Bombay High Court
Mohanlal S/O Chandulal Agrawal vs Shri Navalkishor S/O Radheshyam Kulwal on 23 July, 2015
Author: A.S.Chandurkar
Bench: A.S.Chandurkar
7-WP-1072-14 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1072 OF 2014
Mohanlal S/o Chandulal Agrawal
Aged about 76 years, Occ. Business.
R/o Near Shyam Talkies, Paratwada,
Tq. Achalpur, Dist Amrawati. ... Petitioner
-vs-
Navalkishor S/o Radheshyam Kulwal
Aged about 50 years, Occ. Business,
R/o Sadar Bazar, Paratwada
Tq. Achalpur, Dist Amrawati. ... Respondent.
WITH WRIT PETITION NO.4791 OF 2013 Navalkishor S/o Radheshyam Kulwal Aged about 50 years, Occ. Business, R/o Sadar Bazar, Paratwada Tq. Achalpur, Dist Amrawati. ... Petitioner
-vs-
Mohanlal S/o Chandulal Agrawal Aged about 76 years, Occ. Business.
R/o Near Shyam Talkies, Paratwada, Tq. Achalpur, Dist Amrawati. ... Respondent.
Shri A. S. Mehadia, Advocate for petitioner in W.P.No.1072/14 and for respondent in W.P.No.4791/13.
Shri Abhay Sambre, Advocate for respondent in W.P.No.1072/14 and for petitioner in W.P.No.4791/13.
CORAM : A.S.CHANDURKAR J.
DATE : JULY 23, 2015 Common Judgment :
::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 ::: 7-WP-1072-14 2/8Since both these writ petitions are directed against the judgment dated 12/02/2013 passed by the Appellate Court in proceedings for eviction, they are being decided by this common judgment.
2. Rule. Heard finally with consent of learned counsel for the parties.
The petitioner in W.P.No.1072 of 2014 is the owner of a two storied house on Nazul Plot No.10Sheet No.119-B, Mouza Paratwada, out of which two rooms on the ground floor have been let out to the respondent as tenant. The respondent is running his medical shop in said premises. According to the petitioner, the respondent was liable to pay monthly rent of Rs.500/- per month along with municipal taxes. It is the further case of the petitioner that he was running a shop on the southern portion of the building and said accommodation was falling short and hence there was a bonafide need of the tenanted premises for expanding his business. It was also the petitioner's case that he was a heart patient and hence was advised to shift on the ground floor of the premises. Therefore, the need for residence.
Hence, notice dated 06/01/2003 came to be issued to the respondent seeking arrears of municipal taxes and as the same were not paid, proceedings for eviction were filed.
3. The respondent filed his written statement in which it has stated that he was not liable to pay municipal taxes as there was no such agreement between the parties. According to him, the petitioner had other premises available and suit had been filed merely to evict the respondent from the premises. He also referred to the fact that the plaintiff was owning a double storied shopping complex in which some shops were lying vacant.
4. Before the trial Court, the plaintiff examined himself as well as his adopted son. A medical practitioner was also examined. The respondent ::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 ::: 7-WP-1072-14 3/8 examined himself. The trial Court on consideration of the evidence on record found that the respondent was liable to pay municipal taxes in respect of the shops occupied by him. It further held that the plaintiff had proved his bonafide need for the premises and that greater hardship would be caused to him if the decree was not passed. The suit was accordingly decreed. The decree for eviction was challenged by the respondent and the Appellate Court held that the respondent was not liable to pay any municipal taxes. It confirmed the finding regarding bonafide need but however directed eviction of the respondent only from one room out of the two occupied by him. The landlord is therefore aggrieved by the partial decree for eviction while the tenant has challenged the decree for eviction as passed.
5. Shri A. S. Mehadia, learned counsel appearing for the landlord submitted that the Appellate Court erred in setting aside the decree as passed on the ground of arrears of municipal taxes. He submitted that in the rent note issued to the respondent, it had been specifically mentioned that the tenant was liable to pay municipal taxes. He then submitted that bonafide need having been duly proved, partial eviction in respect of one shop could not have been directed. According to him, the tenant was having another shop premises from where the business was being run by his son while the petitioner was a heart patient and hence the need for residence as well as for business purposes ought to have been taken into consideration. He submitted that though earlier proceedings for eviction had been filed under provisions of the C.P. and Berar Letting of Premises and Rent Control Order, 1949, same did not amount to res judicata to bar the present proceedings. In support of his submissions, he placed reliance on judgments in Surajmal v. Radheshyam (1988)3 Supreme Court Cases 18, Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada AIR 2003 SC 2713 and Motor Cycle House And Metro Cottage Industries, Pune & anr. v.
::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 ::: 7-WP-1072-14 4/8Kamalabai Dattatraya Kale & ors. 2005 (3) MhLJ 1129. He therefore submitted that the decree passed by the trial Court ought to be maintained.
6. Shri Abhay Sambre, the learned counsel appearing for the tenant opposed aforesaid submissions. According to him, the earlier proceedings for eviction had been filed on the very same ground of bonafide need, but they had not been pursued. He submitted that the present proceedings were not maintainable as the same amounted to res judicata. He then submitted that there was no agreement whatsoever to pay municipal taxes. At no point of time was any demand made for municipal taxes and said fact had been clarified in the reply given by the tenant. It was then submitted that the landlord was in possession of sufficient premises and had in fact sold one shop after filing the present proceedings. Two shop blocks in the shopping complex were in possession of the son of the landlord and hence it could not be said that there was bonafide need of the premises. He further submitted that the landlord ought to have disclosed all the premises that were in his occupation before seeking the eviction of the tenant. He therefore submitted that the bonafide need of the landlord was not proved. He placed reliance on the decision in Narendra Gulabrao Zade vs. Shiocharan Ghashiram Gupta since deceased Thr. L.Rs. Radhabai Shivcharan Gupta & Anr. 2011(1) Mh.L.J. 839. Without prejudice he submitted that if at all the need was found to be proved, the decree for partial eviction was justified especially when the landlord had other premises in his occupation. In that regard he placed reliance on judgment in Bismilla Bee s/o Sk. Chand and anr. Vs. Mohd. Anwar s/o Mohd. Akhtar 2010(2) Mh.L.J. 829.
7. I have carefully considered the respective submissions. In so far as the claim for municipal taxes is concerned, it is to be noted that since inception of the tenancy, municipal taxes were not being paid by the ::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 ::: 7-WP-1072-14 5/8 landlord. The rent payable was Rs.500/- per month. According to the landlord as there was a stipulation made in the rent note, the respondent was liable to pay municipal taxes. On behalf of the tenant it is stated that there was no such agreement to pay municipal taxes. The Appellate Court on the basis of this evidence on record found that there was nothing on record to indicate that there was an agreement between the parties that the respondent would pay municipal taxes. This conclusion having been arrived at after considering the evidence led by the parties, cannot be said to be a perverse finding requiring interference in writ jurisdiction. Moreover, as held in Girish Gangadhar Agarwal Vs. Jiteshkumar Vashariya 2009(6) Mh.L.J. 875, a landlord's entitlement to municipal taxes is subject to same being paid by him first to the Muncipal Council. There is no such finding on record.
Hence the finding that the respondent was not liable to pay municipal taxes as recorded by the Appellate Court does not deserve to be interfered with.
8. As regards bonafide need, it is the specific case of the landlord that he was running a Krishi Udyog in part of the building in which the tenant was occupying two shops. He was staying on the first floor and being a heart patient, he was asked to shift on the ground floor. He also required premises for expanding his business. The landlord was aged about 66 years when he initiated the proceedings in the year 2003. He also examined medical practitioner to support his stand. Though the medical practitioner examined stated that he was not a heart specialist, his evidence indicates that the petitioner was taking treatment from him and he had advised the petitioner to shift on the ground floor.
9. The evidence on record further indicates that the landlord was ::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 ::: 7-WP-1072-14 6/8 having a shopping complex near Jaistambha Chowk in which two shops were in possession of his son from where he was conducting his business.
Three of the shop blocks had been sold by the landlord. He was also owing a residential house at a different location.
In so far as the tenant is concerned, he was owing a double storied building on the backside of the office of the Municipal Council in which he had half share. The tenant's son was running a medical shop in the said building in two blocks. There was another building in front of S.T. Depot by name 'Saket' which was also owned by the tenant and his brother.
10. The trial Court as well as the Appellate Court after considering the entire evidence on record found that the need of the landlord was bonafide and that he had proved that the premises were required for expansion of his business and for residence. On that basis, eviction came to be ordered.
Though it is sought to be urged on behalf of the tenant that the landlord had not brought on record all the premises occupied by him and that one shop premises had been sold after filing the present proceedings, same is not sufficient to doubt the bonafides of the landlord. The evidence on record indicates that his son is doing business in another premises while the landlord was doing business of Krishi Udyog on the southern side of the tenanted premises. The evidence in the form of income tax returns had been placed on record and on that basis it was held that the plaintiff was in need of additional area for his business. The concurrent finding regarding bonafide need recorded by both the Courts is based on the evidence on record and the same does not deserve to be interfered with.
11. As regards the stand that the present proceedings were barred by principles of res judicata, it is well settled that in so far as bonafide need is concerned, the same undergoes change with passage of time. The need as ::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 ::: 7-WP-1072-14 7/8 pleaded in the earlier proceedings would not dis-entitle the landlord to initiate fresh proceedings after passage of time. Reference in that regard can be made to the decision of the Supreme Court in Surajmal (supra). Moreover, said proceedings had been initiated in the year 1990 seeking eviction on the ground of arrears of rent and need for residence. The present proceedings for eviction were filed in the year 2003 that is after almost thirteen years and the need is also for expanding the business. The present proceedings seeking eviction on the ground of need for residence and expansion of business are not barred by principles of res-judicata.
12. As regards the aspect of hardship, the Appellate Court has recorded a finding in paragraph 21 that there was evidence on record that the tenant had other premises in the city in which his son and brother were doing business. It has further also observed in paragraph 24 of the judgment that as such other premises were available to the tenant, he had failed to prove that greater hardship would be caused to him. Considering the fact that the son of the tenant was running a medical shop by name 'Naval Agencies' and that there was another building behind the Municipal Council in which he had half share, the question of hardship had been rightly answered by the Appellate Court that same would not be caused to the tenant. The finding regarding hardship is a finding of fact as held by the Supreme Court in Dr Ranbir Singh Vs. Ashrafi Lal (1995) 6 SCC 580.
13. Having recorded a finding that the tenant had failed to prove that greater hardship would be caused to him, there was no reason to consider the aspect of partial eviction. However, the Appellate Court observed that one shop block could be used for residence while the tenant could retain the other. On that basis, a decree for partial eviction has been passed. In the light of the finding of fact as recorded that the tenant had failed to prove ::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 ::: 7-WP-1072-14 8/8 greater hardship, there was no reason to pass a decree for partial eviction.
14. The landlord being the best judge of his need, the Appellate Court could not have directed the manner in which he should have conducted his affairs by directing partial eviction. The decision relied upon in the case of Bismilla Bee (supra) on the aspect of partial eviction cannot be made applicable to the facts of the present case especially when a finding that no hardship would be caused to the tenant was already recorded. Even otherwise, as held in Motor Cycle House (supra), once bonafide need is proved, the question of hardship normally tilts in favour of the landlord. On the facts of the case, it is clear that the decree for partial eviction despite absence of hardship to the tenant results in grave injustice and a case of interference is made out. Hence to that extent the decree for partial eviction passed by the Appellate Court cannot be sustained.
12. In view of aforesaid, the following order is passed :
i) The judgment dated 12/02/2013 passed by the Appellate Court in R.C.A. No.21 of 2008 is partly modified and the landlord is held entitled for possession of both the shop blocks occupied by the tenant.
ii) W.P.No.1072 of 2014 stands allowed and W.P.No.4791 of 2013 stands dismissed. No order as to costs.
At this stage, learned counsel for the tenant prays for suspending the effect and operation of the judgment. Hence for a period of eight weeks from today, the judgment shall remain stayed.
JUDGE Asmita ::: Uploaded on - 01/08/2015 ::: Downloaded on - 10/09/2015 19:54:06 :::