Bombay High Court
Anand Shankarlal Tiwari vs Gulshan Santram Sahani on 16 September, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2531 OF 2010
PETITIONER: Anand Shankarlal Tiwari, Aged about
49 years, occupation Proprietor,
Laxmi Agency, Shop Block no.10,
Sewa Sadan Building, Plot No.74,
Central Avenue Road, Nagpur.
-VERSUS-
RESPONDENT: Gulshan Santram Sahani, Aged about
52 years, Occupation Business,
ig Resident of Plot No.523, Clarke
Town, Kadbi Chowk, Nagpur.
Shri A. C. Dharmadhikari, Advocate for the petitioner.
Shri R. M. Sharma, Advocate for respondent.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 12-08-2016.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 16-09-2016.
ORAL JUDGMENT :
1. The petitioner who is the tenant of the premises
owned by the respondent has challenged the decree for eviction
passed by the trial Court under the provisions of Section 16(1)(g)
of the Maharashtra Rent Control Act, 1999 (for short, the said Act)
which decree has been affirmed by the District Court in appeal.
2. The facts giving rise to this writ petition are that it is
the case of the respondent that he is the owner of shop block no.10
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admeasuring about 429 sq. ft. alongwith mezzanine floor and loft
in a building known as Seva Sadan located at Central Avenue
Road, Nagpur. These premises were let out to the petitioner on
rent of Rs.1650/- per month. The petitioner was doing business of
Sanitary Ware and hardware in the name and style of M/s Laxmi
Agency in the said premises. According to the respondent, he was
running transport business in the name and style of M/s Maharaj
Garage and Company. The said business was being run in
partnership along with other family members. The son of the
respondent was assisting the respondent in the transport business,
but he wanted to start his own business. Though the respondent
owned other premises, the same was let out to a tenant. The
premises occupied by the petitioner were most suitable for his son
to start his business. According to the respondent, the petitioner
also owned a building consisting of ground floor, first floor and
second floor at Central Avenue Road. On the ground floor of the
said building, there were three shop blocks occupied by three
different tenants. Thus, on the ground that the respondent was in
bonafide need of the suit premises so as to settle his son in
business, the respondent filed Regular Civil Suit No.63/2008 on
22-2-2008.
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3. The petitioner filed his written statement and took the
stand that in absence of other co-owners of the suit property, the
respondent alone had no locus to file the suit for eviction. The
stand was taken that the suit premises comprise of a front portion
bearing block no.9 and rear portion bearing No.27. The premises
were initially owned by the mother of the respondent who had let
out the same to the petitioner. The respondent used to collect rent
on behalf of his mother as well as on his own behalf. It was then
pleaded that the respondent had various properties including a
residential house and these premises were sufficient to satisfy the
need of his son. It was alleged that the facts pertaining to other
properties owned by the respondent had been suppressed. A
further plea was taken that the petitioner only had 1/5 th share in
the joint family property that was situated at Central Avenue road.
It was averred that greater hardship would be caused to the
petitioner in case the decree for eviction was passed and it was,
therefore, pleaded that the suit be dismissed.
4. Before the trial Court the parties led evidence. The
respondent examined himself and his son while the petitioner
examined himself, one Omprakash Barapatre, manager of
Corporation Bank, one Amit Prasad serving in the Income Tax
Department and one Subhash Dhanare who was serving in the
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Slum Department of the Municipal Corporation as a clerk.
5. The trial Court after consideration of the entire evidence
on record held that the respondent was the landlord of the
petitioner and that since the year 1995, the petitioner had been
paying rent to him. It was further held that the respondent had
succeeded in proving bonafide need as regards requirement of the
said property for enabling his son to start business. It was also
held that greater hardship would be caused to the respondent if
such decree was not passed. The trial Court also held that the
presence of co-owners of the suit property was not necessary and
that the premises did not fall within slum area. By judgment dated
26-3-2009 the trial Court decreed the suit.
6. The petitioner being aggrieved by the aforesaid decree
challenged the same by filing an appeal under Section 34 of the
said Act. The appellate Court on re-appreciation of the evidence
on record confirmed the findings recorded by the trial Court. The
bonafide need of the respondent was upheld and the finding that
the greater hardship would be caused to the respondent was also
confirmed. On that basis by judgment dated 11-12-2009, the
appellate Court maintained the decree for eviction. This judgment
is under challenge in the present writ petition.
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7. Shri A. C. Dharmadhikari, the learned Counsel for the
petitioner submitted that both the Courts erred in upholding the
bonafide need of the respondent. It was submitted that the
respondent alone was not the exclusive owner of the suit premises
and in the absence of other co-owners he was not authorized to
file the suit for eviction. According to him, the respondent had no
exclusive right over the suit property nor was there any evidence
to show that any authority was given to the respondent to initiate
proceedings for eviction of the petitioner. There were no
averments in the plaint that the other owners of the suit property
had consented to the initiation of the proceedings. It was urged
that the respondent was merely a "rent collector" and in view of
the explanation to the provisions of Section 16(1)(g) of the said
Act, the suit at the instance of a rent collector for bonafide need of
the suit premises was not maintainable.
It was then submitted that the respondent had not
approached the Court with clean hands. There was suppression of
the material facts as regards the ownership of other properties by
the respondent. The source of income of his son was not brought
on record. Despite the fact that the respondent was owning
sufficient other premises, the eviction of the petitioner was sought
which indicated lack of bonafides on his part. It was merely a case
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of desire to have vacant possession as contrasted with genuine
need. It was further submitted that the respondent had not made
out any case of bonafide need for his son. As per the case of the
respondent, his son was doing transport business and despite that
he intended to change his business to that of Sanitary ware and
Hardware. The partnership deed of M/s Maharaj Garage was also
not placed on record deliberately by the respondent. As regards
the aspect of hardship, it was submitted that the petitioner was
doing business in the suit premises since the year 1989 and had
acquired goodwill therein. The property in which the petitioner
had some share was occupied by the three tenants and proceedings
initiated for their eviction were pending. If the petitioner was
evicted, he would not have any other premises to do business and
therefore, greater hardship would be caused to him. It was thus
submitted that both the Courts by failing to take into consideration
these relevant aspects committed an error in directing eviction of
the petitioner. In support of his submissions, the learned Counsel
placed reliance upon the following decisions:
[1] Subhash K. Thakkar vs. Rushad Dineshaw and others,
2005(4) Mh.L.J. 353.
[2] Balkrishna H. Patil vs. Madhukar Madhavrao
Deshpande 1999(2) Mh.L.J.
[3] S. P. Chengalvaraya Naidu (dead) by L.Rs. vs.
Jagannath (dead) by L.Rs. and others AIR 1994
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Supreme Court 853.
[4] Badrinarayan Chunilal Bhutada vs. Govindram
Ramgopal Mundada 2003(3) ALL MR 1141 (S.C.)
[5] Kempaiah vs. Lingaiah and others (2001) 8 Supreme
Court Cases 718.
[6] Remco Inds. Workers House Bldg. Coop. Soc. vs.
Lakshmeesha M. and ors 2003 SAR (Civil) 804.
[7] H. S. & W. Mills Vs. H.C.M.S.K.K.S.S. 2007(5) Mh. L.J.
[8] Lajpat Rai v. Smt. Vidya Wati 1998 (1) Civil LJ 566.
[9]
ig R. K. Madhuryyajit and another vs. Takhellambam
Abung Singh and another 2002 (2) Civil LJ 55.
[10] Sukhadeo v. Laxmibai 1979 Mh.L.J. 546.
[11] Eknath Bhanudas V. Shankarrao 1971 Mh.L.J. 546.
[12] Janba Daulatrao Borkar vs. Rajeshkumar Ramjiwan
Agarwal 1975 Mh.L.J. 746.
8. Per contra, Shri R.M.Sharma, the learned Counsel for
the respondent supported the decree for eviction. According to
him, the grounds raised by the petitioner for challenging the
decree for eviction were considered by both the Courts and it had
been concurrently held that a case of bonafide need of the
respondent so as to settle his son was made out. He submitted
that the submission made on behalf of the petitioner that other co-
owners/joint owners had not consented to the filing of the present
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proceedings was misconceived inasmuch as even one co-owner
could seek eviction of a tenant. It was not the case that the other
co-owners/joint owners were opposing the prayer for eviction
made by the respondent. His plea that the respondent was merely
a "rent collector" was not raised in the written statement nor was
the same argued either before the trial Court or the appellate
Court. The same was being raised for the first time in the writ
petition. It was submitted that the respondent was not a "rent
collector" but being the joint owner of the property, he was
entitled to seek eviction of the petitioner. According to the learned
Counsel, the intention of the respondent's son to start business of
Sanitaryware could not be doubted as it was for the son to decide
as to which particular business he should start. It was not
necessary that he should have had necessary expertise in that
regard. It was, therefore, submitted that both the Courts had
recorded clear findings of fact and the same was not liable to be
interfered with in writ jurisdiction. In support of the decree for
eviction, the learned Counsel placed reliance upon the following
judgments:
[1] Kedarnath Bohra and another v. md. Safiulla and
another AIR 1984 Patna 172.
[2] Akhileshwar Kumar and others v. Mustaqim and
others AIR 2003 Supreme Court 532.
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[3] Goverdhandas vs Bherulal Uderam 2005(3) Mh.L.J.
[4] Shamshad Ahmed and others v. Tilak Raj Bajaj
through legal heirs (2008) 9 SCC 1.
[5] Jainuddin Abdul Rehman Shaikh vs. Sitaram Damodar
Varvadkar and others 1981 Mh.L.J. 498.
[6] Sri Ram Pasricha vs. Jagannath and others (1976) 4
Supreme Court Cases 184.
[7] Mohinder Prasad Jain vs. Manohar Lal Jain (2006)2
Supreme Court Cases 724.
[8] ig Sara Rauf and another vs. Durgashankar Ganeshlal
Shroff and others 2007(4) Mh.L.J. 129.
[9] Lingala Kiondala Rao v. Vootukkuri Narayana Rao AIR
2003 Supreme Court 2077.
[10] Meenal Eknath Kshirsagar (Mrs.) vs Traders &
Agencies and another (1996) 5 Supreme Court Cases
[11] Yogesh Dsattaram Pathak vs. Shrikrishna Shriram
Joshi 2003 (Supp.) Bom. C. R. 587.
[12] Premprakash Hukumatray Sethi vs. Smt. Vandana
Bhalchandra Altekar 2002 (2) RCJ 123.
[13] Sait Nagjee Purushotham and Co. Ltd. vs. Vimalabai
Prabhulal and others (2005) 8 Supreme Court Cases
9. I have heard the respective Counsel for the parties at
length and I have given due consideration to their submissions. I
have also gone through the contents of the affidavit dated 07-07-
2016 filed by the petitioner as well as the counter-affidavit dated
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14-07-2016 filed by the respondent. The subsequent events
sought to be brought on record vide C.A. No.1512/2016 by the
petitioner as well the reply filed thereto have also been taken into
consideration.
Before examining the merits of the rival submissions, it
has to be kept in mind that this Court is exercising jurisdiction
under Article 227 of the Constitution of India and the present
proceedings cannot be treated to be an appeal in disguise. If the
findings recorded by both the Courts are based on material
available on record and such appreciation of evidence is not found
to be perverse, this Court would be slow in interfering with said
findings merely because another view of the matter was possible.
This approach is in the light of the judgment of the Hon'ble
Supreme Court in Shamshad Ahmad and others (supra).
10. Considering the challenge to the entitlement of the
respondent to file the present proceedings, in the plaint it was
pleaded that the respondent was the owner of shop block No.10
that was occupied by the petitioner as tenant. In the written
statement, the petitioner pleaded that he was not aware whether
the respondent was the owner of the suit property. It was further
pleaded that the suit premises were let out to the petitioner by the
respondent's mother and that the respondent used to collect rent
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on behalf of his mother as well as for himself. In the evidence of
the respondent, it was admitted by the respondent that initially
two rent receipts were being issued, one by his mother and one by
himself. It was denied that the tenancy of the two portions of the
suit property was separate as claimed. The petitioner in his
deposition admitted that after the death of the mother of the
respondent in the year 1995, he was paying rent to the respondent
for the entire premises.
ig From the aforesaid material on record both the Courts
have found that since May 1995, the petitioner was paying rent of
the suit premises to the respondent without any protest. There
was no rival claim set up by any other co-owner nor was there any
such evidence brought on record by the petitioner. In the
backdrop of this material on record, I do not find that both the
Courts committed any error in holding the respondent entitled to
seek eviction of the petitioner by filing the present proceedings.
The decisions in Jainuddin Abdul Rehman Shaikh and Sriram
Pasricha (supra) support the stand of the respondent. The ratio of
the decision in Subhash K. Thakkar (supra) cannot be made
applicable to the facts of the present case.
11. As regards the submission that the respondent merely
being a "rent collector", he could not have sought eviction of the
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petitioner on the ground of bonafide need, such plea was not
raised in the written statement. The stand that the plaintiff was
merely a "rent collector" and therefore, not entitled to file
proceedings for eviction under the provisions of Section 16(1)(g)
of the said Act is a plea based on facts. Unless such stand is taken
in the written statement and is thereafter substantiated by leading
evidence, the same cannot be permitted to be raised for the first
time in these proceedings. In any event, on the basis of the
material on record I do not find that the respondent can be treated
as a "rent collector". After the death of his mother in the year
1995, the petitioner had been paying the entire rent to the
respondent and he had even admitted that prior thereto the
respondent was receiving rent on behalf of his mother as well as
on his own behalf. Hence, said submission made on behalf of the
petitioner cannot be accepted and for said reason, the reliance
placed upon the decision in Balkrishna H. Patil (supra) is
misconceived.
12. In so far as bonafide need of the respondent is
concerned, it is the case of the respondent that the suit premises
were required to enable the son of the respondent to start business
in Sanitaryware and Hardware. The evidence on record indicates
that the respondent's son was assisting his father in the transport
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business that was being run in the name of M/s. Maharaj Garage.
He, however, intended to start his independent business. Absence
of sufficient experience with regard to the business proposed to be
started is not necessary. If the properties in which the respondent
had interest are considered, besides the suit property there was an
office block at Transport Nagar that was let out to a tenant. This
property admeasured 300 sq. ft. and was situated in the area
known as Transport Nagar wherein offices of transport operators
were situated. The transport business of M/s Maharaj Garage and
Company was being run at Mirchi Bazar. The said business was a
partnership business which included the interests of the brother of
the respondent and his nephews. In so far as the residential house
is concerned, the same was jointly owned by the family of the
respondent and was not suitable for doing any business.
13. The subsequent events sought to be brought on record
by the petitioner are not such that would overshadow the bonafide
need of the respondent. The property said to have been purchased
on 03-06-2010 does not exclusively belong to the respondent.
After considering the material placed on record including the
affidavits of the parties, I do not find that there has been
suppression of any material facts on the part of the respondent so
as to apply the ratio of the decision in S.P. Chengalvaraya Naidu
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(supra). The respondent is entitled to succeed on the strength of
his own case as observed in Remco Inds. Workers House Bldg. Co-op
Society (supra). His case stands duly proved on the basis of
evidence led by him. The reliance placed by the learned counsel
for the petitioner on the decisions in Hindoostan Spg. & Wvg. Mills
Ltd, Lajpat Rai and R. K. Madhuryyajit and anr. (supra) do not
assist the case of the petitioner.
In the light of the available properties, it cannot be
said that by intending to start business of Sanitaryware and
Hardware at the suit premises such intention was not bonafide. As
held in Minal Eknath Kshirsagar (supra), the landlord is the best
judge of his needs and it is for him to decide which business has to
be done. The observations of the Hon'ble Supreme Court in
Badrinarayan Chunilal Bhutada and M/s Sait Manji Purushottam
and Company (supra) support the case of the respondent. The
view taken by both the Courts in that regard, therefore, cannot be
faulted. The need of the respondent is found to be bonafide as
contrasted with a mere desire and the learned Counsel for the
respondent is justified in relying upon the judgment of learned
Single Judge in Sara Rauf and another (supra). The ratio of the
decision of the Hon'ble Supreme Court in Kempaiah (supra) and
learned Single Judge in Eknath Utane and Janba Borkar (supra)
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does not assist the case of the petitioner.
14. On the question of hardship, it is true that the
petitioner is in occupation of the suit premises since the year 1989.
However, mere long occupation by the tenant in the tenanted
premises cannot be a ground by itself to hold that greater hardship
would be caused to the tenant if he is evicted. The record
indicates that the petitioner is the owner of House No.633 which is
a two storied building. On the ground floor of said premises, there
are three shop blocks. Though the same are presently occupied by
tenants and proceedings for their eviction are pending at the
instance of the petitioner, the same cannot be a ground to hold
that the respondent should wait till these proceedings are decided
and vacant possession is obtained by the petitioner. Infact, the
proceedings initiated by the petitioner against the tenant namely
Smt Tulsabai Tijoriwala have been remanded tot he Rent
Controller. It would be unfair to expect the respondent's son to
wait till the petitioner secures vacant possession of the premises
occupied by the tenants of the petitioner. The petitioner has
admitted in his deposition that he did not take any search of
alternate premises after the suit for eviction was filed. As observed
in Omprakash Sethi (supra), the tenant should take steps to search
for alternate accommodation after the initiation of eviction
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proceedings. Hence, I do not find any reason to interfere with the
finding on the question of greater hardship being caused to the
respondent if the decree for eviction is not passed.
15. Thus, from the aforesaid, I do not find that both the
Courts have committed any error whatsoever in holding that the
respondent had made out a case of bonafide need for evicting the
petitioner. In the absence of any jurisdictional error whatsoever in
the adjudication by both the Courts, there is no case made out to
interfere in writ jurisdiction under Article 227 of the Constitution
of India. As a result, the decree for eviction is liable to be
confirmed.
16. In view of aforesaid, the writ petition stands dismissed.
Rule stands discharged with no order as to costs.
At this stage the learned counsel for the petitioner seeks
continuation of interim relief so as to protect his possession. This
request is opposed by learned counsel for the respondent.
In the facts of the case, the interim order is continued
for a period of six weeks from today. The petitioner shall deposit
the amount of compensation at the rate of Rs.5,500/- per month
for the period for which the interim order is continued. Said
amount be deposited within a period of four weeks from today.
The respondent would be at liberty to withdraw the amount of
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compensation already deposited alongwith accrued interest as well
as the amount of compensation that would be deposited as
directed herein above.
Order accordingly.
JUDGE
//MULEY//
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