RANI M. CHANDWANI v. SUBHASH G. BUTY

The trial Court held that the landlord had failed to prove that the premises had not been used for the purpose for which they were let out for a continuous period of six months immediately preceding the date of the suit. The trial Court, however, held that the landlord was entitled to possession as the landlord had proved the bona fide need and had also proved that the petitioner-tenant had created the sub-tenancy. The judgment of the trial Court was challenged by the petitioner in an appeal, however, the first appellate Court by the judgment dated 22.11.2011, dismissed the appeal filed by the petitioner. Shri Kotwal, the learned counsel for the petitioner submitted that, the Courts below failed to consider that the suit was not tenable as it was filed on the basis of a Photostat copy of a Power of Attorney and since the document of Power of Attorney was not proved, the suit filed by the Power of Attorney holder ought to have been dismissed. It is submitted that both the Courts committed an error in holding that the respondent was entitled to possession of the property under Section 16(1)(g) of the Maharashtra Rent Control Act. It is submitted that the respondent had not proved his bona fide need inasmuch as though it was stated in the complaint that the suit premises was a corner shop and there was a passage adjacent to the suit premises leading to the open space behind the suit premises and was thus suitable for 3 WP1963-12 making arrangement for storing the sports goods, it was admitted in the cross-examination by the Power of Attorney holder for the respondent that the open space belonged to the joint family and it was not possible to construct a godown on the open space. It is submitted by taking this Court through the cross-examination of the Power of Attorney holder of the plaintiff that though a multi-storied building was being constructed on the place where originally Sangam Chawl existed, the witness had declined to speak about the said multi-storied building in the cross-examination and, hence, an adverse inference needs to be drawn against the plaintiff. It is submitted that there was no evidence on record to show that the petitioner had parted with the possession of the property in favour of Dr.Ravindra Bhoyar and that the petitioner was receiving any consideration. The learned counsel for the petitioner relied on the judgment reported in 2005(3) Mh.L.J. 646 (Laxminarayan s/o Motilal Gupta Versus Bhagwandas s/o Bhagonelal Sahu & another) in this regard. Shri Jain, the learned counsel for the respondent, supported the judgments passed by the trial and the first appellate Court and submitted that both the Courts have, on a proper appreciation of the evidence on record, answered both the issues in favour of the landlord and this Court may not, in exercise of the writ jurisdiction, interfere with the pure findings of facts. The learned counsel for the respondent submitted that there was ample evidence on record that the landlord required the premises for the business of his son. It is submitted that it was never the case of the petitioner before either of the two Courts that the plaint ought to have been discarded as it was signed by the 4 WP1963-12 Power of Attorney holder for the respondent and the deed of Power of Attorney was not proved. It is submitted that under the provisions of the Maharashtra Rent Control Act, the definition of the term 'landlord' is extremely wide and under the said definition, a landlord may not be the owner of the property. It is submitted that by considering the wide and inclusive definition of the term ‘landlord’ under the Act, the petitioner cannot be heard to say that the suit of the respondent was liable to be dismissed and it was not actually signed by the landlord himself. The learned counsel for the respondent relied on the judgment reported in AIR 2010 SC 603 (Celina Coelho Pereira & others Versus Ulhas Mahabaleshwar Kholkar & others) to canvas that in case a false plea of partnership to cover up sub-letting is raised and if the tenant does not have any control over the premises, the sub-letting is proved. The learned counsel for the respondent sought for the dismissal of the writ petition. On hearing the learned counsel for the parties, it appears that there is hardly any scope for interference with the impugned judgments in exercise of the writ jurisdiction. The findings recorded by both the Courts on both the issues are pure findings of facts based on a proper appreciation of the material on record. There is ample evidence on record to prove that the landlord required the suit premises for the business of his son. The respondent had proved that the respondent’s son wanted to start the business of Sports Goods and Equipments. There was evidence to show that the son of the landlord had knowledge in the business of Sports and the respondent had sufficient finances to establish his son in the business. It is clearly pleaded by the landlord that though 5 WP1963-12 there were six tenants in all, the premises in occupation of the petitioner was more convenient to the landlord inasmuch as there was a passage leading to the open space behind the suit premises. It was not stated in the plaint that the landlord wanted to construct a godown on the open space behind the suit premises. It was only stated that the petitioner was in occupation of the corner shop and that shop was more convenient as there was open space behind the shop. Merely because the witness of the landlord had admitted in the cross- examination that a godown cannot be constructed on the open space as the open space belongs to the joint family, it cannot be said that the case of the landlord that he required the suit premises for the business of his son stands falsified. Though the learned counsel for the petitioner has relied on the said admission of the witness of the respondent in the cross-examination, I do not feel that the said admission in any way falsifies the case of the respondent that the premises were more convenient and were required by the landlord for starting the business of his son. So also, though much has been said on behalf of the petitioner about the multi-storied building being constructed on the Sangam Chawl land, it cannot be said that the need of the landlord is not genuine as there is nothing on record to show that the respondent is the absolute owner of the property on which the multi-storied building is being constructed. Since the land on which the multi-storied building is being constructed belongs to the joint family and since the petitioner has not proved as to which part of the construction of the multi-storied building would be available to the respondent, it cannot be said that the case of the landlord is falsified. 6 WP1963-12 Both the Courts have rightly decreed the suit of the landlord on the ground that the petitioner had created a sub-tenancy. Though it was the case of the petitioner that a sub-tenancy was not created in favour of Dr.Ravindra Bhoyar and that the petitioner had started a partnership business along with Dr.Ravindra Bhoyar, both the Courts found that the petitioner could not establish that fact. Though a partnership was pleaded, no partnership-deed was produced by the petitioner on record. The petitioner was not aware whether the partnership-deed was registered or not. In fact, the petitioner had admitted in the cross- examination that Dr.Ravindra Bhoyar had prepared the document of Power of Attorney and the other papers and submitted them to the licensing authority and the petitioner had only signed those papers. The petitioner had admitted that she had no experience in the sale and purchase of Homeopathic medicines. She had also admitted that she was unable to state about the contents of the Homeopathic medicines. The petitioner could not state from which period Dr.Ravindra Bhoyar started running the Homeopathy Shop in the suit premises. The petitioner was also unable to state the value of the stock, the value of the capital invested and about the payment of salary to the employees in the shop, etc. Both the Courts observed that the Bank Account was standing in the name of Dr.Ravindra Bhoyar. Apart from this, several admissions of the petitioner in the cross-examination clearly showed that the petitioner had sub-let the premises to Dr.Ravindra Bhoyar and had raised a false plea that she had entered into a partnership with him. Both the Courts found that the petitioner had no control whatsoever over the shop 7 WP1963-12 premises and the plea of partnership was raised only with a view to cover up the fact of sub-letting the premises to Dr.Ravindra Bhoyar. The judgment reported in 2005(3) Mh.L.J. 646 (Laxminarayan s/o Motilal Gupta Versus Bhagwandas s/o Bhagonelal Sahu & another) and relied on by the counsel for the petitioner cannot come to the rescue of the petitioner in view of the evidence which clearly shows that the petitioner had sub-let the premises to Dr.Ravindra Bhoyar. In fact, the judgment reported in AIR AIR 2010 SC 603 (Celina Coelho Pereira & others Versus Ulhas Mahabaleshwar Kholkar & others) and relied on by the counsel for the respondent can be made applicable to the facts of this case. The submission made on behalf of the petitioner that the suit was liable to be dismissed as the plaint was not signed by a person duly authorized by the respondent to sign the same is an afterthought as the said submission was not canvassed before any of the Courts. All that was canvassed before both the Courts, was that since the Power of Attorney holder did not have knowledge about the facts, which were within the personal knowledge of the respondent alone, the evidence of the Power of Attorney holder was liable to be discarded. It appears that the wife of the respondent was authorized to sign the plaint and institute the suit on behalf of the respondent and the original deed of Power of Attorney was produced before the Court at the time of tendering evidence. Considering the wide and inclusive definition of the term ‘landlord’ under Section 6(3) of the Maharashtra Rent Control Act, it cannot be said that the suit filed by the respondent for eviction was not tenable. 8 WP1963-12 Since there is no merit in the writ petition, the same is dismissed with no order as to costs. JUDGE APTE