1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.329 OF 2003 Vishwanath Ganpatrao Vyavhare (died through L.Rs.) 1) Laxmikant Vishwanath Vyavhare Age: 51 Yrs., 2) Prabhakar Vishwanath Vyavhare, Age: 47 Yrs., 3) Ratnakar Vishwanath Vyavhare, Age: 40 Yrs., All occu. Business, R/o Gadipura, Komatigalli, Hingoli, Dist.Hingoli. - PETITIONERS VERSUS 1) Annapurnabai Nanuram Bajaj Age: 63 Yrs., occu.HH, r/o New Mondha, Hingoli, District Hingoli. 2) Sangita Prashant Maniyar Age: 32 Yrs., occu.HH r/o Kalamnuri, Distict Hingoli. 3) Sow.Vijaya Umeshkumar Mundada Age: 29 Yrs., occu.HH r/o Mehkar, Dist.Buldhana. 4) Sow.Durga Umeshkumar Darak, Age: 24 Yrs., occu.HH r/o C/o - Annapurnabai N.Bajaj, New Mondha, Hingoli, Dist.Hingoli. 2 5) Ku.Sarla Nanuram Bajaj, Age: 18 Yrs., occu. HH r/o New Mondha, Hingoli. 6) Laxmikant Nanuram Bajaj, Age: 14 Yrs., U/g of mother - Annapurna w/o Nanuram Bajaj, Resp.No.1 herein. - RESPONDENTS ***** Mr.Vivek Bhavthankar Advocate for Petitioners; Mr.RF Totla, Advocate for Resp.Nos. 1 to 6. ----- CORAM : K.U.CHANDIWAL, J. DATE : 10th February, 2010. ORAL JUDGMENT: 1) Heard. Rule was issued in CRA on 7th October, 2004. 2) This is landlord's revision, challenging the order of learned District Judge dated 10.4.2003, whereby he refused eviction decree against the tenant recorded by learned Rent Controller dated 10.5.1999 in Case no.1984-RC- O-12. The landlord sued the tenant for eviction on the ground - a) willful default in remittance of 43 months' rent; b) requirement of premises 3 for bonafide use for the landlord's sons. 3) The learned Rent Controler observed that there was default, there being a decree of recovery against the tenant by virtue of RCS No. 156/1984 (Regular Darkhast No.23/1988 - Vishwanath Vs. Nanuram). The learned Rent Controler observe, " the non-payment of rent by the non-applicant for a long period seems to be intentional and by plain reading of Section 15 of Hyderabad Rent Control Act, it is clear that once the landlord (applicant) establishes that tenant has committed default in the matter of payment of rent and I am also satisfied and come to the conclusion that tenant is a willful defaulter." 4) This observation of the learned Rent Controller was rightly criticized by the learned First Appellate court, as the mandate in terms of Section 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 ( for short, Hyderabad Rent Act), stipulates, the default in remittance of rent, needs to be proved to be a willful and the situation of the law is, it is for the tenant to establish that such default was not willful. An opportunity ought to have been given by the Rent Controller to this effect. There was no issue, which could make out that the tenant was required to answer or address 4 the same. The record confusingly indicate RCS No.117/1982 was filed by the landlord on 30th April, 1982 for recovery of Rs.1170/- which was decreed with interest @ 9%. Same was subject of challenge in Regular Civil Appeal No.125/1984 and the learned Additional District Judge at Hingoli on 11th April, 1989 allowed the tenant's appeal partly. The landlord was held entitled to recover Rs.1640/-, the amount deposited by the tenant in the court to be adjusted. The reference to the suit No.156/1984 though is recorded by the learned Rent Controller, does not find place anywhere. 5) The observation of the first Appellate court in not accepting that the tenant was in willful default, is in tune with the settled position of law, as is discussed by the learned Appellate Court in paragraph 30, 33 of the Judgment. 6) Then comes the controversy about the bonafide requirement. On evidence, it is recorded that the premises in occupation of the tenant is virtually 1/16th of total building held by the landlord. It was accepted position that the landlord was conducting business with his sons and quite adjacent to his shop, there are four other shops in his possession, but which are 5 under shutters in which he has kept his articles. The landlord indeed has accepted that his sons are carrying on business in common in the shop. Considering this eventuality, it is hard reality that the landlord's requirement could not be branded to be at higher pedestal terming to be a bonafide requirement than the tenant's plight. This in particular, it is a non-resident premises, a shop. Hence, son’s requirement will not translate for a decree of eviction. In the fact situation, it is difficult to digest that the premises in occupation of the tenant is bonafidely required by the landlord. 7) One of the contentions raised by Mr.Bhavthankar is, about sub-letting of the premises or closure of the premises. It is in the evidence, the tenant - Nanuram expired, his wife has minor children, for few days, her business activities were carried by her brother- in-law – Jankiram. There was no issue before the Rent Controller. Consequently, no evidence could be adduced. Same is the position before the first Appellate Court. On the other hand, the learned Rent Controller, while interpreting and appreciating the bonafide requirement has erroneously swayed to Jankiram’s carrying business on behalf of deceased tenant to look after the family of the deceased, to be a 6 subletting. 8) The observation of the first Appellate Court cannot be said to be in contrast to record. It does not demonstrate any mayhem to the law. 9) The law on the point of landlord's bonafide requirement is well set at knot in the matter of Motilal Chandulal Darak Vs. Abdul Mazid Tar Mohammad Kacchi (1981 Mah.L.J. 843) and in the matter of Jainuddin Abdul Rehman Shaikh Vs. Sitaram Damodar Varvadkar and Ors.(1981 Mah.L.J. 498). 10) The scope in the revision about verifying the correctness of the order is narrower than in the appeal, as has been stated by the Apex Court in the matter of Shaikh Jaffar Shaikh Mahmood and Ors. Vs. Mohd.Pashad Hakkani Saheb and Ors.(AIR 1975 SC 794). 11) In the result, the Civil Revision Application is sans merit, it is dismissed. No costs. Rule discharged. sd/- (K.U.CHANDIWAL) JUDGE bdv/cra329.03