Wednesday, 8 May 2019

Whether eviction decree is to be passed against tenant if he pays rent irregularly even after receipt of demand notice?

It is undisputed that the petitioner is a landlord and the defendant Nos. 1 and 2 are the tenants. It is also not disputed that the agreed rent is Rs. 400/- p.m. The bone of contention is about the payment of rent. The landlord had issued a notice on 2-9-2002, demanding the payment of rent, failing which necessary suit would be filed for recovery of amount and possession. The receipt of the said notice is not disputed by the tenant. The suit is filed on 2-12-2002. It is on record that the tenant had issued the banker's cheque in respect of the rent on 30-12-2002 i.e. after the lapse of 90 days and that too without the amount of interest. Both the Courts have concurrently found and held that the tenant failed to pay the rent within the period of 90 days from the date of service of notice upon him. The fact that the tenant did not deposit the rent along with interest after the lapse of 90 days is also held by both the Courts. Moreover, it is also observed concurrently by both the Courts that even during the pendency of the proceedings, the defendant has failed to deposit the rent regularly every month but has deposited in lumpsum sometimes the rent of eight months together. In such circumstances, even the judgment of the Division Bench of this Court in a case of Sitaram Maruti Nagpure vs. Fakirchand Purushottam Dhase referred supra and the judgment of the learned Single Judge of this Court in a case of Sitaram Narayan Shinde and others vs. Ibrahim Ismail Rais and others referred supra would not be applicable and the tenant would be liable for a decree of eviction on the said ground of having committed default.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

W.P. No. 4722 of 2011

Decided On: 20.09.2011

 Rafiq Ahmed Qureshi Vs.Iqbal Khan and Ors.

Hon'ble Judges/Coram:
S.V. Gangapurwala, J.

Citation: 2012(4)ALLMR647, 2012(1)MhLj337






1. Heard. Rule. Rule returnable forthwith. With the consent of the parties, the petition is taken up for final hearing.

2. The present petitioner/original plaintiff/landlord has instituted suit for possession and recovery of arrears of rent. The suit for possession/eviction was filed by the present petitioner on multifarious grounds namely :

(i) The tenant/defendant has committed default;

(ii) The tenant is guilty of nuisance;

(iii) The tenant has sublet the suit premises to the Respondent No. 3.

(iv) The tenant has made structural changes in the suit property, so as to impair the utility of the suit premises and

(v) The petitioner requires the suit premises bona fidely for its own personal use. The suit property is a shop premises;

3. The trial Court decreed the suit of the petitioner on the grounds :

(i) The tenant has committed default in payment of rent;

(ii) The defendant Nos. 1 and 2 have sublet the suit premises to the defendant No. 3;

(iii) The petitioner landlord requires the suit premises bona fide for his personal use.

4. Aggrieved by the judgment of the trial Court, the tenant preferred an appeal. Appellate Court held that the tenant has committed default in payment of rent but did not pass a decree for eviction and allowed the appeal dismissing the suit of the plaintiff.

5. The original plaintiff/landlord has assailed the said judgment in the present Writ Petition.

6. Mr. Sagar Killarikar, learned counsel for the petitioner/plaintiff submits that though the appellate Court has come to the conclusion that the tenant is guilty of default in payment of the rent, still, has refrained from passing the decree of eviction. Once, the Court had come to the conclusion that the tenant has committed default then the appellate Court could not have refrained from passing the decree of eviction.

7. The learned counsel further contends that even the appellate Court has come to the conclusion that the petitioner requires the suit premises bona fide for his own personal use but has negatived the relief only on the ground that the hardship would be caused more to the tenant. The tenant has not led any evidence and could not show hardship. The hardship has to be pleaded and proved. It is further contended by the learned counsel that even the ground of sub-tenancy is proved by the evidence of the plaintiff and defendant has not led any evidence controverting the case of the plaintiff. To substantiate his ground that the notice has been validly issued and the eviction should have been ordered. The learned counsel relied on the judgment of the Apex Court in a case of V. Dhanapal Chettiar vs. Yesodai Ammal, reported in 1979 Mh.L.J. (SC) 773 = AIR 1979 SC 1745(1).

8. Per contra, Mr. S. V. Chandole, learned counsel for the Respondent submits that notice as is issued does not satisfy the ingredients as required under section 15 of the Maharashtra Rent Act and in view of such a defective notice, no decree for eviction can be passed on the ground of default. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Sitaram Narayan Shinde and others vs. Ibrahim Ismail Rais and others, reported in MANU/MH/0381/2004 : 2005(1) Mh.L.J. 35 = 2005 (2) BCR 427.

9. Mr. Chandole, learned counsel further contends that the evidence on record is sufficient to imply that the tenant was ready and willing to pay the rent. In such circumstances, tie decree for eviction could not have been passed. For the said purpose, the learned counsel relies on the judgment of the Division Bench of this Court in a case of Sitaram Maruti Nagpure vs. Fakirchand Purushottam Dhase, reported in MANU/MH/0862/2007 : 2008 (3) Mh.L.J. 610. The learned counsel further contends that the bona fide need or genuine need will have to be given its literal meaning, mere desire is not sufficient. In the present case, the landlord has many shops and it is not brought on record that the said premises, where he is running his business is not sufficient for carrying on his business. In such circumstances, no decree for eviction can be passed on the said ground. The learned counsel relies on the judgment of the Apex Court in a case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta, reported in MANU/SC/0432/1999 : AIR 1999 SC 2507. It is further contended that the ground of subtenancy has not at all been proved and the lower appellate Court has rightly considered the same.

10. It is undisputed that the petitioner is a landlord and the defendant Nos. 1 and 2 are the tenants. It is also not disputed that the agreed rent is Rs. 400/- p.m. The bone of contention is about the payment of rent. The landlord had issued a notice on 2-9-2002, demanding the payment of rent, failing which necessary suit would be filed for recovery of amount and possession. The receipt of the said notice is not disputed by the tenant. The suit is filed on 2-12-2002. It is on record that the tenant had issued the banker's cheque in respect of the rent on 30-12-2002 i.e. after the lapse of 90 days and that too without the amount of interest. Both the Courts have concurrently found and held that the tenant failed to pay the rent within the period of 90 days from the date of service of notice upon him. The fact that the tenant did not deposit the rent along with interest after the lapse of 90 days is also held by both the Courts. Moreover, it is also observed concurrently by both the Courts that even during the pendency of the proceedings, the defendant has failed to deposit the rent regularly every month but has deposited in lumpsum sometimes the rent of eight months together. In such circumstances, even the judgment of the Division Bench of this Court in a case of Sitaram Maruti Nagpure vs. Fakirchand Purushottam Dhase referred supra and the judgment of the learned Single Judge of this Court in a case of Sitaram Narayan Shinde and others vs. Ibrahim Ismail Rais and others referred supra would not be applicable and the tenant would be liable for a decree of eviction on the said ground of having committed default.

11. The Courts also held that petitioner/landlord requires the suit premises bona fide for his business as he is running the said business. The appellate Court has held that the place where the business is carried out is more suitable for transportation business and the said business is flourishing in that area and the plaintiff carries his ancestral business of silk cloth. Whether the business can be flourished or not is not the requirement under the statute. The requirement under the statute is bona fide need of the landlord and the same has been established. It is settled law that the landlord is the best judge of the premises he requires for the business and the tenant cannot dictate the terms. The only question that would remain is of the hardship. The tenant has not stepped into the witness box to prove the aspect of hardship. If the hardship is equal to the landlord and the tenant then the rule is a decree of eviction. In the present case in absence of any evidence or proof on the part of the tenant about the hardship being caused the landlord would be entitled for decree of eviction.

12. Regarding the ground of sub-tenancy, it has been found that there is no evidence to show that the tenant has sublet the business or premises to Respondent No. 3. In absence of any proof in that regard, the decree on that count could not have been passed.

13. In view of the above, the Writ Petition is allowed. The judgment and decree passed by the lower appellate Court is set aside and the judgment and decree of the trial Court is restored. The defendants shall handover the vacant and peaceful possession of the suit premises to the plaintiff/petitioner.

14. Rule is accordingly made absolute in terms of prayer clauses (B) and (C). However, there shall be no order as to costs. At this stage, Mr. Chandole, learned counsel for the Respondents submits that the tenant is running his business since long time, as such, period of one year be given to vacate the said premises. Mr. Sagar Killarikar, learned counsel for the petitioner opposes the said request. Taking into consideration the fact that tenant is carrying on business in the suit premises, I deem it appropriate to grant six (6) months time to the Respondents to vacate the suit premises on furnishing an undertaking to this Court that on lapse of six (6) months, the Respondents shall hand over peaceful and vacant possession of the suit premises to the petitioner. The undertaking shall contain the following clauses :

(a) The tenant shall handover the vacant peaceful possession of the suit premises to the landlord/plaintiff on or before 30-3-2012.

(b) The defendants shall not create any third party interest nor shall encumber the suit property in whatsoever manner.

(c) The tenant shall pay the rent/damages regularly till March, 2012. The said undertaking to be filed within a period of three (3) weeks from today.



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