Bombay High Court
Sudhir S/O Nirmal Kumar Jain And ... vs Shrikrishna S/O Prafulla Buty on 23 February, 2023
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 2529/2021
Narendra s/o Nirmalkumar Jain & Anr. Vs. Shrikrishna s/o Prafulla Buty
WITH
WRIT PETITION NO. 2310/2021
Sudhir s/o Nirmal Kumar Jain & Anr. Vs. Shrikrishna s/o Prafulla Buty
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
WP No.2529/2021
Mr. J.M. Gandhi, Advocate for petitioners
Mr. C.S. Samudra, Advocate for Respondent
WP No.2310/2021
Mr. R.M. Bhangde, Advocate for petitioners
Mr. C.S. Samudra, Advocate for Respondent
CORAM: AVINASH G. GHAROTE, J.
DATED : 23rd FEBRUARY, 2023
Heard Mr. Bhangde, learned counsel for
the petitioners in Writ Petition No. 2310/2021.
2. The petition challenges the concurrent
findings recorded by the Courts below granting a
decree for eviction under Section 16(1)(g) of the
Maharashtra Rent Control Act in favour of the
respondent, in respect of a property admeasuring
32.32 sq.mtrs. on the ground floor with the loft of
house No.228 as described in the schedule of the
agreement of tenancy dated 31/8/2001.
3. It is contended by Mr. Bhangde, learned
counsel for the petitioners that since there was a
fixed term lease granted in favour of the petitioners
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by the agreement of tenancy dated 31/8/2001 (page
19), which was for a period of 12 years commencing
from 01/9/2001 and expiring on 31/8/2013 with an
automatic renewal clause (clause No.3 page 22), the
suit for eviction filed on 09/10/2014 (RCS
No.370/2014) was infirm and could not have been
filed as the lease stood automatically renewed for a
further period of 12 years. It is also contended that
since the lease did not contain any clause, permitting
the respondent / landlord to initiate proceedings for
eviction on account of bonafide need during its
subsistence, the suit could not have been executed.
Reliance for this proposition is placed upon
Laxmidas Bapudas Darbar and another Vs. Rudravva
(Smt) and others, (2001) 7 SCC 409, and
specifically para 18 (iii) which hold that even during
the subsistence or currency of a fixed term lease,
proceeding for eviction of a tenant could be initiated
if the lease provides forfeiture on any of the grounds
as mentioned in clauses (a) to (p) of Section 21(1)
of the Karnataka Rent Act, one of them being the
ground of bonafide need. It is then contended, that a
suit for specific performance regarding the
automatic renewal of lease bearing SCS No.
1362/2014 was already filed on 26/11/2014. It is
also submitted on merits that since the respondent /
landlord had after the institution acquired
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possession of various immovable properties, the
need did not survive and already stood satisfied. It
is therefore contended, that the impugned
judgments are liable to be quashed and set aside.
4. Mr. Gandhi, learned counsel for the
petitioners in Writ Petition No.2529/2021 adopts
the arguments of Mr. Bhangde, learned counsel and
further contends, that there was no bonafide need
with the landlord but a mere desire in view of the
averment in para 11 of the plaint, (page 68), which
stated that the plaintiff / landlord in order to earn a
new name and new recognition in the society
intends to start an "Eating House / Restaurant" for
which an area of about 1300 sq.ft. to 1500 sq.ft. was
required. He therefore contends, that since the
respondent / landlord has received possession of
multiple properties even during the pendency of the
suit, the need which is projected, is illusory and not
genuine or bonafide. The area in occupation of the
petitioners is also 32.32 sq.mtrs.
5. Mr. Samudra, learned counsel for the
respondent / landlord vehemently opposes the
submissions and contends that even if clause 3 of the
agreement of tenancy speaks about automatic
renewal on the same terms and conditions, that
would not mean that no document was required to
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be executed. Relying upon Hardesh Ores (P)
Limited Vs. Hede and Company (2007) 5 SCC 614,
paras 3, 27, 29, 30 and 31, he submits that even in a
case where there is a clause of renewal, may be even
automatic that by itself would not oblivate a
document in writing being executed. Since according
to him in the instant case, no such document was
executed, the agreement of tenancy stood expired
and the position would be covered therefore by para
18 (I) in Laxmidas Bapudas Darbar(supra) and
therefore, it was permissible for the respondent /
landlord to have instituted the suit for eviction.
6. Reliance is also placed upon Bharat
Petroleum Corporation Limited Vs. Rama Chandra
Shekhar Vaidya and another (2014) 1 SCC 657 and
Ram Bharosey Lal Gupta and others VS. Hindusthan
Petroleum Corporation Ltd. and another 2014(1)
Mh.L.J. 617. He candidly admits that during the
pendency of the suit the respondent / landlord had
received possession of various properties, however,
according to him these are joint family properties
owned along with his mother and brother and
therefore, the respondent has no exclusive right of
occupation of any specific portion as against which
the suit properties are the exclusive properties of the
respondent and therefore, the need in respect of
these properties was paramount. It is also contended
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that insofar as Writ Petition No.2310/2021 is
concerned, the father of the petitioners, who was
having an immovable property let out to a tenant
had filed a suit for eviction on account of the need of
the petitioners and however, after obtaining a decree
for eviction had instead of occupying the same had
let out the property.
7. Insofar as Writ Petition No.2529/2021 is
concerned, it is submitted that the petitioners had
already purchased the immovable property
immediately adjacent to the suit property
admeasuring 550 sq.ft. by the sale deed dated
16/02/2006, which is claimed to be in occupation of
the petitioners and therefore, the petitioners in this
case has already an alternate accommodation
available.
8. In rebuttal, Mr. Bhangde and Mr. Gandhi,
learned counsels for the petitioners points out that
Hardesh Ores (P) Limited (supra), was not a case of
automatic renewal but a case in which the tenant
had an option to renew which had not been
exercised by the tenant and therefore, was not a case
which considered automatic renewal of the lease.
Further reliance is placed on State of UP Vs. Lalji
Tandon (2004)1 SCC 1, to contend that in view of
the language of clause though the word automatic is
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used, in clause no.3 it has to be in fact construed as
an extension, which would not require execution of
any document altogether (para 13 of State of Up Vs.
Lalji Tandon). It is also submitted that the
contention regarding impermissibility of filing
eviction proceedings during the currency of a fixed
term lease, though raised has not been considered
by the Courts below. It is also contended that at the
appellate stage the application for amendment raised
to bring on record subsequent events of the
respondent / landlord having obtained possession of
various premises consequent to the filing of the suit
and the application under Order 41 Rule 27 of the
Civil Procedure Code, seeking to place on record the
situation has been incorrectly rejected by the
appellate Court, as they had a vital bearing upon the
plea of boanfide need claimed by the respondent /
landlord, which rejection has also been challenged in
this petition.
9. Since the learned counsels seek a short
accommodation for placing relevant material on
record, list the petition on 27/02/2023.
Digitally signed by:MILIND
JUDGE
P DESHPANDE
Signing Date:24.02.2023
15:12
MP Deshpande
