Shri Ashok Babanrao Viskhande And ... vs Shri Murlidhar Ramratan Bhandari ...
2002 Latest Caselaw 891 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition, under Article 227 of the Constitution of India, takes exception to the judgment and decree passed by the 8th Additional District Judge, Pune dated 29th April 1993 in Civil Appeal No. 49 of 1991.

2. The Petitioners are the landlords in respect of shop premises in house bearing CTS No. 849 situated at Shukurwar Peth, Pune. The petitioners instituted a suit for possession of the suit premises against the Respondent-tenants on the ground of reasonable and bonafide requirement, default and unlawful subletting. Besides these three grounds specifically pleaded in the plaint, the petitioners also sought possession of the suit premises on the ground of change of user. The trial Court decree the suit only on the ground of unlawful subletting. However, the Appellate Court has reversed that decree by the impugned judgment and decree, holding that even the ground of unlawful subletting was not established. Even the other grounds have been answered against the petitioners.

3. In this writ petition, the petitioners have assailed the correctness of the findings reached by the courts below on each of the abovesaid grounds which were pressed into service before the trial Court.

4. In so far as the ground of unlawful subletting is concerned, the learned Counsel for the petitioners contends that the Appellate Court has applied wrong test in concluding that the partnership deed in question was genuine and valid and, therefore, concluded that there was no unlawful subletting. Respondent No. 1 is the original tenant, whereas the Respondent No. 2 has been impleaded on the assertion that he has been unlawfully inducted in the suit premises as sub tenant by the Respondent No. 1. The defence of the Respondent No. 1 was that it is not a case of subletting but the defendant No. 2 Respondent No. 2 herein along with the defendant No. 1-Respondent No. 1 have formed a partnership firm and were in possession of the suit premises as such. The trial Court held that the partnership deed was not genuine for the reasons noted in its order. However, the appellate Court has analysed the relevant clauses of the partnership deed and, in its judgment, in particular paras 24 to 26 thereof, found that it is not possible to hold that the partnership deed was not genuine. The appellate Court, inter-alia, found that there is no prohibition in any law that the partners should also share losses equally. According to the Appellate Court even when the partners agreed only to share in profits and one of the partner was to exclusively share losses, that by itself cannot be a ground to doubt the genuineness of such a partnership deed. The Appellate Court further held that various circumstances, including that the fact that the Respondent No. 1 was experienced businessman of 65 years of age, whereas the Respondent No. 2 was only beginning his career at 23 years of age coupled with the fact that both the partners have brought capital in equal share and that the Respondent No. 1 was to share profits in the ratio of 65:35 and other attending circumstances, were clearly indicative of the fact that the partnership entered into between the Respondents was genuine one. The Appellate Court has also adverted to the fact that the partnership firm is registered with the Registrar of Firms and that the returns are regularly filed before the Income Tax authorities as well as Sales Tax authorities. The Appellate Court has also considered the fact that there is no evidence that the defendant No. 1 is not in possession of the suit premises, or that the defendant No. 2 was in exclusive possession thereof. Thus, taking totality of the circumstances into account the Appellate Court has found that there is no reason to doubt the partnership between the Respondents. The Appellate Court has also adverted to the relevant clauses in the partnership deed, including that which provides that there would be no assignment or parting with tenancy rights vested in Respondent No. 1 in favour of the Respondent No. 2 and the Respondent No. 1 would continue to pay monthly rent to the landlords out of him personal contribution. It is in this backdrop the Appellate Court held that the partnership was genuine one and there is no unlawful subletting within the meaning of provisions of the Bombay Rent Act.

5. The learned Counsel for the petitioners, however, placed reliance on the decision of this Court reported in 344 Bom R.C. 1987 Bachansing Dulasing Sikh and Ors. v. Rasubi w/o Shaikh Ismail Sikikar and Ors. and contends that the partnership deed in question is a camouflage and the Court will see through the said camouflage and hold that there has been unlawful subletting in favour of the Respondent No. 2. However, this decision, to my mind, is clearly distinguishable. In that case the court found as follows:-

"First, the entire control of the business is left defendants 2 and 3 Clause 12 begins with the proclamation that all the partners shall have a right to take part in the conduct of the business. That the truth comes out in the very next line, because of ill health and old age, the task of running the business is placed upon the shoulders of defendants 2 and 3. The larger amount of time and energy is to be devoted by defendant No. 3 and for this reason, a higher share is allotted to him vis a vis defendants Nos. 1 and 2. Defendant No. 2 and 3 are to provide the entire capital required for the running of the business. This is made clear in Clause 8. Clause 9 which absolves defendant No. 1 from the liability to contribute towards capital explains that this is due to the rented premises viz. the suit shop and his running business, being made available for the running of the business by the firm. Clause 13 makes defendants 2 and 3 entirely liable to maintain the accounts."

6. On the other hand, in the present case, the Appellate Court has recorded the finding of fact, on examining the relevant materials on record including the partnership deed and oral evidence, and found that the partnership between Respondents was genuine and therefore there is no question of unlawful subletting. It is not possible to over-turn the said finding of fact in exercise of writ jurisdiction. The fact situation in the present case is entirely different than the reported case which is pressed into service by the petitioners, as is seen from the extracted portion of the said judgment. In the circumstances, I am not inclined to interfere with the findings and conclusion reached by the Appellate Court in so far as ground of unlawful subletting is concerned.

7. The learned Counsel for the petitioners, however, contends that on plain language of Clauses 12 and 13 of the partnership deed, it is possible to take the view that the Respondent No. 2 was alone to conduct the business and was put in exclusive possession of the suit premises. The Appellate Court has considered that aspect of the matter. However, to my mind, on plain reading of the said clauses it is not possible to take that view. In any case, the Court will have to take the totality of the circumstances into account while considering the question as to whether the partnership deed is genuine or not and on taking that approach it is not possible to doubt the findings of fact recorded by the Appellate Court in that behalf.

8. That takes me to ground of bonafide requirement. According to the learned Counsel for the petitioners the conclusion reached by the two courts below against the petitioners on this issue is unsustainable for the simple reason that the courts below have applied wrong test for deciding the said question. It is contended that the landlord is the best judge of his cause and that the petitioners had clearly set out the reasonable and bonafide need in the plaint as well as the depositions in that behalf during the trial. If that be so, the court could not have doubted the bonafides of the landlords. In so far as the factum of reasonable need is concerned, the learned Counsel contends that it has come on record that the family of the petitioners was big family consisting of three brothers. According to him it has also come on record that the petitioner No. 1 was doing business of pan shop and that the petitioner No. 2 was unemployed at the relevant time. He submits that in the plaint it is very clearly asserted that the suit premises were required for the requirement of the plaintiffs i.e. petitioners Nos. 1 and 2 herein. In so far as the requirement of petitioner No. 1 is concerned, it is stated in the plaint that the present pan shop premises were insufficient as it were admeasuring only 4' x 3'. In so far as the Petitioner No. 2 is concerned, it has been stated that he was unemployed and he would start some convenient business in the suit premises. Even the oral evidence adduced before the Court in support of this plea is on the same uses.

9. However, the two courts below have analysed the evidence and other materials on record and have recorded concurrent findings of fact that the petitioners have failed to establish reasonable and bonafide requirement. The Appellate Court has discussed this ground in para 30 of the judgment. The Appellate Court has found that it was not possible to accept the said plea of the petitioners because, during the evidence, the case which was made out by the petitioners is that, the suit premises would be required as present hotel business conducted by the petitioners' brother Uttam was inadequate. The Courts below have considered that aspect of the matter and found that there is absolutely no evidence that the additional premises were required for the hotel business of Uttam. In so far as the requirement of the Petitioner No. 1 is concerned the Appellate Court has found that the Petitioner has accepted in evidence that he was fully occupied in pan shop from morning 9-00 a.m. till 11-30 p.m. and it was flourishing business and in that shop the petitioner No. 1 has employed persons to assist him. Besides, his other family members were also helping him in that business. In this backdrop both the courts below have found that need set up by the Petitioners is neither reasonable nor bonafide. This will have to be considered in the light of the fact that the suit premises is admeasuring about 400 sq.ft. and nothing has been brought on record to show that the present premises were inadequate or that the petitioner No. 1 intended to start pan shop in the suit premises and he would require the entire premises for that purpose. If that be so, it is not possible to over-turn the finding of fact recorded by the courts below even in respect of ground of reasonable and bonafide requirement.

10. The learned Counsel for the petitioners, however, contends that the requirement of the petitioners No. 2 could still be pressed into service and that aspect of the matter cannot be overlooked. The courts below have examined that aspect of the matter and have found that the petitioner No. 2 does not undertake any work independently and was working with the petitioner No. 1. What is relevant to note is that the petitioner No. 2 has not been examined to establish his reasonable and bonafide need. No doubt the petitioner No. 1 has entered the witness box but he has not deposed about as to what is the need of the Petitioner No. 2, except vaguely stating that the petitioner No. 2 was unemployed and would start some convenient business in the suit premises. In such a situation it was necessary that the person for whose need the premises are claimed as reasonable and bonafide requirement should have been examined as he was the best person to establish his need. That has not been done in the present case. In the circumstances, it is not possible to find fault either with the approach or with the finding recorded by the courts below on the issue of reasonable and bonafide requirement.

11. That takes me to the ground of default. It is not in dispute that demand notice was issued on 1-10-1986 claiming arrears of rent from August 1986 only. If that be so, then there was no cause of action for instituting a suit within the meaning of Section 12 of the Bombay Rent Act; inasmuch as Section 12 mandates that no suit shall be instituted unless the demand notice issued by the landlord claiming arrears of rent for a period of more than 6 months prior to issuance of such notice. If that be so, there is no cause of action for instituting the suit on the ground of default. In the circumstances, both the courts below have rightly negatived that ground.

12. The last ground which is pressed into service is that of change of user. The trial court has found that the ground of change of user has not been specifically pleaded in the plaint and for which reason it thought it appropriate to negative the same. However, it is contended on behalf of the petitioners that although the ground was not specifically pleaded in the plaint but evidence was adduced by the parties with regard to that ground and coupled with fact that even the Appellate Court has considered the said ground on merits, it will be necessary to examine the correctness of that finding. To my mind, since the ground has not been specifically pleaded in the plaint is was not necessary for the Appellate Court to examine the same on merits, oral evidence adduced by the parties in that behalf, notwithstanding. It is well settled that the Court would grant relief on the basis of case as pleaded before the trial Court and any amount of evidence in respect of ground which is not pleaded cannot be looked into. It is not a case that the ground has been vaguely pleaded and evidence was allowed to be let in, but in the present case the said ground, which is a substantive ground for evicting the tenant, has not been specifically pleaded att all. If that be so, it is not necessary for this court to go into the correctness of the findings recorded by the Appellate Court. In any case, the Appellate Court has found that ground against the petitioners.

13. In this view of the matter, there is no substance in this writ petition and the same is dismissed with costs all throughout.

Certified copy expedited.