Prasad v. Niranjan) the Apex Court has laid down that
normally rent legislations are meant for the benefit of the
tenant but the rent statutes contain exception in favour of
the landlord, which give him a right to evict the tenant. It
is observed that if some grounds are given in statute then
landlord can get decree of eviction if such grounds exist.
It is observed that such grounds need to be extended for
including requirement of members of family of the
landlord. Thus when landlord dies, his widow and issue
can prosecute the proceeding for eviction and the Court
cannot presume that bona fide need lapsed due to death
of landlord.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.46 of 2014
Nana Kisanrao Thokade Vs Prabhakar Ambadas Gosavi.
CORAM: T.V. NALAWADE, J.
DATE : 11th MARCH 2014
Citation;2016(1) ALLMR265
1) This proceeding is filed against the judgment
and decree of Rent Suit No.8 of 2007 and Rent Appeal No.
2 of 2012. The suit filed by the respondent, landlord, for
eviction is decided in his favour by the trial court and that
decision is confirmed by the District Court. Both sides are
heard.
2) The suit was filed in respect of portion
admeasuring 16 ft x 7 ft. and 6 ft x 5 ft. from the house
property bearing No.4-4-13 situated at Mohalla
Kumbharwada, Aurangabad. It is the case of the plaintiff
that he is owner of the southern side portion of the house
having size of 20 x 20 ft and he got this portion in family
partition with his sons. The plaintiff has given hand
sketch map of the portion belonging to him. He has also
shown the portion which is in possession of the defendant.
3) It is the case of the plaintiff that the suit
property was given to the present appellants/defendant on
monthly rent of Rs.131/- for running Tradle Printing Press.
It is contended that in view of development in the
technology of printing, the defendant is not getting
business and he is virtually not using the premises as
Printing Press. It is contended that the defendant has
given the suit premises on sub let basis to third party. It is
the case of the plaintiff that the defendant owns house
having 360 square meters size situated at Fakirwadi and it
is three storeyed building. It is contended that on the
ground floor of this building there are two shop premises
where the defendant can shift his printing press.
4) It is the case of the plaintiff that he and his wife
have become old and they have no source of income for
livelihood. It is his case that his son had died prior to the
date of suit and he is required to maintain his wife and
families of two deceased sons. It is contended that the
plaintiff intends to start some business in the suit
premises for earning livelihood. It is his case that as the
suit premises is situated in commercial area it is suitable
for doing business of ready made garments for ladies. It is
contended that he had asked the defendant to vacate the
premises but the defendant has refused to do so. It is
contended that in view of aforesaid circumstances no
hardship will be caused to the defendant if decree of
eviction is given against him, but hardship will be caused
to the plaintiff if possession is not given to him.
5) The defendant has contended that the plaintiff
has come with false case of partition for getting decree of
eviction. It is contended that entire property CTS No.4354
belongs to the plaintiff. It is contended that area of house
is around 157.8 square meters. It is contended that the
house property of the plaintiff has frontage from two sides
like North and south. It is contended that, the shutters of
the shops are on northern side and there he can start
business. It is contended that the other shops are given
on rent basis to other tenants by the plaintiff.
6) It is the case of the defendant that since the
year 1971-72 he has been in possession of the suit
premises and he is doing business of printing. He has
contended that he is in possession of more area than the
area shown by the plaintiff and it is around 200 square
feet. It is denied that the technology which he is using for
printing press has become outdated and he is not getting
any business. It is his case that he prints cinema tickets,
marriage invitation cards etc. by using this machinery. It
is his case that he is required to maintain 15 to 16
members of his family and they are living on the income of
this business.
7) It is the case of the defendant that he owns
house No.4-7-21 but the property was purchased in 1980
and it is used only for residential purposes. It is contended
that this property is situated in slum area and it is not
suitable for business of printing press. He has contended
that the plaintiff has become old, he is getting pension
and he cannot do anything like business.
8) The trial Court has held that the the plaintiff
has proved the case of bona fide requirement of the suit
property for starting business. The trial Court has held
that the plaintiff has proved that greater hardship will be
caused to the plaintiff if decree of eviction is not given to
the plaintiff. The findings of the trial Court are confirmed
by the District Court.
9) The learned counsel for the tenant submitted
that the so called partition document used by the plaintiff
cannot be considered in evidence as it was not registered.
He submitted that the document shows that under this
document partition was effected. He placed reliance on a
case reported as AIR 1988 Delhi 13 (Chanderwati v.
Laxmi Chand). In his case the Delhi High Court has
observed that, when document effecting partition needs
to be registered under section 17(1)(b) of the Registration
Act. It is observed that if the document is not registered it
cannot be admitted in evidence. There cannot be dispute
over this proposition.
10) The facts of the present case show that prior to
date of suit one son of the plaintiff died and other son died
after filing of the suit. The evidence shows that both the
sons were married. They left behind their widows and
issues. The plaintiff has given evidence that he is required
to maintain his wife and families of both deceased sons.
11) It was submitted by the learned counsel for the
tenant that events subsequent to the filing of the suit need
to be considered by the Court. He submitted that as two
sons are dead, the plaintiff can use the remaining portion
of the building also even after considering the document
of partition and so decree cannot given against the
present defendant. The learned counsel for the tenant
submitted that in a suit like the present one the plaintiff is
required to prove that there was bona fide requirement of
the suit premises for personal use on the date of the suit
and it continued till the end. On this point learned
counsel has placed reliance on the following reported
cases :-
(1) AIR 1975 SC 1409 (Pasupuleti Venkateswarlu v. The
Motor and General Traders);
(2) AIR 1981 SC 1711 (Hasmat Rai v. Raghunath
Prasad);
(3) AIR 1985 SC 207 (M/s. Variety Emporium v. V.R.M.
Mohd Ibrahim Naina).
12) On the aforesaid point there is one more case
reported as 2001(2) Mah. L.J. 581 (Gaya Prasad v.
Pradip). In this case the Apex Court has observed that the
crucial date for deciding the bona fides is the date of
application made by landlord for eviction. It is observed
that the subsequent events occurred, pendent lite could
be relevant only if they are of such nature and dimension
as to completely eclipse the need.
Similar observation are made by the Apex Court in a
case reported as 2008(6) ALL MR(SC) 981 (Maganlal
Jishanlal Godha v. Nanasaheb Udhavrao Godewar).
13) In view of the aforesaid position of law, the
Court considering such matters needs to see whether the
subsequent events are of such dimension and nature as to
completely eclipse the need.
14) The examination-in-chief of the plaintiff is
consistent with the aforesaid pleading. The evidence in
examination-in-chief filed by the defendant is also as per
the aforesaid pleading in the written statement. In the
cross- examination the defendant has admitted that he
owns a property at Fakirwadi and on the ground floor of
that building there are two shop premises. He has
admitted that the size of the two shops premises is bigger
than the area of the suit premises. On the other hand, it is
brought on the record in the evidence of the plaintiff that
some construction in his house property was made after
the year 2004 and new shops were brought in existence.
The evidence however shows that shops were given on
rent basis prior to the date of the suit. The evidence also
shows that the second son also died after the date of the
suit and the evidence is given that the plaintiff is the only
adult male member available for taking care of his wife
and the families of his two deceased sons. The defendant
has brought on record that in one suit filed for injunction
in the year 2004 by the defendant the plaintiff had not
taken the defence of partition of the house property. It can
be said that the plaintiff was the owner of the entire house
on record though he has contended that it is ancestral
house property. The trial Court has also given finding that
the plaintiff is owner of entire house No.4-4-13. Thus the
case of the plaintiff that there was partition between
himself and his issues cannot be considered in his favour.
However, the aforesaid circumstances like the death of
two sons and the liability of plaintiff to maintain all these
dependents need to be kept in mind while ascertaining
the requirement of the plaintiff. In view of these
circumstances, this Court holds that it is not possible to
draw inference that the need of the landlord has eclipsed
due to subsequent events. On the contrary, it needs to be
presumed that at present the plaintiff needs to make more
income as there is no source of income for his family, the
families of two sons and he is required to take care of
families of his two deceased sons. In this background the
case of the plaintiff that he wants to start business in the
suit premises needs to be considered. As the other shop
premises which are 3 to 4 in number, were already
given on rent basis prior to the date of suit, that
circumstance cannot come in the way of the plaintiff to
claim possession of the suit premises.
15) The evidence shows that, in view of the nature
of business of the defendant he does not need to have the
premises on main road and he does not need to have the
space which can be used as show room. The evidence of
the defendant shows that he is having 600 to 700 sq. feet
area in his own building on ground floor. It can be said
that, he has more than sufficient space in his own building
where he can shift the printing press. When the plaintiff
has come with specific case that due to old technology
used by the defendant for printing press, he is not getting
business, the defendant has not given evidence to prove
that he is getting business and he is running the business
profitably in the suit premises. The trial Court has made
observation with regard to the nature of evidence given by
the defendant in this regard and finding is given against
the defendant. Further, the defendant has not given
evidence to the effect that after making demand by the
plaintiff of the suit premises he started searching for other
suitable premises.
16) The provision of Section 16(1)(g) of the
Maharashtra Rent Control Act, 1999 gives a ground for
eviction of the tenant. This provision reads as under :-
“16. When landlord may recover possession: (1)
Notwithstanding anything contained in this Act but
subject to the provisions of section 25, a landlord
shall be entitled to recover possession of any
premises if the court satisfied -
(g) that the premises are reasonably and bona
fide required by the landlord for occupation by
himself or by any person for whose benefit the
premises are held or …... .”
Section 16(2) of the Act says something about
burden of proof and it runs as under :--
“(2) No decree for eviction shall be passed on the
ground, specified in clause (g) of sub-section (1), if
the court is satisfied that, having regard to all the
circumstances of the case including the question
whether other reasonable accommodation is
available for the landlord or the tenant, greater
hardship would be caused by passing the decree
than by refusing to pass. Where the court is
satisfied that no hardship would be caused either
to the tenant or to the landlord by passing the
decree in respect of part of the premises the court
shall pass the decree in respect of such part only.
Explanation.-- For the purposes of clause (g) of
sub-section (1), the expression 'landlord' shall not
include a rent-farmer or rent-collector or estatemanager.”
17) The learned counsel for the petitioner has
placed reliance on the case reported as 2013(3) Mh.L.J.
310 (Chetan Anand Shetty v. Indrajeet Chandrasen
Shirole). In this case some cases of the Apex Court are
considered and this Court has observed that the landlord
can claim premises for starting some business even if he
was not doing any business on the date of the suit.
18) In the case reported as 1999(2) Mh.L.J. 793
(Datttatraya v. Abdul) it is held by the Apex Court that
absence of existence of business of landlord cannot led to
inference of absence of bona fides of the landlord. It is
observed by the Apex Court that Court may presume in
appropriate case that landlord's requirement is bona fide
and in such case Court may ask the tenant to show that
need is not bona fide. In the facts of the present case this
Court holds the present case is such where the tenant was
required to show that need of the landlord is not bona fide
and greater hardship will be caused to him if decree is
given to the landlord. The wording of section 16(2) shows
that burden in this regard was on tenant.
19) In the case of 2003(4) Mh.L.J. 226 (Dwarka
Prasad v. Niranjan) the Apex Court has laid down that
normally rent legislations are meant for the benefit of the
tenant but the rent statutes contain exception in favour of
the landlord, which give him a right to evict the tenant. It
is observed that if some grounds are given in statute then
landlord can get decree of eviction if such grounds exist.
It is observed that such grounds need to be extended for
including requirement of members of family of the
landlord. Thus when landlord dies, his widow and issue
can prosecute the proceeding for eviction and the Court
cannot presume that bona fide need lapsed due to death
of landlord. In the present case though there was no
specific pleading that his sons required the premises the
landlord’s need of the premises has increased due to the
death of his remaining son. This circumstance needs to be
considered by the Court.
20) The case of the tenant that the landlord can use
the other shop premises cannot be considered against the
landlord. In the case reported as (2003) 1 SCC 462
(Akhileshwar Kumar v. Mustaqim) the Apex Court has
laid down that the landlord has the right to decide which
is suitable premises for the business which he wants to
start. In the present case there is positive evidence to
show that the premises in possession of the defendant is
suitable for starting business mentioned in the pleadings
by the landlord.
21) For determination of hardship, most important
factor is whether reasonable accommodation is available
for landlord or tenant. This Court has already observed
that the tenant has his own premises acquired in 1980 and
there he can shift his business. It is also observed that the
suit premises is suitable to the landlord for starting the
business which he intends to start. So, on this ground also
the tenant has failed. In the case reported as 2009 (4)
Mh.L.J. 131 (Chotumal Bahiramal Sindho v. Baburao
Vinayak Mohadkar) it is observed that in such a case
tenant should lead evidence to show that after making
demand of premises by the landlord, the tenant has
attempted to find out alternative premises. No such
evidence is given by the tenant and further alternative
accommodation is available with the tenant. Though for
consideration of hardship, other factors like financial
position can also be considered, when alternative
premises is available that factor is most important factor
in such a case. In such case the factor of financial position
need not be compared. However, there is no specific
evidence to prove that the landlord is better placed.
22) The aforesaid discussion shows that the tenant
has failed to prove that greater hardship will be caused to
him if decree of eviction is given against him. There is
concurrent finding of the two Courts below on both the
points i.e. bona fide requirement and greater hardship.
Entire material is considered by both the Courts. This
Court has already observed that even if document of
partition is ignored, things do not change and decision
cannot be given in favour of the tenant. Thus, there is no
material illegality or irregularity in the decisions given by
both Courts below and no interference is warranted. On
this point learned counsel for the landlord placed reliance
on the case reported as AIR 1973 SC 76 (Managing Director,
(MIG), Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway).
23) In the result, the civil revision application is
dismissed. Learned counsel for the tenant requested for
time to vacate the suit premises. So time of six week is
given to the tenant to vacate the suit premises.
Sd/-
(T.V. NALAWADE, J.)
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