1 WP 8124.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8124 OF 2011 Kausalyabai W/o Thakaji Shedute & Oths. .... PETITIONERS V E R S U S Dharamraj S/o Bhavanishankar Thigale [ Deceased ] - through L.Rs. & Oths. .... RESPONDENTS Mr. B.R.Kedar, Advocate holding for Mr. R.B.Bhosale, Advocate for the Petitioners. Mr. M.V.Deshpande,Advocate holding for Mr. R.V.Deshmukh, Advocate for Resp. Nos. 1 to 5. CORAM : S.V.GANGAPURWALA, J. DATE : 17/11/2011. ORAL ORDER : 1. The present petitioners are the legal heirs of the original respondents. The present respondents are the land-lords. 2. The present respondents have filed Suit for eviction of the tenant on the ground that the suit premises is required for bonafide 2 WP 8124.2011 personal use. The defendants have made new construction in open space and built a room without the permission of the landlord and the defendants have committed default for payment of rent. The trial Court decreed the Suit for eviction on the ground that the suit premises is required by the plaintiffs for their bonafide personal use and the defendants have committed default for payment of rent. The ground regarding the defendants having carried out construction, was negatived. Aggrieved by the said Judgment, the defendants preferred Appeal before the District Court. The District Court dismissed the Appeal and confirmed the findings of the trial Court. Aggrieved thereby, the defendants have filed the present Writ Petition. 3. Mr. Kedar, the learned counsel for the petitioners submits that both the Courts have not properly appreciated the evidence in respect of the bonafide personal use in its correct perspective. In fact, they have given perverse findings. The plaintiffs have other properties. The said aspect has not been considered. The learned counsel further contends that no issue was framed regarding comparative hardship and no finding has been given on the same. Whenever a decree on the ground of bonafide personal use is being sought, it is obligatory for the Court to frame the issue of comparative hardship and decide the same. The appellate Court has not even discussed about the aspect of comparative 3 WP 8124.2011 hardship and as such the decree on the said ground of personal bonafide use can not be sustained. 4. The learned counsel further contends that the Court has to take note of the hardship which the landlord suffers by not occupying his own premises as against the hardship, the tenant would suffer by requiring to move out to the another place. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Gyanchand S/o Parmanand Jain and others V/s Wamanrao S/o Vyankatrao Shinde reported in 2010 ( 6 ) Mh.L.J. - 561. 5. The learned counsel further contends that the notice given U/s 15 ( 2 ) of the Maharashtra Rent Act [ For short, ‘ said Act ’ ] is defective. Section 15 ( 2 ) of the said Act requires the landlord to give notice of 90 days. In the present case, the notice of only 15 days is given. On the basis of such a defective notice, no decree for eviction should have been passed. The learned counsel relies on the Judgment of the Apex Court in the case of Dharam Pal V/s Harbans Singh reported in 2006 ( 9 ) SCC – 216. 6. The learned counsel further contends that the said notice is 4 WP 8124.2011 defective also for the reason that the same was not issued nor served upon all the defendants. It was served only upon two ( 2 ) defendants. As all the legal representatives became the tenants in common, it was obligatory to serve the notice on all the defendants. In absence of the same, it can not be said that the tenancy has been validly terminated nor compliance of Section 15 ( 2 ) of the said Act has been made. 7. The learned counsel further contends that the first appellate Court has to consider all the aspects of the matter. In the present case, as the appellate Court has not at all dilated on the point of comparative hardship, the appellate Court has failed in its duty as is required under Order XLI Rule 31 of the Code of Civil Procedure. The learned counsel relies on the Judgment of the Apex Court in the case of B.V.Nagesh and another V/s H.V. Sreenivasa Murthy reported in 2010 AIR SCW 6184. 8. Mr. M.V. Deshpande, the learned counsel for the respondents submits that both the Courts have concurrently held that the plaintiff requires the said premises for his bonafide personal use. The trial Court has also discussed about the comparative hardship and when the appellate Court was confirming the Judgment of the trial Court and concurring with the findings of the trial court, then it is not necessary to give elaborate finding. The learned counsel relies on the Judgment of the Apex Court in 5 WP 8124.2011 the case of Santosh Hazari V/s Purushottam Tiwari ( Dead) by L.Rs. reported in AIR 2001 – SC – 965. 9. The learned counsel further contends that the tenant has nowhere pleaded about the comparative hardship in his Written Statement nor has led any evidence on the same nor has taken the ground in the Appeal memo while filing the Appeal in the District Court. When the plea of comparative hardship was not raised, the trial Court is not obliged to make an enquiry on the same. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Shri Vilaschand S/o Deochand Khedikar (Jain) ( Deceased ) V/s Shri Bhimchand S/o Pannasao Jain reported in 2011 ( 6 ) ALL MR – 248. 10. The learned counsel further contends that the notice is validly issued. Though in the notice, 15 days time was given, still the Suit has been filed after 90 days i.e. the payment of the rent amount was not made for 90 days after service of notice and then only the Suit was filed and that would be the sufficient compliance of Section 15 ( 2 ) of the said Act. 11. The learned counsel further contends that the heirs of the original tenant succeed to the tenancy as joint tenants and not as tenants in common. As such, service of notice on one of the joint tenants was 6 WP 8124.2011 sufficient. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of H.C. Pandey V/s G.C.Paul reported in AIR 1989 Supreme Court – 1470. 12. The learned counsel contends that both the Courts have concurrently appreciated all these aspects and has rightly passed decree of eviction. 13. With the assistance of the learned counsel, I have gone through the Judgment delivered by both the Courts. 14. Section 15 ( 2 ) of the said Act reads as : “ 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 ”. 15. It is not disputed that the landlord had issued notice to two ( 2 ) of the defendants i.e. the present petitioner nos. 1 and 2. The said 7 WP 8124.2011 notice is served upon them. It is also not disputed that in the notice, 15 days time was given. The question would be, whether such a notice would be invalid for not having served upon all the defendants and the notice only gave 15 days time to make the payment and terminating the tenancy. 16. From the perusal of Section 15 ( 2 ) of the said Act, it is manifest that there is embargo upon the landlord to institute the Suit against the tenant on the ground of non payment of rent until expiration of 90 days next after notice in writing of the payment of the standard rent or permanent increase has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act [ For short, ‘ T.P. Act ’ ]. In the present case, it is not disputed that the Suit has been filed after the expiration of the period of 90 days from the service of notice upon the defendant nos. 1 and 2 by the landlord. Section 15 ( 2 ) of the said Act lays down that the notice contemplated therein should be served upon the tenant in the manner provided U/s 106 of the T.P. Act. Section 106 of the T.P. Act does not lay down that landlord has to issue 90 days notice, but it contemplates service of 15 days notice in case of a monthly tenancy. Phraseology of Section 15 ( 2 ) of the said Act also nowhere mandates that the landlord in his notice has to ask the tenant to pay the amount within 90 days. The only embargo laid down U/s 15 (2 ) of the 8 WP 8124.2011 said Act is on the right of the landlord to institute a Suit for eviction prior to the lapse of 90 days from the date of service of notice. In the present case, the said condition is satisfied. 17. More over, as has been held by the Apex Court in the case of H.C. Pandey V/s G.C.Paul [ supra ], service of notice U/s 106 of the T.P. Act on one of the joint tenant is sufficient compliance of Section 106 of the T.P.Act and Section 15 (2) of the said Act also requires that the service of notice has to be done in the manner provided U/s 106 of the T.P. Act. In view of the dictum of the Apex Court, it will have to be held that the service of notice on two ( 2 ) L.Rs. i.e. the petitioner nos. 1 and 2 was sufficient compliance. Both the Courts have concurrently held that the tenant had failed to pay the amount within the period of 90 days after the service of notice. There is nothing on record to suggest that the said finding is perverse. 18. As far as eviction on the ground of personal bonafide requirement is concerned, both the Courts concurrently on appreciation of evidence have come to the conclusion that the wife of plaintiff no. 1 is running her household business in the old house and has obtained the loan from the State Bank for said purpose. More over, the old house comprise of only five ( 5 ) rooms and is not sufficient for the personal use 9 WP 8124.2011 of all the plaintiffs. The said finding of fact is plausible one based on appreciation of evidence. The arguments that the comparative hardship has not been considered, also can not be accepted in view of the fact that the trial Court has specifically in para no. 31 of its Judgment has given a finding about the comparative hardship. More over, in the Appeal also the defendants have not contended that the said finding of the trial Court on comparative hardship is erroneous. The learned Single Judge of this Court in the case of Shri Vilaschand Deochand Khedikar ( Jain ) [ supra ] relying upon the earlier Judgment of this Court has held that the plea of comparative hardship must be raised by the tenant in the Written Statement and then only the trial Court is obliged to make an enquiry. In the present case, it is not disputed that the defendant/tenant has not raised a plea of comparative hardship in the Written Statement. In such circumstances, the said arguments of the defendant can not be considered, more particularly in light of the Judgment of Shri Vilaschand Deochand Khedikar ( Jain ) [ supra ]. 19. In light of the above, the Writ Petition being sans merit, is dismissed. No costs. 20. At this stage, Mr. Kedar, the learned counsel for the petitioners prays for six ( 6 ) months time to vacate the suit premises. 10 WP 8124.2011 21. Mr. Deshpande, the learned counsel for the respondents opposes the said request. 22. Taking into account the fact that the defendants are tenants since long time, it would be in the interest of justice to grant six ( 6 ) months time to vacate the suit premises. The tenant is hereby granted six ( 6 ) months time to vacate the suit premises on condition that the petitioners file an undertaking to this Court within the period of two ( 2 ) weeks from today that they shall hand over the peaceful vacant possession of the suit premises to the plaintiff on or before 31/05/2012. The tenant shall not create any third party interest nor shall encumber the suit property in whatsoever manner. The tenant shall pay the rent/damages to the landlord with all its arrears regularly up to 31/05/2012. [ S.V. GANGAPURWALA,J. ] KNP/WP 8124.2011