LAWS(BOM)-1975-2-23

KISAN MAHADA GAIKWAD Vs. MANULABAI RAMCHANDRA SOMAVANE

Decided On February 13, 1975
KISAN MAHADA GAIKWAD Appellant
V/S
MANULABAI RAMCHANDRA SOMAVANE Respondents

JUDGEMENT

(1.) The petitioner is a tenant in respect of premises consisting of one room in House No. 290 situate in Survey No. 82 of Yeravada , Poona-6. The respondent is the landlady of the said premises. By a notice dated 14-4-1969 the respondent terminated the tenancy of the petitioner in respect of the suit premises and thereafter filed a suit being Civil Suit No. 1502 of 1969 in the Small Cause Court, Poona, for recovery of possession of the premises on the ground of default in the payment of arrears of rent exceeding six months and also on the ground that she required the premises reasonably and bona fide for her own occupation. It appears that there was already an application being Miscellaneous Application No. 286 of 1969 filed by the petitioner-tenant for fixation of standard rent under section 11 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, (hereinafter referred to as the said Act). Both the suit and the said standard rent application were heard together and the trial Court held that the standard rent of the suit premises was Rs. 20/- per month which was the contractual rent, but the case fell under section 13(3)(b) of the Act and it could not be said that the tenant was not ready and willing to pay the rent. The trial Court however held that the plaintiff landlady had proved her reasonable and bona fide requirement of the suit premises and decreed the suit to the plaintiff directing that the tenant should hand over possession of the suit premises and also pay the arrears of rent due till that time. In appeal by the tenant, the Appellate Court confirmed the finding of the trial Court and dismissed the appeal. It is against the said order dated 10-4-1947 passed by the Appellate Court that the present petition is filed under Article 227 of the Constitution of India.

(2.) Mr. Apte who appears for the petitioner-tenant relied upon the affidavits filed by the petitioner as well as four others where in it has been stated that after the impugned order of the Appellate Court one Kashiram Dhondiba Pawar another tenant of the respondent-landlady had vacated his premises and had handed over vacant possession of the same to the respondent-landlady. Along with the said affidavits, a statement on which the thumb impression of the said Kashiram D. Pawar has been taken and attested by two witnesses to the effect that he has so handed over the premises tenanted by him, has also been filed. In reply to the said affidavits the respondent landlady has stated that out of the four persons who have field the affidavits, Zite, Tikone and Kamble are the relations of the petitioner and the fourth one George was his thick friend. She has also stated in her affidavit that the said Kashiram D. Pawar had not vacated the tenement as alleged in the said affidavits and that his thumb impression if any, must have been taken while he was under the influence of drinks since he is given to the habit of drinking. It has also been pointed out by her that the said thumb impression is also a false one because there is no need for the said Kashiram D. Pawar to affix his thumb impression since he knows how to sign. In this connection she has relied upon the counterfoils of the rent receipts for some months on which his signature finds its place. This matter was adjourned on the last occasion i.e. 29-1-1975 when it reached hearing to enable the petitioner to file an affidavit of the said Kashiram D. Pawar to the effect that he had so handed over the premises and also to keep him present in Court if possible. Today, neither the affidavit of the said Kashiram D. Pawar has been field nor is he kept present in the Court. Mr. Apte stated that the said Kashiram D. Pawar was not prepared to file his affidavit to the effect that he had handed over his premises to the landlady. In this view of the matter, the affidavits field by the said four persons to the effect that handed over vacant possession of the premises tenanted by him have to be ignored.

(3.) Mr. Apte then contended that the finding given by the courts below that the landlady requires the premises reasonably and bona fide for her occupation was not correct. In this connection he stated that the landlady was not staying in Poona and in fact she was residing at her village in Jalgaon District. He pointed out that the notice of the application made by the tenant for fixation of standard rent was served on the landlady at her address in the village in Jalgaon District. He, therefore, contended that it should be held that the landlady did not require the premises bona fide and reasonably for her occupation. I do not find any substance in this contention because admittedly the application for the fixation standard rent was filed before the suit was field. It is the case of the landlady that she has been living in poona since the time of the death of her husband and the suit was filed admittedly after her husband died and since she has no children and there was no more protection from her husband she wanted to make a living in Poona and she has been since the death of the husband sleeping on the foothpath. Both the courts have concurrently given a finding to the effect that the landlady was forced to sleep on the footpath and sometime to seek the shelter in the suit premises with the permission of the petitioner-tenant. The courts have further held that she cannot be left to the mercy of the petitioner-tenant and forced to live on charity. Thus the courts have found that the respondent-landlady had proved her case of reasonable and bona fide requirements of the suit premises and I do not see how that finding is vitiated by any error apparent on the face of the record. There was no further argument advanced on behalf of the petitioner-tenant. I therefore find that there is no substance in this petition. The petition therefore fails and the rule granted in the same is discharged with costs.