1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5444/2010 (Aijaz Ahmad Khan Mukhtyar Ahmad Khan VERSUS Samiunnisa Abdul Shakur) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.P. Kshirsagar, counsel for the petitioner. Shri A.M. Ghare, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 25 , 2011 . By this petition, the petitioner challenges the order passed by the trial Court and the first appellate Court holding that the respondent was entitled to possession of the suit property in view of the provisions of Section 15 and Section 16(1)(g) of the Maharashtra Rent Control Act, 1999. The petitioner is in possession of the suit property since the year 1997. It was the case of the landlady that the petitioner had sent a registered notice dated 01.08.1997 claiming therein that he was the tenant in the suit house and according to the respondent, though the contents of the notice were incorrect, with a view to cut short the controversy, the respondent accepted that the defendant was a tenant. The respondent pleaded that the defendant- petitioner was in arrears of rent from 01.06.1997 to 31.03.2002 and, hence, the respondent sent a registered notice dated 30.11.2001 calling upon the petitioner to clear the arrears of rent on or before 31.03.2002. It was also pleaded by the respondent that she required the suit premises for bona fide occupation as she was residing in her sister’s house at the mercy of the sister. 2 The defendant-petitioner denied the claim of the respondent and pleaded that the respondent did not require the suit premises for bona fide occupation. The defendant then amended the written statement and further pleaded that the plaintiff was residing with her sister Safiya and after the death of Safiya on 17.01.2009, the plaintiff became the absolute occupier of the house in which the plaintiff was residing with Safiya Begum. The defendant denied that he was in arrears of rent and pleaded that the plaintiff had accepted a sum of Rs.5,000/- as advance while inducting him as a tenant in the suit house. According to the defendant, certain amount was spent by the defendant on the repairs of the tenanted premises and that amount was to be adjusted towards the payment of rent. In the aforesaid set of facts, the defendant sought for the dismissal of the suit. Both the Courts, on a proper appreciation of the evidence on record, held that the defendant was a defaulter in payment of rent as he had not paid the rent to the respondent within a period of ninety days from the issuance of the notice and also had not deposited the same in the Court within a period of ninety days from the receipt of the summons. The Courts concurrently held that the respondent was entitled to possession of the suit property under the provisions of Section 15 of the Maharashtra Rent Control Act. Both the Courts further held that the plaintiff had proved her bona fide need to occupy the said premises. The Courts found that the plaintiff was a pensioner and was residing at the mercy of her relative. The Courts considered the evidence of the plaintiff that she wanted to shift in her own house since she was retired from service. There was no 3 evidence on record to show that the plaintiff was the owner of any other premises and, hence, the Courts held that the plaintiff was entitled to seek possession of the property under Section 16(1)(g) of the Maharashtra Rent Control Act. The Courts found that the case of the petitioner that Safiya Begum had died on 17.01.2009 and since there was no other legal heir of Safiya Begum, the respondent was occupying the property in possession of Safiya Begum exclusively, was liable to be rejected, more so, because it was the defendant's own case that the said property in which Safiya Begum resided was belonging to a Church. The Courts also found that the comparative hardship, which would be caused to the respondent, would be obviously greater than the hardship, which would be caused to the petitioner, as the petitioner had not taken any efforts to search for any other rented premises and had not stated before the Court whether the same were available to the petitioner or not. The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the material evidence on record. The submission made on behalf of the petitioner, that the respondent cannot seek a decree of possession against the petitioner under Section 15 and 16 (1)(g) of the Maharashtra Rent Control Act, 1999, as the respondent had denied the relationship of landlady and tenant between the parties as it was the case of the respondent that the petitioner had taken forcible possession of the property, is liable to be rejected. It is necessary to note that the respondent had categorically pleaded in the plaint that though possession of the property was forcibly taken by the petitioner, with a view to cut short the 4 controversy, the respondent considered the petitioner as tenant and instituted the proceedings under Section 15 and 16 (1)(g) of the Act of 1999 against him. Since the petitioner had, by the communication made to the respondent, claimed to be the tenant in the suit property, the petitioner is estopped from saying that there was no relationship of landlady and tenant between the parties and the suit filed by the respondent was not tenable. It is necessary to note that on the receipt of the communications from the petitioner, the respondent, with a view to cut- short the controversy, accepted that the petitioner was her tenant and in such circumstances, it cannot be said that the suit was not tenable, specially when it was the petitioner's case that he was the tenant in the suit property. The findings recorded by both the Courts are just and proper and are based on a proper appreciation of the evidence on record. There is no reason whatsoever to interfere with the same in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. Shri Kshirsagar, the learned counsel or the petitioner, seeks a stay to this order for a period of two weeks. Shri Ghare, the learned counsel for the respondent, strongly opposes the prayer made on behalf of the petitioner and states that the petitioner may be directed to deposit the arrears of rent in this Court within a period of two weeks in case this order is stayed for the said period. 5 Since ad-interim relief was granted in favour of the petitioner by the order dated 02.11.2010, the same is continued for a period of two weeks subject to payment of arrears of rent in case, they are payable by the petitioner to the respondent. JUDGE APTE