1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 5640 OF 2009 (Archana Bhiwaji Satdeve vs. Shri Sona Omprakash Gajbhiye) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 06, 2010. Heard Shri Chandurkar, learned counsel for the petitioner and Shri Purohit, learned counsel for the respondent finally. The concurrent orders passed by Small Causes Court, Nagpur, and appellate authority ordering eviction of the petitioner – tenant on the ground of bonafide need under Section 16(1)(g), change of user Section 16(1)(n) and on the ground of arrears of rent (Section 15) of the Maharashtra Rent Control Act, 1999, (hereinafter referred to as Rent Control Act) are questioned before this Court. At the outset, it may be stated that Section 16(1)(n) of the Rent Control Act permits eviction, if premises are not being used for the purposes for which the same were let for a continuous period of six months or more. The pleadings in this respect as contained in plaint lack these details. Hence, decree as passed on the ground of change of user is unsustainable. The learned counsel for the petitioner – 2 tenant has contended that the premises did not belong to the petitioner who at the most is only a Rent Collector (a Rent farmer) and hence his need could not have been looked into because of explanation appended to Section 16(1)(g) read with Section 16(2) of Rent Control Order. He has invited attention to various events in this respect to show that the agreement by which the father of the petitioner became owner is dated 07.08.1991 and the father of the petitioner is alleged to have executed a relinquishment deed in favour of his own father (Grand father of the petitioner) on 18.05.1991 i.e. prior to he himself becoming owner. It is further stated that said grand father is then claimed to have executed a Will on 01.06.1999 in favour of the petitioner. According to him, all these relevant aspects have not been pleaded and title has not been properly brought on record. Hence, need of the petitioner cannot form subject matter of consideration. It is further urged that the petitioner is staying with his family in the house at Hanuman Nagar and it has been proved on record that it is a three story structure having several rooms. It is contended that in this back ground, the need of the petitioner as disclosed cannot be accepted. The finding on arrears or quantum of rent is also challenged by pointing out that in the absence of written agreement between the parties, the stand of the respondent – tenant that rent was Rs.1,000/- per month ought to have been accepted. The inference that the 3 rent could not have been Rs.1,000/- and it ought to have been Rs.5,000/- is reached only because the Corporation tax receipts at Exh. 37 to 38 is unsustainable. The burden to prove that rent was Rs.5,000/- per month was on landlord and same has not been discharged, the decree on the ground of arrears of rent is unsustainable. The provisions of Section 15 are pressed into service to show that the same contemplate service of 90 days demand notice and a cause of action accrues only thereafter. In the plaint though the service of notice dated 02.07.2005 has been alleged, the plaint does not disclose any cause of action accrued after 90 days therefrom and plaint discloses that tenancy itself was terminated by notice dated 02.07.2005. Shri Purohit, learned counsel, in reply has relied upon the observations of lower appellate Court as also trial Court to substantiate the need and the arrears. He argues that as findings are concurrent and on facts, no interference is warranted in exercise of jurisdiction. Section 16(2) explanation excludes rent farmer or rent collector for the purposes of considering grant of decree on the ground of bonafide need. However, here, the facts show that the agreement was entered into by father of the petitioner on 08.02.1991 itself and thereby he got title to suit flat. That agreement was registered on 07.08.1991. Thus, subsequent registration by itself is not sufficient to invalidate the relinquishment deed executed by the 4 father on 18.05.1991 (Exh. 111) in favour of his own father. The said grand father had thereafter executed a registered Will dated 01.06.1991 in favour of Respondent No.1. All these documents are registered and show bonafides of the parties. The petitioner – tenant cannot question this document and the contention that the respondent is only rent farmer or rent controller is, therefore, unsustainable. The need pleaded by the respondent is that he was staying with his brother in joint family and he wanted his own flat. The need has been established. It has not been shown that the house at Hanuman Nagar did not belong to his brother and the size or extent of that house is, therefore, irrelevant. It is not the case of the petitioner that the respondent had any other accommodation except suit flat for him to occupy. The concurrent findings reached in this respect by both these Courts cannot be labeled as erroneous or perverse. Insofar as quantum of rent is concerned, the appellate Court has found that the annual tax being paid was Rs.18,119/- i.e. Rs.1,500/- per month. Because of this quantum, it refused to believe the evidence of the petitioner that monthly rent was Rs.1,000/- There was no other figure before it and the respondent – landlord stated that the rent was Rs.5,000/- per month. The notice dated 02.07.2005 was also for said amount. Considering this evidence, the finding has been reached and same cannot be labeled as perverse. 5 Section 55 of the Rent Control Act gives primacy to contention of the tenant if the agreement is not registered but then it is open for the landlord to prove otherwise. This is apparent from the words “unless proved otherwise” used in Section 55(2). Here, after appreciating the evidence, a finding has been reached. Section 15 deals with relief to tenant from forfeiture and prohibits Court from passing a decree of eviction if the ingredients thereof are satisfied. Here, the notice is dated 02.07.2005 and suit has been filed after expiry of 90 days i.e. after 14.10.2005. The petitioner has not deposited the rent at Rs.5,000/- per month as claimed in the notice and he could have deposited that amount without prejudice to his rights. Even after receipt of suit summons, he has not taken any steps to amend the plaint as contemplated by Section 15(3) of the Rent Control Act and hence no objection can be taken to decree even on that count. No case is made out warranting any interference in writ jurisdiction. Writ Petition is partly allowed and the decree for eviction is granted to the respondent – landlord under the provisions of Section 15 read with Section 16(1)(g) of Rent Control Act. No order as to costs. Decree on the ground of change of user is set aside. At this stage, Shri Chandurkar, learned counsel seeks protection of his possession for a period of 6 six weeks more. Shri Purohit, learned counsel states that the protection cannot be granted and if this Court is inclined to grant the protection, tenant should be asked to deposit all arrears. In the interest of justice, the possession of the petitioner on suit premises is protected till 15.02.2010 subject to the petitioner depositing an amount of Rs. 50,000/- with the Registry of this Court by 1st February 2010. If the amount is not deposited, interim order shall cease to operate. JUDGE *GS.