Mr Jagannath Ramchandra Bhikhu vs Smt Shubhada Ramakant Patange And ...
2017 Latest Caselaw 3804 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CIVIL APPELLATE JURISDICTION

       CIVIL REVISION APPLICATION NO.704 OF 2016


Mr Jagannath Ramchandra Bhikhu                    ... Applicant
     v/s
Smt Shubhada Ramakant Patange
and another                                       ... Respondents

                          .............
Mr Prashant G. Sawant i/b Mr Vijay S. Gaikwad for Applicant.
Ms Preeti H. Gada for Respondent Nos.1 and 2.
                          .............

                                  CORAM : B.P. COLABAWALLA, J.

DATE : JUNE 30, 2017

ORAL JUDGMENT : (Per B.P.Colabawalla J.)

1. This Civil Revision Application filed under section

115 of the Civil Procedure Code, 1908 (for short "the C.P.C.")

takes exception to the judgment and order dated 19th October

2016 passed by the learned Appellate Bench, Small Causes

Court, Bombay in Appeal No.89 of 2009. The Applicant before

me was the Defendant before the Trial Court and the

Respondents herein were the Plaintiffs. The Plaintiffs had filed

a suit being R.A.E. & R. Suit No.807/1247 of 2006. This Suit

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came to be dismissed by the Trial Court. Being aggrieved

thereby the Plaintiffs approached the Appellate Bench which

partly decreed the Suit in favour of the Plaintiffs by the

impugned judgment and order. It is in these circumstances that

the Defendant (the Applicant herein) is before me in my

revisional jurisdiction.

2 The brief facts that need to be noted are that the

Plaintiffs are the owners of 100, Patange Chawl, Ground Floor,

Takya Ward, Kurla, Mumbai 400 070. As far as the suit

premises are concerned, the same is Room No.1 on the ground

floor of this property (hereinafter referred to as the "suit

premises"). The suit premises were let out to one late Mr

Ramchandra Bhikhu for residential purposes at Rs.12.90 per

month. The Defendant claims to be the only heir and legal

representative of late Mr Ramchandra Bhikhu. It was the case

of the Plaintiffs that the Defendant had failed and neglected to

pay rent from 1st November 1996 along with the property

taxes. It was also alleged that the Defendant, without the

Plaintiffs' written consent, had carried out construction of a

permanent nature and had also unlawfully sublet or given on

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license the whole or part of the suit premises. Lastly, it was

contended by the Plaintiffs that they bonafide required the suit

premises for their own occupation and for the members of their

family. It is on these grounds that the Plaintiffs approached the

Court of Small Causes, Bombay by filing R.A.E. & R. Suit

No.807/1247 of 2006.

3. In the plaint, it was averred that Plaintiff No.1 is 76

years old and is residing in a rented premises which is on the

third floor of a building called Dhoble Bhuvan. It was stated

that due to her old age, the third floor premises were not

convenient for her residence. The other grounds, namely,

construction of a permanent nature as well as arrears of rent

and unlawful subletting were also pleaded in the plaint. Once

the writ of summons was served upon the Defendant, the

Defendant appeared and filed his written statement and

resisted the claim of the Plaintiffs. The Defendant contended

that there was no cause of action for filing the Suit and the same

was barred by the law of limitation. On the issue of bonafide

requirement of the Plaintiffs, the Defendant further contended

that he had no other premises for his residence in Bombay

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except the suit premises. On the issue of comparative hardship,

it was pleaded that the Defendant tried to find out other

premises in the area for his occupation but was unable to do so

as he is a poor person and the prices in the area were extremely

high. On these pleadings, the Trial Court framed as many as ten

issues. On the basis of these issues, evidence was led by the

Plaintiffs and the Defendant and after hearing the parties and

considering the evidence, the Trial Court dismissed the Suit

filed by the Plaintiffs.

4. Being aggrieved by this decision, the Plaintiffs

approached the Appellate Bench of the Small Causes Court,

Bombay. The Appellate Bench framed as many as eight points

for determination. Thereafter, considering the evidence and

the arguments of both the sides, the Appellate Bench partly

decreed the Suit in favour of the Plaintiffs by holding that the

suit premises were reasonably and bonafide required by the

Plaintiffs and that if a decree was not passed in favour of the

Plaintiffs, greater hardship would be caused to them rather

than the Defendant. On the other grounts viz. arrears of rent,

construction of a permanent nature and unlawful subletting,

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the Appellate Bench answered those points / issues in favour of

the Defendant.

5. Being aggrieved by this order of the Appellate Bench,

the Defendant is before me in my revisional jurisdiction under

section 115 of the C.P.C.

6. Mr Sawant, learned counsel appearing on behalf of

the Defendant submitted that the Appellate Bench had gone

completely wrong in appreciating the evidence that was led by

the parties. He submitted that the Appellate Bench has not

taken into consideration the evidence that was material and

has in fact plased reliance on irrelevant material. He brought to

my notice the findings of the Trial Court on the issue of bonafide

requirement which could be found from paragraphs 15 to 23 of

the decision of the Trial Court. He submitted that the reasoning

given by the Trial Court was fully justified and there was no

need to interfere with the same. He therefore submitted that I,

in my limited revisional jurisdiction ought to interfere with the

order passed by the Appellate Bench and quash and set aside

the impugned order and restore the order of dismissal of the

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Suit passed by the Trial Court. In support of his submissions,

Mr Sawant relied upon a decision of the Supreme Court in the

case of Raghunath G. Panhale (dead) by LRs v/s Chaganlal

Sundarji and Co., reported in 1999 AIR SCW 3944.

7 On the other hand, Ms Preeti Gada, learned counsel

appearing on behalf of Respondent Nos.1 and 2 submitted that

the order of the Appellate Bench on the issue of bonafide

requirement was fully justified and required no interference.

She brought to my attention the evidence that was led by the

parties and thereafter submitted that the findings given by the

Appellate Bench were fully in consonance with the evidence led

by the parties. She took me through paragraphs 38 to 47 of the

Appellate Bench's order to substantiate her argument that the

Appellate Bench has correctly applied its mind to the matter

and has thereafter come to the conclusion that the suit

premises were bonafide required by the Plaintiffs. Even on the

issue of comparative hardship, she submitted that the Appellate

Bench has taken into consideration the evidence including the

fact that after the service of the writ of summons, the

Defendant did not make any attempt to look for alternate

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premises. This being the case, Ms Gada submitted that not only

the findings of the Appellate Bench were fully justified but

certainly did not suffer from any perversity apparent on the

face of the record requiring my interference under section 115

of the CPC.

8 I have heard the learned counsel for the parties at

length and perused the papers and proceedings in this Civil

Revision Application. I have also carefully gone through the

orders passed by the Trial Court dated 6 th January 2009 and

the Appellate Bench's order dated 19th October 2016. On going

through these two orders, I do not find any merit in the

contentions raised by Mr Sawant. The Appellate Bench of the

Small Causes Court, Bombay is the last fact finding authority. It

has considered the evidence led by both the parties in quite

detail as can be seen from paragraphs 38 to 47 of the impugned

order. On the issue of bonafide requirement, I cannot agree

with Mr Sawant that there was no evidence to show that the

Plaintiffs bonafide required the suit premises for their use and

occupation. It is not in dispute before me that Plaintiff No.1 is

87 years old. She was residing earlier in rented premises which

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were situated on the third floor of a building known as Dhoble

Bhuvan. This building had no lift/elevator. Due to her old age,

and because of her problem in her leg, she thereafter went to

stay with her daughter and son-in-law who were allotted Staff

Quarters by the Railways.

9. Considering that Plaintiff No.1 was staying with her

son-in-law and that the rented premises that were in her

occupation were not at all convenient for her to reside in, that a

case for bonafide requirement was pleaded. On this evidence,

the Appellate Bench came to the conclusion that the case for

bonafide requirement had been made out. I do not find that this

conclusion reached by the Appellate Bench on the basis of the

evidence led before it, can by any stretch of the imagination be

termed as perverse and/or suffering from any error apparent

on the face of the record. In fact, on going through the evidence,

I find that these conclusions were fully justified. The evidence

clearly shows that Plaintiff No.1 was originally residing in a

tenanted premises on the third floor of a building which did not

have an elevator, that she was of advance age and had a

problem in her leg and therefore to get out of the house it was

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very difficult for her. It is in these circumstances that she

shifted and decided to stay with her daughter and son-in-law.

Even the premises in which her daughter (Plaintiff No.2) and

her son-in-law (husband of Plaintiff No.2) were residing, did not

belong to them but were Service Quarters allotted to the

husband of Plaintiff No.2. There is nothing else that has been

brought on record in the form of evidence to rebut this evidence

and therefore, clearly a case for bonafide requirement was

made out. Even the Trial Court in its judgment and order dated

6th January 2009, at paragraph 18 thereof, has clearly stated

that after analyzing the evidence on record and considering the

relevant aspects, it appears that the Plaintiffs required the suit

premises for bonafide use and occupation because of the old age

of Plaintiff No.1. This being the case, I find that the Appellate

Bench was fully justified in coming to the conclusion that the

Plaintiffs bonafide required the suit premises for their own use

and occupation. Even on the issue of comparative hardship, the

Appellate Bench has considered the evidence and come to the

conclusion that greater hardship would be caused to the

Plaintiff if a decree is not passed in their favour. This is coupled

with the fact that it is admitted by the Defendant in his cross-

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examination that after the service of the summons, he made no

attempt to search for alternate premises. Looking to the overall

facts of the matter, I do not find any reason to interfere with the

impugned order dated 16th October 2016 passed by the

Appellate Bench of the Small Causes Court.

10 This only leaves me to deal with the decision of the

Supreme Court in the case of Raghunath G. Panhale (supra)

relied upon by Mr Sawant. On going through this decision, I fail

to see how the same supports the case of Mr Sawant. The ratio

of this decision states that the word 'reasonable' in the context

of section 13(1)(g) of the Bombay Rents, Hotel and Lodging

House Rates (Control) Act 1947 connotes that the requirement

or need is not supposed to be fanciful or unreasonable. It

cannot be a mere desire. 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. There cannot be any dispute about

this proposition. However, I fail to see how the same would

apply to the facts of this case. On the evidence led by the

parties, the Appellate Bench has come to the correct conclusion

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that a case of bonafide requirement was made out and that the

Plaintiffs genuinely required or needed the suit premises for

their use and occupation. I therefore find that in the facts and

circumstances of this case, reliance placed on this decision by

Mr Sawant is wholly misplaced.

11. For all the foregoing reasons, I find no merit in this

Civil Revision Application, the same is accordingly dismissed.

However, in the facts and circumstances of the case, there shall

be no order as to costs.

                                     (B.P. COLABAWALLA, J.)




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