Bombay High Court
M/S Walkar And Company Thro. Its ... vs Isharat Fatima Ali Akbar Khan Lrs ... on 23 June, 2016
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 779 OF 2016
1. Smt. Trishla Vijayukumar Atri,
Age 64 years. Occ. Household.
2. Manish Vijaykumar Atri,
Age 37 years, Occu. Business.
Both R/o Govindpura, Ahmednagar,
Dist. Ahmednagar ... Petitioners
Vs.
1. Isharat Fatima Ali Akbar Khan,
(Deceased) her LRS
1A. Fahim Shaikh Nadim,
Age 34 years, Occu. Service
1B. Kalim Shaikh Nadim,
Age 31 years, Occu. Service,
1C. Farhat Abdulsami Shaikh,
Age 35 years, Occu. Household,
Respondent no.1A to 1C
R/o Gajanan Housing Society,
Mukund Nagar, Ahmednagar.
2. Nusrat Rabiya Ali Akbar Khan,
Age 48 years, Occu. Household,
3. Kumar Mohammed Kazim Kadirkhan,
Age 26 years, Occu. Education
4. Kumar Abdul Kazim Kadirkhan
Age 25 years, Occu. Education
Respondent 2, 3 and 4 all R/o
H.No. 2592, Pachilimb Galli,
M.G. Road, Cloth Market,
Ahmednagar, Dist. Ahmednagar. ... Respondents
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WITH
WRIT PETITION NO. 780 OF 2016
WITH
CIVIL APPLICATION NO. 10883 OF 2015
M/s. Walkar & Company,
Through its Proprietors
1. Smt. Trishla Vijayukumar Atri,
Age 64 years. Occ. Household.
2. Manish Vijaykumar Atri,
Age 37 years, Occu. Business.
Both R/o H.No. 2592, M.G. Road,
Ahmednagar,
Tq. & Dist. Ahmednagar ... Petitioners
Vs.
1. Isharat Fatima Ali Akbar Khan,
(Deceased) her LRS
1A. Fahim Shaikh Nadim,
Age 34 years, Occu. Service
1B. Kalim Shaikh Nadim,
Age 31 years, Occu. Service,
1C. Farhat Abdulsami Shaikh,
Age 35 years, Occu. Household,
All R/o Gajanan Housing Society,
Mukund Nagar, Ahmednagar.
2. Nusrat Rabiya Ali Akbar Khan,
Age 48 years, Occu. Household,
R/o H.No. 2592, M.G. Road,
Ahmednagar, Dist. Ahmednagar. ... Respondents
----
Mr. R.R. Karpe, Advocate for the petitioners.
Mr. V.S. Bedre, Advocate for the respondents.
----
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CORAM : SUNIL P. DESHMUKH, J.
DATE : 23-06-2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally
with consent of the parties. Both the petitioners involve similar
grounds and circumstances and to a fair degree evidence as such
are being decided by this common judgment.
2.
The petitioners are tenants in the respective suit
premises whereas respondents are the landlords of said premises.
The landlord initiated eviction proceedings against tenants on
various grounds primarily on the grounds of default as tenants have
fallen in arrears and bonafide and reasonable requirement of the
landlord. The trial as well as the appellate court have concurrently
held the issues in respect to aforesaid grounds in favour of the
landlord finding that termination of tenancy on the ground of
arrears is in compliance of provision of section 15 of Maharashtra
Rent Control Act, 1999 as well as that the plaintiff-landlord requires
suit premises for bonafide requirement. The consequent issue with
regard to hardship has also been held in the affirmative in favour of
the landlords.
3. Learned counsel for the petitioner, Mr. R.R. Karpe, with
quite some exuberance contends that may be if it is to assume that
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the landlords is in bonafide requirement of the suit premises yet the
factual situation shows that landlords had also certain other
premises owned by them wherein tenants have been staying
however, no proceedings against them have been initiated,
whereas, petitioners have no other accommodation or could have
secured any other accommodation in the vicinity and the
consideration that the tenants were to receive some property in
MIDC is a consideration rather strayed one looking at the distance
between M.G. Road and MIDC. It cannot be said that the petitioners
could have secured reasonably an accommodation similar to the
tenanted premises which would be suitable for their business.
4. He therefore, submits that even assuming that the
landlords require suit premises reasonably bonafide yet the ground
of comparative hardship has not been properly decided and if that
is decided in favour of the tenants, the eviction decree is not
possible. He further purported to contend the suit has been filed
during the subsistence of the period of notice on the ground of
arrears of rent and as such the suit could not have been decreed.
He further submits that, as a matter of fact, arrears of rent had
been deposited during the course of trial .
5. Learned counsel for the respondents Mr. Bedre on the
other hand opposes aforesaid submissions, in the first place,
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pointing out that the suit has been filed well after expiry of 90 days
after the notice had been served on the petitioners and that the
payment which has been allegedly made has also been beyond the
period prescribed under section 15 Maharashtra Rent Control Act,
1999. In the circumstances, finding thereon about default and
breach of compliance of the statutory provisions, eviction decree
entailed in favour of the petitioners.
6.
He submits that it is a settled law that a tenant cannot
foist choice on the landlord and the land lord is the best judge of his
need. Therefore, the alternative which has been suggested in the
arguments about other premises being available in the vicinity may
not be of any assistance against the concurrent finding of facts
rendered by courts.
7. He submits that the ground of comparative hardship has
also been properly decided. He further submits that it does emerge
on record that tenants have not exerted themselves finding out
alternate accommodation at any point of time. In the circumstance,
the finding of comparative hardship cannot be faulted with.
8. Notice with reference to section 15 of the Maharasthra
Rent Control Act, 1999 Act appears to have been served on the
petitioners in September and the suit was filed in January shows
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that there is no substance in the contention that suit has been filed
before expiry of statutory period. Having regard to the findings of
fact that the tenant had committed breaches in respect of
compliance of the mandatory provisions under section 15 of the
Maharashtra Rent Control Act, 1999 as well as both the courts have
found concurrently that the need of landlords bonafide, the
inference drawn from the facts as has emerged on record on
evidence that hardship would be suffered more by the landlords
than the tenants, it is difficult to indulge into request being made
on behalf of petitioners.
9. Writ petitions as such are not being entertained and are
dismissed. Civil Application disposed of. Rule discharged.
(SUNIL P. DESHMUKH)
JUDGE
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