Omprakash Dinodia vs Smt. Ashalata Wd/O Late Dr. Anant ...
2001 Latest Caselaw 897 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India takes exception to the order dated August 11, 2000 passed by the Small Causes Court, Bombay in Appeal No. 89 of 1996 in R.A.E. Suit No. 932 of 1975.

2. The petitioner claims to be the tenant In respect of Room No. 2 being one room tenement on the ground floor of building known as Dhanbai Mulchand Niwas (new name is Ashok Niketan) situated at 117-B Dadyseth Agiary Lane, Bombay. The original landlord, predecessor of the Respondent Nos. 1 to 8 herein, filed suit for recovery of possession of the demised premises against the Respondent Nos. 9, 10, 11 and the Petitioner herein. According to the landlords, the Respondent No. 9 was inducted as a monthly tenant in the demised premises, whereas the Respondent No. 10, her grandson, was occupying the demised premises for some time. The landlord further asserted that the Respondent No. 10 has unlawfully inducted the present Petitioner as sub-tenant in the suit premises. In the circumstances, the Plaintiff impleaded the Respondent No. 11 and present Petitioner as Defendant Nos. 2A and 3 respectively in the said suit for recovery of possession out of abundant precaution. The suit as filed was on the various grounds including default, bona fide requirement, unlawful sub-letting by defendant No. 1 in favour of defendant No. 3, non-user of the suit premises for continuous period of more than six months preceding the date of presentation of the suit, etc. In the present writ petition we are concerned with the ground of bona fide requirement, alone. No doubt, the Appellate Court has decreed the suit also on the ground of unlawful subletting. But, it is agreed that, that ground has become unavailable to the landlord because of the amendment of 1987. In that sense, the Counsel for the landlords has not pressed the ground of unlawful sub-letting before this Court, though decree has been passed by the two Courts below on that count.

3. With reference to the ground of bona fide requirement, the averments made in the plaint and more particularly in para 5(c) thereof states that the Plaintiffs family consists of In all eight members (including five sons and one daughter). It is asserted that the elder son has become of marriageable age and, therefore, additional accommodation would be necessary and because of want of accommodation his marriage proposals could not be successfully pursued further. Parties went for trial before the Small Causes Court. On analysing the evidence on record the Trial Court decreed the suit in favour of the Plaintiffs holding that they established that the demised premises were required for bona fide and reasonable requirement having regard to the growing need of their family. The Trial Court also answered the issue of comparative hardship in favour of the Plaintiffs. The Petitioner alone challenged the said decree before the Appellate Bench of the Small Causes Court by way of Appeal No. 89 of 1996. In this Appeal, for the first time the Petitioner raised a technical plea that the plaint as originally presented on 2.1.1975 was not signed by the Plaintiff, but by his Advocate. Pursuant to this plea the Plaintiffs took out application before the Appellate Court for permission to sign the Plaint, which application was allowed on 27th September, 1999. It is relevant to note that the said application was contested by the Petitioner. Nonetheless, the Appellate Court granted that permission. Pursuant to the said permission the Plaintiffs signed the Plaint and the said technical defect was thus allowed to be cured by the Plaintiffs. Undisputedly, the order passed by the Appellate Court, permitting the Plaintiffs to sign the Plaint, has been allowed to become final. Nonetheless, at :he time of hearing of the Appeal, the Petitioner once again raised the plea that the plaint as filed was incompetent and, therefore, the suit was not maintainable. Besides this plea, the Petitioner also challenged the findings returned by the Trial Court on the issue of bona fide and reasonable requirement and comparative hardship. The Appellate Court analysed the rival submissions and negatived both the pleas taken by the Petitioner. In so far as the plea that, the Plaint was not signed by the Plaintiffs, the Appellate Court has taken the view that it was not open to the Petitioner to raise that plea once again as the earlier order has become final and the defect has been cured. Reference has been made to various decisions which were relied by the respective parties to take this view. In so far as the issue of bona fide requirement is concerned, the Appellate Court observed that, in fact, this issue has not been challenged by the original tenant. In any case, the Appellate Court addressed itself to the merits of the contentions and has taken the view that the Plaintiffs have established their bona fide and reasonable requirement of the suit premises. Even the issue of comparative hardship has been examined by the Appellate Court and the Appellate Court has found that the Petitioner has other premises in his occupation and, therefore, no hardship would be caused to the Petitioner, if the decree for possession is granted, whereas the Plaintiffs would suffer comparative hardship since there is no other accommodation available with the Plaintiffs. This view taken by the Appellate Court is the subject matter of challenge in the present writ petition.

4. The first point raised by the Counsel for the Petitioner is that the Plaint was not signed by the Plaintiffs for which reason the same was defective and was not maintainable and no decree could be passed on the basis of such a defective proceedings. The next point argued is with regard to the finding on the issue of bona fide and reasonable requirement as well as comparative hardship.

5. Coming to the first point, undisputedly the plaint was not signed by the Plaintiffs when it was filed on 24.1.1975, but signed only by their Advocate. However, when this plea was raised by the Petitioner for the first time before the Appellate Court, immediately thereafter the Plaintiffs filed application before the Appellate Court; and that Court granted permission to sign the plaint. That said Application was contested by the Petitioner, nevertheless the Appellate Court by its order dated 27th Sept., 1999 allowed the Plaintiffs to sign the plaint. The Appellate Court, therefore, thought it appropriate to permit the Plaintiffs to sign the Plaint. That order, undoubtedly, was not challenged by the Petitioner. However, once again the same plea was raised before the Appellate Court at the time of final hearing of the Appeal. The Appellate Court, in my view, rightly observed that since the order passed on 27th Sept., 1999 was allowed to become final, therefore, the same question cannot be repaginated at the time of final hearing of the Appeal. No fault can be found with the said reasoning. However, the argument before this Court is that is open to the Petitioner to challenge the order passed on 27th Sept. 1999 in the present writ petition and this Court will have to examine the correctness of the said order. However, on perusal of the reliefs claimed in the Writ Petition it would be seen that no relief for setting aside the order dated 27th Sept., 1999 has been specifically prayed. To get over this, the Counsel for the petitioner submits that in ground No. (d) of this petition the Petitioner has raised the point about the said defect in the plaint. In my view, this argument is one of desperation. If the Petitioner was serious enough in challenging the order passed on 27th Sept., 1999, he ought to have done with utmost diligence. It was open to the Petitioner to specifically challenge the said order in this petition, which has not been done. Moreover, on examining the said ground on which the Petitioner relies to contend that he could challenge the said order before this Court, it would be seen that there is no clear challenge to the reasons recorded by the Appellate Court in its order dated 27th Sept., 1999, but vague and general contention has been raised. In my view, the ground as articulated would not be sufficient to question the correctness of the order dated 27th Sept., 1999. The Appellate Court has rightly discussed the ratio of the decisions to observe that provisions of Order 6 Rules 14 and 15 are merely procedural and such defects can be cured even at a latter stage of the proceedings. In this view of the matter, the first contention raised on behalf of the Petitioner, to my mind, is wholly misconceived and the same is, therefore, rejected.

6. Coming to the correctness of the findings recorded by the two Courts below on the issue of bona fide requirement, needless to mention that the scope of interference in writ jurisdiction under Article 227 would be very limited, for this Court cannot reappreciate the evidence. There can be no doubt that both the Courts below have held that the Plaintiffs have established their bona fide and reasonable requirement. That finding of fact will bind all the defendants including the Petitioner who has been inducted in the demised premises as unlawful sub-tenant. No doubt, the Trial Court has answered the issue of bona fide and reasonable requirement by a very short reasoning, as would be seen from para 17 of its order, however, the Appellate Court has adverted to all the relevant factors which are germane for deciding this issue. The discussion on this issue can be found in paras 25 to 32 of the order of the Appellate Court. To reassure myself, as to whether the conclusion reached by both the Courts below on the issue of bona fide and reasonable requirement, was appropriate, I permitted the Counsel to made through the relevant evidence on record. On close examination of the said evidence, to my mind, no other conclusion can be reached. The fact remains that the Plaintiffs family is a big family and their need is growing. Whereas, the present accommodation available with the Plaintiffs is only three rooms. It is well established position that what the landlord has to show is that there is some need or necessity, the need or necessity need not be absolute need or absolute requirement. The landlord is the best Judge of his residential requirement, and he has complete freedom in that behalf. It is no concern of the Courts to dictate to the landlord as to how, in what manner, he should live or to prescribe for him a residential standard of their own. There is no law which deprives the landlord of the beneficial enjoyment of his property. Ordinarily speaking, the landlord, if he says he wished to use premises of which he is the owner, he is entitled to do so. What the Rent Act endeavours to provide for, is the case of a landlord who evicts the existing tenants in order that he may let them to another tenant at a rent, or exact a higher rent from the tenant or a threat of eviction. This legal principle has been discussed in Shankar Bhairoba v. Ganpati Appa 2001 (4) Mh.L.J. 131, (see paras 23 to 25 of the said Judgment). If the matter is examined in this perspective, I see no reason to take a different view.

Now the question that arises is on the issue of comparative hardship, it is well settled position that both the parties have to adduce evidence for their respective case and that the Court will have to weigh the stand taken by the respective parties. In so far as the Plaintiffs is concerned, there is clear assertion in the evidence that they do not have any other accommodation to meet their present as well as future growing requirement except the demised premises. On the other hand, it has come on record that the present defendant No. 3 has other suitable accommodation available. Both the Courts below have discussed this aspect of the matter at length. The Appellate Court has considered this aspect of the matter from para 34 onwards and held that the Petitioner has several premises available at his disposal and no hardship would be caused to him. There is no reason why this Court should interfere with the said finding of fact. Understood thus, I see no reason to over-turn the findings on the issue of comparative hardship, which has been answered by the two Courts below in favour of the Plaintiffs.

8. Accordingly this writ petition fails and the same is dismissed with costs all throughout.

9. The Counsel for the Petitioner later on mentioned the matter requesting that the operation of the order passed by this Court be stayed for some time. Since the Counsel for the Respondents had already left the Court by that time, he was given liberty to mention after giving notice to the Respondents. He states that he has already given notice to the Respondents, which has been served at 3.15 p.m., that the matter would be mentioned at around 4.30 p.m. However, none appears for the Respondents when the matter was mentioned. In the interest of justice I would think it appropriate to grant four weeks time to the Petitioner as prayed for.