Kiran K. Gujar And Ors. vs Pradip B. Kasavkar And Ors.
2002 Latest Caselaw 525 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 12th Additional District Judge, Pune dated 19th September, 1998 in Civil Appeal No. 243 of 1994.

2. The petitioners are tenants in respect of premises No. 24, New Bazar, Khadki, Pune. The respondents filed a suit against the petitioners for recovery of possession of the demised premises under section 13(1)(l) and 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as "the said Act' for the sake of brevity). The trial Court dismissed the said suit holding that neither of the grounds were established by the respondents. The respondents carried the matter in appeal before the District Court at Pune being Civil Appeal No. 243 of 1994. The Appellate Court on the other hand has allowed the appeal only on the ground of reasonable and bona fide requirement by the impugned order dated 19th September, 1998. The Appellate Court has adverted to the relevant pleadings and the evidence on record and opined that the respondents had established reasonable and bona fide need in respect of the suit premises. Even on the issue of comparative hardship, the Appellate Court recorded finding in favour of the respondents. Accordingly, the appeal came to be allowed and the decree for possession was ordered on the ground of bona fide requirement only.

3. The present writ petition takes exception to the aforesaid view taken by the Appellate Court. The main grievance of the petitioners before this Court is that the pleadings as filed before the first Appellate Court were vague and bereft of any details regarding the nature of need set up by the respondents. The petitioners further contend that there is no proper adjudication of the evidence on record and the Appellate Court has not examined the efficacy of the evidence or recorded a clear opinion as to the reason for accepting or rejecting the same. According to the petitioners, the judgment under appeal is quite mudded and it is difficult to discern as to on what basis finding of fact has been recorded by the Appellate Court with regard to the issue of reasonable and bona fide need of the respondents. The petitioners have further demonstrated that they had filed an affidavit before the Appellate Court pointing out certain subsequent events which had occurred during the pendency of the appeal. It is not in dispute that the said affidavit was, however, filed by the petitioners belatedly viz. beyond the time provided by the Appellate Court. Nevertheless, the Court below has not only adverted to the facts and events stated therein, but has also adjudicated upon the same. The grievance made by the petitioners is that having done that, there was no basis for the Appellate Court to record a finding in favour of the respondents especially when the respondents had not countered the position stated in the said affidavit. In that context, the finding recorded by the Appellate Court that, even assuming that the respondents had recovered possession of additional premises, it cannot be said that it is more than the requirement pressed by the respondents, is seriously assailed. The premise on which this finding is assailed is that the same is based on surmise and conjecture and that the respondents had set up a specific case in the plaint filed before the first Court which does not support this position. Reliance has been placed on paragraph 4 of the plaint to buttress the contention that the claim set up by the respondents was very specific that they required the possession of premises to enable the plaintiffs No. 2 and 3 to start a new business so as to enhance the family income of the plaintiffs. The respondents have further stated in the said paragraph that plaintiff No. 3 wants to get married soon and which would call for an additional income which could be only if the business is started in the suit premises. The argument is that when the plaintiffs had approached the Court with this specific case and the fact that the additional premises which became available to the respondents plaintiffs was of similar area viz. admeasuring 40 ft x 10 ft-whereas the suit premises admeasure 55 ft x 10 ft., it is not possible to comprehend as to how that accommodation cannot be said to have satisfied the need set up by the plaintiffs in the plaint. The petitioners had therefore, made a grievance that the need set up by the respondents before the First Court and which arises for consideration before this Court, has been satisfied by virtue of the fact that the respondents have got possession of the additional premises and instead of utilizing it for the need of plaintiffs No. 2 and 3, has allowed the same to be used for the business in the name of M/s. Kamlesh Fabricators which is stated to be conducted by plaintiff No. 4 who is the married sister. This has been done with purpose. The petitioners, therefore, contend that the need set up by the respondents before the First Court was obviously completely eclipsed, by the event of getting possession of the additional suitable premises and instead of utilizing the said premises to satisfy the stated need has been purposely utilized for some other purpose and for which reason the proceedings which are now pursued by the respondents cannot be said to qualify the test of any subsisting reasonable and bona fide need. In the circumstances, the petitioners submit that the impugned order needs to be set aside and in any case, the matter needs to be remitted to the Appellate Court for further adjudication on the basis of subsequent events which were pressed into service by the petitioners before the Appellate Court, in respect of premises T.S. 52, which is presently used for conducting the business in the name of M/s. Kamlesh Fabricators. Learned Counsel has relied upon decision of the Apex Court reported in T. Sivasubramaniam v. Kashinath Pujary, , and also of this Court in 1979 Bom.R.C. 209.

4. On the other hand, Mr. Jamdar for the respondents contends that the judgment of the Appellate Court is a well considered judgment. According to him, all the relevant aspects of the matter have been considered by the Appellate Court to record a finding of fact that the respondents had established their reasonable and bona fide need. He has relied upon the following extracts spread over at different places in the judgment of the Appellate Court to make good this submission:

"As such, let us see what has been pleaded in the plaint. In connection with this issue, the plea is raised such as---

i) The commercial premises occupied by them was insufficient.

ii) Plaintiff Nos. 2 and 3 want to start business.

iii) The present income is insufficient to meet out the needs of the family; and

iv) Satish i.e. the plaintiff No. 2 was having a desire to perform marriage and, thus, he requires more income. In proof of it, plaintiff No. 1 Pradeep and plaintiff No. 2 Satish have stepped into the witness box and their depositions are at Exhibits 39 and 60 respectively."

"Mr. Shah, Advocate further invited my attention to the deposition of P.W. 1, wherein he has spoken that since there was quarrel between both brothers, Satish needs the suit premises for business, whereas Satish P.W. 2, claims to be a commission agent and added that there is dispute between them and also, the business premises is insufficient for carrying on the business. By pointing out this variance, it was submitted by Mr. Shah that such variance in pleading and a proof must be disbelieved."

"I have given a careful thought to the deposition and have gone through the citation supra and in my opinion, there is no significant variance, as pointed out in citation supra. At the most, we can say that there is some improvement made in the deposition and the requirement about the need of plaintiff No. 2, Satish is there. So far as the deposition of P.W. 2 Satish is concerned, it has come therein that he has purchased one matador, after the institution of the suit, working as commission agent and hiring the matador etc. These can be said to be subsequent developments. It needs to be noted, both the plaintiffs have candidly stated their requirements of suit premises for business purposes."

"In the instant case, I would like to mention the admitted position regarding the commercial premises possessed by both parties. P.W. 1 Pradeep concedes to have occupied the following premises:

1) Amruttulya Hotel 1200 sq.fts.

2) H. No. TS 52 at Khadki, having 3 storeyed, which is consisting of three rooms at each floor. He is in possession of only 2 rooms for residence.

According to him, one room of 6 x 8 is occupied by tenant Dhamale, another 40' x 10' occupied by B.B.T. Corporation, as a tenant."

"Even assuming that they recovered this additional premises even, then it cannot be said that it is more than the requirement posed by the plaintiffs."

"In this regard, D.W. 1, Kiran candidly admitted that they have many business. Not only this, he further admitted that Pradeep i.e. the plaintiff No. 1, required additional income for their maintenance. So also, he states, Satish is married in the year 1987. He has spoken plaintiffs Pradeep and Satish belong to the business community and have experience of business. This would go to show and support the requirements claimed by and on behalf of the plaintiffs."

"Conversely, the plaintiff No. 2, who is married and wanted to start a business, requires more accommodation. Even assuming that they got one premises vacated by B.B.T. Corporation cannot be said that their fulfilment comes to an end. As mentioned earlier, the defendant No. 1, himself admitted that the plaintiffs, are in need to have more business for their maintenance and has also contended to have got more business for his own family."

"The cumulative effect of all above facts is that the plaintiffs have virtually established their bona fide need to use and occupy the suit premises....."

Mr. Jamdar contends that assuming that the petitioners are justified in making a grievance about the acquisition by the respondents of another premises during the pendency of the appeal, however, the same cannot be looked into and ought not to be taken into account for the simple reason that the petitioners had filed an affidavit before the Appellate Court beyond the period given by the Appellate Court and for that matter the said subsequent event would be of no avail and cannot be pressed into service. He further submits that the respondents, in any case, have filed affidavit before this Court and have explained the circumstances to justify that inspite of acquisition of the said additional premises, the respondents need as was pressed into service in the plaint filed before the First Court still subsisted. According to him, therefore, there is no reason to interfere with the finding of fact recorded by the two courts below. He has placed reliance on the decision of the Supreme Court reported in Raj Kumar Khaitan v. Bibi Zubeida Khatun, 1997(II) S.C.C. 412, and Raghunath G. Panhale (dead) by Lrs. v. Chaganlal Sundarji & Co., , and Gayaprasad v. Pradeep Shrivastava, 2001(2) Mh.L.J. 581.

5. After having considered the above submissions, to my mind, it will not be necessary for me to elaborately deal with all the aspects of the matter. No doubt, Mr. Jamdar has relied on the aforesaid extracts from the judgment of the Appellate Court to contend that the respondents have established reasonable and bona fide need in respect of the suit premises. However, the fact remains that before the Appellate Court the petitioners had filed affidavit pointing out certain subsequent events. No doubt, the said affidavit was filed beyond the time provided by the Appellate Court. But, nonetheless, the Appellate Court has not only entertained that affidavit, but has also adverted to the same in the impugned judgment and in fact has adjudicated upon the efficacy thereof to record the finding in favour of the respondents. It is also seen from the records that the respondents have now filed an affidavit before this Court whereby they have clarified the circumstances under which the additional premises acquired by the respondents were required to be made over to plaintiff No. 4 for allowing her to start a business in the name of M/s. Kamlesh Fabricators.

6. Be that as it may, to my mind, in view of the acquisition of additional premises by the respondents which are also admeasuring 40 ft x 10 ft. prima facie, it could have satisfied the need as pressed into service by the respondents in the plaint before the First Court. This aspect of the matter will have to be closely examined by permitting the parties to adduce further evidence, if required and if they decide to do so if so advised in the matter. This would be necessary because if it is found that the explanation offered by the respondents for the first time before this Court on affidavit is inappropriate or false or only a ruse so as to defeat the claim of the petitioners or to enable them to successfully pursue their present remedy, then it would be necessary to examine the matter in that perspective. In similar situation, this Court in the case of Ramprakash Ramsunder Pandey v. Ghevarchand Kapurchand Oswal, reported in 1992 Bom.R.C. 352, directed remand of the case for recording of further evidence in the context of subsequent events pressed into service. I would prefer to adopt the same course in the present case in as much as it will be for the parties to establish that the plaintiffs were justified in permitting utilization of the additional premises for the business of plaintiff No. 4 when it was their specific case in the plaint as filed before the First Court that the suit premises were urgently required for the business of plaintiffs No. 2 and 3; secondly, in the facts and circumstances of the present case, it is possible to hold that upon acquiring additional premises which were suitable for starting the business of plaintiffs No. 2 and 3, the need propounded by the plaintiffs in the suit and as alleged to be proved in evidence has been completely eclipsed. If these issues were to be answered against the plaintiffs, then the Court will have no option but to dismiss the present suit.

7. Mr. Jamdar has relied upon a decision of Apex Court reported in 2001(2) Mh.L.J. 581, in the case of Gayaprasad v. Pradeep Shrivastava, to contend that the subsequent events pointed out by the petitioners cannot be said to be of such a nature that it would completely eclipse the need pressed into service by the respondents before the Court. There is no substance in this contention. In my view, it is seen from paragraph 4 of the plaint that the case set up by the respondents was very specific. It would be apposite to advert to the said paragraph. The same reads thus:

"4. The plaintiffs say that they badly need the suit premises, personally and bona fide for their own use and occupation as the present business place is very small and insufficient to carry on business. It would be possible for plaintiffs 2 & 3 to start a business only if the suit premises are got back. The present income is insufficient to support so big a family of the plaintiffs. The plaintiffs further say that Shri Satish wants to get married soon which calls for an additional income which could come only if the business is started in the suit premises."

On plain reading of the said pleadings, it is seen that the respondents had nodoubt generally stated that the demised premises are personally and bona fide required by the plaintiffs, which would include plaintiff No. 4, for their own use and occupation as the present business place is very small and insufficient to carry on business. However, it is very clearly stated that the proposed new business was to be started by plaintiffs No. 2 and 3 only. If the respondents wanted to set up a plea that plaintiff No. 4 also required the premises to start her own business, then it was necessary for them to clearly allege and prove the same. Plaintiff No. 4 has not been examined and no such evidence has been brought on record before the lower Court. Besides, acquisition of the additional premises was during the pendency of the appeal before the District Court. If the plaintiffs wanted the said premises to be used for the requirement of plaintiff No. 4, who is undoubtedly a married sister, then it was but appropriate that they ought to have taken out necessary application before the Appellate Court. But it is seen that, that fact has come on record only by way of an affidavit and objection raised by the petitioners, who were resisting the claim of the respondents for possession. It is not necessary to elaborate this aspect of the matter, as any observation made may affect the merits of the contentions of the rival parties. All questions with regard to the aforesaid issues are kept open to be decided by the Appellate Court, on whose file I propose to restore this case. The Appellate Court may permit the parties to adduce further evidence if so advised and thereafter proceed to analyse the respective claims and record a clear finding so as to decisively answer the relevant issues, in that behalf. This be done within a period of six months from the date of receipt of writ of this Court. It is again made clear that all questions with reference to the aforesaid issues are left open and any observation made in this judgment may not influence the Appellate Court for recording its opinion on the basis of material which is adduced before it by the respective parties.

8. Accordingly, this writ petition partly succeeds in above terms. The impugned order is set aside. The matter stands remitted to the Appellate Court for adjudication afresh in the light of the observations made in this judgment. No order as to costs.

9. At this stage, Mr. Jamdar points out that the suit was filed in the year 1987 and certain subsequent events have taken place which would ensure in favour of the respondents so as to pursue the claim for possession against the petitioners. It will be open to the respondents to take out appropriate application for such relief and if such application is filed, the Appellate Court may entertain the same in accordance with law and also permit the parties to adduce evidence in that behalf and adjudicate upon the same on its own merits in accordance with law.

Parties to act on a copy of this order duly authenticated by the Sheristedar of this Court.