Shri Deju Khuddu Mullyya vs Shri Pharin Farid Ali Patel And Ors
2021 Latest Caselaw 17730 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO. 4594 OF 2021

Deju Khuddu Mullyya                                   ]
Age : 66 years, Occu : Business,                      ]
R/o. Row House No.3, Behind Gangotri                  ]
Bunglow, Banpurkar Colony, Super Market,              ]
Karad, Dist. Satara.                                  ]        ... Petitioner.

          V/s.

1. Pharin Farid Ali Patel                             ]
   Age : 54 Years, Occu : Household,                  ]

2. Alim Farid Ali Patel,                              ]
   Age : 28 Years, Occu : Education,                  ]

3. Hamid Farid Ali Patel                              ]
   Age : 33 Years, Occu : Business,                   ]

   All R/o. 101, Budhwar Peth, Karad,                 ]
   Tal. Karad, Dist. Satara.                          ]        ... Respondents.


Mr. Pratap Patil, Advocate for Petitioner.
Mr. Vishal Kanade a/w Mr. Harsh Trivedi, Advocate for Respondent Nos.1 to 3.


                                      CORAM : A. S. GADKARI, J.
                                 RESERVED ON : 2th DECEMBER 2021.
                              PRONOUNCED ON : 21st DECEMBER, 2021.

JUDGMENT :

1. Petitioner/original Defendant/Tenant has invoked jurisdiction of

this Court under Article 227 of the Constitution of India, questioning the

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legality, validity and propriety of the impugned Judgment and Order dated

29th January 2020 passed by the learned District Judge-1, Karad in Regular

Civil Appeal No.62 of 2018, dismissing the Appeal preferred by the Petitioner

and confirming the Judgment and Decree dated 26 th March 2018 passed by

the learned 5th Joint Civil Judge, Junior Division, Karad at Karad, District

Satara in Regular Civil Suit No. 199 of 2013.

By the said Judgment and Decree dated 26 th March 2018, the

Trial Court has allowed and decreed the suit filed by the Respondents and has

directed the Petitioner to handover vacant possession of the suit property to

the Respondents within the stipulated period as mentioned therein.

2. Heard Mr. Pratap Patil, learned counsel for the Petitioner and Mr.

Vishal Kanade, learned counsel for the Respondents. Perused entire record.

3. Respondents are successors of deceased Farid Ali Patel.

Respondent No.1 is the wife and Respondent Nos. 2 and 3 are the sons of the

deceased Farid Ali Patel. Deceased Farid Ali Patel had let out suit premises,

i.e. shop No.3 on final plot No.38 in basement/ground floor at Shaniwar Peth,

Karad, more specifically mentioned in para No.1 of the plaint in R.C.S. No.199

of 2013, to the Petitioner by executing an Agreement of Lease dated 12 th April

1989 (Exh.55), on monthly rent of Rs.1600/- for a period five years only. As

per the said agreement, use of suit premises was restricted to the purpose of

hotel business only. Petitioner was not permitted to sublet the suit premises or

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carry on any other business than it was let out. In the year 2010, Petitioner

changed use of suit premises and started lottery business in it without prior

consent of the Respondents. Petitioner also sublet suit premises to Mr. Kiran V.

Patil on rent of Rs.3,000/- per month and had also accepted deposit of

Rs.20,000/- from him.

Respondents required suit premises for running their own

business. The Respondent No.3 had completed his course of Travel

Management and the Respondent No.2 had completed his education as B.E.

(Computer). Respondents were willing to carry out their independent business

and therefore also they required suit premises. Respondents therefore issued

notice (Exh.63) for termination of lease w.e.f. 31 st March 2013. Petitioner

replied (Exh.64) the said notice and denied its contents and did not handover

vacant and peaceful possession of the suit property to the Respondents.

4. In this brief premise, Respondents filed R.C.S. No.199 of 2013 on

the grounds of breach of the rent agreement dated 12 th April 1989, change of

user, subletting & bonafide requirement as contemplated under Section 16(1)

(a), (e)(iii) & (g) respectively of the Maharashtra Rent Control Act, 1999 (for

short, 'Rent Act').

5. After receipt of suit summons, Petitioner appeared and filed his

Written Statement at Exh.12 and denied the suit claim in its totality. He

contended that, late Farid Ali Patel had agreed to continue with the suit

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premises even after the period of five years and therefore after his demise also

the Respondents continued to accept rent from him till July 2011, either by

cheque or cash. Petitioner further contended that, Respondent No.2 owns a

shop bearing No.4 at 'Shivsrushti Sankul' situated at Shaniwar Peth, Karad

and is carrying out a business therefrom in the name of 'Mobile Zone'. That,

the business of Respondent No.2 is well settled and therefore there is no

bonafide need of suit premises to Respondents. That, Respondent No.3 is a

student and therefore also the Respondents are not in bonafide need of suit

premises. Petitioner on the contrary contended that, he does not have any

other place to carry out his business and he is in need of the suit premises. It

is further contended by the Petitioner that, he continued with the hotel

business till 2010, however due to some difficulties he closed it and since 19 th

March 2010, he started Online Lottery Center under the name of 'New Sanika

Lottery Centre' in partnership with Mr. Kiran V. Patil, who was holding a valid

licence for the said business. Petitioner further admitted that, he had

instituted the suit bearing R.C.S. No.393 of 2012 against the Respondents for

perpetual injunction, which is pending before the Competent Court at Karad.

Petitioner therefore prayed that, the suit instituted by the Respondents be

dismissed.

6. Considering the pleadings of rival parties, Trial Court framed

issues and additional issues below Exh.13. Respondents examined Respondent

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No.3 (Exh.18) on behalf of Respondents. The Respondents produced on

record Agreement of Lease (Exh.55); Notice of termination of lease (Exh.63);

Reply to the notice of Petitioner (Exh.64); Certified copy of deposition of

Mr.Kiran V. Patil (Exh.48) and Petitioner (Exh.46) in R.C.S. No.393 of 2012.

Petitioner examined himself (Exh.54) in support of his case. Trial Court after

recording evidence and hearing the learned Advocates for the respective

parties, decreed the said suit in favour of the Respondents, by its Judgment

and order dated 26th March 2018. Petitioner is unsuccessful before the first

Appellate Court in Regular Civil Appeal No.62 of 2018.

7. Perusal of record indicates that, in his cross-examination,

petitioner has admitted that, in the R.C.S. No.393 of 2012 instituted by him,

his statement was recorded. That, the statement of Mr.Kiran V. Patil was also

recorded in the said suit. He has admitted that, since the year 2010 he did

not renew the licence of hotel. That, he has started running lottery business

in the suit premises without permission of the Respondents. Though the

licence to run lottery center is in the name of Mr.Kiran Patil, there is no

agreement between him and Mr.Kiran Patil for the same.

8. In view of the aforestated clear admissions given by the Petitioner,

it is crystal clear that, he had changed the user of suit premises from running

the hotel business into conducting a lottery center. It is undoubtedly against

the agreed terms of Lease Deed/Agreement dated 12 th April 1989. The

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contention of Petitioner that, he was running the said lottery center in

partnership with Mr.Kiran Patil, can not be accepted because the Petitioner did

not produce on record any documentary evidence to support the same. In his

deposition recorded in R.C.S. No.393 of 2012, the Petitioner has conceded

that, he earns Rs.3,000/- per month from Mr.Kiran Patil as a rent. That, he

had received Rs.20,000/- towards deposit from Mr.Kiran Patil. The Petitioner

has conceded to the fact of this transaction of subletting the suit premises to

Mr.Kiran Patil under the guise of partnership with him without there being

any cogent proof in that behalf. Petitioner is profiteering from the suit

premises and is not using it for the purpose for which it was let to him.

As noted earlier, the Petitioner has admitted in his cross-

examination that, he permitted Mr.Kiran Patil to use the said suit premises by

accepting monetary consideration from him and without prior permission

from the Respondents. This fact clearly establishes that, the Petitioner has

sublet the suit premises to Mr. Kiran Patil.

9. The claim of Respondents for bonafide requirements of the suit

property has practically gone unchallenged. The factum of comparative

hardship would certainly weigh in favour of the Respondents. As noted earlier,

the Petitioner has committed a clear breach of Lease Deed dated 12 th April

1989, thereby changing the user of suit premises and has sublet it to Mr. Kiran

Patil.

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10. It is the settled position of law that, landlord is the best judge of

his bonafide requirements of the premises given on rent to the tenant.

Respondents have thus proved beyond doubt that, Petitioner has committed

breach of agreement of lease by changing the user of suit premises without

there prior consent. It is further proved that, the Petitioner has unlawfully

sublet the suit premises without their consent to third person namely Mr.Kiran

Patil. The need of bonafide requirement of the Respondents of the suit

premises has been duly established by them and therefore the Respondents

are entitled to recover possession of the suit premises from the Petitioner.

11. There are concurrent findings recorded by both the Courts below.

Perusal of impugned Judgments and Orders clearly reveal that, both the

Courts below have not committed any error either in law or on facts while

passing the impugned Judgments and Orders. There are no merits in the

Petition.

Petition is accordingly dismissed.

[A.S. GADKARI, J.]