1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.5916 OF 2010 (DADARAO S. WALWE...VS.. VITHALRAO L. MAHALLE) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. N.M. Jibhakate, Advocate for Petitioner. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 18, 2011. Heard the learned counsel for the petitioner. 2. By this petition the petitioner impugns the judgment passed by the first appellate Court on 04.04.2009 allowing an appeal filed by the respondent/ landlord and directing the plaintiff to handover the vacant and peaceful possession of the suit premises to the respondent. The petitioner is the tenant and the respondent is the landlord of the suit premises. A suit was instituted by the respondent for possession under the provisions of the Maharashtra Rent Control Act on the ground that the petitioner was a habitual defaulter and the respondent required the premises for his bonafide occupation and also for carrying out the repairs. It was stated by the respondent in the application that he was residing in his father's house along with other family members and the said premises were insufficient and the respondent required the suit premises for his bonafide use and occupation. It was also pleaded by the respondent that the petitioner was in arrears of rent since November, 2000. The petitioner denied the claim of the respondent and also denied that he was in arrears of rent. It was pleaded by the 2 petitioner in the reply that since the respondent had another house he did not bonafide require the premises. It was also pleaded by the petitioner that he was ready and willing to deposit the arrears of rent and future rent in the Court. 3. On the pleadings of the parties the issues were framed and the trial Court, on appreciation of the evidence on record, came to a conclusion that the tenant/ petitioner was in arrears of rent to the extent of Rs.300/-. The trial Court held that the respondent failed to prove that he bonafide require the premises for his occupation. The Court also rejected the case of the respondent that the premises required extensive repairs. Having held so, the trial Court held that the comparative hardship which would be caused to the petitioner would be greater than the comparative hardship which would be caused to the respondent in case a decree of eviction was passed against the tenant. 4. The first appellate Court, on re-appreciation of the evidence on record, reversed the findings recorded by the trial Court on the issue of bonafide need and the petitioner being in arrears of rent. The first appellate Court held that the petitioner was liable to be evicted from the suit property as he was defaulter in view of the provisions of Section 15 of the Maharashtra Rent Control Act and the landlord had also proved that he required the premises for his bonafide use and occupation. The first appellate Court held that the hardship caused to the landlord would be greater than the hardship caused to the tenant in case the suit was not decreed. The findings recorded by the first appellate Court are impugned in the writ petition. 3 5. On hearing the learned counsel for the petitioner and on perusal of both the judgments, it appears that the trial Court had clearly erred in rendering the findings of the two issues in regard to 'default' and the 'bonafide need' of the landlord and the first appellate Court was perfectly justified in reversing the findings of the trial Court on those issues. The first appellate Court held that the suit was filed after a period of 90 days from the issuance of the notice to pay arrears of rent and the petitioner had defaulted to pay the rent. The first appellate Court further observed that the petitioner had put in his appearance after suit summons was served on the petitioner some time in May-June, 2001. The Court held that the petitioner did not pay the arrears of rent with interest within a period of 90 days from the receipt of the summons. Though the defendant was served with the summons before 28.06.2001, the documents filed by the defendant/ petitioner clearly showed that the amounts towards arrears of rent were paid only on 13.03.2002, 30.01.2003, 30.04.2004 and 20.05.2004. The Court held that the rent for the month of November, 2000 was not paid by the petitioner. 6. On an appreciation of the aforesaid factual position, the first appellate Court rightly held that the petitioner had failed to deposit the rent within a period of 90 days from the receipt of the notice and further within a period of 90 days from the receipt of the suit summons. Hence, according to the first appellate Court, the petitioner was the defaulter as per the provisions of Section 15 of the Maharashtra Rent Control Act. 4 7. As regards 'bonafide need', the first appellate Court considered that the respondent was residing with his father and the family was a large one. The first appellate Court held that the respondent cannot be asked to reside in the house of his father and share the residential accommodation with him. The first appellate Court found that the evidence of the respondent, in his examination in chief, had not been shaken in his cross-examination. The first appellate Court also gave due weightage to the fact that the premises had only built-up area of 600 sq.ft. The trial Court had erroneously held that the petitioner admitted that the respondent was staying in two storeyed house constructed on 40 x 50 sq.ft. plot and there was no satisfactory evidence to prove that the space which he was occupying was insufficient or inconvenient to him in any manner. The trial Court had failed to appreciate the material evidence of the respondent on the issue of bonafide need. The first appellate Court rightly held that considering the fact that the family of the petitioner was a large one the premises which he was occupying at the relevant time was not adequate and since the respondent was the best judge of his requirement, the respondent was entitled to grant of permission to eviction under Section 16(g) of the Maharashtra Rent Control Act. 8. Since the petitioner had not made any efforts to search for alternate premises in spite of institution of the proceedings against the petitioner, considering the fact that the bonafide need was proved by the landlord, the first appellate Court rightly held that the issue of comparative hardship should be answered in favour of the respondent and not the petitioner. 5 9. The findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material on record. They need no interference in exercise of the writ jurisdiction. 10. In the result, the writ petition is dismissed with no order as to costs. JUDGE RR..