MADANLAL BANSILAL BINAKIYA Vs. DAGADULAL VALCHAND MEHTA

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is filed challenging the decree of eviction passed against the Petitioners-tenants under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereafter referred as 'Bombay Rent Act').

(2.) A few facts of this petition are as follows :- The Respondent is owner of Municipal House No.610 and 612 situated in Karmala town. It is ground and first floor premises. The first floor is in dilapedated condition. These premises came to be leased out by the Respondent some time in 1940. The yearly rent for the same was Rs.175/-. The Respondent issued demand notice under Section 12(2) of Bombay Rent Act on 11-12-1973. It was received by the Petitioners-tenants on 13-12-1973. By the said notice the Respondent demanded rent for the period of 3 years at the rate of Rs.175/- i.e. Rs.525/-. He further claimed increase in Municipal taxes from 1958-59 to 1973-74 amounting to Rs.455/- and Education cess from 1962-63 till 1973-74 amounting to Rs.57.50 i.e. Rs.512.50. The Petitioners sent M.O. of Rs.525/- which was received by Respondent on 14-1-1974. The Respondent filed the suit for possession of the suit premises on 29-1-1974.

(3.) IT is clear from the plaint that the Respondent has gone before the Court alleging that his landlord filed Regular Civil Suit No.183/74 for eviction and therefore he required the suit premises. However, admittedly compromise took place between his landlord Mr. Soni and himself (Exh.136). The said suit was instituted for possession but only decree for arrears of rent came to be passed by compromise. Pursis in that respect is on record at Exh.89 which shows that landlord Mr. Soni of Respondent gave up his claim to possession. Therefore there was no threat of the Respondent's eviction from the premises occupied by him. The Court below has observed 'But the fact remains the plaintiff has been exposed to the danger of the whims of the landlord Soni and threats of eviction'. Therefore, he felt that the Respondent's tenancy was insecure and he required the suit premises bonafide and reasonably. Obviously, in my opinion, this reasoning to say the least is perverse. There was no threat whatsoever of the Respondent's eviction left in view of compromise that took place between the parties. Further learned Judge has made cursory reference that Respondent was not pulling on well with his son and therefore he required the suit premises so that there can be two separate establishments. Except the bare words of Respondent, there is nothing to support this. The son of the Respondent has not entered the witness box. Further the evidence is vague. No reason has been given why there was dispute between them. This cannot be called as bonafide and reasonable requirement. IT is nothing but desire on the part of the Respondent to secure possession from old tenants. Therefore, Respondent has failed to prove that he required the suit premises for reasonable and bonafide purpose. 5A. On the point of comparative hardship, in my opinion, the Courts below have also gone wrong. The Respondent has only pointed out that Petitioners i.e. his wife has purchased some property at Karmala and the Index Register showed that there is a house. From this it was inferred that it was available to the Petitioners for occupation. But the evidence showed that there was no vacant premises & 2 tenants were residing in two rooms which were on the said land. Therefore, if the Petitioners are evicted there would be no shelter for them and the Courts below were wrong in considering the said purchased property as affording shelter to the Petitioners. In this Court the Respondent has filed an affidavit dated 26-11-1993. IT is mentioned that the Petitioner No.1 has purchased Municipal House No.869(Exh.130) at Karmala in the name of his wife. She had no independent source of income and the Petitioner No.1 has malafide purchased it in her name. IT is further mentioned that the residential house consisting of 3/4 rooms was constructed on it. IT is also mentioned that instead of occupying those, they were given to 2 tenants viz. Dattatraya and Balbhim and the Petitioners are receiving huge rent. IT is also mentioned that the Petitioner nos.2 and 6 are dead and the Petitioner no.1 has left Karmala town permanently. Similarly Petitioner nos. 4 and 5 have shifted to Pune and Aurangabad. Therefore, none of the Petitioners required the premises. There is additional affidavit filed by the Respondent for considering the sale deed dated 22-4-1980 in respect of house No.869 (original Municipal House No.578). There is affidavit in reply filed by the Petitioner no.1 dated 4-1-1994 pointing out that Municipal House no.1 dated 4-1-1994 pointing out that Municipal House No.869 Karmala belonged to one Shri Ambadas Bhasme who worked and lived with the Petitioners for 40 years before he died in the year 1989. The Petitioner no.1's wife purchased it from Bhasme for Rs.5000/-. There was kaccha construction. IT was in occupation of two tenants viz. Dattatraya and Balbhim. They have filed suit in the Court of Civil Judge, J.D., against the wife of the Petitioner no.1, being Suit No.1 of 1992 and prayed for fixation of standard rent at Rs.5/- per month. The suit is pending. IT is stated that they were in possession of those two rooms for last 30/32 years. There is no vacant place in the said property. IT is not repaired or reconstructed by the Petitioners and there is not a single room available. In fact those 2 tenants tried to construct and Petitioners were required to file the suit for injunction prohibiting them from making any permanent alternations in the premises. IT has also been pointed out that it is false that Petitioner No.1 has left Karmala permanently and shifted to Pune. He has denied that he has transferred his ration card and stated that he is living with his wife and unmarried son and other members of his family at Karmala. IT has been pointed out that Petitioners are living at Karmala for earning. No doubt there is a sale-deed which mentions that the property has been given in possession of the purchaser i.e. wife of the Petitioner No.1. IT also mentioned that there is a tin-shed and some open land and possession was given. However, it cannot be inferred from this that the Petitioner no.1 was put in actual possession of the same and thereafter it was constructed. Merely because no mention is made about the tenants in the sale deed does not mean that there were no tenants. In fact the Respondent himself has mentioned in the affidavit that there were two persons occupying the same i.e. Dattatraya and Balbhim. There is nothing to show that they came into possession after the purchase or that the Petitioners have reconstructed or repaired the same and thereafter gave possession to those tenants. Therefore, it cannot be accepted that the Petitioners have constructed 3/4 rooms on the said property which could be occupied by them and/or they have shifted from Karmala. The Respondent has clearly failed to prove that there was any vacant room/s available which would be occupied by the Petitioners.