Gafur vs Hirabai W/O Dnyanshswar Kolte ...
2001 Latest Caselaw 554 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India takes exception to the Order passed by the IInd Additional District Judge, Pune dated February 18, 1989 in Regular Civil Appeal No. 966 of 1986.

2. The petitioner is the tenant in respect of premises being two Khans room in CTS No. 354, House No. 312 situated at Wanori, Tal. Haveli, District Pune as monthly tenant on payment of Rs. 16/- plus education cess Rs. 0.64 paise and other taxes of Rs. 2.18 total Rs. 18.82 paise. According to the respondent-landlady, the petitioner was in arrears; for which reason she issued notice dated September 19, 1983, which is stated to have been duly served upon the petitioner on September 19, 1983. Later on in 1984 the respondent instituted a suit for possession on the ground of default. In the said suit the respondent also prayed for possession on the ground of bona fide and reasonable requirement. At this stage, it is relevant to point out that the respondent-landlady had filed a suit for possession against the petitioner-tenant in the year 1977 being Regular Civil Suit No. 614 of 1977 which was eventually dismissed on June 23, 1981. In other words, the ground of bona fide and reasonable requirement pressed into service on behalf of the landlady was negatived by the Rent Court. It appears that in the said judgment the Rent Court took into account the fact that the landlady was originally a tenant in respect of the property which is in her occupation and she purchased the said house in the year 1970. Besides that, it is observed that, the respondent-landlady has built a new house in the same vicinity and let out on rent. In the circumstances, in the previous suit, the Rent Court negatived the plea of bona fide and reasonable requirement of the respondent-landlady. Notwithstanding this position, in the suit instituted in the year 1984, pursuant to the demand notice issued on September 19, 1983, being Regular Civil Suit No. 77 of 1984, the respondent once again pleaded the ground of bona fide and reasonable requirement.

3. In view of the rival pleadings the trial Court framed in all seven issues. Besides the issue of default and bona fide requirement, the issue of comparative hardship was also framed including the issue as to whether the present suit was barred by res judicata. The trial Court after analysing the rival pleas and evidence on record took the view that the respondent-landlady failed to establish the ground of bona fide and reasonable requirement. The trial Court also came to the conclusion that the issue of comparative hardship will have to be answered in favour of the petitioner-tenant. In so far as the issue of res-judicata is concerned the trial Court negatived the same on the ground that the previous suit was filed in the year 1977, whereas the present suit is filed in the year 1984. This view is taken notwithstanding the fact that the previous suit was dismissed only on June 23, 1981 and the present suit filed in 1984. Since the suit was eventually dismissed by the trial Court, the respondent-landlady filed appeal before the District Judge, Pune, being Civil Appeal No. 966 of 1996. The Appellate Court was, however, pleased to reverse the conclusion reached by the trial Court on the issue of bona fide and reasonable requirement and answered the same in favour of the respondent-landlady. In so far as the issue of comparative hardship is concerned, the finding recorded by the Appellate Court is that, the same is balanced on both the sides. Nevertheless, the Appeal Court answered the said issue in favour of the respondent-landlady. The Appellate Court decreed the suit for possession against the petitioner on the ground of bona fide and reasonable requirement. This judgment of the Appellate Court is the subject matter of challenge in the present petition.

4. The learned Counsel for the petitioner vehemently submits that the approach adopted by the Appellate Court was wholly inappropriate which has caused serious miscarriage of justice. According to him, the Appellate Court has misdirected in reversing the finding on the issue of bona fide and reasonable requirement, especially having found that the respondent-landlady has admitted that she owns other house property in the same vicinity and has failed to assert that someone else is in occupation of the same. Further, according to him, the Appellate Court was wrongly influenced by the fact that the petitioner had failed to raise the said plea either in the pleadings or during the evidence. The learned Counsel further submits that the conclusion, therefore, reached by the Appellate Court cannot be sustained either on facts or in law. The learned Counsel further submits that even the approach adopted by the Appellate Court on the issue of comparative hardship is wholly unsustainable. According to him, the Appellate Court could have reversed the finding of the trial Court on the said issue only when the view taken by the trial Court was found to be perverse, which was lacking in the present case. In support of this submission he relied upon a decision in Kishinchand Murjimal v. Kalavati Hansraj Dwarkadas, . He further submits that in any case the Appellate Court has found that the issue of comparative hardship can be said to be balanced on both the sides. In the circumstances, he submits that, since no positive circumstance has been mentioned by the Appellate Court as to how it was inclined to take the view that greater hardship would be caused to the landlady and not to the tenant, the approach of the Appellate Court in concluding the issue in favour of the respondent was impermissible. In support of this submission he relied upon decision of the Apex Court in Om Prakash Gupta v. Dig Vijendrapal Gupta, A.I.R. 1972 S.C. 1230. He has also referred to the provisions contained in sub-section (2) of section 13 of the Bombay Rent Act to contend that, when hardship is found to be evenly balanced then in such a situation it cannot be said to be greater in favour of either party, in which case the bar under sub-section (2) for making a decree of eviction would operate. In other words, he contends that the bar under sub-section (2) is lifted only when it is conclusively found that the landlady and/or landlord, as the case may be, would suffer greater hardship than the tenant. In his submission, taking any view of the matter the judgment under appeal cannot be sustained. He further submits that at any rate it would be in the interest of justice to remand the matter to the Appellate Court, to make further investigation into the factual matrix as to the status of the house newly built by the respondent-landlady.

5. Although the respondent has been served and is represented by a Counsel, none appears for the respondent. After considering the abovesaid submissions advanced on behalf of the petitioner, I am inclined to take the view that this is a fit case where the matter needs further investigation-both on the issue of bona fide requirement as well as comparative hardship. As rightly contended by Mr. Kumbhakoni that, from the evidence on record it would appear that the trial Court had rightly considered the matter in concluding that the respondent-landlady failed to establish the ground of bona fide reasonable requirement. Having regard to the admission of the respondent-landlady that, she owns another house at Wanori, without further asserting that the said house is in occupation of some other person, the trial Court was right in taking the view that if the landlady was already in possession of some other accommodation in the same vicinity then the ground of bona fide and reasonable requirement of the suit premises was not available. The Appellate Court, however, has merely proceeded on the basis that the petitioner neither pleaded nor led any evidence that the other house property owned by the respondent was vacant or available for immediate accommodation of the respondent for residence. In my view, it would have been appropriate to permit the parties to adduce necessary evidence in this behalf to do substantial justice in the matter and also for the full, complete and effectual adjudication of the matter; particularly having regard to the fact that the respondent had filed suit for the same relief in the year 1977 which was finally dismissed by the Rent Court on June 23, 1981 taking the view that the other house property was available to the respondent-landlady at the relevant time. The Appellate Court has no doubt made reference to the observations made in the previous judgment, but tried to distinguish the same on the premise that in the present suit such a reasoning was not tenable and that is why the petitioner-defendant did not specifically raise the same in his defence. Without examining the matter in further details, I would prefer to relegate the parties to adduce necessary evidence on the relevant aspect and only thereafter would the Court proceed to record clear finding regarding availability of other house property. In my view, such an exercise would be imperative before recording finding that the respondent-landlady has established bona fide and reasonable requirement.

7. In the circumstance, it would be appropriate to remit the matter to the Appellate Court for reconsideration of the issue of bona fide and reasonable requirement; and, after this remand, the Appellate Court may be well advised to permit both the parties to amend the pleadings, if necessary, and, also permit adducing of further evidence which may also include the factual matrix relating to the subsequent events, if any.

8. Although the learned Counsel for the petitioner has challenged the correctness of the findings recorded by the Appellate Court on the issue of comparative hardship, relying upon the decision of the Apex Court as well as this Court, however, I would prefer not to venture to examine the correctness of the said conclusion for the simple reason that the matter is being remanded and it would be open to both the parties to adduce further evidence, if any, which would be considered by the Appellate Court in accordance with the law.

9. It is made clear that the Appellate Court shall examine the matter without being influenced by any observations made in its previous judgment which is being set aside by this Order or even in this judgment and decide both the issues purely on the basis of evidence on record and in accordance with the law. The Appellate Court shall finally dispose of the matter within six months from the receipt of writ of this Court.

10. For the aforesaid reasons, this petition succeeds to the above extent. Rule made absolute in the above terms with costs.