1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION CIVIL REVN. APPLN. NO. 108 OF 2010 Mr. Balkrishna Nathuram Oza. ... Applicant. V/s. Mr. Dilip Murlidhar Telegaonkar. ... Respondent. Mr. A.V. Anturkar i/b. Mr. S.B. Deshmukh for the Applicant. Mr. D.M. Gupte for the Respondent. CORAM : S.C. DHARMADHIKARI,J. DATED : 18th MARCH 2010. P.C. :- This Civil Revision Application challenges the concurrent Judgment and Order of the Court below decreeing the Respondent – Plaintiff’s Suit for possession. The Applicant is the original Defendant. 2. The Suit premises are Shukrawarpeth, City Survey No. 1638/39, admeasuring 140 sq.ft. and more particularly, described in paragraph 1 of the plaint. They were let out by the Plaintiff’s father to deceased Nathulal Himatlal Oza on 1st September 1954. The monthly tenancy is for Rs.60 excluding taxes. After the death of Nathulal, his widow Saraswatibai continued as a tenant and she used to run a hotel on the said premises. After the death of Saraswatibai, the present Petitioner – Original Appellant was running the business of Hotel. 2 3. The rent receipt continued in the name of Saraswatibai. The Respondent before me filed the aforementioned Civil Suit for possession on the ground of default in payment of rent and for bonafide and reasonable requirement of the Respondent. Finding that the material produced is consistent with the pleadings and a case is made out for eviction, the Courts below have directed the Petitioner – Original Defendant/Appellant to vacate and hand over possession of the suit premises. That is how, the instant Revision Application. 4. Mr. Anturkar, learned Advocate appearing on behalf of the Petitioner raised two contentions before me. His first contention is that the Suit notice demanding arrears of rent if properly perused would show that there is no demand for payment of rent. If there is no demand for payment of arrears of rent for the stipulated period and the requirements of Section 15(2) of the Maharashtra Rent Control Act, 1999 are not satisfied, then, no Suit for recovery of possession on the ground that the tenant has fallen in arrears of monthly rent can be maintained. 5. The second contention of Mr. Anturkar is that assuming that the Suit notice is valid and legal, yet, the eviction on the ground of reasonable and bonafide requirement of the landlord is not tenable. He submits that in law it is the landlord’s duty to urge to plead and prove that he requires the premises reasonably and bonafide for his own use and 3 occupation. While pleading such a requirement, it is for him to show that there are premises available but which are not suitable for his residence or business. In this case, the landlord does not state anything of this nature but during the course of evidence, the Petitioner – Tenant brings on record the fact that the landlord has other properties in the city of Pune and which are available to him. The negative burden cast by the Courts below on the tenant to prove that the premises were actually used by the landlord or his son is something which has no basis in law. In other words, the tenant does not have to show that the other premises belonging to the landlord are being actually used by him. The tenant has discharged his burden by showing that the landlord has other premises available for his use and occupation. In the instant case, the Courts below having proceeded on erroneous basis and their ultimate findings on both issues are vitiated by an error apparent and are perverse. For all these reasons, the Revision Application be allowed and the impugned Judgment be set aside. 6. It is not possible to agree with Mr. Anturkar. The Suit was filed by the Plaintiff – Landlord (Respondent) being Suit No. 188 of 2006 in the Court of Small Causes at Pune for possession. The Suit property is described in paragraph 1 of the plaint and after setting out therein the ownership and the details of the monthly tenancy in paragraph 3, the Plaintiff – Landlord states that the tenant is in default and has not paid the rent from January 2003. The specific case of the landlord 4 is that after the death of the original tenant Nathulal, his widow Saraswatibai was carrying on business of Hotel from the suit premises. The present Petitioner – Defendant did not disclose anything about the death of Saraswatibai or his relationship with her and therefore, the notice came to be addressed in the name of the recorded tenant. The notice clearly states that the tenant is in arrears of the rent which is to be paid from month to month. The copy of notice annexed to the Petition has been perused by me. It is well settled that a notice of the instant nature should not be construed in a narrow and pedantic manner so as to defeat an otherwise just claim of the landlord. A technical and narrow view of the matter particularly, with regard to the contents of the notice is not warranted in this case as well. The notice sufficiently indicates the claim of the landlord. Therefore, the notice being one issued under Section 106 of the Transfer of Property Act, 1882 satisfies the requirement of law. It could be a foundation for the claim of the Respondent – landlord. The claim is, therefore, tenable in law and the order of eviction based on the ground of default requires no interference. 7. There is yet another ground on which the eviction is sought. In paragraph 4 of the plaint, the Plaintiff has stated that he resides alongwith his son Harshal, two daughters and wife. The said son has stopped his education after XII std. (H.S.C.). He is aged 21 years and is presently jobless. Harshal desires to start hotel business from the suit premises. In paragraph 4 of the plaint, the landlord has stated that there 5 are no premises other than the suit premises available to him for the business in contemplation. It is for his son’s business and for his future that he requires the suit premises. 8. There is substance in the contention of the Respondent’s Counsel that both contentions that are now set up before this Court were not argued in the manner projected before me. I have perused the written statement and the relevant paragraphs with the assistance of the learned Counsel appearing for the parties. I have also perused the oral evidence to the extent relevant for answering the second contention of Mr. Anturkar. 9. I do not find that the Trial Court and the Lower Appellate Court erred in accepting the Respondent – landlord’s claim on the ground of reasonable and bonafide requirement. The record indicates that the tenant not only posed a question to him about alternate and other premises but raised a specific case that they were suitable for his son’s business as well. The cryptic finding of the Trial Court or the Lower Appellate Court is not decisive. If the entire material is perused, the landlord had pleaded that he had no other premises in the city for the Hotel business. That claim was sought to be falsified by pointing out the details of the premises which are allegedly available. The landlord dealt with each and every property which was referred to by producing the relevant documents and answered in the negative by stating that none of them are either available or suitable for setting up a Hotel business. 6 The relevant part of his cross examination is at page 27 (internal page 21 of the paper-book). The cross examination and the deposition must be read as a whole. So read, I do not find that there is substance in the contention of Mr. Anturkar that the Courts below proceeded on an erroneous basis or cast a burden not warranted in law on the Petitioner in this case. 10. Taking an overall view of the matter and finding that on both counts, the decree for eviction concurrently passed is legally tenable and does not suffer from any infirmity much less error of jurisdiction, there is no alternative but to dismiss the Revision Application. It is accordingly, dismissed. 11. At this stage, Mr. Anturkar, learned Counsel appearing on behalf of the Petitioner submits that some time to vacate the Suit premises be given. In the peculiar facts of this case and considering the landlord’s requirement for his son’s business, interest of justice would be served if six months time to vacate the premises is granted to the Petitioner on his filing an undertaking in this Court within a period of two weeks from today that : (a) The Petitioner shall not induct anybody else or create any third party rights in the suit premises; (b) That he will continue to pay the agreed rent till he hands over possession; 7 (c) The undertaking shall also state that after six months time is over, the Petitioner shall hand over vacant and peaceful possession of the suit premises to the Respondent – landlord and not seek any further extension; (d) Needless to state that in default, the landlord can take possession of the premises in accordance with law. In either event, the landlord can recover possession by seeking necessary police assistance if the premises are not handed over. (S.C. DHARMADHIKARI,J.)