Parbhani Taluka Sahakari Kharedi ... vs Rajaram Sitaram Zarkar Firm And ...
2016 Latest Caselaw 4681 Bom

                                         1                          CRA-6.10.doc




                                                                             
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           BENCH AT AURANGABAD




                                                     
                   CIVIL REVISION APPLICATION NO. 6 OF 2010


     1)       Parbhani Taluka Sahakari Kharedi




                                                    
              Vikri Sangh Ltd., New Mondha,
              Parbhani, District Parbhani, through
              it's President




                                      
     2)       Parbhani Taluka Sahakari Kharedi
              Vikri Sangh Ltd., New Mondha,
              Parbhani, District Parbhani, through
                             
              it's Manager:

              Dilip s/o Ambadasrao Deshmukh,
                            
              Age : 46 years, occup. Service,           .. Petitioners/orig.
              R/o New Mondha, Parbhani                     Defendants No.
                                                           1 and 2
                      VERSUS
      


     1)       M/s Rajaram Sitaram Zarkar Firm,
              Through it's Partner,
   



              [Satish Vasant Zarkar,
              Age 56 years, occup. Business,
              R/o Parbhani, Dist. Parbhani,
              Komti Galli, Parbhani]





     2)       Venkatesh Krishi Kendra,         .. Respondents/Resp.
              Through its Proprietor,             No. 1 orig. Plaintiff,
              Dnyaneshwar s/o Anandrao Harale,    Resp. No.2 original
              Age 48 years, occup. : Business,    Defendant No. 3.





              R/o New Mondha, Parbhani,
              District : Parbhani

                   ------
     Mr. Arvind S. Deshmukh, Advocate for petitioners
     Mr. S. M. Kulkarni, Advocate i/b Ms. Smita M. Zarkar, Advocate
     for respondent no.1




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                                              2                      CRA-6.10.doc




                                                                             
                                   CORAM :       SUNIL P. DESHMUKH, J.

                                   DATE :        16th August, 2016




                                                     
     ORAL JUDGMENT :




                                                    
     1.       Heard learned counsel for the parties.


     2.       It is original defendants no. 1 and 2's         revision against




                                       

judgment and decree dated 24-08-2009 passed by District

Judge-3, Parbhani, in regular civil appeal no. 141 of 2006

preferred at their instance taking exception to the judgment and

decree passed by Civil Judge, Senior Division, Parbhani,

allowing special civil suit no. 18 of 2002 dated 26-09-2006 filed

by present respondent no. 1.

3. Special civil suit no. 18 of 2002 had been instituted by

respondent no.1 - plaintiff seeking eviction of petitioners-

original defendants no. 1 and 2 from the godown and certain

rooms, the property more particularly described in the plaint on

various grounds, inter alia, subletting, bonafide requirement of

suit premises for reasonable use of the landlord and default in

payment of rent.

4. Plaintiff is a registered partnership firm carrying on

business in the name and style 'Rajaram Sitaram Zarkar Firm'

at Parbhani. Petitioners-original defendants no. 1 and 2 are a co-

3 CRA-6.10.doc

operative society registered under the Maharashtra Co-operative

Societies, Act, 1960. Defendant no.3-respondent no. 3 herein is

claimed to be a person to whom defendants no.1 and 2 are

alleged to have sublet a portion of suit property.

5. Upon hearing learned counsel Mr. A. S. Deshmukh

appearing for petitioners, and learned advocate Mr. S. M.

Kulkarni for respondent no.1, the situation appears to be largely

confined to three grounds for eviction referred to hereinabove,

namely, subletting, bonafide requirement of the landlord and

default in payment of rent. The two courts have concurrently

held that suit property is required bonafide by the landlord,

there has been commission of default in payment of rent and as

such, a decree for eviction has been passed albeit the appellate

court has reversed the finding recorded by trial court over the

issue of subletting, and held that it may not be said that the

landlords had been able to prove subletting.

6. Learned counsel Mr. Deshmukh submits that eviction

granted on the ground of bonafide requirement is untenable, for,

it cannot be said that a concomitant issue of comparative

hardship stands decided by the two courts. He submits that it

does not appear to be a case wherein it can be said that the

issue of comparative hardship had been properly dealt with.

4 CRA-6.10.doc

7. The other leg of submissions of Mr. Deshmukh, as far as

default is concerned, is that his clients are willing to pay all the

arrears subsisting as on the date and as such, having regard to

the intention underlying section 15 of the Maharashtra Rent

Control Act, the ground of default may be wiped out, if payment

is allowed to be made.

8. Mr. Deshmukh purports to support his submissions, citing

two judgments viz. Badrinarayan Chunilal Bhutada vs. Govindram

Ramgopal Mundada, reported in AIR 2003 SC 2713 and Namdeo Laxman

Nawale vs. Chandrasen Khasiram Rajeshirke, reported in 2001 (2) Mh. L.J.

9. Referring to Badrinarayan's case (supra), he submits that

mere wish or desire of landlord to acquire possession over

tenanted premises would not be a bonafide and reasonable

requirement. It is the degree of his necessity that would be

significant to judge comparative hardship that would be suffered

by the parties to the proceedings. He submits that it is the case

of petitioners that respondents no. 1 and 2 had other alternate

property available and as such, degree of necessity would not be

as much high as to judge comparative hardship in their favour.

The citation further shows that the burden is on tenant to be

discharged on the issue of comparative hardship.

                                             5                      CRA-6.10.doc


     10.      The other citation in the         case of Namdeo Nawale vs.




                                                                            

Chandrasent Rajeshirke has been pressed into service to contend

that in the present case since evidence has been led by filing

affidavit, it cannot be accepted as a matter of course and that

permission to lead evidence accordingly would not be granted

mechanically.

11. Mr. Kulkarni, on the other hand submits that as far as

default committed by the petitioners is concerned, the same is

habitual. He purports to point out the position as had been

subsisting as on the date of instituting suit, while total arrears

of past three years were ` 25,200/- whereas petitioners had

purportedly paid only ` 15,000/-. Even during pendency of suit,

no regular payment of rent had ever been tendered as required.

He further states that even the mandate under order dated 29-

09-2010 passed by this court about making of payment has not

been adhered to at all. In the circumstances, he submits having

regard to the conduct of the petitioners, the object underlying

section 15 of the Maharashtra Rent Control Act, gets frustrated

although learned advocate Mr. Deshmukh submits that some

payments have been intermittently made. Mr. Kulkarni submits

that such payments are not sufficient and would not take away

efficacy of the ground accrued for eviction. He submits that both

the courts have on evidence come to concurrent conclusion that

6 CRA-6.10.doc

tenants are defaulters and as such are liable to be evicted on

that ground. He contends that the finding so recorded by the

two courts, have not been demonstrated to be either perverse

or incorrect in any way. He, therefore, purports to submit that

under revisional powers of this court such a finding need not be

dabbled with in meddlesome way.

12. Mr. Kulkarni submits that although learned counsel Mr.

Deshmukh for applicants relies on the judgment of learned

single judge of this court in the case of Namdeo Laxman Nawale

(supra), yet the fact remains in present matter that the evidence

as has been taken is allowed under the amended provisions of

the law, particularly after 2002 and further points out that upon

such an affidavit of evidence, the plaintiff and its' witnesses

have been cross examined by defendants-present petitioners.

He, therefore, submits that the petitioners are estopped from

taking such a plea and ground now in the revision.

13. Mr. Kulkarni further submits that respondent no.1-plaintiff

has amply brought on record that the suit premises are required

by landlord bonafide for carrying on business and said evidence

has not at all been rebutted by the tenants-petitioners. He

submits, as far as comparative hardship is concerned, it is a fact

which can be stated to be borne out from the record that the

7 CRA-6.10.doc

petitioners are not at all occupying and using suit premises. He

further points out that it is neither pleaded nor any evidence is

adduced about that the tenants-petitioners would suffer more

hardship than the landlord. In the face of such a situation,

according to him, eviction decree granted by two courts on this

ground as well, is not liable to be interfered with.

14. Upon hearing learned counsel for parties and perusal of

the judgments and decrees of the two courts, it is not at all the

case of the tenants-petitioners that they would be able to

demonstrate that they have paid the amount of arrears of rent

at the rate of ` 700/- per month hitherto as is required under

the provisions of section 15 of the Maharashtra Rent Control Act.

The record amply bears out that out of total dues of ` 25,200/-

of the past three years of notice demanding arrears of rent and

termination of tenancy, petitioners had tendered only an

amount of Rs.15,000/- under a cheque. It further emerges that

they had even thereafter defaulted in regular payment and

tender of rent during the proceedings before the courts. It also

emerges that even this court's order dated 28-09-2010 has not

been complied with. As such, it would be highly improper under

the revisional powers of this court while there is a concurrent

finding of fact about defaults having been committed, giving

right to landlord according to section 15 of the Maharashtra

8 CRA-6.10.doc

Rent Control Act, and to disregard the conduct of the tenants in

committing continual and habitual defaults and accept the rent

sought to be now tendered, and to undo the findings on fact and

consequences flowing from the same.

15. As far as bonafide requirement of suit premises is

concerned, there is sufficient indication in the judgments of the

two courts that said ground has been considered after

appreciating relevant aspects involved and it has been found by

the courts that the landlord requires the premises bonafide. On

the whole, it appears that pleas in defence being taken by the

petitioners-tenants have been vague and have not at all been

supported by any material evidence. It appears that both the

courts have, to quite a large extent, considered the comparative

hardship involved in the matter. As a matter of fact, point in

respect of the same had been framed and considered with

finding that neither there is any pleading nor any material or

evidence adduced by petitioners about them suffering more

hardship in the event of eviction. In such a case, citation

referred to by the petitioners would not further the interest of

respondent-plaintiff under which it is considered that burden is

on tenant to prove that tenant would suffer more hardship than

the landlord and such a burden in present matter, tenant has

not discharged.

9 CRA-6.10.doc

16. In view of aforesaid, this does not appear to be a matter

wherein the concurrent decisions by the two courts can be

faulted with on the basis of contentions raised by the petitioners.

17. Civil revision application as such is dismissed.

SUNIL P. DESHMUKH, JUDGE

pnd