Monday, 4 November 2019

How to determine comparative hardship of landlord and tenant in eviction suit?

The trial Court in its judgment has referred to properties shown to be
owned by the larger family and has observed that those properties were in joint

names of which there was no partition effected. On that basis however a finding was
recorded that the plaintiffs had failed to prove their bonafide need. The appellate
Court has after considering the entire material recorded a finding that in absence of
any evidence to indicate other properties available, the need of the plaintiffs was
bonafide. It is found on perusal of material evidence on record that the same has
been considered by the appellate court in its proper perspective for recording such
finding. Since the tenant was not in a position to indicate as to how the need of the
plaintiffs was not bonafide or that such need could be satisfied from other premises
available, the appellate Court did not commit any error in holding in favour of the
plaintiffs. The landlord being the best judge of his own, it was for him to decide
which premises was suitable for carrying on the proposed business. It is thus found
that the appellate Court has taken a possible view of the matter in the light of the
evidence on record.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5383/2008

Shri Wasudeo  Harishchandra Gangwani  Vs Smt. Bhagyashree Jaywantrao Buty,

–CORAM
: A.S.CHANDURKAR, J.
DATED : 29.08.2019


The challenge raised in the present writ petition is to the decree for
eviction that has been passed by the appellate Court under the provisions of Section
16(1)(g) of the Maharashtra Rent Control Act, 1999 ( for short, 'the said Act').
2. It is the case of the respondents that they are the owners of shop block
no.9 which is situated on the ground floor at Buty Chambers, Sitabuldi, Nagpur. The
petitioner herein was inducted as a tenant sometime in the year 1978. According to

the plaintiffs, the plaintiff no.2 was intending to start business of building material
and hardware. He was a Civil Engineer having special knowledge and hence he was
in need of the aforesaid premises for starting his business. Since the aforesaid shop
block was located in the market area, the same was suitable for starting the said
business. On that count the eviction of the defendant was sought from the suit
premises. It was also the case of the plaintiffs that the tenant had carried out
material alterations in the said premises without consent of the landlord. The suit in
question was accordingly filed on 06.04.2005.
3. In the written statement filed by the tenant the need of the plaintiffs was
denied. It was pleaded that the family of the plaintiffs owned various properties
where the plaintiff no.2 could start his business. Since the defendant was doing
business in the suit premises since long, he was not liable to be evicted.

4. Before the trial Court the plaintiff no.2 examined himself at Exhibit 15.
In his deposition he stated about his need and the fact that no other premises
was available to him for starting his business. The tenant examined himself at
Exhibit 45. He stated that he was doing lottery business in the said shop block. He
was not aware about other premises owned by the plaintiffs.
5. After considering the entire evidence on record, the trial Court recorded
a finding that since the properties owned by the joint family were not partitioned
and they were standing in the joint name, the case of the plaintiffs was not liable to
be accepted. The need was not held to be bonafide. The suit was accordingly
dismissed. An appeal filed by the original plaintiffs has been allowed by holding that

the need of the plaintiffs was bonafide and that greater hardship would be caused to
them if the decree for eviction was not passed. That adjudication is under challenge
in the present writ petition.
6. Shri M.M.Sawang, learned counsel for the petitioner submitted that the
appellate Court was not justified in decreeing the suit for eviction. The plaintiffs
intended to increase the rent of the tenanted premises and as the tenant was not
willing to increase that rent, he was being evicted from the suit premises. He
submitted that since other premises were available to the plaintiffs, the tenant was
not liable to be evicted on that count. He referred to the evidence of the parties and
submitted that as the plaintiffs family was owning other various properties, the need
of the plaintiffs could be satisfied by starting business elsewhere. On that count. it
was submitted that the trial Court was justified in dismissing the suit for eviction.
Hence the judgment of the appellate Court was liable to be set aside and the suit was
liable to be dismissed.
7. Shri P.P.Kothari, learned counsel for the respondents supported the
impugned judgment. According to him, the appellate Court rightly decreed the suit
for eviction. The trial Court had ignored the material evidence and merely on the
basis of the fact that the joint family owned various properties refused to grant any
relief to the plaintiffs. He referred to the depositions of the parties as well as various
admissions of the tenant in his crossexamination.
According to him, the landlord
being the best judge of his need, there was no reason to deprive the plaintiffs of
possession of the suit premises. He thus submitted that no interference with the

impugned judgment was called for.
8. I have heard the learned counsel for the parties at length and I have
perused the material placed on record. Perusal of the evidence of the plaintiff no.2
who was examined at Exhibit 15 indicates that he was in need of the premises for
starting his own business. He stated that no other suitable premises were available
for starting such business. He admitted that the joint family was owning various
properties. Insofar as the tenant is concerned, he has deposed that he was doing his
business in the suit block since the year 1978. In his crossexamination,
he admitted
that he was not in possession of any document to indicate any other properties
standing in the name of the plaintiffs. His statements in the crossexamination
which are found relevant are reproduced as under :
" I cannot assign any reason as to why I have not filed the
document to show except the Buty Chambers, plaintiff is having other
property in their name. I do not know plaintiff is having their own
property or not. It is not true to say that plaintiffs having no other
property except the Buty Chamber, therefore, I have not filed any
document on record. It is true I have not filed any document on record
plaintiffs having their own property at Civil Lines, Nagpur.
I have not filed any document to show the premises of the
plaintiff lying vacant. I have not filed any document to show the
property which is lying vacant by the side of Buty Chambers, belonged
to the plaintiffs. It is true no shop is lying vacant in the Buty
Chambers".
9. The trial Court in its judgment has referred to properties shown to be
owned by the larger family and has observed that those properties were in joint

names of which there was no partition effected. On that basis however a finding was
recorded that the plaintiffs had failed to prove their bonafide need. The appellate
Court has after considering the entire material recorded a finding that in absence of
any evidence to indicate other properties available, the need of the plaintiffs was
bonafide. It is found on perusal of material evidence on record that the same has
been considered by the appellate court in its proper perspective for recording such
finding. Since the tenant was not in a position to indicate as to how the need of the
plaintiffs was not bonafide or that such need could be satisfied from other premises
available, the appellate Court did not commit any error in holding in favour of the
plaintiffs. The landlord being the best judge of his own, it was for him to decide
which premises was suitable for carrying on the proposed business. It is thus found
that the appellate Court has taken a possible view of the matter in the light of the
evidence on record.
10. The aspect of hardship has also been duly considered. It is found that
though the plaintiffs were the owners of the building, they had no place to carry on
their business activities. It also noted that the defendant did not bring on record any
attempt made to seek alternate accommodation. That finding also does not require
to be interfered with.
11. During the pendency of the writ petition, it was submitted by amending
the same that the plaintiffs obtained possession of one shop block by filing a suit for
eviction. However since there is no further material on record to indicate that the
need of the plaintiffs would be satisfied, that factor also does not support the case of

the petitioner.
12. In that view of the matter, it is found that there is no jurisdictional error
committed by the appellate Court in decreeing the suit for eviction. The writ petition
therefore fails. The same is accordingly dismissed. Rule stands discharged. No
costs.
Since the petitioner is in occupation of the suit premises since long, he is
granted time to vacate the same by the end of December, 2019.
JUDGE

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