Bhagwan Tukaram Paradeshi, ... vs Vitthal Namdev Varje
2003 Latest Caselaw 986 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. The petitioners who are the original plaintiffs instituted a suit for eviction against the respondent. Briefly stated, the case of the petitioners is that they are the owners and landlords of a property bearing City Survey No. 359 which is an open plot admeasuring 102 square feet. The plot of land was let out to the defendant on a monthly rental of Rs. 40/- and a cess of Rs. 2/-. The respondent is stated to be carrying on the business of preparing wooden boxes for packing. The case of the petitioners is that they were residing in rented accommodation which is unsuitable and insufficient for their purposes. The suit for eviction was, thus, filed on the ground that the suit premises were required reasonably and bonafide for the purpose of constructing a house thereon for the residence of the petitioners. (An additional ground that there was a default in the payment of rent was also advanced. But on this, there is a finding by both the Courts negativating the case of the petitioners.) In so far the first ground is concerned, viz., that the premises were required by the petitioners for the construction of a residential building on the open plot of land, the suit came to be decreed by the IIIrd Additional Small Causes Judge, Pune by a judgment and order dated February 24, 1988. The judgment was, however, reversed in appeal on July 13, 1999 by the IVth Additional District Judge, Pune.

2. While assailing the correctness of the view which has been taken by the Additional District Judge in appeal, Counsel appearing on behalf of the petitioners urged that in the present case what is let out to the tenant was an open plot of land. The contentions of the petitioners was that the land was required by them for the construction of a building for their own residence. The case, therefore, would not be governed by the provisions of Section 13(1)(g) but by Section 13(1)(i) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. Counsel urged that the suit was correctly decreed by the Trial Court on an appreciation of the evidence adduced on behalf of the petitioners. The fact that the petitioners are residing in tenanted accommodation was duly adverted to. The learned Trial Judge was satisfied that the requirement under Section 13(1)(i) had been made out. In so far as the judgment of the Additional District Judge is concerned, it is submitted that ex facie while in the initial part of the judgment the learned judge proceeded on the basis of Section 13(1)(i) being applicable; in the later part of the judgment, the learned Additional District Judge proceeded on the basis that the case under Section 13(1)(g) had not been established. Moreover, Counsel urged that the appreciation of evidence in paragraph 10 of the plaint is perverse and called for the interference by this Court under Article 227 of the Constitution of India.

3. In order to appreciate the submission urged on behalf of the petitioners it is necessary to advert to the provisions of Section 13(1)(g) and 13(1)(i) respectively. Section 13(1)(g) postulates a ground for eviction where the premises are reasonably and bonafide required by the landlord for the occupation of himself or by any persons for whose benefit the premises have been held. The expression "premises" is defined by Section 5(8) to mean any land not being used for agricultural purposes; or, any building or part of a building including the garden, grounds, garages and out houses appartenant thereto. Section 13(1)(i) refers to a case where the premises are land and such land is reasonably and bonafide required by the landlord for the erection of a new building. The provisions of Section 13(1)(g) and 13(1)(i) have been considered in a judgment of this Court in Sohansingh Bharatsingh v. Narhar Narayan Godbole, 1970, Bombay Law Reporter, 282. The learned Single Judge held therein that in Clauses (g) to (hhh) the word "premises" is used to denote a building or structure belonging to the landlord. As against this, in Clauses (i) and (ii) of Sub-section (1) of Section (13) the import of the word "premises" is distinctly restricted to land. Thus in Clauses (i) & (ii) the word 'land' must be construed to mean only open land without any structure of the landlord thereon.

4. In the present case, admittedly, the premises that were let out to the tenant consisted of open land. The case of the landlord, therefore, has to be considered with reference to the provisions of Section 13(1)(i). This is how the learned Trial Judge proceeded. In fact, that is how the Additional District Judge also proceeded in the initial part of his judgment. In paragraph 9, the Additional District Judge held that the case would fall under Section 13(1)(i) and not under Section 13(1)(g). However, in paragraph 10 ignoring what had been held in paragraph 9, the Additional District Judge then held that the plaintiffs have failed to make out a case under Section 13(1)(g). The approach of the learned Additional District Judge was, thus, inconsistent. On merits, both the Courts have adverted to the testimony of plaintiff No. 1. Plaintiff No. 2 is the brother of plaintiff No. 1. Plaintiff No. 3 is the mother of the first two plaintiffs, while plaintiff Nos. 4 to 8 are their married sisters. Plaintiff No. 8 is a cousin who is stated to possess an 8 anna share in the property. In his evidence, plaintiff 1 stated that there are six members in his family consisting of himself,his wife and 4 children. He has stated that they were residing in rental premises which consist of a hut. Having said this, plaintiff 1 then adverted to the situation of the other plaintiffs. In support of the ground for eviction that the premises were required for the construction of a new building, plaintiff 1 produced the application which had been submitted to the Municipal Corporation along with a Map (presumably the Sanctioned Plan) at Exhibit 44 together with a receipt of the Corporation. He deposed that he had the requisite finances for the purpose of construction. A perusal of the cross examination would reveal that none of the crucial statements made in the examination in chief were controverted. In fact, it was the case of the plaintiff that the defendant had alternative business premises at Parvati Darshan and he was not carrying on any business in the said premises at all. That may not be relevant to the question that arises under Section 13(1)(i) but, be that as it may, what is significant is that the evidence of plaintiff No. 1 has remained unshaken in the course of cross examination. The Additional District Judge noted that plaintiff Nos. 4 to 7 are married sisters and are residing in their respective matrimonial homes. Similarly, the Additional District Judge has noted that there was no dispute that plaintiff No. 2 and plaintiff No. 8 were living separately. Even if that were to be so, the learned Additional District Judge then concluded, without any rationale or basis, that the requirement of plaintiff No. 1 who was residing together with 6 members of his family in tenanted accommodation consisting of a hut could not be regarded as genuine. Here again there is no reason why this conclusion was arrived at. Plainly, Plaintiff No. 1 stated that he himself, his wife and four children were residing in a rented one room structure, which was more or less akin to a hut. That evidence has remained uncontroverted. The requirement under Section 13(1)(i) was established.

5. In view of the above discussion, it emerges that the approach of the learned Additional District Judge is misconceived and has resulted in a manifest failure of justice. The Additional District Judge has not been consistent in his finding; whereas in the earlier part of the judgment he has proceeded on the basis that Section 13(1)(i) would apply to the case in hand; in the later part of the judgment, he held that the case would be governed by the provisions of Section 13(1)(g). Plainly, the case would fall under Section 13(1)(i). The appreciation of the evidence by the Learned Additional District Judge is, with due respect, perverse and warrants the interference of this court under Article 227. The requirement of Plaintiff No. 1 for himself and his family consisting of 6 members, has been discarded without any plausible reason. The view which was formed by the Trial Judge, in so far as the ground for eviction under Section 13(1)(i) is concerned, is correct.

6. In the circumstances, the petitioners are entitled to succeed. The petition is allowed and the judgment and order of the IVth Additional District Judge, Pune dated July 13, 1990 is quashed and set aside. The suit for eviction shall accordingly stand decreed in terms of the judgment and order dated February 24, 1988 of the IIIrd Small Causes Judge, Pune. The petition is allowed and rule is made absolute in these terms.