1 wp1755.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.1755 OF 1994 Shankarrao Ranoji Sawant & Sons ...Petitioner vs. Sadashiv Baburao Prasade (since deceased by his heirs and legal representatives) 1a Smt.Mangalabai Sadashiv Prasade 1b Chandrakant Sadashiv Prasade 1c Mr.Milal @ Milind Sadashiv Prasade 1d Mrs.Asha Sadashiv Prasade 1e Sou. Alka Shriram Shetage ...Respondents Mr.K.Y.Mandlik for the petitioner Ms S.A.Mudbidri for the respondents CORAM :A.S.OKA,J. DATE ON WHICH JUDGMENT IS RESERVED:SEPTEMBER 17,2010 DATE OF PRONOUNCEMENT OF JUDGMENT :NOVEMBER 19,2010 JUDGMENT : 1 By this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the concurrent decrees of the Courts below under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control)Act, 1947 (hereinafter referred to as the said Act). 2 The original respondent is the plaintiff and the petitioner herein is the original defendant. The 2 wp1755.sxw petitioner is a registered partnership firm. The suit premises consists of a shop premises admeasuring 19 X 7 on the ground floor and a room admeasuring 18 X 8 on the first floor of the building more particularly described in paragraph 1 of the plaint. The original plaintiff alleged that the standard rent has been fixed at Rs.100/- per month exclusive of permitted increases in the standard Rent Application being Misc. Application no.260 of 1976. It is alleged that the defendant was in arrears of permitted increases such as municipal taxes, education cess, employment guarantee cess etc. for the years 1981-82, 1982-83, 1983-84. A notice of demand dated 6 th February 1984 was accordingly issued by the plaintiff to the defendant. It is contended that the notice was duly served on 7 th February 1984 which was replied on 16 th February 1984. In the reply it was contended that the sisters of the plaintiff were also the legal representatives of the original owner. In the plaint, it is stated that in the reply to the notice, the defendant disputed the ownership of the plaintiff. 3 In the plaint it is alleged that the sons of the plaintiff by the name Chandrakant and Milan were grown up. It was stated that the son Milan was an Electrician and he wants to start his business in the shop premises forming part of the suit premises. It was contended that the plaintiff and his other son Chandrakant was also desirous of carrying on business and since no other premises was available for the business, the sons of the plaintiff were 3 wp1755.sxw forced to take up the employment and were receiving meagre income. It was contended that the defendant was having two other shop premises in which business was carried on by the defendant. It was contended that the defendant is a partnership firm of the joint Hindu family which was earning profit in lacs. By amendment of the plaint it was pointed out that the suit premises was situated at Bhausingaji Road at Kolhapur which was a thickly populated area. There were number of shops along with the said road selling electric material. By amendment, the plaintiff without prejudice to his contentions in the plaint contended that the decree can be passed in respect of a part of the suit premises. 4 The petitioner-defendant contested the suit by contending that the defendant-firm was not concerned with other shops as alleged by the plaintiffs. It was contended that the plaintiff was not the only legal owner of the suit premises and his sisters were also entitled to claim ownership. Hence, it was contended that the plaintiff was not entitled to claim exclusive right of ownership in respect of the suit premises. The petitioner-defendant contended that an application for fixing standard rent has been filed and all arrears of rent have been deposited as per the directions of the Court in the said application. The defendant contended that there are other properties of the plaintiff and his sons in the City of Kolhapur which have been let out and they are indulging in profiteering. It was submitted that the defendant was the tenant in respect of the entire building in which the suit 4 wp1755.sxw premises is situated, but on the request made by the plaintiff's father the defendant surrendered the third floor and loft/mezzanine floor to enable the members of the family to carry on business. 5 The Trial Court framed various issues. The trial Court upheld the bona fide need pleaded by the plaintiff and held the issue of comparative hardship in favour of the plaintiff. The trial Court held that the suit was maintainable. However, the ground of arrears of permitted increase was negatived. The trial Court held that in earlier Misc. Application no.26 of 1976 the standard rent was fixed at Rs. 100/- per month which was inclusive of permitted increases. Thus, the trial Court passed a decree on the ground of bona fide requirement. An appeal was preferred by the petitioner-defendant. In the appeal, cross objection was filed by the plaintiff for challenging that part of the decree of the trial Court by which the ground of arrears of rent was negatived. The Appellate Court confirmed the finding of the trial Court on the issue of bona fide need and comparative hardship. The Appellate Court held that the standard rent was fixed in earlier proceeding at Rs.100/- per month exclusive of permitted increases. Therefore, the Appellate Court passed a decree directing the defendant to pay arrears of permitted increases of Rs.825/-. 6 The learned counsel for the defendant submitted that the Appellate Court as well as the trial Court committed a serious error by ignoring that there were other properties available to the sons of the 5 wp1755.sxw plaintiff. He submitted that at least two properties were available to the plaintiff which were at a short distance from the suit premises in a market area. He submitted that the defendant-tenant was in possession of the suit premises for a long period of more than 60 years and in absence of any evidence regarding any other property being available to the defendant-tenant, the issue of comparative hardship could not have been decided in favour of the plaintiff. He submitted that the finding of the trial Court that the standard rent of Rs.100/- per month fixed in the earlier proceeding was inclusive of permitted increases was incorrect in as much as there was nothing in the order passed in Misc. Application no.260 of 1976 to show that the amount fixed was not inclusive of permitted increases. He pointed out that the finding recorded by the trial Court that the tenant had deposited the monthly taxes for the entire period by way of extraordinary precaution. He submitted in any case the decree for possession could not have been passed under section 12(3) (a) of the said Act as the monthly taxes were not payable by month. He submitted that the decree on the ground of arrears of rent was not sustainable. The learned counsel for the respondents supported the impugned Judgment and decree. 7 The first question will be regarding the decree on the ground of bona fide need. The need pleaded was of sons of the plaintiff by name Chandrakant and Milan. It was stated by the plaintiff that the age of Chandrakant was of 35 years and the age of Milan 6 wp1755.sxw was of 30 years. It was stated that the said Chandrakant was plying an auto rickshaw and Milan was serving with Chandra Light House and drawing a salary of Rs.800/- per month. The trial Court has recorded a finding that the fact that the said Milan is serving for 7 to 8 years at Chandra Light House, Kolhapur is not disputed by the defendant. However, the defendant suggested that the said Milan can carry out business of repairing work on the second floor above the suit premises. One Sarupchand Lalchand Sangvi was examined by the plaintiff who was the father of the owner of the said Chandra Light House who deposed that Milan had good experience in business of electric material and appliances, fittings and spare parts. 8 Another aspect which was brought on record in the cross examination of the plaintiff was that there was another property bearing C.T.S no.565 in C Ward, Kolhapur of the ownership of the plaintiff and his sons and the said property was let out since the year 1976 to the three tenants who were carrying on business. It was sought to be contended before the Trial Court and the Appellate Court by the defendant that if the sons of the plaintiff were badly in need of a premises, the said premises could not have been let out in the year 1976. It must be noted here that the present suit was filed on 12 th March 1984. The plaintiff deposed before the Trial Court on 17 th November 1990. In his deposition, he disclosed the respective ages of his sons as 35 and 30 years. Thus, in the year 1976, the age of the elder son was 21 years and the age of the younger son was 16 7 wp1755.sxw years. Obviously, the need which existed in the year 1984 was not in existence in the year 1976 and therefore, the fact that the premises bearing C.T.S.no.565C was let out in the year 1976 will not affect the bona fide need pleaded by the plaintiff. The amount of rent received by the plaintiff from the property bearing C.T.S.no.565C was brought on record. It was revealed that the total rent of Rs. 345/- per month was received by the plaintiff which was obviously not a huge amount. What is accepted by both the Courts is that the elder son of the plaintiff was plying an auto rickshaw for earning livelihood and the younger son was employed in Chandra Light House. Nothing was brought on record to show that any other premises was available to the sons of the plaintiff to carry on business. 9 A contention was sought to be raised by the defendant that there was a decree of partition passed to which the plaintiff and his sons were parties and therefore, his sons were no longer members of the joint family. However, the Ration Card and Voters list were produced and proved before the trial Court which showed that the sons of the plaintiff were residing with the plaintiff and therefore, there was nothing wrong if the plaintiff pleaded requirement of his sons. 10 For carrying on business of electrical appliances, it is obvious that the premises on the second floor are not at all suitable. There are concurrent finding recorded by the Courts below on the issue of bona fide need of the sons of the 8 wp1755.sxw landlord. Bona fide need to occupy the suit premises consisting of one shop and one room is held as established by both the Courts cannot be doubted. There is no reason to interfere with the concurrent finding of fact on this aspect. 11 As far as comparative hardship is concerned, the Courts below and in particular the Appellate Court has considered the evidence on record and in particular the evidence of employee of the Estate Section of Kolhapur Municipal Corporation. The documents produced on record by him show that one Chandrakant Shankarrao Sawant has taken a shop on lease from the Municipal Corporation. The lease was executed by the said Chandrakant on behalf of the Sawant Cloth Emporium. The said Chandrakant is the brother of one Vishwas who was the partner of the present defendant-tenant. Apart from the said shop, it was the case of the plaintiff that there was another shop available to the defendant in Sarlashkar Bhavan at Kolhapur. It is brought on record that the property bearing C.T.S.no.3030 (Sarlashkar Bhavan) was standing in the names of Mr.K.V.Sawant, M.V.Sawant and U.C.Sawant who were the brothers of the said partner of the defendant. 12 The partner of the defendant Shri Vishwas Shankarrao Sawant was examined. He admitted that he along with his three brothers was residing in 949 B Ward, Kolhapur and there were four flats in the said building. It must be noted here that the extract of register of firms showing entry of Sawant Cloth Emporium was produced and proved at Exhibit-64 9 wp1755.sxw before the trial Court which shows that one Shanta V. Sawant was the partner in the said firm. The said Vishwas Sawant admitted in the cross examination that the said Shanta is his wife and the business of Sawant Cloth Emporium was conducted in Gala No.13 at Cloth Market at Kolhapur. The said partner of the defendant admitted that the said Milan was serving in Chandra Light House. He also admitted that from the date of receipt of the suit notice, he has not made any enquiry or has not taken a search for other accommodation. 13 Considering the aforesaid aspects, the Courts below have recorded a concurrent finding on the issue of comparative hardship. It is not possible to find fault with the said concurrent finding. 14 Now, the other issue which survives for consideration is regarding arrears of permitted increases. The certified copy of the Misc. Application no.260 of 1976 filed by the defendant is on record. In the said application it was stated that a part of the suit premises was demolished in road widening. It was pointed out that in earlier application for fixation of standard rent, the Court had fixed the standard rent at Rs.150/- per month which was required to be reduced as a result of demolition of part of the suit premises It was stated that after demolition was carried out, necessary repairs were carried out by the defendant on his own costs. The predecessor in title of the plaintiff herein was a party to the said application and later on, plaintiff was brought on record. 10 wp1755.sxw There was a compromise effected between the parties in the said standard rent application. The relevant part of the order passed on the standard rent application read thus : Standard rent of the suit premises is Rs. 100/- p.m. The order does not provide that over and above the said amount, the tenant was liable to pay any amount by way of permitted increases. Therefore, the trial Court was justified in holding that as of 2 nd July 1977, the standard rent of Rs.100/- per month was inclusive of permitted increases. The Appellate Court has observed that it is clear from order dated 2 nd July 1977 that the rent of Rs.100/- per month was exclusive of municipal taxes and permitted increases. The said approach of the Appellate Court is completely erroneous. If according to the case of the plaintiff, after 2 nd July 1977, if there was an increase in education cess or employment guarantee cess, such a case ought to have been made out by the plaintiff. The claim of arrears of permitted increases of the plaintiff proceeds on the erroneous assumption that the order of the Court fixing standard rent at Rs.100/- per month was exclusive of permitted increases. It was not the case made out by the plaintiff that after the rent was fixed there was an increase in the taxes. Under clause 7 of section 5 of the said Act, permitted increase has been defined, increase in the rent permitted under the provisions of the said Act . 11 wp1755.sxw Therefore, it was for the plaintiff to make out a case in accordance with sections 8 to 10 of the said Act to show that any permitted increase became payable after 2 nd July 1977. To the extent of finding on the issue of standard rent and on the ground of arrears of municipal taxes, the decree of the Appellate Court will have to be set aside and the decree of the Trial Court will have to be restored. 15 Hence, I pass the following order : i) Decree for possession on the ground of bona fide need under section 13(1)(g) of the said Act is confirmed. ii)Clauses (2), (3), (5) and (6) of the operative part of the decree of the Appellate Court are set aside. iii)It is clarified that decree passed by the trial Court stands restored. iv)Rule is partly made absolute on above terms with no order as to costs. JUDGE . On the prayer made by the learned counsel for the petitioner it is directed that decree for possession shall not be executed for a period of eight weeks from today. 12 wp1755.sxw JUDGE