Vinod Ramkrushna Bhandekar vs Ajay Kevalram Kale And Another
2016 Latest Caselaw 4962 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                                 
                            NAGPUR BENCH, NAGPUR.

                               WRIT PETITION NO. 872 OF 2015




                                                                   
    Vinod Ra,jrushna Bhandekar,
    aged about 28 years, Occupation
    Pan Shop, R/o Hanuman Ward,
    Gadchiroli, Tq. and Distt. Gadchiroli.                           ... PETITIONER




                                                                  
                                              VERSUS

    1. Ajay Kevalram Kale,
         aged about 38 years, Occupation




                                               
         Service, R/o Hanuman Ward,
         Gadchiroli, Tq. & Distt. Gadchiroli.
                             
    2. Kevalram Nathuji Kale,
         aged about 69 years, Occupation
                            
         Retired, R/o Hanuman Ward,
         Gadchiroli, Tq. & Distt. Gadchiroli.                      ... RESPONDENTS

                                                   ....
      

    Shri V.N. Morande, Advocate for the petitioner.
    Shri R.R. Vyas, Advocate for the respondents.
   



                                         ....


                                            CORAM : PRASANNA B.VARALE, J.

DATED : 25TH AUGUST, 2016.

ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally by

consent of the learned Counsel appearing on behalf of the respective

parties. Shri R.R. Vyas, the learned Counsel waives notice on behalf of the

respondents.

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2. By way of present petition, the petitioner challenges the

judgment and decree dated 26.09.2014 passed by the learned District

Judge, Gadchiroli in Regular Civil Appeal No. 40 of 2011 and the judgment

and decree dated 31.03.2010 passed by the learned Civil Judge, Senior

Division, Gadchiroli in Regular Civil Suit No. 54 of 2009.

3. The respondents are the original plaintiffs before the learned

Civil Judge, Senior Division, Gadchiroli. It was submitted by the

respondents/plaintiffs that they were occupying the premises in the area

namely Hanuman Ward, Gadchiroli and the said property was purchased

by plaintiff No.1 and was in the possession of the plaintiffs for the period

more than 15 years. A part of the premises, namely a room on the ground

floor, was let out to the respondent (who is the petitioner before this

Court) at the rate of Rs.500/- per month for running a pan shop. It was

submitted that the plaintiff No.1 was working with a private company on

daily wages basis. But, due to a limited earning, the plaintiff No.1 was

unable to maintain his family and as such he wanted to start some

independent business. Accordingly, a request was made to the

defendant/tenant to vacate the premises. The defendant paid no heed to

the request and on the contrary stopped the payment of rent and also

committed breach of the conditions of occupying the premises. It was

submitted that in the said premises, the defendant started running the

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business of cable network. The plaintiff then asked the defendant to pay

the electricity charges. The defendant initially paid the electricity charges

for two months and thereafter neither paid the electricity charges nor paid

any heed to the request of the plaintiffs but started abusing the plaintiffs.

The plaintiffs issued a notice to the defendant for vacating the premises.

As there was no reply to the notice, the plaintiffs left with no choice but to

approach the Court for vacation of the premises. By filing Written

Statement, the defendant denied the contentions and with the additional

submissions, submitted that the defendant was paying the rent regularly

and the plaintiff No.1 was earning handsome income as commission and

was employed as a salesman. It was further submitted by the additional

submissions that the plaintiff No.2 is a retired employee and was receiving

a pension. An exercise of examining the documentary evidence as well

oral evidence was undertaken by the Courts below. The learned Joint Civil

Judge, Senior Division, Gadchiroli finding favour with the submissions of

the plaintiffs and on assessment of the material, arrived at a conclusion

that the defendant was in arrears of the standard rate since January, 2009

and an amount of electricity charges since April, 2009 and further recorded

the finding in affirmative to the issue that the plaintiffs reasonable bona

fide require the premises for starting their own business, decreed the suit

with direction to the defendant to hand over the premises within

stipulated period of three months with further directions to pay the arrears

of rent.

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4. An appeal was preferred challenging the judgment and order of

the learned Civil Judge, Senior Division, Gadchiroli to the learned District

Judge, Gadchiroli. The appellate Court finding no reason to interfere with

the findings and the conclusion arrived by the learned Civil, confirmed the

judgment and decree passed by the learned Civil Judge, Senior Division,

Gadchiroli in Regular Civil Suit No. 54 of 2009.

5. Shri Morande, the learned Counsel for the petitioner makes an

attempt to submit that there was an ambiguity in the submissions of the

plaintiffs themselves about the failure to pay the rent. It is submitted by

Shri Morande, the learned Counsel that the plaintiffs submitted that the

defendant failed to vacate the premises and a vague statement was made

that the defendant stopped to pay the rent and committed the breach of

the conditions in April, 2009. He further submits that there was also no

material placed before the Court below to support the contention that the

plaintiffs were in need of the premises. It is submitted that the plaintiff

No.1 was working with an automobile agency and was receiving the

commission as a salesman. Thus, the attempt of Shri Morande, the

learned Counsel for the petitioner is to submit that there are no grounds

for seeking vacation of the premises. Shri Morande, the learned Counsel

then submits that the plaintiffs subsequent to proceeding initiated for

vacation of the premises, let out one of the rooms on rent and as such, the

ground of bona fide need for the premises was only for the sake of seeking

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vacation or ousting the defendant from the premises.

6. With the assistance of the learned Counsel appearing on behalf

of the respective parties, I have gone through the material placed on

record. Though an attempt is made by the learned Counsel for the

petitioner, there was an ambiguity on the aspect of non payment of rent. If

the material and more particularly the plaint itself is perused, there is a

specific statement in the plaint that the plaintiffs made a request to the

defendant to vacate the premises i.e. room in January, 2009 itself, but the

defendant paid no heed, on the contrary, stopped the payment of rent. As

such, the statement will have to be read not picking up some words but in

sequence the reading of the statement as referred to above clearly shows

that a specific ground was raised by the plaintiff that though in January,

2009 itself a request was made to vacate the premises, the premises was

not vacated but the defendant stopped the payment of rent and in the

month of April, 2009 and by committing breach of conditions, started

business of cable network in the said room.

7. Insofar as the ground of bona fide requirement is concerned,

the plaintiff submitted that he was in private employment and was

receiving a meager amount and that amount was not sufficient enough to

maintain his family. Though an attempt is made to submit that the

plaintiff No.1 was receiving handsome income in an automobile agency as

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a commission agent, the same would not make any change in the nature of

the employment of the plaintiff. The plaintiff No.1 submitted that he was

in a private employment and this fact is admitted by the defendant when

he submitted that the plaintiff was working as a salesman in one

automobile agency. The plaintiff also submitted in oral evidence that his

family includes his two children and it is stated in the oral evidence of the

plaintiff that as he was receiving meager income in the private

employment, it was difficult for him to maintain his family. As such, he

wanted to start some independent business. Nothing was brought on

record by the petitioner/defendant to counter these submission. On the

contrary, if the oral evidence of the defendant is perused, it reveals that the

defendant admitted that he failed to place on record the material namely,

in which automobile company the plaintiff works as a salesman or how

much commission the plaintiff receives. The defendant also in clear terms

admits that he has not placed on record any evidence so as to support his

pleadings that the plaintiff was possessing four wheeler. He also admits

that he has not placed on record any material to show that the plaintiff

No.2 was receiving pension after his retirement from service. It was the

case of the plaintiff that he was an educated person and wanted to start his

own business. The defendant thus miserably failed to place on record any

material countering the contentions raised more particularly the bona fide

need of the plaintiffs.

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8. Perusal of the material also shows that the petitioner/

defendant failed to place on record any material to submit that he was

paying the rent regularly from the month of January, 2009 and he was not

in arrears of the rent. Insofar as the ground raised by the

petitioner/defendant that during the pendency of the proceedings the

plaintiffs let out another room on rent is concerned, it would be

interesting to note the observations of the Court below. In support of this

submission, the defendant examined one witness. The version of the

witness examined by the defendant is assessed and the lower Court

observed thus, "but it is pertinent to note that the defendant's own witness

DW No.2 Damodar has himself admitted in his cross that plaintiffs had let

him his room prior to the starting of this present dispute between plaintiffs

and the defendant" and thus the Court below further observed that, "the

admission of the witness goes to falsify the defendant's defence about the

availability of another room with the plaintiffs adjoining to the said rented

room before starting of this present dispute between him and the

plaintiffs."

9. Perusal of the record further shows that the plaintiff No.2 is the

father of the plaintiff No.1 who was a retired employee and the plaintiff

No.1 was to maintain his own family including two children as well the

plaintiff No.2 who is in advanced age. The learned District Judge, while

dealing with the appeal, found that no error was committed by the trial

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Court in appreciating the material and evidence placed on record, the

judgment and decree passed by the learned trial Court was legal and

proper and as such no interference was called for.

10. It is also not in dispute that this Court in numerous judgments

observed that the landlord is the right person to assess the needs of the

family and on such assessment he can put forth his claim for the bona fide

need and seek vacation of the premises. The tenant can certainly counter

this submission of the landlord by placing just and legal material before

the Court.

11. In the present case, on perusal of the material, both the Courts

below found that the defendant was unsuccessful in countering the claim

of the landlord/plaintiff. On the contrary, the landlord/plaintiff

successfully established his claim for vacation of the premises on both the

grounds namely bona fide need and requirement of the premises and the

defendant being in arrears of rent. I found no error committed by both the

Courts below. The petition thus being meritless deserves to be rejected.

No interference is called for in the judgment and order passed by the

Courts below.

In the result, the petition is accordingly dismissed.

JUDGE

*rrg.

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                                   C E R T I F I C A T E




                                                              

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