Bombay High Court
Hitesh S/O Manmohan Chawla And Another vs Smt. Deepa Wd/O Gangadhar Shende And ... on 6 June, 2019
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
WP 6938/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6938/2016
1. Hitesh s/o Manmohan Chawla,
Aged about 40 years, Occupation business.
2. Aadesh s/o Manmohan Chawla,
Aged about 35 years, Occupation business.
Both R/o Charishma Health and Beauty
Clinic Pvt. Ltd., G-14, Laxminagar, Opposite
Purti Super Bazar, Nagpur. PETITIONERS
.....VERSUS.....
1. Deepa wd/o Gangadhar Shende,
aged about 65 years, Occupation household,
R/o G-14, Laxminagar, Opposite Purti
Super Bazar, Nagpur.
2. M/s Charishma,
Through its Managing Diretor,
Manik Soni, Aged about 45 years,
Occupation business,
R/o Shanti Niwas, No.126, Austin Town
Layout, Opp. BDA Complex, Banglore-47. RESPONDENTS
Shri S.S. Sharma, counsel for petitioners.
Shri A.G. Gharote, counsel for respondent no.1.
CORAM : A.S. CHANDURKAR, J.
DATE : 6TH JUNE, 2019.
ORAL JUDGMENT
In the light of the order dated 11.02.2019 passed in Civil Appeal Nos.1588 and 1589 of 2019, the learned counsel for the parties have been heard at length.
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WP 6938/16 2 Judgment
2. The petitioners are the original defendant nos.2 and 3 in the suit for eviction as filed by the respondent no.1 herein. The said suit was decreed by the trial Court by its judgment dated 16.08.2013 and the appeal filed by the petitioners herein came to be dismissed on 04.10.2016. The decree for eviction is thus challenged in the present petition.
3. The facts relevant for adjudication of the writ petition are that it is the case of the respondent no.1-Landlady that she is the owner of Municipal House No.220-A wherein the ground floor admeasures about 1200 square feet and room on the first floor admeasures about 10 Feet X 12 Feet. It is her case that these premises were let out to the respondent no.2-Tenant by virtue of an agreement of tenancy dated 11.05.2002. Rent payable was Rs.13,500/- per month including maintenance charges. Initially, the tenant had paid an amount of Rs.27,000/- by cheque. A subsequent payment made by the tenant for such amount came to be dishonoured. As the tenant was in arrears of rent from 01.11.2005 to 31.12.2007, notice was issued by the landlady demanding arrears of rent. It is the further case that the tenant had sublet the premises and parted with possession in favour of the petitioners-sub tenants. This subletting was without any prior permission of the landlady and in breach of the terms of tenancy. The landlady also had bona fide need for seeking possession of the suit premises. Her two sons were grown up. One son ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 3 Judgment was doing business in partnership in a rented premises while the other son was serving at Vikroli and he intended to settle at Nagpur. The tenant was having alternate accommodation at various places. It is on these counts that the landlady on 22.04.2008 filed suit for eviction under provisions of Sections 15, 16(1)(e)(g) and (n) of the Maharashtra Rent Control Act, 1999 (for short, 'the said Act').
4. The tenant filed written statement at Exhibit 13 and admitted the claim of the landlady. It was pleaded that on account of personal difficulty, the tenant could not manage the business in question and after having some negotiations with the defendant nos.2 and 3, possession of the tenanted premises was handed over to them. The sub-tenants were liable to pay the arrears of rent as well as the agreed rent. After receiving the summons the tenant got knowledge that the sub-tenants were in arrears of rent. Though a request was made to the sub-tenants to handover possession of the tenanted premises to the landlady, that request was not accepted.
The sub-tenants contested the suit by filing written statement at Exhibit 24. It was pleaded by them that tenancy was created in the year 2002 in favour of M/s Charisma Health and Beauty Clinic which was a partnership firm in which the sub-tenants were partners. In August- 2005, the partnership firm was registered as a private limited company as claimed by the sub-tenants as a defendant in the suit. It was denied that ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 4 Judgment the company was in arrears of rent and it was pleaded that the rent was being deposited regularly. The rent had been paid till 31.10.2008 and the sub-tenants were not in arrears of rent. All other averments as made in the plaint were denied. It was further pleaded that the tenant had no connection with the tenanted premises. The said sub-tenants had no other place to run their business and it was therefore pleaded that the suit as filed was liable to be dismissed.
5. The landlady in support of the prayer for eviction examined herself at Exhibit 27 and one of her sons at Exhibit 75. The tenant did not adduce any evidence. On behalf of the sub-tenants, evidence was led by the defendant no.3 at Exhibit 106. After considering the evidence on record, the trial Court held that the landlady had proved that it was only the defendant no.1 who was the tenant of the suit premises. The tenant was in arrears of rent and further the tenant had sublet the premises to the sub-tenants. The bona fide need of the landlady was also accepted and it was held that greater hardship would be caused to the landlady if the decree for eviction was not passed. On that basis, the trial Court decreed the suit in its entirety.
The sub-tenants challenged the aforesaid decree for eviction which decree was accepted by the tenant. The Appellate Court after re- considering the entire evidence on record affirmed the findings recorded by the trial Court and maintained the decree for eviction. ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 :::
WP 6938/16 5 Judgment
6. Shri S.S. Sharma, learned counsel for the sub-tenants in support of the writ petition submitted that both the Courts erred in granting a decree for eviction in favour of the landlady. According to him, the agreement of tenancy at Exhibit 30 had not been signed by the tenant and therefore that agreement had no legal effect. Though the said agreement was stated to be executed on 11.05.2002, the same was notarized on 20.05.2002. He referred to the address of the tenant as mentioned in the said agreement and urged that in the suit the landlady had mentioned a different address of the tenant. Referring to the letter at Exhibit 31 issued by the said tenant, it was submitted that the landlady had admitted that she had received the said letter in June-2002. If the letter at Exhibit 31 dated 20.05.2002 written by the tenant was received by the landlady in June-2002, the question of the same being notarized alongwith the agreement on 20.05.2002 would make the said letter doubtful. He further submitted that after filing the written statement the tenant did not appear in the suit and contest the same It was necessary for the tenant to have examined himself in the light of aforesaid discrepancies in the case of the landlady. By failing to examine himself, an adverse inference was liable to be drawn against the tenant and the stand taken by the tenant ought to be discarded. In that regard, the learned counsel relied upon the decision in Vidhyadhar Versus Manikrao & Another [(1999) 3 SCC 573]. Referring to the decision in Balu @ ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 6 Judgment Madhavrao Shankarrao & Others Versus Radhakkabai Panditrao Ghorpade & Others [2004(1) Mh.L.J. 323], it was submitted that the adjudication against the tenant was ex-parte in nature and therefore much importance could not be given to the written statement and the stand as taken therein by the tenant. He also referred to the admissions of the landlady in her cross-examination to urge that the documents at Exhibits 30 and 31 deserve to be discarded.
It was further submitted that there was no evidence whatsoever brought on record by the landlady to indicate subletting of the premises in favour of the petitioners. Referring to the documents at Exhibits 112 and 113, it was submitted that the tenant was never in possession and since inception it was the sub-tenants who were in occupation of the suit premises. Rent was being paid by them to the landlady since inception and that rent was accepted by the landlady without any protest. The legal effect of the documents at Exhibits 112 and 113 had not been considered in the proper perspective by both the Courts. Placing reliance on the decision in S.F. Engineer Versus Metal Box India Ltd. & Another [2014(6) Mh.L.J. 478], it was submitted that the landlady had failed to prove the necessary ingredients of subletting. As the Courts had drawn an inference as to subletting on the basis of inadmissible and insufficient evidence, that finding was liable to be interfered with by this Court.
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WP 6938/16 7 Judgment As regards the ground of arrears of rent it was submitted that the sub-tenants were regular in payment of rent which fact was also admitted by the landlady. The notice under Section 15(2) of the said Act could not have been issued to the sub-tenants in view of the fact that the landlady did not treat the petitioners as tenants but as sub-tenants. It was submitted that the rent had been paid till 31.10.2008 and on the date when the suit was filed the sub-tenants were not in arrears of rent. Insofar as the bona fide need of the landlady was concerned, it was submitted that the evidence on record indicated that one son of the landlady was doing business at Sitabuldi and there was no need for him to shift to the suit premises. The other son was also doing business at Vikroli and a mere plea had been raised that he intended to shift to Nagpur to do some business. Referring to the provisions of Section 16(2) of the said Act, it was submitted that greater hardship would be caused to the sub-tenants as they were operating from the suit premises since the year 2002. Moreover, the aspect of partial eviction from the suit premises was also not considered by the Courts. It was thus submitted that in the light of the aforesaid, the decree for eviction was liable to be interfered with and the suit as filed was liable to be dismissed.
7. Shri A.G. Gharote, learned counsel for the respondent no.1- Landlady supported the decree for eviction. He submitted that the agreement of tenancy at Exhibit 30 was duly proved before the trial Court ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 8 Judgment and no objection to the same was raised by the sub-tenants. Referring to various clauses in the said agreement, it was submitted that the aspect of possession being handed over to the tenant was clearly stated therein. Referring to the letter issued by the tenant at Exhibit 31, it was submitted that the same corroborated the tenancy agreement. Even if the tenancy agreement at Exhibit 30 was to be ignored on account of absence of the tenants signature thereon, the letter issued by the tenant at Exhibit 31 clearly indicated that such tenancy agreement had been entered into with the tenant. It was urged that the tenancy agreement could also be oral and same could be inferred through the conduct of the parties. Referring to the decisions in Anthony Versus K.C. Ittoop & Sons & others [(2000) 6 SCC 394], Shashikant Ramrao Kulkarni Versus Nirmala Vasantrao Gore [2011 (5) Mh.L.J. 251] and Ganesh Ramkisan Bairagi Versus Yeshoda Purushottam Landge & Others [2016 (6) Mh.L.J. 393], it was submitted that there was no requirement of the tenancy agreement being registered. It was then submitted that there was no material on record to indicate any collusion between the landlady and the tenant. The tenant in his written statement had clearly stated that he had put the sub-tenants into possession and as a result of that it was clear that the tenant had lost interest in the suit premises. The written statement was supported by an affidavit and the decree for eviction as passed by the trial Court had not been challenged by the tenant and thus the same had attained finality ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 9 Judgment against the tenant. There was no reason to draw any adverse inference in that regard. He referred to the cheque at Exhibit 35 issued by the tenant indicating payment of rent by him. Referring to the agreement at Exhibit 30, it was submitted that the said agreement was entered into with "M/s Charisma", a company duly registered. The firm in which the sub-tenants claimed interest was "Charisma Health and Beauty Clinic". Referring to the rent receipts issued by the landlady, it was submitted that all the receipts had been issued to M/s Charisma represented by the tenant. It therefore could not be said that the landlady had accepted any rent from the sub-tenants. Referring to the documents at Exhibits 112 and 113, it was submitted that the same did not pertain to the firm to which the premises had been let and therefore the eviction on the ground of subletting was justified.
Insofar as the bona fide of the landlady was concerned, it was submitted that one son was running business in a tenanted premises which fact was proved by examining said son. It was but natural that the landlady intended to settle her son in her own premises and it was not for the sub-tenants to dictate to the landlady the manner in which she should conduct her affairs. In that regard, the learned counsel referred to the decision in Mohanlal Chandulal Agrawal Versus Navalkishor Radheshyam Kulwal [2016 (1) Mh.L.J. 735]. The other son also intended to settle at Nagpur and there was no reason to doubt such intention. The aspect of ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 10 Judgment hardship had been considered by both the Courts and it had been concurrently found that greater hardship would be caused to the landlady if the decree for eviction was not passed. Considering the need of both the sons, no decree for partial partition could be passed. He also referred to the other evidence on record to indicate the aforesaid aspect. It was further urged that after the notice under Section 15(2) of the said Act was issued, the sub-tenants had refused to accept the same and hence had failed to clear the arrears of rent. The decree passed in that regard was also justified. The learned counsel therefore submitted that in view of the concurrent findings recorded by both the Courts, there was no reason to exercise writ jurisdiction in favour of petitioners and the decree for eviction was liable to be maintained.
8. I have heard learned counsel for the parties at length and I have also gone through pleadings of the parties, their depositions as well as the impugned judgments. Perusal of the plaint indicates that it is the case of the landlady that the suit premises was let out to the tenant by name "M/s Charisma". The landlady referred to the agreement of tenancy dated 11.05.2002. It was her case that the tenant had sublet the premises to the sub-tenants without her prior consent. In the written statement filed by the tenant it was admitted that the tenancy agreement had been entered into on 11.05.2002 and rent of Rs.13,500/- per month was payable. It has been further pleaded that the tenant after having ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 11 Judgment negotiations with the sub-tenants handed over possession to them and the tenant was under the impression that the sub-tenants were regularly paying the rent. In the written statement filed by the sub-tenants it was denied that there was any concern described as "Charisma". It was their specific case that the tenancy was created in the year 2002 in favour of "M/s. Charisma Health and Beauty Clinic". The sub-tenants claimed to be the partners of the said firm which in August 2005 was registered as a Private Limited Company. It was also pleaded that the tenant had no concern with the said firm of which the sub-tenants were the partners. As noted above, the landlady examined herself and her son before the trial Court. The tenant did not participate in the suit after filing his written statement. One of the sub-tenants was examined before the trial Court. The tenancy agreement is at Exhibit 30 which is dated 11.05.2002. This agreement has been signed only by the landlady and the signature of the tenant does not appear therein. The said agreement is notarised on 20.05.2002. There is a letter written by the tenant to the landlady which is at Exhibit 31 and which is also notarised on 20.05.2002. In this letter the tenant has stated that M/s Charisma was the tenant and the tenancy had commenced from 01.06.2002. A cheque dated 10.05.2002 for an amount of Rs.27,000/- issued by the tenant to the landlady is also on record. Similarly various other rent receipts issued by the landlady are at Exhibit 32 collectively. The sub-tenants have relied upon the document at ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 12 Judgment Exhibit 112 which is a certificate issued under Bombay Shops and Establishment Act, 1948 as well as the Certificate of Incorporation dated 10.08.2005 in the name of Charisma Health and Beauty Clinic Private Limited at Exhibit 113. This is the documentary material on record.
9. On considering the documentary material along with depositions of the parties, it can be seen that while it is a specific case of the landlady and the tenant that the tenancy was created from June 2002 in favour of the M/s.Charisma which was followed by payment of rent vide cheque at Exhibit 35, it is the specific case of the sub-tenants that the tenancy was in the name of M/s. Charisma Health and Beauty Clinic Private Limited. There is however no document in that regard for the period from June 2002 till August 2005 to indicate the aspect that the tenancy was in favour of M/s Charisma Health and Beauty Clinic Private Limited. The various rent receipts for the years 2003 and 2004 have been issued by the landlady to M/s. Charisma with which the tenant is concerned. It is in the light of the aforesaid material that both the Courts have come to the conclusion that the tenancy was created in favour of the tenant, who was representating the company M/s.Charisma and the premises were then sublet by him in favour of the sub-tenants. It is found that the aforesaid finding is based on sufficient material on record and the conclusion drawn that the tenant had sublet the premises to the sub- tenants does not deserve to be interfered with. The sub-tenants have not ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 13 Judgment been able to indicate the manner in which they entered possession. The decree for eviction as passed under the provisions of Section 16(1)(e) of the said Act, therefore, deserves to be maintained.
10. Even if it is assumed that the sub-tenants were inducted as tenants in May 2002 and that they had the status of tenants, the decree for eviction as passed under the provisions of Section 16(1)(g) of the said Act also does not warrant interference. It was a specific case of the landlady that she had bona fide need of the premises as her sons were required to be accommodated therein. One of the sons was doing business in partnership in a tenanted premises and the said son had been examined below Exhibit 75. His deposition clearly indicates that he was doing business in tenanted premises and that the need to occupy suit premises to enable him to shift there was genuine. The other son of the landlady was living at Vikroli and he had also indicated his willingness to shift to the suit premises for doing the business. There is no reason to doubt the need as pleaded by the landlady in absence of any other material on record. Similarly, both the Courts have found that greater hardship would be caused to the landlady if the decree for eviction was not passed. Morever, in the light of the fact that the premises in question was admeasuring about 1200 square feet on the ground floor and a room on the first floor admeasuring 120 square feet, the question of partial ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 14 Judgment evicition would not have satisfied the need of the landlady especially when the need as pleaded was to accommodate her two sons. Hence the decree for evicition on the ground of bona fide need also does not deserve to be interfered with.
11. As regards eviction on the ground of arrears of rent, it has come on record that the notices issued by the landlady at Exhibit 47 had not been accepted by the sub-tenants. The postal receipts at Exhibit 48 and envelopes at Exhibits 49 to 51 clearly indicated refusal to accept the demand notice. It was further admitted by the sub-tenant examined below Exhibit 106 that the arrears of rent along with interest had not been deposited in the Court. There was no compliance with the provisions of Section 15(3) of the said Act. Thus, the decree as passed on the ground of arrears of rent also does not deserve to be interfered with.
12. Insofar as the tenant being proceeded ex-parte is concerned, the same would not come to the aid of the sub-tenants. It was for them to substantiate their defence as pleaded. Both the Courts have found that there was no documentary material to indicate that the suit premises were let out to them. The burden to prove the manner in which they came in possession was on the sub-tenants and that burden has not been satisfactorily discharged. There is also no reason to draw any adverse inference against the tenant for not contesting the proceedings. The ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 ::: WP 6938/16 15 Judgment tenant having put the sub-tenants in possession, it was clear that he had no interest in the litigation and it was for the sub-tenants to take necessary steps to defend the proceedings.
13. It is thus found that both the Courts have given due consideration to the pleadings of the parties as well as the evidence led by them. In absence of any perversity or jurisdictional error committed by the Courts, there is no reason to interfere in writ jurisdiction. The decree for eviction is thus maintained and the writ petition stands dismissed leaving the parties to bear their own costs.
14. At this stage, learned counsel for the petitioners seeks continuation of the interim relief for a period of eight weeks. This request is opposed by learned counsel for the landlady. Since the petitioners are in possession of the suit premises, the interim orders passed would continue to operate for a period of eight weeks from today and would cease to operate automatically thereafter.
(A.S. CHANDURKAR, J.) APTE/ANDURKAR ::: Uploaded on - 10/06/2019 ::: Downloaded on - 14/07/2019 13:57:00 :::