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IN THE HIGH COURT OF BOMBAY
D.G. Deshpande, J.
Shivlingappa Virappa Alange since deceased
by his heirs and legal representatives..... Petitioner.
Versus
Malappa Chanmallappa Shetti since deceased
by his heirs others..... Respondents.
Writ Petition No. 3306 of 1982, decided on 30-6-1999.
Advocates appeared :
Vineet B. Naik, for the petitioners.
Shekhar Naphade with Ms. Kiran Gupta, for the respondents.
Sections 12(3)(a), (b) and (g) Suit for eviction and possession-On grounds of defaults in payment of rent and bona fide need-Payment of rent monthly-Habitual default Tenant liable to be evicted-Tenant in possession of several other premises as tenant and landlord-Financial position of landlord being quite sufficient to meet his requirements, is immaterial-Landlord entitled to possession.-Once the Courts below held that the tenancy was monthly, then burden shifted on the tenant to prove specifically the existence of an agreement between him and the landlord regarding payment of yearly rent. The tenant has miserably failed to prove that the rent was payable yearly because of any existing agreement, legal usage or custom and apart from that, document Exhibit 59 does not support the case of the tenant that he was paying rent yearly. To the contrary Exhibit 59 supports the case of the landlord that even though the tenant was a monthly tenant and he was bound to pay rent monthly, tenant has not paid rent regularly and he was habitual defaulter which attracts section 12(3)(b) of the Bombay Rent Act.
There is evidence on record from which it is clear that the tenants had apart from the suit premises, number of other premises in their possession and occupation, either as the owners or as the tenants. This aspect has been considered at length by the trial Court in paragraph No. 16 of the its judgment. From this evidence, it is clear that as between the premises available to the plaintiff and available to the defendants and as between the comparative hardship, the trial Court had, after scrutinising the evidence on record, given its findings in favour of the plaintiff whereas the appellate Court had given findings against the plaintiff/landlord mainly on irrelevant circumstances, e.g., the appellate Court has considered annual income of the plaintiff from his all business activities.
A Court cannot judge whether particular income is sufficient for particular family or whether a person can aspire for increasing income of his family or for that purpose starting any new business or not. This question regarding financial need of family and their desire of prosperity cannot be considered by the Court while considering the bona fide need and at any rate if a person/landlord comes to a Court and says that for prosperity of the family he want to do particular business, the Court cannot reject that contention on the ground that income of such person is sufficient to meet his requirement.
-Section 13(1)(g)-Suit for ejectment-Bona fide need-Landlord requiring non-residential premises for starting business of hardware for his son-Claim cannot be rejected on the ground that income of the landlord was sufficient to meet his requirement.-A Court cannot judge whether particular income is sufficient for particular family or whether a person can aspire for increasing income of his family or for that purpose starting any new business or not. The question regarding financial need of family and their desire 0t prosperity cannot be considered by the Court while considering the bona fide need and at any rate if a person/landlord comes to a Court and says that for prosperity of the family he wanted to do particular business, the Court cannot reject that contention on the ground that income of such person was sufficient to meet his requirement. The view taken by the appellate Court that element of necessity for increasing the income or earning should be pleaded and proved, was not proper, because the necessity of increasing the earning of the family is a personal one. An individuals necessity for increasing earning depends on scores of factors which Court cannot question, at least in the cases between landlords and tenants. It is altogether different, that in order to find out the bona fide need of the landlord, the Court may consider the evidence in that context, but to question propriety of a landlord for increasing his earning would not only be out of place but will also be unwarranted.
2. The petitioner is the landlord and respondents are the tenants under the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (herein- after referred to as the Bombay Rent Act). The petitioner had filed a regular suit for recovering possession of the suit premises from the respondents on the ground of habitual defaults in payment of rent and for bona fide personal occupation. The suit was filed before the Joint Civil Judge, Junior Division, Solapur vide Regular Civil Suit No. 475 of 1973. The trial Court decreed the suit on the ground of bona fide personal occupation and rejected the claim of the petitioner in respect of habitual defaults in payment of rent. Both the plaintiff and defendants had filed appeals against this judgment and decree dated 31st January 1979. Both the appeals jointly heard by Extra Assistant Judge, Solapur. The Appellate Court accepted the contentions of the tenants and allowed the tenants' appeal and rejected landlord's appeal i.e. claim of the plaintiff for possession was rejected. Claim of the landlord for rent of Rs. 489/- only was decreed vide its judgment dated 5-4-1982 and this present writ petition is against the said order.
3. The question involved in this case is, whether the plaintiff - landlord succeeded in proving that the defendants-respondents were the habitual defaulters in paying the rent; and whether the landlord bona fide needed the premises for his business or for the business of his son. In that regard it was contended by Counsel for the petitioner that so far as ground of habitual defaults under section 12(3)(a) of the Bombay Rent Act is concerned, the premises were let out for business and, according to the landlord, they were let out on monthly rent. But the tenants never paid rent regularly and were always in arrears, for which sufficient proof was tendered by the landlord before the trial Court. As against this, it was contended by Mr. Naphade that according to the respondents the tenancy was yearly tenancy and the rent was also payable yearly, firstly, either according to contract, or according to practice or according to legal custom and usage. Mr. Naphade also pointed out that initial burden of proving commencement of tenancy, nature of tenancy and the agreement regarding payment of rent was on the landlord. But in his evidence the landlord had admitted in para 11 of cross-examination that the landlord did not make inquiry with the shop keepers-tenants as to whether they were yearly or monthly tenants. It was, therefore, contended by Mr. Naphade that if the landlord did not know whether the rent was payable monthly or yearly, then admittedly, the landlord did not discharge his burden, and therefore, his case was rightly rejected by the Appellate Court. So far as payment of yearly rent is concerned, Mr. Naphade has contended that respondent No. 1 examined two witnesses and had produced extract of accounts as per Exhibit 59 which were for more than 15 years showing payment of rent yearly. And therefore, according to him, in the absence of any evidence from the landlord, the evidence of tenants was liable to be accepted, and hence, findings of the Appellate Court were not liable to be interfered with.
4. So far as claim of the landlord for bona fide occupation was concerned, it was contended by Mr. Naik that the landlord had come up with his specific case that when he filed a suit for ejectment, he required the suit premises for starting business of hardware for his son who was at that time taking his education. And according to Mr. Naik, the landlord had proved his bona fide need, but the Appellate Court did not consider this aspect coupled with the fact that the tenant was having number of premises in the near vicinity and comparative hardship was on the landlord and not on the tenant, and therefore, the findings of both the courts below, being perverse and against
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