Shri.Jainarayan Bodhuram Tiwadi ... vs Smt.Kesarbai Babulal ...
2017 Latest Caselaw 3613 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 2326 OF 1997


        Shri Jainarayan Bodhuram Tiwadi
        since deceased through his
        legal heirs & representatives
        (A) Ramkrishna Jainarayan Tiwadi
        since deceased through his
        legal heirs & representatives
        (i) Murlidhar Ramkrishna Tiwadi & Ors.       ..      Petitioners
              vs.
        Smt. Kesarbai Babulal Badhai
        since deceased through her
        legal heirs & representatives
        a) Sau. Shakuntala Chandrakant
        Pardeshi & Ors.                             ..       Respondents


        Mr. S. G. Surana for Petitioners.
        None for Respondents.

                                       CORAM : M. S. SONAK, J.
                Date of Reserving the Judgment   : 23 JUNE 2017
                Date of Pronouncing the Judgment : 27 JUNE 2017

        JUDGMENT :

1] Heard Mr. S. G. Surana, learned counsel for the petitioners.

The respondents, though served, neither present nor represented.

2] The petitioners are the tenants - legal representatives of the

tenants in respect of the suit premises, of which, the respondents

are the landladies - legal representatives of the landladies. The suit

premises comprised one room situate in CTS No. 664, Raviwar

Peth, Pune (suit premises).

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        3]      The landladies in the year 1982 instituted Suit No. 2150 of

1982 in the Small Causes Court, Pune (trial Court) seeking the

eviction of the petitioners on the following grounds:-

(A) That the tenant has acquired vacant possession of a

suitable residence. This is a ground contemplated under

Section 13 (1)(l) of the Bombay Rents Hotel and Lodging

House Rates Control Act, 1947 (Rent Control Act);

(B) That the suit premises are reasonably and bona fide

required by the landladies for their personal occupation or by

persons for whose benefits the suit premises are held. This is

a ground contemplated under Section 13(1)(g) of the Rent

Control Act.

4] The trial Court, by judgment and decree dated 16 th April 1985,

decreed the landladies suit and ordered the eviction of the tenants

on both the aforesaid grounds. Aggrieved by the same, the tenants,

instituted appeal to the District Court at Pune, which appeal, was

made over to the Additional District Judge, Pune (Appeal Court) and

numbered as Civil Appeal No. 801 of 1985. The Appeal Court, by

judgment and decree dated 3rd March 1977, has dismissed the

Appeal. Hence the present petition by the petitioners - tenants and

legal representatives of the tenants.

        5]      Mr. Surana, learned counsel for the petitioners has made the






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following submissions in support of the petition :-

(A) That the material on record very clearly establishes that

it is not the tenant who has acquired any alternate suitable

residence but it is the sons of the tenants who have acquired

alternate residences for their own use. In such

circumstances, it could never have been held that the ground

as contemplated under Section 13(1)(l) of the Rent Control

Act was made out. There is jurisdictional error in ordering

eviction upon the said ground. The view taken by the two

Courts is contrary to the decisions of this Court in the case of

Amrut Vishnu Keskar vs. Bhaskar Trimbak Gokhale1 and

Shankar Nana Waychal & Ors. vs. Mohan Ganesh Date &

Anr.2

(B) The trial Court and the appeal Court have clearly erred

in holding that this was a case of joint family and therefore the

acquisition of alternate suitable residences by the sons of the

original tenant attract the ground as contemplated by Section

13(1)(l) of the Rent Control Act. Mr. Surana submits that this

was not even the case pleaded by the landladies in their suit

seeking decree of eviction. In any case, Mr. Surana submits

that there is absolutely no evidence to sustain such a finding.

(C) The case of bona fide requirement has not been

1 1983 Mh.L.J. 1017 2 1984 Mh.L.J. 834

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made out in the facts and circumstances of the present case.

This is because the plaintiff nos. 2 and 3 were the married

daughters of the original tenant i.e. plaintiff no. 11. Secondly,

the plaintiff no. 3 was residing at Jalgaon and plaintiff no. 2 at

Hadapsar. The requirement of plaintiff nos. 2 and 3, could

never been regarded as bona fide requirement. In any case,

the issue of comparative hardship, in such

circumstances, was required to be decided in favour of the

tenants and not the landladies.

(D) After the impugned decree for eviction were made, the

landladies, have secured possession of premises

admeasuring 450 sq. ft. in the very same building in which

the suit premises are located from Mr. Tulshiram Mundada.

Mr. Surana submits that the cognizance is required to be

taken of this subsequent development and upon such

cognizance being taken, the ground of bona fide requirement

no longer survives. Mr. Surana relies upon the provisions of

Order XLI Rule 27 or in any case principles thereof, in

support of his submission that such additional evidence be

taken into consideration at this stage.

6] With the assistance of Mr. Surana I have perused the

impugned judgments and decrees as also the material on record.

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Mr. Surana has also taken me through the averments in the

additional affidavit filed by and on behalf of the petitioners on 20 th

June 1997 as well as the affidavit in reply filed by the respondents -

landladies, in response to the same. The issue which arises for

determination in this petition is whether, the concurrent findings of

fact recorded by the trial Court and confirmed by the appeal Court

warrant interference by this Court in the exercise of its extra

ordinary jurisdiction under Article 227 of the Constitution of India.

7] Section 13(1)(g) of the Rent Control Act entitles the landlord /

landlady to recover possession of the tenanted premises where,

such premises are reasonably and bona fide required by the

landlord / landlady for personal occupation or occupation by any

person or whose benefit the premises are held. Section (2) of

Section 13 of the Rent Control Act however provides that no decree

for eviction shall be passed on the grounds specified in Section

13(1)(g) of the Rent Control Act if the court is satisfied that, having

regard of the circumstances of the case including the question

whether other reasonable accommodation is available for the

landlord or a tenant, greater hardship could be caused by passing

the decree than by refusing to pass it. Further, where the court is

satisfied that no hardship would be caused either to the tenant or to

the landlord by passing the decree in respect of the part of the

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premises, the court shall pass the decree in respect of such part

only.

8] In this case, as noted earlier, the suit premises comprises of

a single room situate on the first floor in the building on Plot bearing

CTS No. 664, Raviwar Peth, Pune. The plaintiff no. 1 occupies the

another one room to tenement with open terrace on the second

floor of the same building. The ground floor comprised two shops,

one of which, was tenanted to Mr. Mundada and the other to Mr.

Alwani. The second room on the first floor i.e. the room adjacent to

the suit premises is also tenanted to one Smt. Shah.

9] There is evidence on record that the plaintiff no. 2, who is

also, the landlady in respect of the suit premises resides at

Hadapsar, Pune in a slum area with her family, since, there was no

enough room, in the premises of the second floor held by the

plaintiff no. 1, her mother. Similarly, the plaintiff no. 3, who normally

resides at Jalgaon, but, who has to visit Pune very often, also, had

no suitable place to stay in Pune. The plaintiffs - landladies

therefore instituted proceedings for eviction and recovery of

possession of the suit premises on the ground that the same are

bona fide and reasonably required by the plaintiffs for their

occupation.

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        10]     There is ample material on record to establish the ground of

reasonable and bona fide requirement. It is settled position in law

that the requirement is required to be construed from the

perspective of the landlords / landladies and it is not for the tenants

to dictate any terms to the landlords / landladies in such matters.

However, the requirement has to be both reasonable and bona fide.

There is accordingly, no unfettered discretion vested in the landlords

/ landladies and it is for the courts to determine whether the

requirement is indeed reasonable and bona fide, taking into

consideration all the circumstances of the case. Further, the Court,

is not to make a decree of eviction on this ground, unless, it is

satisfied that, having regard to all the circumstances of the case

including question whether the other reasonable accommodation is

available to the landlord or the tenant, whether, greater hardship

would be caused by passing the decree of eviction than by refusing

to pass the same. Further, the court is also required to consider

whether the decree can be made only in respect of part of the

premises.

11] In the present case, as noted earlier, the suit premises is only

a single room tenement. Therefore, there is no question of making a

decree only in respect of part of the premises. Mr. Surana, learned

counsel for the petitioners did not even make any such submission,

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possibly because it was his case that there is no material on record

to sustain any decree on the ground as contemplated by Section

13(1)(g) of the Rent Control Act.

12] The material on record, very clearly establishes both

reasonability and bona fides of the requirements of the landladies.

Admittedly, all the plaintiffs, are accepted to be the landladies in

respect of the suit premises. This position was never seriously

contested and therefore, there is no scope to entertain the

submission that since the plaintiff nos. 2 and 3 were married

daughters, they were disentitled to seek eviction or in any case no

eviction decree can be made at their behest. The material on record

further establishes that it is reasonable even for the plaintiff no. 1 to

require additional space, on the first floor, when, she is admittedly

residing in a similar one room tenement on the second floor, in

order to accommodate the plaintiff nos. 2 and 3 who are her

daughters and also landladies in their own right along with their

family members.

13] The plaintiff no. 2, as per the material on record, is forced to

reside at Hadapsar in a slum and there is nothing unreasonable or

nothing malafide in plaintiff no. 2 wanting to occupy her own

premises, though tenanted to the petitioners. Similarly, there is

nothing unreasonable in the claim of the plaintiff no. 3, though, the

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claim of the plaintiff no. 3 may not stand at par with the claim of the

plaintiff nos. 1 and 2. The trial Court and the appeal Court had

recorded concurrent findings of fact on the aspect of bona fide and

reasonable requirement. There is no perversity in the record of such

findings of fact. There is no exclusion of any relevant material nor is

this the case where any irrelevant material has influenced the

record of the findings of fact. This is also not a case of 'no evidence'

so as to warrant interference with concurrent findings of fact under

Article 227 of the Constitution of India.

14] On the aspect of comparative hardship, there is more than

ample evidence on record to sustain findings concurrently recorded

by the two Courts. In this case, the original respondent - tenant was

a very old person, 90 years of age. In the building adjacent to the

building in which the suit premises are located, the petitioners have

a flat in Kalyan Society having three rooms and a toilet. There is

evidence on record in the form of voters list and ration card which

establishes that tenant was in fact staying in this flat along with his

son Laxminarayan. That apart, again, in the neighbourhood, the

petitioners, have another premises with two storeys, which is in the

name of Ramkishan. Again, the premises in Kalyan Society and the

two storied building occupied by some of the petitioners have all

modern amenities and it is, in these premises, that the original

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tenant, who was aged more than 90 years, was really residing with

his children. Therefore, even if a decree of eviction were to be

made requiring the petitioners to vacate the single room tenement

i.e. the suit premises, no hardship would really be caused to the

petitioners. In any case, the hardship which will occasion the

landladies by denying them a decree of eviction will be far greater

than any hardship which will occasion the petitioners in the facts

and circumstances of the present case. Therefore, the two Courts,

have quite correctly decided the issue of comparative hardship in

favour of the landladies and there is really no case made out to

interfere with the same.

15] Without going into the issue of a procedure, even if the

additional affidavit filed by the petitioners is taken into consideration,

there is really no case made out to interfere with the concurrent

findings of fact recorded by the two Courts on the aspect of bona

fide and reasonable requirement or comparative hardship. In the

affidavit filed by one of the landladies in response to the additional

affidavit filed by one of the petitioners there is no denial of the

circumstances that the landladies have obtained possession of one

of the shops on the ground floor from Mundada. However, what is

pointed out is that such possession was obtained some time in the

year 1995 and further, to the knowledge of the petitioners, the shop,

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has been tenanted to one Smt. Parmar. It is pointed out that

despite knowledge, the plea which is now sought to be raised by

way of affidavit was never raised earlier by the petitioners. Such a

plea was also not raised in writ petition no. 4284 of 1985 which was

disposed of by this Court on 18th October 1996. Further, it is

pointed out that the shop premises admeasure only 132 sq. ft.,

whereas, the suit premises admeasure 369 sq. ft. The ground as

contemplated under Section 13(1)(g) of the Rent Control Act was

invoked by the landladies in the context of their personal

requirement for additional residential space. Therefore, even if, the

landladies have acquired 132 sq. ft. of space on the ground floor,

which was a shop and which continues to be a shop, such ground is

not sufficient to interfere with the findings of fact concurrently

recorded. Therefore, even after taking into consideration the

additional material produced on record by the petitioners, there is

no case made out to disturb the concurrent findings of fact recorded

by the two Courts in so far as ground as contemplated by Section

13(1)(g) of the Rent Control Act is concerned. The decree of

eviction is therefore liable to be confirmed on this ground.

16] In so far as the ground as contemplated by Section 13(1)(l) is

concerned, there is no necessity of deciding whether such ground

stands established in the facts and circumstances of the present

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case. This is because once the decree is sustained on the ground

as contemplated by Section 13(1)(g), the petitioners, cannot escape

eviction from the suit premises. However, it must be noted that there

is prima facie merit in the submission of Mr. Surana that the

ingredients of the ground as contemplated under Section 13(1)(l) of

the Rent Control Act may not have been made out in the present

case. This is because the material on record does establish that the

two residential premises referred to by the landladies are in the

name of the two sons of the original tenant. It does appear to have

been the case of the landladies that the tenant was a joint family

and therefore, acquisition of alternate suitable residences by

members of the joint family have afforded them cause of action for

secured eviction under Section 13(1)(l) of the Rent Control Act.

17] In Amrut Vishnu Keskar (supra), the learned Single of this

Court has held that a tenant (aged father) who, on account of his

old age began staying with one of the sons in the son's self

acquired property, cannot be evicted on the ground of acquisition of

alternate suitable residence. No doubt, in the facts of the said case,

another son, continued to occupy the suit premises. Similarly, in

case of Shankar Nana Waychal (supra), this Court has held that

acquisition of independent residence by the tenant's son cannot be

a ground for eviction of the tenant under Section 13(1)(l) of the Rent

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Control Act.

18] Thus, for the reasons as aforesaid, there is no case made out

to interfere with the impugned orders in the exercise of extra

ordinary jurisdiction under Article 227 of the Constitution of India.

This petition is therefore dismissed. Interim order, if any, is hereby

vacated. There shall however be no order for costs.

(M. S. SONAK, J.)

19] At this stage, learned counsel for the petitioners seeks for

continuation of interim relief granted at the time of admission of this

petition for further period of eight weeks. The request is reasonable

and therefore the interim order is extended by a period of eight

weeks from today, subject to the condition that even the petitioners

shall maintain status quo in respect of the suit premises. Learned

counsel for the petitioners assures this Court that it is the petitioners

who are in possession of the suit premises.

(M. S. SONAK, J.) Chandka