1 WP No.2034/95 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2034 of 1995 Shri Ganpatsa Shankarsa Bakale ... Petitioner versus Smt.Ramkuvarbai w/o Raghunath Singh Pardeshi & ors. ... Respondents ... Mr.S.M.Gorwadkar for the petitioner. Mr. M.S.Karnik for respondent no.1. CORAM : D.G. KARNIK, J. DATED : 14th July 2010 ORAL JUDGMENT:- 1. By this petition, the petitioner tenant challenges the judgment and order dated 18 March 1995 passed by the Addl. District Judge, Nashik, confirming the judgment and decree for 2 WP No.2034/95 possession passed by the Joint Civil Judge, Sr. Division, Sinner. 2. Respondent no.1 is the owner of the suit premises which consists of a shop situate at Sinner. One Khandusa Mukasa Bakale was a tenant in occupation of the suit premises on monthly rent of Rs.23/- plus electricity charges. Petitioner and respondent no.2 are the heirs of Khandusa (Hereinafter, for the sake of convenience, the parties are referred to as “the landlady” and “the tenants”). The tenant was not regular in payment of the rent and was in arrears of rent for more than six months. Therefore, by a notice of demand dated 10 April 1972, the landlady demanded arrears of rent and also possession of the suit property. The tenant did not pay the rent within one month of the receipt of the notice but filed an application, bearing Miscellaneous Application no.12 of 1972, for determination of the standard rent alleging therein that the rent charged by the landlady at Rs.23/- was the excessive and exorbitant and the standard rent would be Rs.10/-. In the said standard rent application, the tenant made an application for determination of interim rent. 3 WP No.2034/95 3. On the date of the notice, the tenant was in arrears of rent for 53 months i.e. From 1 November 1967 to 31 March 1972. After the notice, the landlady thereafter filed a suit for possession on the ground of default in payment of the rent as also reasonable and bonafide requirement of her son who was then unemployed and wanted to start business. The tenant contested the suit. The trial court passed a decree for possession on the ground of default in payment of rent as also reasonable and bonafide requirement. On appeal, the District Court confirmed the decree on both counts. Aggrieved petitioner is in appeal. 4. Mr.Gorwadkar, learned counsel for the petitioner submitted that the case would be governed by the provisions of section 12(3) (b) of the Bombay Rent Act inasmuch as there was a bonafide dispute between the parties regarding the standard rent. Within one month of receipt of the notice, the tenant had filed an application for determination of standard rent and therefore, the case would fall u/s.12(3)(b) of the Bombay Rent Act, 1947, and 4 WP No.2034/95 consequently, no decree for eviction could have been passed. He further submitted that during the pendency of the suit, the son of the landlady had secured a job in Air India and therefore, the case for starting the business ceased to exist and the court could not have passed the decree for possession on the ground of bonafide requirement. 5. Notice of termination of tenancy was received by the tenant on 15 April 1972. Application for standard rent was filed on 5 June 1972. i.e. Beyond the period of one month from the date of receipt of the notice. However, this has been explained by the tenant by stating that the court was closed for summer vacation between 1 May 1972 and 4 June 1972 and the standard rent application has been filed on the opening day and therefore, it must be deemed to have been filed within time. Even if it is assumed that the standard rent application is filed the permitted time, the tenant was further required to deposit the arrears of rent within one month of the order for payment by the Court and was required to deposit the future rent month to month. Admittedly, 5 WP No.2034/95 the tenant did not pay the arrears of rent which was in arrears for 53 months. According to the tenant, the rent of 53 months was not due inasmuch he had supplied to the brother in law of the landlady goods from his shop and he was entitled to adjust the price of the goods towards the rent. The tenant failed to prove any agreement with the landlady to adjust the value of the goods allegedly supplied to her brother in law. Even if it is assumed that the tenant had supplied certain goods to the brother in law of the landlady the amount due from her brother in law could not be adjusted against the rent or arrears of rent due to her without her consent. In the absence of any consent of the landlady for such adjustment, it must therefore be held that even if the case fell u/s. 12(3)(b) of the Bombay Rent Act, tenant was not ready and willing to pay the rent and had not paid the rent within the permitted period. The two courts below have concurrently held that the landlady was entitled to a possession even u/s.12(3)(b). I do not fine any error in the said finding of fact recorded by the two courts below. 6 WP No.2034/95 6. As regards the reasonable and bonafide requirement, the landlady is a widow. She has only one son. The son wanted to do business. He has no other premises where he could carry out the business. These are the findings recorded by the two courts below. These are possible findings of fact based on evidence and in the absence of any perversity therein cannot be questioned in writ jurisdiction under Article 227 of the Constitution of India. Son of a landlady was not expected to sit idle, doing nothing till he could secure possession of the suit premises. Till the time he obtained possession, was expected to do something and to earn for livelihood, especially when he was the only son of his widowed mother without any other reasonable source of income. Per force, he was required to seek employment. Therefore, securing an employment during the pendency of a suit cannot militate against reasonable and bonafide requirement of the landlady for the business of her son. The two courts below have concurrently held the requirement of the landlady for setting up a business of her son to be reasonable and bonafide. The findings recorded is a possible 7 WP No.2034/95 finding of fact requiring no interference in exercise of a writ jurisdiction under Article 227 of the Constitution of India. 4. As regards the greater hardship, the tenant has been carrying on business in the suit premises for a period of more than 15 years prior to the notice. He must have earned sufficient money for acquiring suitable alternative premises in the event decree for possession is passed. It is not his case that any other business premises are not available in Sinner. No evidence was adduced by him of any efforts made by him to secure other premises in the vicinity. Consequently, the courts below have recorded a finding of greater hardship against the tenant which is also a possible finding of fact requiring no interference. The hardship, if any, that is likely to be caused to the tenant can be mitigated by granting him sufficient time to the tenant to vacate the premises. In the circumstances, I pass the following order:- O R D E R Petition is dismissed. Rule is discharged. 8 WP No.2034/95 Petitioner is however granted 12 months time for vacating of the suit premises subject to the petitioner filing an undertaking in the usual form within four weeks from today. In the event undertaking is not filed within four weeks, the decree can be executed forthwith. (D.G. KARNIK,J.)