Ajmani Dresses & Handloom House v. Gajanan Dattatray Mote & Ors.

Heard Mr. Dani, Advocate for the Petitioner and Mr. Deo for the Respondents. 2 The Decree for possession has been passed on the grounds of reasonable and bonafide requirement under Section 13(1)(g) of the Bombay Rent Act, change of user of the suit premises, acquisition of alternate suitable residential Borey 904wp.3783.12.sxw accommodation under Section 13(1)(l) and nuisance and annoyance and under Section 13(1) (a) of the Bombay Rent Act, 1947. The said Decree of the Trial Court has been confirmed by the Appellate Court and hence, there are concurrent findings of facts. 3 Mr. Dani, learned Advocate for the Petitioner submitted that considering the recitals in the Rent Note dated 15th February, 1973 at Exh. 47, the Tenancy of the first floor and the ground floor cannot be considered to be a composite Tenancy. He submitted that for the sake of convenience one Rent Note was executed but two different Tenancies were created. The ground floor tenancy being created for the purpose of running a business for rent of Rs. 35/- per month and the first floor tenancy was created for residence for rent at Rs.25/- per month. He further submitted that the Appellate Court was not justified in holding that there was one composite tenancy. He submitted that the Plaintiffs have not disclosed before the Court the various premises in their Borey 904wp.3783.12.sxw possession and hence, need pleaded by the Plaintiffs cannot be held to be bonafide and reasonable. 4 In so far as the ground of change of user and non-user is concerned, he submitted that such a ground would be applicable only in respect of the first floor premises at the highest and on that ground, no Decree for eviction in respect of the ground floor premises can be passed. The same was the submission in respect of the premises not being used like a person of ordinary prudence. 5 On the other hand Mr. Deo, learned Advocate for the Respondent Nos. 1A to 1D relied upon the Judgment of the Supreme Court in the case of Nilesh Nandkumar Shah vs. Sikandar Aziz Patel (2002) 6 SCC 678 and contended that the Tenancy in question was created for dual purposes. He submitted that the bonafide requirement of Vidyadhar for business purpose on the ground floor and bonafide requirement of Ravishankar, who is an Advocate, for the premises on the first floor has been duly established. He Borey 904wp.3783.12.sxw submitted that since two courts have concurrently passed the Decrees on various grounds, the said findings cannot be interfered with in extra ordinary jurisdiction under Article 227 of the Constitution of India. 6 On a careful reading of the Rent Note Exh. 47, I am of the view that the same creates two different Tenancies, one on the ground floor for business purpose for Rent of Rs.35 per month and the other on first floor for residential purpose with Rent of Rs. 25 per month. It is an admitted position that the Petitioner and erstwhile Tenant have used the premises on the first floor for the purpose of storage of goods rather than using the same for residence. Thus as far as the first floor is concerned there is a clear case of change of user. The courts below were justified in holding that the Tenant had not used the premises like a man of ordinary prudence. With these findings, the Decree for possession in respect of the First floor cannot be faulted with. Borey 904wp.3783.12.sxw 7 As far as ground floor premises are concerned, need of Vidyadhar has been accepted by the Trial Court and the Appellate Court has concurred with the said finding. Similarly, in respect of the first floor premises, the need of the nephew of the Plaintiff who is Advocate has also been accepted by the two courts below. The Tenant had given crucial admission in the Cross-examination that most of the other properties of the Plaintiff are occupied by the Tenants. With this admission, the criticism of Mr. Dani that no particular of the other premises were given in the plaint or in the deposition looses its significance. 8 I see no error of jurisdiction having been committed by the Trial Court and the Appellate Court in accepting plea regarding bonafide and reasonable requirement. 9 In so far as hardship is concerned, both the courts below have concurrently held that no hardship would be caused to the Plaintiffs. On the question of hardship Mr. Dani argued that the courts below have not applied their mind to the Borey 904wp.3783.12.sxw question of partial eviction. It must be noted that no factual foundation was led in the pleadings or through the evidence regarding passing a Decree of eviction and this submission is being advanced for the first time before this Court. I am therefore, not inclined to consider this submission. 10 There is no merit in the Writ Petition the same is dismissed. 11 At this stage, Mr. Dani, Advocate for the Petitioner prays for a reasonable time to vacate the suit premises. The prayer is strongly opposed by the Advocate for the Landlord. However, considering the overall facts and circumstances of the case, in so far as the premises on the first floor are concerned, time to vacate the same is granted till 30th July, 2012 subject to the Petitioner's filing an usual undertaking in this court on or before 11th June, 2012. 12 So far as the ground floor premises are concerned, as the Petitioner is running a business therein, time to vacate the Borey 904wp.3783.12.sxw ground floor premises is granted till 30th June, 2013 subject to the condition that the Petitioner files an usual undertaking in this court on or before 11th June, 2012. If undertaking as stated above is not filed, the Decree for possession will become executable forthwith. (G.S. Godbole, J.) ..... Borey