Bombay High Court
Vijay Vishnupant Karekar vs Ranjeet Ratnakar Karekar on 9 April, 2021
Bench: C.V. Bhadang
1-cra-5-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.5 OF 2021
Vijay Vishnupant Karekar ..Applicant
V/s.
Ranjeet Ratnakar Karekar ..Respondent
----
Mr.P.D. Dalvi for the Applicant.
Mr.Surel Shah a/w Mr.Yogesh Morable and Mr.Shantanu S. Kalekar
for the Respondent.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 04th FEBRUARY 2021
PRONOUNCED ON : 09th APRIL 2021
P.C.
1. The challenge in this revision application, is to the
Judgment and order dated 17th October 2020, passed by the learned
Adhoc Disrict Judge at Kolhapur in RCA no 39/2015. By the
impugned Judgment, the learned District Judge while dismissing the
appeal filed by the applicant, has confirmed the Judgment and
Decree dated 6th January 2015 passed by the leaned Civil Judge
Junior Division Kolhapur, directing eviction of the applicant from the
suit premises.
N.S. Kamble page 1 of 13
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2. A ground plus two storied building standing on CTS no
46 B Kolhapur, was purchased by the respondent under sale deed
dated 23rd July 1999 from one Wankudre. The said building is
situated in an area better known as 'Gujari' which is a commercial
locality mostly having Jewellery Shops. The applicant is in
possession of the Ground and the second floor of the building as a
tenant, since prior to its purchase by the respondent. The said
tenanted portion happens to to be the subject matter of dispute
herein.
3. According to the respondent the applicant is aware of
the purchase of the building since the year 1999 and has become the
tenant of the respondent in respect of the said portion foom the date
of the purchase. However the applicant had failed to pay the
monthly rent of Rs.100/- pm and has become a defaulter within the
meaning of the Maharashtra Rent Control Act, 1999 (Act for Short).
It was also contended that the Rent of Rs.100/- p.m. is grossly
inadequate and the present market rent of similar premises in the
locality is Rs 15000/- p.m. The respondent claims that the building
is more than sixty years old and has become dilapidated and
dangerous for occupation. The municipal Corporation is insisting for
demolition of the building. The respondent is a Goldsmith and
N.S. Kamble page 2 of 13
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intends to start his own Jwellery business. The respondent cannot
use the first floor of the building for the said purpose as the building
has become dilapidated. It is also contended that the stair case
leading to the second floor (which is in possession of the applicant)
passes through the portion in possession of the respondent on the
first floor. Thus looking to the safety and security also the first floor
cannot be used to start the business of Jewellery Shop. The
respondent has no other premises for starting the business while the
applicant has alternate premises where he can shift his business. The
applicant is avoiding to vacate the tenanted premises or to pay the
rent although has assured to do so. The respondent issued a notice
to the applicant terminating the tenancy and seeking possession and
claiming arrears of rent from 1 st August 1999 to 30th June 2009. The
applicant failed to comply with the same. It is in these
circumstances that the respondent filed RCS no 887/2009 before the
Learned Civil Judge Junior Division at Kolhapur, for eviction and
possession on the aforesaid grounds and for arrears of rent etc.
4. The suit was resisted by the applicant. It was contended
that the premises are in good habitable condition. The respondent
never intimated about the purchase of the premises to the applicant.
The applicant learnt about the same in the year 2000. The applicant
N.S. Kamble page 3 of 13
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sent a notice along with Rent @ Rs 15.05ps pm which is the fair rent
which the respondent refused to accept. It was contended that the
said fair rent was fixed in case no 395/1962 between the father of
the applicant and the previous owner/landlord. Thus the respondent
cannot demand and is not entitled to Claim Rent @ 150/-pm. The
first floor of the building is enclosed and the respondent got it
vacated from the tenant one Shri.Pise. The respondent is having his
business at a near by locality on the Jotiba Road. Thus the
respondent does not need the premises as claimed. It was denied
that the building is in dilapidated condition as alleged.
5. On the basis of the rival pleadings the learned trial
Court framed as may as five issues. ( The original issues were
framed in English. However the learned trial court has translated
them as the judgment was delivered in vernacular).
6. The parties led oral and documentary evidence. The
learned trial court by a judgment and order dated Decreed the suit
on the ground of bona fide requirement. Feeling aggrieved the
applicant challenged the same before the learned District Judge in
RCA No.39 of 2015 in which the respondent raised a counter claim
to the extent of the adverse findings against Issue Nos.1,2 and 4
N.S. Kamble page 4 of 13
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pertaining to arrears of rent, termination of tenancy and recovery of
Rs.15,000/-.
7. The learned District Judge by a judgment and decree
dated 17th October 2020 has dismissed the appeal as well as the
counter claim. This is how the applicant is before this Court.
8. I have heard the learned counsel for the parties. Perused
record.
9. It is submitted by the learned counsel for the applicant
that the respondent is having his business in a nearby locality at
Jotiba Road. It is submitted that the respondent also got vacated the
first floor of the building from the tenant Mr.Pise and that potion is
in possession of the respondent. It is submitted that the first floor
which is in possession of the respondent is properly enclosed and is
under the lock and key of the respondent. It is submitted that thus
the respondent has enough space and premises for starting his
business if any. The learned counsel pointed out that the respondent
has not disclosed about the properties which are in his possession
including the ancestral property. It is submitted that the
respondents have not come with clean hands and claim of the
N.S. Kamble page 5 of 13
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respondent lacks bona fides. For the said purpose reliance is placed
on the decision of this Court in Vasant Mahadeo Gujar V/s. Baitulla
Ismail Shaikh & Anr.1, in order to submit that, where the claim of the
landlord, lacks reasonability and bona fides, he is not entitle to any
relief. Particular reliance is placed on the observations in paragraph
54 of the judgment in Vasant Mahadeo Gujar (Supra). It is
submitted that, the applicant is not having any other premises and
thus even on the considerations of comparative hardship it is the
applicant who would suffer more hardship if the eviction is ordered
as prayed.
10. The learned counsel has taken me through the evidence
and the order passed by the Courts below, in order to submit that
the Courts below have not properly appreciated the claim of the
respondent for eviction on the ground of personal occupation, in the
context of the evidence on record.
11. Mr.Shah, the learned counsel for the respondent has
supported the impugned judgment. It is submitted that the
applicant has failed to produce any evidence, to show that the
respondent was running his business at Jotiba Road as alleged. It is
1 2016(4) ALL MR 174
N.S. Kamble page 6 of 13
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submitted that other premises are ancestral in nature. It is
submitted that the premises on the first floor are neither sufficient
nor suitable for the purpose of business as a jwellery shop. It is
submitted that the Courts below after properly appreciating the oral
and documentary evidence on record have granted a decree for
eviction, on the ground of reasonable and bonafide occupation and
that finding of fact properly recorded, does not call for interference,
in the revisional jurisdiction. The learned counsel pointed out that
the bona fide requirement of the landlord has to be considered in a
reasonable manner on the genuineness of the requirement, which is
not on par with a "dire need" as held by this Court in Madhukar
Punjaram Sonawane and Anr V/s. Gajanan Vithal Khandekar 2.
Further reliance is placed on the decision in the case of Sidharam
Ganpati Mulage & Ors. V/s. Bashir Elahibksh Tamboli & Ors. 3, in
order to submit that the applicant has failed to plead and prove that
inspite of his best efforts it was not possible for him to get other
premises in the same locality. It is submitted that in such
circumstances, this Court, in the case of Sidharam Ganpati Mulage
& Ors (Supra) has refused to interfere with the finding of fact
recorded by the Courts below. He therefore submitted that the
application be dismissed.
2 2009(2) Mh.L.J. 694
3 2009(3) Mh.L.J. 907
N.S. Kamble page 7 of 13
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12. I have considered the circumstances and the
submissions made. The eviction was sought on three grounds
namely arrears of rent, bona fide personal occupation and building
being in a dilapidated and inhabitable condition. Both the Courts
below have refused to uphold the ground of arrears of rent. Insofar
as the ground based on the building being in a dilapidated condition
is concerned, paragraph 15 of the judgment of the Appellate Court
would show that the said ground was not pressed, as it was
submitted that evidence on record in that regard "be ignored". Thus
the only ground which survives for consideration and on the basis of
which the decree of eviction is granted is that the premises are
reasonably and bona fide required by the landlord for occupation by
himself, within the meaning of Section 16(1)(g) of the Rent Act. It
is an admitted position that the applicant is occupying the ground
floor and the second floor of the building, while the first floor which
was got vacated from tenant Mr.Pise, is in possession of the
respondent. The applicant came with a case that the respondent
was doing business on Jotiba Road. However the Appellate Court
has found that the said property on the Jotiba Road has been
purchased by the father of the respondent in the name of the
brother of the respondent. The Appellate Court has found that the
applicant had admitted that he has not produced any document to
N.S. Kamble page 8 of 13
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show that the respondent was doing business at Jotiba Road. In that
view of the matter the contention that the respondent is having
alternate premises, where he was carrying on business, has not been
accepted.
13. It is necessary to note that during the pendency of the
appeal, the applicant filed application Exhibit-22 for amendment of
of the written statement by introduction of Para 12A to bring on
record the ancestral properties of the respondent and his brothers.
In support of the said contention the applicant filed three
applications Exhibit-23,38 and 43 under Order XLI Rule 27 of the
C.P.C. for production of additional evidence at the Appellate stage.
The record discloses that the amendment application (Exh.22) was
allowed on 15th January 2018 and the three applications for
additional evidence were allowed on 16 th July 2018. Both these
orders were challenged before this Court in Writ Petition No.8543 of
2018. The said Petition was decided on 1 st October 2018, by which
the order below application Exhibit-22 for amendment was modified
and consequently the order dated 16th July 2018 below application
Exhibit-23 under Order XLI Rule 27 of the C.P.C. was set aside. This
was to be extent of the pleadings and the documents sought to be
N.S. Kamble page 9 of 13
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introduced/produced showing the purchase of the properties by the
parents of the respondent and his Money Lending business.
14. It is true that the learned District Judge in paragraph 26
of the judgment has observed that by implication even the order
below application Exhibit 38 and 43 is also to be considered to be
set aside which may not be strictly correct. This is because the
judgment and order dated 01 st October 2018 would show that it
only pertains to the modification of the order below Exhibit-22 and
setting aside of the order below Exhibit-23. However, this
observation by the learned District Judge may not have bearing on
the ultimate outcome of the appeal, inasmuch as on facts the
learned District Judge has found that none of the documents sought
to be produced vide Exhibit-38 and 43, stand in the name of the
respondent. It is not shown that any of such documents which were
sought to be produced were indeed in respect of the properties
standing exclusively in the name of the respondent.
15. It is now well settled that the bona fide and reasonable
requirement of the landlord is not to be equated with a 'dire need' as
held by this Court in Madhukar Sonawane (Supra). It is also well
settled that the landlord is the best judge of his requirement and in
N.S. Kamble page 10 of 13
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the absence of his claim being found to be fanciful or unreasonable,
it is not for the Court to assess the nature of the need.
16. Even sofar as the reliance placed on the decision of this
Court in Vasant Gujar is concerned the said case clearly turned on its
own facts. Whether the claim of the landlord is bona fide or not or
whether the landlord has disclosed the properties which are
available to be occupied would depend upon the facts and
circumstances of the each case.
17. In the case of Vasant Gujar on facts it was found that
the respondent landlord had not at all been candid with the Court,
insofar as the pleadings are concerned. The Court found that during
the course of the evidence, it had come on record that the
respondent-landlord besides the suit premises, had several other
premises, which were being used by him for the purposes of
commerce as well as residence. Although this Court has found that
some of such premises, may have been acquired post the institution
of the suit, nevertheless, there was no disclosures volunteered in the
course of the examination-in-chief. It was specifically found that
even if, the premises subsequently acquired are left out of
consideration, there was a duty cast upon the landlord to fully and
N.S. Kamble page 11 of 13
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candidly make disclosure about the premises in his occupation, both
for the purposes of the residence as well as commerce and thereafter
to explain about the subsistence of the need in respect of the suit
premises. The Court found that the landlord had completely failed
in this aspect.
18. Coming to the present case the applicant has failed to
show that respondent was having any premises where he could carry
out his business. It is necessary to note that it is not in dispute that
the respondent is also a goldsmith by profession.
19. Coming to the issue of comparative hardship this Court
in the case of Sidharam Ganpati Mulage has held that the tenant
must plead and prove that inspite of his best efforts it was not
possible to get any other premises in the same locality. The perusal
of the evidence on record would show that the applicant has failed
to show that inspite of efforts, he was unable to find any suitable
alternate premises in the same locality. Thus the issue of
comparative hardship has rightly been answered against the
applicant.
N.S. Kamble page 12 of 13
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20. I have carefully gone through the impugned judgment
of the Courts below and I do not find that they suffer from any
infirmity so as to require interference in the revisional jurisdiction of
this Court. The revision application is without any merit, and is
accordingly dismissed with no order as to costs.
C.V. BHADANG, J.
N.S. Kamble page 13 of 13
