Bombay High Court
Harish S/O Gangaram Agrawal And ... vs Satishkumar S/O Sureshchandra ... on 25 April, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3530 OF 2021
Harish s/o Gangaram Agrawal & Ors. Vs. Satishkumar s/o Sureshchandra Awasthi
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. A.A. Naik with Mr. Madhur Deo, Advocates for the Petitioners.
Mr. R.M. Sharma, Advocate for the Respondent.
CORAM : MANISH PITALE, J.
DATED : 25th APRIL, 2022.
By this writ petition, the petitioners i.e. the tenants
have challenged orders passed by the two Courts below,
whereby a decree of eviction has been granted against the
petitioners and in favour of the respondent i.e. the landlord.
02] It was the case of the respondent i.e. the original
plaintiff that plot, bearing No.176 situated in Ward No.23,
Bagadganj, Nagpur, admeasruing 13241 square feet belonging
to the respondent, was given on rent to the original defendant
No.1. The respondent filed a suit for eviction on three grounds
under the provisions of the Maharashtra Rent Control Act,
1999 (hereinafter referred to as the "said Act"). On the ground
under Section 16(1)(e) pertaining to unlawful subletting, on
the ground under Section 16(1)(g) pertaining to bonafide
need and under Section 16(1)(n) pertaining to the premises
not having been used for the purpose for which they were let
out. The defendants-petitioners before this Court resisted the
aforesaid suit, claiming that none of the three grounds were
made out.
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03] By judgment and order dated 11.01.2017, the
Court of 2nd Additional Judge, Small Causes Court, Nagpur
decreed the suit against the petitioners, only on the ground of
bonafide need, as it was found that the ground under Section
16(1)(g) of the said Act was made out and that the grounds
under Section 16(1)(e) and (n) were not made out by the
respondent.
04] Aggrieved by the said judgment and decree passed
by the Small Causes Court, Nagpur, the petitioners filed an
appeal before the District Court at Nagpur. The respondent
filed cross-objection, contending that the findings rendered
against him on the grounds of Section 16(1)(e) and (n) of the
said Act were unsustainable and the decree of eviction ought
to have been granted on the said grounds also.
05] By judgment and order dated 16.07.2021, the
District Court dismissed the appeal filed by the petitioners and
allowed the cross-objection, holding that the grounds under
Section 16(1)(e) and (n) of the said Act were also made out,
thereby confirming the decree of eviction.
06] The present petition is filed under Article 227 of the
Constitution of India before this Court, challenging the
aforesaid orders passed by the two Courts below. The
respondent appeared and filed reply opposing the present
petition.
07] Since the present petition is filed under Article 227
of the Constitution of India invoking superintending
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jurisdiction of this Court, as per settled law, scope for
interference with the findings rendered by the two Courts
below on facts is limited and this Court is proceeding to
examine the contentions of the rival parties in the backdrop of
such limited jurisdiction available to this Court while
considering the present petition.
08] Mr. A.A. Naik along with Mr. Madhur Deo, learned
counsel appearing for the petitioners vehemently submitted
that the respondent failed on all the three grounds for eviction.
It was submitted that while the findings of the two Courts
below rendered concurrently on the question of bonafide need
were erroneous, on the ground of illegal subletting and the
non-usage of the premises for the purpose for which they were
let out, the appellate Court erred in reversing the findings
rendered by the Small Causes Court.
09] It was contended that before this Court, an
application under Order XLI Rule 27 of the CPC was moved in
order to place on record material to indicate that false
statement was made in the plaint. It was submitted that if the
said contention of the petitioners was to be accepted, since the
respondent had approached the Court with unclean hands, the
suit for eviction ought to have been thrown out only on that
ground.
10] It was further submitted that on the question of
bonafide need, the two Courts below concurrently committed a
grave error in holding in favour of the respondent, for the
reason that the plot in question is located in a small factory
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area, the user of which is limited to workshop and industry. It
was submitted that the bonafide need projected on behalf of
the respondent was that he intended to start transport business
in the said plot. It was submitted that since the said business
had no concern with manufacture or of any activity akin to
workshop in a factory area, the said ground was untenable. It
was submitted that since the business for which the bonafide
need was projected on behalf of the respondent could never be
undertaken in the plot in question, the plea of bonafide need
of the respondent could never have been accepted. It was
further submitted that the respondent was admittedly a
resident of Jabalpur and he had no concern with the city of
Nagpur, further indicating that an artificial need was projected
as bonafide need on the part of the respondent, which was not
appreciated in the correct perspective by the two Courts below.
11] On the question of illegal subletting, it was
submitted that the allegation appeared to be that while the
suit plot was given on rent to the original defendant No.1, it
was illegally sublet to the original defendant No.2. It was
highlighted that the original defendant No.2 was a Company
formed by the original defendant No.1 himself and that,
therefore, this ought to have been taken into consideration by
the District Court while reversing the finding on the question
of subletting. It was further submitted that a patently false
statement was made in the plaint filed on behalf of the
respondent, wherein it was stated that the respondent had
recently come to know that the suit plot had been sublet to the
original defendant No.2, because it was well within the
knowledge of the respondent that since beginning after
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incorporation of the original defendant No.2-Company, the
rent was being paid by the said Company and that, therefore,
there was no substance in the ground concerning illegal
subletting.
12] On the question of ground for eviction under
Section 16(1)(n) of the said Act pertaining to the premises not
having been used for the purpose for which they were let out,
it was submitted that the suit plot was being used openly and
well within the knowledge of the respondent for the original
defendant No.2, for the purpose of manufacturing and since
the rent was also being accepted from the original defendant
No.2, it could not be said that ground under section 16(1)(n)
of the said Act was made out. On this basis, it was submitted
that the impugned orders deserved interference.
13] On the other hand, Mr. R.M. Sharma, learned
counsel appearing for the respondent submitted that the
District Court was justified, not only in confirming the finding
on the question of bonafide need, but also the findings
rendered on the other two grounds for eviction as they were
supported by the oral and documentary evidence on record. It
was submitted that the allegation that the respondent had
made a false statement in the plaint, was not borne out from
the record. Insofar as bonafide need was concerned, it was
submitted that the suit plot admittedly could be used for
industry and the projected need of the respondent was for
carrying out transport business, which could certainly qualify
as industry, even going by the general definition of "industry"
given in the Industrial Disputes Act, 1947. Even otherwise, it
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was submitted that the respondent would be entitled to
approach the concerned authorities to undertake the business
of transport as projected in the suit for eviction and that
nothing was brought on record that the business of transport,
as intended to be started on behalf of the respondent in the
suit plot, was prohibited in any manner.
14] On the question of illegal subletting, it was
submitted that the very case of the original defendants was
that the defendant No.2-Company was the tenant on the basis
of material available on record. Yet, crucial admissions were
given by the witnesses/petitioners, which demonstrated that,
in fact, the suit plot was given on rent to the original
defendant No.1, thereby proving the aspect of illegal
subletting. On the question of ground made out under Section
16(1)(n) of the said Act, again the learned counsel appearing
for the respondent invited attention of this Court to the
admissions given by the witnesses for the petitioners to the
effect that suit property was given on rent for the purpose of
godown and admittedly the same was being used for the
purpose of manufacture and that too by the defendant No.2, to
which the suit plot had been illegally sublet. Therefore, it was
submitted that the writ petition deserved to be dismissed.
15] Heard learned counsel for the rival parties and
perused the material on record.
16] Since the two Courts below have concurrently given
findings against the petitioners on the question of bonafide
need, the said ground is being taken up for consideration first.
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The contentions of the rival parties show that it was the case of
the respondent that he desired to start transport business in
the suit plot, for which the plot was ideally suited and that
since the business required 13500 square feet of land and the
suit plot was admittedly admeasured about 13000 to 14000
square feet, it was ideally suited for the projected need on
behalf of the respondent. The major objection raised on behalf
of the petitioners was that such business of transport could not
be carried out from the suit plot, for the reason that it
happened to be located in a small factory area and that it
could be used only for the purpose of manufacturing activity or
workshop.
17] Even though, such contention was raised on behalf
of the petitioners to the effect that the transport business could
not be undertaken on the suit plot, no material was brought on
record demonstrating any prohibition in carrying out such
business in the suit plot. The contention raised on behalf of the
respondent is justified that transport as a business activity
could certainly be covered under the general definition of
"industry". In any case, the respondent was justified in
contending that the two Courts below had correctly found that
in the absence of any such prohibition, it could not be said that
the ground for bonafide need stood repudiated, only because
the suit plot happened to be located in an area where industry
could be set up. This Court is of the opinion that the
petitioners failed in leading evidence in support of their
contention on the said aspect of the matter.
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18] Insofar as the other aspects of the bonafide need
are concerned, the material on record was sufficient to indicate
that the location of the plot in question, the intention of the
respondent to initiate such business and the fact that Nagpur
city being centrally located in the country, is ideally suited for
transport business, could not be denied by the petitioners. It is
settled law that insofar as the bonafide need is concerned, the
landlord is the best judge of his need and he is entitled to take
possession of his premises for bonafide need as demonstrated
by leading cogent evidence. This Court is of the opinion that
the respondent succeeded in projecting the case of bonafide
need and that the two Courts below were justified in holding
in favour of the respondent in that regard.
19] Insofar as the question of illegal subletting is
concerned, the District Court has minutely analysed the oral
and documentary evidence on record. It is found, as a matter
of fact, that the witnesses on behalf of the petitioner admitted
in their cross-examination that the suit plot was given on rent
to the original defendant No.1 in the year 1971. It was also
found, as a fact, that the original defendant No.2-Company
was incorporated in the year 1973. The defence raised on
behalf of the original defendants that it was the defendant
No.2-Company, which was the tenant, was falsified by the
material on record. Once this conclusion was raised, it became
clear that when the tenant was the original defendant
No.1, the possession having been handed over to the
defendant No.2-Company was clearly a case of illegal
subletting, for the reason that no material was placed on
record to show that prior permission of the respondent was
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ever obtained. In view of the admissions of the witnesses of the
original defendants, appreciated by the District Court in the
correct perspective, this Court is of the opinion that no
interference is warranted in the said finding.
20] As regards the ground under Section 16(1)(n) of
the said Act is concerned, the District Court analysed the
evidence on record and found that the defendant No.1
admitted in his cross-examination that the suit property was
let out for the purpose of godown. The material on record
undisputedly demonstrates that the purpose for which it was
used, was manufacturing and that too by the original
defendant No.2-Company. This was sufficient to support the
finding against the petitioners on the ground of Section 16(1)
(n) of the said Act.
21] Insofar as the alleged false statement made on
behalf of the respondent in the plaint is concerned, this Court
is of the opinion that it is a case of much ado about nothing,
because the pleadings have to be appreciated in the light of the
contentions sought to be raised on behalf of the plaintiff in the
context of the suit seeking eviction of the original defendants.
The response of the original defendants before the Small
Causes Court belies the contention regarding falsehood. The
case of the original defendants was that it was the defendant
No.2-Company that was the tenant in the premises and the
aspect of subletting was appreciated by the Court, in that
backdrop, on the basis of crucial admissions given by the
witnesses of the original defendants. This Court is of the
opinion that the petitioners are trying to place the case of
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falsehood on a high pedestal, which is not made out from the
material available on record.
22] Insofar as the judgments relied upon by the rival
parties are concerned, this Court is of the opinion that the
appreciation of the oral and documentary evidence on record
on the part of District Court is found to be reasonable and
correct, not only on the question of bonafide need, but also on
the other two grounds of eviction. No case of perversity is
made out by the petitioners for this Court to exercise
jurisdiction to interfere with the impugned orders. In that
light, it is found that the reliance placed by the learned counsel
for the petitioners on the judgment of the Hon'ble Supreme
Court in the case of A.S. Sulochana Vs. C. Dharmalingam
reported in (1987) 1 SCC 180, would not take the case of the
petitioners any further. In that case, on facts, it was found that
the case of subletting, as per the pleadings, was that it had
taken place about 18 years before filing of the suit for eviction.
Since this Court is not with the petitioners on the allegation of
falsehood or false statement made in the plaint, thereby
showing that subletting was not pleaded to be years ago, there
is no question of the judgment of the Hon'ble Supreme Court
in the case of A.S. Sulochana (supra) applying to the facts of
the present case.
23] On the other hand, reliance placed by the learned
counsel for the respondent on the judgment of this Court in
the case of K.B. Lahoti and Company and others Vs. Champalal
Vithuram Jajoo (deceased) by his L.Rs. Chandrakant
Champalal Jajoo and others reported in 2020(5) Mh.L.J. 196
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appears to be justified. On the question of prohibition on
change of user, this Court emphatically held that the said
aspect ought not to vitiate a decree where a case for bonafide
need is made out by the landlord. In any case, in the facts of
the present case, it is found that no effort was made on the
part of the petitioners to lead evidence to support the said
contention that there was prohibition in law for transport
business to be undertaken in the suit plot.
24] In view of the above, it is found that there is no
merit in the present petition. Accordingly, the writ petition is
dismissed.
25] In view of the dismissal of the writ petition,
pending applications also stand disposed of.
JUDGE
Vijay
Signed By:VIJAY KUMAR
Personal Assistant
Signing Date:27.04.2022 18:12
