1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.2277 of 2010 And Writ Petition No.3410 of 2010 Writ petition No.2277 of 2010 Jagdish Tiwari s/o Ramprasad Kashyap, Aged about 56 years, Occ : Business, R/o Corporation Plot No.156, Sathe Road, Dhantoli, Nagpur. … Petitioner Versus 1. Smt. Padma wd/o Anandrao Wadegaonkar, Aged about 68 years, Occ : Household, R/o Corporation Plot No.155, Sathe Road, Dhantoli, Nagpur. 2. Ramesh s/o Ramprasad Kashyap, Aged about 59 years, Occ : Business. 3. Dwakaprasad s/o Ramprasad Kashyap, 2 Aged about 49 years, Occ : Business. 4. Gopal s/o Badriprasasad Kashyap, Aged about 29 years, Occ : Business. All R/o Corporation Plot No.156, Sathe Road, Dhantoli, Nagpur. … Respondents Shri R.D. Dharmadhikari, Advocate for Petitioner. Shri A.C. Dharmadhikari, Advocate for Respondent No.1. Shri H.D. Dangre, Advocate for Respondent Nos.2 to 4. Writ Petition No.3410 of 2010 1. Ramesh s/o Ramprasad Kashyap, Aged about 61 years, Occupation Business. 2. Dwarkaprasad s/o Ramprasad Kashyap, Aged about 51 years, Occupation Business. 3. Gopal Kashyap s/o Badriprasad Kashyap, Aged about 31 years, Occupation Business. All resident of Plot No.156, Sathe Road, 3 Dhantoli, Nagpur, Tahsil & District Nagpur, Maharashtra State. … Petitioners Versus 1. Smt. Padma wd/o Anandrao Wadegaonkar, Aged about 70 years, Occupation Household, Resident of Plot No.155, Sathe Road, Dhantoli, Nagpur, Tahsil & District Nagpur, Maharashtra State. 2. Jagdish Tiwari s/o Ramprasad Kashyap, Aged about 56 years, Occupation Business, Resident of Plot No.156, Sathe Road, Dhantoli, Nagpur, Tahsil & District Nagpur, Maharashtra State. … Respondents Shri H.D. Dangre, Advocate for Petitioners. Shri A.C. Dharmadhikari, Advocate for Respondent No.1. Coram : R.M. Borde, J. Dated : 5 th August, 2010 4 Oral Order : 1. The petitioners/tenants are raising exception to the judgments and orders passed by the learned Ad hoc District Judge-4, Nagpur, on 22-6-2009 and 12-2-2010, whereby the appeals presented by respondent No.1-landlady/original plaintiff seeking eviction of the tenanted premises came to be allowed and the tenants have been directed to deliver vacant possession of the suit premises to the landlady within three months from the date of passing of the appellate judgments and orders. 2. The respondent-landlady initiated proceedings for eviction against the petitioners/tenants from the tenanted premises on two grounds. The first ground raised by the landlady is that the tenants are in arrears of payment of rent for the period of eighteen months and as such they are willful defaulters. The second ground raised is in respect of bona fide need of the landlady, as she requires the premises for the residential purpose or for establishing the business of her son. The son of 5 the landlady wishes to shift his business, which is an automobile garage set up for the purpose of cleaning and washing the vehicles, in the tenanted premises. It is not disputed that there are three plots belonging to the family, being Plot Nos.154, 155 and 156, and the landlady owns Plot Nos.155 and 156. Residential premises constructed on Plot No.156 are the tenanted premises, in respect of which eviction is sought. According to the landlady, Plot No.154, whereupon the construction is raised, belongs to her brother-in-law - Nilkanthrao, who wishes to shift from Delhi to Nagpur and needs the premises for his own occupation. It is contended that the brother-in-law of the landlady issued a notice to her asking her to vacate the premises and as such, the landlady was required to approach the Court seeking eviction of the tenants. The tenants appeared in response to the notice issued by the Court and resisted the suit by presenting the written statement. The adverse contentions raised in respect of willful default on the part of the tenants in paying the rent have been controverted by the tenants. It is also contended by the tenants that the need exhibited by the 6 landlady that the premises are required for the business of her son is not a bona fide need. It is contended by the tenants that the premises are essentially residential one and there is no permission to commence the business secured by the landlady as yet. It is also contended by the tenants that it would be impermissible to commence the business in the residential locality in view of the rules, which govern user of the immovable property. After considering the rival contentions raised by the parties, the Trial Court was pleased to dismiss the suits presented by the plaintiff/landlady. 3. The landlady being aggrieved by the judgment and order passed by the Trial Court, preferred appeals, which were initially decided by the Appellate Court. However, the tenants raised certain objections in a writ petition presented by them and on consideration of the objections raised by them, the matter came to be remitted back to the Appellate Court. The Appellate Court once again dealt with the questions raised in the appeals and allowed the same in view of the judgments and orders passed on 22-6-2009 7 and 12-2-2010. 4. I have perused the judgments and orders passed by the Trial Court as well as the Appellate Court and heard the arguments advanced by the learned counsel appearing for the parties. 5. The learned counsel for the petitioners vehemently contended that immediately after receipt of the notice, the tenants cleared off the arrears together with interest at the rate of 15% per annum within the period prescribed by Section 15 of the Maharashtra Rent Control Act. It is also contended that during the pendency of the proceedings before the Trial Court as well as the Appellate Court, the tenants deposited the amount payable towards rent in the Court at least on three occasions. It is also contended that on 5-5-2010, an amount of Rs.635/- was paid to the landlady by money order and on 20-7-2010 a demand draft of Rs.5,000/- was forwarded to the landlady, but she refused to accept the same. It is thus 8 contended that there is in substance compliance of Section 15(3) of the Maharashtra Rent Control Act and as such the Appellate Court has committed an error in holding that the tenants are willful defaulters. So far as the bona fide requirement of the landlady is concerned, it is contended that the findings recorded by the Appellate Court are perverse. 6. Section 15(3) of the Maharashtra Rent Control Act provides thus : “15. No ejectment ordinarily to be made if tenant pays or is ready and willing to pay standard rent and permitted increases - (1) … (2) … (3) No decree for eviction shall be passed by the court in any suit for recovery of possession on the ground of arrears of 9 standard rent and permitted increases if, within a period of ninety days from the date of service of summons of the suit, the tenant pays or tenders in court the standard rent and permitted increases then due together with simple interest on the amount of arrears at fifteen per cent per annum; and thereafter continues to pay or tenders in court regularly such standard rent and permitted increases till the suit is finally decided and also pays cost of the suit as directed by the Court.” Although it is brought on record that the tenants have deposited the amount of arrears together with interest at 15% per annum within 90 days from the date of service of summons of the Court, however, they have not fulfilled the obligation in respect of deposit of rent regularly during the continuance of the suit as well as the appeal. Sub-section (3) of Section 15 of the Maharashtra Rent Control Act casts an obligation on the tenant not only to deposit the arrears of rent on the receipt of the suit summons, but also cast 10 an obligation to pay or tender in the Court regularly the standard rent and permitted increases till the suit is finally decided. On consideration of the contentions raised by the tenants, it is evident that they have not fulfilled the obligation in respect of paying or tendering in Court the amount of standard rent and permitted increases regularly. Although it is contended that on three occasions the amount of rent has been deposited in the Court, it transpires that it was only on 4-8-2004, an amount of Rs.400/- was deposited and thereafter only after a lapse of three years, the further amount of Rs.4,000/- came to be deposited on 5-9-2007. It is also contended that the last payment of Rs.3,810/- was made after about 2 ½ years, i.e. on 1-2-2010. The deposit of the amount by the tenants at irregular intervals and after a lapse of years together cannot be said to be in strict compliance of the provisions of sub-section (3) of Section 15 of the Maharashtra Rent Control Act. 7. Reliance is placed on the judgments in the matters of Vasant 11 Raghosheth Tambe and another v. Bholadasji Mandir and others, reported in 2008(4) Mh.L.J. 275, and Girish Gangadhar Agrawal v. Jiteshkumar Hasmukha Vakhariya, reported in 2009(6) Mh.L.J. 875, in support of the proposition that the tenant is required to deposit the amount towards rent regularly so as to claim benefit of the provisions of sub-section (3) of Section 15 of the Maharashtra Rent Control Act. Considering these aspects, it cannot be said that the view adopted by the Appellate Court that the tenants are willful defaulters is erroneous. 8. So far as the bona fide need exhibited by the landlady is concerned, it is the wish of the landlady as to where she should permit her son to set up his business. It cannot be denied that the son of the landlady is running the business at the different premises, that is the adjoining plot belonging to the brother-in-law of the landlady – Nilkanthrao. 9. So far as the question raised in respect of permission for using 12 the property for business purpose is concerned, it would be open for the landlady to secure appropriate permission from the appropriate authorities. It has been brought on record that in near vicinity, some other garages are permitted to be operated. Thus, it cannot be permitted to be contended that in the locality no business activity can be performed. However, the landlady may have to secure appropriate permission and it would be her obligation to secure appropriate permission or authorization before starting the business. The tenants, therefore, cannot be permitted to contend that the present use of the premises is for residential purpose and as such the same cannot be permitted to be converted for business purpose. 10. In this view of the matter, I am of the opinion that no interference is required to be caused in these petitions and the same stand rejected. Judge. pdl