The Apex Court in Julieta Antonieta Tarcato vs. Suleiman Ismail, 2008 (1) S.C.C. 173, has observed another facet of bonafide need as under: "The appellant being the owner of the suit ( 8 )
premises, her need being bonafide and reasonable, it would be unfair to compel her to share the accommodation in another premises with its co-owner."
17. As given facts and circumstances of the case itself, not to grant decree for possession is incorrect, contrary to the law and the record. There is nothing on the record to suggest that the need of the landlord is not reasonable or bonafide or it is for any ulterior motive. (Motor Cycle House and Metro Cottage Industries, Pune & Anr. Vs. Kamalabai Dattatraya Kale & Ors. 2005 (3), Mh.L.J.1109), Mh.L.J.1109)
(Narayan Rajaram Alchetty vs. Balamma Baburao Shrirekam & Anr, 2005 Bom R.C.426). The landlord is best judge of his reasonable and bonafide requirements. The Petitioner/landlady cannot be deprived of beneficial enjoyment of her property. (Prativa Devi (Smt) Vs. T.V. Krishnan, (1996) 5 S.C.C. 353.
18. Having once observed as above and convinced, there will be injustice and hardship to the landlady if decree of possession on the bonafide need is not granted. The comparative hardship in the facts and ( 9 )
circumstances of the case, in my view, tilts in favour of the landlord as she required the premises for her an occupation. (Motor Cycle House and Metro Cottage Industries, Pune (Supra).
Mrs.Ranjana Jayant Aundhe vs Ashok Namdeo Inamdar on 4 December, 2008
The Petitioner-Original Plaintiff, Advocate by profession, has challenged the concurrent finding of facts, whereby, both the Courts dismissed her suit for possession under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. (for short, "the Bombay Rent Act"), on all grounds; default in paying ( 2 )
the rent; acquiring suitable accommodation by Respondent No.1; bonafide/personal requirement; illegal subletting and also her application for enhancement of the Rent.
2. The Petitioner's case is as under:-
3. On 01/09/1978, original owner Shri Thite gave one room about 15' x 10' situated on first floor of the suit premises on rental basis to Respondent No.1 on monthly rent of Rs.100/- per month.
4. Respondent No.1 at the time of accepting tenancy, paid a sum of Rs.5,000/- to original landlord Shri Thite. At the time of sale, the amount deposited with the original landlord was Rs.2,800/- and Rs.2,200/- remained with the landlord which became the liability of the Petitioner. Respondent No.1 did not make or offered any rent adjusting the amount of Rs.2,200/- upto 30/10/1982. Respondent No.1 remained in arrears from 01/11/1982 to 30/09/1984 i.e. 23 months.
5. In the year 1984, the wife of Respondent No.1 who was working in Yerwada Mental Hospital, got allottment of a quarter of 3 rooms. Respondent No.1 along with his ( 3 )
wife and children shifted to the said quarter. Therefore, Respondent No.1 was not in need of the suit premises. Respondent No.1 through his wife acquired a suitable accommodation.
6. In the month of January, 1984, the younger brother of Respondent No.1, Respondent No.2, who was initially residing at rental premises at Talegaon Dabhade left his rental premises and occupied the suit premises. Respondent No.2 is paying huge amount towards the rent to Respondent No.1. By this, Respondent No.1 has illegally sub-let the suit premises to Respondent No.2. 6A. As averred, the Petitioner is an advocate by profession and is practicing at Dahanu, District- Thane for many years. Her husband is a School Teacher. He is trained as Scriptwriter in Delhi. The husband of the Petitioner selected as a scriptwriter to the project which is going to take place at Pune. Therefore, the Petitioner and her family are in need of accommodation at Pune. Though the Petitioner's in laws are having accommodation at Pune, the said premises are insufficient to accommodate all these family members.
7. On 27/10/1984, the Petitioner sent suit notice and ( 4 )
terminated the tenancy of Respondent No.1 (Exh.19) on the following grounds.
a) Default in paying the rent.
b) Acquiring suitable accommodation by Respondent No.1
c) Bonafide personal requirement.
d) Illegally subletting.
. Respondent No.2 refused notice on 31/10/1984.
8. On 06/12/1984, Respondent No.1 gave reply to the suit notice of the Petitioner dated 27/10/1984 and also sent a draft of Rs.2,300/- along with the notice. Respondent No.1 denied the allegation made in the suit notice by the Petitioner.
9. On 31/12/1984, the Petitioner filed R.C.Suit No.2319 of 1984, in the Small Causes Court at Pune, against Respondent Nos.1 and 2 basically for the possession.
10. On 31/01/1985, the Respondent filed application for fixation of standard rent being Misc. Application No.77 of 1985. The said application filed by the Respondent after the expiry of 30 days.
11. On 12/06/1985, the Respondents filed their Written ( 5 )
Statement and denied the allegation made by the Petitioner in the plaint.
12. On 24/12/1986, the Petitioner filed her say to the Misc. Application No.77 of 1985. The Petitioner in her say stated that the Application filed by the Respondent is beyond time and therefore, the Respondents are not entitled to get protection under Section 12 (2) of the Bombay Rent Act.
13. On 15/10/1987, the learned Judge of the Trial Court without considering the documents on record pleased to dismiss the suit filed by the Petitioner. The learned Judge fixed the standard rent at Rs.60/- of the suit premises plus permitted increase of taxes. The Petitioner preferred Appeal No.1081 of 1987 against the order passed by the Trial Court and also preferred Revision Application No.83 of 1987 (against the Standard Rent Application) before the Additional Judge of Small Causes Court at Pune.
14. On 11/07/1989, the learned Additional Judge at Pune, decided both the proceedings by a common Judgment/order and decree and dismissed Appeal No.1081 of 1987 and Revision Application No.83 of 1987 filed by ( 6 )
the Petitioner.
15. In the month of December, 1989, the Petitioner filed Writ Petition No.1055 of 1990 in this Court against the impugned order dated 11/07/1989 passed by the Additional Judge at Pune.
16. Respondent No.1 was the original tenant of original-landlord of one room, about 15'x10' situated on first floor of the said house No.264 situated at Narayan Peth, Pune ( for short, the suit premises"). In the same building, the Petitioner's father-in-law and mother-in-law are occupying similar sized rented room of 15'x10'. Respondent No.2 is in occupation as Respondent No.1 subletting the suit premises without any written permission or consent. So far as bonafide requirement of Petitioner is concerned, in my view, she has made out the case. She required the room for herself and her family. She has two sons being 24 and 23 years of age. Her husband is only son of his parents. She and her family required to visit Pune frequently. The sons also required the premises for their business and occupation at Pune. The Petitioner also wants to start practice in the High Court. Pune comes in the jurisdiction of Bombay High Court. ( 7 )
Therefore, she wants to open her office in the said premises at Pune. Therefore, merely because she is at present staying and doing her profession at Dahanu, District Thane that itself cannot be the reason to hold against her that there is no bonafide need. The reasoning given by the Courts below, in my view, to discard/ reject the case of Petitioner of bonafide need is incorrect. The Apex Court of India and this High Court and various other High Courts have reiterated, time and again that the need and purpose of the landlord must be genuine. The requirement so pleaded and proved the bonafide requirement in the present case, in my view, is not mere fanciful or whimsical desire as the landlord wishes to leave or shift and to start her office at Pune, I see there is no reason not to accept the same. The fact that the mother-in-law and father-in-law resides in the same building and her two sons also required the premises just cannot be overlooked. It is difficult to compel the landlord not to have a office or premises for her and or family's occupation. The Apex Court in Julieta Antonieta Tarcato vs. Suleiman Ismail, 2008 (1) S.C.C. 173, has observed another facet of bonafide need as under: "The appellant being the owner of the suit ( 8 )
premises, her need being bonafide and reasonable, it would be unfair to compel her to share the accommodation in another premises with its co-owner."
17. As given facts and circumstances of the case itself, not to grant decree for possession is incorrect, contrary to the law and the record. There is nothing on the record to suggest that the need of the landlord is not reasonable or bonafide or it is for any ulterior motive. (Motor Cycle House and Metro Cottage Industries, Pune & Anr. Vs. Kamalabai Dattatraya Kale & Ors. 2005 (3), Mh.L.J.1109), Mh.L.J.1109)
(Narayan Rajaram Alchetty vs. Balamma Baburao Shrirekam & Anr, 2005 Bom R.C.426). The landlord is best judge of his reasonable and bonafide requirements. The Petitioner/landlady cannot be deprived of beneficial enjoyment of her property. (Prativa Devi (Smt) Vs. T.V. Krishnan, (1996) 5 S.C.C. 353.
18. Having once observed as above and convinced, there will be injustice and hardship to the landlady if decree of possession on the bonafide need is not granted. The comparative hardship in the facts and ( 9 )
circumstances of the case, in my view, tilts in favour of the landlord as she required the premises for her an occupation. (Motor Cycle House and Metro Cottage Industries, Pune (Supra).
19. With regard to the other issues of default, subletting, acquisition of suitable accommodation, the concurrent finding of the facts given by the Court below and the view so expressed and as after going through the reasoning, as well as, documents, I find that there is no perversity. The possible view so taken is correct, need no interference.
20. So far as the standard rent is concerned, the conclusion drawn by the Court below and confirmed by the Revisional Court, in the facts and circumstances of the case and as there is no perversity and the view so taken is plausible, I see there is no case to interfere with the same also.
21. Therefore, taking all this into account I am inclined to quash and set aside the orders passed by the Courts below dated 11/07/1989 and 15/10/1987 on the ground of bonafide need. The decree of possession, therefore, is granted in favour of the ( 10 )
Petitioner on the ground of bonafide need as prayed.
22. In the result, the petition is allowed with regard to the possession of premises as prayed on the ground of bonafide need only. The rest of the order is maintained.
. Rule made absolute accordingly. No order as to costs.
23. At the request of the learned counsel appearing for the respondents and in the facts and circumstances of the case, the effect and operation of this Judgment is stayed for a period of eight weeks on a condition not to create any third party right or interest in the property by the respondents.
( ANOOP V. MOHTA, J.)
No comments:
Post a Comment