Allowed

Ramkrishna Pandu Patil. v. Kalabai @ Kamalabai Sadashiv Bharambe.

Bombay HC5 May 2012WP/3289/1992

Case brief

AI extract

What is this about?

High Court allowed a writ petition quashing an intermediate appellate court order that set aside an eviction decree. The High Court held that the lower appellate court erred by not considering the landlord's established need for the premises and misunderstanding the law regarding a landlord's freedom to decide residential requirements.

What did the court decide?

Writ petition allowed; interim appellate order quashed; trial court eviction decree restored; costs waived.

Ramkrishna Pandu Patil. Vs Kalabai @ Kamalabai Sadashiv… — Landlord and Tenant | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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WRIT PETITION NO. 3289 OF 1992

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Ramkrishna Pandu Patil

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age 54 years, occ. agriculturist r/o 467, Joshi Peth, Jalgaon Dist. Jalgaon.

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.. PETITIONER

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VERSUS

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Smt. Kalabai alias Kamlabai w/o Sadashiv Bharambe age 54 years, occ. household & Flourmill r/o 171, Joshi Peth, Jalgaon, Dist. Jalgaon.

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.. RESPONDENTS

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Mr. V.V. Deshmukh, advocate instructed by Mr. V.J. Dixit, Senior Counsel for the petitioner.

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=====

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CORAM : R.M. BORDE, J. DATE : 5th May, 2012.

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ORAL JUDGMENT :

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Petitioner herein is taking exception to the judgment and decree

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passed by the 4th Additional District Judge, Jalgaon on 471992 in Civil

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Appeal No. 168/1986 whereby the first appellate court reversed the

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judgment and decree passed by the Jt. Civil Judge, Junior Division, Jalgaon on 2821986 in Regular Civil Suit No. 252/1982.

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Petitioner / original plaintiff instituted suit against defendant / tenant

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claiming recovery of premises consisting of one room admeasuring 10’ X 19’ which was given to the defendant in the year 1961 for running flour mill on monthly tenancy. Agreed rent was stated to be Rs. 15/ and defendant was supposed to pay municipal taxes and other incremental cess. It is the contention of plaintiff that defendant failed to pay rent as well as taxes for the years 19761977 to 19801981. Plaintiff issued notice to defendant claiming arrears amount to the tune of Rs. 542/ towards municipal taxes. It is also contention of plaintiff that defendant is running flour mill which is causing nuisance to him. Plaintiff also claims that he is in possession of only one room and there are ten members in his family and the present accommodation is not sufficient for residence and that he needs tenanted premises for his personal bonafide use. It is also stated by plaintiff that his elder son has undergone tailoring course and is desirous of starting business in the tenanted premises. Plaintiff as such claims recovery of possession of tenanted premises let out to defendant.

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3. Defendant appeared and resisted the claim by filing written

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statement. According to defendant, she was not supposed to pay municipal taxes, however, she has paid the taxes and nothing is due from

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her. It is claimed by defendant that the case put up by plaintiff in respect of

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his requirement of tenanted premises for his personal use and occupation is

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an attempt by plaintiff to evict defendant from the tenanted premises. It is the contention of defendant that hardship would be caused to her if a decree of eviction is passed against her.

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Trial Court, on consideration of evidence led by the parties, came to

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be conclusion that defendant is not in arrears of payment of rent. However, trial Court has recorded finding that defendant has failed to pay the municipal taxes and as a result of failure on the part of defendant to pay municipal taxes, the suit premises were put to auction at the instance of Municipal Council. Trial Court also recorded finding that plaintiff is in need of the tenanted premises for bonafide personal use and greater hardship would be caused to plaintiff if decree is refused. Judgment and decree passed by the trial Court directing eviction of defendant was subjected to challenge in appeal bearing Civil Appeal No. 168/1986 at the instance of

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defendant which came to be heard by 4th Additional District Judge, Jalgaon, who was pleased to allow the same by judgment and decree dated 471992.

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Perused the judgment and order passed by the first appellate Court.

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The first appellate Court, in my opinion, has not considered the evidence placed on record by plaintiff in respect of his bonafide personal need for occupying the tenanted premises. First appellate Court has reversed the decree on the ground that plaintiff has failed to examine his son to establish that he has acquired knowledge of tailoring and is desirous of starting business in the tenanted premises. First Appellate Court failed to consider the aspect that apart from the need for elder son of plaintiff to secure the tenanted premises for starting business, it has been stated by plaintiff that there are ten members in the family and the present accommodation which

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is only one room is insufficient for their residence. This aspect was not at all considered by the first appellate Court. It is also stated in the evidence that the son of plaintiff has got married and there is addition of members in the family. Trial Court was justified in recording finding that greater hardship would be caused to plaintiff if decree of eviction is refused. There is nothing on record to indicate that defendant has taken steps for acquiring alternate business premises and such exercise of acquiring alternate business premises was futile. Defendant has not at all taken steps for acquiring alternate premises for accommodating her business. Plaintiff cannot be directed to

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accommodate himself and continue to reside in the existing premises

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available with him. Reliance is placed in the judgment in the matter of Sara

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Rauf and another vs. Durgashankar Ganeshlal Shroff reported in 2007(4)

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Mh.L.J. 192 wherein it has been ruled that the landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the courts to dictate to the landlord, how, and in what manner he should live or to prescribe for him the residential standard of their own. There is no law which deprives the landlord of the benefits of his enjoyment of his property.

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In view of pronouncement cited supra as well as on consideration of

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evidence adduced by plaintiff, I am of the opinion that the first appellate Court has committed a grave error in reversing the decree passed by the trial Court. Writ petition therefore deserves to be allowed and the same is accordingly allowed. Judgment and decree passed by the 4th Additional District Judge, Jalgaon on 471992 in Regular Civil Appeal No. 168/1986 is quashed and set aside and the judgment and decree passed by the Jt. Civil Judge, Junior Division, Jalgaon on 2821986 in Regular Civil Suit No. 252/1982

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is restored. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs.

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Pending civil application, if any, does not survive and stands disposed

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of.

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( R. M. BORDE ) JUDGE

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dyb

Ramkrishna Pandu Patil. v. Kalabai @ Kamalabai Sadashiv Bharambe.

Case brief

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Ramkrishna Pandu Patil. v. Kalabai @ Kamalabai Sadashiv Bharambe.

Case brief

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What did the court decide?

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