Bombay High Court
Hariprasad S/O Babulal Mehadia ... vs M/S Mehadia And Sons (Sitabuldi), ... on 11 March, 2016
Bench: A.S. Chandurkar
WP2735.15.odt 1/47
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.2735 OF 2015
PETITIONERS: 1. Hariprasad S/o Babulal Mehadia (dead)
through his Legal Representatives:
(Orig. Plaintiffs)
a) Kesharibai wd/o Hariprasad Mehadia,
Aged about 70 years, Occ. Business,
b) Gajadhar S/o Hariprasad Mehadia, Aged
about 51 years, Occ. Business,
c) Sanjay S/o Hariprasad Mehadia, Aged
ig about 47 years, occ. Business,
All r/o 165, Bajaj Nagar, Nagpur.
d) Rajani w/o Kamalkishore Agrawal, Aged
about 50 years, occ. Household, R/o C-
39-40, Netaji Nagar, near S. K. Trading
Co, Nagpur.
e) Anju W/o Pramod Agrawal, Aged about
43 years, Occ. Household, R/o
Vishnupriya, Muktanand Nagar
Khamgaon.
2. Kesharibai Wd/o Hariprasad Mehadia,
Aged about 70 years, Occ. Business, R/o
165, Bajaj Nagar, Nagpur.
3. Kaushal W/o Bharat Bhushan Mehadia,
Aged about 53 years, Occ. Business, R/o
opp. Regal Cinema, Main Road,
Sitabuldi, Nagpur.
-VERSUS-
RESPONDENTS: 1. M/s Mehadia & Sons (Sitabuldi), A
partnership firm having its registered
(Ori. Defendants)
office, Op. Regal Cinema, Main Road,
Sitabuldi, Nagpur.
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2. Syamsunder Mandangopal Agrawal,
Aged about 75 years, Occ. Business, C/o
M/s Mehadia & Sons (Sitabuldi), Main
Road, Sitabuldi, Nagpur.
3. Vijay Kumar Mandangopal Agrawal,
Aged about 65 years, Occ. Business, C/o
M/s Mehadia & Sons 9Sitabuldi), Main
Road, Sitabuldi, Nagpur.
Shri M. G. Bhangde, Senior Advocate with Shri B. B. Mehadia,
Advocate for the petitioners.
Shri J. M. Gandhi, Advocate for the respondents
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 23-12-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 11-03-2016.
ORAL JUDGMENT :
1. Rule. In view of notice for final disposal issued on
8-5-2015, the writ petition is heard finally with the consent of the
learned Counsel for the parties by making the Rule returnable
forthwith.
2. By this writ petition filed under Article 227 of the
Constitution of India, the petitioners who are the original plaintiffs
- landlords seek eviction of the respondents who are the original
defendants - tenants. The decree for eviction passed by the trial
Court in favour of the petitioners has been reversed by the
appellate Court as a result of which the suit for possession has
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been dismissed.
3. Certain facts that are found relevant for deciding the
writ petition are that the plaintiffs are the owners of the Municipal
House No.12 and 12/1 admeasuring about 2392 sq. ft. The
ground floor premises admeasures about 1618.87 square ft. The
respondents are in occupation of constructed area admeasuring
1171.50 sq. ft. as tenants of one Shri B. S. Mahajan paying rent of
Rs.202.93 per month. By virtue of two sale deeds dated 13-1-1999
executed by said Shri B. S. Mahajan in favour of the petitioners,
they claim to have become absolute owners of the said property.
After the sale deeds were executed, the petitioners' vendor issued a
notice of attornment dated 21-1-1999. The respondents were
called upon to make payment of monthly rent of Rs.202.93 per
month to the petitioners. According to the respondents, said Shri
B. S. Mahajan had entered into an oral agreement of sale of the
suit premises with them on 18-9-1998 for a consideration of
Rs.5,50,000/-. The respondents, therefore, called upon the said
Shri B. S. Mahajan to complete the oral agreement. The petitioners
thereafter issued a notice dated 16-4-1999 to the respondents
demanding rent for the period from February 1999 and onwards.
In the meanwhile, the respondents filed Special Civil Suit
No.389/1999 for specific performance of the oral agreement dated
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18-9-1998. In the said suit, the petitioners as well as their vendor
were impleaded as the defendants. The petitioners filed a counter
claim seeking permanent injunction. On 17-12-1999 another
notice was issued by the petitioners demanding rent from the
respondents but in reply, the respondents denied the ownership of
the petitioners. Ultimately, on 1-4-2004, the petitioners issued a
notice under Section 15(2) of the Maharashtra Rent Control Act,
1999 (for short, the said Act) demanding arrears of rent from
February, 1999 to March, 2004. In reply the ownership of the
petitioners was denied. The petitioners filed Civil Suit No.202 of
2005 on 12-4-2005 seeking eviction of the respondents on the
ground that they were in arrears of rent and that the petitioners
were in bonafide need of the suit premises under provisions of
Section 16(1)(g) of the said Act.
4. As regards the claim for eviction on the ground of
arrears of rent, it was the case of the petitioners that the
respondents were in arrears of rent from February, 1999 onwards.
The demand notice dated 1-4-2004 issued under Section 15(2) of
the said Act was not complied with. The amount of arrears of rent
was Rs.15,016.82. As regards the claim on the ground of bonafide
need is concerned, it was the case of the petitioners that the
premises in question were required to meet the growing needs of
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the family members for the purposes of residence as well as for the
purposes of business.
The respondents filed their written statement below
Exhibit-133 and denied the claim of the petitioners. They took the
stand that there was no relationship of landlord and tenant
between the petitioners and themselves. Reference was made to
the oral agreement dated 18-9-1998 entered into with the vendor
of the petitioners. The claim for eviction on the ground of arrears
of rent was denied on the ground that the rent had been sent to
the vendor of the petitioners and that subsequently the amount of
arrears had been deposited in the Court as per the requirements of
Section 15(3) of the said Act. Similarly, the claim on the ground
of bonafide need was also denied by stating that the properties in
occupation of the petitioners was sufficient to satisfy their
requirements.
5. The petitioners examined Shri Hariprasad Mehadia,
the original plaintiff no.1 and Shri B. B. Mehadia who was the
husband of the petitioner No.3 in support of their case. He was
examined below Exhibit-52. The respondents examined the
respondent No.3 as their witness below Exhibit-71. Two other
witnesses namely Shri Shailendra Anand below Exhibit-76 and
Shri Anil Agrawal below Exhibit-79 were also examined.
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6. The trial Court by judgment dated 15-11-2007 decreed
the suit filed by the petitioners. Regular Civil Appeal No.23/2008
filed by the respondents was dismissed on 4-8-2010. Writ Petition
No.4542/2010 filed by the respondents was partly allowed on
11-9-2011 and the proceedings were remanded to the trial Court
with liberty to the parties to amend their pleadings and to lead
evidence in support of their respective cases. Letters Patent Appeal
No.497/2011 filed by the petitioners was dismissed on 31-3-2012
and Special Leave Petition No.19899/2012 filed by them was also
dismissed on 2-12-2013.
After remand of the proceedings both the parties
amended their pleadings. The petitioner Nos.1 & 2 stated that
their bonafide need was only with regard to using the suit
premises for commercial purposes. Shri B. B. Mehadia was again
examined below Exhibit-138. The respondents examined the
respondent No.3 below Exhibit-158 and another witness,
Shri Pradip Wadibhasme at Exhibit-178. The trial Court thereafter
held that the petitioners had proved that the respondents were in
arrears of rent. It also held that the petitioners had proved their
bonafide need for the occupation of the suit premises. It was held
that greater hardship would be caused to the petitioners if the
decree for possession was not passed. By judgment dated 21-6-
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2014, the trial Court decreed the suit for possession.
The appellate Court after hearing both the sides held
that the petitioners had not established the relationship of landlord
and the tenant as the suit for specific performance filed by the
respondents was still pending. It further held that the respondents
were not in arrears of rent having deposited the rent from time to
time. It further held the petitioners had not proved their boanafide
need for the suit premises and that they had also not proved the
aspect of comparative hardship. Thus, by judgment dated
8-4-2015, the appellate Court allowed the appeal and dismissed
the suit. This judgment is under challenge in the writ petition.
7. On behalf of the petitioners Shri M. G. Bhangde,
learned Senior Counsel along with Shri B. B. Mehadia learned
Counsel made the following submissions:
(a) The attornment of tenancy in favour of the petitioners
was not a requirement for conferring validity to the transfer of title
in favour of the petitioners. It was submitted that however a notice
of attornment dated 21-1-1999 (Exhibit-30) had been issued to the
respondents and that they were liable to pay rent to the
petitioners. Reliance was placed on the judgment of the Hon'ble
Supreme Court in the case of Dr. Ambica Prasad Vs. Md. Alam and
another 2015 (4) SCALE 605 in that regard. It was, therefore,
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submitted that the appellate Court could not have held that the
petitioners were not landlords of the respondents. It was also
submitted that the petitioners having acquired the title on the basis
of two registered sale deeds dated 13-1-1999, the pendency of the
suit for specific performance against the erstwhile owner would
not affect the title of the petitioners.
(b) That under Section 15(1) of the said Act, it was
incumbent upon the tenant to comply with the terms and
conditions of the tenancy. The respondents having denied the title
of the petitioners as landlords, they were not entitled for any
protection under Section 15(1) of the said Act. Reliance was
placed on the judgment of the Hon'ble Supreme Court in Keshar
Bai Vs. Chhunulal 2014(1) SCALE 170 and the judgment of the
Gujarat High Court in Nanduben Dayalji v. Bhatia Ranchhoddas
lalji and another AIR 1977 Gujarat 173 in that regard.
(c) The respondents having failed to comply with the
requirements as contemplated by provisions of Section 15(3) of
the said Act, they were not entitled for any protection against the
forfeiture of the tenancy. It was submitted that the respondents
were in arrears of rent and had not deposited the same as required
by Section 15(3) of the said Act. Similarly, even during pendency
of the proceedings before the trial Court as well as the appellate
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Court, the respondents were not regular in depositing the arrears
of rent. Reference was made to the certificate at Exhibit-145
issued by a Chartered Accountant indicating the arrears of rent.
It was, therefore, submitted that having failed to comply with the
statutory requirements of Section 15 of the said Act, the
respondents were liable to be evicted on the ground of arrears of
rent. Reliance was placed on the judgments in Ganpat Ladha v.
Sashikant Vishnu Shinde AIR 1978 SC 955, Bhimsen Gupta Vs.
Bishwanath Prasad Gupta (2004) 4 SCC 95, Jaypal Bandu Adake
and another Vs. Basavali Gurulingappa Mhalank and another 1982
Mh.l.J. 512, Shri Subhash Janardhan Kulkarni vs. Smt. Rajashree
Avinash Pardeshi 2009 (3) Mh.L.J. 340 and Chandiram
Dariyanumal Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari
Sanstha, Akola 2013(1) Mh.L.J. 28.
(d) The bonafide need of the petitioners had been duly
proved by the petitioners. It was submitted that after the remand
of the proceedings, the pleadings had been amended giving
various details about need of the petitioners. The said need was
bonafide and the burden was on the tenant to rebut the
presumption as regards genuineness of the need. It was submitted
that one of the sons of the petitioner No.1 was required to do
business in a tenanted premises. It was further submitted that the
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acquisition of the additional premises at Bajaj Nagar and
Ranapratap Nagar was only for residential purposes and said
acquisition did not have any effect on the need of the petitioners
for business purposes. The land at YMCA was neither useful nor
relevant while considering the need of the petitioners. Reliance
was placed on the decision in Smt. Ramkubai vs. Hajarimal
Dhokalchand Chandak AIR 1999 SC 3089 and Shankar Bhairoba
Vadangekar vs. Ganpati Appa Gatare 2001(4) Mh.L.J. 131 in that
regard.
(e) Merely because the proceedings had been remanded to
the trial Court, the evidence led prior to the remand could not
have been ignored and evidence already recorded before the
remand would not get wiped off. Reference was made to the
decision in United Bank of India, Calcutta vs. Abhijit Tea Co. Pvt.
Ltd. And others AIR 2000 SC 2957 in that regard.
(f) It was submitted that merely because the petitioners
were represented by the husband of the petitioner No.3 who was
also an Advocate and the power of attorney holder, the case of the
petitioners could not be discarded. Reference was made to the
order passed by the trial Court below Exhibit-53 whereby the
objection raised to such participation by the power of attorney
holder/Advocate had been rejected. It was urged that as the
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power of attorney holder was having personal knowledge of the
case of the petitioners and was also related to the petitioner No.3
being her husband, it was not necessary for the plaintiffs to have
entered the witness box.
It was, therefore, submitted that the trial Court having
rightly found the respondents to be in arrears of rent and the
bonafide need of the petitioners having been found to have been
duly proved, the appellate Court was not justified in reversing said
finding on the grounds on which the same was done. It was, thus
submitted that the impugned judgment deserves to be set aside
and the decree passed by the trial Court deserves to be restored.
8. On behalf of the respondent, Shri J. M. Gandhi,
learned Counsel for the respondents countered the aforesaid
submissions and urged as under:-
(a) The respondents were not in arrears of rent and were
not liable to be evicted under provisions of Section 15 of the said
Act. It was submitted that in the suit as filed for eviction there was
a prayer for passing a decree for an amount of Rs.7,305.48 while
the respondents had deposited an amount of Rs.20,000/- in the
Court on 20-6-2005. By referring to the deposition of the witness
examined on behalf of the petitioners, it was submitted that
various deposits of rent had been made by the respondents from
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time to time which indicated that the respondents were in arrears
of rent. The amounts deposited were as per the pleadings as made
in the suit prior to its amendment. In that regard, a reference was
made to the judgments of the Hon'ble Supreme Court in Advaita
Nand v. Judge, Small Cause Court, Meerut and others (1995) 3 SCC
407, Mohan Laxman Hede v. Noormohamed Adam Shaikh AIR 1988
SC 1111, Vatan Mal v. Kailash Nath (1989) 3 SCC 79, Ajai Agarwal
and others v. Har Govind Prasad Singhal and others AIR 2006 SC
282, Ibrahim Abdulrahim Shaikh v. Krishanamorari Sripatlal
Agarwal (1995) 1 SCC 265, C. Chandramohan v. Sengottaiyan AIR
2000 SC 568 and Ashok Kumar v. Rishi Ram 2002 (7) SRJ 375.
(b) There was no question of forfeiture of tenancy as
urged by the petitioners. It was submitted that the respondents
had not denied their status as tenants and it was their case that the
vendor of the petitioners Shri B. S. Mahajan was their landlord.
A suit for specific performance of the oral agreement of sale was
pending in the civil court and hence, until the same was decided,
the respondents were justified in not accepting the petitioners as
their landlords. It was urged that as the provisions of the said Act
were applicable and were invoked by the petitioners for evicting
the respondents, the provisions of Section 111(g) of the Transfer
of Property Act, 1882 would not apply. If the ground with regard
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to forfeiture of tenancy was sought to be canvassed, a notice under
Section 106 of the Transfer of Property Act, 1882 was necessary.
In this background, the denial of title of the petitioners was
bonafide and, therefore, there was no question of forfeiture of
tenancy. The learned Counsel placed reliance on the judgments
reported in Punjalal v. Bhagwatprasad AIR 1963 SC 120, Meenakshi
Jain v. State AIR 1998 MP 78, Yashpal Lala Shiv Narain v. Allatala
Tala Malik Waqf Ajakhan Mus AIR 2006 Allahabad 115 and Gulam
Mohd. Khan (Dead) v. Gulam Nabi Channu Miya (dead) through
L.Rs 2010(2) CLJ 278.
(c) The petitioners had examined Shri B.B. Mehadia as
their witness in whose favour they had executed a power of
attorney. Said Shri B.B. Mehadia is the husband of the petitioner
No.3. It was not permissible for him to act in the dual capacity of
being a witness for the petitioners and also appearing as their
Counsel. Such course was not permissible and, therefore, his
evidence in support of the claim for eviction did not deserve to be
taken into consideration. As the power of attorney holder was
aware that he would be required to lead evidence in support of the
claim of the petitioners, he could not have also acted as their
Counsel. Reliance was placed on the judgment in Vinoy Kumar v.
State of U.P. AIR 2001 SC 1739, Oil & Natural Gas Commission v.
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offshore Enterprises Inc. AIR 1993 Bombay 217 and R. K. Agarwal v.
Rana Harishchandra Ranjitsingh AIR 1994 Bombay117.
(d) After remand of the proceedings pursuant to the
judgment in Writ Petition No.4542/2010, the evidence that was
already on record stood wiped of and the same could not have
been taken into consideration. Only the evidence that was led after
the demand was required to be taken into consideration. The
original plaintiff No.1 had expired after the order of remand had
been passed and therefore after remand his deposition could not
be considered. Though liberty was granted to amend the pleadings
only with regard to the bonafide need of the petitioners, the entire
plaint had been amended thereby causing prejudice to the case of
the respondents. Reliance was placed on the decisions in Janki
Vashdeo Bhojwani and another v. Indusind Bank Ltd. And others AIR
2005 SC 439 and Popcorn Entertainment Corporation & Anr. v. The
City Industrial Development Corporation and Anr. 2009 (6) ALL MR
(e) As the suit for specific performance filed by the
respondents was pending in the civil court in which the petitioners
had also filed their counter claim, unless the question of title was
decided, the present proceedings were not maintainable and there
was no jurisdiction with the Court to decide the same. The sale
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deeds on the basis of which the petitioners were claiming title
were itself under challenge and, therefore, the present proceedings
ought to have been stayed till the aforesaid questions were decided
by the civil court. In that regard the learned Counsel placed
reliance on the decisions in Wilfred Lovette v. Ganesh AIR 1988
Bom.142 and Subhash Chand v. State of Haryana AIR 2011 SC 409.
(f) The respondents had failed to prove their bonafide
need for the premises. Various material facts had been suppressed
by the petitioners in the suit as was originally filed. The premises
in occupation of the petitioners was sufficient to satisfy their need.
There was no evidence on record to indicate as to how the
premises at Bajaj Nagar and Ranapratap Nagar that were in
possession of the petitioners were not sufficient for satisfying their
need. The various admissions in the cross examination of the
petitioners' witness indicated the fact that the claim of the
petitioners was not bonafide. The premises acquired during
pendency of the proceedings was also a factor which was against
the petitioners. None of the plaintiffs had examined themselves
and only the evidence of the power of attorney holder came to be
recorded. The need of the petitioners was, therefore, neither
honest nor genuine to term the same as bonafide. The premises at
YMCA were also available for use by the petitioner no.3 and her
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husband. Moreover, there were no pleadings or evidence as to
how the suit premises would be used by the landlords in case a
decree was passed. In the absence of any partition between the
petitioners who were claiming title on the basis of two different
sale deeds, the case as pleaded did not deserve to be accepted. It
was necessary for the petitioners to have approached the court
with clean hands by giving details of all the properties owned by
them, but the same was not done. Reliance was placed on the
decisions in Sarvate T. B. v. Nemichand 1966 MPLJ 26, Gulabai v.
Nalin Narsi Vohra and others AIR 1991 SC 1760, Narendra v.
Shiocharan 2011(1) Mh.L.J. 839, and Shabbir Ahmed v. Shamlal
AIR 2002 SC 1036.
Even on the question of hardship, it was submitted
that the same was likely to be caused to the respondents in case a
decree for eviction was passed. The respondents were conducting
their medical business in the suit premises since 1954. It was,
therefore, submitted that the respondents were not liable to be
evicted from the premises.
It was, thus submitted that the appellate court was
justified in setting aside the decree for eviction passed by the trial
Court. There was no case made out to interfere with the judgment
of the appellate Court and the writ petition was, therefore, liable
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to be dismissed.
9. Before considering the aspect as to whether the
petitioners have made out any case for evicting the respondents,
certain ancillary challenges may be taken up first for consideration.
It may be stated that though the learned Counsel for the parties
have referred to various judgments, reference is being made to
those judgments that have been found relevant while deciding the
challenges as raised.
ig The suit for eviction filed by the petitioners was
initially decreed by the trial Court by judgment dated 15-11-2007.
This judgment and decree was set aside by the appellate Court
vide judgment dated 4-8-2010. This judgment, in turn, was
challenged by the petitioners in Writ Petition No.4542/2010. The
learned Single Judge by judgment dated 19-9-2011 partly allowed
the writ petition and set aside the judgment of the appellate Court
as well as the judgment of the trial Court. The proceedings were
remanded to the trial Court to decide the same afresh. While
doing so it was observed thus:
"26..................................................................
The matter is remanded back to the Trial
Court to deal with Regular Civil Suit No.202
of 2005 afresh by granting the parties an
opportunity to amend their pleadings,
framing proper issues, and permitting the
parties to lead evidence, and to decide the
said suit in accordance with law as per the
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time-table framed as under."
The judgment of the learned Single Judge was
challenged by the petitioners in Letters Patent Appeal
No.497/2011. By judgment dated 31-3-2012, the Division Bench
dismissed the Letters Patent Appeal and maintained the order of
remand passed by the learned Single Judge. It is informed that the
Special Leave Petition filed by the petitioners challenging aforesaid
judgment was also dismissed. Thus, in effect, the order of remand
passed by the learned Single judge stands confirmed.
10. According to the learned Counsel for the respondents
though liberty was granted to amend the pleadings only with
regard to the claim for eviction on the ground of bonafide need,
the petitioners carried out substantive amendments in the plaint.
Similarly, it was urged that it was not open for the trial Court and
the appellate Court to take into consideration the evidence that
was led before the order of remand.
These submissions cannot be accepted in view of the
fact that the entire proceedings had been remanded and the trial
Court had been directed to deal with Civil Suit No.202/2005
afresh by granting the parties an opportunity to amend their
pleadings and also to lead evidence. The order of remand was,
therefore, not a restricted order in that sense and the entire
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proceedings had been remanded for being decided afresh. Hence,
the ratio of the judgment in Popcorn Entertainment Corporation
and another (supra) cannot be made applicable to the facts of the
present case. There was no limitation imposed on the parties in
the matter of amending their pleadings or in the matter of leading
evidence. Hence, this contention raised on behalf of the
respondents cannot be accepted.
11. The next aspect is with regard to the power of attorney
holder of the petitioners leading evidence on their behalf and also
acting as their Advocate. The petitioners relied upon the evidence
led by their power of attorney holder Shri B. B. Mehadia. He was
examined vide Exhibit-52 and Exhibit-138. According to the
respondents, Shri B. B. Mehadia was the husband of the petitioner
No.3 and had deposed as the power of attorney holder of the
petitioners. He had also appeared as their Advocate and the same
was not permissible. He could not have acted in a dual capacity
both as their witness as well as their Counsel.
This submission on behalf of the respondents was
sought to be buttressed by the learned Counsel for the respondents
by relying upon various decisions. In Vinoy Kumar (supra), various
criminal cases were transferred from the Court of one learned
District and Sessions Judge to the Court of another learned District
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and Sessions Judge. An Advocate representing the accused persons
in the transferred cases filed a writ petition challenging the said
order. This writ petition was filed by the Advocate in his own
name and it was held that filing of such writ petition by the said
Advocate was not a part of the professional obligation of the
Advocate. It was held that the said Advocate had no locus standi to
filing the writ petition.
In R. K. Agrawal (supra), it was held that an Advocate's
duty of good faith and trusteeship would prevent him from acting
as an Advocate and witness in the same case unless he is a formal
witness. It was observed that it was undesirable that the Advocate
should testify either for or against the party whose case he is
conducting.
In Oil and Natural Gas Commission (supra), it was held
that in case of any conflict between interest and duty, the
Advocate must yield in favour of his duty to assist the cause of fair
and impartial justice. It was observed that an Advocate acting in a
personal capacity must be totally independent and detached from
his client or recognized agent.
In Kamla Bakshi (supra), it was observed that where
an Advocate knows that he is a material witness in a case and that
he would have to appear as such at any point of time, he should
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not continue to appear as a Counsel. Similar view has been taken
in Rajendra Nagrath and Ramprasad (supra). It was held that
provisions of Order III Rule 2 of the Code of Civil Procedure, 1908
wherein the word "acts" have been used do not include the act of a
power attorney holder to appear as a witness on behalf of a party.
In Usha Rangnathan (supra), it was held that a power of attorney
holder cannot be allowed to depose on behalf of the principal of
matters which would be within the knowledge of the principal. In
Rompi Cheria (supra), it was observed that as long as a Counsel is
not required by the Court to figure as a witness, he can continue as
a Counsel and if he is required to figure as a witness then he
should retire from the case to enable the party to engage another
Counsel.
12. From the aforesaid decisions, it is clear that when an
Advocate knows that he would be cited as a witness for being
examined during the course of the proceedings, he should ideally
cease to act as an Advocate and retire from the case so as to avoid
embarrassment. In the present case, however, it is to be noted
that the petitioners had executed a power of attorney in favour of
Shri B. B. Mehadia, the husband of the petitioner No.3. The said
power attorney holder is a member of the family of the petitioners
and more particularly the husband of the petitioner No.3. Said
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power of attorney holder is related to the petitioners and,
therefore, it cannot be said that he was acting as an Advocate
exclusively in professional capacity. He is in fact, the brother of
the plaintiff No.1 and brother-in-law of the plaintiff No.2. In the
facts of the present case, therefore, when the power of attorney
holder is a member of the family of the landlords and is also an
Advocate, it could not be said that his continuation to act as an
Advocate after he had examined himself as a power of attorney
holder of the petitioners would have caused embarrassment. It is
to be noted that the trial Court vide order passed below Exibhit-53
had permitted the continuation of Shri B. B. Mehadia to act as
Advocate for the petitioners. This order passed by the trial Court
was not challenged by the respondents at any point of time.
Moreover, the respondents while supporting the judgment of the
appellate Court have also relied upon the statements made by said
witness in his cross examination to urge that the dismissal of the
suit by the appellate Court was legally justified. Hence, this
submission on behalf of the respondents cannot be accepted.
13. Turning to the merits of the challenge, it would first be
necessary to consider the aspect of attornment of tenancy. After
purchasing the suit property vide sale deeds dated 13-1-1999, the
vendor of the petitioners Shri B. S. Mahajan issued a notice of
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attornment which is at Exhibit-30. It has been stated therein that
the petitioners have become owners of the suit property and
hence, the respondents should pay rent to them. This notice was
received by the respondents. According to the respondents, they
have not accepted the petitioners as their landlords as they
claimed entitlement to the suit property on the basis of an oral
agreement to purchase the suit property dated 18-9-1998.
In this regard, it is to be noted that in the earlier round
of litigation this aspect as regards attornment of tenancy was
considered in Writ Petition No.4542 of 2010. In paragraphs 18 and
19 of the judgment dated 19-9-2011, a finding has been recorded
that the rights of tenancy have been attorned in favour of the
petitioners by the erstwhile owner. It is further observed that the
respondents are not the owners of the suit property and the suit
filed by them for specific performance of the contract against the
petitioners and erstwhile owner was pending. This finding has not
been disturbed either in the Letters Patent Appeal or in the Special
Leave Petition before the Hon'ble Supreme Court. Even otherwise,
it is to noted that under Section 109 of the Transfer of Property
Act, 1882, the transfer of the right of the landlord is not dependent
on the tenant attorning to him. As held by the Hon'ble Supreme
Court in Dr. Ambikaprasad (supra) an attornment by the tenant is
WP2735.15.odt 24/47
not necessary to confer validity on the transfer of the landlord's
right. It was further held that as attornment by a tenant is not
required, a notice issued under Section 106 of the Transfer of
Property Act, 1882 in terms of the earlier lease by the transferor
landlord would be proper. Hence, in view of the notice of
attornment dated 21-1-1999 issued by the erstwhile owner, it was
necessary for the respondents to have paid rent to the petitioners
who had become landlords by virtue of purchasing the suit
property.
14. Much emphasis was laid by both the parties on the
aspect of denial of title of the petitioners by the respondents. This
denial of title is contained in the reply dated 6-1-2000 as well as
the reply dated 6-4-2004 issued by the respondents. The denial of
title is based on the ground that the respondents claimed to have
entered into an oral agreement of sale in respect of the suit
property with the erstwhile owner on 18-9-1998. The respondents
having filed Special Civil Suit No.389/1999 for specific
performance have taken a stand that they are the tenants of the
erstwhile owner and they had not recognized the petitioners as
their landlords.
It is well settled that while it is not open for a tenant to
question the title of the landlord who has inducted him in the
WP2735.15.odt 25/47
premises, it is open for a tenant to question the derivative title of
the landlord to whom the property has been transferred. Reference
in this regard can be usefully made to the judgment of the Hon'ble
Suprme Court in Subhashchandra Vs. Mohammad Sharif and others
(1990) 1 SCC 252. In the present case, the respondents have
challenged the derivative title of the petitioners. Considering the
fact that the respondents have not challenged the title of the
original owner as their landlord coupled with the fact that they
have also filed a suit for a specific performance of the agreement
dated 18-9-1998, it cannot be said that this denial of title is not
bonafide. The title has not been denied merely as a matter of
course. The respondents rely upon an oral agreement of sale in
their favour along with the fact that they have sought specific
performance of the said agreement. In view of these facts, the
submission made on behalf of the petitioners that having denied
the title of the petitioners, the respondents were not entitled for
any protection under said Act cannot be accepted.
15. The other limb of argument made on behalf of the
petitioners is that as the respondents have not accepted the
relationship of landlord and the tenant between them, they have
not followed the other terms of tenancy as stipulated by Section
15(1) of the said Act. In this regard heavy reliance was placed on
WP2735.15.odt 26/47
the judgment of the Gujarat High Court in Nanduben Dayalji
(supra). While considering the provisions of Section 12(1) of the
Bombay Rents Hotel and Lodging House Rents Control Act, 1947,
it was held that while seeking protection of the Act in question, the
acceptance of relationship of the landlord and tenant is necessary.
It has been further observed that the expression "the other
conditions of tenancy" used in Section 12(1) of the Act of 1947
would mean the conditions of tenancy other than one relating to
payment of rent which has been expressly specified in sub-section
(1) of Section 12. It was, therefore, held that when such a condition is
pressed into service by a landlord to evict his tenant, the same can be
given effect to and a decree for possession can be passed against him if it
is consistent with the provisions of the Act of 1947. Once it is proved by
the landlord that their exists between the parties the relationship of
landlord and tenant, the landlord is entitled to maintain a suit under the
provisions of the Rent Act to recover possession. The judgments in
Wilfred Lovette and Subhash Chand (supra) are clearly distinguishable on
facts.
In the present case, the relationship of landlord and
tenant stands established in view of the notice of attornment dated
21-1-1999. It was, therefore, incumbent upon the respondents to
have paid rent to the petitioners and also to have observed the
other conditions of the tenancy at least from 21-1-1999 which is
WP2735.15.odt 27/47
the date of the notice of attornment. Thus, having held that the
relationship of landlord and the tenant stands established between
the parties and that denial of title by the respondents was not
totally unjustified, it would be necessary to consider the grounds
on which the eviction of the respondents has been sought.
16. According to the petitioners, the respondents are in
arrears of rent and are, therefore, liable to be evicted on said
ground. The petitioners have issued a notice under Section 15(2)
of the said Act on 1-4-2004 vide Exhibit-36. In said notice, a
demand has been made to the respondents to pay arrears of rent
from February 1999 till March, 2004. This notice was replied by
the respondents on 6-4-2004 denying the relationship of landlord
and tenant. On 1-4-2005, the suit for possession came to be filed.
In the plaint, it has been stated that arrears of rent from 1-2-1999
till 31-3-2005 are Rs.15,016.82. However, the petitioners were
restricting their claim on account of limitation for the period from
1-4-2002 till 31-3-2005 which amount came to Rs.7305.48.
According to the petitioners, for claiming the relief against the
forfeiture of tenancy on account of arrears of rent, the respondents
should have paid the entire amount of arrears along with
permitted increases with simple interest @ 15% per annum. The
amount of interest as calculated @15% per annum on the amount
WP2735.15.odt 28/47
of arrears of Rs.15,016.82 was Rs.7039.14. Thus, according to the
petitioners, the total arrears as on 1-4-2005 were Rs.22,055.96.
The petitioners relied upon the certificate at Exhibit-145 issued by
their Chartered Accountant showing aforesaid calculations.
17. In the written statement, it has been stated by the
respondents that the calculations as made by the petitioners were
incorrect and that the claim included the arrears that were barred
by limitation. An amount of Rs.20,000/- was deposited by the
respondents on 20-6-2005 which was the first date of hearing as
per Exhibit-13. According to the respondents, this amount included
the suit claim of Rs.7305.48 as well as advance rent for a period of
one year from April, 2005 till March, 2006.
In the deposition of the witness examined on behalf of
the respondents, it was admitted that the amount of arrears prior
to April 2002 that were not claimed in the suit had not been paid.
It was further admitted that the amount of arrears from January,
1999 till March, 2002 had not been deposited in the Court. It was
stated that said rent was paid to the erstwhile landlord by way of
money orders. These money order receipts were placed on record
at Exhibit-162.
18. Under the provisions of Section 15(2) of the said Act,
the landlord has to first issue a notice of demand to the tenant
WP2735.15.odt 29/47
calling upon him to pay standard rent or permitted increases that
are due. A suit for recovery of possession on the ground of non-
payment of standard rent or permitted increases can be filed only
after expiry of 90 days from the service of the demand notice in
case the arrears are not paid. On such non-payment of arrears, if a
suit for eviction is filed by the landlord, then under provisions of
Section 15(3) of the said Act the tenant has to pay or tender in the
Court the standard rent and permitted increases 'then due' along
with simple interest on the amount of arrears @15% per annum.
He has thereafter to continue to pay or tender in the Court
regularly such standard rent and permitted increases.
While it is the case of the petitioners that the
requirements of Section 15(3) of the said Act have not been
complied with by the respondents, it is the stand of the
respondents that having deposited the amount claimed in the suit
along with advance rent for the subsequent period of one year, the
provisions of Section 15(3) of the said Act have been complied
with. It is necessary to note that under provisions of Section 15(2)
of the said Act, a claim for the arrears of standard rent or
permitted increases can be made. Though a landlord may not be in
a position to recover time barred arrears of rent and the claim in
the suit is restricted for the period of arrears that are within
WP2735.15.odt 30/47
limitation, the provisions of Section 15(3) of the said Act require
the tenant to pay or tender in the Court the arrears of standard
rent and permitted increases 'then due'. The use of the words 'then
due' would clearly indicate that it is the duty of the tenant to
deposit the entire arrears that have fallen due atleast till the date
of service of the suit summons. The effect of the words 'then due'
cannot be restricted to mean arrears that are due excluding the
arrears that cannot be recovered due to the bar of limitation.
The scheme of Section 15 of the said Act does not indicate that a
tenant would be saved from eviction only he paid the arrears of
rent that were due and claimed within a period of limitation.
The words "then due" appear to have been deliberately used by the
Legislature so as to protect a tenant from eviction if he pays all the
arrears of standard rent and permitted increases with simple
interest and also with a view to ensure that the landlord receives
all the arrears of rent "then due" with interest.
19. A some what similar question fell for determination in
Prabhakar V. Manekar Vs. Surendra D. Sharma 2015 (4) Mh.L.J.
351. The question was as to whether time barred rent could be
claimed by a landlord in a suit for eviction on the ground of
arrears of rent. In paragraph No.12, it was observed thus:
WP2735.15.odt 31/47
"12. The expression "then due" was used
in the provisions of section 12(3) of the Bombay
Rents, Hotel and Lodging House Rates Control
Act, 1947, which stood repealed as a result of
said Act coming into force. Considering similar
arguments as advanced that if the amounts that
were claimed to be due could not be recovered
on account of bar of limitation, then the tenant
could not be evicted for being in arrears of such
dues, learned Single Judge in Karamchand Deoji
Sanghavi vs. Tulshiram Kaluy Kumawat, 1992
Mh.L.J. 560, held that if the tenant intended to
seek protection from eviction then the entire
amount of arrears even if time barred were
required to be paid. It was held that the
ig provisions of section 12 of the Bombay Rent Act
did not alter the entitlement of the landlord in
the light of law of limitation.
In Sriniwas Babulal (supra) relied
upon by the learned Counsel for the respondent
it was held that the demand of time barred rent
in a notice issued under section 15 of the said
Act was not fatal and it was incumbent on the
tenant to pay even time barred arrears. It is,
therefore, clear that the expression "then due"
will have to be construed to include amount of
arrears that were due and payable disregarding
the fact that part thereof had become time
barred. In Khadi Gram Udyog Trust vs. Ram
Chandraji Virajman Mandir, Sarasiya Ghat,
Kanpur, (1978) 1 SCC 44, it was held by the
Supreme Court that even if the remedy was
barred, the debt was not extinguished and if the
tenant wanted to seek benefit of the statute then
for avoiding the decree of eviction, the amounts
due were required to be paid. Hence, the
expression "then due" in section 15(3) of the
said Act would include the amount of arrears
even prior to three years of such notice."
In Bhimsen Gupta (supra) that was relied upon by the
learned Counsel for the petitioners, it has been clearly held that
WP2735.15.odt 32/47
the law of limitation bars the remedy of the landlord to recover the
rent for the period of three years prior to the institution of the suit,
but the same cannot be a ground for defeating the claim of the
landlord for a decree of eviction on the ground of arrears of rent.
It is, therefore, clear that it would not be open for the tenant to
contend that though part of the arrears of standard rent and
permitted increases are due and payable, the same would not be
paid as the claim in that regard is barred by limitation. For the
purposes of seeking protection from eviction, it would be necessary
for the tenant to comply with the requirements of Section 15(3) of
the said Act which would include the payment of arrears of
standard rent and permitted increases 'then due' with simple
interest @ 15% per annum.
20. In the present case, the respondents have only paid
that part of the arrears of rent for which the claim was within
limitation, but have not paid that part of the arrears of rent that
were beyond the period of limitation. The fact that the entire
arrears of rent till 31-3-2005 along with 15% interest amounted to
Rs.22,055.96 is clearly proved by the certificate at Exhibit.145.
There is no rebuttal to the calculations made therein. On the
contrary, it is the specific case of the respondents that only that
part of the arrears that were within limitation and claimed in the
WP2735.15.odt 33/47
suit had been paid along with advance rent for the subsequent
year. The deposit of Rs.20,000/- on the first day of hearing falls
short of the total arrears of standard rent and permitted increases
'then due' along with simple interest @Rs.15% per annum. Thus,
failure to pay or tender the amount of arrears of standard rent and
permitted increases 'then due' renders the respondents liable for
eviction under provisions of Section 15(3) of the said Act.
21. The appellate Court while holding that the
respondents were not in arrears of rent failed to take into
consideration this aspect of the matter. It has proceeded on the
basis that as the petitioners had claimed only those arrears that
were recoverable as per the law of limitation, the deposit of
Rs.20,000/- by the respondents was sufficient. Another reason
given by the appellate Court is that as the suit for specific
performance was pending and the title to the suit property was not
yet decided finally, failure to deposit rent would not attract
provisions of Section 15 of the said Act. It has, therefore,
concluded that the petitioners could not be treated as the
landlords and, therefore, could not take recourse to the provisions
of Section 15 of the said Act. Considering the position of law
referred to herein above in the matter of liability of the tenant to
pay all arrears 'then due', the aforesaid conclusion of the appellate
WP2735.15.odt 34/47
Court cannot be sustained. On account of failure to comply with
provisions of Section 15(3) of the said Act, which are mandatory in
nature the respondents are liable to be evicted. The decisions
relied upon by the respondents in that regard are clearly
distinguishable as they do not relate to the aspect of the claim for
arrears of rent "then due" or being time barred.
Payment of rent to the erstwhile landlord even after he
had issued to notice of attornment on 21-1-1999 also does not
save the respondents from eviction as the erstwhile owner ceased
to be their landlord after the sale of the suit property. Though it
was urged on behalf of the petitioners that even after filing of the
suit, the respondents had not been regular in depositing the
amount of rent which aspect was countered by the respondents,
nothing much would turn on said aspect once it is found that there
has been non-compliance with the provisions of Section 15(3) of
the said Act on account of failure to pay or tender in Court the
entire areas then due.
22. The other ground for seeking eviction is under Section
16(1) (g) of the Act. In the plaint as amended, it has been stated
that the family of the plaintiff no.1 Shri Hariprasad consists of his
wife - Keshribai and two sons Shri Gajadhar and Shri Sanjay.
They also have two daughters who are married. Shri Gajadhar has
WP2735.15.odt 35/47
two daughters while Shri Sanjay has one daughter. It is stated that
Shri Hariprasad was running the business of cloth under the name
of Pooja Saris on the first floor of the suit premises. Shri Sanjay is
working in the firm of M/s Puja Saris, a proprietory concern of the
plaintiff No.1. Said Shri Hariprasad, however, expired during
pendency of the proceedings on 7-6-2013. It is then pleaded that
Shri Gajadhar is working in the firm M/s Shivani Saris which is the
proprietory concern of the plaintiff No.2 - Keshribai. This concern
is being run from a tenanted premises owned by Smt. Madhuribai
Buty at Abhyankar Road. Both the sons intend to carry out the
business independently.
In so far as the plaintiff No.3 is concerned, her family
consists of her husband Shri Bharatbhushan and their two
daughters. The plaintiff No.3 is associated with M/s Bhartiya
Leasing Private Limited, while her husband is an Advocate. The
husband of the plaintiff No.3 does not have any independent office
and the plaintiff No.3 wants to start the business of boutique in the
suit premises. It is stated that the plaintiff No.3 has 50% share in
the entire suit premises and even if she is given her share, the
requirement of the plaintiff No.3 and her family would be met
with great difficulty. It is stated that the plaintiff No.3 is having a
super built up area of about 550 sq. ft. on the first floor and a
WP2735.15.odt 36/47
temporary shed of about 140 sq. ft. that is used as a kitchen and
16 sq.ft. for WC. The terrace on the second floor of the building
situated at Ranapratap Nagar admeasuring about 311.43 sq. mtrs.,
has been allotted to the husband of the plaintiff No.3 in a family
settlement.
It is, therefore, stated that in case a decree for eviction
is passed, the plaintiffs would get an area admeasuring about
1171.50 sq. ft., and the requirement of each of the plaintiffs would
be met as far as possible.
23. In the written statement filed by the respondents these
claims have been denied. Though it is admitted that the plaintiff
No.1 was a Doctor in Homeopathy and the plaintiff No.2 was
doing cloth business in the name of M/s Shivani Saris, it was
stated that though the plaintiff no.2 was doing business in a rented
premises owned by Smt. Madhuribai Buty, in some other
proceedings, the plaintiff nos.1 and 2 have been allotted shops on
ownership basis. It is denied that the sons Shri Gajadhar and Shri
Sanjay are rendering any services for which they are paid
remuneration. They are in fact partners in the business. It is
stated that the plaintiffs owned various other properties including
the property at Rana Pratap Nagar. It is stated that the sons of the
plaintiff Nos.1 & 2 are in fact, managing all the business and they
WP2735.15.odt 37/47
do not require any other premises.
As regards need of the plaintiff No.3 is concerned, it is
stated that M/s Mehadia Marketing Corporation Limited and
Bhartiya Leasing Private Limited are having their own separate
premises in YMCA Complex that have been taken on a lease for 30
years. It is stated that the plaintiff No.3 and her husband are also
doing their business under the name Mehadia Institute of Career
Development. The husband of the plaintiff No.3 has two offices
one on the first floor of the suit premises and another in the YMCA
Complex. It is then stated that the area allotted to the husband of
the plaintiff No.3 at the premises at Ranapratap Nagar are
available from where the plaintiff No.3 and her husband can carry
on their activities. It is then stated that the husband of the plaintiff
No.3 is a legal advisor of Apna Bhandar that is run by the
Marketing Federation and he has been provided space for office
premises.
The respondents in their written statement have also
stated that the petitioner nos.1 and 2 are having premises
admeasuring 2500 sq. ft. at Bajaj Nagar, the same having been
purchased during pendency of the proceedings. It is, therefore,
stated that the need as sought to be canvassed by the plaintiffs is
not bonafide and, therefore, the plaintiffs are not entitled for a
WP2735.15.odt 38/47
decree on said ground.
24. For the purposes of considering the bonafide need of
the petitioners, it would be necessary to note the total area of the
premises in question. The plot area of the suit house is 26' X 92',
which comes to about 2392 sq.ft. The constructed area on the
ground floor is 1618.87 sq.ft. out of which an area of about
1171.50 sq.ft. is in possession of the petitioners. On the first floor
also, the constructed portion is about 1618 sq.ft. which is in
possession of the petitioners. Thus, possession of 1171.50 sq.ft. is
sought by the petitioners from the respondents on account of their
bonafide need.
The bonafide need as pleaded is with regard to
enabling the two sons of the original plaintiff No.1 to start their
own business. As noted above, one son Shri Sanjay is stated to be
working in the proprietary concern of the plaintiff No.1, while the
other son Shri Gajadhar is working in proprietary concern of the
plaintiff No.2. Both the sons are concerned with the Sari business.
The premises in question are required only for the purposes of
commercial use and the need of residential purpose has been given
up. According to the petitioners, the sons of the original plaintiff
No.1 would require about 600 sq.ft. of area on the ground floor
and it is stated that except these premises, they do not own any
WP2735.15.odt 39/47
other non-residential premises. In the cross-examination of the
witness examined on behalf of the petitioners, it is sought to be
suggested that only a show has been made to the effect that the
said two sons of the original plaintiff No.1 were working in the
respective firms. The income-tax returns of the original plaintiff
No.1 and plaintiff No.2 were not placed on record and, therefore,
according to the respondents, this was deliberately done to cover
up the aspect of employment of the two sons. It is to be noted that
both the firms namely M/s. Pooja Sari Center and M/s. Shivani
Saris are proprietary concerns owned by the original plaintiff No.1
and plaintiff No.2. Though, both the sons may not be in actual
employment in the aforesaid proprietary concerns, considering the
fact that the same are owned by their parents, the fact remains
that both the sons are engaged in Sari business that has been
started by their parents.
25. It is a fact that the original plaintiff no.1 is no more.
It is admitted in the cross examination of the petitioners' witness
that now Shri Sanjay is looking after said concern. It is not the case
that after the death of the original plaintiff no.1, the other son Shri
Gajadhar has staked any claim in M/s Pooja Sari Center.
According to the respondents, the proprietary concern run by the
plaintiff No.2 under the name M/s. Shivani Saris is being
WP2735.15.odt 40/47
conducted in a tenanted premises at Abhyankar Road. According
to the respondents, there was some compromise entered into with
the owner of said premises Smt. Madhuri Buty and reference is
made to an agreement in that regard, which is at Article-E.
According to the respondents, the original plaintiff No.1 was to
receive 1700 sq.ft. of area in the complex that was to be
constructed after demolishing the existing structure. Therefore,
according to the respondents, the need in so far as the sons of the
plaintiff Nos.1 and 2 would be satisfied.
The agreement at Article 'E' to which the original
plaintiff nos.1 and 2 were a party was not brought on record by
the petitioners. The petitioners' witness was confronted with the
same in his cross examination. The said witness did not claim to
have detailed knowledge of the same. The respondents are
justified in contending that the same was deliberately not
produced on record as the same would have had affected the
petitioners case of bonafide need. Further, it is not the case that
there was any threat of eviction of Shri Gajadhar from said
premises wherein the original plaintiff nos.1 and 2 were to receive
75% of the constructed area on ownership basis. There is also no
evidence on record to indicate any intention on the part of the two
sons to expand the existing concerns.
WP2735.15.odt 41/47
It can therefore, be seen that presently both the sons,
Shri Sanjay and Shri Gajadhar are managing the two proprietory
concerns owned by the original plaintiff no.1 and plaintiff no.2.
The observations in M. M. Quasim and Gulabbhai (supra) as
regards subsequent events could be made applicable in these
circumstances.
26. Insofar as the need of the petitioner No.3 is concerned,
it has been stated that the petitioner No.3 desires to start her
boutique business in the portion of the premises and her husband
who is an Advocate requires some space for setting up his office.
According to the petitioner No.3, she would require an area
admeasuring about 600 sq.ft. for setting up boutique business on
the ground floor. The evidence on record indicates that the
petitioner no.3 is having built up area of about 550 sq. ft. on the
first floor of the suit premises. Some area is also available on the
ground floor. The petitioner no.3 as well as her husband were
Directors in Mehadia Institute of Career Development. Though it
is stated that it was closed in the year 2008, no documents in that
regard are placed on record. An area of 700 sq. ft. is in possession
of the Company. Though absence of experience on the part of the
petitioner no.3 as regards running of boutique or fabric business
cannot be a ground to hold against the petitioner no.3, at the same
WP2735.15.odt 42/47
time it has not been shown that the area of 550 sq. ft. that is
available on the first floor is insufficient for starting the boutique.
It is to be noted that the need of the petitioner no.3 is stated to be
of 600 sq. ft. for starting the boutique on the ground floor. In this
backdrop therefore the finding with regard to the bonafide need of
the petitioner no.3 as recorded by the appellate Court cannot be
termed to be so perverse to warrant interference. There being no
misdirection of law by the appellate Court while holding against
the petitioners on this count, interference would not be possible as
observed in Mattulal (supra).
27. According to the respondents, the power of attorney
holder could not have deposed about the bonafide need of the
petitioners. Said power of attorney holder could not have deposed
in place of and instead of the principal. In the present case, the
power of attorney holder is the husband of the petitioner No.3 and
the brother of the original plaintiff No.1. He is thus a member of
the family and, therefore, it cannot be said that he had deposed
about those aspects of which only the principal had exclusive
knowledge. Being a member of the family he had personal
knowledge about the bonafide need of his family members.
Moreover, in Ramkubai (supra), it was held that for the purposes
of proving bonafide need, it would not be necessary for the
WP2735.15.odt 43/47
landlord to step into the witness box. It was observed that
bonafide requirement was not a fact which could be established
only by the landlord. The decisions relied upon in the case of Janki
Bhojwani, Church of Priest, Man Kaur, Kesari Gaur and Varsha
Maheshwari (supra) cannot come to the aid of the respondents in
support of their submission that the power of attorney holder
could not have deposed in place of the petitioners.
28. The husband of the petitioner No.3 intended to have
his office on the first floor of the premises and it is stated that he
requires an area admeasuring about 500 sq.ft. for the same. It has
come in his deposition that he along with the petitioner No.3 were
the Directors in Mehadia Tourist Hotel Private Limited. He has
further stated that he is the legal advisor of Maharastra State
Cooperative Consumers Federation Limited which is running
"Apna Bhandar". In his cross examination, he has stated that
though he was practicing since last about 30 years, he was not
having any separate office and was operating from his residence.
He has further stated that the area of about 80,000 square feet
belonging to YMCA is in possession of Mehadia Tourist Hostel Pvt.
Ltd.
It is to be be noted that though the husband of the
petitioner No.3 was practicing since last 30 years, he could do so
WP2735.15.odt 44/47
by having his office at his residence. There is no evidence brought
on record to indicate that the place from where he is conducting
his office is either insufficient or is inconvenient for him to do so.
His need for running the office, therefore, does not appear to be so
pressing in nature. It appears from the evidence on record that his
need as projected for setting up an office is merely a desire which
can be distinguished from a pressing need.
In so far as the premises at Ranapratap Nagar are
concerned, the husband of the petitioner No.3 has received the
terrace portion on the second floor of said building to the extent of
311 square meters. The said premises are being used by the
brothers of the husband of the petitioner No.3 for the purposes of
residence. These premises are available to the husband of the
petitioner no.3 for residence as he has a share therein.
29. In Shankar Vadangekar (supra), it was observed that
the landlord is the best judge of his requirements and that it is not
for the Courts to dictate to the landlord as to how and in what
manner he should leave. It was further observed that it could be
presumed that the requirement of the landlord is bonafide and
when the same is so asserted, the onus is on the tenant to show
that the suit premises are neither reasonably nor bonafide required
by the landlord. In Sarvate T. B.(supra), it was observed by the
WP2735.15.odt 45/47
Hon'ble Supreme Court that the word "genuinely" would mean
honestly or in good faith. It was held that the burden to prove the
genuine need was upon the landlord and mere assertion in that
regard would not raise any presumption that the landlord
genuinely requires the premises for his use. In S.J. Ebenezer and
Govind (supra), it was observed that mere desire on the part of the
landlord was not sufficient and the matter must be examined
objectively.
ig Considering the entire material on record and
especially the aspects of both the sons, Shri Sanjay and Shri
Gajadhar looking after the separate business firms of the original
plaintiff nos.1 and 2 respectively coupled with the availability of
area with the plaintiff no.3, I do not find it proper to disturb the
finding recorded by the appellate Court in this regard. Though it is
urged on behalf of the petitioners that the appellate Court has not
correctly considered the area available to the petitioners in the suit
premises and that no construction was possible in the area
admeasuring 700 sq.ft. On the ground floor, the same would not
have the effect of rendering the finding recorded by the appellate
Court that the bonafide need was not proved to be perverse. On
re-consideration of the material on record, it cannot be said that
the view of the appellate Court is either an impossible view or that
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the same is perverse. Said finding recorded by the appellate Court
on the ground of bonafide need therefore, does not call for any
interference in writ jurisdiction.
30. Coming to the aspect of hardship as contemplated by
provisions of Section 16(2) of the said Act, once it is found that the
petitioners have failed to make out a case of bonafide need, there
is no question of passing a decree under Section 16(1)(g) of the
said Act. If no such decree is to be passed, the question of
considering greater hardship would therefore, not arise for
consideration.
31. Hence, for all the aforesaid reasons, it is held that the
petitioners are entitled for a decree of eviction on the ground that
the respondents are in arrears of rent and are liable to be evicted
under provisions of section 15(3) of the said Act. However, the
petitioners have not made out a case for eviction of the
respondents under provisions of Section 16(1)(g) of the said Act
on the ground of bonafide need.
Accordingly, the judgment of the appellate Court in
Regular Civil Appeal No.350/2014 is quashed and set aside. Civil
Suit No.202/2005 is partly decreed and the petitioners are held
entitled for a decree of eviction of the respondents on the ground
of arrears of rent. The writ petition is allowed in aforesaid terms
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with no order as to costs.
JUDGE
//MULEY//
