Shrikishan Shivnarayan ... vs Baburao Eknath Sirsath And ...
2003 Latest Caselaw 979 Bom

JUDGMENT

A.B. Naik, J.

l. By this Revision Petition the tenant is challenging the order passed by the Rent Controller, Jalna in Case No.83/RC/CR-43 and order passed by the learned District Judge, Jalna in Rent Appeal No.10/88 whereby the order of eviction which was passed by the Rent Controller came to be confirmed. During the pendency of this revision application, original tenant died and his heirs are brought on record and they are prosecuting the proceedings in this Court.

2. The facts falls in very short compass . The tenant was occupying the premises being House No.3-21-61 at Gandhi Chowk, Old Jalna, where he is running a Kirana shop. Admittedly the premises belonging to the respondent-landlord. The parties to the proceedings will be referred as the landlord and the tenant. It is the case of the landlord that the tenant is occupying the suit premises which consist of three rooms on monthly rent of Rs.43/-. The landlord approached the Rent Controller, Jalna by filing an application U/s 15 of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 on the ground that his family consist of 17 members, his four sons are married and they are educated unemployed and they have to start business and as there is no other accommodation, which will be used for the purpose of accommodation and for setting up business by his sons, the landlord claimed possession of the suit premises on the ground of personal bonafide requirement. The tenancy came to be terminated by the notice dated l.8.1983.

3. On receipt of the summons from the Rent Controller,Jalna, the tenant appeared and contested the claim by filing a written statement. The tenant refuted the allegations made by the landlord and he denied that the landlord has any bonafide need to occupy the premises. It is contended that the landlord desires to seek eviction of the tenant for the residential purpose. As the premises are used for non-residential purpose, the same cannot be used for residential purpose. With these averments the tenant prayed for dismissal of the said application.

4. The Rent Controller on the basis of the pleadings, framed the issue regarding personal bonafide requirement of the landlord and on the basis of the evidence that is produced before him, the Rent Controller came to the conclusion that the landlord has to prove that he requires the premises for bonafide need and occupation for his sons who are unemployed. Accordingly, the Rent Controller found that claim for bonafide need is genuine and accordingly, by the order dated 29.3.1988 the Rent Controller allowed the application and granted 30 days time to vacate the premises.

5. The tenant being aggrieved by the order passed by the Rent Controller, Jalna, preferred an appeal U/s 25 of the Act. It was brought to the notice of the District Judge, during pendency of the appeal that tenant has secured alternate accommodation. Similarly, it was brought to the notice of the learned District Judge that the tenants son is living with his father and carrying a different business. Considering these aspects, the learned District Judge by the order dated 2nd September 1989, confirmed the finding recorded by the Rent Controller and dismissed the appeal filed by the tenant.

6. Being aggrieved by the judgment and order passed by the learned District Judge, Jalna, on 2nd September 1989, the present revision application filed U/s 26 of the Act. Shri Sadavarte, instructed by Shri Bora, learned advocate for the petitioner has made two submissions before me that i) the suit premises which are being occupied by the tenant was used for non-residential purpose and the eviction is being sought by the landlord for use and occupation as residential premises. The premises are being used for non-residential purpose and now the landlord wants to use it for residential purpose. Therefore, he submitted that such an application under the provisions of Section 15(3)(a)(i) and (iii) of the Act is not maintainable. Secondly, he contended that the finding recorded by both the Courts below are not in consonance with the evidence on record. Before considering the merit of this contention, few facts which were brought to the notice of this Court during the pendency of this revision application by the parties by filing C.A.No.2743/91 and C.A.No.3161/93 will have to be noted. The tenant and landlord have produced some documents by way of two Civil Applications in addition the landlord Baburao has filed affidavit on 25.l.1995. These documents are filed on record to show that during pendency of this proceeding of eviction some events have taken place and this Court may take into consideration those circumstances and modify the order on the basis of the new event and to consider whether the need of the landlord is still subsist. I am of the view that subsequent events as brought on record by the parties cannot be considered to judge the bonafide of the landlord at this stage. The bonafides of the landlord has to be considered as on the date of the application for eviction. The parties went to the trial on the basis of the pleadings and on the basis of those pleadings, both the Courts below have appreciated the fact of bonafide need of the landlord and arrived at finding that the landlord has established his bonafides and order of eviction has been passed. It is well settled that the landlord is best judge of his requirement either for residential or for business purpose and he has complete freedom in selecting the properties and the Court for that purpose cannot substitute its own wisdom and non-suit the claim by taking into consideration the subsequent event, the Court cannot direct the landlord to adjust his needs according to the wishes of the tenant. In view of the settled position of law, I am of the view that the additional documents which are filed on record cannot be considered. Similarly, both the Courts below by applying their minds to the facts brought on record reached to the conclusion and accepted the fact that the landlord has proved his bonafide and such finding in Revisional jurisdiction cannot be lightly interfered with. See D. Radhakrishnan and another Vs. M.Loorduswamy and others. Both the authorities below have considered the fact that on the date of application there was need for the landlord to occupy the premises and the said need is accepted as bonafide one. As the litigation is pending nearly for 20 years, there is bound to have some changes in the situation and the circumstances and that by itself, it cannot be held that the need of the landlord has come to an end nor it can be considered at this stage to upset the concurrent findings of fact recorded by both the Courts below. During long pendency of these proceedings if the landlord and for that purpose the family members started occupying another premises or starting new business it cannot be a ground to interfere in the order passed by the Courts below. The view which I am taking is supported by the judgment of the Apex Court in the case of Gaya Prasad Vs. Pradeep Srivastava reported in (2001) 2 Supreme Court Cases 604. The relevant observation made by the Apex Court will have to be noted, which runs thus :

"10. We have no doubt that the crucial date for deciding as to the bonafides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bonafides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow-process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite , because the opposite party succeeded in prolonging the matter for such unduly long period.

13. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A three Judge Bench of this Court in Pasupuleti Venkateswarlu Vs. Motor and General Traders which pointed to the need for remoulding the reliefs on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. This is what learned Judges of the Bench said then (SCC pp.772-73, para 4) "We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed."

15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused."

The facts which are brought on record by the parties by filing the Civil application, even if taken into consideration it is apparent that the tenant has let out upper portion of his house to some laboratory on monthly rent of Rs.1200/-. The tenant has also constructed one house in 1991. The tenant has also purchased a plot in name of his wife and daughter-in-law on 30.5.92. Similarly, the landlord has by the sale deed dt.10.l.1990 has sold a house bearing M.C.No.3-21-67 at Jalna. It has come on record that son of the landlord by name Dipak is suffering from Chronic Renal Failure and he underwent kidney transplantation on 19th August 1989, and to meet the expenses the house is sold. As such this sale deed dt.10.l.1990 is no help to the tenant to defeat the claim of the landlord.

7. It will be appropriate at this stage to refer to the findings recorded by the learned District Judge in his judgment para 9 where the learned District Judge has accepted Deepaks illness. Accepting the findings, in my judgment the facts brought on record cannot be considered to refuse the relief to the landlord.

Both the Courts below accepted that :

(i)Landlords family consist of 17 members;

(ii) present accommodation is insufficient for landlord to accommodate in the house which is in his occupation;

(iii) tenant has his own premises to run his business of Kirana shop;

(iv) tenant has in possession some vacant rooms, wherein he can carry the business. To arrive at this finding, the Courts below have considered the evidence of Baburao and Bhaguji witness of landlord and evidence of Vilas, for the tenant. As these findings are based on evidence on record, it cannot be interfered in this revision and the findings has to be accepted.

8. Now remains for me to consider the submission of the learned advocate. That the tenant is running a Kirana shop in the suit premises and the landlord wants it for residence, which cannot be granted. In my judgment this contention has to be rejected for two reasons; (i) no such contention is raised before the Rent Controller; (ii) the landlord has stated in his evidence that one of his son also wants to start a shop. Even otherwise, also no evidence is brought by the tenant to substantiate this contention. As the landlord is best judge of his need and how to use the premises. The wishes of the landlord will have to be honoured. In my judgment as this contention is not seriously pressed in service by the tenant before both the authorities, it cannot be considered now in this revision. Apart from this aspect in view of the law declared by the Apex Court in case of Kanniammal Vs. Chellaram , the contention is required to be negatived.

9. Considering the law declared by the Apex Court (supra) and the concurrent finding of facts recorded by both the Courts below, I am of the opinion that no jurisdictional error or any error as contemplated U/s 26 of the Act is made out for interfering in the Revision Application. Therefore, in my judgment, there is no substance in the Revision Application.

10. Rule discharged. No costs.

11. Interim relief stands vacated. The tenant shall handover the vacant possession to the landlord forthwith.

12. In view of dismissal of the Civil Revision Application, Civil Applications stand disposed of.