Syed Muneer Syed Mohammed Ali vs Hasan Shaker Syed Mohammad Shafi ...
2017 Latest Caselaw 859 Bom

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 drp
         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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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