Eviction under rent control law is warranted where the tenant defaults on rent for over six months, negating hardship claims absent a bona-fide requirement.

JUDGMENT :

M.M. Sathaye, J.

1. By this petition under Articles 226 & 227 of the Constitution of India, the Petitioner is challenging the judgment and decree dated 06.02.2012 passed in Appeal No.13 of 2010 by the Appellate Bench of the Small Causes Court at Bandra, Mumbai. By the impugned judgment, the appeal filed by the Petitioner is dismissed, thereby confirming decree of eviction passed against him dated 30.11.2009 passed by the Court Small Causes at Mumbai in R.A.E. & R. Suit No.5444 of 1985.

2. The petition is arising out of provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as it existed prior to 1987 amendment (‘Bombay Rent Act’, for short). Present petitioners are legal heirs of original Defendant (Shri. Madhukar Bapu Gurav) and the Respondents are original Plaintiffs. The said suit was filed for recovery of possession and arrears of rent in respect of suit premises which are double room having area of 14’-3” x 10’-5” and 9’ x 11’-3”, along with open verandah converted into a room and constructed bathroom in Sharma Juni Chawl, Sharma Industrial Estate, Walbhat Road, Goregaon (E), Mumbai – 400 063. The suit was filed on the ground of default (arrears of rent), breach of provisions of section 108(o) of the Transfer of Property Act, 1882 (‘TP Act’, for short) and erection of permanent structure without consent of the landlord i.e. under sections 12, 13(1)(a), 13(1)(b) of the Bombay Rent Act. The landlord contended inter alia that the rent of suit premises at the relevant time was @ Rs.20/- per month and the Defendant tenant was in arrears of rent for more than 6 months. Suit notice dated 02.08.1985 was issued demanding arrears from 01.12.1983 to 31.07.1985, amounting to Rs.400/-. Since the Defendant failed to comply with the demand of arrears, the said suit was instituted. The landlord contended that the Defendant has encroached upon a passage in front of suit premises and converted the same into a room and has carried out alteration of permanent nature without consent of the landlord which is in contravention of provisions of Section 108(o) of the TP Act.

3. The Defendant filed written statement contending inter alia that he is not in arrears. The service of suit notice is admitted. It is contended that he has replied the suit notice by sending notice reply dated 20.08.1985 along with a cheque of Rs.400/- dated 19.08.1985. The other allegations in the plaint are also denied.

4. The learned Trial Judge, after hearing both sides and on appreciation of evidence decreed the suit directing the Defendant to hand over vacant a peaceful possession of the suit premises, on the ground of arrears of rent/default as contemplated under Section 12(3)(a) of the Bombay Rent Act. The other grounds were held against the landlord.

5. Original Defendant filed aforesaid appeal and challenged the decree of eviction. The Appeal Court after considering the submissions, confirmed the decree of eviction only on the ground of arrears/default. It is in these circumstances that the original Defendant filed present writ petition challenging concurrent finding of fact in this Court. During pendency of the petition, the Petitioner expired and his legal heirs are brought on record, who are currently prosecuting the petition. The writ petition was admitted on 19.10.2012 and ad-interim stay to the eviction decree was granted.

SUBMISSIONS

6. Learned counsel Mr. Pandey appearing for the Petitioners submitted that the suit notice itself is illegal, in as much as, the Defendant had paid rent during the period of demand. He submitted that alo