JUDGMENT Anoop V. Mohta, J.
Page 188
1. The petitioners-Plaintiffs are the owners of the suit premises consisting of two rooms admeasuring 10' x 12', situated on the first floor of the house No. 108, Ganesh Peth, Pune. The respondents-tenants are the original defendants are in occupation of the same on monthly tenancy basis and using the same, basically for residential purpose. The Landlords, suit for eviction was decreed by order dated 29th March, 1989, against the respondents-tenants and thereby directed to recover the possession of the suit premises. The original defendant No. 1, Therefore, preferred the appeals and the same were allowed. In the result the judgment and decree passed by the trial Court, was set aside. The petitioner landlord, therefore, have invoked the provisions of Article 227 of the Constitution of India and challenged the impugned judgment, dated 27th July, 1992.
2. The present writ petition was admitted on 6th March, 1992. The order is, as passed "Rule on question relating to ground of "change of user" and "nuisance".
3. Heard Mr. Anturkar, the learned Counsel, appearing for the petitioners, who apart from the ground of change of user submitted that the ground of bonafide need, can be borne out from the admitted position on the record to be a ground in favour of the landlord and therefore, he may be allowed to submit and raise the contention on the said ground of bonafide need. The learned Counsel Mr. R.S. Apte, appearing for the Respondent No. 1 and Mr. Rairkar, the learned Counsel, appearing for the respondent No. 2, Page 189 however, resisted the same. The submissions to the extent that once the rule is issued and restricted to the particular ground, then there is no question of leading petitioner or any party on any other ground. In the present case, the learned Counsel appearing for the petitioner, has given up the ground of nuisance and is pressing the claim on the ground chance of user and bonafide need.
4. Now therefore, the question is at the stage of final hearing of such writ petition, whether such restriction at the time of admission itself is sufficient to curtail the arguments of the parties. Even, when there are materials on the record to suggest that the other grounds are also available grounds for the relief, as sought by the petitioners. The learned Counsel appearing for the respondents in support of his contention pointed out Chapter XVII of Bombay High Court Appellate Side Rules, 1960, rule 5, 8 and 11 and both Counsel also relied on extract of Rule 17 of the said Chapter. Those Rules are as under:
"Rule 5- The Court may either summarily dismiss the application or order rule nisi to be issued against the opponent against whom it is sought, as it deems fit. Any rule so granted shall be made returnable, except as otherwise ordered by the Court, within a period which shall not be less than 14 days after the service thereof on the opponent."
"Rule 8(i) Rule nisi granted as above shall, along with a copy of the interim or interlocutory order, if any, be served on the opponent in the manner prescribed in Order V of the Code of Civil Procedure, 1908, for the service of a summons upon a defendant in a suit."
"Rule 11. An answer to rule nisi showing cause against such application shall be made by filing at least two days before the returnable date of the rule an affidavit in the office of the Registrar, a copy whereof shall be served upon the applicant."
"Rule 17 Applications under Articles 227 and 228.... Provisions of Rules 2 to 16 above shall apply mutatis mutandis to all such applications."
The Rules are not assisting to the submissions made by the respondents to restrict the power of the High Court under Section 227 of the Constitution of India in any way.
5. The learned Counsel for the petitioner has relied on 1982 1 Supreme Court Cases 433 Ramji Bhagala v. Kirshnarao Karirao Bagra and Anr. and emphasised that in view of the provisions of Section 100 and 101 and Order 41 Rules 9 and 33 of Civil Procedure Code (for short C.P.C.), if the appellate Court "cannot partly admit the partly reject the appeal", then there is nothing which control the scope and power of the High Court under Article 227 of the Constitution of India. The power of the High Court under Article 227 of Constitution of India cannot be restricted or curtailed at any stages of the proceeding. In absence of specific restrictions or any specific procedure, the principle of Civil Procedure Code can definitely be extended and all matters, which arises out of Article 227 of Constitution of India. Even as explained by Page 190 the Apex Court (Ramji) (Supra) cannot be overlooked. In absence of any specific restrictions and or bar, I am of the view, that the scope and power of Article 227 of the Constitution of India, in no way be restricted by observations made by the Court at the stage of admission of the writ petition or interlocutory orders. But its importance at the stage of final hearing cannot be overlooked.
6. (1) The admission of the writ petition on "issue of change of user and nuisance" means the summary rejection of the writ petition on other ground i.e. "Bonafide need".
(2) Even while rejecting or deciding the writ petition, as observed by the Apex Court basic reasons are necessary.
(3) The summary rejection on the other issue was without any specific reason.
(4) The Apex Court has observed that an interlocutory order even if confirmed by the Apex Court/Higher Court, would not become final and binding and would no bar to pass a contrary or appropriate order at he stage of final hearing. A.I.R. 2000 S.C. 1504, Amrish Tiwari v. Lalta Prasad Dubey and Anr.
(5) The requirement of natural justice is to give opportunity to parties on all issues and points. In the present case, arguments have been made, based on the existing evidence and no new evidence. The facts and circumstances at the time of granting final order always play important role. In view of this, I heard the parties on this issue of "bonafide need also"
7. At this stage, before going further into these controversy, what is required to be seen is whether a case is made out by the petitioner to reagitate the issue of bonafide need, at the time of final hearing, even though the writ petition was admitted on restricted grounds "of change of user" and "nuisance".
8. The submission of bonafide need of the landlords in the present case, and as sought, is relied and based on the testimony of Mr. Sunil Pawar which is quoted as under:
"The plaintiff has got this premises repaired and they are not fit for residence."
The main argument therefore, is that in view of this, admission on the record, by the tenants, the Courts below ought to have considered the case of bonafide need.
9. The learned Counsel appearing for the respondent No. 2, Mr. Rairkar basically relied on the reasoning given by the Courts, in para 17 to 18 are as under:
"It also requires to be noted in the above respect that the original plaintiff/the respondent No. 1, himself has admitted in his cross-examination that previously, he was residing on 3rd and 4th floor in the new building and he had let out the said 3rd and 4th floor to one tenant named, Bhagwan by Page 191 occupying the premises vacated by his other tenants named, Sabriya and Tank, which are admittedly located in the old building. Thus, it is apparent from the admissions of the original plaintiff/the respondent No. 1, himself that he was occupying four rooms in the new building which is adjacent to the suit premises. Admittedly, there are three members only in the family of the original plaintiff/the respondent No. 1."
Had it not been the fact, then the original plaintiff/the then the original plaintiff/the respondent No. 1, would not have vacated the four rooms in the new building and would not have let the said premises to his tenant named, Bagwan, this conduct of the original plaintiff/the respondent No. 1, makes it ample clear that he is in the habit of filing eviction suits against his tenants and letting it out the same for higher rents. Had it also not been the fact, then there was no propriety for the original plaintiff/the respondent No. 1 to let out his own residential premises to the said Bagwan. In view of this fact of the matter, I am definitely inclined to say that the original plaintiff, the respondent No. 1, intends to make profits by evicting his tenants from his house."
"It also requires to be noted in the above respect that admittedly, the family of the original plaintiff/the respondent No. 1 consists of three members only and he is in possession of three rooms with attic which were vacated by his previous tenant named, Sabriya and Tank. Considering plaintiff/the respondent No. 1. I am definitely inclined to say that his present accommodation is more than sufficient for his family of more than three members and as such, it also cannot be said that the said need of the original plaintiff/the respondent No. 1, in respect of the suit premises is reasonable and bonafide".
After considering the rival contentions so far as this ground is concerned, it is difficult to accept the contention, as raised by the Counsel appearing for the petitioner that there is any perversity, as such which need to be taken note of, while considering the aspect of bonafide need. Even assuming for a moment that the statement made by the tenant on the record, as referred, that itself is not sufficient to consider and or to allow to raise the ground of bonafide need now at the stage of final hearing assuming for a moment that there is some substance in the contention raised by the learned Counsel appearing for the petitioners, that considering the other background and the finding given by the courts, specially in para 17. I am of the view that there is no case, made out to reconsider the ground of bonafide need in the facts and circumstance of the case.
10. There is some substance in the argument raised by the learned Counsel appearing for respondent No. 1, that once the Court takes note of arguments, even at the stage of admission, but if there is a specific and positive observation made, at the stage of admission itself, while admitting the matter, it cannot be said that there was no application of mind at the relevant time. There are very few cases, where Courts grant Rule and makes such a specific observations, as done in the present case. But if, there is a specific observation and Rule is restricted to the particular grounds, I am of the view that there was definitely an application of mind and based on these, probability, at the time of admission, itself, the learned Judge must have thought that the case Page 192 was only made out in reference to the grounds of change of user and nuisance. As there is no case made out to allow this ground again at the stage of final hearing on merit, itself, I am inclined to interfere on the grounds of bonafide need, as sought to be contended by the learned Counsel appearing for the petitioners. The next ground is change of user. The premises has been used, as sought to be contended partially for the non-residential purpose as the tenant using the same for the purpose of business of Electrical Contractor in the name and style as "Naina Electricals".
11. Without going in to much controversy, the learned Counsel appearing for the respondent No. 2, relied on Casting Ltd. v. Bawa Gurvachan Singh, the relevant para is as under:
"There is no specific clause in the agreement that the appellant shall not use even one room as study room for the members of the family or he shall not use one room to do any officer work at home."
"It is not uncommon that officials, executives officers, businessmen, industrialists and people engaged in other vocations may have some home work to do. In these days computers, internet and other like facilities are kept at home for convenience and use. In residential buildings where persons live with family members, a room may be used for the purpose of doing homework relating to office files of study of children or allied or ancillary use in a building leased for residential purpose. So long as in a residential building, three is no regular commercial activity or carrying on of business and regular office with interaction of the public and customers, etc. it is not possible to say that use of one room for doing homework or study itself will change the user of the building and that the classification and character of the building is changed, but it continues to remain a residential building so also its purpose remains as residential. Use of a room in a residential building for personal purpose should be distinguished from use of such a room for business, industry or other commercial activity or as a regular public or professional office. We must add that each case has to be considered on its own facts on the basis of the pleadings and evidence to find out as to whether there has been a change of user in the building from residential to non-residential as it is not possible to given an exhaustive list of situations as to change of user of buildings".
From the above observations of the Apex Court, one thing is very clear, that each case has to be considered on its own facts on the basis of the pleadings and evidence, to find out, as to whether there are change of user in the building or residential to non residential purpose and that whether, the partial use of non residential purpose, and or whether what is dominant use of the premises, on the date of filing of the said application. On the said foundation i.e. related change of user it is also necessary to consider at this stage, whether there was regular commercial activities or the business which was carried on with interaction of public and customers. In the present case, there is no material on the record to suggest the same that there was regular interaction, sale or purchase of any electrical goods, in the said premises. Even assuming Page 193 for the moment that the respondent-tenant was using the premises for electrical business or allowing some one to visit the said premises for the said business, electrical contract, till it is difficult to accept the contention of the landlord, that itself amounts to change of user of the premises. Even assuming that there is a board of Naina Electricals on the suit premises, till in absence of above ingredients, as rightly observed by the Courts below, that it is insufficient to hold that the premises in question has being used for non residential purpose. The relevant licence or no licence of business in question as admittedly not produced on the record to justify the case. The photographs as placed on the record, and even if it reflects board, styled as "Naina Electricals" that itself is not sufficient to accept the submissions of the landlord, in view of the basic requirement as contemplated by the Apex Court.
12. The further question whether the tenant is using the said premises permanently for residential purpose or non residential purpose, in the present case, in absence of any positive evidence, it cannot be said that the tenant is using the said premises for non residential purpose. The dominant use is definitely reasonable purpose in view of the evidence on the record. In the change scenario of the society and looking to the purpose and object of the Rent Control Legislation and considering the scarcity of the premises and on land available for the use and occupation of the tenants and or such persons. I am inclined to consider in the facts and circumstances of the present case, that the premises in no way can be used, or to be used for non residential purpose. The tenant, having a family members living in the particular premises, used of phone, mobile phone and used such other necessary materials, computers, or communication equipment for their so called business, that itself is not sufficient to consider the case of landlord, that the premises is converted or used for non residential purpose.
13. It appears from the record itself that the tenants are in occupation of the rooms since long and doing his business in the name of Naina Electricals.
14. The above referred Apex Court's decision, therefore, is taken note of and considering the material on the record, apart from the finding given by the appellate Court, I am of the view that the reasoning given by the Court is plausible, reasonable and within the framework of the law, as well as, the record. It is no where said to be perverse or unreasonable. The view, as taken is fall within the ambit on the record and taking into consideration the whole purpose and scope of Article 227 of the Constitution of India, I am not inclined to interfere with the reasoning given by the appellate Court. The view as taken is correct and need no interference.
15. For the above reasons, writ petition is dismissed. Rule discharged. No order as to cost.