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In the High Court of Bombay at Aurangabad
S.V. GANGAPURWALA
Rafiq Ahmed Qureshi S/o Bashir Ahmed
Versus
Iqbal Khan S/o Hashmat Ali Khan died through LRs.
WRIT PETITION NO.4722 OF 2011
Decided On : 20-09-2011
The Courts also held that petitioner/landlord requires the suit premises bona fide for his business as he is running the said business. The appellate Court has held that the place where the business is carried out is more suitable for transportation business and the said business is flourishing in that area and the plaintiff carries his ancestral business of silk cloth. Whether the business can be flourished or not is not the requirement under statute. The requirement under the statute is bona fide need of the landlord and the same has been established. It is settled law that the landlord is the best judge of the premises he requires for the business and the tenant cannot dictate the terms.
The only question that would remain is of the hardship. The tenant has not stepped into the witness box to prove the aspect of hardship. If the hardship is equal to the landlord and the tenant then the rule is a decree of eviction. In the present case in absence of any evidence or proof on the part of the tenant about the hardship being caused the and would be entitled for decree of eviction.
MAHARASHTRA RENT CONTROL ACT, 1999 - Section 16(1)(g) - Suit for eviction - Failure of tenant to produce any evidence or proof about hardship being caused, entitled landlord for decree of eviction on ground of bona fide held. - It is undisputed that the petitioner is a landlord and the defendant Nos. 1 and are the tenants. It is also not disputed that the agreed rent is Rs. 400/- p.m. The bone of contention is about the payment of rent. The landlord had issued a notice on 2.9.2002, demanding the payment of rent, failing which necessary suit would be filed for recovery of amount and possession. The receipt of the said notice is not disputed by the tenant. The suit is filed on 2.12.2002. It is on record that the tenant had issued the banker’s cheque in respect of the rent on 30.12.2002 i.e. after the lapse of 90 days and that too without the amount of interest. Both the Courts have concurrently found and held that the tenant failed to pay the rent within the period of 90 days from the date of service of notice upon him. The fact that the tenant did not deposit the rent along with interest after the lapse of 90 days is also held by both the Courts. Moreover, it is also observed concurrently by both the Courts that even during the pendency of the proceedings, the defendant has failed to deposit the rent regularly every month but has deposited in lumpsum sometimes the rent of eight months together.
Heard.
2. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing.
3. The present petitioner/original plaintiff/landlord has instituted suit for possession and recovery of arrears of rent. The suit for possession/eviction was filed by the present petitioner on multifarious grounds namely:
(i) The tenant/defendant has committed default;
(ii) The tenant is guilty of nuisance;
(iii) The tenant has sublet the suit premises to the Respondent No.3.
(iv) The tenant has made structural changes in the suit property, so as to impair the utility of the suit premises and
(v) The petitioner requires the suit premises bonafidely for its own personal use. The suit property is a shop premises;
4. The trial Court decreed the suit of the petitioner on the grounds :
(i) The tenant has committed default in payment of rent;
(ii) The defendant Nos.1 and 2 have sublet the suit premises to the defendant No.3;
(iii) The petitioner landlord requires the suit premises bonafide for his personal use.
5. Aggrieved by the judgment of the trial Court, the tenant preferred an appeal. Appellate Court held that the tenant has committed default in payment of rent but did not pass a decree for eviction and allowed the appeal dismissing the suit of the plaintiff.
6. The original plaintiff/landlord has assailed the said judgment in the present Writ Petition.
7. Mr.Sagar Killarikar, learned counsel for the petitioner/plaintiff submits that though the appellate Court has come to the conclusion that the tenant is guilty of default in payment of the rent, still, has refrained from passing the decree of eviction. Once, the Court had come to the conclusion that the tenant has committed default then the appellate Court could not have refrained from passing the decree of eviction.
8. The learned counsel further contends that even the appellate Court has come to the conclusion that the petitioner requires the suit premises bonafide for his own personal use but has negatived the relief only on the ground that the hardship would be caused more to the tenant. The tenant has not led any evidence and could not show hardship. The hardship has to be pleaded and proved. It is further contended by the learned counsel that even the ground of sub-tenancy is proved by the evidence of the plaintiff and defendant has not led any evidence controverting the case of the plaintiff. To substantiate his ground that the notice has been validly issued and the eviction should have been ordered. The learned counsel relied on the judgment of the Apex Court in a case of "V.Dhanapal Chettiar Vs. Yesodai Ammal" reported in AIR 1979 Supreme Court 1745(1).
9. Per contra, Mr.S.V. Chandole, learned counsel for the Respondent submits that notice as is issued does not satisfy the ingredients as required U/s 15 of the Maharashtra Rent Act and in view of such a defective notice, no decree for eviction can be passed on the ground of default. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of "Sitaram Narayan Shinde and others Vs. Ibrahim Ismail Rais and others" reported in 2005 (2) Bom.C.R. 427.
10. Mr.Chandole, learned counsel further contends that the evidence on record is sufficient to imply that the tenant was ready and willing to pay the rent. In such circumstances, the decree for eviction could not have been passed. For the said purpose, the learned counsel relies on the judgment of the Division Bench of this Court in a case of "Sitaram Maruti Nagpure Vs. Fakirchand Purushottam Dhase" reported in 2008 (3) Mh.L.J. 610. The learned counsel further contends that the bonafide need or genuine need will have to be given its literal meaning, mere desire is not sufficient. In the present case, the landlord has many shops and it is not brought on record that the said premises, where he is running his business is not sufficient for carrying on his business. In such circumstances, no decree for eviction can
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