STATE OF MAHARASHTRA Vs. SHARADKUMAR VIRCHAND SHAH

JUDGEMENT

(1.) THESE two proceedings arise out of the decision of the Judicial Magistrate, First Class, Satana, on deputation at Malegaon in Cri, Case No. 5245 of 1965.

(2.) THE facts giving rise to these cases are few and simple and are not in dispute. The property bearing House No. 48 at Malegaon belongs to accused No. 1 Sharadkumar Virchand Shah. Accused No. 2 happens to be his brother. One shop situated on the ground floor of that building was in occupation of complainant Hukmichand Dipchand Jain as a tenant of accused No. 1. Accused No. 1 instituted a suit for his eviction in the Court at Malegaon, the relief of possession being claimed on two grounds was that the suit premises were reasonably and bona fide required by him for his own occupation, and the second ground was that the property of which the premises formed a part was in need of repairs, which could be carried out after the shop was vacated by the tenant. These grounds were not accepted by the trial Court and the landlord's suit for eviction was dismissed. That order of dismissal was challenged by the landlord in the District Court at Nasik in Civil Appeal No. 108 of 1963. That appeal was decided by the 2nd Extra Assistant Judge of Nasik on 31-3-1964. The learned Appellate Judge also did not accept the landlord's case that the premises were reasonably and bona fide required by the landlord for his own occupation; but he did accept the second allegation that the premises were in need of repairs and that those repairs could only be effected after the premises were vacated by the tenant. Therefore, on this second ground the learned appellate Judge allowed the appeal and passed a decree for possession in the landlord's favour on 31-3-64. Before passing that decree the provisions of S. 16 of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947, were complied with. The complainant-tenant was asked whether he wanted to reoccupy the premises after the repairs were carried out and on his having said yes, a decree for possession was passed in favour of the landlord and the complainant was directed to deliver possession to him to enable him to commence the work of repairs on or before 1-5-1964.

(3.) BEFORE the date specified for delivering possession on 26-4-1964 the tenant gave a notice as per Exhibit 9 to the landlord (accuses No. 1) and informed him oh his readiness and willingness to give possession of the shop to him for the purposes of effecting repairs as soon as the necessary intimation was received from him. That notice was replied by the landlord (accused No. 1) by his letter (Exhibit 16) dated 29-4-1964. He stated that he was not willing to accept possession in terms of the appellate Court's decree because he wanted to challenge that decree in revision in the high court, but the tenant was at liberty to vacate the premises unconditionally if he so desired. The tenant (complainant) was obviously not prepared to vacate the premises unconditionally. He, therefore, stuck to his possession, and unfortunately on 11-8-1965 a part of the premises collapsed and some damage to the property and caused.