Bombay High Court
Nemichand Punamchand Sancheti ... vs Savitribai W/O Bhairulal Varma ... on 16 December, 2021
Bench: Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 5321/2021
Nemichand Punamchand Sancheti and ors...Versus... Smt. Savitribai
Bhairulal Varma thr L.Rs and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. S.R.Deshpande, Advocate for petitioner
CORAM : AVINASH G. GHAROTE, J.
DATE : 16/12/2021
Heard Mr. Deshpande, learned counsel for the
petitioner, who raises three grounds, (1) that the suit as
filed by the respondent/landlord before the learned Trial
Court for eviction on the ground of bonafide need under
clause 16(1)(g) of the Maharashtra Rent Control Act was
hit by the principle of res judicata as contained in Section
11 of C.P.C., on account of earlier proceedings instituted
under the C.P and Berar Letting of Houses and Rent
Control Order, 1949 on the ground under clause 13(3)(vi)
being dismissed, which dismissal was confirmed by this
Court in WP No. 2629/1989, by judgment dated
25.4.1995. The second ground is that the findings
regarding bonafide need do not take into consideration the
factum of sale of properties by the plaintiff/landlord, both
before and after the institution of the suit. The third
ground, is regarding comparative hardship, which, in the
submission of the learned counsel for the petitioner, has
not been properly answered.
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In so far as the plea regarding res judicata is
concerned, I do not find any merits in the same for the
reason that the proceedings under the C.P and Berar
Letting of Houses and Rent Control Order were instituted
by Bhairulal Balmukund Varma, the father of the
respondent during his life time on 27.1.1986. The father
of the respondent is no more and the present suit has been
filed by the respondent for his need as well as that of his
son. It is therefore evident that the question of any
applicability of the principle of res judicata would not arise
in the present matter, as the need of the father of the
respondent and his son are two distinct and separate
needs altogether and therefore, it was always permissible
for the respondent to have instituted proceedings for
eviction of the petitioner on account of his own need as
well as that of his son.
In so far as the second ground is concerned,
the respondent/landlord in the suit had specifically
pleaded the need for expansion of his existing business as
well as the need for his son to start a business of
hardware, which, considering the fact that the premises
occupied by the defts/petitioners are immediately adjacent
to the shop being occupied by the landlord from where his
existing business is being run, cannot be said to be
unreasonable or unjustified. The plea that the plaintiff has
sold certain properties before and after the institution of
the suit has been considered by the Courts below by
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rendering a finding that the sale of the shop was in the
year 2004, whereas the suit for eviction was instituted on
29.9.2008, much later than the sale took place. In so far as
the sale after the institution of the suit is concerned, the
Courts have found that the same was in respect of
agricultural land and therefore, did not deter from the
need pleaded by the landlord.
In so far as the third ground of comparative
hardship is concerned, the Court has rendered a finding
that the defendant/petitioner was having an alternate
place for his business in the ancestral family premises
situated at Naswala Chouk, Malkapur, which was
available.
Considering the above position, I do not see
any reason to interfere in the well reasoned judgments of
the Courts below, which considered the issue of the need
by the landlord of the adjacent premises on account of
expansion of the existing business and the commencement
of the business of the son. The petition therefore in my
opinion is without any merits and is dismissed.
At this juncture the learned counsel for the
petitioner seeks stay to the judgment passed by the
learned Trial Court for a period of six months so as to
enable the petitioner to approach the Hon Apex Court.
However considering that the proceedings have been
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going on since 2008 and has ultimately culminated in
favour of the landlord after passage of 13 long years, I do
not see any reason to stay the judgment of the Trial Court.
The request is declined.
JUDGE
rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:16.12.2021 17:48
