Sunday, 22 October 2017

When order of striking off defence of tenant for non payment of rent amount is liable to be set aside?

The third aspect is that between the date of the order dated 21st April, 2008 Under Section 15(1) of the Act till February, 2009 the Petitioner had made further payments of rent. One of these payments was made on 27th June, 2008 while the second payment was made on 17th December, 2008. These payments represented rent for a period of six months. This means that the Petitioner had paid advance rent upto 31st August, 2009. Not only that, the Petitioner had made two further deposits, one on 1st May, 2009 and the second on 5th May, 2009. These payments when taken into consideration cleared the entire rent liability of the Petitioner for a period of one year and nine months commencing from 1st September, 2009 onwards. If that be so the Petitioner was not in default on the date of the order passed by the Trial Court striking out his defence and for a considerable period beyond that. The Petitioner has in the special leave petition referred to certain subsequent payments also but we consider it unnecessary to go into those details. What is important is that as on the date of the order passed by the Trial Court on 21st April, 2008 itself the entire arrears directed to be deposited by the Petitioner stood paid by him and so also on the date of the order passed by the Trial Court striking out his defence, rent for the entire intervening period and even beyond had been paid. These payments may require reconciliation, calculations and suitable adjustments against the months for which rent was payable but what cannot be disputed is that the amount which the Petitioner was called upon to pay and which he has, pursuant to the direction of the Trial Court, paid or deposited has been at all relevant points of time in excess of what was payable to the landlord. The charge of contumacious failure and deliberate default in making the payment levelled against the tenant is, therefore, not well-founded. The Petitioner on the contrary was at all points of time keen to pay the amount of rent in excess of what was lawfully due. This may have been partly because of the consequences that flow from nonpayment and partly because the amount of contractual rent is, by the current standard of market rent, very meagre. The withholding of such a meagre amount was a risk that no prudent tenant protected under the Rent Control law of the land could take nor was it a case where by withholding the kind of amount which was due towards rent would have in any manner benefited the tenant, just as the same would not have deprived the landlord of any major financial income from the property let out by him. It is true that just because the amount payable for the premises is low and payment or non-payment thereof makes little difference to either the tenant or the landlord, is no reason for the tenant not paying the rent as and when due. The question, however, is not whether the denial of the amount would have caused any major prejudice to the landlord or put the tenant under any financial burden. The question is whether the tenant was guilty of contumacious conduct in withholding such payment. While answering that question, the amount of rent payable for the premises may be a factor which cannot be totally brushed aside. Suffice it to say that the facts and circumstances of the case at hand do not, in my opinion, suggest any negligence, defiance or contumacious nonpayment of the amount due to the landlord to warrant the taking of that "exceptional step" which is bound to render the tenant defenceless in his contest against the landlord.

36. It is noteworthy that in the course of hearing before us, learned Counsel for the Petitioner-tenant had offered to raise rent by ten times of the current amount and pay the same in advance for a period of five years to show his bona fides. From the point of view of the landlords this may be seen as a damage control desperate bid to avoid eviction by winning the sympathy of the Court but from the point of view of the tenant it only shows that the tenant does not grudge the landlord getting what is legitimately due to him. The cumulative effect of all these circumstances, in my view, entitles the tenant to an opportunity to contest the suit for eviction. It is a different matter that the contest may eventually result in his eviction but there is no need to prejudge the matter on merits nor any valid reason to deprive the tenant-Petitioner the bare minimum opportunity to contest the eviction petition on merits.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4563 of 2014 (Arising out of S.L.P. (C) No. 26941 of 2011)

Decided On: 16.04.2014

 Dina Nath (D) by L.Rs. and Anr.Vs. Subhash Chand Saini and Ors.

Hon'ble Judges/Coram:
T.S. Thakur and J.S. Khehar, JJ.
Citation:(2014) 11 SCC 20;



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How to ascertain comparative hardship in eviction suit?

 Insofar as the submissions advanced by the learned Counsel for the rival parties are concerned, the first question that draws our attention is, whether or not the need of the Appellants was bona fide, when the civil suit was preferred by the Appellants on 10.09.1982. Having given our thoughtful consideration to the aforesaid issue, we are satisfied, that the fact, that the instant premises was purchased by the Appellants on 06.09.1980 for a total consideration of Rs. 10,000/- even though the same was earning a meager rent of Rs. 36/- per month, is indicative of the fact, that the Appellants had not purchased the premises for earning rent therefrom, but for the purpose of running a business therein. The assertion made by the Appellants that they wished to sell betel-leaves and related articles in the premises, has not been seriously contested at the hands of the Respondents. But then, were the Appellants engaged in some other alternative business, at the time when the civil suit was filed? It was not the case of the Respondents, that any business activities were being carried out by the Appellants independently, from their father and uncle, when the civil suit was filed. It certainly cannot be the claim at the behest of a tenant, that the owner of a premises must continue in business with his parents or relations, assuming there was a joint business activity, to start with. That is usual, and happens all the time when children come of age. And thereafter, they must have the choice to run their own life, by earning their own livelihood. The property owner has the right to use his property as he chooses, and if the Appellants in the instant case had purchased the suit property, for running their own business, we find no irregularity therein, nor can there be any doubt about their bona fide desire to run the proposed business in the premises, independent of the other family members. The premises measuring a mere 9.7 square meters, we are satisfied would be most suitable for the business proposed by the Appellants, namely, for selling betel-nuts and betel-leaves. This is the usual size of the shops engaged in such business.

14. The aforesaid determination, however, would not render a final decision in favour of the Appellants, for the reason, that we would still have to determine whether the bona fide need of the Appellants was subsisting? It is therefore, that we will venture to deal with the affidavit placed on our record, by the learned Counsel for the Respondents, relevant extracts of which have been reproduced hereinabove. A perusal of the same reveals, that reference therein has been made to a property bearing CTS No. 3569/A admeasuring 114-2 square meters. This property was purchased during the pendency of the proceedings arising out of Regular Civil Suit No. 420 of 1982. The affidavit itself indicates, that the aforesaid premises is being used by the Appellants to run a flour mill. Even if the aforesaid factual position is accepted, it cannot be the case of the Respondents, that the Appellants can run their betel-nuts and betel-leaves business, from the premises which has a running flour mill. Thus viewed, the purchase of property bearing CTS No. 3569/A is inconsequential insofar as the present controversy is concerned. The above affidavit further indicates, the purchase of property bearing CTS No. 3568/A admeasuring 105-7 square meters by the Appellants. This property was also purchased during the pendency of the proceedings arising out of Regular Civil Suit No. 420 of 1982. It was also submitted, that the instant property bearing CTS No. 3568/A, is at a distance of merely 100 meters from the suit property. It is also the assertion of the learned Counsel for the Respondents, that the Appellants are running wholesale business of various goods including betel-leaves, cigarettes and fire-work items, and as such, the instant premises could be put to use for the additional purpose, for which the suit premises is being claimed by the Appellants. Even though the instant contention appears to be attractive, it is not possible for us to accept the same, because a retail business of selling betel-nuts, bidi and tobacco etc. cannot be run from a premises as large as the one in CTS No. 3568/A which admittedly measures 105-7 square meters. It is unlikely for customers to visit such a large premises for buying betel-leaves, betel-nuts and bidis etc. In our view, the suit premises which measures 9.7 square meters would attract retailers of the trade under reference, as shops selling betel-leaves and betel-nuts are usually of the size of the suit property. We therefore decline the submissions advanced by the learned Counsel for the Respondents in this regard.

15. Having arrived at the above conclusion, it is imperative for us also to determine the question of comparative hardship between the parties. It was the submission of the learned Counsel for the Respondents, that they have no business premises other than the one in question to earn their livelihood, and that, if the Respondents were to be vacated from the premises, they would be deprived of their entire livelihood. The submissions advanced by the learned Counsel for the Respondents, in our view, does not lie in his mouth specially on account of the factual position depicted in the findings recorded by the trial Court in paragraph 13 of the order dated 15.03.1989, which is being extracted hereunder:

13. Now it has to be seen as to whom greater hardship will cause in case of eviction. The fact is on record that adjacent to suit property, there is property bearing C.T.S. No. 2641 wherein the Defendant is running grocery shop. So in case of eviction of Defendant from the suit premises, there will not be much loss to the Defendant as already he is in possession of some premises adjacent to the suit premises. No fact was brought on record that this premises C.T.S. No. 2641 is not sufficient for him to run both business of grocery shop and paint. It was contended on behalf of the Defendant that he will have to remain without food in case of his eviction from the suit premises. But this contention of the Defendant appears to be baseless, because, the record shows that, the Defendant has got agricultural lands, bicycle shop in the name of his son and also grocery shop being run in C.T.S. No. 2641 adjacent to the suit property. Further the fact is on record that, the Defendant is running wine shop in partnership. So all these circumstances are sufficient to infer that, the Defendant will not be put to greater hardship in case he is evicted from the suit property, because there is alternative accommodation available for the Defendant which is adjacent to the suit premises and there are other sources from which the Defendant can earn and is earning. Much efforts were made on behalf of the Defendants to show how the Plaintiffs are economically sound. It was shown on behalf of the Defendant that the Plaintiffs are dealing the business of matador and for that he has examined witness Devdhar and Dhale. The witness Devdhar has stated that he was driver on the matador of the Plaintiffs and the Plaintiffs used to pay his remuneration. The witness Dhale has stated that at one occasion he had obtained the vehicle of the Plaintiffs on hire to proceed on journey. The sum and substance of the Defendants contention appears that the Plaintiffs are well to do. But even if for the sake of time being it is presumed that, the Plaintiffs are dealing in business of matador, that cannot be linked with the need of Plaintiff's suit premises, because in the matador the Plaintiffs cannot run their business of betel leaves, bidy, cigarettes and other in which they desire to step. For this business only property like suit premises (is) required and matador will not fulfill that purpose. Therefore I am not inclined to rely upon the contentions of the Defendant that he will suffer more loss in case of his eviction and that loss will be comparatively more the suit premises. Consequently, I am of the opinion that, more hardship will be caused to the Plaintiffs if they are not put in possession of the suit premises because it will be as like to deprive Plaintiffs from their right and enjoy their own property for their bonafide requirement. Fact has been admitted by the Defendant that, the Plaintiffs are well vertical in business of pan, bidy etc. It is for all the time contention of the Defendant that, the suit property has been purchased by the Plaintiffs, that the rent has been paid by him to Plaintiffs, so all these callings by Defendant to Plaintiffs in relation to suit property shows that, suit property has been presumed by Defendant as belong to the Plaintiffs and in existence of these facts contention of the Defendant cannot be accepted that there is alternative accommodation for Plaintiffs to run their business in the premises of their father or uncle when it is not basic contention of the Defendant that, the suit property has been purchased by the Plaintiffs, their father and uncle jointly. In the result, I answer issue No. 7A in the affirmative and issue No. 7B accordingly.

(Emphasis is ours)

16. The reason for us to rely on the averments recorded in paragraph 13 extracted hereinabove, emerges from the fact, that the factual position depicted therein, was not disputed by the Respondents, in the affidavit filed before the High Court. Although, in the affidavit filed before the High Court, Respondent No. 1 made a reference to some of the properties which were used for business by his wife Kusum Kokate, he did not dispute the fact that he was running a grocery shop in CTS No. 2641, and besides the aforesaid, he had a separate business premises wherein he was having a bicycle-shop and, in addition thereto, he had agricultural lands. It is also not disputed that the Respondent was running a wine shop in partnership with his wife. Thus viewed, we are satisfied, that the comparative hardship would be that of the Appellants, as against the Respondents.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8648 of 2015 (Arising out of SLP (C) No. 22973 of 2010)

Decided On: 14.10.2015

Faruk Ilahi Tamboli and Ors. Vs.B.S. Shankarrao Kokate and Ors.

Hon'ble Judges/Coram:
J.S. Khehar and R. Banumathi, JJ.
Citation: (2016) 15 SCC 431
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When tenant will not be evicted from tenanted premises even if he denies title of landlord?

Even the other ground, about denial of title by the tenant, the District Court has found that this plea was necessitated because of the civil suit pending between the appellant and one Vishwanath Tandale, filed by the appellant himself before the Civil Court bearing RCS No.1044 of 1983. That suit was pending at the relevant time. The fact that the respondent-tenant rushed to the Rent Controller immediately after receipt of notice from the appellant, is indicative of a bonafide plea taken by the respondent-tenant regarding dispute of ownership of the suit shop; and a plea legitimately available to the respondent-tenant. This finding of the District Court found favour with the High Court. Even in respect of this finding no interference is called for, being flawless.
NON-REPORTABLE

Supreme Court of India
Baburao vs Pokhardas(D) Tr.Lrs on 16 August, 2016

Bench: T.S. Thakur, A.M. Khanwilkar, D.Y. Chandrachud
Citation:(2016) 15 SCC 97
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Whether it is permissible for landlord to take plea of bonafide need at appellate stage?

Further, the original eviction application was filed by the appellant as back as in the year 1988 and by passage of time the appellant has already become 84 years of age. He has three sons who are yet to settle down. It is contended that the appellant requires the suit shop for his personal and bonafide need for which reason also order of eviction passed by the Rent Controller should be restored. The respondent-tenant, on the other hand, contends that the latter contention raised by the appellant cannot be taken note of. In that, the present appeal arises from the eviction proceedings instituted by the appellant limited to the ground of arrears of rent and willful default committed by the tenant. The ground on which eviction of the respondent- tenant was prayed has been thoroughly examined by the District Court and the finding of fact recorded by the District Court has found favour with the High Court, which needs no interference in the present appeal. The learned counsel for the respondent submitted that the plea of personal and bonafide requirement is untenable. As per her instructions, two sons of the appellant have since expired. The third son is gainfully employed and doing business in another commercial premises in possession of the appellant. Moreover, the appellant has sufficient accommodation in his possession. It is submitted that the appeal is devoid of merit and be dismissed.
 That leaves us with the contention of the appellant, raised for the first time, that the appellant requires the suit shop for his personal and bonafide need. The factual position stated by the appellant in support of this plea has been stoutly countered by the respondent-tenant. It is, however, not necessary for us to burden this judgment with the said issue. Firstly, because the original eviction application was limited to the ground of arrears of rent and willful default. Secondly, the ground of personal and bonafide requirement is an independent ground on which the appellant must pursue his remedy before the Rent Controller in the first instance and also succeed in substantiating the relevant material facts in that behalf.
NON-REPORTABLE

Supreme Court of India
Baburao vs Pokhardas(D) Tr.Lrs on 16 August, 2016

Bench: T.S. Thakur, A.M. Khanwilkar, D.Y. Chandrachud
Citation:(2016) 15 SCC 97
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