Bombay High Court
Bakul S/O Jagdish Rajput vs Wasudeo S/O Wadhumal Adwani And Another on 26 April, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
28-J-WP-6420-17 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.6420 OF 2017
Bakul s/o Jagdish Rajput
Age 35 years, Occupation: Business
R/o C/o UG1 and UG 2,
Jagat Tower, Amravati Road, Nagpur. ... Petitioner.
-vs-
1. Wasudeo s/o Wadhumal Adwani
Age 73 years,Occupation Retired Professor
2. Yashwant Wasudeo Adwani,
Age 41 years, Occupation Business
Both R/o 164, Ramdaspeth, Nagpur.
... Respondents.
Shri R. R. Srivastava, Advocate for petitioner.
Shri P. P. Kothari, Advocate for respondents.
CORAM : A. S. CHANDURKAR, J.
DATE : April 26, 2018.
Judgment :
The petitioner is the original defendant in the suit filed by the respondents for eviction filed under provisions of Section 15 and 16(1)(g) of the Maharashtra Rent Control Act, 1999 (for short, the said Act) is aggrieved by the decree for eviction as passed by the trial Court and upheld by the first appellate Court.
2. The facts in brief are that it is the case of the respondents that ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 2/12 they are the owners of two shops which the petitioner had taken on lease on 10/10/2005. The said lease was initially for a period of eleven months and Rs.20,000/- was payable as the amount of lease every month. After expiry of the period of eleven months, a fresh agreement dated 04/09/2006 was executed again for further eleven months. The rent payable was Rs.21,000/- per month. Thereafter on 04/10/2007 a fresh lease agreement for a period of three years came to be executed. The rent payable for the first year was Rs.25,000/- per month. For the second year it was Rs.27,000/- per month and for the third year it was Rs.30,000/- per month. According to the respondents on the expiry of the lease period which was 15/10/2010 the petitioner failed to vacate the premises in question. The petitioner was also in arrears of rent for the period from 15/10/2010 to 15/03/2011. As the respondents had bonafide need of the suit premises especially for expanding their business, letters dated 08/01/2011 and 22/03/2011 were issued to the petitioner. Thereafter the aforesaid suit for eviction came to be filed.
3. In the written statement the case as pleaded was denied. According to the petitioner the respondents did not have any bonafide need of the suit premises. The petitioner had invested substantial amounts for the purpose of utilizing the tenanted premises for commercial use. The fact that the lease was renewed from time to time indicated that the respondents did not have any bonafide need of the premises and only with a view to recover a ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 3/12 higher amount of rent, the petitioner was asked to vacate the premises. The petitioner was not agreeable to increase the amount of rent from Rs.30,000/- to Rs.40,000/- per month. It was thus submitted that in absence of any bonafide need or that the petitioner was in arrears of rent, the suit was liable to be dismissed.
4. Before the trial Court the plaintiffs examined the plaintiff no.2 and another witness. The petitioner examined himself. The trial Court recorded a finding that the petitioner was in arrears of rent and that the respondents had bonafide need of the suit premises. Greater hardship was likely to be caused to the respondents if the decree for eviction was not passed. On that count the suit was decreed on 06/07/2015.
5. The petitioner challenged the aforesaid decree by filing an appeal under Section 34 of the said Act. During pendency of the appeal the petitioner also filed an application seeking permission to adduce additional evidence. The appellate Court on 19/10/2016 rejected that application. Said order was challenged in W.P.No.6770/2016. By order dated 02/03/2017 the counsel for the petitioner sought permission to withdraw the writ petition with liberty to raise the challenge at appropriate stage. The writ petition was disposed of as withdrawn. The appellate Court by its judgment dated 19/08/2017 dismissed the appeal and confirmed the decree ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 4/12 for possession. Being aggrieved the petitioner has challenged the said decree.
6. The learned counsel for the petitioner submitted that the need of the respondents was not bonafide. He referred to the annual lease agreements on the basis of which the suit property was leased out. While executing fresh agreements the amount of monthly lease was increased every year. The last lease agreement was dated 04/10/2007 and it was for a period of three years. According to him the parties had exchanged draft lease agreements even for the subsequent period and the respondents had demanded sum of Rs.40,000/- per month as rent. There was exchange of communication between the parties and in that regard reference was made to the letters dated 23/12/2010, 08/01/2011, 22/03/2011 and 23/04/2011. According to the learned counsel from these letters it was clear that the respondents were demanding higher rent and as the petitioner did not accept that increase, his eviction has been sought. It was then submitted that the respondents were having their independent business and the ground put forth of increasing business did not warrant acceptance. The petitioner having spent substantial amount on improving the suit shops he was not liable to be evicted from the same. Greater hardship was likely to be caused to the petitioner since he was running his business from the year 2005 at the suit premises.
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As regards the ground of arrears of rent, it was submitted that the petitioner was not liable to be evicted on that ground. The rent had been paid regularly and it was accepted by the respondents on every occasion without any protest. Both the Courts committed an error in holding that the petitioner was in arrears of rent. It was then submitted that the application for permission to lead additional evidence was wrongfully rejected by the appellate Court. The explanation furnished by the petitioner for not producing that evidence earlier had been mentioned in the application at Exhibit-12 and the appellate court ought to have accepted that explanation. If the said evidence is considered it would be clear that the plaintiffs did not have any bonafide need of the suit premises. It was thus submitted that the decree for eviction as well as the order passed below Exhibit-12 was liable to be set aside.
7. The learned counsel for the respondents on the other hand supported the impugned judgment. He submitted that both the Courts had recorded concurrent findings that the respondents had bonafide need of the suit premises, greater hardship was likely to be caused to the respondents and that the petitioner was in arrears of rent. In writ jurisdiction there was no scope to interfere. He submitted that merely because there was exchange of communications between the parties with regard to the lease amount, same would not mean that the respondents did not need the suit premises for ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 6/12 expanding their business. There was no extension of lease after the year 2010 and therefore on the basis of letters exchanged it could not be said that the need was bonafide. He then submitted that there was non-compliance with the provisions of Section 15 (3) of the said Act and hence the petitioner was not entitled for any relief from forfeiture of the tenancy. He submitted that by failing to deposit the monthly rent, the defence of the petitioner had been struck off and the respondents were required to make a grievance that the petitioner was in arrears of rent as a result of which he was directed to deposit the arrears. Placing reliance on the judgment of the Full Bench in Babulal Fakirchand Agrawal vs. Surersh Kedarnath Malpani and ors. 2017 (4) Mh.L.J 406 it was submitted that during pendency of the proceedings the compliance with the provisions of Section 15(3) of the said Act was necessary. There was failure on the part of the petitioner to comply with the same and therefore the petitioner was liable to be evicted. No liberty had been granted to the petitioner to again challenge the order passed on the application for leading additional evidence.
8. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions.
9. As regards the prayer for eviction on the ground that the petitioner was in arrears of rent, it has been found by both the Courts that ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 7/12 the petitioner failed to comply with the provisions of Section 15 of the said Act. The trial Court has recorded a finding that the service of a proper demand notice as required by Section 15(2) of the said Act has not been duly proved. The letter at Exhibit-46 has not been accepted as a demand notice. Even then, as held by the Division Bench in Chandiram Ahuja and as affirmed by the Full Bench in Babulal Fakirchand Agrawal [supra], a tenant who does not comply with the provisions of Section 15 (1) of the said Act can be evicted even if he is not in arrears of rent on the date of filing of the suit. It has been found that after filing of the suit the petitioner did not deposit regular rent. The respondents were required to file an application below Exhibit-16 in that regard and it is only thereafter that the petitioner deposited the arrears of rent. It was found that the petitioner was not ready and willing to pay rent during pendency of the proceedings and therefore he had forfeited his right under Section 15(1) of the said Act. It is to be noted that during pendency of the suit the respondents filed an application below Exhibit-63 for striking off the defence of the petitioner on the ground that despite being so directed, the arrears of rent had not been deposited. This application was filed on 18/07/2014 as there was non-compliance with the order passed below Exhibit-28 on 18/03/2013. The trial Court decided that application on 05/08/2014 after noting that despite an order to deposit a sum of Rs.4,50,000/- towards arrears of rent only a part thereof was deposited. Though the said application was rejected, a finding was recorded ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 8/12 that there was delay on the part of the petitioner in depositing the rent regularly. In this regard reference can be made to the judgment of the Full Bench in Babulal F. Agrawal (supra) wherein it has been held that during pendency of the proceedings it is incumbent upon the tenant to pay rent regularly and failure to do so would result in eviction on that count. It has further been held that to claim such protection from eviction the readiness and willingness to pay the rent should be demonstrated. Even before this Court on 16/02/2018 the petitioner was called upon to deposit an amount of Rs.4,00,000/- towards arrears of rent and its only thereafter that such deposit came to be made.
10. From the aforesaid the conduct of the petitioner of not being regular in paying the rent and remaining in arrears has been found by both the Courts. The conduct of the petitioner indicates that it is only when ordered by the Court that he deposited arrears of rent. In such situation I do not find the petitioner is entitled for any protection from eviction on account of non-compliance with the provisions of Section 15 of the said Act. That finding therefore does not require to be interfered with.
11. As regards bonafide need of the respondents, according to the petitioner the exchange of draft lease agreements between the parties even after 2010 indicated that it was only the intention of the respondents to ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 9/12 receive a higher amount of rent and there was no bonafide need of the suit premises. In that regard if the evidence of the parties is perused, the suggestion in that regard has been denied by the respondents. The petitioner in his cross-examination admitted that he had not produced any document to show that the respondents had demanded rent of Rs.40,000/- per month. The petitioner during pendency of the appeal filed an application under provisions of Order XLI Rule 27 of the Code for leading additional evidence. The documents sought to be placed on record were the agreements said to be exchanged between the parties for extending the period of lease. This application was rejected by the appellate Court and the writ petition filed by the petitioner challenging that order came to be withdrawn. If the evidence with regard to bonafide need of the respondents is considered, it could be seen that the respondents were doing cloth business and their shop was situated in a rented premises. Except that place of business the respondents did not have any other place of business. In his cross-examination the respondent No.2 stated that the respondent No.1 used to look after the sale of cloth while the respondent No.2 use to look after the management of the business. The petitioner in his cross-examination stated that he and his wife were looking after the saloon. It was denied that the petitioner and his family had shifted to Mumbai after selling his property at Nagpur.
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12. On consideration of this evidence, the trial Court found that the respondents had bonafide need of the suit premises for setting up their business especially when they were conducting their business from a rented premises. This finding has been confirmed by the appellate Court and it cannot be said that the appreciation of evidence in that regard is perverse. Merely because it is stated that there was exchange of draft between the parties for renewal of the lease agreement, same would be be a ground for holding that the need of the respondents was not bonafide.
13. As regards greater hardship, the same has been found to be greater in the case of the respondents. It was found that the petitioner admitted that he was operating two business ventures and therefore his eviction would not result in hardship. On the contrary it was the respondents who were running their business from a rented premises. This finding has been confirmed by the appellate Court and I do not find any justifiable reason to interfere with that finding. Both the Courts while coming to the conclusion that the need of the respondents was bonafide have rightly found that greater hardship would be caused to them if the decree was not passed.
14. As regards the order passed on the application for leading additional evidence is concerned, it is found that nothing much would turn ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 11/12 on that piece of evidence. On the request made on behalf of the petitioner, that application at Exh.12 was taken up for consideration before the appeal could be heard. Documents such as draft lease agreements, documents pertaining to repairs and renovation etc., were sought to be brought on record. On perusal of those documents, I find that the order passed by the appellate Court below Exh.12 is legally correct. It having been found that the respondents were conducting their business from a rented premises, the same was sufficient to justify the bonafide need of the respondents. Though it is true that the order challenging the rejection of that application was challenged in W.P. No.6770 of 2016 and liberty was sought to raise a challenge at a appropriate stage, there is no express liberty granted in that regard. Nevertheless such challenge as raised has been considered. I do not find that the appellate Court committed any error in not permitting the petitioner to lead additional evidence as sought.
15. It is thus found that both the Courts were legally justified in upholding the claim of the respondents for eviction from the suit premises. In the light of concurrent findings recorded and there being no jurisdictional error there is no case to interfere in writ jurisdiction. The Writ Petition therefore stands dismissed with no order as to costs. The petitioner is however granted time of three months to vacate the suit premises.
The respondents are permitted to withdraw the amount of Rs.4 ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 ::: 28-J-WP-6420-17 12/12 lakhs that was deposited by the petitioner pursuant to the order dated 16/02/2018.
JUDGE Asmita ::: Uploaded on - 08/05/2018 ::: Downloaded on - 09/05/2018 00:07:36 :::