Kantilal Ravji Mehta And Anr. vs Sayarabai Chhaganlal Kering
2002 Latest Caselaw 651 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. Both these writ petitions can be disposed of by a common Judgment. Writ Petition No. 2670 of 1986 is filed by the tenant, whereas Writ Petition No. 2325 of 1987 is filed by the landlady (For the sake of convenience parties will be referred to as landlord and tenant respectively).

2. At this stage, it is relevant to point out that originally Writ Petition No. 2670 of 1986 was filed jointly by Kantilal Ravji Mehta and Harshad Kantilal Mehta. However, Kantilal Ravji Mehta died during the pendency of the writ petition and since no steps were taken, writ petition as against him (petitioner No. 1) has been dismissed on 15-4-1999. Accordingly, the said petition survives only by Harshad Kantilal Mehta.

3. Both these writ petitions are filed under Article 227 of the Constitution of India challenging the Judgment and Decree passed by the 4th Additional District Judge, Pune dated 2nd April, 1986 in Civil Appeal No. 62 of 1985. It is common ground that the tenant was inducted in the premises situated at Survey No. 696/1, Munjeri Bibvewadi, Pune-9 in Adinath Society, Flat No. D 80, Satara Road, Pune, pursuant to a leave and licence agreement dated 10th Nov. 1972 in favour of Harshad Kantilal Mehta. Since the licence was subsisting on 1st February 1973, said Harshad Mehta became the protected tenant by virtue of the amendment of the Bombay Rent Act. According to the landlady though premises were let out to Harshad Kantilal Mehta who was inducted as licensee, in due course of time, he left for abroad for the good and the premises were thereafter, occupied by his father Kantilal Mehta and other family members. It is the case of the landlady that the tenant and the occupants who were in possession of the premises failed to pay monthly rent as agreed upon. In the circumstances, the landlady issued a demand notice on 15th Oct. 1980 demanding arrears of rent since 14th Nov. 1972 to 30th Oct. 1980. By the said notice, the landlady also called upon the tenant as well as his father to vacate the suit premises by the end of 30th December, 1980. After this notice was received by the tenant, reply was sent on 12th November, 1980. According to the tenant, they were not in arrears and, in fact, they had paid all the dues, but the landlady had never issued any rent receipts. It is not in dispute that after the receipt of demand notice the tenant did not offer any amount as demanded in the suit notice nor raised any dispute regarding the fixation of standard rent in respect of the demised premises within one month from the date of receipt of the notice. Be that as it may, since tenant did not offer any amount as demanded in the said notice, the landlady instituted suit in the Court of Small Causes at Pune, being Civil Suit No. 704 of 1981. This suit was filed for possession of the suit premises on two grounds. The first ground was default and the second ground was for bona fide and reasonable requirement. Both the parties adduced evidence and the Trial Court after considering the materials on record was pleased to dismiss the suit by order dated 27th April, 1984. According to the Trial Court, the tenant was not in default. Even the ground of bona fide and reasonable requirement has been negatived by the Trial Court. The matter was therefore, carried in Appeal by the landlady before the District Court, Pune, being Civil Appeal No. 62 of 1985. The Appellate Court on the other hand has reversed the finding recorded by the Trial Court and instead held that the tenant was defaulter within the meaning of Section 12(3)(a) of the Act. The Appellate Court also held that the landlady has established the ground of bona fide and reasonable requirement of the demised premises for her son Ravi and his family. However, insofar as the issue of comparative hardship is concerned, the Appellate Court answered the same in favour of the tenant and for which reason decree was confined only with regard to the ground of default. In the circumstances, tenant filed Writ Petition No. 2670 of 1986 challenging the finding with regard to the ground of default as well as the issue of bona fide and reasonable requirement, whereas the landlady has filed Writ Petition No. 2325 of 1987 challenging the finding on the issue of comparative hardship and claiming decree on both the grounds.

4. We shall first advert to the ground of default. According to the learned counsel for the tenant, the suit notice dated 15-10-1980 is not a valid notice as it does not fulfil the requirements of a valid demand notice required for the purposes of Section 12(2) of the Act read with Section 106 of the Transfer of Property Act. He submits that Section 12(2) of the Act mandates that no suit for recovery of possession on the ground of default against tenant shall be instituted until the expiration of one month next after the notice in writing of the demand of standard rent or permitted increases have been served upon the tenant in the manner provided under Section 106 of the Transfer of Property Act. The grievance is not with regard to the manner or mode of service as required under Section 106 of the Transfer of Property Act, but the only point argued before this Court is that on reading the suit notice as a whole it is incomprehensible that the same can be said to be a demand notice at all. According to him, the demand notice must be given to the tenant for the purpose of providing him an opportunity to save herself from the consequence of default by paying the rent. He submits that what is necessary to be seen is whether the suit notice provided such opportunity to the tenant to clear up the outstanding amount. This submission is resisted by the counsel for the landlady on the ground that this question has been raised for the first time before this Court in writ jurisdiction and the same cannot be permitted. It is further argued that this grievance has not been made either in the reply given through the Advocate to the suit notice nor in the written statement nor the tenant insisted for framing of necessary issue before the Courts below. He therefore, contends that this question being mixed question of fact and law, the same cannot be allowed to be agitated for the first time in writ jurisdiction. In support of this submission, reliance has been placed on the decision of this Court reported in 7970 Mh.LJ. Note 39 in C.R.A. No. 199/1966 decided on 26th Feb. 1970. In that decision, it was held that the defendant who had failed to take a plea of propriety, sufficiency or validity of the notice in his written statement cannot be allowed to raise the same for the first time before the High Court. Mr. Mandlik for the landlady has also placed reliance on the decision of the Apex Court in the case of Mrs. Labhkuwar Bhagwani Shaha and Ors. v. Janardhan Mahadeo Kalan and Anr., wherein the Supreme Court has observed that the jurisdiction or otherwise when it is purely a question of fact requiring adjudication on appreciation of evidence, High Court could not convert it into even a mixed question of fact and law entitling it to interfere. He further submits that in any case if the suit notice is read as a whole, that surely would stand the test of a demand notice required for the purposes of Section 12(2) of the Act. To counter this submission learned counsel for the tenant has relied on the decision , Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd. and Anr. In paragraph 19 of this decision, the Apex Court has observed that even a mixed question of fact and law is raised for the first time but when it goes to the root of the jurisdiction, then it is the bounden duty of the court to examine the same.

5. Insofar as the question of validity of the suit notice is concerned, in my judgment, it was incumbent upon the tenant-defendants to specifically plead that aspect at least in the written statement. For, the plea was not one of inherent lack of jurisdiction of the court but of invalidity of the suit notice. It would involve purely a question of fact requiring adduction and adjudication of evidence as to whether the tenant could have discerned and discharged his liability to pay the arrears as demanded and was aware about the consequence of default or nonpayment of that amount, but took no steps to extricate himself from the rigours of the law within the prescribed time. It is not in dispute that no such plea has been taken in the written statement. No doubt, the Apex Court in the case of Municipal Board, Shaharanpur (supra) has observed that when the question involved is a mixed question of fact and law and goes to the root of the jurisdiction of the court, it will be the duty of the court to examine the same. It is also true that if this court was to hold that the suit notice is not a valid demand notice as required under Section 12(2) of the Act then it would necessarily follow that no suit could be instituted on the ground of default against the tenant by the landlady on the basis of such invalid demand notice. In that sense, the suit as presented in such a situation would be barred by law. However, in the present case, it is seen that no specific plea has been taken in the written statement with regard to the validity of the suit notice or the jurisdiction of the Court or for that matter regarding the maintainability of the suit as presented. It is well settled that relief not founded on the pleadings should not be granted. In Sri Mahant Govind Rao v. Sita Ram Kesho and Ors. reported in (1898) 25 IA 195 (PC) it has been so observed. The Apex Court in Trojan & Company v. R. M. N. N. Nagappa Chettiar has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; Without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. This being the settled legal position, it will not be open for this court to examine the question of validity of the suit notice raised for the first time before this court.

6. Be that as it may, on close scrutiny of the suit notice dated 15-10-1980 and on reading the same as a whole, it is incomprehensible as to how that notice cannot stand the requirements of a valid demand notice for the purposes of Section 12(2) of the Act. In this notice, monthly rent agreed upon between the parties has been stated. It is also expressly stated that the tenant has not paid any rent for the period from 14-12-1972 to 3040-1980. Notice also clearly calls upon the tenant to vacate the suit flat and hand over possession thereof as well as to forthwith pay the entire outstanding amount referred to therein. In that sense the notice is clearly a demand notice in writing. The argument advanced on behalf of the tenant however, proceeds on the premise that the notice does not mention that the tenant should pay the amount within the statutory period of one month and, therefore, he contends that, no opportunity has been offered by the landlady to the tenant to save himself from the consequence of default in paying the arrears. In this context reliance is placed on the decision of the Allahabad High Court in the case of Ram Krishana Prasad v. Mohd. Yahia . To my mind, this decision is on the facts of that case. The same will have no application to the present case where we are examining the suit notice in the context of the provisions of Section 12(2) of the Bombay Rent Act. What is required under the provisions of our Act is only a notice in writing of the demand of the standard rent or permitted increases to be served upon the tenant under Section 106 of the Transfer of Property Act and, on expiration of one month after the said notice is served upon the tenant, the landlord gets a right to institute suit for possession on the ground of default. The learned counsel for the landlady has rightly relied on the decision in Bhagabandas Agarwalla's case to contend that it is well settled that demand notice must be construed not with a desire to find faults in it, which would render it defective, but it must be construed but resmagis valeat quam pereat. It is held that a notice must be one which in clear terms terminates the tenancy and calls upon the tenant to vacate the suit premises on expiration of the statutory period. The learned counsel for the landlady has also rightly relied on another decision of the Apex Court in Rakesh Kumar and Anr. v. Hindustan Everest Tool Ltd. . Even in this decision the Apex Court has observed that the proper way of reading the notice and the appropriate logical way in which notices of such type should be read is that it must be read in common sense -- Point of view bearing in mind how such notice was to be understood by ordinary people. Applying the above principles and on reading the notice as a whole, I have no hesitation in taking the view that the suit notice is a proper demand notice giving particulars of the arrears of rent for more than 6 months but it also specifies the amount to be paid. Besides, this notice also determines the tenancy by calling upon the tenant to hand over vacant and peaceful possession of the demised premises before the expiration of 30th December, 1980 which is after about more than one month from the date of the notice. In that sense no fault can be found with this notice. Whereas, on giving liberal construction this is clearly a demand notice as required for the purposes of Section 12(2) of the Act. As rightly contended by the counsel for the landlady that the tenant obviously fully understood the nature of notice and the same was replied through his Advocate on 12th November, 1980. The tenant chose only to dispute the factum regarding non payment of rent as alleged in the suit notice and nothing more. Even before the first court as well as before the Appellate Court this was the only plea pressed into service on behalf of the tenant, that the tenant was not in arrears as contended. No contention regarding the validity of notice as is pressed now was advisedly taken before the courts below.

7. Insofar as the findings of fact recorded by the Appellate Court on the question of default, the learned counsel contends that, the same is perverse. On the other hand on close examination of the said findings recorded by the first court as well as the Appellate Court, I see no reason to take a different view of the matter. The Trial Court essentially held that the evidence of defendant No. 2, namely, father of the tenant was reliable. In that evidence the stand taken on of time any rent receipt was issued by the landlady. The Trial Court accepted that defence on the specious argument that the landlady has not issued even a single receipt. The Trial Court held that the tenant was in dire need of the premises and such a tenant will never commit mistake of not paying the rent to the landlady that too from the first month of tenancy. On the other hand, the Appellate Court has analyzed the pleadings as well as the entire evidence on record. The Appellate Court has overturned the said finding recorded by the Trial Court. The finding of fact recorded by the Appellate Court, which is the final court on finding of fact, is that the defence of the defendants was palpably false. The Appellate Court on careful examination of the defence of defendant No. 2 has held that his oral evidence and the documentary evidence in the shape of entries in the passport would clearly establish the position that the tenant's father Kantilal Ravji Mehta (D.W. 2) had left for abroad on 22nd February, 1978 and returned to India on 16th April, 1984. According to the Appellate Court, it is incomprehensible that during this period the plea that D.W. 2 offered rent to the landlady can be accepted at all. The Appellate Court, therefore, observed that in any case for the period between 20-12-1978 onwards till D.W. 2 returned to India and until issuance of the suit notice on 15-10-1980, there was absolutely no cogent evidence forthcoming from the defendants about payment having been made to the landlady. Although D.W. 2 during his evidence has made an effort to explain the position by stating that during his absence his sons Kanak and Divya Kumar were paying rent to the landlady, however, those two sons have not been examined for the reason best known to the tenants. In other words, there is absolutely no legal evidence to show or for that matter even to suggest that from February, 1978 till the issuance of suit notice i.e. 15-10-1980 any attempt has been made to pay the rent directly to the landlady. The Appellate Court, therefore, found that this period was obviously more than six months which would be sufficient to decree the suit for possession in favour of the landlady on the ground of default. Moreover, the Appellate Court has rightly observed that at no point of time the tenant ever made grievance regarding the non-issuance of receipts. The Appellate Court has observed that on the other hand if that was the position the tenant would have surely made grievance as it is an offence under Section 26 of the Act. The learned counsel for the tenants, no doubt, made serious efforts to persuade me by taking me through the entire evidence, but on examination of the reasons recorded by the Appellate Court with regard to the ground of default in Paragraphs No. 12 and 13 of the Judgment, I see no reason to interfere in exercise of writ jurisdiction. It is well settled that some error here or there committed by the fact finding court can be ignored. The finding of fact recorded by the Appellate Court cannot be said to be perverse or manifestly wrong. It is founded in the evidence on record. It is a possible view of the matter. Accordingly, I answer the ground of default against the tenant and, therefore, affirm the decree passed by the Appellate Court on that ground.

8. Reverting to the ground of reasonable and bona fide requirement the Trial Court has essentially answered the said issue against the landlady being impressed by matters which were not germane for deciding the said issue. What is held by the Trial Court is that the landlady's husband was in the business of construction and had constructed almost 28 flats. Moreover, the plaintiff's son was already occupying one of the flat constructed by her husband, though claiming to be a tenant of her husband. The Trial Court has muddled the reasoning with regard to issue of bona fide and reasonable requirement as well as hardship together. On the other hand, the Appellate Court in Paragraph 14 after applying the settled legal position has answered the same in favour of the landlady. The Appellate Court has examined the need for residence of plaintiff's son and his family. The Appellate Court has observed thus :

"Thus the possession of the suit premises is claimed for the residence of Pravin. Pravin is also examined in this case and he also stated that he wants to have his separate residence because the present premises are not sufficient. The evidence of Pravin shows that at present they are in possession of the ground floor from Suraj bunglow. His evidence shows that the premises consist of 2 bed rooms, one hall, one kitchen and one store room. The family of the plaintiff consists of plaintiff, her husband, her two sons and their wives and children. Considering the number of persons in the family it does show that the premises which are in possession of the plaintiff are insufficient. Thus, the evidence of plaintiff's witness Chhaganlal and Pravin goes to show that their need is bona fide and genuine..."

"....Applying these principles to this case, it is seen that the plaintiff's son Pravin stepped into the witness box and stated that he required the suit premises for his own use and occupation. It is also seen that he passed his M. S. Examination and also started his own hospital at Pune. Pravin is married and he wants to reside with his wife and daughter separately. So, from the evidence of Chhaganlal and Pravin, it is proved that the plaintiff wants the possession for the residence of Pravin and this need is quite genuine and reasonable. It is not mere desire of the plaintiff to seek possession of the suit premises for the residence of Pravin. The evidence of Pravin shows that the present premises are not sufficient and adequate to accommodate all the family members. The evidence of Pravin is not challenged by the defendants. On the other hand, defendant No. 2 in his cross examination admitted that Pravin is married. Therefore, I find that, in this case the evidence does show the element of necessity and the plaintiff really wants the premises for their own use and occupation. So the requirements for proving reasonableness and bonafideness as per Section 13(1)(g) of the Bombay Rent Act is proved by the plaintiff from the evidence of Chhaganlal and Pravin. I therefore, find that the plaintiff proved that they want the suit premises reasonably and bonafide for their own use and occupation."

The Appellate Court has analyzed the evidence on record and has reached at the above conclusion. The legal position as to the approach to be adopted by the court while examining the issue of bona fide and reasonable requirement is well settled. Recently, I had an occasion to examine the same in the case of Mr. L. V. Venkateswaran in Writ Petition No. 3816 of 1989 decided on May 3, 2002. The Appellate Court has rightly applied those settled principles to answer the issue of bona fide and reasonable requirement in favour of the landlady. This being pure finding of fact recorded by the final fact finding court, to my mind, cannot be interfered in exercise of writ jurisdiction.

10. One of the contention raised to assail this finding was that the landlady who was claiming possession of the suit premises has stated in the grounds in the writ petition filed by her bearing W.P. No 2325/1987, that the suit premises were required to start a hospital of her son. It is contended that in such a situation this court ought to answer the issue of bonafide and reasonable requirement against the landlady. In this context reliance was placed on the ruling , The Laxmi Co-op. Bank Ltd. v. Mohan Govind Doiwanji and Anr. and , Bapubhai Mohanbhai v. Mahila Sahakari Udyog Mandir to contend that the court will have to take into account whether the requirement alleged and proved by the landlady is not forbidden by any law. Reliance was placed on Section 25 of the Act to contend that the proposed user mentioned in the writ petition would be prohibited on account of the said provision as residential premises cannot be converted into non-residential premises. In the first place, some stray statement made in the writ petition cannot undo the pleadings on the basis of which courts below proceeded to adjudicate the controversy and has recorded finding of fact in that behalf. There can be no dispute that no such plea was taken before the courts below that the premises would be used for hospital of the son. On the other hand, the plaintiff pressed for eviction on the ground that the premises were required for residential purpose of her son Ravi and his family. Moreover, it is not understood how Section 25 will have application to the present premise. On plain reading of Section 25 the same would apply only to such premises which on the date of coming into operation of the Act 1947, were used for residential purpose. That provision obviously does not apply to all premises but the application is restricted only to those premises which were being used for residential purposes when the Act of 1947 came into force. There is nothing on record to show that the suit premises was in existence when the Act came into force on 31st March, 1948. Understood thus, Section 25 cannot non suit the plaintiff in this case. Moreover, as observed earlier, the requirement pressed into service and which has been accepted by the court below is not for the purpose of hospital but obviously for the residence of landlady's son Ravi and his family. In the event, the landlady after getting possession of the demised premises, does not use the premises for the purpose for which decree has been obtained, in that case the remedy for the tenant is one under Section 17 of the Act. The Scheme of Section 17 has been considered by the Apex Court in , Ramkubai (Smt.) deceased by L.R. s and Ors. v. Hajarimal D. Chandak and Ors. and the Apex Court has observed that section provides complete protection to the tenant in the event landlord used the premises for some other purpose in contravention of that provision. Therefore, the apprehension expressed by the tenant before this court that in view of the grounds stated in Paragraph 4 of the writ petition, the issue of bonafide requirement be answered against the plaintiff, to my mind, is devoid of any substance.

11. It is relevant to note that, the Trial Court no doubt examined the bona fide and reasonable requirement but answered the said issue against the plaintiff mainly on the ground that the plaintiff did not enter into witness box and, therefore, the ground was not proved by the plaintiff herself. For this purpose, the Trial Court has relied upon the legal position as it obtained at the relevant time.

However, the Appellate Court has reversed that reasoning and relied on the subsequent decision of this court reported in 1984 Mh.LJ. 253, Nathulal v. Nandubai. That it is not necessary that the landlord himself should step into the witness box but even if person for whose benefit ground is pressed into service steps into witness box would be sufficient. Even the Apex Court in the recent case , Ramkubai (Smt.) deceased by LR.s and Ors. v. Hajarimal D. Chandak and Ors. in Paragraph 9 has taken the view that even the general power of attorney holder a person for whose benefit the ground was pressed if offered himself into witness box to support the case of personal requirement would be sufficient.

12. One of the contention raised by the counsel for the tenant is that the approach of the Appellate Court was improper as it proceeds on the basis as if the Trial Court had decided the matter with bias against the landlady. However, to my mind, it will not be necessary to burden this Judgment with that contention because I have examined the reasonings of the Appellate Court both with regard to the ground of default as well as bona fide requirement independently and the learned counsel was unable to successfully assail the ultimate conclusion reached by the Appellate Court.

13. The next issue that needs to be addressed is comparative hardship. No doubt, both the courts below have answered the same against the landlady and have proceeded on the premise that the plaintiff's witness has admitted that there is insufficient accommodation and it is very difficult to secure residential premises in Pune. To my mind, that reasoning is completely wrong and in fact contrary to the evidence on record. The Courts below have selectively referred to only one sentence and not read the evidence of P.W. 1 as a whole. In Paragraph 11, the witness states that; "There is dearth of accommodation in Pune. Nobody is letting out his premises now a days. The flats are available on ownership basis. The flat similar to the suit flat, is worth Rs. 11/2 to 2 lacs. It is not true that the defendant No. 1 cannot purchase the flat and he is not financially sound." In other words, the witness has clearly asserted that other premises "are available in the locality and in the city, on ownership basis. It is nobody's case that no alternative premises are available at all. The Apex Court in has observed that the onus is on the defendant to plead and prove that no other accommodation would be available to the tenant in the city. The fact that other accommodations are available is not in dispute but what is contended is that they are available on ownership basis and not on rental basis. Again for the purpose of comparative hardship what is to be seen is that is it possible to conclude that no other premises will be available to the tenant if the decree is passed. In the present case, it is established from the record that the tenant is working abroad and has permanently settled there. Moreover, even the tenant's father who was impleaded as defendant No. 2 was frequently visiting his son abroad. In that sense, the tenant can be said to be financially sound and capable of purchasing the premises on ownership basis which only valued Rs. 1,50,000/-to 2,00,000/- at the relevant time. Recently, I had an occasion to examine the legal position in regard to the approach to be adopted for answering the issue of comparative hardship in the case of Mr. L.V. Venkateshwaran (supra). Applying those principles, I have no hesitation in the present case to answer the issue of comparative hardship against the defendants-tenants. To my mind, there is further reason for answering this issue against the tenant. It is not in dispute that the defendant No, 1 who was the original tenant has already settled abroad long back. When the Court examines the issues of comparative hardship, it is only in the context of hardship that will be caused to the tenant and not to the other occupants of the premises. Since the tenant has already settled abroad, Court will have no option but to answer the issue against him that there can be no hardship to the tenant. Moreover, it is established from the record that the tenant's father who was impleaded as defendant No. 1 had filed writ petition before this court as Petitioner No. 1 being W. P. No. 2670/1986, but died during the pendency of this writ petition; and since no steps were taken, the petition came to be dismissed as against him for non prosecution on 15-4-1999. In that sense, there is no one to espouse the cause of the original Petitioner No. 1. Even for this reason the Court will have no option but to answer the issue of comparative hardship in favour of the landlady.

14. Accordingly, the decree passed by the Appellate Court on the ground of default is confirmed. The finding recorded by the Appellate Court on the issue of comparative hardship is set aside and that issue is answered in favour of the landlady and against the tenants. As a consequence, the landlady is entitled for decree also on the ground of bona fide and reasonable requirement. The suit, therefore, is decreed in toto. Writ Petition No. 2670/1986 is, therefore, dismissed and Writ Petition No. 2325 of 1987 is allowed, for the reasons recorded hereinabove. No order as to costs.