Bismilla Bee vs Mohd.Anwar
2009 Latest Caselaw 84 Bom

                                     1


            IN THE HIGH COURT OF JUDICATURE OF BOMBAY,
                       BENCH AT AURANGABAD




                                                                   
             CIVIL REVISION APPLICATION NO.244 OF 2007

     1.   Bismilla Bee W/o Sk. Chand 




                                           
          Age : 80 years, Occ : Household, 
          R/o House No.1-18-34,
          Manzoorpura, Aurangabad. 




                                          
     2.   Khajamiyan S/o Sk. Chand 
          Age : 52 years, Occ : Labour, 
          R/o As above. 
                                                        Petitioners
          -VERSUS-




                                
     Mohd.Anwar S/o Mohd. Akhtar, 
                    
     Age : 44 years, Occ : Business, 
     R/o Manzoorpura, Aurangabad. 
                                                Respondent
                   
     ------------------------------------------------------
     Mr.A.S. Bajaj, Advocate for petitioners. 
     Mr.P.F. Patni, Advocate for respondent.
     ------------------------------------------------------
      

                               (CORAM : R.K. DESHPANDE, J.)
   



           DATE OF JUDGMENT RESERVED :3rd December, 2009.
           DATE OF JUDGMENT PRONOUNCED :14th December, 2009.





     JUDGMENT : 

1. This civil revision application is preferred

by the original respondents-tenants against whom a

decree for eviction from the suit premises has been

passed by VII Joint Civil Judge, Junior Division,

Aurangabad on 30.12.2002 in Rent Suit No.22/2001, on

the ground of bonafide requirement and same is

maintained in Rent appeal no.2/2003, dismissed by the

District Judge at Aurangabad, by his judgment and

order dated 03.10.2005.

2. The facts leading to this case are as under:-

The respondent is landlord, filed Rent Suit

No.24/2001 in the Court of Civil Judge, Senior

Division, Aurangabad against the applicant-tenant, for

eviction on the grounds of willful default, demolition

of the premises and bonafide requirement. In this

revision, we are concerned only with the ground of

bonafide requirement and in respect of that the

landlord pleaded in the suit that the defendants are

the tenants in the house, which consists of two rooms

with toilet unit. It was pleaded that the respondent-

landlord has five sons and two daughters and the

house, which is in his possession, is not sufficient

to accommodate the entire family. The mother of the

landlord is also residing with him, and he therefore

requires the premises in occupation of the tenant, for

his bonafide requirement of residence. The applicants-

tenants filed their written statement and denied that

the landlord has five sons, two daughters and that his

mother is also residing with him, as alleged. The

applicants-tenants also denied that the landlord

required the premises for his bonafide use i.e. for

his residence purpose.

3. The respondent-landlord filed his affidavit

by way of evidence in support of his claim and stated

that he has five sons and two daughters, and the house

in his possession, is not sufficient to accommodate

the entire family. He also stated that his old mother

is also residing with him and the area in his

occupation, which is having three rooms, is not

sufficient to accommodate the entire family of 10

persons, and, therefore, his need is bonafide and

genuine. He was cross examined on the aspect of total

members of his family, and he stated that he has five

sons and two daughters and was prepared to place on

record the documentary evidence to that effect. The

petitioner no.2 examined himself in support of his

defence and stated in his evidence that the plaintiff-

landlord is in possession of another house, which is

owned by him and the house in his possession is

sufficient for accommodation of his entire family. He

stated that the need putforth by the landlord is not

bonafide. He has further stated that the petitioner

no.1 is his old mother and he is a labourer earning

Rs.400/- to Rs.500/- per month and he has no

alternative accommodation to shift. He has further

stated that he is in occupation of two rooms, open

space, latrine and bathroom and is occupying the same

since last 50 years.

4.

The Trial Court framed the issues as to

bonafide requirement of respondent-landlord and

comparative hardship of the petitioners-tenants. The

Trial Court specifically dealt with the question about

the number of family members of the respondent-

landlord and recorded a finding that the landlord has

proved that his family includes his five children, old

mother, himself and his wife. The finding is also

recorded that the evidence shows the respondent-

landlord is in occupation of two blocks. The further

finding is that the evidence on record suggests that

the demand put forth is reasonable and bonafide, to

meet the demand of his growing family. On the question

of comparative hardhship, the Trial Court recorded a

finding that the petitioner no.1-tenant is the old

lady, whereas, the petitioner no.2 is her son and is

doing the labour work, and these facts have gone

unchallenged. The findings on comparative hardships

are almost in favour of tenants, but the ultimate

order is against them.

5. On Appeal, the Appellate Court recorded a

finding that the landlord has five sons and two

daughters, and the premises in his possession is not

sufficient to accommodate all the family members. It

has further recorded a finding that the old mother of

landlord is residing with him, and therefore, the

requirement put forth is reasonable and bonafide. It

has further recorded finding that although, an attempt

is made by the defendants-tenants that the landlord

was in possession of another house. The said fact has

neither been pleaded nor the said plea has been

substantiated. It has further recorded a finding that

the landlord has purchased the premises with a sole

intention to accommodate the entire family and there

was no suppression of facts. So far as comparative

hardship is concerned, the Appellate Court recorded a

finding that the tenant has put forth his financial

incapacity to acquire suitable accommodation, and if

some time is granted to the tenant to get alternative

accommodation, no hardship will be caused to him, if

the decree of eviction is granted. The Appellate Court

dismissed the appeal and granted three months time to

the tenant to vacate the premises. The applicants are

the original defendants and tenants in the suit

premises, who shall hereinafter be called as

"applicants-tenants". The respondent is a landlord and

original plaintiff, who had filed the suit and shall

hereinafter be referred as `respondent-landlord'.

6. Shri Bajaj, the learned counsel for the

applicants-tenants urged that the landlord is guilty

of suppression of material facts, which amount to

practicing fraud upon the Court, and hence, the need

putforth was not bonafide. He has urged that the

landlord has only two sons, although he has stated in

his application that he has five sons and two

daughters to magnify alleged bonafide need. He has

further urged that immediately before the proceedings

for eviction were filed, the landlord had sold the

part of the property on 03.07.2001 and the said fact

has been suppressed by the landlord. Thus, the conduct

of the landlord is not bonafide. He relied upon the

decision of the Hon'ble Apex Court reported in AIR

1994 SC 853 (S.P. Chengalvaraya Naidu (Dead) by L.Rs.

V/s Jagannath (dead) by L.Rs. and others), more

particularly the paragraph nos.4, 6 and 7 of the said

judgment. He has further relied upon the decision of

the Hon'ble Apex Court reported in AIR 2007 SC 1546

(A.V. Papayya Sastry and others V/s Government of A.P.

And others), more particularly the paragraph nos.22,

24 and 26 of the said judgment. Shri Bajaj further

urged that the trial Court recorded finding on the

aspect of comparative hardship in favour of the

tenant, but ultimately granted a decree. He further

urged that the question of extent of requirement, was

also required to be established and enquiry in respect

of the partial eviction should have been considered;

in view of sub-section (2) of section 16 of the

Maharashtra Rent Control Act, 1999.

7. Shri. Patni, the learned Counsel appearing

for the respondent-landlord has urged that the Courts

below have recorded concurrent findings of fact,

regarding the bonafide need of landlord as well as

comparative hardship of the tenant. The findings are

in favour of the landlord and there is no perversity

pointed out in recording such findings. In respect of

the plea of suppression of facts, he urged that the

tenants had sufficient opportunity to cross examine

the landlord who had entered into witness box and to

bring on record the evidence to substantiate his plea.

He has urged that on the question of number of members

of family, the landlord was cross examined, and the

trial Court has recorded finding that the landlord has

proved that he is having five sons and two daughters.

So far as the sale of property is concerned, he urged

that the said property was sold before institution of

the proceedings and there were no pleadings in the

written statement. He further urged that although, the

sale deed was brought on record, the property was sold

for the treatment of his ailing mother. He further

urged that now at this stage, such evidence and plea,

which is raised for the first time, should not be

entertained. He further relied upon the Judgment of

the learned Single Judge of this Court reported in

2009(9) LJSOFT 160 (Chotumal Bahiramal Sindho since

deceased Through his L.Rs. V/s Baburao Vinayak

Mohadkar (Since deceased) Through his L.Rs.).

Shri.Patni urged that if at all, the premises are not

used, then the tenant can institute the proceedings

under section 18(2) of the Maharashtra Rent Control

Act, 1999.

8. The question of reasonable and bonafide

requirement is governed by section 16(1)(g) and

section 16(2) of the Maharashtra Rent Control Act,

1999 (Hereinafter referred to as "said Act") which is

extracted below :-

"16(1) Notwithstanding anything contained in this Act but subject to the provisions of

section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied-

(a) to (f) *******

(g) that the premises are reasonably and bonafide required by the landlord for occupation by himself or by any person for

whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are

required for occupation for the purposes of the trust;

16(2): No decree for eviction shall be passed

on the ground, specified in clause (g) of sub-section (1), if the court is satisfied that, having regard to all the circumstances

of the case including the question whether

other reasonable accommodation is available for the landlord or the tenant, greater

hardship would be caused by passing the decree than by refusing to pass it.

Where the court is satisfied that no

hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court

shall pass the decree in respect of such part only.

Explanation.- For the purposes of clause

(g) of sub-section (1), the expression "landlord" shall not include a rent-farmer or rent-collector or estate-manager.

9. It can not be disputed that the burden of

proof to establish that the premises are reasonably

and bonafide required, as contemplated under Section

16(1)(g), is upon the landlord. The requirement is

composite one, reasonable and bonafide. The

reasonableness of requirement is connected with the

extent of requirement of the premises by the landlord

whereas, the bonafide requirement relates to the

intention of landlord in seeking eviction and

possession of the suit premises. If the requirement is

not found to be reasonable then no decree for eviction

can be passed. If it is found to be reasonable then,

the question of extent of such requirement will have

to be gone into. Thus, the question of reasonableness

of requirement under section 16(1)(g) is interlinked

with the second part of sub-section (2) of section 16

of the said Act, which is reproduced above.

10. Sub-section (2) of section 16 states that no

decree for eviction shall be passed on the ground

specified in clause (g) of sub-section 16, if the

Court is satisfied that having regard to all the

circumstances of the case, including the question

whether other reasonable accommodation is available

for the landlord or the tenant, the greater hardship

would be caused by passing the decree rather than

refusing to pass it. When sub-section (2) uses the

phraseology "Other Reasonable Accommodation", it is

referable to the premises other than those which are

in possession of the landlord or tenant on the date of

institution of proceedings and it does not relate to

the premises, which are not possessed by the landlord

on the date of filing of application for eviction.

11. The provision of sub-section (2) of section

16, is incorporated for the benefit of the tenant and

therefore, the burden of proving greater hardship, so

as to deprive the landlord of his established right to

seek eviction, lies on the tenant. In this respect,

the decision of the Apex Court reported in 2003(2) SCC

320 (Badrinarayan Chunilal Bhutada V/s Govindram

Ramgopal Mundada) rendered on the provision of Bombay

Rents, Hotel and Lodging House Rates Control Act, 1947

needs to be looked into. The provisions of section

13(1)(g) and Section 13(2) of the said Act, are in

pari materia with the provision of section 16(1)(g)

and Section 16(2) of the Maharashtra Rent Control Act,

1999, which are reproduced earlier. Para 7 of the said

Judgment, which is relevant, is reproduced below :-

"7 A perusal of the scheme of the Act, so far

as the ground of reasonable and bona fide requirement by the landlord for occupation of residential or non-residential premises is

concerned, shows that clause (g) of sub- section (1) of Section 13 contemplates a decree for eviction being passed on proof of

availability of the ground according to law.

In spite of a ground for eviction under Section 13(1)(g) having been made out, the

court may deny the relief of eviction if the issue as to comparative hardship is answered against the landlord and in favour of the

tenant. Thus, in a way, Section 13(2) acts as

a proviso to Section 13(1)(g); the former having an overriding effect on the latter. The burden of proving availability of ground

for eviction under Section 13(1)(g) lies on the landlord; the burden of proving greater hardship so as to deprive the landlord of his established right to seek eviction lies on

the tenant."

In view of the aforesaid decision of the Apex

Court, it is clear that the provision of Section (2)

of Section 16 of the Maharashtra Rent Control Act,

acts as proviso to Section 16(1)(g); the former having

overriding effect on the latter.

12. The Sub-Section (2) of Section 16 of the said

Act is cauched in a negative language. It is an

injunction operating against the Court not to pass

decree of eviction, if it is satisfied that the

greater hardship would be caused to the tenant by

passing the decree, than by refusing to pass it. The

requirement is mandatory and once the satisfaction

contemplated therein is reached, it leaves no choice

to the Court but refuse to pass the decree of

eviction. Thus, even if the Court is satisfied that

the landlord has made out a case of reasonable and

bonafide requirement as contemplated by Section 16(1)

(g) of the said Act, still the Court shall refuse to

pass a decree for eviction of the tenant, if the

satisfaction under sub-section (2) of Section 16, is

attained by the Court.

13. Then comes the second part of sub-section (2)

of section 16, dealing with partial eviction. The said

provision is also in pari materia with the provision

contained in second part of section (2) of Section 13

of the Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947. The decision of Apex Court in

Badrinarayan's case, cited supra also throws light on

this requirement and para 10 and 11 of the said

Judgment, which are relevant, are reproduced below :-

"10. The provisions of the Act do not bar a

partial eviction being ordered rather contemplate a partial eviction specifically-

which would of course depend on the answer to the question-whether it would be enough to

dislodge the tenant from only a part of the premises in his possession, and to what extent, to satisfy the proved requirement of

the landlord associated with consideration of

comparative hardship. If the court is satisfied that the ends of justice would be met if the tenant is not called upon to

vacate the entire tenancy premises but only a part of it, then the court may order partial eviction so that the requirement of the

landlord is satisfied and the tenant is also not deprived of his running business activity. Inasmuch as Section 13(2) entails the consequence of the landlord being denied decree of eviction, wholly or partly, in spite of his having proved reasonable and

bona fide requirement within the meaning of Section 13(1)(g), the burden of proving availability of grounds under Section 13(2)

of the Act is on the tenant. It is expected of the parties to raise necessary pleadings,

and the court to frame an issue based on the pleadings so as to enable parties to adduce evidence and bring on record such relevant

material as would enable the court forming an opinion on the issue as to comparative hardship and consistently with such finding

whether a partial eviction would meet the

ends of justice. Even if no issue has been framed, the court may discharge its duty by

taking into consideration such material as may be available on record.

11. The Act does not lay down any guidelines

or relevant factors based whereon the question of comparative hardship is to be decided. A slight indication is given in the

first para of Section 13(2) that regard must be had to: (i) all the circumstances of the case, (ii) including the question whether other reasonable accommodation is available

for the landlord or the tenant. The expression "other reasonable accommodation" as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The legislature has

chosen it appropriate to leave the determination of issue on sound discretion of the Court."

14. Thus, the requirement under sub-section (2)

of Section 16 of the said Act, is also interlinked

with second part of sub-section (2) of Section 16.

Hence, the entire provision of section 16(1)(g) and

16(2) with the second part has to be read as a whole

and is required to be harmoniously construed to give

effect to every provision made therein. The object of

introducing the provision of second part of sub-

section (2) of Section 16, is to balance the

requirement under Section 16(1)(g), on one hand and

the satisfaction under Section 16(2), on the other

hand. It casts statutory duty upon the Court to make

an enquiry to the extent of need of landlord even if,

such need is found to be reasonable and bonafide. The

right of landlord to seek eviction on one hand and the

protection granted to the tenant on the ground of

comparative hardship on the other hand, can be

balanced by the Court by making enquiry into the

extent of need of landlord and passing a decree for

partial eviction from the suit premises, to meet the

ends of justice. Such an exercise is required to be

carried out by the Court, irrespective of the fact

whether party demands it or not and this view is

supported by the aforesaid law laid down by Apex

Court, when it says that even if no issue has been

framed, the Court has to discharge its statutory duty.

If this exercise is not carried out by the Court then

certainly, it would result not only in failure to

exercise jurisdiction, but would be a failure to

perform statutory and mandatory duty, resulting in

failure of justice and shall vitiate decree passed.

15. In the light of aforesaid provisions of law,

the findings recorded by the Courts below are required

to be considered. No doubt, there is concurrent

findings recorded by Courts below that the landlord

has established that he has five sons and two

daughters and in spite of having sufficient

opportunity to bring on record the evidence to dispute

the claim of the landlord, the tenants have failed to

bring any material on record. There is no perversity

in recording such finding by the Courts below and a

view taken by Courts below is possible view. Any

challenge to such finding, as raised by Shri.Bajaj the

learned Counsel for the applicants, would amount to

interfering with the disputed questions of facts,

which is not permissible in revisional jurisdiction of

this Court.

16. So far as the question of sale of property by

the landlord on 03.07.2001 is concerned, it was before

institution of proceedings for eviction. On the date

of institution of proceedings, this accommodation

which was already sold and the same was not available

with the landlord. The requirement of Section 16(1)(g)

r/w Section 16(2), is in respect of the disclosure of

the premises/area in occupation/use of the landlord,

on the date of institution of the proceedings. Hence,

non-disclosure of such sale on 03.07.2001, by the

landlord in his application, in my opinion, does not

amount to suppression of any material facts. Apart

from this, there is no pleading by tenant in written

statement in respect of such sale. It is for the

tenant to specifically plead such fact and bring on

record the evidence to establish the animus possidendi

or oblique motive, on the part of the landlord. Even

the sale was prior to institution of proceedings, the

tenant had a full opportunity to raise appropriate

plea in respect thereof and to avail full opportunity,

to place evidence on record. The tenant has, in the

instant case, failed to plead this fact and has

further failed to avail an opportunity provided to him

by the Trial Court. The enquiry in to such questions

involve resolution of disputed questions of facts. If

this plea had been raised by the tenants, the landlord

would have got sufficient opportunity to defend it.

Hence, such a plea can not, for the first time, be

entertained by this Court, in revisional jurisdiction.

17. So far as the question of comparative

hardship is concerned, as pointed out earlier the

Trial Court has recorded almost all findings in favour

of the tenant but the ultimate decision in favour of

the landlord. The Appellate Court has negatived the

plea of tenant, regarding the comparative hardship on

the ground that if the tenant is given reasonable time

to vacate the premises, such eventuality can be cured

or met with. In my opinion, no such finding can be

recorded without any inquiry by the Court. As pointed

out earlier, the requirement of second part of sub-

section (2) of Section 16 regarding the assessment of

extent of requirement of the landlord, is aimed at

striking of balance between the reasonable and

bonafide requirement of the landlord and comparative

hardship likely to be caused to the tenant. This

provision is held to be mandatory. The exercise

contemplated by second part of sub-section (2) of

section 16 is required to be carried out by the Court

itself, to arrive at satisfaction contemplated by

section 16(2); both the parts. There is absolutely no

evidence on record and no discussion in the judgments

delivered by both the Courts below, on this aspect.

The Appellate Court could not have recorded the

finding against the tenant on the aspect of

comparative hardship to the tenant, without carrying

out exercise as contemplated by both the parts of sub-

section (2) of Section 16 of the said Act. In view of

this, the decree passed by the Trial Court, as

maintained by the Appellate Court, will have to be

quashed and set aside and the matter will have to be

remanded back to the Trial Court, for enquiry into the

extent of need of the landlord and the comparative

hardship, likely to be caused to the tenant, because

of complete eviction from the suit premises.

18. In the result, this revision application is

partly allowed. The findings recorded by the Courts

below in respect of reasonable and bonafide

requirement of the landlord under Section 16(1) (g) of

the said Act, is maintained. The matter is remanded

back to the Trial Court to assess the total

requirement of the landlord and to comply with both

the parts of sub-section (2) of section 16 and to

record a finding on the aspect of comparative hardship

likely to be caused to the tenant; either by complete

eviction or by partial eviction from the suit

premises. It is, however, made clear that the findings

as to reasonable and bonafide requirement of the

landlord has not been interfered with by this Court

and the Trial Court shall not make any enquiry in the

said aspect of the matter. No order as to costs.

(R.K. DESHPANDE) JUDGE GAS/cra244.07