syed Mohammed Ali APPLICANT
Age - 67 years, Occ - Business,
R/o Shop No.2, Indira Meter Repairing,
Atar Galli, City Chowk,
Aurangabad
VERSUS
Hasan Shaker Syed Mohammad Shafi Inamdar RESPONDENTS
Age - 55 years, Occ - Business,
R/o Kohinoor Colony,
Panchakki, Aurangabad
.......
Mr. Shaikh Mujtaba Gulam Mustafa, Advocate for the applicant Mr. S. R. Sapkal, Advocate for the respondent .......
[CORAM : SUNIL P. DESHMUKH, J.] DATE : 20th MARCH, 2017 ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned advocates for the parties finally with consent.
2. Respondent - plaintiff - landlord instituted proceedings bearing Rent Suit No. 23 of 2012 seeking eviction of appellant - defendant - tenant from premises having dimensions approximately about 11.6' X 6.3' bearing Municipal House No. 3- 2-28 CTS No. 4052 referred to as "Shop No. 2" in the proceedings, situated at Atar Galli, City Chowk, Aurangabad. ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 :::
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3. Briefly stated, facts as may be relevant to be referred to are that, a property inclusive of suit property (suit shop) had been purchased by the respondent (plaintiff in Rent Suit No. 23 of 2012, hereinafter for convenience would be referred to as "landlord") under a registered sale deed dated 30 th July, 1997, while the appellant (defendant in Rent Suit No. 23 of 2012, hereinafter would be referred to as "tenant" for convenience) had already been tenant of the vendor of the landlord.
4. The suit was instituted by the landlord on the ground of default in making payment of rent with permitted increases; causing major structural changes to suit premises; the landlord does not possess commercial premises for running business and he required suit premises reasonably and bona fide for himself and for his son to start a business.
5. On 30th January, 2012, a notice came to be issued to the tenant, calling upon to pay an amount of `.21,398/- and to vacate suit premises. Upon receipt of the notice, tenant admitted landlord-tenant relationship. He did not dispute rate of rent, however, had denied commission of default and causing damage and destruction to the structure of suit shop and installation of new shutter. The tenant denied that the landlord had been doing ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {3} cra11-16 business of selling crockery from shop to shop and he wants to start business with his son and that suit premises were required by the landlord reasonably and bona fide and contended that no cause of action has arisen for institution of the suit.
6. Trial court had framed requisite issues with regard to need of landlord being reasonable and bona fide and about greater hardship. The trial court found need of the landlord to be reasonable and bona fide and that he would suffer greater hardship. Consequently, suit came to be decreed.
7. Matter was taken up by the tenant in Rent Appeal No. 10 of 2014 wherein as well points, to the same effect as the issues, were framed by appellate court. The appellate court concurred with the findings rendered on the issues framed by the trial court.
8. Learned advocate Mr. Mustafa, appearing on behalf of the tenant submits with quite some vehemence that statutory requirement, that the need of the landlord ought to be reasonable and bona fide, cannot be said to have been satisfied in the present mater. According to him, need shall comprise both the components "reasonable" as well as "bona fide". He submits that looking at present scenario, while originally, size of the suit ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {4} cra11-16 premises had been 11.6' X 6.3', the same has been reduced upon acquisition of a portion of suit premises for road widening by the local authority. He submits that in the circumstances, business, which is asserted to be carried out of selling crockery from shop to shop would hardly be accommodated in present size of suit shop. He submits that need of the landlord has not at all been reasonable and bona fide. Even if it is assumed for the sake of arguments, in the prevailing circumstances, it cannot be said that the need of the landlord can be satisfied by evicting the tenant. He submits that his eviction on the ground of landlord's reasonable and bona fide need is not possible, since landlord has purchased suit property with the knowledge of subsistence of tenancy of the tenant.
9. Over and above, he submits that evidence clearly shows the landlord to be in possession of other premises, where he is carrying on his business and said fact has not been mentioned in the plaint, which tantamounts to keeping away court from vital information, which may have bearing on the outcome of the proceedings.
10. In addition to aforesaid, learned advocate purports to rely on the documents annexed to the civil application produced ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {5} cra11-16 across the bar in respect of Regular Criminal Case No.1690 of 2014, wherein another tenant of the landlord appears to have instituted criminal proceedings for cheating, forgery and fabrication of documents, which according to learned advocate for the tenant indicate that even the claim of the landlord that he is running business, is not tenable. He submits that in said proceedings the criminal court has taken cognizance and has issued process against the landlord pursuant to section 204 (1)
(b) of the Criminal Procedure Code.
11. Learned advocate goes on to submit that the tenant is economically a weak person, his source of livelihood is auto rickshaw meter repairing and from the same he and his family eke out existence. The tenant is not in a position to occupy alternate premises with a meagre income of auto rickshaw meter repairing, whereas the landlord ies in builders' business and has several other alternate properties available, including the one at Shahnoorwadi from where he carries on business, as would emerge from the evidence. He thus, submits that comparison in hardship would show that it is the tenant who would suffer more hardship than the landlord. During the course of arguments, he refers to a decision in the case of "Vasant Mahadeo Gujar V/s Baitulla Ismail Shaikh and Another" reported in 2015 (5) Bom. C. R. 243. He refers ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {6} cra11-16 to paragraph No.54 of said judgment reading, thus -
" 54. However, the respondent landlords, have not at all been candid with the Court insofar as the pleadings are concerned. In the course of evidence, it has come on record that the respondent landlords have, besides the suit premises several other premises, which are being used by them for purposes of commerce as well as residence. Some of the premises, may have been acquired post the institution of the suit including in particular, the premises acquired by one of the sons of Baitullah Shaikh. Nevertheless, there were no disclosures volunteered in the course of examination in chief. Even if, the premises subsequently acquired are left out of consideration, there was a duty upon the respondent landlords to fully and candidly make disclosure about the premises in their occupation, both for the purposes of residence as well as commerce and thereafter to explain, howsoever briefly, the subsistence of the need in respect of suit premises. The respondent landlords have completely failed in this aspect. Such nondisclousre is a relevant consideration in the context of determining both the reasonability as well as bona fides."
12. He submits that observations in aforesaid judgment would aptly apply in the present case as well, since landlord had not discharged his obligation to reflect upon alternate premises available to him. He, therefore, submits that findings recorded by the two courts hitherto would not be tenable and are amenable for interference with under the revisional powers of this court. He, thus, urges to allow the civil revision application.
13. Countering aforesaid submissions, Mr. Sapkal, learned ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {7} cra11-16 advocate appearing for the landlord submits that two courts hitherto have concurrently found need of the landlord to be reasonable and bona fide. He submits that it cannot be gainsaid that landlord and his son were intending to start business and had been accordingly acting in pursuance of their intention. On the date of institution of the suit, the landlord had no accommodation available from where business could be carried out. The landlord had already been selling crockery and for want of accommodation, he had to do business by moving from shop to shop. Although it is being contended that receipt Exhibit-31 is admitted by the landlord, yet it cannot be said that the same satisfies need of the landlord which is reasonable and bona fide. He submits that the suit premises are situated in business area and that forms hub of Aurangabad city. He, therefore, contends that requirement of the suit premises being reasonable and bona fide is not wiped out by the so called contention about some premises being considered to be available with the landlord. He submits that in any case, it is not the contention of the tenant that premises can be said to be of the landlord and he submits on instructions that the premises under Exhibit-31 do not belong to the landlord.
14. Over and above aforesaid, he contends that the suit ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {8} cra11-16 premises are required by the landlord not only for himself, but also for his family member - son, who is now major. In the circumstances, this case squarely falls under section 16 (1) (a) of the Maharashtra Rent Control Act. He submits that even there is no resistance to the requirement of the son - a family member even by whisper either in the pleadings or for that matter in the evidence about that the premises are required by the son as well. He further submits that the trial as well as appellate courts, both have taken stock of the situation and have referred to the relevant judgments and considered that a tenant cannot dictate to the landlord as to which of the premises he should ask for and it is landlord's prerogative and judgment which will prevail over any other circumstance. He submits that the trial as well as the appellate courts have not only adverted to but also dwelt upon the pleadings and the evidence given and the contentions of the tenant that other shop premises had been vacated by another tenant. However, the courts have found those premises would not satisfy reasonable and bona fide need of the landlord, having regard to the facts and circumstances of the case and looking at that the premises so vacated were hardly been conducive to the business and that person who is stated to have been occupying the same, has been temporarily occupying the same doing ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {9} cra11-16 business in day time and vacating the same in the evening. He submits that criminal prosecution lodged against the landlord is not conclusive and no benefit from the same can be derived by the tenant in the present proceedings.
15. He additionally submits that the tenant, after eviction proceedings were instituted, has not taken efforts to seek accommodation elsewhere as has been rightly gauged by the courts. Although the tenant has referred to one Gulshanbhai, no evidence in respect of the same has been adduced. He adverts to that the courts, taking into account relevant citations, have found that in absence of any effort by the tenant to secure other accommodation, hardship suffered by the landlord would be more than the one that would be suffered by the tenant. Thus, the findings, being based on record, are not open for disturbance in the revisional powers.
16. Having heard learned advocates as aforesaid, the indisputable position appears to be that the suit premises are owned by the landlord and proceedings have been initiated on the ground that the same being required reasonably and bona fide for business of the landlord and his son, who has become major and that the landlord has instituted proceedings for ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {10} cra11-16 eviction against all the tenants. It further appears that the courts hitherto, with reference to the evidence on record, have considered that requirement for the business of the landlord with regard to suit premises is reasonable and bona fide. The intervening circumstance, about acquisition of portion of suit premises, although being contended, does not appear to be effectively brought forth before the courts hitherto. However, acquisition proceedings having taken place during pendency of the proceedings, need of the landlord, as would be subsisting on the date of the suit, is unlikely to be affected being reasonable and bona fide. So far as other premises landlord being in possession of is concerned, there does not appear to be any evidence effectively being brought forth before the courts hitherto by any credible material. Although it is being submitted that the landlord himself has admitted having secured some accommodation, that by itself would not wipe out need of the landlord absolutely. Courts, with reference to material and evidence on record have appreciated the matter in respect of the same and it does not appear that appreciation has been away from the record or for that mater tends to be perverse. Contention of learned advocate for the tenant that the tenant is doing a small time business of auto rickshaw meter repairing and ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {11} cra11-16 as such, he would suffer more hardship than the landlord is concerned, the trial as well as appellate courts have quite elaborately discussed this aspect involved in the matter and have supported their findings with reference to the citations, particularly that in absence of any evidence by the tenant about having taken efforts to secure alternate accommodation after institution of the suit, it is difficult to consider that findings so recorded on comparative hardship would be amenable to be intercepted in revisional powers.
17. In the circumstances, civil revision application fails and stands dismissed. Rule stands discharged.
18. At this stage, Mr. Mustafa, learned advocate for the tenant states that having regard to the circumstances, a reasonable period for vacating suit premises be granted, which according to him would be of two years. Learned advocate for the landlord, however, vehemently opposes and submits that it would be too much of time being sought for vacation. Learned advocate submits that six months' period may be considered. In the circumstances, it would be deemed expedient that a year's time may be reasonable one looking at the facts and circumstances of the case. As such, execution of eviction decree be deferred by a ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 ::: {12} cra11-16 year, by which time it is expected that the tenant would in any case hand over clear and vacant possession of the suit premises to the landlord by observing following conditions. 19 The tenant shall vacate suit premises peacefully within a period of twelve months from today, without creation of any third party interest or transfer in any way and he himself shall hand over vacant possession of suit premises to the landlord without demur and without creating any hurdle, and on the condition that he shall continue to pay to the landlord compensation for occupation of this period of twelve months at the same rate as rent was being paid. Time of twelve months for vacating suit premises is being granted subject of course to filing of an undertaking to aforesaid effect. Undertaking be filed within a period eight weeks from today in this court. In case of failure to file undertaking within stipulated period, it would be open for the plaintiffs to proceed with the execution.
20. In view of aforesaid, civil application stamp No.9154 of 2017 stands disposed of.
[SUNIL P. DESHMUKH, J.] drp/cra11-16 ::: Uploaded on - 17/04/2017 ::: Downloaded on - 27/08/2017 20:26:24 :::