Wednesday, 8 May 2019

Whether court is supposed to decide issue of comparative hardship if tenant fails to raise plea of comparative hardship?

The learned Counsel has further urged that the Trial Court has failed to make any enquiry into the aspect of comparative hardship. He has relied upon the decision of this Court reported in Bismilla Bee Sk. Chand and Anr. v. Mohd. Anwar Mohd. Akhtar 2010 (2) BCR 63. In the said judgment it has been held that the burden of proof as to comparative hardship is upon the tenant. In view of this, it is obligatory on the part of the tenant to first of all raise a plea of comparative hardship. It is only upon such plea being raised in the written statement that the Trial Court is obliged to make an enquiry irrespective of the fact whether there is any such demand or not. The judgment cited supra, does not lay down a law that even if such plea is not raised in written statement the Trial Court is obliged to make an enquiry. Hence, it is of no assistance. In the present case, after going through the written statement, I do not find such a plea of comparative hardship has been raised by the tenant. In view of this the judgment is of no help to the petition

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 4332 of 2010

Decided On: 21.06.2011

 Vilaschand Vs. Bhimchand

Hon'ble Judges/Coram:
R.K. Deshpande, J.

Citation: 2011(4) MHLJ 864,2011(6) ALLMR 248,2011(6) Bom CR 81


1. The Learned Second Additional Judge, Small Causes Court, Nagpur, by its judgment and order dated 9.3.2007, has decreed the Regular Civil Suit No. 404 of 2002. The Petitioner/Defendant, who is the tenant has been directed to deliver the vacant and peaceful possession of the suit premises to the Respondent/Plaintiff and enquiry into the future profits has also been directed to be made. The decree for eviction has been passed on the ground of arrears of rent and bonafide need. Regular Civil Appeal No. 229 of 2007 filed by the Petitioner challenging the decree passed by the Small Causes Court has been dismissed by the judgment and order dated 5.2.2010, by the Appellate Court.

2. The learned Counsel for the Petitioner has raised three points (1) the landlord has given an admission that there are other properties owned by him and the said properties have not been disclosed, (2) the burden to establish the bonafide requirement is upon the landlord, however the Trial Court has shifted the said burden upon Petitioner and (3) no case has been made out for grant of decree for eviction and possession either on the ground of bonafide requirement or on the ground of arrears of rent.

3. With the assistance of the learned Counsels appearing for the parties I have gone through the evidence of landlord. The landlord has denied the suggestion that he holds any other property except the suit premises. The other properties belong to his son. The Trial Court has recorded the finding that the Petitioner/tenant has failed to bring on record any evidence to show, that the landlord owns any other properties. The learned Counsel could not point out any such evidence brought on record. Hence, no fault can be found in the findings recorded by the Trial Court, as has been confirmed in appeal.

4. The learned Counsel has further urged that the Trial Court has failed to make any enquiry into the aspect of comparative hardship. He has relied upon the decision of this Court reported in Bismilla Bee Sk. Chand and Anr. v. Mohd. Anwar Mohd. Akhtar 2010 (2) BCR 63. In the said judgment it has been held that the burden of proof as to comparative hardship is upon the tenant. In view of this, it is obligatory on the part of the tenant to first of all raise a plea of comparative hardship. It is only upon such plea being raised in the written statement that the Trial Court is obliged to make an enquiry irrespective of the fact whether there is any such demand or not. The judgment cited supra, does not lay down a law that even if such plea is not raised in written statement the Trial Court is obliged to make an enquiry. Hence, it is of no assistance. In the present case, after going through the written statement, I do not find such a plea of comparative hardship has been raised by the tenant. In view of this the judgment is of no help to the petition

5. The learned Counsel has further urged that although the Appellate Court has been dismissed the appeal, it has also rejected the Regular Civil Suit No. 404 of 2002 decided on 9.3.2007. It is true that perusal of the operative part of the order shows the appeal has been dismissed, but the judgment and decreed passed by the Trial Court in Regular Civil Suit No. 404 of 2002 on 9.3.2007, has been rejected. After going through the entire judgment and the finding recorded, it seems that there is some mistake in such part of the order passed by the Appellate Court.

6. The learned Counsel for the Respondents submits that, the Respondents intent to file an application before the Appellate Court for correction of such order. Be that as it may, there is no ground made out for interference in the finding of fact recorded by the Courts below.

7. At this stage, the learned Counsel for the Petitioners submits that the interim order passed by this Court is operating and hence the same may be continued for a period of two weeks. The said request is opposed by the learned Counsel for the Respondent. However, keeping in view the fact that the interim order is operating, the same is continued for a period of ten days from today, after expiry of the said period, it shall automatically stands vacated without reference to the Court.

8. In the result, the petition is, therefore, dismissed. No order as to costs.


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