Anil P. Bansal And Anr. vs Central Bank Of India And Ors.
2002 Latest Caselaw 917 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 Small Causes Court on 29th April, 1992 in Appeal No. 220 of 1991. The premises in question are block Nos. 7-A and 7-B on the 7th floor of the suit building Chandramukhi on plot No. 316, Block No. IIP Backbay Reclamation, Nariman Point, Bombay 400021. The petitioners were the joint owners of the suit flats alongwith their aunt. The suit flats were subsequently transferred in favour of the petitioners after they became major. The respondents were inducted in the suit flats on leave and licence basis. But, since licence was subsisting on 1st February 1973, they became protected tenants by virtue of section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The present suit was filed by the petitioners for possession of the suit flats before the Court of Small Causes, Bombay being R.A.E. Suit No. 1496/4851 of 1983 on the ground of bona fide and reasonable requirement. The trial Court by judgment and decree dated July 12, 1991 decreed the suit and directed the respondents to deliver the vacant and peaceful possession of the suit premises accepting the need set up by the petitioners for their business as bona fide and reasonable requirement. Even the issue of comparative hardship has been answered in favour of the petitioners by the trial Court. Against the said judgment and decree the respondents carried the matter in appeal before the Appellate Court being Appeal No. 220 of 1991. The Appellate Court on the other hand has reversed the decree and dismissed the suit by the impugned judgment and decree. According to the Appellate Court, the suit was required to be dismissed because pleading with regard to need set up by the petitioners was not in respect of computer business for plaintiff No. 1 and diamond business for plaintiff No. 2, which however, has been asserted only during the evidence. The Appellate Court has, therefore, found that the case as proved has not been pleaded; and, for which reason, was of the view that the suit was required to be dismissed. Before the Appellate Court, it was argued on behalf of the respondents that, in any case, the requirement of the petitioners was not reasonable. That argument also found favour of the Appellate Court and the Appellate Court in para 17 has held that the petitioners could carry on their intended import export business in the premises situated in Maker Chambers which was admeasuring about 1300 sq.ft. In so far as, the question of comparative hardship is concerned, even that issue has been answered in favour of the respondents as the respondents would suffer inconvenience and hardship. It is this decision which is the subject matter of challenge in the writ petition under Article 227 of the Constitution of India.

2. The learned Counsel for the petitioners contends that the tests applied by the Appellate Court are wholly improper and opposed to the settled legal position. In so far as the view expressed by the Appellate Court that the petitioners have not pleaded the case regarding the requirement for computer business, and diamond business the learned Counsel contends that in fact the pleading as filed before the trial Court was sufficient to answer the issue in favour of the petitioners. He further contends that it was not obligatory on the part of the petitioners to plead about the nature of business and if that be so, the reasons recorded by the Appellate Court cannot be sustained. Reliance has been placed on the decision of the Apex Court in the case of Raj Kumar Khaitan and others v. Bibi Zubaida Khatun and another, to support the above contention. The learned Counsel has also placed reliance on the decision of this Court in the case of Commander Anand V. Badve v. G.M. Amphray Laboratories, reported in 1986 Maharashtra Rent Control Journal page 284 in particular para 6 thereof. The learned Counsel has also relied on the decision of the Apex Court in the case of Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College and others, to contend that, undisputedly, in spite of vague pleadings filed before the trial Court, no grievance was made by the respondents-defendants with regard to vagueness of pleadings. Moreover, it is argued that, in any case, issue regarding reasonable and bona fide requirement was framed and the parties having understood each other's case thoroughly well proceeded with the trial. Further, the respondents/defendants allowed the petitioners to lead evidence on that issue without any demur; and, if that be so, such evidence cannot be over looked and the Court will be obliged to consider the requirement as pressed into service not only on the basis of the pleadings but also in the context of the legal evidence which has come on record. It is further contended that in any case, the trial Court has not confined the finding with regard to the business of computer and diamond business, as is found by the Appellate Court, but has accepted the case of the plaintiffs that the suit premises were required for business of import and export business for various commodities. It is argued that, so far as the need set up by the petitioners being bona fide and genuine has not been doubted by the respondents or for that matter by the Appellate Court. It is, therefore, contended that the petitioners had established their need to be genuine and bona fide. It is further contended that, in so far as, the reasonableness of their need was concerned, the trial Court has analyzed the evidence on record and has answered the same in favour of the petitioners, whereas the Appellate Court has dealt with the same only in para 17 to hold that the petitioners would carry on their business in the premiss at 127 Maker Chamber even though it has adverted to the fact that he had no concern with the said premises. It is, therefore, contended that the approach adopted by the Appellate Court was manifestly wrong and cannot be sustained. In so far as the issue of comparative hardship is concerned, the learned Counsel contends the even that has been improperly decided by the Appellate Court. On the other hand, contends the learned Counsel that the trial Court has rightly considered the relevant factors and applied the correct test. The learned Counsel has placed reliance in Mst. Bega Begaum v. Abdul Ahad Khan, case to contend that the Appellate Court has not applied the tests enunciated in that decision to the present case. In as much as, the petitioners have not only pleaded but also proved in the evidence that they have no other premises of their own in possession for establishing their business coupled with the fact that no case has been made out by the respondents-defendants that it was impossible to get another accommodation in the same city. It is therefore, contended that in view of the materials on record, the issue of comparative hardship can be answered only in favour of the petitioners and against the respondents.

3. On the other hand, the learned Counsel for the respondents contends that the pleadings as filed before the trial Court with regard to the ground of reasonable and bona fide requirement are absolutely vague and therefore, no fault can be found with the conclusion reached by the Appellate Court that on such pleadings no amount of evidence would be of any consequence. The learned Counsel contends that the pleadings as filed are mere reproduction of the statutory provision with regard to the ground of reasonable and bona fide requirement and nothing more. In as much as, the petitioners have not specified the nature of requirement at all. The learned Counsel further contends that in any case, if this Court was to take the view other than the one taken by the Appellate Court, then the proper course was to remand the matter to the Appellate Court for reconsidering the issue of reasonable and bona fide requirement. As, in his submission the Appellate Court has mainly decided the matter on the basis of lack of pleadings against the petitioners. He further contends that the issue of comparative hardship has been recorded by the Appellate Court and the Appellate Court has recorded finding of fact in that behalf which cannot be interfered in writ jurisdiction under Article 227 of the Constitution of India. The learned Counsel further contends that the petitioners have also instituted another suit for the relief of possession after coming into force of Maharashtra Rent Control Act, 1999 and in such a situation, the present proceeding cannot be continued.

4. Having considered the rival submissions, I shall first deal with the last plea taken on behalf of the respondents that the petitioners have instituted another suit being Suit No. TE/229/274/2000 for possession of the suit premises. But, to my mind, that would not preclude this Court from proceeding to consider the present writ petition. I have recently examined similar plea in the case of R.B. Fanibunda v. Nocholas of India Ltd., in W.P. No. 6306 of 1996 decided on July 9, 2002. For the reasons already indicated in the said decision, it will not be necessary to elaborate on that aspect of the matter. Suffice it to point out that I have negatived that plea.

5. That takes me to the merits of the controversy involved in this case. As is seen from the judgment of the trial Court, the trial Court has adverted to all the relevant materials on record, including the pleadings and the evidence adduced by the respective parties. On analyzing the said materials, the trial Court has answered the issue of bona fide and reasonableness of the need set up by the petitioners in favour of the petitioners. That is a finding of fact recorded by the trial Court. However, the Appellate Court has over turned the said conclusion mainly on the premise that there was no pleading whatsoever regarding the nature of business relating to computer and diamond business which was so deposed during the evidence. Before I proceed to examine this contention, it would be apposite to advert to para 6 of the plaint wherein the petitioners have stated about their requirement which reads thus:

"Plaintiffs submit that they require the premises referred to hereinabove bona fide for their use and occupation for the purpose of their business. Plaintiffs submit that they have no place for their business in Bombay and they require the premises for establishing their business in Bombay. Plaintiffs are engaged in the business of export and import of various merchandise and also in business of sale and purchase of silver and various other commodities including the business of indenting of the purpose of import and export. Plaintiffs submit that the defendants area nationalized Bank and have vast and unlimited resources at their disposal for providing an adequate alternate premises and no hardship will be caused to the defendants in the event of a decree for possession and ejectment being passed against the defendants in respect of the suit premises and the balance of hardship is in favour of the plaintiffs, who find it very difficult to procure suitable premises for their business of the nature indicated above and the Honourable Court will consider the comparative hardship for the purpose of adjudicating and deciding the suit and passing a decree in favour of the plaintiffs for possession against the defendants."

6. Accordingly, the plaintiffs asserted that they required the suit premises bona fide for their use and occupation for the purpose of their business. The plaintiffs further asserted that they have no place for their business in Bombay and they required the premises for establishing their business in Bombay. Further, that they are engaged in the business of export and import of various merchandise and also in business of sale and purchase of silver and various other commodities including the business of indenting for the purpose of import and export. Looking at the pleadings as a whole, the case as made out by the petitioners was not restricted to any particular business as such. Nevertheless the petitioners have clearly stated that they required the premises for their use and occupation for their business in Bombay. If that be so, at best, it can be said that the pleadings as filed were vague. But, what is relevant to note is that the respondents in their written statement have not made such grievance nor pleaded that they were being misled in any manner nor at any stage asked for further particulars. Be that as it may, the trial Court has not answered the issue of reasonable and bona fide requirement only in the context of the intended business of computer and diamond as such, but generally accepted the case of the plaintiffs that they intended to establish business of import and export for various commodities. If that be so, the basis on which the Appellate Court has proceeded to examine the matter is erroneous and patently wrong. In any case, the approach of the Appellate Court cannot be sustained, for the Apex Court in the case of Rajkumar Khaitan (supra), has held that if it is clear from the averments in the plaint that the landlord wanted to set up their own business in the premises in question that would be sufficient and it was not necessary for the landlord to give the precise nature of business for which he intended to start in the premises. If this is the settled legal position, assuming that the petitioners have not stated about the business of computer and diamond in the plaint, that would be of no consequence because the petitioners in any case have clearly stated that they wanted the suit premises for establishing their business and have further pleaded and proved that they required the same for the business of import and export. It will be relevant to advert to a decision of this Court in the case of Commander Anand v. Badve (supra) wherein this Court had occasion to examine about the practice relating to pleadings filed before the Small Causes Court in Rent proceedings. In para 6 of this decision, it is observed thus :

"In this background, it is not possible to sustain the objection that defendant was at a disadvantage because of the lack of particulars from which the plaint suffered. Incidentally, it should not be lost sight of that case was instituted in the Court of Small Causes at Bombay. Personal knowledge is always a dangerous thing to use in the determination causes by courts. However, one cannot be blind to the practices prevalent. In so far as the Bombay Court of Small Causes is concerned, judicial notice has to be taken of the fact that the pleadings in relation to cases under the Rent Act are very meagre."

This decision has been used in support of the plea that prevailing practice in the Small Causes Court at the relevant time where the present suit was instituted was to plead in the manner as has been pleaded in the present case. In any case, having regard to the principle enunciated by the Apex Court in Rajkumar Khaitan's case. I am inclined to take the view that it was not necessary for the petitioners to plead the specific nature of business that they intended to establish in the suit premises. Moreover, the decision of the Apex Court in the case of Ram Sarup Gupta (supra) would be apposite in the present case, where the Apex Court has observed that the pleadings should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. The Apex Court further observed that sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. Applying the principle of this case and looking to the pleadings as a whole in the present case, it is not possible to take the view that the same was insufficient to answer the issue. Moreover, in Ram Sarup Gupta's case the Apex Court has further held that once the parties have proceeded with the trial on the basis of such pleadings and have produced evidence, then the plaintiff cannot be non suited on the ground of vagueness in pleadings. This principle has been subsequently reiterated by the Apex Court in 1994 Supp. (3) S.C.C. 698 Baba Kashinath Bhinge v. Samast Lingayat Gavali. In the present case, therefore, I am of the view that the pleadings as filed before the trial Court was sufficient to proceed with the trial. Moreover, it is evident that the parties understood each other's case as in the written statement no grievance was made regarding the lack of necessary pleadings or particulars. Further, the parties went for trial and respondents allowed the evidence adduced by the petitioners to be let in without any demur. If that is so, then it is not possible to ignore the evidence which has been allowed to come on record. On the other hand, it will be the duty of the Court to adjudicate the matter on the basis of the entire legal evidence which has come on record. Even assuming that the pleadings as filed by the petitioners can be said to be vague, but once the evidence has been adduced and which has been allowed to be let in then the petitioners cannot be non suited on the ground that the specific business of computer and diamond was not pleaded. Taking over all view of the matter, the basis on which the Appellate Court has non suited the petitioners cannot be sustained.

7. The next argument that will have to be considered is whether the finding of fact recorded by the trial Court on the issue of bona fide and genuine need required to be reversed. According to Mr. Dani the Appellate Court has not considered that aspect of the matter and therefore, matter will have to be remanded to the Appellate Court. However, on close-examination of the judgment of the Appellate Court, it is obvious that the respondents have not challenged the finding recorded by the trial Court with regard to the issue of bona fide need, whereas confined the challenge only in so far as the finding relating to the reasonableness of the need. Perhaps, it is because the trial Court had applied the correct principle while answering the issue of bona fide and genuine need of the landlord. It is well settled the Court cannot start the inquiry by doubting the bona fide need of the landlord and whereas the onus is on the tenant to adduce positive evidence to show that the need pressed into service was mala fide. In the present case, no evidence has been adduced by the tenant to doubt the bona fide need of the petitioners. If that be so, there will be no occasion to entertain the request for remand of the case of the Appellate Court and especially because the finding recorded by the trial Court with regard to the issue of bona fide and genuine need of the landlord has not been questioned at all before the Appellate Court.

8. That takes me to the finding reached by the Appellate Court with regard to reasonable need of the requirement of the petitioners. That has been discussed by the Appellate Court in para 17 of its judgment. Whereas, the trial Court has analyzed the entire materials on record and has found that the need set up by the petitioners was reasonable one. However, the Appellate Court has interfered with that finding on the premise that the petitioners could carry on their business in the premises at 127 Maker Chamber which consisted of total area of 1300 sq. ft. What is relevant to note is that the Appellate Court has adverted to the fact in the same paragraph of its judgment that the plaintiff No. 1 has stated in his evidence that he has no concern with the premises at 127 Maker Chambers. Then the Appellate Court could not have proceeded on the assumption that the plaintiffs will be able to carry on their intended import and export business from the said premises. This reasoning of the Appellate Court is obviously based on surmises and conjectures and perverse. There is no legal evidence to support the said finding. To my mind, once the plaintiff had entered the witness box and stated that he had no concern with the premises at 127 Maker Chambers, then, unless, that evidence was challenged, it was not open to the Appellate Court to overlook that evidence. The learned Counsel for the respondents is unable to point out from the oral evidence of P.W. No. 1 or for that matter the evidence of defendant's witness that such a case was made out or that any suggestion was put to the plaintiffs that they could carry on the intended import and export business in the premises at 127 Maker Chambers. If that be so, the basis on which the Appellate Court has proceeded to answer the issue of reasonableness of the need set up by the petitioners cannot be sustained in law. On the other hand, that is the manifest error committed by the Appellate Court in reaching at that conclusion. The only course open in such a situation is to restore the finding and conclusion of the trial Court regarding the issue of reasonable requirement as well. No other evidence has been brought to my notice which would be relevant to question the reasonableness of the need set up by the petitioners. Accordingly, the finding and conclusion reached by the Appellate Court on the issue of reasonable and bona fide need of the petitioners in respect of the suit premises will have to be reversed and instead the one reached by the trial Court in that behalf will have to be restored.

9. The next question that remains to be examined is relating to the issue of comparative hardship. The trial Court has analyzed the entire materials on record and answered the same in favour of the petitioners. However, the Appellate Court has reversed the same as is seen from para 20 of the judgment. The Appellate Court was more impressed by the fact that the respondents are nationalized Bank having Central office in the same building and if the decree was to be passed that would cause inconvenience and hardship to the respondents. To my mind, the test applied by the Appellate Court is palpably wrong. The Apex Court in the case of Bega Begaum's case (supra) has enunciated the tests to be kept in mind while answering the issue of comparative hardship. Applying those principles, to my mind, the issue ought to have been answered in favour of the petitioners. In as much as the petitioners have pleaded and proved that they have no other accommodation of their own in which they could establish their intended business. On the other hand, the defendants have not established that it is impossible to get any other accommodation in the same locality or for that matter in the same city. The Apex Court has observed that merely because the tenant would suffer some inconvenience cannot be a ground for refusing the decree or answering the issue against the landlord. This is precisely what has been done by the Appellate Court, which cannot be sustained in law. On the other hand, from the materials on record it is seen that the petitioners have no other accommodation of their own coupled with the fact that the respondents have failed to plead and prove that it was impossible for them to secure another accommodation in the same locality or for that matter in the same city. In such circumstances, the issue will have to be answered in favour of the landlords, as observed by the Apex Court in Bega Begaum's case. Understood thus, the reasons recorded by the Appellate Court for answering this issue against the petitioners cannot be sustained and instead the findings and conclusion reached by the trial Court on this issue will have to be restored.

10. Accordingly, this petition succeeds. The impugned judgment and decree is set aside and the decree of possession passed by the trial Court in respect of the suit premises is restored. Rule made absolute in the above terms with costs.

11. At this stage Mr. Dani prays that the petitioners be directed to not to give effect to this order for a period of six weeks to enable the respondents to carry the matter in appeal before the Apex Court. Mr. Abhyankar for the petitioners has resisted this request. However, having regard to the fact that the respondents is a Bank, would obviously require some time to make necessary arrangement. Mr. Abhyankar points out that the respondents have not paid the society out-goings amount to the petitioners. He submits that the stay be granted on condition that the respondents would pay that outstanding amount to the petitioners forthwith. On the other hand, Mr. Dani points out that the request which was made by the petitioners has been considered by this Court in Civil Application No. 6631 of 1995 and order has been passed on 11-10-1996 and which order has been complied by the respondents. According to Mr. Dani there is no outstanding amount payable by the respondents to the petitioners. In the circumstances, I am inclined to grant 6 weeks time to the respondents as prayed for. The petitioners shall not give effect to this order for the period of 6 weeks from today.

All the concerned to act on the copy of this order duly authenticated by the Sheristedar of this Court.