The Rent Act does not contemplate that the landlord should continue to live in an inhuman condition only because the tenant may suffer decree of eviction. In my judgment, the lower Appellate Court was perfectly justified in holding that the requirement of the landlord was reasonable and bonafide.
5. Shri Angal then submitted that in any event the conclusion as regards hardship recorded by the Appellate Court is not correct. The learned counsel urged that the lower Appellate Court overlooked that in the part of the premises the tenant was carrying an electrical business and the decree of eviction would not only deprive the tenant of the shelter but would completely ruin the business of the tenant. The submission has no merit. The lower appellate Court very rightly pointed out that the tenant made no efforts whatsoever to secure another accommodation in spite of the suit remaining pending right from the year 1975 onwards. The lower Appellate Court was fully conscious that some hardship would be caused to the tenant by decree of eviction and lower Appellate Court felt that reasonable time to vacate would meet the ends of justice. The time which has expired from the date of the decree passed by the Assistant Judge is over five years and by no stretch of imagination can it be suggested that this time was not sufficient for the tenant to secure alternate accommodation. In cases where there is hardship both to the tenant and the landlord, there is no reason why the landlord should be deprived of decree for possession. In my judgment, the decree passed by the lower Appellate Court does not suffer from any infirmity and the petition must fail.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 4484 of 1983
Decided On: 13.01.1989
Narayan Dawal Patil Vs. Mohammad Asgar Mohamad Hanif
Hon'ble Judges/Coram:
M.L. Pendse, J.
1. By the petition filed under Article 227 of the Constitution of India the petitioner-tenant is challenging legality of the judgment dated September 21, 1983 delivered by Assistant Judge, Nasik reversing judgment and decree dated March 9, 1981 passed by the learned Civil Judge, Junior Division, Malegaon. The facts giving rise to filing of the petition are as follows: The petitioner is a tenant of an area admeasuring 15' x 36' on the ground floor of House No. 234 situated in Mangalwar Peth, Malegaon, District Nasik. An identical area of 15' x 36' is occupied by the landlord on the first floor. The ground floor was let out to the petitioner at a monthly rent of Rs. 60/-. The ground floor was divided into two parts by the tenant, and in the front portion an electrical shop is being conducted and on the rear the tenant is residing with his family. The landlord terminated the tenancy and instituted Civil Suit No. 364 of 1975 in the Court of Civil Judge, Junior Division, Melegaon for recovery of possession on the ground of bonafide personal requirement as prescribed under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. The landlord claimed that there are 13 members in his family, including his wife, grand-mother, two daughters, two daughters-in-law and six sons. The landlord claimed that the accommodation available to the landlord is extremely inadequate and it is not possible for the large family of 13 members to reasonably reside in the premises. The landlord also claimed that the marriages of his children are required to be postponed for want of accommodation.
2. The tenant resisted the suit claiming that the requirement of the landlord is not bonafide. The tenant claimed that the landlord has constructed one more floor and therefore the members of landlord's family could well be accommodated. Before the trial Court the landlord and the tenant entered the witness box and apart from their oral testimony there is no other evidence. The trial Judge dismissed the suit holding that the requirement of the landlord is not bonafide filed as one more floor was constructed and area of that floor is sufficient to accommodate the landlord's family. The trial Judge also held that greater hardship would be caused to the tenant by decree of eviction than to the landlord by refusal.
3. The landlord carried appeal before the Assistant Judge, Nasik and the lower appellate Court came to the conclusion that the requirement of the landlord is bonafide. The lower appellate Court found that the alleged construction by the landlord admeasures only 12' x 15' and was a temporary arrangement as the area was built with Wooden boards and even that is not enough to accommodate the landlord's family. The lower Appellate Court held that the issue of comparative hardship is required to be determined in favour of the landlord because the tenant had made no attempt to secure alternate accommodation though the suit remained pending for several years. In accordance with his finding the lower Appellate Court decreed the suit for possession and that decree is under challenge in the petition.
4. Shri Angal, learned counsel appearing on behalf of the petitioner-tenant, submitted that the lower Appellate Court was in error in disturbing the conclusions recorded by the trial Court. It is not possible to accede to the submission of the learned counsel for more than one reason. In the first instance the findings recorded by lower Appellate Court are pure findings of fact and cannot be disturbed in exercise of jurisdiction under Article 227 of Constitution of India. Secondly even on merits, I find that the conclusions recorded are correct. It is not in dispute that the landlord's family consist of 13 members. Indeed the tenant did not challenge the deposition of the landlord on that count. The only contention that the requirement of the landlord is not reasonable and bonafide is that the landlord had constructed additional area over the first floor. The lower Appellate Court found that the additional area built was on 12' x 15' and that was done with the help of wooden boards. Even the tenant admitted that tins were fixed on the roof of the alleged additional construction on the second floor. The area in possession of the landlord on the 1st floor was only 15' x 36' and even this additional area of 12' x 15' on the second floor can by no stretch of imagination be said to be enough to accommodate 13 members in the family, including the grown-up sons and daughters. The Rent Act does not contemplate that the landlord should continue to live in an inhuman condition only because the tenant may suffer decree of eviction. In my judgment, the lower Appellate Court was perfectly justified in holding that the requirement of the landlord was reasonable and bonafide.
5. Shri Angal then submitted that in any event the conclusion as regards hardship recorded by the Appellate Court is not correct. The learned counsel urged that the lower Appellate Court overlooked that in the part of the premises the tenant was carrying an electrical business and the decree of eviction would not only deprive the tenant of the shelter but would completely ruin the business of the tenant. The submission has no merit. The lower appellate Court very rightly pointed out that the tenant made no efforts whatsoever to secure another accommodation in spite of the suit remaining pending right from the year 1975 onwards. The lower Appellate Court was fully conscious that some hardship would be caused to the tenant by decree of eviction and lower Appellate Court felt that reasonable time to vacate would meet the ends of justice. The time which has expired from the date of the decree passed by the Assistant Judge is over five years and by no stretch of imagination can it be suggested that this time was not sufficient for the tenant to secure alternate accommodation. In cases where there is hardship both to the tenant and the landlord, there is no reason why the landlord should be deprived of decree for possession. In my judgment, the decree passed by the lower Appellate Court does not suffer from any infirmity and the petition must fail. Accordingly, rule is discharged with costs.
5. Shri Angal then submitted that in any event the conclusion as regards hardship recorded by the Appellate Court is not correct. The learned counsel urged that the lower Appellate Court overlooked that in the part of the premises the tenant was carrying an electrical business and the decree of eviction would not only deprive the tenant of the shelter but would completely ruin the business of the tenant. The submission has no merit. The lower appellate Court very rightly pointed out that the tenant made no efforts whatsoever to secure another accommodation in spite of the suit remaining pending right from the year 1975 onwards. The lower Appellate Court was fully conscious that some hardship would be caused to the tenant by decree of eviction and lower Appellate Court felt that reasonable time to vacate would meet the ends of justice. The time which has expired from the date of the decree passed by the Assistant Judge is over five years and by no stretch of imagination can it be suggested that this time was not sufficient for the tenant to secure alternate accommodation. In cases where there is hardship both to the tenant and the landlord, there is no reason why the landlord should be deprived of decree for possession. In my judgment, the decree passed by the lower Appellate Court does not suffer from any infirmity and the petition must fail.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 4484 of 1983
Decided On: 13.01.1989
Narayan Dawal Patil Vs. Mohammad Asgar Mohamad Hanif
Hon'ble Judges/Coram:
M.L. Pendse, J.
1. By the petition filed under Article 227 of the Constitution of India the petitioner-tenant is challenging legality of the judgment dated September 21, 1983 delivered by Assistant Judge, Nasik reversing judgment and decree dated March 9, 1981 passed by the learned Civil Judge, Junior Division, Malegaon. The facts giving rise to filing of the petition are as follows: The petitioner is a tenant of an area admeasuring 15' x 36' on the ground floor of House No. 234 situated in Mangalwar Peth, Malegaon, District Nasik. An identical area of 15' x 36' is occupied by the landlord on the first floor. The ground floor was let out to the petitioner at a monthly rent of Rs. 60/-. The ground floor was divided into two parts by the tenant, and in the front portion an electrical shop is being conducted and on the rear the tenant is residing with his family. The landlord terminated the tenancy and instituted Civil Suit No. 364 of 1975 in the Court of Civil Judge, Junior Division, Melegaon for recovery of possession on the ground of bonafide personal requirement as prescribed under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. The landlord claimed that there are 13 members in his family, including his wife, grand-mother, two daughters, two daughters-in-law and six sons. The landlord claimed that the accommodation available to the landlord is extremely inadequate and it is not possible for the large family of 13 members to reasonably reside in the premises. The landlord also claimed that the marriages of his children are required to be postponed for want of accommodation.
2. The tenant resisted the suit claiming that the requirement of the landlord is not bonafide. The tenant claimed that the landlord has constructed one more floor and therefore the members of landlord's family could well be accommodated. Before the trial Court the landlord and the tenant entered the witness box and apart from their oral testimony there is no other evidence. The trial Judge dismissed the suit holding that the requirement of the landlord is not bonafide filed as one more floor was constructed and area of that floor is sufficient to accommodate the landlord's family. The trial Judge also held that greater hardship would be caused to the tenant by decree of eviction than to the landlord by refusal.
3. The landlord carried appeal before the Assistant Judge, Nasik and the lower appellate Court came to the conclusion that the requirement of the landlord is bonafide. The lower appellate Court found that the alleged construction by the landlord admeasures only 12' x 15' and was a temporary arrangement as the area was built with Wooden boards and even that is not enough to accommodate the landlord's family. The lower Appellate Court held that the issue of comparative hardship is required to be determined in favour of the landlord because the tenant had made no attempt to secure alternate accommodation though the suit remained pending for several years. In accordance with his finding the lower Appellate Court decreed the suit for possession and that decree is under challenge in the petition.
4. Shri Angal, learned counsel appearing on behalf of the petitioner-tenant, submitted that the lower Appellate Court was in error in disturbing the conclusions recorded by the trial Court. It is not possible to accede to the submission of the learned counsel for more than one reason. In the first instance the findings recorded by lower Appellate Court are pure findings of fact and cannot be disturbed in exercise of jurisdiction under Article 227 of Constitution of India. Secondly even on merits, I find that the conclusions recorded are correct. It is not in dispute that the landlord's family consist of 13 members. Indeed the tenant did not challenge the deposition of the landlord on that count. The only contention that the requirement of the landlord is not reasonable and bonafide is that the landlord had constructed additional area over the first floor. The lower Appellate Court found that the additional area built was on 12' x 15' and that was done with the help of wooden boards. Even the tenant admitted that tins were fixed on the roof of the alleged additional construction on the second floor. The area in possession of the landlord on the 1st floor was only 15' x 36' and even this additional area of 12' x 15' on the second floor can by no stretch of imagination be said to be enough to accommodate 13 members in the family, including the grown-up sons and daughters. The Rent Act does not contemplate that the landlord should continue to live in an inhuman condition only because the tenant may suffer decree of eviction. In my judgment, the lower Appellate Court was perfectly justified in holding that the requirement of the landlord was reasonable and bonafide.
5. Shri Angal then submitted that in any event the conclusion as regards hardship recorded by the Appellate Court is not correct. The learned counsel urged that the lower Appellate Court overlooked that in the part of the premises the tenant was carrying an electrical business and the decree of eviction would not only deprive the tenant of the shelter but would completely ruin the business of the tenant. The submission has no merit. The lower appellate Court very rightly pointed out that the tenant made no efforts whatsoever to secure another accommodation in spite of the suit remaining pending right from the year 1975 onwards. The lower Appellate Court was fully conscious that some hardship would be caused to the tenant by decree of eviction and lower Appellate Court felt that reasonable time to vacate would meet the ends of justice. The time which has expired from the date of the decree passed by the Assistant Judge is over five years and by no stretch of imagination can it be suggested that this time was not sufficient for the tenant to secure alternate accommodation. In cases where there is hardship both to the tenant and the landlord, there is no reason why the landlord should be deprived of decree for possession. In my judgment, the decree passed by the lower Appellate Court does not suffer from any infirmity and the petition must fail. Accordingly, rule is discharged with costs.
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