Bombay High Court
Shri. Ashfaque Shaikh Abdul Rehman ... vs M/S Ramkrishna Resort Pvt. Ltd. Mumbai. ... on 9 May, 2024
2024:BHC-AS:22492
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4285 OF 2012
WITH
INTERIM APPLICATION ST.NO.2828 OF 2024
IN
WRIT PETITION NO.4285 OF 2012
WITH
SECOND APPEAL ST.NO.36733/2018
WITH
CIVIL APPLICATION ST.NO.36735/2018
WITH
CIVIL APPLICATION NO.1257/2019
IN
SECOND APPEAL ST.NO.36733/2018
Ashfaque Shaikh Abdul Rehman
since deceased through his legal heirs
1(a) Azra Ashfaq Shaikh
Age 57 years, Occ. Housewife,
R/at. E-602, Hillmist Garden,
NIBM Road, Pune - 411048
1(b) Labib Ashfaq Shaikh
Age 32 years, Occ. Business
R/at : E-602, Hillmist Garden,
NIBM Road, Pune - 411048
1(c) Nazima Ashtaq Shaikh
Age 39 years, Occ. Business
R/at : A-46, Hillmist Garden,
NIBM Road, Pune - 411048 ...Petitioners
1
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....Versus....
1. M/s.Ramkrishna Resorts Pvt. Ltd.
A company incorporated under the
Companies Act, 1956, having its office at
148 Nehru Road, Vile Parle (East),
Mumbai, through its Director Shri
Somnath Shetty, Age 42 years, Occ.
Business, R/at: 6 Moledina Road, Pune.
2. Shri Behram A. Irani,
since deceased through legal heirs:
2a. Smt. Amita Behram Irani
Age 53 years, Occ. Household,
R/at : A-1, 403, Ganga Smruddhi,
Opp. Shivarkar Road, Wanawadi, Pune
2b. Miss Yasmin Behram Irani
Age 25 years, Occ. Service
R/at : A-1, 403, Ganga Smruddhi,
Opp. Shivarkar Road, Wanawadi, Pune
2c. Miss Kashmira Behram Irani
Age 21 years, Occ. Service,
R/at : A-1, 403, Ganga Smruddhi,
Opp. Shivarkar Road, Wanawadi, Pune
3. Shri Ateeque Ansari
Age 45 years, Occ. Business
R/at : Twin Tower, Flat No.3,
S. No.77/29, Wanawadi, Pune. ...Respondents
Dr.Uday P. Warunjikar with Mr.Siddhesh Pilankar for the
Petitioners / Applicants in the above matters.
Mr.P.S. Dani, Senior Advocate with Mr.Nachiket Khaladkar for
respondent no.1 in the above matters.
2
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CORAM : RAJESH S. PATIL, J.
RESERVED ON : 4 MARCH 2024.
PRONOUNCED ON : 9 MAY 2024.
JUDGMENT :
WRIT PETITION NO.4285 OF 2012 "This writ petition is pending for "admission", for last 14 years in this Court."
1. Writ Petition is filed under Article 227 of the Constitution of India by the Original Defendant No.1, challenging the concurrent findings of eviction recorded by the Trial Court and the Appellate Court.
FACTS
2. Respondent No.1 herein is the Original Plaintiff, who had filed a suit for eviction under the provisions of Maharashtra Rent Control Act against the Petitioner and Respondent Nos.2 and 3, on the grounds of "non-user", " bona-fide requirement", "nuisance", "sub-letting" and "unauthorized additions and alterations" in the premises.
3. Parties are hereinafter referred to as per their 3 vai 10.wp4285-12g.doc nomenclature before the trial Court.
4. After filing of the suit, Defendant No.1 (the Petitioner herein) filed his written statement on 5 September 2006 and additional written statement on 12 April 2007. Defendant No.2 filed his separate written statement on 23 September 2002, and additional written statement on 18 January 2005.
5. After the written statements were filed by the Defendants, Issues were framed by the Trial Court. The Plaintiff examined two witnesses. PW-1, one Mr.Somnath Shetty, who was the Director of the Plaintiff Company was examined to prove all grounds of eviction. So also PW-2, one Maruti Bhimaji Sabale, being the Sectional Engineer of Pune Cantonment Board was examined to prove the ground of "unauthorized additions and alterations". Both the witnesses of the Plaintiff were cross- examined by the advocate appearing for the Defendants. The Defendants examined two witnesses. Defendant No.1 was examined as DW-1 and one Labib Ashfaq Shaikh was examined as DW - 2. Both the witnesses of the Defendants were cross- examined by the Plaintiffs' advocate. After the evidence of both 4 vai 10.wp4285-12g.doc the parties was completed, the matter was argued by the counsel appearing for both the sides.
6. By judgment and order dated 19 December 2007, the Trial Court decreed the suit on all five grounds viz. "bona-fide requirement" "non-user", "nuisance", "sub-letting" and "unauthorized additions and alterations".
7. Being dis-satisfied with the passing of the judgment and decree by the Trial Court, only Original Defendant No.1 filed Regular Civil Appeal No.178 of 2008, before the District Judge at Pune. Rest of the Defendants did not file any Appeal challenging the judgment and decree dated 19 December 2007 passed by the Trial Court. By its judgment and decree dated 30 August 2011, the District Judge, Pune dismissed the Appeal filed by the Original Defendant No.1, thereby confirming four grounds of eviction viz. "bona-fide requirement", "nuisance", "sub-letting"
and "unauthorized additions and alterations".
8. Aggrieved by the concurrent findings of eviction on four grounds viz. "bona-fide requirement", "nuisance", "sub-letting"
and "unauthorized additions and alterations", the present Writ 5 vai 10.wp4285-12g.doc Petition is filed by the Original Defendant No.1. The present Writ Petition is pending for admission from the year 2012.
Submissions of the Parties :
9. Dr.Warunjikar, counsel appearing for the Petitioner- Original Defenant No.1, made his submissions on behalf of the Petitioner / Original Defendant No.1.
(i). He submitted that as regards the grounds of "unauthorized additions and alterations", two Second Appeals are pending before this Court, which arise out of the proceedings of issuance of notices by Pune Cantonment Board. Dr.Warunjikar submits that the Original Defendant No.1 were served with two separate notices issued by the Pune Cantonment Board, alleging therein that there were unauthorised additions and alterations in the suit premises without the permission of the Pune Cantonment Board. The recipient of the notices, Defendant No.1 challenged the notices by way of filing two suits before the Civil Judge (Junior Division). The Civil Judge (Junior Division) allowed both the suits of the Petitioners. However the first appellate Court reversed the findings, hence two separate Second 6 vai 10.wp4285-12g.doc Appeals are filed before this Court being Second Appeal Nos.542 of 2004 and 543 of 2004. Both the Second Appeals have been admitted and there has been stay to the execution of the impugned judgment and decree passed by the Appellate Court.
Therefore, Dr.Warunjikar submitted that till the hearing and disposal of both the Second Appeals, the present proceedings should be stayed. He referred to the NOC dated 20 November 1984, issued by erstwhile landlord, permitted to carry out constructions.
(ii). He submitted that as regards the ground of "nuisance" in the plaint only one paragraph i.e. paragraph 23, such a ground "nuisance" is tried to be made out. Dr.Warunjikar submitted that the said submissions made in paragraph 23 will not be enough to grant a decree against the Defendant on the ground of "nuisance". Further the evidence of PW-1 is ditto copy of the submissions made in paragraph 23 of the plaint. Dr.Warunjikar further submitted that in the cross-examination of PW-1, he has specifically admitted that PW-1 was aware prior to purchase of the property that the Defendant No.1 was running 7 vai 10.wp4285-12g.doc "Kabir Restaurant" and that the said "Kabir Restaurant" is specialized in non-vegetarian items. Therefore, there can't be eviction decree on the ground of "nuisance" when the subsequent purchaser is aware about conduct of business of non- vegetarian items in the tenanted premises.
(iii). He further submitted that the plain meaning of word "nuisance" would be an act done by the tenant which does not obstruct the others, would not amount to nuisance. He further submitted that what one has to see is the purpose for which the suit premises are meant to be used. He further submitted that "nuisance" cannot be to a prospective customers, as pleaded by the plaintiff. To buttress his submission Dr. Warunjikar referred to the judgment of Kashinath vs. Sudha Gopal, reported in 2001(1) Mh.L.J. 672. He relied upon Para No. 6 of the said judgment. He submitted that the "nuisance" has to be gross and unusual in character. According to him the "nuisance" as pleaded in the present proceedings were not at all gross and unusual in character.
(iv). He thereafter referred to the judgment of Gulam Mirza
8
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vs. Laxmidas Premji of Bombay High Court reported in 1984 Mh.L.J. 215. He harped upon Para Nos.6, 17, 18 and 19 of the said judgment. Dr. Warunjikar thereafter took me through the definition of Section 16 (1), (c). He submitted that, the "nuisance" has to be to the landlord or to the neighbors of the suit premises. He submitted that, it is not the case of the plaintiff that the "nuisance" is either to the landlord or to the neighboring occupiers of the suit premises. He submitted that a nuisance to a "prospective" customers will not fall within the definition of "nuisance" as contemplated under Section 16 (1) (c).
(v). He further submitted that, it will be the duty of the plaintiff to show that first there was a nuisance, which was to the landlord or to the neighbors. Secondly, it has to be shown that a nuisance to the customer of the landlord can also be considered as a nuisance to the landlord. Thirdly he said, even if it is presumed that a nuisance to a customer of the landlord would fall under the definition of nuisance to the landlord, then the question would be whether a prospective customer of the landlord will fall under the definition of nuisance. Fourthly, he 9 vai 10.wp4285-12g.doc submitted that, presuming that even a prospective customer of the landlord falls under the definition of 'nuisance', still then one has to see whether in the present proceedings, any kind of evidence has been led to that effect by the plaintiff/landlord to show that the nuisance is proved by the landlord.
(vi). He further submitted that in the present proceedings, the landlord was well aware, before purchasing the suit premises from the erstwhile owner, that the Defendant is in the compound of the suit premises and that the Defendant is running a Restaurant which is known for its non-vegetarian food. He submitted that as per the evidence led before the lower court, it is an admission on the part of the plaintiff that at least on 10 occasions before purchasing the suit property, the landlord/plaintiff had visited to the suit premises.
(vii). He submitted that as regards the ground of "sub- letting", only by inserting averments in the plaint, it is not enough for the Plaintiff to prove the ground of "sub-letting". Hence as the Plaintiff has not proved the ground of "sub-letting", a decree of eviction on the ground of "sub-letting" could not 10 vai 10.wp4285-12g.doc have been passed by the Trial Court and by the Appellate Court.
(viii) He submitted that as far as ground of ' subletting' is concerned, the plaintiff has pleaded in paragraph no.21A about the ground of 'subletting'. In the said paragraph, plaintiff has stated that the defendant Nos.1 and 2 have subletted a part of the portion of the suit premises to one Atik Ansari, and are profiteering by subletting the part of the suit premises. Dr.Warunjikar submitted that the said Atik Ansari is made a party defendant no.3, however Atik Ansari did not contest the suit, though served with the summons. Only defendant no.1 and defendant no.2 had filed written statement in the Lower Court proceedings.
(ix) He submitted that in the written statement, defendant no.1 has specifically stated that the said Atik Ansari was conducting business under the name of Sampan Food Court. However, the said Atik Ansari was not into an exclusive possession of the suit premises. Dr.Warunjikar submitted that the test to be applied is that of whether there is an exclusive possession given to the person to whom there is an allegation in 11 vai 10.wp4285-12g.doc the plaint of subletting. He further submitted that there is no evidence as regards the subletting. Only in the affidavit of evidence whatever is stated in the plaint, paragraph no.21A has been repeated, and a few submissions made by the defendant no.1 in the written statement as regards paragraph no.21A of the plaint have been copied in the affidavit of evidence. Therefore, as there was no specific examination-in-chief, the defendants' advocate in the Trial Court did not cross-examine plaintiff's on the issue of 'subletting' as there was no material on record.
(x) He submitted that as there was no evidence, the plaintiff has not passed on the burden to the defendant. He submitted that the initial burden to prove subletting was on landlord.
(xi). He submitted that as regards eviction decree on the ground of "non-user", even though the Trial Court had granted a decree on the ground of "non-user", the Appellate Court had reversed the decree on the ground of "non-user".
(xii) Dr.Warunjikar to buttress his submissions, relied upon three judgments of the Supreme Court.
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(i) Associated Hotels Of India Ltd., Delhi vs S. B. Sardar
Ranjit Singh reported in AIR 1968 SC page no.933
(ii) Celina Coelho Pereira & Ors vs Ulhas Mahabaleshwar Kholkar & Ors. reported in (2010) 1 SCC page 217.
(iii) A. Mahalakshmi vs. Bala Venkatram (dead) through legal representative and anr. reported in (2020) 2 SCC page 531.
10. Mr.Prasad Dani, learned Senior Counsel appeared on behalf of the Respondent / Landlord and made his submissions :-
(i) Mr.Dani submitted that the eviction decree is passed against the Petitioner / Tenant on four grounds as enumerated in the Maharashtra Rent Control Act. The Trial Court and the Appellate Court have passed a concurrent finding on the four grounds viz. (a) permanent additions and alterations; (b) nuisance; (c) sub-letting; and (d) bona-fide requirement.
(ii) Mr.Dani submitted that the first ground is that of "permanent additions and alterations".
(iii) Mr.Dani submitted that in the plaint, a specific ground is taken about permanent additions and alterations made by the Tenant. He submitted that in the plaint itself the suit property is described in paragraph no. 1 in three parts, (part-a) is a kitchen block, (part-b) is restaurant block and (part- c) is the open space 13 vai 10.wp4285-12g.doc in front of the restaurant. Mr.Dani submitted that property as mentioned in para nos.1(a), 1 (b) and 1 (c) is totally different than the suit premises as mentioned in the second suit from which a Second Appeal is filed by the petitioner/Tenant in this Court. He submitted that the submissions of Mr.Warunjikar that the property as mentioned in para 1 (c) was deleted and after deletion a separate suit was filed as regards possession of the property which was deleted from paragraph 1 (c) of the Rent Act suit and a separate second suit was filed.
(iv) Mr.Dani submitted that the suit property mentioned in paragraph 1 (c) and the suit premises mentioned in the second suit are totally different. Mr.Dani submitted that the suit property as mention in paragraphs 1(a), 1(b) and 1(c) in the Rent Suit, a rent receipt is issued together for all the three properties. He submitted that the rent receipt for the said property as mentioned in the rent suit as paragraphs 1 (a), 1(b) and 1 (c) is from the year 1979. He submitted that as far as the second suit is concerned there is a separate rent receipt which is issued from the year 1983.14
vai 10.wp4285-12g.doc (v). Mr.Dani thereafter referred and took me through the
Commissioner's Report dated 6 December 2006. Mr.Dani more specifically referred to paragraph no.6 of the Court Commissioner's Report which clearly describes the property as mentioned in paragraph 1(c) of the plaint as an open space on which a construction is made and the said property has been merged with the property as mentioned in paragraph 1(b) of the plaint. Mr.Dani also referred and took me through the written statement filed by the Petitioner. Mr.Dani stated that there is a specific mention about the area as described in paragraph 1(b) of the plaint. Mr.Dani also referred and took me through the written statement filled by the Petitioner. Mr.Dani stated that there is a specific mention about the area as described in paragraph 1 (b) of the plaint with the same admeasuring as 1234.94 sq.ft. and as regards Annexure C, the area admeasuring 1158. 17 sq. ft. He submitted that in the written statement it has been specifically mentioned by the Petitioner (Defendant) that the area is 2500 sq. ft. Mr.Dani therefore, submits that this itself proves that the Defendant himself has agreed that there is an 15 vai 10.wp4285-12g.doc addition and alteration made by the Defendant. Mr.Dani further referred that it is the case of the Defendant that there is an NOC dated 20 November 1984 referred by the Defendant, which according to the Defendant was issued by the earlier Landlord to the Defendant, thereby allegedly granting permission to make additions and alterations. Mr.Dani submitted that he has an objection about the NOC dated 20 November 1984 since only a photocopy of the said alleged NOC dated 20 November 1984 was produced on record. He further submitted that the original of such NOC was not even produced, neither any statement was made as to who is in possession of the said NOC dated 20 November 1984 which according to the Defendant was addressed to the Defendant. He further submitted that in the year 1984 Rivaz Restaurant was not in existence, therefore, an NOC from the earlier Plaintiff could have never been issued.
Mr.Dani further submitted that there was no cross-examination conducted of the Plaintiff on the issue of granting of permission for additions and alterations. He further submitted that the witness examined by the Defendant in his cross-examination 16 vai 10.wp4285-12g.doc could not throw much light on the said issue about granting of the permission. Mr.Dani further submitted that since no evidence was led on the issue about granting of permission by the earlier Plaintiff, the Trial Court and the Appellate Court had come to a finding that the alleged NOC dated 20 November 1984 was a forged document. Mr.Dani further submitted that the author of the NOC dated 20 November 1984, one Mr.Rajappa was not examined by the Defendant. Mr.Dani submitted that there was no dispute that the construction was made on the suit premises and since the Tenant/Defendant could not lead evidence on the issue of permission being granted by the landlord the ground of additions and alterations is proved.
(vi) Mr.Dani further submitted that as regards the ground of 'permanent additions and alterations', Section 16(b) of the Maharashtra Rent Control Act mentions this ground and according to this ground two things are to be seen in the Section i.e. what is required; is the landlord consent in writing and secondly erection of premises. Mr.Dani submitted that there is no dispute in the present proceedings that erection of the premises 17 vai 10.wp4285-12g.doc was made. However the Tenant (Defendant) could not prove that the landlord had granted consent in writing.
(vii) Mr.Dani further submitted that planning authorities permission may not prove to be vital. Mr.Dani submitted that the planning authorities permission would mean the structure is legal, however to succeed in a ground of permanent additions and alterations, the permission granted by the planning authority will not make any difference to grant a decree on the ground permanent additions and alterations.
(viii) Mr.Dani referred to two Supreme Court Judgments to buttress his argument on the ground of permanent additions and alterations.
a) Purushottam Das Bangur V/s. Dayanand Gupta, reported in AIR 2016 SCC 465.
b) Najama Gulab Bagvan V/s. Laxmibai Rangindas Gujar , reported in 2006 (1) MhLJ 273 the Judgment of Bombay High Court.
(ix) Mr.Dani thereafter made his submission on the ground of 'nuisance'.
(x) Mr.Dani referred to Paragraph No.23 of the plaint wherein there is specific averment as regard annoyance and 18 vai 10.wp4285-12g.doc nuisance. Mr. Dani took me through Section 16(1)(c) of the Maharashtra Rent Control Act. Mr. Dani submitted that there is slight different in the ground of 'annoyance' and 'nuisance' as enumerated in Section 13(1)(c) of Bombay Rent Act and the new Maharashtra Rent Control Act. Mr. Dani submitted that Section 16(1)(c) of the Maharashtra Rent Control Act, there is additions of words in the beginning of the Section which are agent, family members, workers. Mr. Dani submitted that since in earlier Bombay Rent Act and in the present Maharashtra Rent Act, the difference was about only residential, in the earlier Bombay Rent Act and in the new Maharashtra Rent Act even commercial was included. Mr. Dani submitted that even though in the earlier Section of the old Act the word residence was mentioned however to remove ambiguity the Supreme Court in its Judgment has clarified. Mr.Dani submitted that in the present act that ambiguity is not there since the additions of word in the new Act proves that even commercial premises are included.
(xi) He thereafter referred to the cross-examination of the defendant No.1. Mr.Dani submitted that it can be seen from the 19 vai 10.wp4285-12g.doc cross-examination that there is a clear case of ' annoyance' and 'nuisance'. Mr.Dani submitted that in the present case the annoyance as far this section is concerned, it is Section 16(1)(c). Mr.Dani submitted that the annoyance and nuisance in the present case is to the landlord since the landlord is running a veg restaurant next to the suit premises. Mr.Dani submitted that the landlord is running a vegetarian restaurant, whereas the defendant is running a non-vegetarian restaurant. Mr.Dani submitted that the defendant by changing the position of his kitchen has caused a greater nuisance and annoyance to the landlord/plaintiff. Mr.Dani submitted that the smell of the cooking of non-veg food is of a great nuisance and annoyance to the landlord (plaintiff). He submitted that the customers who visit to the restaurant of the landlord are not able to handle the Odour of the non-veg food, which is cooked in the restaurant of the defendant.
(xii) He thereafter took me to the definition of 'nuisance' as defined in the dictionary meaning. Mr.Dani thereafter took me to the definition of 'nuisance' under the Mumbai Municipal 20 vai 10.wp4285-12g.doc Corporation Act.
(xiii) He thereafter referred to the Judgment of Bombay High Court in Gulam Hussen Mirza V/s. Laxmidas Premji, reported in 1984 Mh.LJ 215.
(xiv) He submitted that in the present case the annoyance is not only to a individual but the annoyance is to a lot of people. Mr.Dani submitted that even though the plaintiff/landlord was aware at the time of purchase of the suit premises that there is already an existing tenant who has a hotel in the part of the premises which is a non-vegetarian hotel. Mr. Dani submitted that what has to be seen is who has a superior right. In the present proceedings the plaintiff is the owner and landlord of the suit premises along with the other premises adjacent to the suit premises. He therefore submitted that it does not make a difference if the landlord is aware that there is a sitting tenant in a part of the premises, who is in the business of restaurant where non-vegetarian food is supplied.
(xv) He submitted that the nuisance has to be seen not to an individual but also qua the premises. Therefore, he submits 21 vai 10.wp4285-12g.doc that it does not make a difference if nuisance is caused to customers.
(xvi) He also referred to the Judgment of Nagpur Bench of this Court which is delivered under Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. The said Judgment of the Nagpur Bench of this Hon'ble Court is in the matter of Sushilaben Raut V/s. Navneet Lakhotia, reported in 2004 (4) Mh.LJ 372. Mr.Dani further submitted that under the C.P. Act there is a definition of nuisance followed by an explanation.
(xvii) Mr.Dani submitted that what has to be seen in annoyance and nuisance has to be seen as to an ordinary man, society and reasonableness.
(xviii) Mr.Dani also referred to the Judgment of the Supreme Court in the case of Rafatali V/s. Sugnibai And Others, reported in 1999 (1) SCC 133. Mr Dani submitted that there was no cross- examination on the ground of nuisance by the defendant when the plaintiff witness entered the witness box. Mr.Dani submitted that there was a need for the defendant to prove that there was 22 vai 10.wp4285-12g.doc no nuisance and annoyance. He submitted that the defendant failed to prove that there was no nuisance and annoyance on their part. Therefore, Mr.Dani submitted that the ground of 'nuisance' was duly proved by the plaintiff by leading evidence and making a proper averments in the plaint. (xix) Mr.Dani submitted that the said fact is proved as Defendant Nos.1 and 2 had 'sub-let' part of the premises to Defendant No.3. He submitted that the Defendant No.3 was served with the writ of summons at the suit address. Defendant No.3 did not file his written statement nor did he enter in the witness box, though served with the suit summons. However, Defendant No.2 applied to the Trial Court for recall of the order of ex-parte decree passed against him. However, the said application preferred by Defendant No.3 was rejected. Since the said order of rejection was not challenged further in Appeal, the said order attained finality.
(xx) He submitted that as regards 'sub-letting,' there was no cross-examination of the Plaintiff's witness No.1 by the Advocate appearing for the Defendants. Mr.Dani further submitted that in 23 vai 10.wp4285-12g.doc the written statement filed by Defendant Nos.1 and 2, there is no theory which comes forward that Defendant No.3 is the relative of Defendant Nos.1 and 2. Mr.Dani further submitted that the son of Plaintiff No.1 was examined as defence witness No.2. He submitted that the only purpose of examining the son of Defendant No.1 was to fill in the lacuna which had occurred due to the evidence which had come on record on behalf of Defendant's witness No.1. He submitted that the son of Defendant No.1 was attending the Court proceedings every day and the said fact has been observed by both the Courts in their impugned judgment and order. He further submitted that even today when this matter has been argued before this Court, and on every day the son of Defendant No.1, is the only person, who has attended the Court proceedings and has been instructing the lawyer of Defendant No.1 to attend the Court proceedings and to solve out the queries raised by them.
(xxi) He further referred to the evidence led by DW No.1 in the second suit. He submitted that it is clearly mentioned in the cross-examination in the second suit by the son of Defendant 24 vai 10.wp4285-12g.doc No.1 that "Sampan" Hotel has many more branches in the city of Pune and the said Hotels are owned by Defendant No.3-Atique Ansari.
(xxii) Mr.Dani to buttress his submission referred to the following judgments on ground of 'sub-letting':-
(a) Joginder Singh Sodhi vs. Amar Kaur,
reported in (2005) 1 SCC 31.
(b) The judgment of Bombay High Court in
Harakchand Hirji Shah vs. Vasudeo Wagheji Relan, reported in the year 2010 (3) Mh.L.J. 591.
(c) The judgment of the Supreme Court in Celino Coelho Pereira vs. Ulhas Mahabaleshwar Kholkar, reported in (2010) 1 SCC 217.
(xxiii) Mr.Dani thereafter made his submission on the ground of eviction of 'bona-fide requirement'.
(xxiv) He submitted that in the plaint, there is specific averment made by the Plaintiff on the ground of bona-fide requirement. He further submitted that the Plaintiff has entered the witness box and has repeated the submissions made by him in the plaint. He submitted that there is no cross-examination on the issue of bona-fide requirement on behalf of the Defendants. He further submitted that the Defendants did not lead evidence 25 vai 10.wp4285-12g.doc to bring on record any fact about reasonable and bona-fide requirement. He further submitted that both the Courts have held that the landlord had proved the ground of bona-fide requirement. So also hardship would be caused to the Plaintiff and then to the Defendants.
(xxv) To buttress his submission, Mr.Dani referred to the following judgments:-
(a) Indubai Govindrao Lad vs. Anjalibai Jitendrakumar Bafina, reported in 2004 (1) ALL MR 579.
(b) Raghunathji Panhale vs. Chhaganal Sudargi, reported in 1999 (8) SCC 1, and
(c) R.C. Tamrakar vs. Nidi Lekha, reported in (2001)8 SCC 531.
(xxvi) As regards hardship, Mr.Dani referred to the two judgments of Bombay High Court, the first one being:-
(a) Suhasini Atmaram Parab vs. B. H. Khatu, reported in 2002 (4) ALL MR 770 and
(b) The judgment in the case of Balwant P. Doshi vs. Shantaben Dhirajlal Shah, reported in 2003 (2) BCR 190.
(xxvii) Mr.Dani also referred to the judgment of Bombay High Court in Bhika Cullianji and Co. vs. Avon Electric Company, Bombay and others, reported in 1995 (1) BCR 377.26
vai 10.wp4285-12g.doc (xxviii) Mr.Dani submitted that in the said judgment, the Court has come to the conclusion that if no questions on defence of written statement is asked in cross-examination to Plaintiff's witness No.1,therefore, the suit has to be decreed.
(xxix) Mr.Dani therefore, submitted that the Courts have concurrently held that all the four grounds have been proved by the Plaintiff and the decree of eviction was passed.
(xxx) Therefore, Mr.Dani submitted that this Court in Writ jurisdiction should not entertain the present Writ Petition and Writ Petition should be dismissed with costs.
ANALYSIS AND CONCLUSION
11. Under, Maharashtra Rent Control Act, 1999, there are 15 grounds on which a landlord is entitled to recover possession of any premises if the Court is satisfied that a ground is made out. Even if a decree is passed only on one ground the tenant has to vacate the suit premises.
12. In the present proceeding, the trial Court and the Appellate Court have passed eviction decree on four grounds.
13. I have heard counsels for both the sides and with their 27 vai 10.wp4285-12g.doc assistance I have gone through the documents on record.
14. Recovery of possession on the ground of tenant erecting permanent structure without landlord's consent in writing.:- Section 16(1)(b) of the Maharashtra Rent Control Act:
14.1 It was the specific case of the landlord in the plaint that the tenant has without landlord's consent erected on the suit premises permanent structure.
14.2 In paragraph nos.10 and 12 of the plaint, the illegal permanent structures constructed by the defendants are mentioned, "10..... that in the year 1987 the Defendant had cut the fencing of the garden in front of the main bungalow and has encroached in it, i.e. the garden as mentioned above. That the Defendant has also demolished the compound wall in front of the suit property and has erected a permanent structure and has made an entrance for the customers from the front, i.e. from Moledina road. In this connection the Cantonment Board has issued a Show Cause Notice to the Defendant. The said notice is bearing No.6/Mo,.Rd dated 14/4/1987, a Xerox copy of the said notice is produced along with a separate list annexed hereto, the contents of the said notice are true and correct and the same be exhibited and read in evidence. That as per the said notice the Defendant has constructed.
I) a toilet block admeasuring 5ft x 5ft x 6 ft average height of BB masonry construction situated at south-east.
II) Provision of kitchen platform admeasuring 11ft x 3ft on the east of Rivaz hotel.
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III) Service platform with BB masonry construction
admeasuring 8.9ft x 3ft height with marble top. And the work is in progress."
"12. Taking undue advantage of the condition of the ownership of the said property the defendant continued to carry on the illegality and further carried out the following illegality:
I) Tin sheds admeasuring 32ft x 12ft + 7ft height with brick masonry wall and situated northeast corner of the main bungalow.
II) Shed admeasuring 38ft x 18ft +(12ft + 8ft/2 height with iron angles and grass material for roof, situated southeast corner of the main bungalow."
14.3 To prove the said point the plaintiff examined it's director and also an officer of Pune Cantonment Board. The director of the plaintiff put forward the case of the plaintiff- landlord about a tenant erecting a structure of permanent nature without landlord's permission. Though the said witness was cross-examined by the advocate appearing for the defendants, however, the evidence of the plaintiff was not shattered by the defendants' advocate. So also, the plaintiff examined the office of the Pune Cantonment Board, in order to put forward their case that even the Pune Cantonment Board had issued notices under Section 185 of the Cantonment Act to the defendants, on the ground of erection of structures without the permission of the 29 vai 10.wp4285-12g.doc planning authority. Though the defendants have come forward with the case that the notices issued by the Pune Cantonment Board have been challenged by them by way of filing a suit, and the said suit were decreed by the trial Court. 14.4 The fact remains that an appeal carried forward by the Cantonment Board to the decree passed by the trial Court was allowed, and it was held that the defendants had erected structures on the suit land without permission of the planning authority. The argument on behalf of the defendants that two second appeals are pending before this Court, according to me does not support the defendants' case that this Court has admitted the second appeal, therefore, it should be considered in favour of defendant. As those findings are recorded by the last finding Court i.e. the Appellate Court, holding against the defendants. These findings are subsisting as of today. 14.5 The Commissioner's report dated 6 December 2006, further helps the case of the plaintiff as it shows that there were erection of the structures on the suit land. In fact, the description of the properties in the written statement and in Annexure-'C' 30 vai 10.wp4285-12g.doc further weakens the case of the defendants. 14.6 The reference of NOC dated 20 November 1984 by the defendants, has been doubted by both the Courts, as being forged document. There is no explanation from the defendants as to who has custody of the original purported NOC dated 20 November 1984. Therefore, I am of the view that the findings recorded by both the Courts as regards NOC dated 20 November 1984 being a forged document is a correct finding. 14.7 Section 16(1)(b) of the Maharashtra Rent Control Act reads thus:-
"that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure;"
Section 16(1)(b) mentions about two things, (1) that landlord has to grant consent in writing; and (2) erection of permanent structure on the premises. Therefore, all that landlord has to show is that the structure is erected on the premises is of permanent nature, and he has to specifically mentioned in the plaint and in the evidence that he has not granted any writing permission, for erection of any structure to the tenant. 31
vai 10.wp4285-12g.doc 14.8 In the present proceeding, the landlord has specifically
come with a case that he has not granted any permission for erection of structures on the suit premises, and the structures which are constructed are of permanent nature. So also, the description of the suit premises in paragraph no.1 is in three parts. The third part i.e. paragraph 1(c) was subsequently deleted and a suit for the same was filed separately. In the written statement, the defendant has mentioned about the measurement of the suit premises and in Annexure 'C' mentioned of an area, which is quite different. These further prove the fact that the defendants have encroached upon the open space and now the property as mentioned paragraph 1(c) and 1(b) have been merged. The defendants could not prove the theory of no objection (NOC) granted by the earlier landlord. 14.9 The Supreme Court in the judgment of Purushottam Das Bangur (supra) have held that "permanent structure means structure lasting till end of tenancy. Need not be ever lasting or structure creating additional usable space. Paragraph nos.17, 18 and 19 read as under:-
32
vai 10.wp4285-12g.doc "17. To sum up, no hard and fast rule can be prescribed for determining what is permanent or what is not. The use of the word 'permanent' in Section 108 (p) of the Transfer of Property Act, 1882 is meant to distinguish the structure from what is temporary. The term 'permanent' does not mean that the structure must last forever. A structure that lasts till the end of the tenancy can be treated as a permanent structure. The intention of the party putting up the structure is important, for determining whether it is permanent or temporary. The nature and extent of the structure is similarly an important circumstance for deciding whether the structure is permanent or temporary within the meaning of Section 108 (p) of the Act. Removability of the structure without causing any damage to the building is yet another test that can be applied while deciding the nature of the structure. So also the durability of the structure and the material used for erection of the same will help in deciding whether the structure is permanent or temporary. Lastly the purpose for which the structure is intended is also an important factor that cannot be ignored.
18. Applying the above tests to the instant case the structure was not a tempo- rary structure by any means. The kitchen and the storage space forming part of the demised premises was meant to be used till the tenancy in favour of the respondent-occupant subsisted. Removal of the roof and replacement thereof by a concrete slab was also meant to continue till the tenancy subsisted. The intention of the tenant while replacing the tin roof with concrete slab, obviously was not to make a temporary arrangement but to provide a permanent solution for the alleged failure of the landlord to repair the roof. The construction of the passage was also a permanent provision made by the tenant which too was intended to last till the subsistence of the lease. The concrete slab was a permanent feature of the demised premises and could not be easily removed without doing extensive damage to the remaining structure. Such being the position, the alteration made by the tenant fell within 33 vai 10.wp4285-12g.doc the mischief of Section 108 (p) of the Transfer of Property Act and, therefore, constituted a ground for his eviction in terms of Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956.
19. We may at this stage refer to the decision of this Court in Ranju alias Gautam Ghosh v. Rekha Ghosh and Ors. (2007) 14 SCC 81: (AIR 2008 SC (Supp) 1398: 2008 AIR SCW 271) where this Court found that cutting of a collapsible gate by 5/6" and replacing the same without the consent and permission of the landlord was tantamount to violation of Section 108 (p) of the Transfer of Property Act read with Section 13(1)(b) of West Bengal Premises Tenancy Act, 1956. It is thus immaterial whether the structure has resulted in creating additional usable space for the tenant who carries out such alteration and additions. If addition of usable space was ever intended to be an essential requirement under Section 108 (p) of the Act, the Parliament could have easily provided so. Nothing of this sort has been done even in Section 13 (1) (b) of the State Act which clearly shows that addition of space is not the test for determining whether the structure is permanent or temporary."
The findings of this judgment is squarely applicable to the present proceedings.
14.10 The Bombay High Court in the judgment of Najama Gulab Bagvan (supra) have held that written permission of landlord is necessary for carrying out any construction in the premises.
14.11 Hence, I am of the view that the eviction decree passed on the ground of erection of permanent structure on the 34 vai 10.wp4285-12g.doc premises, does not suffer from any perversity and I hereby confirm the findings recorded on the ground of erection of permanent structure on the premises.
15. 'Nuisance' and 'Annoyance' - Section 16(1)(c) of the Maharashtra Rent Control Act:-
15.1 The plaintiff has specifically taken up a ground of 'nuisance' in his plaint and has also laid evidence to prove said ground by mentioning its witness PW-1 - Somnath Shetty being the director of the plaintiff's company. The said witness of the plaintiff was cross-examined by the defendants' counsel.
However, no material irregularity could be brought on record. 15.2 Dr. Warunjikar argued that 'nuisance' will not mean 'nuisance' to a 'prospective customer'. The submission on behalf of the defendants is that Section 16(1)(c) refers to 'nuisance' to the landlord or to the neighbours only and not of anybody else. 15.3 In paragraph No.23 of the plaint, a specific case of 'nuisance' has been pleaded by the plaintiff. 15.4 'Nuisance' and 'annoyance' as defined in the Maharashtra Rent Control Act and Bombay Rent Control Act is as 35 vai 10.wp4285-12g.doc under:-
Bombay Rent Control Act Maharashtra Rent Control Act Section 13(1)(c) 16(1)(c) 'Nuisance' and 'Annoyance' 'Nuisance' and 'Annoyance'
(c)that the tenant or any person (c) that the tenant, his agent, residing with the tenant has been servant, persons inducted by guilty of conduct which is a nuisance tenant or claiming under the or annoyance to the adjoining or tenant or, any person residing neighbouring occupiers, or has been with the tenant has been guilty convicted of using the premises or of conduct which is a nuisance allowing the premises to be used for or annoyance to the adjoining immoral or illegal purposes; or that or neighbouring occupier, or the tenant has in respect of the has been convicted of using the premises been convicted of an premises or allowing the offence of contravention of any premises to be used for immoral provision of clause (a) of sub-section or illegal purposes or that the (1) of section 394 or of section 394-A tenant has in respect of the of the Bombay Municipal Corporation premises been convicted of an Act. offence of contravention of any of the provisions of clause (a) of sub-section (1) of section 394 or of section 394A of the Mumbai Municipal Corporation Act, or of sub-section (1) or of section 376 or of section 376A of the Bombay Provincial Municipal Corporations Act, 1949, or of section 229 of the City of Nagpur Municipal 36 vai 10.wp4285-12g.doc Corporation Act, 1948; or of section 280 or of section 281 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965.
15.5 Therefore, under Section 13(1)(c) of the old Bombay Rent Control Act, the reference is made in the opening of the said section to the tenant or any person residing with the tenant ..... However, in the Maharashtra Rent Control Act, the said section in its opening words states that the tenant, his agent, servant, persons inducted by tenant or claiming under the tenant or, any person residing with the tenant..... Hence, by inserting a new section there is a further clarification that the section covers both the residential and the commercial premises. 15.6 The word 'nuisance' has also been defined under the Bombay Municipal Corporation Act. Section 3(z) defines 'nuisance' as under:-
"(z) "nuisance' includes any act, omission, place, or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smelling or hearing, or which is or may be dangerous to life or injurious to health or property."37
vai 10.wp4285-12g.doc 15.7 Though the Maharashtra Rent Control Act does not
define the word 'nuisance', however, the definition of 'nuisance' under the Bombay Municipal Corporation Act supports the argument made on behalf of the landlord.
15.8 The fact remains that in the present proceedings the defendants changed its kitchen from one location to another location, which ultimately became more closer to the restaurant of the plaintiff. In this background it pertinent to note that the plaintiff's restaurant is a "vegetarian restaurant". In contrast, the restaurant of the defendants is serving non-vegetarian food. Hence, according to me, the act of shifting the kitchen's location is purposeful, which will amounts to 'nuisance' not only to the landlord but also to the visitors, who in all probable may be person who dislike non-vegetarian food. Things probably could have been different if there was no change in the direction of the kitchen of the defendants.
15.9 In the judgment of Gulam Hussen Mirza (supra) the facts before the Single Judge of Bombay High Court, were that the landlords purchased the suit building on 26 December 1968, 38 vai 10.wp4285-12g.doc and started occupying the second floor premises. The tenant was already occupying the 3 rooms on third floor and one room called as terrace room. The landlord issued notice complaining the conduct of tenant of trespassing the entire terrace by putting flower pots and excluding everyone, including the landlord. Suit was filed on the ground of 'nuisance and annoyance'. High Court confirmed the decree on the ground of 'nuisance and annoyance'. Paragraph nos.12, 14, 15 and 16 reads as under:-
12. Thus, the legal comprehension that encompasses these terms appears to be well-settled. Though the terms are of very wide amplitude covering variety of circumstances and cannot be fenced by any definite meaning, whatever causes material interference with the ordinary comfort of human existence would, surely be the nuisance, while that which annoys, irritates or is offensive and has tendency that would evoke reasonable injection and leading to unpleasant feeling amongst persons, would be annoyance.
14. These judgments and the principles available in those precedents make out a workable applicative formula. As stated earlier, to be a nuisance, an act or omission must be such a that unlawful interferes with other persons' use, enjoyment or entitlement of the property or rights therein.
Such interference would have an annoying result, for that would affect the ordinary pleasure of men and trouble their minds. Annoyance in a given case would thus, be a result of nuisance. By itself "Annoyance", therefore, in a term of wider amplitude and would include all that is disagreeable to good sense and against fair and just habitation. All that is disagreeable and interfering with the pleasurable enjoyment of the ordinary occupants of 39 vai 10.wp4285-12g.doc their premises would be within its ambit. Annoying conduct is irritative conduct. It gives rise to discomfort and displeasure and affects the reasonable peace of mind. It also gives rise to unpleasant feeling amount men and also gives occasion to raise objections. In short, whenever there is a civil trespass upon and with regard to the use and enjoyment of the property of others, nuisance would be answered and whenever such a trespass results in irritable and disagreeable situation annoyance can be found. So stated, nuisance could be treated as a specie of annoyance. Therefore, all nuisance may be 'annoyance"
but all the acts of annoyance may not amount to nuisances. Actionable or not annoyance could be established by reason of the fact that the given conduct interfere with the ordinary comfort and pleasures of person.
15. As the section itself shows, it is the conduct that thereunder comes in issue. While considering nuisance and annoyance, that conduct on behaviour complained of will have to be objectively appreciated. It may have relation either to the rights and enjoyment of the property or other rights and entitlements of persons who, as ordinary men, are entitled to have peaceful, trouble free and ordinarily comfortable situation. These entitlements are basic in human society. These are to be judged by the given standard or norms available in such society, a given conduct adversely affects such entitlement or encroaches there upon, then the conduct would be within the mischief of the clause. One must hasten to add that the phrase employed by the statute being of wider amplitude, there is always a possibility of overstraining the meaning so as to include even the trifle and trivial matters. That is why every conduct should be judged in the context, and fairly. Without being elaborate and exhaustive, it can safely be said that all that conduct which is offensive, quarrelsome or violent, unethical in just a position of peaceful, civil and by ordinary standard unethical would be within the mischief. Matters of physical assaults by one against other would attract squarely the clause so also to other types of subtle assaults 40 vai 10.wp4285-12g.doc that offend human senses. Such acts may affect the peace and interfere with the pleasurable enjoyment of the property and, consequently, be within them mischief. Similarly, cases where property is trespassed upon and appropriated to one's own use to the exclusion of others' entitlement would be within the mischief of nuisance. Whenever question arises under the clause, first the conduct or behaviour that is in issue should be fairly and objectively ascertained and then, secondly, its effect in relation either to the property or the persons occupying the property should be taken into account. All this should be done in keeping with the social background of the given society, having norms of reasonable peace, comfort and enjoyment as well as in the light of the entitlements of the occupiers regarding the specific property. Having considered all these three aspect, if the conclusion is reached that the conduct was such which affected or tended to affect the reasonable entitlements of ordinary normal expectations of life, then all that this clause intends would be clearly answered.
16. Law would surely look loathsome as if leaves were to be sacrificed at the alter of love of roses, or for tending and culturing rose plants. But the law is not such a loaded ass. Law is a protector of balance between fair and unfair, just and unjust, reasonable and unreasonable, entitlement and non-entitlement. Not the love of roses, but the appropriation of others' property and trespass on others' entitlement by keeping rose-pots and occupying the property that is in issue. Such a conduct by itself is objectionable and is fraught with challenges and conflicts. It also interferes with the reasonable comfort and entitlements of other occupiers to use the given species of the property. It cannot be forgotten even in the background of roses, that one man's hobby may be another man's taboo; one man's medicine another man's poison and one man's joy another man's annoyance. By proving this clause, the law strikes balance. It promotes peace and furthers goods sense and fair behaviour. These are the normative pivots on which co-habitation in society rests. In law, there is always scope for defence of 41 vai 10.wp4285-12g.doc justification and so also for setting up of claims to property. But when along with these somethings more exists, such as unilateral appropriation in utter disregard of there comfort or entitlement, such a defence can hardly be enough.
15.10 Though it is a fact that while the plaintiffs purchased the suit premises, they were well aware that within the compound of the suit premises there is a hotel of the defendants, which serves "non-vegetarian food". In my view, it does not create any bar to the plaintiff from filing a eviction suit against the defendants. Ultimately, the right of the plaintiff as a landlord is a superior right, to that of the right of the defendants that of tenant. No doubt, if an eviction suit is filed under the Rent Act by the landlord on one of the ground, as mentioned under the Rent Act, a case has to be made out to pass such an eviction decree, and only if the Court is satisfied an eviction decree can be passed.
15.11 The judgment of Sushilaben Raut (supra) supports the case of the plaintiff.
15.12 Hence, in my view, 'nuisance' and 'annoyance' has to been seen from the eyes of an ordinary man, and society and its 42 vai 10.wp4285-12g.doc reasonableness.
15.13 The Supreme Court in the judgment of Rafatali (supra) have held that under Section 10(2)(iv) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, what is envisaged is private nuisance and not public nuisance.
15.14 The defendants failed to prove that there was no 'nuisance' and 'annoyance' in their evidence, and the plaintiff have duly proved the said ground of 'nuisance' and 'annoyance' in plaint and evidence. In fact, there was no specific cross- examination of the plaintiff's witness on the ground of 'nuisance'. 15.15 Therefore, I am of the view that there is no infirmity in the finding recorded by the trial Court and the appellate Court on the ground of 'nuisance' and 'annoyance' in passing the eviction decree.
16. Sub-letting - Section 16(1) (e) of the Maharashtra Rent Control Act.
16.1 The plaintiff in the plaint have specifically taken a ground that the defendant nos.1 and 2 have sub-let a part of the suit premises to defendant no.3. Paragraph 21A of the plaint 43 vai 10.wp4285-12g.doc reads as under:-
"21A. The Defendants have very recently started doing their business without a trade license and police license, moreover the defendants have illegally sublet the suit premises to one Mr. Ateeque Ansari, and that too when there are prohibitory orders against the Defendants by this honorable court, and at the same time the Defendants have illegally parted with the possession of the suit. The Defendants by giving the above said to the said Mr.Ateeque Ansari, are being profited from the same. The Plaintiff says that they very illegal acts of the Defendants are of nuisance and annoyance and on this count also the Defendant is liable for eviction. The Defendants have not paid rent to the Plaintiff since September 2001 and in this connection the Plaintiff has sent them notices, which are not replied, nor any rent is paid thereafter."
16.2 In cross-examination of D.W.No.1, paragraph No.21, it was recorded, "I purchased the goodwill of hotel from Haji Abdulla, who was previous tenant. I purchased it in about 1982" . In paragraph no.24, it was recorded, "... It is true at Exhibit 195 photograph the board seen through it named 'Sampan' on the property which is tenanted to me. I have no any trade license in the name of 'Sampan'. It is not true the said 'Sampan Hotel' is of Atik Ansari or he is my sub-tenant".
16.3 The plaintiff has specifically come with the case in the plaint and in the evidence that the defendant nos.1 and 2 have sub-letted part of the premises to defendant no.3 - Ateeque 44 vai 10.wp4285-12g.doc Ansari. The said defendant no.3 did not contest the suit and did not file his written statement, though he was duly served. The defendant no.3 was served with the 'writ of summons', at the address of the suit premises. The written statement of the defendant nos.1 and 2 admit that "Sampan Food Court" is being run within the suit premises. It is an admission in the evidence on the part of the defendant that "Sampan Food Court" has many branches. An application made by the defendant no.3 to recall the order of ex-parte decree against the defendant no.3 was rejected. The said order attained finality. Therefore, there is already a decree against the defendant no.3. Defendant no.3 has not come before this Court challenging the decree passed by the trial Court and the appellate Court.
16.4 The judgment referred by Dr. Warunjikar of Associated Hotels Of India Ltd., Delhi (supra) does not help the defendants in the present proceeding as the facts in both the judgments are quite different. In the judgment of Associated Hotels of India Ltd. (supra), the facts were that the respondent-landlord constructed building known as Hotel Imperial, and by a Deed dated 18 45 vai 10.wp4285-12g.doc August 1939 the hotel premises together with fittings and furnitures were leased to appellant, for a term of 20 years. As according to respondent-landlord there were breaches, since the appellants sub-let several rooms to various entities viz. Pan American World Airways, Mercury Travels, Indian Art Emporium, etc., and not confined to the residents of the hotel. The Supreme Court held that test of exclusive possession, though not conclusive is a very important indication in favour of tenancy. The Supreme Court upheld the eviction decree amongst other grounds, also on the ground of 'sub-letting'.
The ratio laid down in the judgment of Associated Hotels of India Ltd. (supra), does not support the petitioner's case, as in the present proceedings defendant no.1 (tenant) has admitted that he runs 'Kabir Restaurant' in the suit premises. However, evidence as led by the plaintiff regarding 'Sampan Hotel', the defendant was not able to discard the same. So also, in the cross-examination of defendant no.1, there was no satisfactory answer on the issue of "Sampan Hotel'.
16.5 The judgment of the Supreme Court in the case of
46
vai 10.wp4285-12g.doc
Joginder Singh Sodhi (supra) squarely applies to the present proceeding. In the said judgment, the Supreme Court held that burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to a third party, onus would shift on the tenant. Paragraph nos.19 and 20 read as follows:-
"19. Again in Kala v. Madho Parshad Vaidya, [1998] 6 SCC 573, this Court reiterated the same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
20. We are in agreement with the observations in the above cases. In our considered opinion, proof of monetary consideration by the sub-tenant to the tenant is not a sine qua non to establish sub-letting.
16.6 The judgment of Bombay High Court in Harakchand Hirji Shah (supra) also squarely applies to the present proceeding. This Court held that landlord is required to prove that the tenant had parted with the possession of the suit premises to a third party. The burden would then shift to the tenant to explain his possession. If tenant fails to discharge that onus, the Court can presume that such possession was for 47 vai 10.wp4285-12g.doc monetary consideration. The findings in the judgment of the Supreme Court in Celino Coelho Pareira (supra), according to me, applies to the present proceeding. In the said judgment, the Supreme Court held that initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises, the onus will shift to the tenant.
16.7 The Supreme Court in A. Mahalakshmi (supra) allowed the appeal of landlord/plaintiff, thereby granting decree of eviction on ground of sub-letting. Paragraph 10 of the judgment reads as under:-
"10. Applying the law law laid down by this Court in the aforesaid decisions to the facts of the case on hand and on appreciation of evidence on record, we are of the opinion that there is no genuine partnership between Respondent and Respondent
2. Respondent 1 has come out with a case of partnership only to get out from the allegation of sub-letting. The exclusive possession of the suit premises is with Respondent 2. Respondent 2 is running the business in the suit premises as an owner. Sales Tax Certificate and the licence are in the name of Respondent 2. The bank accounts are in the name of Respondent 2 and Respondent 2 is exclusively dealing with the bank accounts. Under the circumstances, a clear case of sub-letting has been made out. The High Court has committed a grave error in setting aside the decree of eviction 48 vai 10.wp4285-12g.doc on the ground of sub-letting."
16.8 I find there is no perversity committed by the trial Court and the Appellate Court in passing a eviction decree on the ground of 'sub-letting'.
17. Bonafide requirement - Section 16(1)(g) of the Maharashtra Rent Control Act:-
17.1 In the plaint, a specific avement as regards to 'bonafide requirement' has been taken up by the plaintiff. Paragraph no.22 of the plaint reads as under:-
"22. The Plaintiff says that the plaintiff has been conducting the hotel business in the part of the suit property i.e. in part of the main bungalow. The business of the Plaintiff is expanding and hence the plaintiff needs the suit premises reasonably and bonafide for its own use and business. The customers coming to the said hotel of the Plaintiff usually come in four wheeler vehicles. The defendant was never allowed to park the vehicles of his customers inside the property but he has been doing so and as a result the customers of the Plaintiff does not have place to park and hence at times the customers go away to some other restaurant. This act of the Defendant is causing loss to the Plaintiff's business, and on account of this the Plaintiff is not in a position to increase its business."
17.2 The director of the plaintiff has entered the witness box and has laid evidence on behalf of the plaintiff in order to prove the ground of 'bonafide requirement'. The said witness was 49 vai 10.wp4285-12g.doc cross-examined by the plaintiff's advocate, however, nothing material could be brought on record in order to doubt the evidence laid by the plaintiff.
17.3 The defendants did not lead any evidence on the ground of 'bonafide requirement' except denying the said ground. Both the Courts have held that the landlord had proved the grounds of 'bonafide requirement'. So also, the hardship was held to be in favour of the plaintiff.
17.4 Bombay High Court in Indubai Govindrao Lad (supra) have considered the issue of 'bonafide requirement'. The Court has held that it is not open for High Court to re-appreciate evidence on the issue of comparative hardship. Paragraph 12 reads as under:-
12. That takes me to the next contention raised on behalf of the Petitioners that the conclusion reached by the two courts below on the issue of comparative hardship is improper. To my mind, on examining the discussion recorded by two courts below on this issue, it is not possible to accept this grievance. Both the courts below have applied the correct principles. The Appellate Court in Paras 13 and 14 has dealt with that aspect. No fault can be found with the approach of the Appellate Court.
In any case, that being a finding of fact, it is not 50 vai 10.wp4285-12g.doc open for this Court to reappreciate the evidence on record to take a different view of the matter. 17.5 Supreme Court in the judgment of Raghunathji Panhale (supra) have held that the landlord need not have actually lost his existing job nor resigned it, nor reached a level of starvation to justify getting possession of suit premises in order to establish a business. Paragraph no.11 reads as under:-
"11. It will be seen that the trial Court and the appellate Court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled lo an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long- drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long- drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop 51 vai 10.wp4285-12g.doc was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a Bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property. So far as experience is concerned, one would not think that a grocery business was one which required extraordinary expertise. It is, therefore, clear that the entire approach of both the Courts was absolutely wrong in law, and perverse on fact. Unfortunately the High Court simply dismissed the writ petition filed under Article 227 stating that the findings were one of fact. That is why we think that this is an exceptional case calling for interference under Article 136 of the Constitution of India."
17.6 Supreme Court in the judgment of R.C. Tamrakar (supra) have held that landlord is the best judge of his requirement. Paragraph no.10 reads as under:-
"10. Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bona fide requirement, it is unnecessary to make an endeavour as to how else landlord could have adjusted himself."
17.7 So also, in Balwant P. Doshi (supra), this Court held that Courts cannot ordinarily doubt bonafide need of landlord nor they can dictate how a landlord will use his premises. Paragraph no.5 of the judgment reads as under:-
"5. Reverting to the issue of the comparative hardship, 52 vai 10.wp4285-12g.doc the courts below were right in observing that the issue of comparative hardship will be relevant only, in the context of the requirement of the tenant and not in relation to some other occupant of the suit premises and when that occupant has no right to continue in the premises. In the present case, the courts below have recorded a clear finding of fact that the plaintiff has no other alternative premises. It is also established from the record that the plaintiff was staying along with her elder son Naresh at Sion in a rented premises. In this view of the matter, the plaintiff had discharged her burden regarding the issue of comparative hardship. On the other hand, since the respondent No.2, who was the original tenant was staying abroad for more than one decade, it is incomprehensible as to how he would suffer any hardship if the decree was to be passed. The petitioner before this Court is in no way related to the respondent No.2. Whereas, the petitioner claims to be in occupation on account of leave and licence agreement executed in his favour. Efficacy of that document has already been examined by two courts below and they have come to the conclusion that the said document appears to be bogus and unreliable. In that sense there would be no occasion for this Court to examine the issue of comparative hardship insofar as the petitioner is concerned, who has no legal right to continue to remain in possession. In any case, the Courts below have rightly taken into account that the evidence would clearly indicate that the petitioner has kept on changing the premises in the past. Moreover, no evidence is brought on record by the petitioner to show that it is not possible to secure alternative accommodation in the same locality for that matter in any other part of the city. It is well settled that onus is on the defendant to establish that the defendant will not be able to secure any alternate premises in the same locality or in any other part of the city. If this evidence is lacking, the Court will have no option but to answer the issue of comparative hardship against the defendant. This position is well settled (See (Bega Begum v. Abdul Ahad Khan), A.I.R. 1979 S.C.
272. I have considered the question of standard of onus 53 vai 10.wp4285-12g.doc on the parties on this issue, by referring to several rulings in the case of (L. V. Venkateswaran), in W.P. 3816 of 1989 decided on 3 May 2002. Incidentally, I have also examined the settled legal position on the question of nature of proof on the issue of bona fide and reasonable requirement in the same decision."
17.8 As regards 'hardship', the Bombay High Court in the judgment of Suhasini Atmaram Parab (supra) have held that once the landlord proceeds to initiate a suit on the ground of bonafide requirement, the tenant is expected to start looking for alternative premises. In the present proceedings tenant has not come forward with a case that he has searched for alternate accommodation.
17.9 The Division Bench of Bombay High Court in the judgment of Bhika Cullianji (supra) have held that the challenge to the oral evidence must be reflected in the course of cross- examination. If the defendants have not brought out the essential materials, it would amount to admission, and the evidence of plaintiff must be acted upon by the Court. Paragraph no.4 reads as under:-
"4. Shri Shah has taken us through the pleadings and the documents which consist of the agreements and the correspondence. He has also drawn our attention 54 vai 10.wp4285-12g.doc to the oral evidence in this case which, in our considered view, is not of any serious consequence. Shri Shah has, in the first instance, demonstrated to us that the undisputed position is that the room B cannot be approached from any manner whatsoever other than the main entrance to Block No. 7, that the plaintiffs were the tenants in respect of the whole of Block No. 7 and that the main entrance and certain parts of the premises were under their use and occupation is more than fully established from the evidence on record. In addition to this, Shri Shah pointed out that there is a specific averment from Damodardas Bhuta as also from his partner that at all material times the key in respect of the main entrance was retained by the plaintiffs and that this key was never given to the defendants or anyone on their behalf. This is not a stray piece of evidence because both in examination-in-chief as also in cross- examination the position that has been established is that the control in respect of the main entrance was exclusively with the plaintiffs. It has also come on record that the plaintiffs used to open the premises and close the same depending on the timings of their business and that there used to be several occasions, such as holidays, week-ends, etc., when the premises never used to be opened at all and that the defendants were entirely dependent for entry and exit from room B on the plaintiffs opening the main door. This aspect of the matter assumes considerable significance. With regard to this head of evidence, Shri Shah has advanced the submission that his particular aspect of the case has virtually gone uncontroverted. He has demonstrated to us from the cross-examination that this material aspect of the case has virtually not been disputed. Adverting to the position in law, Shri Shah has relied on a decision of the Calcutta High Court in the case of A.E.G. Carapid v. A.Y. Darderan, , A.I.R. 1961 Calcutta 359; and a decision of the Andhra Pradesh High Court in the case of Gurunandha Rao v. B. Rosaiah, A.I.r. 1959 A.P. 277. Shri Shah also relied on a Single Judge's decision of this Court in the case of 55 vai 10.wp4285-12g.doc Badriprasad K. Agarwal & another v. Premier Garage & others, 1980(1) All India Rent Control Journal 385. In sum and substance, what emerges from these three decisions is that the challenge to the oral evidence must be reflected in the course of cross-examination. If the defendants decline to put the essential material setting out their case in cross-examination, it would have to be regarded virtually as an admission and that such an uncontroverted evidence must be acted upon by the Court. The position in law is crystal clear and Shri Shah has only restated the position by referring to these cases."
17.10 According to me, the concurrent findings recorded by the trial Court and the appellate Court on the ground of 'bonafide requirement' is taking into consideration the latest judgments, and there is no infirmity in the impugned judgments. 17.11 It is evident beyond a shadow of doubt that there is any perversity on all the four grounds of concurrent findings recorded by both the Courts. No infirmity can be found.
18. Hence there is no merit in this writ petition, the writ petition stands dismissed. In sequel, all the Interim Applications / Civil Applications stand dismissed.
19. The petitioners are granted eight weeks time to vacate the suit premises, subject to filing usual undertaking by the petitioners within a period of two weeks from today, that they 56 vai 10.wp4285-12g.doc are the only persons, along with their staff and their family members who are occupying the suit premises, and they will not create any third party interest in the suit premises, and they will pay the agreed rent till they vacate the suit premises. SECOND APPEAL ST.NO.36733/2018
20. Respondent no.1 is admittedly a landlord of the suit premises. The appellant herein are the legal heirs of original defendant no.1 who was the tenant of the suit premises. Suit premises is a open space with a garden situated at 6, Molidana Road, Pune, within the limits of Pune Cantonment Board.
21. The present second appeal challenges a concurrent finding recorded by the trial Court and the appellate Court against the appellant (original defendant no.1).
22. The parties are hereafter referred to as per their nomenclature before the trial Court.
23. Plaintiff had filed a eviction suit against the defendant nos.1 and 2. Defendant no.2 did not appear before the trial Court though was served with the suit summons. Therefore, the matter proceeded ex-parte against defendant no.2. Defendant 57 vai 10.wp4285-12g.doc No.2 has not come forward and challenged the decree passed against him.
24. After the plaintiff filed the suit and the summons were served on the defendant no.1; the defendant no.1 filed his written statement, denying the contentions made in the plaint. After issues were framed, evidence was laid by the plaintiff by examining their director Mr. Somnath Shetty. The said witness of the plaintiff was cross-examined by the advocate appearing for defendant no.1. After the evidence of the plaintiff was completed, the defendant no.1 examined himself as DW-1, and his son Labib as DW-2. Both the witnesses of the defendant were cross-examined by the advocate appearing for the plaintiff.
25. It was the case of the plaintiff that since the premise is open land, the provisions of the Maharashtra Rent Control Act would not apply to the present premises. It was the case of the defendant that he had purchased the running business of restaurant block and kitchen block in the year 1979-80. It was further case of DW-1 that the landlord allowed him to use the open space from the date of acquiring the restaurant block and 58 vai 10.wp4285-12g.doc the kitchen block. It was a case of defendant no.1 that landlord had allowed him in writing to use the suit premises. However, the said writing was never produced on record.
26. DW-1 has admitted in the cross-examination the photograph shown to him by the plaintiff. The said photographs proved that kitchen counter has been constructed in the suit premises. So also, it shows that the suit premises is covered with cement sheets which are standing on iron poles. So also, it was an admitted fact that the Cantonment Board had issued notice under the Cantonment Act. DW-1 admitted that the Cantonment Board has issued notices under the Cantonment Act to the defendant in respect of constructions of wall in the suit premises. Since the suit premises are open land, the provisions of the Maharashtra Rent Control Act does not apply to the suit premises, therefore, there is no protection to the suit premises under the Maharashtra Rent Control Act. The plaintiff had issued notice to the defendant mentioning therewith that various provisions of the tenancy was violated by the defendant, by sub- letting the premises, making illegal, unauthorised constructions 59 vai 10.wp4285-12g.doc in the suit premises. The defendant no.1 has admitted in his evidence that he had received the copy of the notice.
27. Since it is already come on record that the defendant no.1 has erected unauthorized construction of a permanent nature in the suit premises the provisions of Section 108 (p) of the Transfer of Property Act are attracted. The defendants have breached the provisions of Section 108 (p) of the Transfer of Property Act. Since that the admission that the notice of termination has been served on defendant no.1 as well as it has come on record that defendant no.1 has breached the provisions of Section 108 (p) of the Transfer of Property Act. The trial Court and the Appellate Court have decreed the suit of the plaintiff and passed an eviction decree. According to me, no case is made out by the defendant, the present appellant in the second appeal to interfere with concurrent finding recorded by the both the Courts.
28. All the grounds raised in the second appeal, in my view, are factual in nature and do not qualify "substantial question of law" in terms of Section 100 of the Code of Civil 60 vai 10.wp4285-12g.doc Procedure.
29. The Supreme Court in the judgment of Gurudev Kaur vs. Kaki, reported in (2007) 1 SCC 546 , held that the High Court sitting in second appeal cannot reexamine the evidence as a third trial Court and the power under Section 100 of the Code of Civil Procedure is very limited, and it can be exercised only when a "substantial question of law" fells for consideration.
30. Taking into consideration the material available on record and the findings recorded by both Courts, I find no ground warranting interference with the said concurrent findings.
31. Hence, second appeal fails and the same is accordingly dismissed. No costs.
32. In sequel, all pending interim applications/civil applications also stand disposed of.
33. The petitioners are granted eight weeks time to vacate the suit premises, subject to filing usual undertaking by the petitioners within a period of two weeks from today, that they are the only persons, along with their staff and their family 61 vai 10.wp4285-12g.doc members who are occupying the suit premises, and they will not create any third party interest in the suit premises, and they will pay the agreed rent till they vacate the suit premises.
(RAJESH S. PATIL, J.) 62 Signed by: Diksha Rane Designation: PS To Honourable Judge Date: 17/05/2024 18:54:30