Dismissed

Worli Macchhimar Sarvodaya Sahakari Society Ltd. v. Piroj Dattatraya Worlikar and Ors.

Bombay HC17 Apr 2006WP/1661/2006

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a tenant society challenging an eviction decree. The court held that the lower courts' findings on the reasonableness of the landlord's requirement and the balance of hardship were just, legal, and proper, rejecting the bar of Section 25 of the Bombay Rent Act. The petition was dismissed with a stay for 12 weeks.

What did the court decide?

The writ petition is dismissed. No order as to costs. Stay of execution granted for 12 weeks from the date of the order.

Worli Macchhimar Sarvodaya Sahakari Society Ltd. Vs Piroj… — Landlord and Tenant | Bombay HC (2006)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE SIDE

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 WRIT PETITION NO.1661 OF 2006

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 Worli Macchhimar Sarvodaya Sahakari

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 Society Ltd. .. ..Petitioners

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 Versus

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 Smt.Piroj Dattatraya Worlikar & Ors. ..Respndents

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 Mr.Naveen Parekh i/b Ms Hetal Patel for petitioners

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 Mr. P.G.Lad for respondent no.2

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 CORAM : P.V.KAKADE, J.
 DATE : 17th APRIL, 2006

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 P.C.:

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 1. Heard the learned counsel for both the parties.
 Perused the record.

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 2. The petitioner-tenant has preferred this petition
 against the judgment and order dated 9.1.2005 dismissing
 his appeal and confirming the judgment and order passed
 by the trial court dated 13.8.2001 decreeing the suit and

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 directing the petitioner-tenant to deliver vacant and
 peaceful possession of the suit premises within a
 particular time.

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 3. The plaintiffs-respondents are the landlord of
 the suit property whereas the petitioner is the fisherman
 society registered under the Maharashtra Cooperative
 Societies Act. The Respondents-plaintiffs filed the suit
 alleging that they required the suit premises reasonably
 and bonafide for their own use and occupation. During
 the passage of time family of the plaintiffs expanded and
 it was difficult for them to accommodate entire family in
 one room tenement at Mandvi Koliwada. The said tenement
 was acquired on tenancy basis from the Bombay Municipal
 Corporation and it was the case sought to be made out at
 the time of filing of suit their family consists of eight
 members and there are only two members earning and
 therefore, it was not possible for them to acquire
 another premises to accommodate their family. Therefore,
 their requirement was said to be reasonable and bonafide.

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 According to the plaintiffs, the defendants-society was
 formed in the interest of fishermen community and
 granting facilities in their fishing business. The
 defendants have purchased a building immediately next to

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 the suit premises consisting of ground and one upper
 floor. There were five tenements let out to five tenants
 and one tenement is used by the defendants-society for
 their office and entire first floor was a big hall kept
 by the society in its possession. Thus, according to the
 plaintiffs, the defendants have their own arrangement and
 acquired premises and therefore, there would not be any
 hardship to the defendants if the decree is passed. The
 suit notice came to be issued, however, the defendants
 refused to hand over possession therefore, the suit came
 to be filed. The defendants, inter alia, denied the
 allegations made by the plaintiffs and sought dismissal
 of the suit.

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 4. The learned trial judge adjudicated the dispute
 on merits on the basis of the available evidence and came
 to the conclusion that the plaintiffs was the landlords
 of the suit premises and requirement of the plaintiffs
 were reasonable and bonafide. It was further held that
 the greater hardship would be caused to the
 plaintiffs-respondents in case the suit dismissed than to
 the petitioner-tenant if the suit came to be decreed and
 suit finally came to be decreed.

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 . The appeal was carried out to the lower appellate
 court, who after hearing both the parties concurred with
 the findings recorded by the trial court and dismissed
 the appeal. Hence the present petition.

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 5. At the outset, it may be noted that both the
 courts have concurrently found that the requirement of
 the plaintiffs is reasonably and bonafide. It is also
 concurrently found that the issue of greater hardship
 would held in favour of the plaintiffs-respondents.

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 6. The learned counsel for the petitioners submitted
 that there was clear bar to the cause of action of the
 provisions of Section 25 of the Bombay Rent Act. If we
 perused the record the defendants have tried to make out
 a case that they were let out open piece of land
 whereupon the suit premises was constructed by the
 defendants society. On the other hand, it is a case of
 the plaintiffs that there was a hut on the premises which
 was let out to the defendants. The learned counsel for
 the petitioners submitted that there was neither evidence
 nor pleading on record to show that the hut was
 residential one and therefore, it cannot be said that the
 plaintiffs were right in claiming the possession of the

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 suit property for residential use and occupation. It was

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 further submitted that the premises was since beginning
 let out for non residential purposes and therefore,
 plaintiffs cannot seek possession thereof for residential
 purpose due to the bar of provision of Section 25 of the
 Act. In order to buttress his submission he sought to
 put reliance on the Apex Court judgment in the case of
Bapubhai Mohanbhai vs. Mahila Sahakari Udyog Mandir

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reported in AIR 1975 SC 2128. As against this the
 learned counsel for the respondents sought to put
 reliance on the ruling of this court in the case of

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Honraj Jethanand Sadarangani & Ors. vs. Sheth Sakharam

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Nemchand Jain , & Ors. reported in 1983 (2) B.C.R. 574,

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 wherein the reference is also made of the Apex Court
 Judgment in Bapubhai’s case (supra). The ratio laid down
 by this court is to the effect that contention that under

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 Section 25, residential tenements cannot be used for

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 non-residential purpose cannot be considered. Referring

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 to the Apex Court judgment in Bapubhai’s case (supra),

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 the learned single judge has also observed that the said

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 apex court judgment merely show that consideration of
 Section 25 of the Act should be present to the mind of
 the court while considering the question of
 reasonableness of the need of the landlord. It is

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 specifically observed that whether the requirement of the
 landlord is reasonable or not is to be judged from all
 the facts and circumstances of the case and a highly
 relevant circumstance bearing on the reasonableness of
 the landlord’s requirement is that the purpose for which
 the premises cannot be used save on pain of penal
 consequences. It is, therefore, a question of fact in
 each case to find out as to whether, in view of the
 prohibition of Section 25 of the Act, a particular decree
 should be made or not.

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 . The learned counsel for the petitioner also
 submitted that in view of the facts and circumstances, it
 is clear that the plaintiff has contravened the
 provisions of MRTP as well as B.M.C. Regulations
 applicable to the present case, which however, in my view
 would not be applicable to the present case.

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 6. No doubt that the plaintiffs have used a specific
 word "residence" while referring to the suit premises in
 the plaint as well as in the course of his evidence, the
 documentary evidence is sufficiently show that the suit
 premises is located in residential area of fisherman
 community and the record also shows that it is described

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 as hut (house). In the circumstances, it cannot be said

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 that the defence of the plaintiffs including the
 pleadings are vague and cannot be said that the suit
 premises was originally not a residential premises.
 Therefore, if the original residential premises is given
 on lease for a non residential purpose of the defendants
 and thereafter possession is sought back for residential
 use on the ground of bonafide and reasonable requirement,
 I do not see any reason how bar of Section 25 of the
 Bombay Rent Act come into apply.

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 7. Be as it may, the fact remains that both the

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 courts below have appreciated the entire evidence in
 proper perspective and reasoning adopted and findings
 recorded by both the courts below appear to be just,
 legal and proper.

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 8. In the result the petition is devoid of any
 merits and stands dismissed with no order as to costs.

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 9. At this stage the learned counsel for the
 petitioner sought Stay of the order. In view of the
 facts and circumstances, the said order shall not be
 executed for the period of 12 weeks from the date of this

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 order.

Worli Macchhimar Sarvodaya Sahakari Society Ltd. v. Piroj Dattatraya Worlikar and Ors.

Case brief

What is this about?

What did the court decide?

Worli Macchhimar Sarvodaya Sahakari Society Ltd. v. Piroj Dattatraya Worlikar and Ors.

Case brief

What is this about?

What did the court decide?

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