Saturday, 11 November 2017

When tenant is liable to be evicted on ground of change of user from residential to commercial?

 I have carefully considered the pleadings, oral evidence and the documentary evidence Exhibit 58. I have also considered the findings recorded by the first appellate Court. It appears that the first appellate Court was weighed with the part of the evidence showing description of the property and therefore, reached a conclusion that the property must have been used for business purposes. The fact remains that the first appellate Court did not refer to the exchange of notices amongst the parties, did not care to find out from the pleadings of the parties the purpose of letting the suit property. In my view, the judgment and order passed by the first appellate Court requires to be quashed and set aside. I am of the opinion that the totality of the pleadings and evidence on record shows that the property was not let out for duel purposes i.e. residential and business.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 981 of 2001 and Civil Application No. 6621 of 2005

Decided On: 11.01.2010

Gopalkrishna Ganpat Gulve  Vs.Shobhachand Raychand Firodiya

Hon'ble Judges/Coram:
S.B. Deshmukh, J.
Citation: 2010 (2 ) ALLMR 69

1. Heard learned Counsel for the respective parties.

2. This petition takes an exception to the judgment and decree passed by the learned III Additional District Judge, Ahmednagar in R.C.A. No. 98 of 1999 dated 9.2.2001.

3. Petitioners are the plaintiffs in Regular Civil Suit No. 596 of 1996 ("suit"). Parties, hereinafter, are being referred to their original status in the suit.

4. There is no dispute about the description of the suit property. Suit property situates at Karshetji Road, Ahmednagar bearing Municipal House No. 1805 corresponding to City Survey No. 2140. According to the plaintiffs, it is an ancestral property. They own the ground floor along with common toilet. The description of the suit property given in paragraph No. 1 of the plaint. There is no dispute amongst the parties over the description.

5. The plaintiffs filed the suit for possession of the suit property. According to the plaintiffs, suit property was let out for residential purpose alone. The plaintiffs have pleaded that monthly rental of the suit property was Rs. 200/- per month. Tenancy commences from 1st day of Gregorian calendar and comes to an end on the last day of the month. The first ground raised for eviction was default in payment of rent from 1.1.1995 till 30.9.1885. The total arrears of rent claimed by the plaintiffs are around Rs. 1800/-. Second ground pleaded in paragraph No. 3 of the plaint is bonafide requirement of the suit property by the plaintiffs i.e. under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging Act, 1947 ("said Act"). Plaintiffs have further pleaded in paragraph No. 4 that defendant had sought the property on rental basis for residential purposes. However, he is not using the property for the residential purposes. Defendant had purchased plot No. 30, a big property S. No. 512/1/5(A)/2. This is the suitable and convenient bungalow for residential purposes. Defendant, according to the plaintiffs, is residing in that bungalow for about three years. The plaintiffs, therefore, claimed that defendant has acquired suitable, convenient premises for residential purposes and therefore, under Section 13(1)(l) of the said Act possession has been sought. In paragraph No. 5 of the plaint, plaintiffs have raised a pleading that the property is not being used for residential purpose and therefore the plaintiffs are entitled for possession under Section 13(1)(k) of the said Act. In paragraph No. 6, the plaintiffs have pleaded that the defendant has changed user of the property, without written or oral permission from the plaintiffs. Thus, ground under Section 13(1)(a) has been raised for possession The suit seems to have been filed on 1.11.1996.

After entering appearance, defendant filed written statement at Exhibit 15 somewhere on 13.7.1998.

The trial Court, in view of the pleadings, settled the issues at Exhibit 26, which are around 11 in number.

6. The trial Court, after hearing the parties and considering the evidence, decreed the suit directing the defendant to hand over vacant possession of the property on 31.1.1999. For mesne profits, enquiry was directed under Order XX Rule 12 of CPC. Claim of the plaintiff for recovery of Rs. 1600/- was refused. Said judgment and decree is dated 30.11.1998.

This judgment and decree was appealed against by the defendant by filing RCA No. 98 of 1999.

The first appellate Court, as referred to in the foregoing paragraphs, allowed the appeal, quashed and set aside the judgment and decree and dismissed the suit filed by the plaintiffs. That is how the plaintiffs are before this Court in this Writ Petition.

7. I heard learned Counsel for the respective parties.

8. Both counsel took me through the service of notice, reply to the notice, pleadings of the parties and evidence relied upon. In substance, according to learned Counsel appearing for the plaintiffs, the judgment and decree passed by the first appellate Court is illegal and needs to be quashed and set aside. He seeks restoration of the judgment and decree for possession passed by the trial court.

Learned Counsel appearing for the defendant supports the judgment and decree passed by the first appellate Court. She also relied upon the judgment of the Larger Bench of the Supreme Court in the matter of Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj MANU/SC/0337/1961 : AIR 1963 SC 337.

9. The controversy amongst the parties is governed by the provisions of the said Act. In the facts and circumstances of the present case and more specifically on the background of the findings recorded by the trial court and first appellate Court as well, the controversial issue seems to be the purpose for which the property or suit premise was let by the plaintiffs to defendant. Letting out of immovable property by the landlord is the matter of prime importance. User of the property may be considered, in absence of pleadings and considering the nature of pleadings raised by the parties. Since it is a dispute amongst the landlord and tenant, governed by the provisions of the said Act, I have referred to the pleadings right from initiation of the proceedings. The notice issued by the plaintiffs is on record at Exhibit 25. This notice is dated 26.10.1995 addressed to the defendant by the plaintiffs.

In paragraph No. 1 of the notice, description of the property is given. In paragraph No. 2 of the notice a statement is made that premise / property was let out at monthly rent of Rs. 200/-. Relationship amongst the parties as landlord and tenant is mentioned. Tenancy commences on 1st day of Gregorian calendar and comes to an end on the last day of the month. Notice further conveys that the defendant is in arrears of rent from 1.1.1995 to 30.9.1995. According to noticee the defendant is a willful defaulter. This notice I have read in its entirety to find out as to for what purpose premises was let out by the plaintiffs to defendant. However, I could not find specific and clear statement that the property was let out for residential and business i.e. duel purposes. Notice contains the alleged grounds for eviction of the tenant.

10. Notice reply is on record at Exhibit 56. It is not paragraphed. I find a sentence in this reply that if the tenant is evicted from the suit property he would be thrown on road and suffer hardships not only for residence but in his business also. One more sentence, while replying the allegation of acquisition of the suitable residential accommodation is made in this reply by the defendant i.e. "Two sons of defendant are now married, one of them also has children and family of the tenant feels insufficiency of the premises i.e. suit premises. The tenant tried to seek another premises on lease/rent and was also trying to search other property for out-right purchase, however, could not get the premises suitable to his budget. By way of last resort, defendant was required to purchase the property beyond the limits of Ahmednagar Municipal Council in a suburb, namely; Kedgaon Gram Panchayt. There are so many inconveniences in that premises. Since it is far away from Ahmednagar town or city none of the sons of defendant are ready to shift their residence to that property. The business of the defendant is in town or Ahmednagar city and has also acquired goodwill and therefore, cannot shift to the premises at Kedgaon. Ultimately landlords are requested to withdraw their notice."

While parting with this notice reply, I may observe that the plaintiffs and defendant both have not specifically pleaded purpose of letting out the property or taking the suit premises on rent. Both learned Counsel agree that there is no rent note or any document showing the purpose of letting out the premises by the landlord to the defendant. With this, now, I turn to the pleadings of the parties.

11. From this point of view, I have seen the plaint. Unfortunately in the plaint, I could not find specific pleadings on the point of purpose for which the property was let. Shri Bedre, learned Advocate for the petitioner points out one sentence from paragraph No. 4 i.e. defendant has taken the property on rent for residential purpose. Learned Counsel appearing for defendant Smt. Deshmukh points out paragraph No. 16 of the written statement from this view point. There a statement is made that the defendant since beginning is using the suit property for residence and business purpose and this fact is well within the knowledge of the plaintiffs. Thus, with the assistance of the learned Counsel for the parties, I have perused this part of the pleadings from the plaint and written statement.

In my view, a statement made in paragraph No. 4 of the plaint that the property was taken by the defendant for residential purpose can be considered to be pleading or material fact, alleged by the plaintiffs. Statement pointed out by the learned Counsel for defendant in paragraph No. 16 of the written statement, however, cannot be accepted to be a pleading for the purpose for which the suit property was allegedly let out. Paragraph No. 16, in my view, is talking about the user of the property by the defendant.

12. Apart from the pleadings of the parties, which I have referred to above, learned Counsel for the petitioners also points out a document Exhibit 58 i.e. license issued by the competent authority i.e. Food grains Distribution Officer. It is in form "B" under the provisions of the Maharashtra Gur and Khandasari Distilleries Licensing Order, 1963. It is in favour of M/s Anand Trading Company. Learned Counsel for the defendant based on this document Exhibit 58 submitted that the suit property was used for the business purpose i.e. godown purpose partially and also for the purpose of residence. So far user of the property for residential purpose, there is no serious dispute. It is the case of the plaintiff that the property has been let out for residential purpose but then the plaintiffs have contended that it was exclusively let out for the residential purpose.

13. Apart from this document, learned Counsel for the parties have pointed out part of the evidence. I have considered the evidence of both the parties i.e. examination in chief and cross examination of plaintiffs and defendant. So far plaintiff's evidence is concerned, it appears that at Exhibit 19, evidence of Gopalkrishna was adduced on behalf of the plaintiffs. Learned Counsel for the defendant points out from paragraph No. 9 of his evidence that the plaintiffs have stated before the Court as to whether the defendant has taken the suit property for residential purposes and for business purposes. This is part of the cross examination of the plaintiff No. 1. However, in paragraph No. 4 of his examination in chief, plaintiff No. 1 has made a statement that the suit property was given to defendant for residential purpose. In paragraph No. 4 of the examination in chief, a positive statement is made by the plaintiff No. 1 which can be said to be in support of his pleadings. Paragraph No. 9 of the cross examination seems to be suggestion on behalf of the defendant to the plaintiffs and answer given by the plaintiff seems to be that he is not aware as to for what purpose property exactly was leased out.

14. I have also considered the evidence of defendant at Exhibit 43. Learned Counsel for the defendant points out from paragraph No. 1 of examination in chief that the suit property is let out for godown, shop and residential purposes. Paragraph No. 5 of the chief examination shows that he has admitted that he was doing the business in the name and style as Firodiya Trading Company but closed the business in 1992. Shri Bedre, learned Advocate for the plaintiffs submits that document Exhibit 58 shows description of the property which is different and not the suit property. However, learned Counsel appearing for the defendant submits that same is the suit property.

15. I have carefully considered the pleadings, oral evidence and the documentary evidence Exhibit 58. I have also considered the findings recorded by the first appellate Court. It appears that the first appellate Court was weighed with the part of the evidence showing description of the property and therefore, reached a conclusion that the property must have been used for business purposes. The fact remains that the first appellate Court did not refer to the exchange of notices amongst the parties, did not care to find out from the pleadings of the parties the purpose of letting the suit property. In my view, the judgment and order passed by the first appellate Court requires to be quashed and set aside. I am of the opinion that the totality of the pleadings and evidence on record shows that the property was not let out for duel purposes i.e. residential and business.

16. Learned Counsel for the defendant has relied upon the judgment of the Larger Bench of the Supreme Court in the case of Dr. Gopal Dass (supra). It is a case under the provisions of Delhi and Ajmer Rent Control Act, 1952. With the assistance of the learned Counsel appearing for the defendant I have gone through the facts listed by the Supreme Court in paragraph Nos. 2 to 5 of the said report. Therein, the Supreme Court has considered two sections of the Act concerned i.e. Section 13(1)(e) and 13(1)(h) of the relevant Act, on the background of the facts. The ratio of that judgment, in my view, does not help the defendant.

17. With this, I am of the view that the order impugned in this Writ Petition needs to be quashed and set aside and the order passed by the trial Court needs to be restored.

18. In the result, Writ Petition is allowed. Impugned order is quashed and set aside. Judgment and decree passed by the trial Court is restored. Rule accordingly made absolute in above terms with no order as to costs.

19. Learned Counsel for the defendant submits that the defendant is more than 70 years of age. She seeks six months time to vacate the property. Shri Bedre, learned Advocate fairly concedes for three months. In view of this matter, this order shall remain suspended for the period of three months on usual undertaking to be filed by the defendant in the trial Court within four weeks from today. In case of failure on the part of the defendant to file such an undertaking this order shall stand operative after four weeks from today.

20. Civil Application, consequently, stands disposed of.


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