1 CRA NO.224/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.224 OF 2011 VASANT BHIMRAO RUPWATE VERSUS VIJAYANAND SONAJI BHOKARE ... Advocate for Petitioner : Mr.Nagargoje Ankush N. Mr.Mahesh Sonawane, Advocate for Respondent : ***** CORAM : K.U.CHANDIWAL, J. DATE : 16th DECEMBER, 2011. PER COURT : 1) Heard finally. 2) The revision applicant/tenant questions concurrent findings of eviction recorded by 2nd Jt. Civil Judge, Junior Division, Sangamner in RCS No. 439/2007, confirmed by learned District Judge-1, Sangamner, by order dated 1st August, 2011 in RCA No. 13/2010. 3) The suit premises comprise of a shop, situate at Sangamner, given on a monthly rent of Rs. 150/- to the tenant. In the Paragraph 9 of the Written Statement, the tenant has erroneously, and rather illegally, branded the landlord/respondent, having no concern with the suit premises. This mistake is accepted by learned counsel for the tenant/revision applicant. 4) A statutory notice dated 5.7.2007 was served 2 CRA NO.224/2011 upon the tenant by the landlord, making demand and also making his case for bonafide requirement of the suit shop. The notice is replied. The record at Exhibits-95 to 99 illustrate that the monthly rentals deposited/paid by the tenant were not regular, it was a lumpsum payment of rent of 13 months. The landlord/respondent came with a case that the rentals were paid up to 17.10.2006; and this is indicated by a receipt at Exhibit-97 for lumpsum payment of Rs. 7,580/-. A situation of camouflage was tried to be created as to remittance of such rent up to 17th October, 2007. This was more or less an innocuous admission recorded by the landlord in the evidence. 5) The learned Appellate court, on analysis of evidence, vis-a-vis rental receipts placed by the tenant and the date of payment of Rs.1500 on 17.4.2008, clarified that it was for a period of 10 months, amounting to Rs.1500/- and consequently, any mention by the plaintiff in the cross-examination, having received the rent up to 17.10.2007, is an inadvertent mistake and inconsequential. I find substance in the finding recorded by the learned first Appellate Court. 6) The eviction proceedings against the tenant were on two counts, viz. - i) bonafide requirement of the landlord; and ii) default on the part of the tenant in payment of the rent. 7) Both the courts have concurrently found the tenant/revision applicant to be in arrears of the 3 CRA NO.224/2011 rent. This is more so, in the light of discussion made herein above. The legal position under the Maharashtra Rent Control Act, 1999 (hereinafter to be referred to as the said Act), conceive under Section 15(2) and (3), which read as under : “15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases : (1) ................................. (2) No suit for recovery of possession shall be instituted by a landlord against the tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of ninety days next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882). (3) No decree for eviction shall be passed by the Court in any suit for recovery of possession on the grounds of arrears of standard rent and permitted increases if, within a period of ninety days from the date of service of the summons of the suit, the tenant pays or tenders in Court the standard rent and permitted increases then due together with simple interest on the amount of arrears of fifteen per cent per annum; and thereafter continues to pay or tenders in Court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the court.” 4 CRA NO.224/2011 8) A simple analysis of these provisions illustrate that on the date of presentation of the plaint, there should have been arrears of rentals against the tenant. Money order coupon dated 7.4.2008 and earlier payment of Rs.1200/-, illustrate that the suit was filed on 5.12.2007. Thereafter, the tenant has tendered arrears of rent of Rs.1500, as demonstrated in Exhibits-102 and 103. Thus, the requirement of Section 15(2) and (3) of the said Act, that on the date of institution of the suit, the tenant was in arrears of rent, is established. The tenant did not avail of facility available under Section 15(3) of the said Act. 9) The findings of both the Courts on this count do not call for interference. 10) BONAFIDE REQUIREMENT: Learned Counsel for the tenant submits, he has five sons and the suit shop is the only source of their livelihood. The landlord, though retired on 31.5.2002, did not prosecute to get the suit shop vacated till 2007, which itself is illustrative of no need/requirement to the landlord. The ground of bonafide requirement is not genuine. The reference of agriculture field at Samnapur, given by the Appellate court, has no nexus, as the premises is commercial, while the agriculture fields of tenant’s joint family are far away from the city. 11) Learned Counsel for the respondent/landlord submits, that he has only one son. Landlord has 5 CRA NO.224/2011 retired and desired to start business at Sangamner. The landlord has rental premises at Pune, his son is an Electrician/Wireman, however, his son too has to commence business at Sangamner. 12) Learned Counsel for the tenant/revision applicant has placed reliance to the following judgments:- i) 2010 Bom R.C.184 – Bismilla bee w/o Sk.Chand and Anr. Vs. Mohd. Anwar s/o Mohd.Akhtar; ii) 2010 Bom.R.C.364 – Vinayak Narayan Deshpande and Ors. Vs. Deelip Pralhad Shisode. iii) 2005 Bom.R.C.317 – Sitaram Narayan Shinde and Ors. Vs. Ibrahim Ismail Rais and Ors. iv) 2010 Bom.R.C. 193 – Jamshid Ahamad Khan s/o Majidkhan Vs. Additional Collector, Amravati. By referring these judgments, learned Counsel canvass that i )the tenant cannot be branded as habitual defaulter; ii) plea of bonafide requirement can only be sustained by evidence; iii) the demand notice did not illustrate specifically arrears and it is not in conformity to Section 15(2) of the said Act.; and iv) the burden is on the landlord to prove bonafide requirement. 13) Learned Counsel for the landlord/respondent has placed reliance to the judgment of the Hon’ble Supreme Court in the matter of Julieta Antonieta Tarcato Vs. Suleiman Ismail, reported in 2008 (2) Mh.L.J. 486; and judgment of this Court reported in in 2009 (2) Mh.L.J. 225 - Shardabai Anandrao Durgule 6 CRA NO.224/2011 Vs. Ramchandra Manku Pol and ors. 14) The Apex Court as also this Court has recorded : The landlord, being owner of the suit premises, his need being bonafide and reasonable, it would be unfair to compel the landlord to share accommodation in another premises with its co-owner. Secondly, tenant’s long occupation and acquisition of the goodwill in the premises should not prevail over the rights of the landlord to occupy his or her premises. 15) The landlord in his evidence has indicated about his retirement. He, being showered with a only son and after put in service of 30 years at Pune, having retired on 31.5.2002, desired to stay at Sangamner and to carry on business, he needs the tenanted premises reasonably and bonafide. A certificate of employment of the son was tendered, showing that he was in employment at Pune as Electrician, drawing salary of Rs.4,900/-. 16) The plaintiff/landlord gave his evidence in conformity to the affidavit at Exhibit-14, specifying that the suit premises are reasonably and bonafide required by him. 17) The contention that, the landlord is settled at Pune, is not established. There is nothing to demonstrate that the landlord has any other premises of his own either at Sangamner or at Pune; there is nothing on record from the tenant to establish that 7 CRA NO.224/2011 in spite of landlord’s serving a notice; or in past, he made any search in the vicinity of Sangamner to have any other premises to carry on his business. The tenant accepts that in the city of Sangamner, since last 30-35 years, the construction activities are increased rapidly due to potentiality in the city. Since there is nothing on the part of the tenant that what efforts were made by him to search alternate suitable premises to run his shop, the hardship, if any, would be naturally to the landlord and not to the tenant. It is the landlord, who, as a owner, has supremacy to stake claim to his premises for carrying on business activities or otherwise. He cannot be dictated in which manner and how he should reside. In the absence of any evidence that the landlord has premises at Pune or his son is settled at Pune, the landlord should not be compelled not to stake claim. Earlier observations by both the courts, therefore, do not call for any interference. 18) The scope of revision under Section 115 of the Code of Civil Procedure, has its in-built limitations. On reading both the judgments; and to some extent, reading the evidence of the landlord, I do not see any perversity in the findings recorded by both the courts to warrant interference. Consequently, the civil revision application lacks merit, dismissed with costs. 19) Heard Mr.Nagargoje and Mr.Sonawane for the parties. Mr.Nagargoje submits that the tenant has occupied the suit shop at least since 1979, he needs 8 CRA NO.224/2011 time to vacate the same. Mr.Sonawane has opposed to this submission. 20) The tenant/revision applicant to vacate the suit premises up to 30th June, 2012. The tenant shall give regular undertaking to the Registrar of this Court, including regular remittance of rent and not to part with the suit premises or create any third party interest therein. The undertaking be furnished within three weeks from today, failure to do so, execution to follow. (K.U.CHANDIWAL) JUDGE bdv/