Bombay High Court

Suresh Narayan Sharma And Another vs Paramila Mahadu Bhamre And ... on 3 April, 2017

Bench: S.P. Deshmukh

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

             CIVIL REVISION APPLICATION NO. 57 OF 2016


 1.       Suresh s/o Narayan Sharma
          Age : 45 years, occup. Business,

 2.       Ramesh s/o Narayan Sharma,
          Age : 57 years, occup. : Business,

          Both R/o Afu Lane, Chalisgaon,       .. Applicants/
          Tq. Chalisgaon, Dist. Jalgaon           Orig. Defendants

                  versus

 1.       Paramila d/o Mahadu Bhamre,
          Age : 66 years, occup. Labour,

 2.       Bebi d/o Mahadu Bhamre,
          Deceased,
          Respondent no. 1 is the legal heir of Respondent no. 2
          Respondent no. 1 R/o Afu Lane,
          Chalisgaon, Tq. Chalisgaon,         .. Respondents/Resp.
          Dist. Jalgaon                          No.1 orig. plaintiff

            -----
 Mr. Ravindra M. Deshmukh, Advocate for applicants
 Mr. Raj Devdhe, Advocate h/f Mr. S.P. Brahme, Advocate for
 respondent


                               CORAM :   SUNIL P. DESHMUKH, J.

                               DATE :    3rd April, 2017


 ORAL JUDGMENT :


 1.       Rule. Rule made returnable forthwith.           Heard learned

 counsel for parties finally, by consent.





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2. Applicants-heirs of deceased defendant in regular civil

suit no. 232 of 2001 filed by present respondents are before

this court, aggrieved by judgment and decree passed by

appellate court [Principal District Judge, Jalgaon] on

16-01-2016 allowing regular civil appeal no. 58 of 2009 filed

by respondents herein-original plaintiffs taking exception to

decree of dismissal by trial court [civil judge, junior division,

Chalisgaon] of their aforesaid suit seeking eviction of

defendant on 23-01-2009.

3. The plaintiffs who are two real sisters, one of whom

suffered epilepsy, had been before trial court under aforesaid

regular civil suit no. 232 of 2001 seeking decree of eviction of

original defendant who is now represented by his sons -

present applicants from suit premises comprising 10' x 10'

dimension room, inter alia, on the ground that suit premises

are required by the two sisters reasonably and bonafide for

personal occupation correspondingly claiming, greater

hardship would be caused to them if eviction is not ordered,

suit premises having become dilapidated and those cannot be

rebuilt/repaired without defendant vacating the same. Suit

was preceded by a notice to defendant at the instance of

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plaintiffs, additionally, on the ground of commission of default

by defendant.

4. Defendant opposed the claims, averring that plaintiffs -

two sisters do not require suit premises reasonably and

bonafide. He has been running a grocery shop in suit

premises. He does not have any other property, income from

the shop is the principal source of livelihood. The plaintiffs

have with ulterior motive caused demolition of structure in

defendant's possession. He was compelled to repair roof of

suit shop and that he was forced to pay rent at enhanced rate

of Rs.200/- with increase of Rs.50/- per month.

5. Trial court had framed issues as to whether tenancy of

defendant can be said to have been terminated under the

provisions of the Maharashtra Rent Control Act; whether suit

premises are required reasonably and bonafide by plaintiffs; to

whom greater hardship would be caused; whether the

plaintiffs prove suit property to be in dilapidated condition and

defendant is liable to be evicted. The trial court adjudged

that plaintiffs have not been able to prove that the suit

premises are required by them reasonably and bonafide and

finding is recorded, though greater hardship would be caused

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to the plaintiffs, the premises would be required to be evicted

by the defendant in order to enable the plaintiffs to carry out

repairs, further recording a finding that suit premises had

become dilapidated and, dismissed plaintiffs' suit.

6. Plaintiffs carried the matter before district court in

regular civil appeal no. 58 of 2009. The district court had

framed points for determination as to whether notice

terminating tenancy had been necessary, recording finding in

the negative. The appellate court further observed that with

reference to compromise Exhibit - D, the plaintiffs may not be

able to lay claim to possession, however, so far as other

grounds for eviction are concerned, viz; reasonable and

bonafide requirement of plaintiffs of suit premises and about

comparative hardship being suffered, held that the plaintiffs'

requirement is reasonable and bonafide and they would suffer

greater hardship, further holding in plaintiffs' favour additional

point about suit premises being required by the plaintiffs for

repairs which could not be carried out without the room being

vacated. Thus, the appeal is allowed accordingly.

7. Learned counsel Mr. R. M. Deshmukh, appearing on

behalf of the applicants - heirs of deceased defendant

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contends that for about 55 years, defendant had been

carrying on business over suit premises forming his principal

source of income. The defendant had been an old man. He

further submits that plaintiffs have caused demolition of

upper floor structure which had been available to plaintiffs for

occupation and they had been after the defendant seeking

possession of suit premises. He submits that defendant had

no other accommodation available for carrying on business.

Plaintiffs have some portion behind suit premises for

occupation and may have certain other properties. He further

purports to point out an element of discord which had been

subsisting for quite some time between two sisters-the

plaintiffs.

8. He submits, appellate court so far as other grounds are

concerned, almost concurred with the findings of trial court

albeit held that a notice may not be necessary. Mr. Deshmukh

submits that the findings recorded by the two courts hitherto

are conflicting and as such revision deserves to be considered

favourably and reversal of finding of the trial court by the

appellate court in respect of requirement of the plaintiffs

being reasonable and bonafide and comparative hardship in

favour of plaintiff deserves to be set aside.

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9. In the circumstances, according to the learned counsel,

reversal by appellate court of finding recorded by trial court in

respect of requirement and desire of plaintiffs not being

reasonable and bonafide is untenable and cannot be said to

have been supported by any material. He, therefore, urges to

allow the civil revision application.

10. Learned counsel Mr. Devdhe, appearing for respondents

- plaintiffs submits that the judgment and discussion in the

same as a whole and its tenor more than sufficiently brings

forth that need of plaintiffs to occupy suit premises has not

only been reasonable and bonafide but the same is genuine. He

submits, perusal of judgment of trial court would evince that

one room premises occupied by the two sisters had crumbled

down and plaintiffs had to go to some other place and

submits, although it is contended on behalf of the applicants

that there is area available behind suit premises, yet no

evidence in said respect had come forth before the court.

Aforesaid apart, he submits, on defendant's own showing, the

condition of said premises being dilapidated has become

established fact. The defendant had not been in a position to

show that plaintiffs had any other accommodation available

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save suit premises. On the other hand, it emerges that

defendant had some other property in weekly market of

Chalisgaon and he draws attention to that said premises are

of larger size than suit premises. He, therefore, submits that

although effectively suit has been dismissed, observations

and the finding recorded, to a large extent, show that

plaintiffs had claimed eviction of the defendants on the

grounds referable to section 16 (g) and 16(h), coupled with

that the plaintiffs' need is supported by the provisions of

section 16(2) of the Act. He submits that dismissal of the suit

was an error committed by the trial court. As a matter of fact,

upon observations by the trial court, suit ought to have been

decreed. He submits that error committed by trial court has

been corrected by appellate court for all right reasons and on

the established evidence.

11. Having heard learned counsel as aforesaid, perusal of

the judgment by trial court and the one by appellate court, it

would appear, observations therein are pointer to that

plaintiffs have more than sufficiently discharged burden of

proof of their requirement to be reasonable and bonafide and

the same is corroborated and reinforced to some extent, by

the evidence of defendant himself. The discussion with regard

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to discrepancies noted by trial court has little relevance so far

as the object underlying suit is concerned. That can hardly be

said to take away the need of plaintiffs of suit premises. It

has emerged on record that the only room occupied by the

plaintiffs had crumbled and came down and they had to leave

the property owned by them. It does not appear, any

evidence was brought forth by defendant to indicate that any

alternate premises being available for occupation of plaintiffs.

The only premises under the circumstances available to

plaintiffs were suit premises in occupation of defendant which

too had been dilapidated. So far dilapidated condition of the

property is concerned, the parties are not divergent.

12. In the circumstances, consideration by trial court about

need of plaintiffs being not reasonable and bonafide had been a

fragile consideration and mistake which has occurred at the

trial stage has been corrected at appellate stage. Appellate

court while giving its findings has made observations in

paragraphs no. 19, 20, 21, 22 and 25 as reproduced herein

below,

'' 19) In his cross examination the defendant Narayan Sharma admitted that on the upper floor of suit property the appellants used to reside and because portion in their possession had

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crumbled, they were no longer residing there. He has further stated that because the appellants required the suit room, they had filed the suit. Subsequently he qualified this statement by adding that behind the suit property, property of the appellants was there. Thus, he implied that the appellants could utilize said property for their residence. The trial Court did not accept contention of the appellants that they required the suit room reasonably and bona fide for their personal occupation primarily on the ground that there was some variance between what they had pleaded in plaint para 3B and what appellant No. 1 had stated before the Court. This variance was only on the point of nature of terms between the appellants. They pleaded that their terms were strained. On the other hand, appellant No. 1 conceded that their terms were cordial and they intended to manage their affairs jointly.

20) It was argued by advocate Mr. R. D. Paranjape for the appellants that the trial court ought to have taken into account entire material on record on the point of bona fide requirement of the appellants instead of solely relying on aforementioned variance between pleadings and proof. It was further argued that while considering question of bona fide requirement the trial Court did not take into account legal position crystallized by binding precedents. In support of this submission reliance was placed on following rulings :

I] Shri. Noshir Jehangir Postwalla Vs. Shri. Keki Tattanji Postwalla (2000 Bom. R. C. 44]. In this case, it is observed :

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'' It has been held in the recent judgment of the Supreme Court in the case of Raghunath G. Panhale (Dead) V Chaanlal S & Co., 2000 Vol. 102 [1] Bom. L.R. 95 (S.C.) as follows :

'' The word requirement coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. ''

It is further held in the said case as follows :-

'' A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. ''

2] Balwant P. Doshi Vs. Shantaben Dhirajlal Shah and another (2002 Bomb. R.C. 516].

In this case it is held :

'' It is well settled that the courts cannot ordinarily doubt the bona fide need of the landlord nor the courts can dictate to the landlord as to how the premises owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises which are owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists. ''

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3] Rameshwar Nanakram Prajapal vs. Sundrabai Keru Ghadage (2003 (2) Mh. L. J. 178 (Bom))

In this case, it is observed :

'' The Hon'ble Supreme Court had occasion to consider the said point in the case of Prativa Devi (supra) and held that ; '' it is well settled law that the landlord is the best judge of his residential requirement and has a complete freedom in the matter. It is no concern of the courts to indicate to the landlord how and in what manner he should live or to prescribe for him a residential standard of their own. ''

It was argued by advocate Mr. R. D. Paranjape for the appellants that not only appellant no. 1 stated about bona fide requirement, defendant Narayan Sharma also accepted this position though he subsequently tried to wriggle out of it and considering entire material on record on this point as well as legal position laid down in above referred rulings, findings recorded to the contrary by the trial court cannot be sustained. In reply, it was submitted by advocate Mr. M. B. Jadhav for the respondents that the main ground on which the appellants tried to support their prayer for possession of suit room was strained terms between the appellants and since appellant no. 1 expressly admitted that their terms were cordial no fault could be found with the conclusion reached by the trial court that the appellants had failed in proving their bona fide requirement. I have referred to various other circumstances which have come on record viz. the portion which was in the possession of the appellants had come

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down, they had shifted elsewhere and this was admitted by defendant Narayan Sharma. On consideration of entire material on record, I have come to the conclusion that the finding recorded by the trial court on the point of bona fide requirement of the appellants is contrary to record. Said issue ought to have been answered in favour of the appellants. Point no. 3 is accordingly answered in the affirmative.

21) As mentioned earlier, the trial court erred by clubbing issues 3 and 5 instead of issues no. 2 and 3. The trial Court answered issue no. 3 which was on the point of greater hardship, in favour of the appellants/plaintiffs. This finding was sought to be connected with finding on issue no. 5 regarding the appellants needing vacant possession of the suit room for the purpose of carrying out repairs (to the portion which was in their occupation). I have already quoted relevant provisions in para 17 of this judgment. There was absolutely no nexus between issue no. 5 and question of greater hardship which was covered by issue no. 3. Under the circumstances, question of greater hardship will have to be considered in relation to finding which is recorded on point no. 3.

22) The appellants pleaded that portion of suit property which was in their possession had crumbled and except the suit room, no other accommodation was available for them. Appellant no. 1 gave identical version in her examination in chief. In her cross examination she stated that suit room was the only space available to Narayan Sharma to run his shop and this was his only source of income. In this cross examination, Narayan

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Sharma initially stated that because of his advanced age he was not doing any business. He then stated voluntarily that he used to work in his shop. He has further stated that portion situated on upper floor of suit property which was in the possession of the appellants' had come down and since then the appellants had shifted elsewhere. Though he claimed that behind the suit property there was another property of the appellants, he conceded that to support this assertion there was no material except his bare words. He further admitted that, at a spot where weekly bazaar is held at Chalisgaon, he owned property admeasuring 20 feet x 25/30 feet. According to him, to the south of said property there is hospital of Dr. Jain and adjacent to the hospital there is medical shop.

23) It was argued by advocate Mr. R. D. Paranjape for the appellants that on the basis of material on record, point of greater hardship will have to be answered in favour of the appellant. In reply, it was submitted by advocate Mr. M. B. Jadhav for the respondents that alleged admission given by Narayan Sharma regarding owning a property at weekly bazaar, Chalisgaon, is vague because there is nothing to show that the property referred to by the witness is having construction over it where he could run a shop.

24) It was argued by advocate Mr. R. D. Paranjape for the appellants that Narayan Sharma ought to have started search for alternative premises to run his shop after suit was instituted against him and since there is no evidence to show that he had taken such steps point of greater hardship will have to be

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answered in favour of the appellants. In support of this submission reliance was placed on following rulings :

1) Narsinha Narayan Shirodkar Vs. Vasant Ganpat Shinde and another (1996 Bom. RC 152).

In this case, there was evidence to show that the tenant had not made any attempt to find out whether alternative premises were available or not. On the basis of such conduct, question of greater hardship was answered against him.

2) Suhasini Atmaram Parab & ors. Vs. B. H. Khatu and others (2003 Bom. R.C. 313).

In this case it is held ;

'' The court has to take into account all the attending circumstances and if the tenant has failed to plead and prove the fact that it is impossible to get alternate accommodation in the same locality or for that matter in the same city then the issue will have to be answered against the tenant. ''

25) It was argued by advocate Mr. R. D. Paranjape for the appellants that Narayan Sharma did not either plead or depose that he had taken search for alternative premises and on account of such conduct finding on the point of greater hardship is bound to go against him. It was pointed out that the suit was filed on 4-

10-2001 and it was decided on 23-1-2009. Admittedly, there is no evidence to show that during pendency of the suit, Narayan Sharma had taken search for alternative premises for shifting his

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shop. Taking into account evidence on record and legal position laid down in afore cited rulings, point no. 4 has to be answered in favour of the appellants. It is accordingly answered. '' ,

which appear to be quite apt.

13. Appreciation by the appellate court is unimpeachable

and does not call for any interception in the revisional powers.

14. Civil revision application, as such, stands dismissed.

Rule stands discharged.

15. At this stage, Mr. R. M. Deshmukh, on behalf of the

applicants urges for reasonable time for vacating suit

premises, submitting that defendant had been and after him

present applicants are in possession of the same for over fifty

five years. Learned counsel for respondents - plaintiffs

opposes the request, stating that for almost a year revision

is pending.

16. Taking overall view, I deem it appropriate to grant some