Law Web: How to determine comparative hardship of landlord and tenant in eviction suit?

The trial Court in its judgment has referred to properties shown to be

owned by the larger family and has observed that those properties were in joint

names of which there was no partition effected. On that basis however a finding was

recorded that the plaintiffs had failed to prove their bonafide need. The appellate

Court has after considering the entire material recorded a finding that in absence of

any evidence to indicate other properties available, the need of the plaintiffs was

bonafide. It is found on perusal of material evidence on record that the same has

been considered by the appellate court in its proper perspective for recording such

finding. Since the tenant was not in a position to indicate as to how the need of the

plaintiffs was not bonafide or that such need could be satisfied from other premises

available, the appellate Court did not commit any error in holding in favour of the

plaintiffs. The landlord being the best judge of his own, it was for him to decide

which premises was suitable for carrying on the proposed business. It is thus found

that the appellate Court has taken a possible view of the matter in the light of the

evidence on record.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.5383/2008

Shri Wasudeo Harishchandra Gangwani Vs Smt. Bhagyashree Jaywantrao Buty,

–CORAM

: A.S.CHANDURKAR, J.

DATED : 29.08.2019

The challenge raised in the present writ petition is to the decree for

eviction that has been passed by the appellate Court under the provisions of Section

16(1)(g) of the Maharashtra Rent Control Act, 1999 ( for short, 'the said Act').

2. It is the case of the respondents that they are the owners of shop block

no.9 which is situated on the ground floor at Buty Chambers, Sitabuldi, Nagpur. The

petitioner herein was inducted as a tenant sometime in the year 1978. According to

the plaintiffs, the plaintiff no.2 was intending to start business of building material

and hardware. He was a Civil Engineer having special knowledge and hence he was

in need of the aforesaid premises for starting his business. Since the aforesaid shop

block was located in the market area, the same was suitable for starting the said

business. On that count the eviction of the defendant was sought from the suit

premises. It was also the case of the plaintiffs that the tenant had carried out

material alterations in the said premises without consent of the landlord. The suit in

question was accordingly filed on 06.04.2005.

3. In the written statement filed by the tenant the need of the plaintiffs was

denied. It was pleaded that the family of the plaintiffs owned various properties

where the plaintiff no.2 could start his business. Since the defendant was doing

business in the suit premises since long, he was not liable to be evicted.

4. Before the trial Court the plaintiff no.2 examined himself at Exhibit 15.

In his deposition he stated about his need and the fact that no other premises

was available to him for starting his business. The tenant examined himself at

Exhibit 45. He stated that he was doing lottery business in the said shop block. He

was not aware about other premises owned by the plaintiffs.

5. After considering the entire evidence on record, the trial Court recorded

a finding that since the properties owned by the joint family were not partitioned

and they were standing in the joint name, the case of the plaintiffs was not liable to

be accepted. The need was not held to be bonafide. The suit was accordingly

dismissed. An appeal filed by the original plaintiffs has been allowed by holding that

the need of the plaintiffs was bonafide and that greater hardship would be caused to

them if the decree for eviction was not passed. That adjudication is under challenge

in the present writ petition.

6. Shri M.M.Sawang, learned counsel for the petitioner submitted that the

appellate Court was not justified in decreeing the suit for eviction. The plaintiffs

intended to increase the rent of the tenanted premises and as the tenant was not

willing to increase that rent, he was being evicted from the suit premises. He

submitted that since other premises were available to the plaintiffs, the tenant was

not liable to be evicted on that count. He referred to the evidence of the parties and

submitted that as the plaintiffs family was owning other various properties, the need

of the plaintiffs could be satisfied by starting business elsewhere. On that count. it

was submitted that the trial Court was justified in dismissing the suit for eviction.

Hence the judgment of the appellate Court was liable to be set aside and the suit was

liable to be dismissed.

7. Shri P.P.Kothari, learned counsel for the respondents supported the

impugned judgment. According to him, the appellate Court rightly decreed the suit

for eviction. The trial Court had ignored the material evidence and merely on the

basis of the fact that the joint family owned various properties refused to grant any

relief to the plaintiffs. He referred to the depositions of the parties as well as various

admissions of the tenant in his crossexamination.

According to him, the landlord

being the best judge of his need, there was no reason to deprive the plaintiffs of

possession of the suit premises. He thus submitted that no interference with the

impugned judgment was called for.

8. I have heard the learned counsel for the parties at length and I have

perused the material placed on record. Perusal of the evidence of the plaintiff no.2

who was examined at Exhibit 15 indicates that he was in need of the premises for

starting his own business. He stated that no other suitable premises were available

for starting such business. He admitted that the joint family was owning various

properties. Insofar as the tenant is concerned, he has deposed that he was doing his

business in the suit block since the year 1978. In his crossexamination,

he admitted

that he was not in possession of any document to indicate any other properties

standing in the name of the plaintiffs. His statements in the crossexamination

which are found relevant are reproduced as under :

" I cannot assign any reason as to why I have not filed the

document to show except the Buty Chambers, plaintiff is having other

property in their name. I do not know plaintiff is having their own

property or not. It is not true to say that plaintiffs having no other

property except the Buty Chamber, therefore, I have not filed any

document on record. It is true I have not filed any document on record

plaintiffs having their own property at Civil Lines, Nagpur.

I have not filed any document to show the premises of the

plaintiff lying vacant. I have not filed any document to show the

property which is lying vacant by the side of Buty Chambers, belonged

to the plaintiffs. It is true no shop is lying vacant in the Buty

Chambers".

9. The trial Court in its judgment has referred to properties shown to be