Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1
MHSCA30002082023
Presented on 20.03.2023
Registered on 17.05.2023
Decided on 22.01.2026
Period required for the disposal
Years Months Days
02 08 05
IN THE SMALL CAUSES COURT AT MUMBAI
( BANDRA BRANCH )
R. A. E. & R. SUIT NO. 193 OF 2023
Exhibit - 28
1. Mr. Samir Ashok Parmar,
aged about 56 years of Mumbai,
Occ Service
2. Mr. Bhavesh Ashok Parmar,
aged about 52 years of Mumbai
Occ Service
both residing at ground floor, Matru Smruti Building,
Plot No. H/1, Pushpa Housing Society Ltd.,
Nr. S. K. Patil Hospital, Dafftary Road,
Malad (East), Mumbai – 400 097.
Through their C.A. Mr. Ajaykumar Popatlal Lakhani,
aged about 67 years of Mumbai, Indian Inhabitant,
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residing at ground flor, Matru Smruti Building,
Plot No. H/1, Pushpa Housing Society Ltd.,
Nr. S. K. Patil Hospital, Dafftary Road, Malad (East),
Mumbai – 400 097. …Plaintiffs
Versus
Mr. Brij Lal Gupta, aged over 65 years(exact age not
Known) of Mumbai, Indian Inhabitant,
Occupation : Business, resident of Room No.3,
First Floor, Plot No. H/1, Pushpa Housing
Society, Nr. S. K. Patil Hospital, Dafftary Road,
Malad (East), Mumbai – 400 097 …Defendant
Mr. J. P. Kotian, Advocate for Plaintiffs.
Defendant ex-parte.
Coram : S. N. Godbole, Judge
Court Room No.33
Date : 22nd January, 2026
JUDGMENT
1. This suit is filed for eviction, arrears of rent and
permanent injunction.
The case of the plaintiffs in brief is as under :-
2. The plaintiffs are the owners/landlords of Room No.3
admeasuring about 445 sq. ft. carpet area, first floor, Matru Smruti
Building standing on the plot of land bearing C.T.S. No.25F, 25F/1
to7 in Village Kurar, Plot No.H/1 lying at being at Pushpa Housing
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Society, near S.K. Patil Hospital Dafftary Road, Malad (East), Mumbai
– 400 097. (The said Room No.3 is hereinafter referred to as “the
suit premises” for the sake of convenience).
3. The defendant is monthly tenant in respect of suit
premises. He paid rent till August 2013. However, thereafter, he
failed to pay the rent, therefore, he is in arrears of rent sum of
Rs.20,020/- from September 2013 till October 2022 at Rs.182/- per
month. The defendant is not ready and willing to pay rent to the
plaintiffs in respect of suit premises despite their repeated demands
from the defendant.
4. In the beginning of the year 2013, the defendant shifted
from the suit premises along with his family permanently and kept
the suit premises locked and unused without any reasonable reason.
The defendant illegally took electricity connection to the suit
premises in the name of his wife Mrs. Pushpa Ben Gupta from
Reliance Energy. The electricity bill issued for the month of
September 2016 shows the zero consumption of the electricity energy
in suit premises.
5. The plaintiffs through their advocate sent demand notice
dated 29.10.2022 and demanded arrears of rent and terminated the
tenancy of defendant and same was returned with postal remark
‘Unclaimed’. The plaintiffs are presently employed at United Kingdom
and now desirous of returning to India, Mumbai alongwith their
respective family and settle permanently in Mumbai. The family of
plaintiffs consisting of eight members and they have no other
accommodation available to use the same for residential purpose.
Therefore, the plaintiffs are in bonafide requirements of their use of
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residential purpose.
6. The plaintiffs having apprehension that there is
likelihood that the defendant may part with possession of the suit
premise for their illegal gain and profit to some third party.
Therefore, the plaintiff is entitled for recovery of possession, arrears
of rent and permanent injunction in respect of the suit premises.
Hence, this suit.
7. The defendant was served with the suit summons,
however, he failed to appear before the Court. Therefore, the suit has
been proceeded exparte against him, vide order passed below Exh.1,
dated 18.12.2023.
8. Heard the Learned Advocate for the plaintiffs. I have
also perused written notes of argument at Exhibit 27.
9. Considering the pleading of the plaintiffs and the record,
the following points arise for my consideration and my findings along
with reasons thereon are as under :
SR.
NO. POINTS FINDINGS
1. Do the plaintiffs prove that the defendant is
in arrears of rent and is willful defaulter?
In the
affirmative.
2. Do the plaintiffs prove that the defendant has
not been using the suit premises for the
purpose for which it was given on rent for the
period of more than six months prior to the
date of filing of the suit ?
In the negative
3. Do the plaintiffs prove that they require the
suit premises reasonably and bonafide for
themselves and for their family members?
In the
affirmative.
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SR.
NO. POINTS FINDINGS
4. To whom greater hardship will be caused by
passing eviction decree than refusing to pass
it?
In favour of the
plaintiffs.
5. Do the plaintiffs prove that the defendant has
caused damage and loss to the suit premises? In the negative.
6. Whether the plaintiffs are entitled for
injunction, as prayed?
In the
affirmative.
7. Whether the plaintiffs are entitled for arrears
of rent?
In the
affirmative.
8. Whether the plaintiffs are entitled for
recovery of possession, as prayed ?
In the
affirmative.
9. What order and decree? Suit is decreed as
per final order.
REASONS
10. In order to prove their claim, the plaintiffs have
examined their Constituted Attorney Mr. Ajaykumar Popatlal Lakhani
as PW-1 by filing his Affidavit of Examination-in-Chief at Exhibit-13.
Besides this, the plaintiffs have relied upon the following documents :
Sr. No. Documents Exhibit Nos.
1. Property Cards Exhibit Nos.15 to 18.
2. Original counter foils of rent
receipts.
Exhibit No.19 (Colly.)
3. Original electricity Bill. Exhibit No.20.
4. Intimation from Adani
Electricity.
Exhibit No.21.
5. Certified copies of Power of
Attorneys.
Exhibit Nos.22 and
23.
6. Office copy of notice dated
29.10.2023.
Exhibit No.24.
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Sr. No. Documents Exhibit Nos.
7. R.P.A.D. packet alongwith
postal receipt.
Exhibit No.25 (Colly.).
11. On the other hand, as the suit is proceeded ex-parte against
the defendant, there is no evidence from the defendant’s side.
12. At the outset, it is made clear that defendant though
served with suit summons, did not appear before the Court to contest
the suit. Though, this being position and evidence led by the plaintiffs
remained unchallenged during trial, it is for the plaintiffs to prove
their case on their own as per Section 101 of Evidence Act as it
mandates that, whoever desires any Court to give judgment as to any
legal right on existence of facts which he asserts, he must prove that
those facts exist. Similarly, Section 102 of Evidence Act makes it clear
that the burden of proof lies on a person, who would fail, if no
evidence at all is given on either side. It means that if at all, there is
no oral or documentary evidence from any party, the person or party
who would fail must discharge such burden of proof. Therefore, the
plaintiffs are not entitled to get advantage either of absence of
defendant or non-cross examination by the defendant, in order to
obtain decree from the Court. At the same time, it is also important
for the Court to take extra efforts while appreciating the unshattered
evidence put forth by the plaintiffs. Therefore, it is necessary to
examine the legality and propriety of the evidence led by the
plaintiffs in the present suit.
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AS TO POINT NO.1 :
13. The plaintiffs have come out with the specific case that
the defendant is their tenant and he failed to pay the arrears of rent
in respect of the suit premises from September 2013 in spite of
service of demand notice dated 29.10.2022. Before discussing the
point in respect of arrears of rent, it is necessary to see first whether
the defendant is a tenant of the plaintiffs in respect of the suit
premises.
14. It has come in the evidence of the plaintiffs – Ajaykumar
(P.W.1) that the defendant is a tenant in respect of the suit premises.
The plaintiffs have relied upon the counter-foil of rent receipt Exhibit
No.19 (Colly). Perusal of the said counter-foil of rent receipts
appears that the rent receipts have been issued in the name of
defendant- B. L. Gupta for the month May 2011 to October 2011,
November 2011 to April 2012 and May 2012 to August 2013 by
plaintiffs in respect of the suit premises. It appears from the said
counter-foil of rent receipts that the plaintiffs/landlords have
received rent in respect of the suit premises from the defendant for
the period from May 2011 to August 2013. Therefore, it is clear from
the said documentary as well as oral evidence of the plaintiffs that
the defendant is a tenant of the plaintiffs in respect of the suit
premises.
15. The plaintiffs have filed this suit on the ground of the
arrears of rent. In this regard, Section-15 of the Maharashtra Rent
Control Act, 1999 is relevant and the same is reproduced for perusal
as it is as as follows :
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15. No ejectment ordinarily to be made if tenant
pays or is ready and willing to pay standard rent
and permitted increases:-
(1) A landlord shall not be entitled to the recovery
of possession of any premises so long as the
tenant pays, or is ready and willing to pay, the
amount of the standard rent and permitted
increases, if any, and observes and performs the
other conditions of the tenancy, in so far as they
are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be
instituted by a landlord against the tenant on the
ground of non-payment of the standard rent or
permitted increases due, until the expiration of
ninety days next after notice in writing of the and
of the standard rent or permitted increase has
been served upon the tenant in the manner
provided in section 106 of the Transfer of
Property Act, 1882 (IV of 1882).
(3) No decree of eviction shall be passed by the
court in any suit for recovery of possession on the
ground of arrears of standard rent and permitted
increases if, within a period of ninety days from
the date of service of the summons of the suit, the
tenant pays or tenders in court the standard rent
and permitted increases then due together with
simple interest on the amount of arrears at fifteen
per cent. per annum; and thereafter continues to
pay or tenders in court regularly such standard
rent and permitted increases till the suit is finally
decided and also pays cost of the suit as directed
by the court.
(4) Pending the disposal of the suit, the court may,
out of any amount paid or tendered by the tenant,
pay to the landlord such amount towards the
payment of rent or permitted increases due to him
as the court thinks fit.”
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16. In view of sub-section (2) of Section 15 of the
Maharashtra Rent Control Act, landlord is not entitled to file the suit
on the ground of non-payment of the standard rent or permitted
increases due, until the expiration of ninety days after notice in
writing of the demand of the standard rent or permitted increase has
been served upon the tenant in the manner provided in Section 106
of the Transfer of Property Act, 1882.
17. According to the plaintiffs, the defendant has failed to
pay the arrears of rent from September 2013 in spite of issuing
demand notice dated 29.10.2022. They have placed reliance upon
the office copy of notice dated 29.10.2022 Exhibit 24. On perusal of
said notice, it is seen that the defendant was called upon to pay the
arrears of rent from September 2013. The plaintiffs have also
produced on record the sealed envelope of demand Notice at Exhibit
25 sent by Registered Post A/D to the defendant at the address of the
suit premises. It appears from the said Registered Post A/D that, it
was sent to the defendant on the address of the suit premises, but the
envelope was returned back with postal remark “Unclaimed” after
giving intimation to the defendant. Thus, it is clearly seen that notice
for demand of arrears of rent from September 2013 was sent to
defendant at suit premises, however he unclaimed the same in spite
of intimation given to him by the postman. It is settled that, if the
notice is sent on the correct address and intimation is given by the
postman, there is presumption that the addressee has been served.
Thus, it can be safely said the defendant has been served with the
demand notice, however, he failed to pay the rent in respect of the
suit premises from September 2013 as per demand notice Exhibit 24.
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18. It is to be noted that the defendant failed to appear in
the Court and the matter proceeded exparte against him. The
evidence of the plaintiffs in respect of non-payment of arrears of rent
remained unchallenged. Thus, it appears that the defendant has
failed to pay arrears of rent in spite of issuing demand notice to him.
Therefore, the plaintiffs have established that the defendant failed to
pay the arrears of rent within ninety days of receipt of demand notice
and thereby contravened the provision of Section 15 of the
Maharashtra Rent Control Act. Hence, I answer point No.1 in the
affirmative.
AS TO POINT NO. 2 :
19. In order to prove said point, the plaintiffs have to prove
that the defendant is not using the suit premises for a period of more
than six months prior to filing of this suit.
20. It has come in the evidence of Ajaykumar (PW-1) at
Exhibit-13 that the suit premises are not being used without
reasonable cause for the purpose for which the same were let for a
continuous period of more than six months immediately preceding to
the date of filing of the suit and have been kept locked and unused.
21. It is to be noted that the plaintiffs have not produced on
record any reliable documentary evidence, such as electricity bill to
show zero consumption or negligible consumption of electricity use
in respect of suit premises. The electricity bill produced at Exhibit 20
is for the month of February 2017 and not for a continuous period of
more than six months immediately preceding to the date of filing of
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the suit. Therefore, in absence of the documentary evidence, the oral
evidence of the plaintiffs does not inspire confidence that the
defendant is not using the suit premises since more than six months.
The plaintiff has miserably failed to establish that the defendant is
not using the suit premises for the purpose for which it was given on
rent for the period of more than six months prior to filing of the suit.
Therefore, the plaintiffs are not entitled to recover possession of the
suit premises on the ground of non-user. Hence, I answer point No.2
in the negative.
AS TO POINT NO. 3 :
22. This point No.3 is in respect of reasonable and bonafide
requirement and the essential ingredients which a landlord is
required to show for the purpose of getting an eviction for bonafide
needs are :-
1. The plaintiffs are the landlord of the suit premises.
2. The suit premises are required bonafide by the
landlord for themselves and any of their family
members.
3. The landlord or such other family members have no
other suitable accommodation.
23. It is case of the plaintiffs that they are the landlords of
the suit premises and they require the suit premises reasonably and
bonafide for their own use and occupation and for their family
members. Perusal of evidence of the Ajaykumar (PW-1), it appears
that it has come in his evidence that the plaintiffs are presently
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employed at United Kingdom and now desirous of returning to India,
Mumbai alongwith their respective family and settle permanently in
Mumbai. The family of plaintiffs consisting of eight members and
they have no other accommodation available to use the same for
residential purpose. Therefore, the plaintiffs are in bonafide
requirements of their use of residential purpose.
24. It is to be noted that the evidence of the plaintiffs in
respect of bonafide requirement is not challenged by the defendant.
Therefore, the said evidence of plaintiffs remained unchallenged. It
is settled that the landlord himself is the best judge of his own
requirement. Therefore, on the touchstone of the aforesaid legal
principle, re-adverting to the facts of the case, I have no hesitation
to hold that the requirement of the plaintiffs for themselves and
their respective family members has an element of necessity.
Therefore, I answer the point No. 3 in the affirmative.
AS TO POINT NO. 4 :
25. Now, it will be legal and proper to consider comparative
hardship to the parties by passing the decree instead of refusing to
pass it. It is well recognized that the provisions contained in Section
16(2) of the Maharashtra Rent Control Act, act as a proviso to the
provisions contained in Section 16(1)(g) of the Maharashtra Rent
Control Act, which empowers the Court to pass a decree for eviction.
The Court has to assess the hardship, which would ensue to the
defendant in the event of passing of the decree than that would be
caused to the plaintiff in case of refusal to pass the decree. After
assessment of the comparative hardship, if the Court comes to the
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conclusion that a greater hardship would be caused to the defendant,
it may refuse to pass the decree for eviction even though the landlord
has succeeded in establishing his personal requirement.
26. As discussed above the contention of the plaintiffs that
they required the suit premises reasonably and bonafide is
established. It is to be noted that the evidence of the plaintiffs in
respect of hardship is not challenged by the defendant. According to
the plaintiffs, the defendant is residing at elsewhere and kept the suit
premises unused and locked. The said evidence of plaintiffs remained
unchallenged. Therefore, the defendant will not suffer any hardship,
if the suit is decreed. Therefore, comparative hardship will cause to
the plaintiffs than the defendant if decree of eviction is not passed.
Hence, I answer point No. 4 in favour of the plaintiffs.
AS TO POINT NO. 5 :
27. So far as causing of damage and loss to the suit premises
is concerned, it has come in the evidence of Ajaykumar (PW-1) that
the suit premises kept unused and locked from many years, is causing
damage and loss to the suit premises. It is to be noted that the
plaintiffs have not adduced any evidence of expert in that field in
support of said oral evidence in respect of causing damage and loss in
the suit premises. Therefore, oral evidence of the Ajaykumar (PW-1)
without the support of the expert evidence is not sufficient to prove
the damage and loss caused to the suit premises. Thus, the evidence
of the Ajaykumar (PW-1) is not useful to prove causing of damage
and loss to the suit premises. Therefore, the plaintiffs would not be
entitled for the decree of eviction on the said ground. Hence, I
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answer point No.5 in the negative.
AS TO POINT NO.6 :
28. It is the case of the plaintiffs that defendant is not
residing in the suit premises and therefore there is apprehension that
he will create third party interest in the suit premises. The defendant
has not challenged the said contention of the plaintiff. Thus,
considering apprehension of the plaintiff, it is just and proper to
restrain the defendant or any person on his behalf from creating third
party interest in respect of the suit premises. Thus, the plaintiffs are
entitled for permanent injunction accordingly. Hence, I answer point
No.6 in the affirmative.
AS TO POINT NO.7 :
29. In view of my finding to point No.1 in the affirmative,
the plaintiffs have proved that the defendant is in arrears of the rent
since September 2013 till February, 2023. So far as the period of
entitlement for arrears of the rent is concerned, as per the provisions
of the limitation Act, the plaintiffs are entitled to recover the arrears
of rent for 3 years only. This suit is filed on 15/03/2023. Thus, the
plaintiffs are entitled for arrears of the rent at the rate of Rs.182/- per
month for 3 years only prior to filing of the suit i.e., from March 2020
to March 2023) and thereafter till delivery of the possession of the
suit premises. Hence, I answer point No.7 in the affirmative
accordingly.
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AS TO POINT NOS. 8 AND 9 :
30. In view of my findings to point Nos.1 & 3 in the
affirmative, point No.4 in favour of the plaintiffs and point Nos.2 & 5
in the negative, the plaintiffs are entitled to get vacant possession of
the suit premises and decree of eviction on the ground of arrears of
rent and bonafide requirement.
31. So far as the cost of the suit is concerned, it is settled
position that the costs shall abide the ultimate result of the suit.
Therefore, it is necessary to decree the suit with costs. As the suit is
proceeded ex-parte, order to notice before execution to the defendant
is must. Hence, I answer point No. 8 in the affirmative and in answer
to point No.9, I proceed to pass the following order :
ORDER
1. Suit is decreed with costs.
2. The defendant is hereby directed to handover
the vacant and peaceful possession of the suit
premises viz. Room No.3 admeasuring about
445 sq. ft. carpet area, first floor, Matru Smruti
Building standing on the plot of land bearing
C.T.S. No.25F, 25F/1 to7 in Village Kurar, Plot
No.H/1 lying at being at Pushpa Housing
Society, near S.K. Patil Hospital Dafftary Road,
Malad (East), Mumbai – 400 097, to the
plaintiffs within three months from the date of
this order.
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3. The defendant is hereby directed to pay arrears
of rent in respect of the suit premises to the
plaintiffs from March 2020 to March 2023 at
the rate of Rs.182/- per month within three
months from the date of this order.
4. The defendant is hereby also directed to pay
rent of Rs.182/- per month to the plaintiffs in
respect of the suit premises from April 2024 till
actual delivery of possession of the suit
premises.
5. The defendant, his servants, agents or anyone
claiming through or under him is permanently
restrained from creating third party interest in
any manner in respect of the suit premises.
6. Notice before execution, as per Order 21 Rule
22 of the Code of Civil Procedure, 1908 be
issued to the defendant.
7. Decree be drawn up accordingly.
( Dictated and pronounced in open Court. )
( S. N. Godbole )
Date : 22.01.2026 Judge, C. R. No.33
Dictated on : 22.01.2026
Checked & signed on : 22.01.2026
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