Final Order 2

Order Details: Copy of Judgment
Pdf Text: ..1..
Presented on : 27/06/2024
Registered on : 07/08/2024
Decided on : 21/01/2026
Duration : Year Months Days
1 5 14
IN THE COURT OF SMALL CAUSES AT BOMBAY
(BANDRA BRANCH)
R. A. E. & R. SUIT NO. 256 OF 2024
(CNR-MHSCA-3000699-2024)
Mr. Mahesh Hari Pawar,
Age: 50 years, Occupation: Service,
of Mumbai, Indian Inhabitant,
Residing at Room No. 1, Shakuntala
Hari Pawar Chawl, Chawl No. 77,
Service Road, Mograpada, Andheri (East),
Mumbai – 400 069.
Mob. No.: 8108404383.
Email ID – N.A. … Plaintiff.
Versus
1. Mr. Salim Shaikh @ Sultan Babu Shaikh,
Aged about 55 years, Occupation: Service,
Residing at Room No. 20, Hawaldar Chawl,
Mograpada, Andheri (East), Mumbai – 400 069.
Mob. No.: Not known.
Email ID: Not known.
2. Mr. Ranjit Tulsiram Saroj,
Age and Occupation: Not known,
Residing at Room No. 2,
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Shakuntala Hari Pawar Chawl,
Chawl No. 77, Service Road, Mograpada,
Andheri (East), Mumbai – 400 069.
Mob. No.: Not known.
Email ID: Not known. ...Defendants.
Appearance:-
Smt. S. A. Mishra ....Ld. Advocate for the Plaintiff.
Suit proceeded ex-parte against the Defendants.
Coram :
Date :
R. R. Kale,
Judge, C.R. No. 36 (B.B.)
21/01/2026.
JUDGMENT:-
Present suit is filed for eviction on the grounds of arrears of
rent, bonafide and reasonable requirement; non user and subletting
under the provisions of Maharashtra Rent Control Act, 1999 (For short
‘the Rent Act.').
2. In brief, the case of the plaintiff is as under:-
(A) The plaintiff is the landlord of the chawl consisting of 4
rooms, being Shakuntala Hari Pawar Chawl, Chawl No. 77, Service
Road, Mograpada, Andheri (East), Mumbai – 400 069 (hereinafter for
the sake of brevity referred to as the ‘suit chawl’). Prior to termination
of tenancy, the defendant No. 1 was the original tenant of the room
premises being Room No. 2, admeasuring 10’ ft. x 15’ ft. (hereinafter
referred to as the ‘suit premises’ for the sake of brevity.) situated in suit
chawl on the monthly rent of Rs. 100/- exclusive of all other outgoings,
permitted increases etc.. After converting the license into tenancy, the
plaintiff has permitted the defendant No. 1 to reside in the suit premises
on monthly rent of Rs. 100/- and issued the rent receipt to him.
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(B) The defendant No. 1 is in arrears of rent and has not paid
rent from 01/04/2016. The defendant No. 1 has illegally, unlawfully
and without written consent and knowledge of the plaintiff sublet the
suit premises to the defendant No. 2 and profiteering therefrom. The
defendant No. 2 is an illegal occupant in respect of the suit premises.
(C) The defendant No. 1 has also acquired another residential
premises at Hawaldar Chawl, Room No. 20, Mograpada, Andheri (East)
in the same locality. The defendant No. 1 is not in use of the suit
premises without reasonable cause for the purpose for which it was let
out for a continuous period of more than six months immediately
preceding the date of the suit. The defendant No. 1 has abandoned the
suit premises. Prior to creating sub-tenancy, the suit premises was kept
locked for two years and has not been used. Therefore, it is clear that,
the suit premises is not required by the defendant No. 1 for his own
residence purpose. Therefore, he has made himself liable to be evicted
from the suit premises under Sections 16(1)(e) and 16(1)(n) of the
Rent Act.
(D) The plaintiff along-with his family i.e. aged mother, wife,
daughter and sons are residing in one room being Room No. 1 which is
admeasuring 10’ ft. x 15’ ft. As the family increased, it become difficult
to have privacy in one room premises. The plaintiff is working in hotel
and has no sufficient money and earning to acquire another premises in
Andheri area for better residence and provide privacy to the family.
Therefore, the plaintiff required the suit premises bonafide for the
residence purpose for himself and his family. The plaintiff by his
advocate’s notice dated 19/12/2022 has terminated, cancelled and
revoked the Leave and License Agreement dated 01/07/2003 and called
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upon the defendants to handover the peaceful and vacant possession of
the suit premises to him.
(E) Looking to the nature and circumstances of the case, the
plaintiff had no choice but to file the present suit. The defendant No. 1
has failed to comply with requisitions of notice dated 25/7/2023 sent to
the defendants and also, they have failed to file reply. The cause of
action has arisen within the jurisdiction of this Court. The suit premises
does not fall under the slum area and/or the Maharashtra Vacant Land
Act. Suit is not barred by law of limitation. Hence, the defendants be
ordered and decreed to quit, vacate and handover vacant and peaceful
possession of the suit premises. The defendants be directed to pay to the
plaintiff an amount of Rs. 9,800/- for the period from 01/04/2016 to
31/05/2024 at the monthly rent of Rs. 100/-. Hence, on all these
grounds, present suit is filed.
3. The defendants after service of writ of summons did not
appear either in person or through counsel/advocate. Hence, an order
of proceeding suit ex-parte is passed against them below Exh. 1 dated
21/02/2025.
4. From the averments made in the plaint, following points arose
for my determination to which I have given findings along-with reasons
thereon which are as under:-
Sr.
Nos.
Points Findings
1. Does the plaintiff prove that, the
defendant No. 1 is in arrears of rent?
...Partly yes.
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2. Does the plaintiff prove that, the suit
premises is reasonably and bonafide
required by him and for his family
members’ accommodation?
...No.
3. To whom greater hardship would be
caused by passing the decree than by
refusing to pass it?
...Does not survive.
4. Does the plaintiff prove that, the
defendant No. 1 has unlawfully
sublet the suit premises to the
defendant No. 2 without his consent?
...Yes.
5. Does the plaintiff prove that, the
defendant No. 1 is not using the suit
premises without any reasonable cause
for the purpose, for which it was let out,
for continuous period of more than six
months, immediately preceding the date
of the suit?
...Yes.
6. Whether the plaintiff is entitled to the
relief of arrears as sought?
...Partly yes.
7. Whether the plaintiff is entitled for the
decree of eviction and recovery of
possession of the suit premises?
...Yes.
8. What order and decree ? ...The suit stands
partly decreed with
costs.
: REASONS :
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5. In order to substantiate the claim of the plaintiff, he has
examined himself as P. W. 1 Mr. Mahesh Hari Pawar by filing his
affidavit of evidence in lieu of examination-in-chief at Exh. 10. The
plaintiff has closed his oral evidence by filing pursis vide Exh. 15 to that
effect.
6. Besides the oral evidence, the plaintiff has tendered Original
Assessment Tax receipts vide Exh. 12 (collectively); Original
counterfoils of rent receipts vide Exh. 13 (collectively); Office copy of
Notice dated 25/07/2023 along-with acknowledgment card and
R.P.A.D. receipts vide Exh. 14 (collectively) towards the documentary
evidence.
As To Point Nos. 1 to 7:-
7. These points are taken together in the interest of justice.
Heard Ld. Advocate Smt. S. A. Mishra on behalf of the plaintiff at
length.
8. The Ld. Advocate on behalf of the plaintiff has vehemently
argued that, plaintiff has filed present suit for eviction against the
defendants. He has led sufficient oral and documentary evidence in
support of his claim and proved the grounds of eviction. The defendants
have failed to cross examine the plaintiff despite sufficient
opportunities. They have failed to take any defence despite service of
writ of summons. The plaintiff has proved his claim. As his evidence has
gone unchallenged, present suit be decreed with costs.
9. It is the case of plaintiff that, he is the landlord and defendant
No. 1 is his tenant in respect of the suit premises. It is his further case
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that, defendant No. 2 has been illegally inducted by the defendant No.1
in the suit premises without his consent.
10. P.W. 1 Mahesh (Exh. 10) has reiterated the contents of the
plaint in his affidavit of evidence. The defendants have failed to cross
examine the said witness despite the opportunities. Hence, the affidavit
of evidence filed by P.W. 1 Mahesh (Exh. 10) has been ordered to be
proceeded without his cross-examination on behalf of defendants.
11. Now, coming to the documentary evidence, the documents
[Exh. 12 (collectively)] appear to be Assessment tax receipts issued by
Brihanmumbai Municipal Corporation Ward, standing in the name of
Smt. Malibai Bhaidas Bhuta as an assesse for the property mentioned in
the bills. Billing name appears to be Hari Tanu Pawar. According to
evidence of P.W. 1 Mahesh (Exh. 10), his father was paying the
assessment charges in respect of the suit chawl and his name is
incorporated in the assessment bills apart from land owner/lessor. The
defendants have not cross examined the witness on said oral evidence.
Therefore, there appears no reason to disbelieve or discard the
documents (Exh. 12 (collectively)) and oral evidence of P.W. 1 Mahesh
(Exh. 10) stated in Para No. 1 of his evidence affidavit on the said
documents as remained unrebutted.
12. The counterfoils of rent receipts [Exh. 13 (collectively)] go to
show that, these are issued by P.W. 1 Mahesh (Exh. 10) as a landlord to
Sultan Babu Shaikh as a tenant in respect of the suit premises i.e. Room
No. 2 at monthly rent of Rs. 100/- for various periods stated therein. It
appears that, the rent receipts have been issued to the defendant No. 1
till 20/03/2016. The defendants have failed to cross examine the
witness/plaintiff with regard to the contents of the said documents.
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13. The documents [Exh. 14 (collectively)] appear to be office
copy of demand notice dated 25/07/2023, acknowledgment cards and
postal receipts from which it can be seen that, P.W. 1 Mahesh (Exh. 10)
has issued the demand notice to both defendants at the address of suit
premises. The plaintiff appears to have called upon the defendant No. 1
to pay the arrears of rent amounting to Rs. 8,300/- from 01/04/2016
till 25/07/2023 and both the defendants to quit, vacate and handover,
peaceful and vacant possession of the suit premises to him. The said
notice appears to have served upon the defendants which can be seen
from the signatures appearing on acknowledgment cards [Exh. 14
(collectively)].
14. On perusal of the documents [Exh. 13 (collectively) and Exh.
14 (collectively)] coupled with oral evidence of plaintiff, it is
established on record that, the defendant No. 1 is a tenant of the
plaintiff in respect of the suit premises.
15. The plaintiff is claiming the arrears of rent. In this regard,
Section 15 of the Rent Act is required to be reproduced which is as
under:-
“Section 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
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expiration of ninety days next after notice in writing of the
demand of the standard rent or permitted increases has been
served upon the tenant in the manner provided in section
106 of the Transfer of Property Act, 1882.
3. No decree for 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 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 of 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 any 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.”
16. As per Section 15 (2) of the Rent Act, the landlord cannot
institute the suit for recovery of possession against the tenant on the
ground of non payment of rent or permitted increases due, until the
expiration of 90 days next after notice in writing of the demand of such
rent or permitted increases has been served upon the tenant.
17. The defendant No. 1 despite the opportunities after service of
suit summons, did not appear and take efforts to bring his defence to
the claim of the plaintiff on record. He has failed to cross examine the
plaintiff with regard to his oral and documentary evidence. He has
failed to bring on record that, his landlord is someone else and not the
plaintiff. Therefore, the documents [Exh. 14 (collectively)] go to show
that, a demand notice has been duly served upon the defendant No. 1-
tenant and the suit appears to have instituted after expiration of 90
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days after service of demand notice.
18. The defendant No. 1 has failed to pay or tender in Court the
rent then due or arrears of rent. He has also failed to apply for seeking
permission for deposit of the rent in the Court and to continue to pay or
tender in Court regularly rent as per requirement under Section 15(3)
of the Rent Act. Therefore, it is clearly established on record that, the
defendant No. 1 is in arrears of rent from 01/04/2016 and has failed
and neglected to pay the same despite service of demand notice. From
the evidence brought on record, the plaintiff’s claim for arrears of rent
is partly within law of limitation. Therefore, he is entitled for arrears of
rent at the rate of Rs. 100/- per month only for 36 (thirty six) months
prior to date of filing of the suit.
19. Present suit is also filed on the ground of bonafide and
reasonable requirement of the plaintiff and his family members. In this
regard, Section 16(1)(g) of the Rent Act needs to be reproduced which
states as under:-
“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 purpose of the trust.”
20. Section 16(1)(g) of the Rent Act deals with the legal concept
of bonafide and reasonable requirement and envisage that, a landlord
shall be entitled to recover possession of any premises, if the court is
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satisfied that, the premises are reasonably and bonafide required by him
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. While considering “reasonable requirement,”
there must be an element of need as opposing a mere desire or wish.
The distinction between desire and need should be kept in mind but not
as to make even a genuine need as nothing but desire.
21. P.W. 1 Mahesh (Exh. 10) has stated his case of bonafide and
reasonable requirement in Para. No. 8 of his evidence affidavit. I have
also gone through the plaint. The plaintiff has stated in Para. No. 10 of
the plaint with regard to his case of bonafide and reasonable
requirement. However, he has nowhere stated in the plaint that, if the
decree of eviction on the ground of bonafide and reasonable
requirement is not passed, greater hardship will be caused to him. He
has nowhere stated in the plaint that, the defendant No. 1 will not
suffer greater hardship in the event of passing a decree of eviction in his
favour.
22. Section 16(2) of the Rent Act provides that, “No decree for
eviction shall be passed on the ground, specified in clause (g) of sub-
section (1), if the court is satisfied that, having regard to all the
circumstances of the case including the question whether other
reasonable accommodation is available for the landlord or the tenant,
greater hardship would be caused by passing the decree than by
refusing to pass it. Where the court is satisfied that no hardship would
be caused either to the tenant or to the landlord by passing the decree
in respect of a part of the premises, the court shall pass the decree in
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respect of such part only…” Therefore, as per settled law, the plaintiff
has failed to plead and prove the case of greater hardship in view of
Section 16(2)of the Rent Act. Hence, in view of above all discussion, the
ground of bonafide and reasonable requirement is not proved.
23. Another ground of filing of present eviction suit is subletting
the suit premises by the defendant No. 1 to defendant No. 2 without
consent and knowledge of the plaintiff under Section 16(1)(e) of the
Rent Act. P.W. 1 Mahesh (Exh. 10) has deposed in his affidavit of
evidence the case of subletting by the defendant No. 1 without his
consent to defendant No. 2. The defendants have not cross examined
the witness with regard to said contention.
24. Section 16(1)(e) of the Rent Act states that, if the tenant has
unlawfully sub-let or given on license, the whole or part of the premises
or assigned or transferred in any other manner his interest therein, he
can be evicted on the said ground.
25. The address of the defendant No. 2 is shown as the address of
the suit premises in the cause title of the plaint. So also, the defendant
No. 1’s address is shown as Room No. 20, Hawaldar Chawl, Mograpada,
Andheri (East), Mumbai – 400 069. Therefore, in this regard it would
be just and proper to peruse the reports of Bailiff with regard to service
of writ of summons to these defendants.
26. The Bailiff’s Reports vide Exh. 7 go to show that, the
defendant No. 1 has been served with suit summons at the address of
Room No. 20, Hawaldar Chawl, Mograpada, Andheri (East), Mumbai –
400 069 by pasting as per the law and procedure. So also, the reports
further go to show that, the defendant No. 2 has been served with suit
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summons at the address of suit premises. Thus, when it is not either the
case of the parties that, the defendant No. 2 is the tenant of the plaintiff
then how he has been found to be in the possession of the suit premises.
The plausible explanation for the same has not come on record on
behalf of the defendants. Rather they have failed to set up any defence.
The Bailiff being an officer of Court, his reports cannot be discarded
unless rebutted by the parties. Nothing is placed on record in order to
show that, the Bailiff’s Reports vide Exh. 7 cannot relied upon. In this
regard, as the defendant No. 2 was found at the address of suit premises
especially when he was never inducted by the plaintiff or defendant No.
1 with the consent of plaintiff at any point of time, the ground of
subletting is proved beyond doubt.
27. The present suit is also filed on the ground of non user under
Section 16(1)(n) of the Rent Act. Section 16(1)(n) of the Rent Act
states that, the landlord may recover possession of tenanted premises, if
the premises have not been used without reasonable cause for the
purpose for which they were let for a continuous period of six months
immediately preceding the date of the suit.
28. For seeking a decree of possession under Section 16(1)(n) of
the Rent Act, the landlord has to prove that, the premises has not been
used by tenant for the purpose for which it was let out for a continuous
period of six months immediately preceding the date of the suit. The
landlord has to plead the non user of the premises on the part of the
tenant without reasonable cause and the burden to prove that, the
premises has not been used without reasonable cause lies on the tenant.
Under Section 106 of Indian Evidence Act, 1872, the burden to prove
true fact especially within the knowledge of any person is on him.
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Therefore, the existence of the reasonable cause for non user is to be
established by the tenant.
29. Now, coming to oral evidence adduced by the plaintiff. P.W. 1
Mahesh (Exh. 10) has reiterated the contents of the plaint in his
affidavit of evidence regarding non user of the suit premises by the
defendant No. 1. The defendant No. 1 has not cross examined the said
witness despite the opportunities. Thus, the contentions of P.W. 1
Mahesh (Exh. 10) regarding non user of the suit premises by the
defendant No. 1 are remained to be unchallenged.
30. It is the case of the plaintiff that, the defendant No. 1 is not
using the suit premises for his residential purpose without any reason.
Now, the Bailiff’s reports vide Exh. 7 go to show that, the defendant No.
1 was not found at the address of the suit premises and it was the
defendant No. 2 who came to be found residing therein. The Bailiff
being an officer of the Court, therefore his reports have much value
unless rebutted. Normally, such reports are not be disbelieved. Above
Bailiff’s reports go to show that, defendant No. 1 is not residing at the
address of the suit premises as a tenant thereof. Therefore, it goes to
show and prove that, the defendant No. 1 was not using the suit
premises without any reasonable cause for the purpose, for which it was
let out, for continuous period of more than six months, immediately
preceding the date of the suit.
31. The defendant No. 1 being a tenant has not established
reasonable cause for not using the suit premises in view of Section (16)
(1)(n) of the Rent Act. The defendant No. 1 had got sufficient
opportunity to take the defence to the claim of the plaintiff. However,
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he has not contested the suit despite service of suit summons. The oral
and documentary evidence of the plaintiff with regard to the ground of
non user has gone unchallenged. Here in this case, the existence of
reasonable cause for non user in the present suit is not established by
the defendant No. 1. Therefore, the ground of non user is duly
established on record.
32. Therefore, in view of above all discussion, the ground of
arrears of rent is partly proved. The ground of bonafide and reasonable
requirement of the plaintiff is not duly established, however, the
grounds of subletting the suit premises and non user are clearly
established. Therefore, the plaintiff is entitled to the decree of eviction
and recovery of possession of the suit premises. Thus, I answer Point
Nos. 1 and 6 in the ‘partly affirmative’; Point No. 2 in the ‘negative’;
Point No. 3 as ‘Does not survive’ and Point Nos. 4, 5 and 7 in the
‘affirmative’.
As To Point No. 8:-
33. In view of findings given on Point Nos. 1 to 7, the suit
deserves to be partly decreed with costs. Hence, in answer to Point No.
8, I proceed to pass following order:-
: ORDER :
1. The suit stands partly decreed with costs.
2. The defendants are hereby ordered and directed to deliver
vacant, quiet and peaceful possession of the suit premises
viz. Room No. 2, admeasuring 10’ ft. x 15’ ft., situated in
Shakuntala Hari Pawar Chawl, Chawl No. 77, Service Road,
Mograpada, Andheri (East), Mumbai – 400 069, to the
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plaintiff within a period of sixty days from the date of this
order.
3. The defendant No. 1 is hereby ordered and directed to pay
the arrears of rent at the rate of Rs. 100/- per month for 36
(thirty six) months prior to date of filing of the suit, to the
plaintiff within a period of sixty days from the date of this
order.
4. Decree be drawn up accordingly.
(Dictated and pronounced in Open Court.)
(R. R. Kale)
Date : 21/01/2026. Judge, C.R. No. 36 (B.B.)
Judgment dictated on computer on : 21/01/2026.
Judgment checked & signed on : 21/01/2026.
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