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2008 DIGILAW 184 (BOM)

Poona Herald Pvt. Ltd. v. Urmila Vinod Motee

2008-02-05

J.H.BHATIA

body2008
ORAL JUDGMENT: 1. Heard the learned counsel for the Parties. 2. Perused the judgments rendered by the Courts below and the relevant documents. 3. To state in brief, the present applicants are the original defendants. One Vinod Motee was original landlord. He had initially given suit premises to the defendants on leave and licence basis. In January, 2003 tenancy agreement took place and the mezzanine floor of the premises was vacated by the defendants and taken over by the landlord for his own business of the furniture. The ground floor premises admeasuring 2500 sq.ft. were let out to the defendants for running business of printing press where newspapers, namely Maharashtra Herald and the Poona Herald were printed and published. In May, 2003 original landlord Vinod Motee entered into partnership agreement and partnership deed was executed and registered on 4th May, 2003. In the partnership firm landlord Vinod Motee and his married daughter Namrata Bapat were partners alongwith two others namely Gaurinandan Mangaokar and Kapil Asher. In the the year 2004, the landlord Vinod Motee expired and, therefore, on his death partnership firm was reconstituted. Vinod Motee was replaced by his widow Urmila and thus, his widow and daughter continued to be two other partners in the firm. In August, 2005 the plaintiffs, who included widow, son and daughters of the deceased landlord Vinod Motee, filed the suit for eviction and possession against the defendants on three grounds. Firstly, it was contended that the defendants were not using the suit premises for a period of more than six months for the purpose for which they was taken. Secondly, defendants had made additions and alterations of the permanent nature without consent of the landlord and thirdly, plaintiffs, who were running business of furniture in the mezzanine floor since May, 2003 required the suit premises for themselves. It was contended that it was not convenient for the plaintiff no.1 Urmila widow of the deceased landlord to climb the staircase every now and then for the purpose of business and secondly, they required the ground floor of the premises for expansion of the business. The defendants contested each of the grounds taken up by the plaintiffs. 4. After hearing the evidence led by both the parties, the learned trial Court accepted the stand of the plaintiffs and granted decree for eviction and possession on each of the three grounds. The defendants contested each of the grounds taken up by the plaintiffs. 4. After hearing the evidence led by both the parties, the learned trial Court accepted the stand of the plaintiffs and granted decree for eviction and possession on each of the three grounds. The defendants preferred Regular Civil Appeal No.545 of 2006. The learned Appellate Court maintained the findings of the trial Court on each of the counts and dismissed the appeal. Hence, the defendants have preferred the present Revision Application. 5. On perusal of the record, it becomes clear that the suit premises were taken for the purpose of running printing press where two newspapers were published. However, from the admissions of D.W.1 Rajiv Sangtani , it is clear that the newspapers have been already sold away to different company and publication of newspapers was stopped by the defendants since March, 2005. Only machinery was kept in the premises but it was not being used. According to the plaintiffs machinery was also removed. The learned trial Court noted that for a period of six months or more than that, there was no electric consumption in the suit premises and this provides corroboration to the plea and evidence led by the plaintiffs that the suit premises were not used for a period of more than six months. The learned counsel for the defendants/applicants could not point out any fault in this finding. 6. The learned trial Court noted that the defendants had made additions, alterations of the permanent nature in the suit premises. The Courts below noted that the defendants had closed three windows and four doors permanently by raising wall of bricks and cement. They had also constructed a WC, bathroom and also a small cabin. This construction was not denied by D.W. Rajiv Sangtani. The Courts below noted that the size of the windows was about 8 X 10 ft. This structure can not be removed without causing further damage to the premises.It appears that it was argued on behalf of the defendants/applicants before the Appellate Court that merely because of the erection of wall, it can not be said that it is structure of permanent nature. For this reliance was placed on Alisaheb Absdul Latif v. Abdul 253 Karim AIR 1981 BOMBAY 253. For this reliance was placed on Alisaheb Absdul Latif v. Abdul 253 Karim AIR 1981 BOMBAY 253. In that case, it was held that merely because a wall of cement, sand or brick or mortar was raised, it is not necessary that it must be a permanent structure. However, in the present case, Courts below noted that three windows and four doors were closed. Size of each of the windows was 8 X 10 ft. Closer was made by bricks and cement and they were plastered. For the purpose of removal of the said wall and for restoration of the windows, it will be necessary to cause certain damages to the existing walls. On this ground also, I do not find any fault with the findings of the Courts below. 7. Third most important point is about requirement of the premises for self occupation. Section 16(1)(g) of the Maharashtra Rent Control Act, 1999 reads as follows: 16. When landlord may recover possession. (1) Notwithstanding anything contained in this Act but subject to the provisions of Section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied- (g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or From this it is clear that the landlord shall recover possession if the Court is satisfied that the premises are reasonably and bonafide required by the landlord for occupation by himself. Question is whether in the present case, the plaintiffs/landlords reasonably and bonafide required the premises for occupation of themselves. In the plaint, it was specifically mentioned that since May, 2003, the plaintiffs were carrying on business of furniture in the mezzanine floor in the name and style of M/s. Sri Sri Enterprises and the ground floor, i.e, the suit premises were also required for expansion of the business and for convenience of the plaintiff no.1, who is the old lady as she could not climb staircase frequently for the purpose of business. In the plaint, it was not specifically pleaded that the business was being run in the partnership firm, however, the evidence was led and the record reveals that on 4th May, 2003 landlord Vinod Motee had entered into partnership agreement with Gaurinandan and Kapil and his own daughter and they had started business of furniture in the mezzanine floor in the name and style of M/s. Sri Sri Enterprises. Partnership deed is registered. Partnership deed also reveals that each of the four partners was working partner having equal share in the profit and losses. Due to demise of Vinod Motee, the original landlord, partnership was required to be reconstituted and a partnership deed dated 14th November, 2004 came to be executed and registered. The only change in the constitution of the partnership was that Vinod Motee was replaced by his wife Urmila. Thus, after his death, his widow Urmila and daughter Namrata continued to be working partners of the firm. Evidence was led before the Court that the suit premises were required for the partnership firm of which two of the plaintiffs are the working partners. The Courts below held that even though the business was being run in the partnership, it amounted to reasonable and bonafide requirement of themselves because the plaintiffs themselves were working partners. 8. The learned counsel for the defendants/applicants vehemently contended that the words ’occupation by himself’ in Section 16(1)(g) of the Maharashtra Rent Control Act indicates that the premises should be required by the landlord for his own use and not for the use of partnership firm. In support of this contention, the learned counsel placed reliance upon D.N.Sanghavi & Sons v. Ambalal Tribhuwan Das 1974 (1) SCC 708 where Their Lordships were required to interpret Section 12(1)(f) of the M.P. Accommodation Control Act, 1962, which deals with the bonafide and reasonable requirement of the landlord for his business. In that case, Their Lordships noted that the respondent/landlord had not filed deed of partnership, which could disclose whether the landlord was merely a sleeping partner or a partner, he was entitled to manage the business solely or through the other persons and, therefore, Their Lordships found that he had failed to prove that accommodation was needed directly and substantially for his occupation by way of business. In paragraph 16 of the said judgement Their Lordships referred to Karsandas 113 Ramji v. Karsanji Kalyanji AIR 1953 Saurashtra 113, Gundalapalli Rangamannar Chetty v. Desu Gangiah, AIR 1954 Madras 182 and Tansukhdas Chhaganlal v. Smt. Shambai AIR 1954 Nag 160. In Karsandas Ramji (Supra) and Gundalapalli Chetty (Supra), it was held on the facts of those cases that the tenant could not be held to have sublet the rented premises to the partnership firm because they had retained possession over the premises. Their Lordships observed that these cases thus applied the test of occupation by the tenant in finding out whether he has or has not sublet. In my considered opinion same test would be applicable when the plaintiffs claim the premises for their own. In the present case, two of the landladies, who are widow and daughter of the original plaintiff are partners of the firm, which is carrying on business of furniture on the mezzanine floor and the partnership deed and oral evidence shows that they are not mere dormant or sleeping partners but are the working partners. When they are carrying on the business themselves, merely because they have accepted two others as partners for carrying on business, it can not be said that they have lost the possession or they do not require the possession for themselves or that the possession is required for somebody else. Taking into consideration the legal position and the facts in the present case, it must be held that the plaintiffs have proved that they require the suit premises reasonably and bonafide for themselves, i.e., for running their business though they are working partners of that firm. 9. The Courts below held that if the decree is refused, plaintiffs would be put to greater hardship than the hardship which could be caused to the defendants by passing a decree. D.W. Rajiv Sangtani has a construction business. His different firms hold huge properties in the city of Pune, where he is carrying on business of different types. All those firms and companies are controlled by him. As pointed out earlier in the suit premises, the defendants are not even running business. They had already closed their business six months prior to filing of the suit. In such circumstances, no hardship will be caused to the defendants by passing a decree of eviction. 10. All those firms and companies are controlled by him. As pointed out earlier in the suit premises, the defendants are not even running business. They had already closed their business six months prior to filing of the suit. In such circumstances, no hardship will be caused to the defendants by passing a decree of eviction. 10. Taking into consideration the facts, evidence and the legal position, I find no fault in the impugned judgment of the eviction and possession. There is no merit in the revision application. 11. In the result, Revision Application stands dismissed. 12. At this stage, the learned counsel for the applicants/defendants makes a request that decree of eviction may not be executed for a period of eight weeks and all the directors and partners of the defendants shall file undertaking within two weeks to vacate the premises within the specified period. In view of this request, the decree shall not be executed for a period of eight weeks from this day subject to partners of the applicant no.2 and directors of the applicant no.1 filing undertaking before this Court within two weeks that without any obstruction or objection, they shall vacate the premises within the stipulated period of eight weeks and that they shall not create any third party interest and shall not cause any damage to the property. In case, they fail to file undertakings within the stipulated period, the decree may be executed at any time.