Bombay High Court
Shri Ashokkumar Gurulingappa vs Sidramappa Ganpatrao Mulge on 13 February, 2009
Bench: A.M. Khanwilkar
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.468 OF 1992
Gurulingappa Sharnappa Birajdar, )
since deceased through legal )
heirs and representatives:- )
1) Shri Ashokkumar Gurulingappa )
Birajdar )
2) Basaweshwar Gurulingappa Birajdar )
Both Occ: Business, R/o 455, )
West Mangalwar Peth, Solapur. )..Petitioners.
V/s.
1) Sidramappa Ganpatrao Mulge, )
age 26 years, Occ: Business )
R/o 997, North Kasba Peth, )
Solapur.
2) Suryakant Gurulingappa Birajdar
)
)
)
since deceased though L.Rs. )
2(1) Smt.Shardabai Suryakant Birajdar )
since deceased through Legal heirs. )
2-A. Mahesh Suryakant Birajdar )
Age 42 yrs. Occ.Business )
)
2-B. Meghraj Suryakant Birajdar )
Age 30 yrs. Occ.Business )
Both R/o. 115/23, Bhawani Peth, )
Solapur. )
)
2-C. Mrs.Meenakshi Basavraj Patil )
Age 44 yrs. Occ. Household, )
R/o. Aland, Tal. Aland, Dist. )
Gulbarga, Karnataka State. )
)
2-D. Mrs.Manju Prakash Birajdar, )
Age 40 yrs. Occ.Household, )
R/o Shelgi, Near Janta Bank, )
Solapur. )..Respondent.
Mr.A.A.Kumbhakoni, Counsel with Mr.R.S.Alange for
Petitioners.
Mr.G.S.Godbole for Respondent
CORAM: A.M.KHANWILKAR,J
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2
DATE : FEBRUARY 13, 2009.
JUDGMENT :
1. This Writ Petition under Article 227 of the
Constitution of India takes exception to the Judgment
and Decree passed by the VI Addl. District Judge,
Sholapur dated December 5, 1991 dismissing the appeal
against the decree of possession ordered by the II
Joint Civil Judge, J.D.,Sholapur dated October 9,
1987 in Regular Civil Suit No.1060 of 1982 against
the tenant.
2. Briefly stated, the suit premises is a shop
premises in Municipal House No.882, City Survey
No.3015, West Mangalwar Peth, Solapur. The
Respondent/landlord instituted suit for possession of
the suit premises on the assertion that he was
assisting his father in the business conducted in the
shop premises, which were taken on rental basis by
his father. However, the landlord of those premises
has already instituted suit for possession of the
suit premises. Apprehending that the possession of
the tenanted premises will be lost by his father, the
Plaintiff/landlord wanted the suit premises occupied
by the defendant/tenant for his personal use for
business urgently. Besides asserting this position
in the plaint, the Plaintiff entered the witness box
and restated the requirements being bonafide and
reasonable one. The Trial Court on appreciating the
documentary and oral evidence accepted the plea of
the Plaintiff that his requirement of suit premises
was bonafide and reasonable. The Trial Court then
examined the issue of comparative hardship and
answered the same against the tenant. Consistent
with the said finding, the Trial Court decreed the
suit in favour of the Plaintiff and ordered the
Defendant/tenant
premises within
ig to hand over possession of the suit
three months from the date of the
Judgment. The Appellate Court on reappreciation of
the evidence on record has confirmed the finding of
fact reached by the Trial Court on relevant issues
and therefore, dismissed the Appeal. Against this
concurrent finding of fact reached by the two Courts
below present Writ Petition has been filed.
3. The first argument of the Petitioners is that
the Plaintiff purchased the suit property on 4th
June, 1982 with full knowledge that the tenant was
occupying the suit premises and soon thereafter
proceeded to file the suit for possession on the
ground of bonafide requirement in November, 1982.
The argument is that the background in which the
present suit has been filed clearly demonstrates that
the requirement of the Plaintiff/landlord was neither
bonafide nor reasonable. It was argued that the
landlord ought to have waited for atleast three years
from the date of purchase before instituting suit for
possession of the suit premises on the ground of
bonafide and reasonable requirement. This argument
is devoid of merit. There is no express provision in
the Rent Act which precludes the landlord from
instituting suit for possession on the ground of
bonafide
purchases
and
reasonable requirement soon
the suit property. That by itself
after
cannot
he
be the basis to non-suit the landlord. This legal
position is no more res integra. We can usefully
refer to the decision of our High Court in the case
of Indubai Govind Lad & Ors. Vs. Smt.Anjelinabai
Jitendra Kumar Bafna reported in 2004 Bom.C.R.
596(para 5 thereof), which has examined the effect of
amendment of Bombay Act 61 of 1953 to answer the
point in issue. The Court is obliged to consider the
question as to whether the requirement is bonafide
and reasonable, uninfluenced by that fact. Indeed,
the Petitioners may be justified in contending that
the landlord had full knowledge of the fact that the
suit premises were already occupied by the tenant
when the property was purchased by him. It may
appear as if the landlord purchased the property to
speculate. However, in the present case, two Courts
below have analysed the evidence of the Plaintiff and
have accepted the plea of the Plaintiff that it was
not possible for him to get any other property in the
locality except the house property (in which the suit
premises were situated), in vacant condition or free
for occupation. It is in this background, the Court
below tested the argument of bonafide and reasonable
requirement of the Plaintiffs and have found that
merely
property
because
inspite
ig the
of
landlord
full
purchased
knowledge that
the
it
suit
was
already occupied by the tenant does not militate
against the landlord in the fact situation of the
present case. That is a finding of fact reached by
the two Courts below, which needs no interference in
exercise of writ jurisdiction being a possible view
and consistent with the evidence on record.
4. Counsel for the Petitioners however, rely on
the observations in paragraph-12 of the Apex Court in
the case of Variety Emporium v/s.V.R.M.Mohd.Ibrahim
Naina[(1985) 1 SCC 251].
251] Emphasis is placed on the
observations of the Apex Court where it is noted
that- they do not suggest that a decree of eviction
can never be passed against a tenant but, whether the
provisions of a law specifically require it or not,
the court has to have regard for all the aspects of
the matter before it and the foreseeable consequences
of the order which it proposes to pass. It went on
to observe that it is impossible to subscribe to the
view of the appellate court that the very fact that
the respondent had filed the eviction petitions
immediately after he purchased the property, proves
that the purpose of purchasing the property was to
set up a business there, "whether wholesale or
retail". The
observation of the
relevant to the fact situation of the case before it.
Apex Court is
In that case, the landlord after purchasing the
property proceeded to file seven separate petitions
against seven tenants. That is not the case on hand.
In the present case, the Plaintiff has candidly come
forward to assert that he purchased the suit property
with a fond hope that he would be able to use the
suit premises for his personal use and occupation for
business and urgently required the same in view of
the impending threat of eviction of his father from
the tenanted premises where family business was being
conducted. The suit premises is a small shop
premises. Besides, as aforesaid there is nothing in
the Bombay Rent Act, which would preclude the
landlord who has purchased the suit property to
institute suit for possession soon after he becomes
the owner thereof.
5. Counsel for the Respondents has relied on the
observations of our High Court in paragraph-11 in the
case of Madhusudansingh Laxmansingh Chouhan
v/s.Bhaskar Govind Deshpande[1987 Mh.L.J.487].
Mh.L.J.487]
Suffice it to observe that in the fact situation of
the present case, merely because the landlord has
recently purchased the suit property with full
knowledge
occupied
that
and
the
there
suit
was a
premises
sitting
were
tenant,
already
that,
however, cannot, by itself preclude the landlord from
pursuing remedy of possession of suit property on the
ground of bonafide and reasonable requirement. The
claim of the landlord at best will have to be tested
with some circumspection. The question is whether
the landlord has discharged that burden. The two
Courts below have concurrently on analysing the
evidence on record independently reached at the same
conclusion that the landlord did not have any other
premises to start his business and that there was
impending threat of dispossession of his father from
the premises where family business was being
conducted. In the companion Writ Petition being Writ
Petition No.4492 of 1992 decided today filed by the
Respondent/landlord in relation to the said premises
has been dismissed. That reinforces the position
that the Plaintiff's father was likely to be
dispossessed in view of the said decree of
possession. As a matter of fact, the said premises
which were occupied by the landlord's father have
already been completely destroyed and razed to the
ground in the fire, which took place in October,
2002. Indeed, that has happened during the pendency
of the present Writ Petition. The question is:
landlord,
whether at the time of institution of the suit by the
there was any requirement and whether such
requirement continues to exist even now ? On both
counts the answer is in the affirmative. The issue
will have to be answered in favour of the landlord
keeping in mind the concurrent finding of fact
recorded by the two Courts below.
6. It was argued that the Court below having
considered that there was no recital in the sale deed
that the landlord was purchasing the suit property
with intention that he would later on claim
possession from the sitting tenant in respect of suit
premises. This is an argument of desperation. The
fact that such recital is not found in the sale deed
or conveyance deed executed in favour of the landlord
cannot be the basis to hold that the requirement
stated by the landlord is not bonafide or not
reasonable. The question as to whether the
requirement is bonafide and reasonable has to be
answered on the basis of the evidence produced by the
parties at the trial. In the present case, both the
Courts below have accepted the claim of the landlord
that he has no other premises to fall back upon and
the premises was most suitable for the business of
the landlord, as the same were situated in the
locality,
business.
which
ig is known for sarafi
The finding of fact so reached by the two
or Goldsmith
Courts below cannot be said to be manifestly wrong or
perverse.
7. Insofar as issue of comparative hardship is
concerned, even the conclusion reached by the two
Courts below on the said issue will have to be
upheld. The Appellate Court has rightly noted that
the defendant/tenant has not made any efforts to
secure alternative accommodation nor it has come on
record that it is impossible to get suitable
accommodation in the nearby locality. Once it is
found that the Plaintiff/landlord has no other
premises which can be used for his personal use and
occupation and in absence of any evidence to suggest
that it is impossible to secure alternative premises
in the locality, the issue of hardship should
necessarily be answered against the tenant. The fact
that the tenant has acquired goodwill on account of
business conducted in the suit premises can be no
basis to deny the relief of possession to the
landlord. That consequence is inevitable. The
Courts below have also found that the financial
position of the tenant was sound.
8.
appearing
Much
emphasis
for the
was placed
Petitioners
by the
about
Counsel
the
nonavailability of the premises to the Petitioners
herein. This argument has been rightly countered by
the Counsel for the Respondents by pointing out that
it is the Respondent No.2 who had appeared before the
lower Court as Defendant's witness. He deposed not
only for himself but on behalf of the other tenants
including present Petitioners. Now for the first
time, the argument of nonavailability of suitable
accommodation is canvassed by the Petitioners by
taking a plea that the premises bearing House No.164
is exclusively that of the Respondent No.2 and the
Petitioners have no concern. The argument will have
to be stated to be rejected. For, the question of
comparative hardship cannot be examined in the
context of the possession of the heirs of the
original defendant but that of the original defendant
himself. The fact that after demise of the original
defendant all properties owned and possessed by him
have been partitioned and taken over by the concerned
legal heirs leaving no independent accommodation to
the Petitioners herein cannot be the basis to answer
the point in issue. The documents on record as have
been referred to by the Courts below would clearly
indicate that the tenants had other premises of his
own such
Municipal
as
House
CTS No.3233, now
No.174, admeasuring
corresponding
64.4 sq.mtrs.
to
The same was purchased by the Defendant in the name
of his son Appasaheb Petitioner No.1 herein. This
admission can be culled out from the evidence of
P.W.1. Besides this property, Exh. 48 would reveal
that CTS No.3223/2, which is corresponding to
Municipal House No.164, has been purchased in the
name of Suryakant admeasuring about 62.2 sq.mtrs.;
and Exh. 41 refers to CTS No. 2605 purchased in the
name of defendant. Having regard to the evidence on
record, issue of comparative hardship obviously ought
to be answered against the tenant.
9. It was argued that the defendant was one of
the partner in a firm and therefore, the suit could
not have proceeded against the Defendant. This plea
is being taken for the first time at the time of
argument. No such plea is found in the Written
Statement, or for that matter any evidence brought on
record by the defendant or the argument canvassed
before the Courts below. On the other hand, it is
rightly pointed out by the Counsel for the
Respondent/landlord that the rent receipt Exh.54 and
55, which are on record would indicate that the same
is issued in the name of Gurulingam himself and not
as partner of any firm.
10. Accordingly this petition is devoid of merits
and should fail. Hence dismissed with costs.
11. At this stage, Counsel for the Petitioners
pray that the execution of the decree be kept in
abeyance for a reasonable period to enable the
Petitioners to carry the matter in appeal. There is
no difficulty in accepting this request, provided the
Petitioners and all other adult family members of the
Petitioners who are associated in the business
conducted from the suit premises shall file usual
undertaking in this court within four weeks from
today. Besides providing for usual clauses in the
proposed affidavit, the affidavit shall also clearly
state that the vacant and peaceful possession of the
suit premises will be handed over by the Petitioners
and persons claiming through them to the landlords on
the expiry of 12 weeks from today subject however to
such other order to be passed by the Apex Court in
the proposed appeal, without requiring the
Petitioners to take recourse to execution of the
decree. The Petitioners assure to abide by this
assurance. That assurance is accepted.
ig (A.M.KHANWILKAR,J)
