Madhukar Punjaram Sonawane & ... vs Gajanan Vithal Khandekar
2009 Latest Caselaw 163 Bom

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO 6034 OF 1991




                                                                                   
    Madhukar Punjaram Sonawane & Another                              ..  Petitioners 

                  V/s.




                                                           
    Gajanan Vithal Khandekar                                          .. Respondent




                                                          
    Mr. R.M. Hardas i/b. P.N. Joshi for the Petitioners 
    Mr. M.K. Katikar for the Respondent 




                                               
                                        CORAM : A.M. KHANWILKAR, J


    JUDGMENT:

ig DATE : 03rd February, 2009.

1. This Writ Petition under Article 227 of the Constitution of India is directed against the judgment and decree passed by the Additional District Judge, Nasik dated 12.07.1991 in Civil Appeal

No.223 of 1989 thereby allowing the tenant's Appeal and setting

aside the decree of possession of the suit premises passed in favour of Petitioner / Plaintiff and instead dismissed the suit filed by the Petitioners / Plaintiffs.

2. The Petitioners had filed suit for possession of the premises situated in Municipal House No. 1173, CTS No. 2482 consisting of

one room ad measuring 15' X 10' on the first floor of said house against the Respondent / tenant amongst others on the ground of bonafide and reasonable requirement of the suit premises for personal use and occupation. The Trial Court decreed the suit for

possession in favour of the Plaintiffs / landlords accepting the

ground of bonafide and reasonable requirement of Plaintiff No.1 for his own use and business. That decision was carried in Appeal by the tenant which in turn has reversed the said opinion of the

Trial Court and instead, dismissed the suit for possession preferred by the Petitioners / Plaintiffs.

3. Before proceeding to examine the matter further, it would

be apposite to advert to the basis on which the Trial Court proceeded to consider the case to answer the issue in favour of

the Petitioners / Plaintiffs. I shall not be burdening this judgment with other issues involved in the suit but confine the discussion to

the ground for possession of the suit premises for personal use and occupation of Plaintiff No. 1. The relevant discussion in this

behalf can be discerned from paragraphs 6 and 7 of the judgment of the Trial Court. The Trial Court has considered the issue of

comparative hardship in Paragraphs 8 and 9. In so far as the case made out by the Plaintiffs, it is common ground that the Plaintiffs have generally stated that suit property were required for

bonafide and reasonable requirement for personal use and

occupation of the Plaintiff No.1. In the plaint, it is clearly asserted that Plaintiff No.1 has no other accommodation for starting his business. The matter went for trial when the Plaintiffs' witness has spoken about the requirement of suit

premises for personal use and occupation of Plaintiff No. 1 to start

his business therein. The Trial Court has adverted to this aspect and then proceeded to examine the matter. It found that admittedly, no other property was standing in the name of

Plaintiff No. 1 except the suit property which was purchased jointly by both the Plaintiffs. The suit premises in occupation of

the Respondent is situated in front portion of the first floor. Behind the said room, there is another room which is also in

possession of tenant namely Baburao Bhavsar. The Trial Court has also noticed that there is a shoe and chappal shop stall in the

name of Bharat Leather on the ground floor which belongs to Plaintiff No. 2. The Trial Court has also found that it is not in

dispute that the Plaintiff Nos. 1 and 2 are real brothers and they are having family business of cobbler and to sell shoes and

chappals. The Plaintiff No. 1 has been examined at Ex 50. That evidence has been analysed by the Trial Court wherein he has

deposed that the house was purchased by him for opening shop in the suit premises and he has no other alternate accommodation for starting his business. He has deposed that he was doing

business of selling chappals and shoes on the road for which he

was prosecuted by the police by filing criminal cases. The fact that Plaintiff No. 1 was prosecuted by the police is established from the evidence of Plaintiff's witness who is an independent person and was responsible to lodge prosecution against the

Plaintiff No. 1. The Trial Court has then noticed that Defendant's

case is that the Plaintiff's father has a shop of shoes and chappals on the ground floor and other places and they have also properties at other places. The Plaintiffs' family was living jointly

and have common house property. This argument has been considered by the Trial Court to hold that there was no material

on record to substantiate the position that the Plaintiff No. 1 had right in any other property for running business. On the other

hand, the evidence would indicate that the Plaintiff No. 1 was staying separately along with his wife and children. The Trial

Court has also adverted to the record which supported the claim of the Plaintiffs that the Plaintiff No. 1 was staying separately as

he had procured separate ration card which established that the place where he was staying along with his wife and children was

different than the place where his father and brother was staying. Taking all these aspects into account, the Trial Court proceeded to

hold that Plaintiffs have established that the Plaintiff No. 1 had no other alternative accommodation except the suit property for running his business and further the requirement of Plaintiff No.

1 in respect of suit premises for his personal use and occupation

deserves acceptance. With regard to issue of hardship, the Trial Court has adverted to the evidence that the Plaintiff No. 1 had stated that the Defendant has his own property bearing CTS no. 3627 which was admeasruing about 92 sq mtrs in which he had

constructed portion only of 10' X 10' . The said house was situated

in Lane called Peth Galli and in same lane, there is office of municipality and weekly bazar of Nangaon town is conducted in front of municipality office. The Trial Court has adverted to the

fact that the property of the Defendant was situated in a crowded locality wherein weekly bazar was held. On that basis, it has

found that the Defendant has alternate accommodation of his own and would not suffer much hardship. Above findings

recorded by the Trial Court have been reversed by the Appellate Court on the reasoning that the suit brought by the Plaintiff

should fail as the plaint does not disclose any particulars as to which business Plaintiff No. 1 intended to run in the suit

premises. The Appellate Court was of the view that mere averment in plaint that the Plaintiffs require possession of the suit

premises for own business is not enough to infer that the Plaintiff has real intention to start his business. The Appellate Court has

referred to the observation of this Court in a case reported in Bombay Rent Cases, 1986 P. 147 [Abdul Alim Vs Vora] in support of the above opinion. The Appellate Court then

proceeded to hold that there was no evidence from which it could

be gathered that the real intention of the Plaintiff was to start his own business in suit premises after getting possession. It, then found that there was no evidence as to whether the Plaintiffs were in need of the premises or what difficulties he had to face for

want of premises. On that reasoning, the Court proceeded to

infer that it was a case of mere desire of the landlords which was not sufficient to order possession of the suit premises.

4. Essentially, on above reasoning, the Appellate Court proceeded to reverse the finding of fact in relation to the factum

of bonafide and reasonable requirement of the Plaintiff No. 1 for his personal use and occupation to start his business. In so far as,

issue of comparative hardship is concerned, even the finding on that issue is over turned by the Appellate Court on a very curious

reasoning. The Appellate Court firstly observed that acquisition of residential premises by the tenant would not militate against

the tenant as the ground for eviction for having acquired alternate suitable premises was applicable only to the residential premises.

It, then, proceeded to observe that the Defendant was conducting his own business since many years in the suit shop and upon

passing decree for possession, he will have to close down his business which would result in causing irreparable loss to him. It proceeded to record that there is nothing in evidence that for

want of premises, the Plaintiff is not in a position to have his own

business or that if possession of the premises is not given, what hardship will be caused to the Plaintiffs. On this approach, the Appellate Court proceeded to reverse the view taken by the Trial Court.

5. The question is: whether the approach of the Appellate Court is manifestly wrong or perverse so as to exercise writ jurisdiction. It is well settled position that in exercise of writ

jurisdiction, this Court will not venture in re-appreciation of evidence and interfere merely because in its opinion another view

was possible. However, the present case is a glaring one which persuades me to take a view that the approach of the Appellate

Court is manifestly wrong if not perverse. In that, in first place, the Appellate Court proceeds to hold that no particulars have

been disclosed in the plaint itself as to which business, Plaintiff No. 1 intended to start in the suit premises. Indeed, the

Appellate Court is right in making that observation in the context of the averment in the plaint but has completely glossed over the

other material which was on record. In the plaint, it is clearly stated that the Plaintiff No. 1 had purchased the house property

with a view to start his own business in the suit premises. Even if, the nature of business is not disclosed, reading the plaint as a whole and the oral evidence adduced by the Plaintiffs, it is not in

dispute that the family business of Plaintiffs was that of cobbler

and selling of shoes and chapples. It has also come on record that Plaintiff No. 1 before shifting to Nangaon was doing business at Rahuri but having suffered loss, decided to shift to Nangaon. The suit property was purchased by the Plaintiffs with a fond hope

that Plaintiff No. 1 would be able to start his business therein.

The fact that Plaintiff No.1 was engaged in doing chapples and shoes business is substantiated from the evidence which has come on record, to wit, that the Plaintiff No. 1 was prosecuted in

criminal cases for conducting that business on a public road. The Appellate Court could not have answered the issue in the negative

inspite of all these material on record and more so, when the facts established by the Plaintiffs in this behalf have not even been

challenged by the Defendant during trial. Suffice it to observe that the Plaintiffs could not have been non-suited on the technical

reasoning that no particulars in the plaint about the proposed business has been disclosed by Plaintiff No. 1. The counsel for the

Respondent / tenant,however, relies on the decision reported in

147 Bom.R.C. 1986 [Abdul Alim Vs Mulshankar Vora]. Even, the Appellate Court was impressed with the observations in the said decision. However, the dictum in the said decision is in the

context of fact situation of that case. In that case, the Court noticed that the Plaintiffs had given notice for possession of the suit premises to the tenant on the ground of personal

requirement, but proceeded to file the suit after over two years

thereafter. Criticizing this aspect, it was observed that lower court failed to notice that neither in the suit notice nor in the relevant paragraphs of the plaint, the Plaintiff had mentioned "for what purposes", suit premises were required. In present case, the

plaint clearly records that the suit premises were required by

Plaintiff No. 1 for his personal use and occupation for starting his "business". It is not as if the purpose of requirement has not been disclosed in the plaint at all. Significantly, in the above

noted reported decision, the Court proceeded to observe that apart from bald mentioning that the suit premises were required

for personal use and occupation no other details were given, which would have enabled the tenant to challenge the claim of

landlord or could have helped the Court in testing whether the landlord' s claim was reasonable and bonafide. That is not the

case on hand. As aforesaid, in this case, the plaint clearly records that the requirement of Plaintiff No. 1 was for his personal use

and occupation to start his own business in the suit premises. What was lacking was only the disclosure of details of business of

selling shoes and chapples which, in my opinion, would make no difference. Those details can be furnished by the landlords in the

evidence, being in the nature of particulars only. The foundation on which the suit proceeded is that the Plaintiff No.1 requires suit premises for his personal use and occupation to start his own

business therein. Significantly, in the above noted decision, the

Court has noted the evidence given by the landlord when he entered the witness box. In his evidence, for the first time, he stated that he wanted to start the hotel business but was not in a position to disclose his qualification and experience that he

possessed to start such hotel business. In the facts of that case,

therefore, the Court proceeded to hold that the evidence of the Plaintiff was not satisfactory to conclude that the requirement was bonafide and reasonable. In the present case, however, sufficient

evidence has been brought on record which plainly substantiates the claim of the landlord that the suit premises were required by

Plaintiff No.1 for his personal use and occupation to start his own business and that he had no other premises where he could do so.

6. The Appellate Court, has then, opined that there is no

evidence about the real intention of the Plaintiff to start his own business in the suit premises. This finding is clearly the outcome

of the surmise of the Appellate Court. As aforesaid,there is ample material on record to establish that the Plaintiffs had proved their

claim that their requirement was bonafide and reasonable. Notwithstanding the circumstances and evidence adverted to by

the Trial Court to answer the point in issue, the Appellate Court has not offered any good reason as to why the Plaintiffs had no real intention to start business in the suit premises . The Trial

Court has rightly adverted to the fact that the Plaintiff has been

prosecuted in Criminal Cases for doing business of selling shoes and chapples on the public road. Obviously, the Plaintiff No.1 had resorted to doing business on a public road for want of another accommodation to start that business of his own. That is

a strong circumstance to support the fact that the Plaintiff No. 1

was keen to start his own business but for want of proper premises had to do so on a public road. It has come on record that the Plaintiff's family business is of cobbler and selling shoes

and chapples. The circumstances, more than establish that the Plaintiff No. 1 had not only a desire but had keen interest in doing

such business. It is well established position that the landlord does not have to prove that his need is absolute need or absolute

requirement, but it is enough for him to establish that his requirement is more than a mere desire. It is also well settled

that the landlord is the best judge of his requirement and it is no concern of the Court to dictate to the Landlord as to how, in what

manner, he should live or prescribe for him standard of its own. That the genuineness of the requirement is not to be on par with

the dire need. The Plaintiffs have clearly established this position from the evidence of Plaintiff No. 1 and attending circumstances

rightly adverted to by the Trial Court. Accordingly, even this opinion of the Appellate Court will have to be discarded being manifestly wrong.

7. The Appellate Court then proceeds to hold that there was no evidence on record as to whether Plaintiff No. 1 was in need of the premises or what difficulties he would face for want of premises. This approach of the Appellate Court as discussed

earlier is manifestly wrong. There was enough material on record

to accept the claim of the Plaintiffs that requirement of Plaintiff No. 1 was not only bonafide but reasonable one for his personal use and occupation of the suit premises to start his own business.

8. The counsel for the Respondent would contend that the

ground for eviction under Section 13(1)(g) of the Bombay Rent Act was available only in relation to the residential premises and

not business premises. Perhaps, what the Learned Counsel intends to submit is that the ground of eviction that the tenant

has secured alternate suitable premises is available only in respect of residential premises and not business premises as is referred to

by the Appellate Court in Para 10 of the impugned judgment. Indeed, the Plaintiffs had asked for possession of the suit premises

even on that ground, but the facts which have come on record in the context thereof, have been considered by the Trial Court to

answer the issue of comparative hardship. It is not necessary to elaborate on this matter except to observe that the argument of the Respondents that ground under Section 13(1)(g) of the

Bombay Rent Act is unavailable in respect of business premises is

preposterous.

9. In the circumstances, I have no hesitation in taking a view that the Appellate Court exceeded its jurisdiction in over turning

the well considered opinion recorded by the Trial Court for

decreeing the suit for possession in favour of the Plaintiffs on the ground that the same was required for personal use and occupation of Plaintiff No.1 to start his own business.

10. That takes me to the question of comparative hardship. The

Trial Court has adverted to the fact that the Respondent / Defendant had his own property in the same locality which were

suitable and would not cause any inconvenience to the Respondent to start his business therein. The Appellate Court on

the other hand, held that the Respondent was doing business in the suit premises for sufficiently long time and asking him to

vacate the same would result in irreparable loss to him. On the same lines, counsel for the Respondent argued before this Court

that greater hardship would be caused to the Respondents. By now, it is well settled that the issue of comparative hardship will

have to be decided keeping in mind the fact as to whether it is possible to take a view that it was impossible for the tenant to secure alternative premises in the same locality. That is not the

case made out by the tenant in the present case. The fact that the

tenant will have to close down his long standing business, can be no basis to answer the same. Besides, the Trial Court has rightly found that the tenant even if he were to start his business elsewhere would not suffer as he was engaged in stitching fine

clothes and had established goodwill in that behalf. Thus, if the

tenant was to shift his tailoring business,he would continue with the same clients and more particularly, as he had alternative accommodation of his own in the same locality. The Appellate

Court has found that the Plaintiffs have not produced any evidence about how the Plaintiffs would enhance their income

and why they require possession of the suit premises for their own business. This approach is manifestly wrong and preposterous

and cannot be the basis to answer the point in issue. As aforesaid, real test is whether it is a situation where it was impossible for

the tenant to get alternative accommodation in the same locality. No such case is canvassed on behalf of the tenant. If it is so, even

the issue of comparative hardship will have to be answered against the tenant.

11. Accordingly, the Petition ought to succeed. In result, the

impugned judgment and decree passed by the Additional District Judge, Malegaon, Dist Nasik dated 12.07.1991 in Civil Appeal No. 223 of 1989 is hereby set aside. Instead, the judgment and

decree passed by the Civil Judge Junior Division, Nandgaon

dated 11.07.1985 in R.C.S.Suit No. 367 of 1980 is restored.

12. Petition is allowed with costs on the above terms.

(A.M. KHANWILKAR, J)