Admittedly, there is no material to show that the plaintiff/landlord has given consent or permission to defendant No. 1 to sub-let the premises at any point of time. Defendant No. 2 unable to place on record any original document of the year 1967. Carbon copy of the agreements just cannot be relied specially in the absence of supporting evidence of original tenant/defendant No. 1 with whom defendant No. 2 claiming valid sub-tenancy. Therefore, the trial Court is right in rejecting the carbon copies of agreements. There is nothing to prove even the signature of defendant No. 1 on these agreements. Defendant No. 2 should have examined defendant No. 1 to prove his case. This itself shows and proves the case of plaintiff that defendant No. 2 was inducted unauthorisedly by defendant No. 1. The licence fee receipt or the accounts as placed by defendant No. 2 in this background also unreliable. There is not a single receipt placed on record of such nature signed by defendant No. 1 in favour of defendant No. 2. The trial Court has raised various doubts about the account books placed on record by defendant No. 2 as there were many blank pages found in the same. He did not produce any assessment order prior to 1973 of his business. The account books have not been regularly maintained and in the present facts and circumstances are rightly rejected by the trial Court.
6. Defendant No. 2 in the absence of defendant No. 1 failed to prove that he was in occupation of the premises authorisedly prior to 1973. The Appellate Court, in my view, is wrong in reversing the findings given by the trial court that defendant No. 2 failed to prove his case of occupation prior to 1973. Defendant No. 2 admitted that the electricity meter was started on 26.09.1974. Admittedly, defendant No. 1 has left the premises and defendant No. 2 is in possession of the same unauthorisedly. Even assuming for a moment that the landlord mentioned in the termination notice that defendant No. 1 let out the premises to defendant No. 2 unlawfully since 1.7.1971, still the protection as claiming under Section 5(11) of the Bombay Rent Act on the footing that defendant No. 2 is in possession of the said room before 1.2.1973 cannot be extended being unauthorised occupant for want of consent or permission from the landlord and secondly, no material and evidence of defendant No. 1/original tenant to support the authorised sub-tenancy or licensee. No protection can be given to the unauthorised occupants specially in the facts and circumstances of the case as rightly observed by the trial Court. This background itself, in my view, supports the case of unauthorised sub-tenancy as contemplated under the Bombay Rent Act, in favour of the plaintiff/landlord. The payment of licence fee to defendant No. 1 in the absence of defendant No. 1's evidence or acceptance is of no use. Therefore, once I am also of the view that there is a sub-tenancy created unauthorisedly and documents are not sufficient to prove the payment of licence fee, as wrongly observed and held by the Appellate Court, there is no question of granting protection to defendant No. 2 as claimed as there was no authorised and valid relationship of licensor or licensee or lessor or lessee between the petitioner and even defendant No. 1.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 2422 of 1991
Decided On: 15.01.2009
Shri Ramanlal Kantilal Doshi
Vs.
Shri Lalchand Hemraj Nahar and Shri Hargovinddas Jagmohandas
Hon'ble Judges/Coram:
Anoop V. Mohta, J.
Citation: 2009 BomRC 117
1. The petitioner is the owner/landlord of the suit property admeasuring 20 ft. x 10 ft. at the basement on the back side of CTS No. 740, Budhwar Peth, Ganesh Road, Pune.
2. The trial Court granted decree of possession against respondents 1 and 2 (defendants 1 and 2) by holding that the petitioner/plaintiff proved that suit premises were let out for residence; he is a defaulter; not ready and willing to pay the rent inspite of legal notice; changed the use of premises from residence to non-residence; respondent No. 1 sub-letted the premises to defendant No. 2; needed for own use and occupation and thereby ordered possession.
3. By the impugned order, however, the Appellate Court allowed the Appeal filed by respondent No. 2 and original defendant No. 1/tenant not entered into the witness box and not challenged the impugned order of trial court. The Appellate Court while reversing the decree of possession has granted protection under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, "The Bombay Rent Act") to defendant No. 2.
4. Admittedly, defendant No. 1 did not lead any evidence. The petitioner/plaintiff led evidence through his Power of Attorney. Defendant No. 2 led his evidence. The plaintiff became owner on 6.1.1973. There is nothing on record to show that defendant No. 2 was in possession of the premises with the consent and/or permission from the original landlord at any point of time and the same was let out or permitted for non-residential purpose by the landlord. In the absence of evidence and/or rebuttal by original defendant No. 1, I see there is no reason not to consider the case of the plaintiff that it was let out for residence, but defendant No. 2 who entered into the premises unauthorisedly, converted and started to use the premises for business of storage. The plaintiff's averments and evidence on record and as appreciated by the trial court, in my view, is correct that the residential premises were changed into non-residential by the defendants.
5. Admittedly, there is no material to show that the plaintiff/landlord has given consent or permission to defendant No. 1 to sub-let the premises at any point of time. Defendant No. 2 unable to place on record any original document of the year 1967. Carbon copy of the agreements just cannot be relied specially in the absence of supporting evidence of original tenant/defendant No. 1 with whom defendant No. 2 claiming valid sub-tenancy. Therefore, the trial Court is right in rejecting the carbon copies of agreements. There is nothing to prove even the signature of defendant No. 1 on these agreements. Defendant No. 2 should have examined defendant No. 1 to prove his case. This itself shows and proves the case of plaintiff that defendant No. 2 was inducted unauthorisedly by defendant No. 1. The licence fee receipt or the accounts as placed by defendant No. 2 in this background also unreliable. There is not a single receipt placed on record of such nature signed by defendant No. 1 in favour of defendant No. 2. The trial Court has raised various doubts about the account books placed on record by defendant No. 2 as there were many blank pages found in the same. He did not produce any assessment order prior to 1973 of his business. The account books have not been regularly maintained and in the present facts and circumstances are rightly rejected by the trial Court.
6. Defendant No. 2 in the absence of defendant No. 1 failed to prove that he was in occupation of the premises authorisedly prior to 1973. The Appellate Court, in my view, is wrong in reversing the findings given by the trial court that defendant No. 2 failed to prove his case of occupation prior to 1973. Defendant No. 2 admitted that the electricity meter was started on 26.09.1974. Admittedly, defendant No. 1 has left the premises and defendant No. 2 is in possession of the same unauthorisedly. Even assuming for a moment that the landlord mentioned in the termination notice that defendant No. 1 let out the premises to defendant No. 2 unlawfully since 1.7.1971, still the protection as claiming under Section 5(11) of the Bombay Rent Act on the footing that defendant No. 2 is in possession of the said room before 1.2.1973 cannot be extended being unauthorised occupant for want of consent or permission from the landlord and secondly, no material and evidence of defendant No. 1/original tenant to support the authorised sub-tenancy or licensee. No protection can be given to the unauthorised occupants specially in the facts and circumstances of the case as rightly observed by the trial Court. This background itself, in my view, supports the case of unauthorised sub-tenancy as contemplated under the Bombay Rent Act, in favour of the plaintiff/landlord. The payment of licence fee to defendant No. 1 in the absence of defendant No. 1's evidence or acceptance is of no use. Therefore, once I am also of the view that there is a sub-tenancy created unauthorisedly and documents are not sufficient to prove the payment of licence fee, as wrongly observed and held by the Appellate Court, there is no question of granting protection to defendant No. 2 as claimed as there was no authorised and valid relationship of licensor or licensee or lessor or lessee between the petitioner and even defendant No. 1.
7. In my view, the reasoning given by the trial Court with regard to bonafide requirement is correct. The Appellate Court is wrong in reversing the said finding. There was no perversity in the findings given by the trial court. The landlord has moved the application also on the ground of bonafide. He led the evidence also to support his bonafide need to show that he is in possession of only one room. He got married and he has a child and, therefore, he requires the premises for his residence purpose. The Appellate Court is wrong in rejecting the case of landlord on the ground that the plaintiff/petitioner adjusted his cousin when they purchased the property. Therefore, there is no reason now to ask for the possession of the premises. The requirement is that the need of the landlord must be bonafide and genuine. In the facts and circumstances of the case, the averments as well as evidence led are sufficient to justify the case of bonafide need. The Appellate Court is wrong in rejecting the case for want of detail material. Shri Yogesh Dattaram Pathak v. Shri Shrikrishna Shriram Joshi MANU/MH/0793/2002 : 2003(3)MhLj684 .
8. When the property was purchased by the landlord, the circumstances were different. Merely because he let out the premises and adjusted his cousin that itself cannot be the reason that after his marriage his case of bonafide need in view of subsequent developments cannot be considered. The Apex Court in Meenal Eknath Kshirsagar v. Traders & Agencies and Anr. 1997(1) Mh.L.J. 121 has expressed that the landlord is the best judge of his residential requirement. It is for him to decide how and in what manner he should live. The Court cannot dictate such landlord to continue to occupy and adjust himself in the existing premises. Considering the growing family of the landlord and in view of change of circumstances, the finding so recorded by the trial court, in my view, ought not to have interfered with by the Appellate Court. The landlord has every right to occupy his own premises and cannot be directed to share accommodation with his cousin. Julieta Antonieta Tarcato v. Suleiman Ismail MANU/SC/7128/2007 : (2008)1SCC173 .
9. Once the bonafide need of the landlord is proved, in my view, the issue of comparative hardship also goes in favour of the landlord. In the present case, as the possession of defendant No. 2 was without consent and permission from the original landlord/owner of the property and as he failed to bring on record the evidence of defendant No. 1 in any manner, his occupation is unauthorised in nature and cannot protected as claimed.
10. Admittedly, defendant No. 1 not paid the rent though demanded. There was no readiness and willingness to pay the same also. The demand notice was duly served. There was no relationship of landlord and tenant between the petitioner and defendant No. 2 as he was occupying the premises unauthorisedly or at least without consent of the owner/landlord. The decree granted by the trial court on the ground of default and unreadiness and unwillingness also need to be maintained.
11. In this background and for the above reasons, I am inclined to quash and set aside the order passed by the Appellate Court and maintain the order passed by the trial Court.
12. Resultantly, the writ petition is allowed in terms of prayers (a) and (b) which reads thus:
(a) Rule be issued and record and proceedings be called for;
(b) That the impugned judgment and order passed by the learned 11th Additional District Judge, Pune in Civil Appeal No. 73 of 1990 on 12-11-1990 be kindly quashed and set aside and that passed by the learned 4th Additional Small Causes Judge, Pune, on 22-12-1989 in Civil Suit No. 1139 of 1976 be kindly restored to file. No order as to costs.
13. The learned Counsel for respondent No. 1 seeks stay of this judgment which I am inclined to grant for six weeks. This is on a condition that the respondents who are in possession shall not create any third party right or interest in the property.
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