Bombay High Court
Mahendra Kumar Lahoti vs Rewachand Ghanashyamdas Tuliani on 11 October, 2017
Bench: M.S. Sonak
203-wp-1146-1997
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1146 OF 1997
Mahendra Kumar Lahoti(Since Deceased)
1a. Sudha Mahendra Lahoti & Ors. ..Petitioners
V/s.
Rewachand Ghanshyamdas Tuliani
(Since deceased)
Mr.Sunil Revchand Tulani ..Respondent
----
Mr.S.M. Gorwadkar, Senior Advocate a/w Mr.Sandesh Patil, Chintan
Shah & Ms.Anusha Amin i/b Mr.Yatin Shah for the Petitioners.
Ms.Nazia Sheikh i/b Mr.P.J. Thorat for the Respondent.
----
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 06th OCTOBER 2017
Date of Pronouncing the Judgment : 11th OCTOBER 2017
JUDGMENT :
1. Heard the learned counsel for the parties.
2. The petitioners challenge the concurrent decrees dated
14.02.1983 and 04/05.11.1996 made by the Small Causes Court
(Trial Court) and the Division Bench of the Small Causes Court
(Appeal Court) ordering the eviction of the petitioners from the suit
premises on the following grounds:-
N.S. Kamble page 1 of 20
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(a) Acquisition of suitable residence by the
petitioners-tenants (Section 13(1)(l) of the Bombay
Rent Act);
(b) Tenants user of the suit premises for purposes
other than for which it was let out (Section 13(1)(a) of
the Bombay Rent Act);
(c) Reasonable and bona fide requirement of the
landlords (Section 13(1)(g) of the Bombay Rent Act);
3. The suit premises in the present case is the portion of
Flat No.4 on Ground Floor in the building Anil Kunj, 37 th Road, TPS-
III, Bandra and Garage on the North West side to the said building.
The portion, as described in the plaint and as regards which, there is
no dispute, is two rooms and kitchen in the rear portion of Flat No.4
and the garage. Accordingly, the expression "suit premises" shall
mean two rooms and kitchen in the rear portion of Flat No.4 and the
garage.
4. The Trial Court as well as the Appeal Court have
concurrently held that the petitioners have acquired alternate
N.S. Kamble page 2 of 20
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suitable residence; have changed the user of the suit premises from
residential to commercial and in any case, the landlord has made
out the case of reasonable and bona fide requirement. The two
Courts have also concurrently answered the issue of comparative
hardship in favour of the landlord.
5. Mr.Gorwadkar, the learned Senior Advocate for the
petitioners has however made the following submissions in support
of this petition :-
(a) In this case, there are neither pleadings nor is
there any material on record to suggest that the suit
premises had been leased out exclusively for residential
purposes. In the absence of such pleadings and proof,
decree under Section 13(1)(l) of the Bombay Rent Act
was incompetent. Mr.Gorwadkar, submits that the
provision in Section 13(1)(l) of the Bombay Rent Act is
applicable only to premises which have been let out
exclusively for residential purposes and not otherwise.
(b) Mr.Gorwadkar, submits that in any case, the plea
of the petitioners, that alternate residence was only an
additional residence and not a "suitable residence" as
N.S. Kamble page 3 of 20
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contemplated by Section 13(1)(l) of the Bombay Rent
Act has not been considered. He submits that if a
tenant consequent upon change in family situation,
acquires some additional premises, then such additional
premises, by themselves cannot be regarded as "suitable
residence" so as to attract Section 13(1)(l) of Bombay
Rent Act. The decrees, which ignore this principle, are
and therefore, in excess of jurisdiction.
(c) Mr.Gorwadkar, submits that in the absence of
any pleadings and proof that the suit premises were let
out exclusively for residential purposes, the ground
under Section 13(1)(a), which in turn, makes reference
to the provisions of Section 108(o) of the Transfer of
Property Act 1882, was also not attracted.
Mr.Gorwadkar, submits that the allegation in this case
is that the petitioners-tenants set up a office or storage
in the suit premises. In the absence of pleadings and
proof that the suit premises were exclusively let out for
residential purposes, there was no question of inferring
any change of user. Mr.Gorwadkar, submits that the
garage was admittedly leased for the purposes of
N.S. Kamble page 4 of 20
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storage. He submits that no amount of proof,
constitutes any substitute for pleadings. He relies on
Mukand Ltd. V/s. Mukand Staff & Officers
Association1 in support of this proposition.
(d) Mr.Gorwadkar, in the alternate submits that
some minor change of purpose, without any
corresponding damage or detriment to the leased
premises, can never constitute the ground of eviction by
alleging change of user. He placed reliance on Gurdial
Batra V/s. Raj Kumar Jain2 and Jagdish Lal V/s.
Prama Nand 3 in support of this proposition.
(e) Finally, Mr.Gorwadkar submits that in this case,
there are hardly any pleadings or any proof to make out
the case of reasonable bona fide requirement. The two
Courts, without focusing at all on this primary aspect
have laid, unnecessary emphasis on the aspect of
comparative hardship. Mr.Gorwadkar submits that
unless the landlord, satisfies that his need was both
1 (2004) 10 SCC 460
2 (1989) 3 SCC 441
3 (2000) 5 SCC 44
N.S. Kamble page 5 of 20
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reasonable and bona fide, no eviction can be ordered
merely by adverting to the aspect of the comparative
hardships. Mr.Gorwadkar submits that there is
accordingly jurisdictional error in ordering eviction on
the ground of reasonable and bona fide requirement.
6. Ms.Nazia Sheikh, instructed by Mr.P.J. Thorat, the
learned counsel for the respondent submits that this is a case of
concurrent finding of facts and since, there is no perversity
demonstrated, this Court, may not interfere with such concurrent
findings of facts in the exercise of its jurisdiction under Article 227
of the Constitution of India.
7. Ms.Sheikh, submits that pleadings, particularly in the
matter of reasonable bona fide requirement have to be construed
liberally. She submits that in this case, there are pleadings that the
suit premises were let out for residential purposes. She submits that
merely because there was some reference to the storage in the
garage, that, does not change the nature of the purposes for which
the lease was granted i.e., for residential purposes. She submits that
in this case, there is no dispute that the tenants acquired alternate
premises which were, having greater area than the suit premises.
N.S. Kamble page 6 of 20
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Taking into consideration the size of the family of the tenants, the
alternate larger premises, definitely, constitute "suitable premises"
for the purposes of attracting Section 13(1)(l) of the Rent Act.
8. Ms.Sheikh submits that in this overwhelming evidence
on record that the tenants converted the user from residential to
commercial/ office space. The tenants, ceased to reside in the suit
premises, shifted to the larger alternate and suitable premises
acquired by them. She submits that in this case there is ample
evidence on record in support of the reasonable and bona fide need
of the respondents. She submits that this is not a case where the
eviction decree has been made by reference only to comparative
hardships. She submits that issue of comparative hardships had to
be obviously answered in favour of the landlords, since, admittedly,
the tenants have acquired alternate suitable premises. Ms.Sheikh
has relies on Gulshera Khanam V/s. Aftab Ahmad4. For all these
reasons Ms.Sheikh submits that this petition may be dismissed with
exemplary costs.
9. Rival contentions now fall for my determination.
4 (2016) 9 SCC 414
N.S. Kamble page 7 of 20
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10. In this case, the petitioners are the tenants in respect of
only a portion of Flat No.4, comprising two rooms and kitchen and
the garage. The area of the suit premises is approximately 250 sq.ft.
and the garage is approximately 40 sq.ft. or thereabouts.
Admittedly, the balance potion of Flat No.4 is in the occupation of
the respondent-landlord.
11. In the suit, there are clear averments that the suit
premises comprise two rooms, kitchen and a garage with the
furniture and it is these suit premises which were let out to the
petitioners. In paragraph 2, the averment is that the petitioners
acquired "suitable alternate accommodation" at Guru Krupa, first
Floor, 14th Road, Near Shiv Krupa, TPS-III, Khar, Bombay-52 and
shifted to this alternate premises with his family members in the
month of December 1968 after vacating the suit premises. In
paragraph 8A of the plaint, there are averments that the petitioners
permitted defendant No.6, who was unauthorizedly placed in
possession of the suit premises, to use the suit premises for business
purposes. The averments in paragraph No.8A of the plaint, reads as
follows :-
"8A. Defendant No.1 has however allowed the defendant
No.6 to use the said premises for business and he is
N.S. Kamble page 8 of 20
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changed the user of the premises from residence to
business and storage."
12. Considering the circumstances that the suit premises
comprise two rooms, kitchen and garage, coupled with the
averments in paragraph 8A of the plaint, it is not possible to accept
the petitioners contentions that there were no pleadings to establish
that the suit premises had been leased out for residential purposes.
The garage, is to be regarded as an adjunct to the suit premises.
Merely because the garage is to be used for parking vehicle or, in
some cases, for storage, that by itself, cannot lead to the inference
that the suit premises were let out for residential cum commercial
purposes. Even if the written statement of the petitioners is perused,
there is no positive case pleaded by the petitioners that the suit
premises had been let out for both residential as well as commercial
premises. There is no defense raised that the provisions in Section
13(1)(l) of the Bombay Rent Act are not at all applicable to the
present case because the suit premises had never been let out only
for residential purposes or that the suit premises were let out for
residential as well as commercial purposes. Upon reading of the
plaint in its entirety, this is not a case where the landlord's suit,
ought to fail on the ground of lack of pleadings. Therefore, the
N.S. Kamble page 9 of 20
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principle in Mukund Ltd (Supra) is not attracted to the facts of this
case.
13. There is evidence on record that the suit premises were
in fact let out for residential purposes only. The evidence was never
objected to on the ground that it was allegedly not backed by
pleadings. The two Courts, have appreciated such evidence and in
the exercise of writ jurisdiction, there is no reason to re-appreciate
such evidence or to interfere with the concurrent findings of facts,
particularly when no perversity has been demonstrated. Thus, from
the pleadings as well as the evidence on record, it is quite clear that
the suit premises had been let out to the petitioners for residential
purposes.
14. There is overwhelming material on record that the
petitioners have acquired alternate residential accommodation
admeasuring almost 600 sq.ft. at Guru Kurpa, TPS-III, Bandra,
Bombay-52. Incidentally, even the suit premises are located at TPS-
III, Bandra, Bombay-50. This position was not even seriously
disputed by Mr.Gorwadkar, the learned Senior Advocate for the
petitioners. However, his submission was that these alternate
premises are additional premises and, in that sense, do not
N.S. Kamble page 10 of 20
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constitute "suitable residence". Mr.Gorwadkar, submits that taking
into consideration the size of the petitioners family, the
accommodation in the suit premises was not sufficient. Therefore,
additional premises were taken at Guru Krupa Building. In such
circumstances, Mr.Gorwadkar submitted that the acquisition of such
additional premises can never be regarded as acquisition of "suitable
residence" so as to attract the provisions of Section 13(1)(l) of the
Bombay Rent Act.
15. In order to appreciate Mr.Gorwadkar's submission,
reference is necessary to the actual deposition of Mahendra Kumar
Lahoti (Original tenant). The relevant portion reads thus :-
"75. In addition to the suit premises, I have another
premises situated 14th Road, Khar. The suit premises
consist of one room, W.C. and bath combined and a
passage. The premises in my possession at Khar consists
of a drawing room, a bed-room a kitchen, W.C. and bath.
The Khar premises in my possession are taken on rental
basis. I took the Khar premises on rental basis as the suit
premises being small and insufficient where not meeting
the requirement of my family, for the purposes of
residence. The suit premises approximately
admeasure 250 sq.ft. The Khar premises in my
possession are of the dimension of about 600 sq.ft.
N.S. Kamble page 11 of 20
203-wp-1146-1997
The two premises together are quite sufficient for
meeting the requirement of the members of my
family, Myself, my wife, my younger son aged about
18 years and my widow-sister of 46 years old and
one servant are residing in the Khar premises.
Normally 3 to 4 persons visit my premises in connection
with the affairs of Broadbury Mills. The plaintiff is
residing in front of the suit premises. The premises in
possession of the plaintiff approximately admeasure 600
sq.ft. The premises at present in possession of the
plaintiff consists of a hall, a bed-room W.C. and bath and
a kitchen in addition to a balcony. The balcony in
possession of the plaintiff admeasures 40 sq.ft. The
family of the plaintiff consists of four members viz. The
plaintiff, his wife and younger son and the wife of his
elder son. The present premises in possession of the
plaintiff is adequate and sufficient for the purposes of the
plaintiff."
(emphasis supplied)
16. The tenant has admitted that his immediate family
comprises his wife, younger son and widowed-sister. To that, he has
added one servant. The statement that normally 3 to 4 persons visit
the tenants premises in connection with the affairs of the Broadbury
Mills, does not constitute these 3 to 4 persons as family members of
the tenant. This means that the tenant and his three family
N.S. Kamble page 12 of 20
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members were earlier occupying the suit premises admeasuring
approximately 250 sq.ft. Thereafter, without any increase in the
size of the tenants family, the tenant has acquired alternate
residential premises, which are more than double in dimension i.e.
about 600 sq.ft., in the very same locality. In a place like Mumbai
obviously, the alternate premises acquired by the tenant in such
circumstances, are required to be construed as "suitable residence" in
order to attracted the provisions of Section 13(1)(l) of the Bombay
Rent Act. There is accordingly no merit in the submission made by
Mr.Gorwardkar and there is no reason to interfere with the
concurrent findings of facts recorded by the two Courts that the
petitioners have indeed acquired suitable residence and therefore, are
liable for eviction under Section 13(1)(l) of the Bombay Rent Act.
17. In this case, there is evidence on record that the suit
premises had been let out to the petitioners for residential purposes.
This is also reflected from the leave and license agreement entered
into between the parties. There is also evidence on record that after
the petitioners shifted to the alternate and suitable residence in
Guru Kurpa building, the suit premises have been used for office
purposes. In fact, the defendant No.1, in his written statement
admitted that he was carrying on his business under the name and
N.S. Kamble page 13 of 20
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style of M/s.Samrat Udyog from the suit premises. The two Courts
have recorded the concurrent findings of facts to the effect that the
suit premises were being used for office purposes or for commercial
purposes. In such circumstances, there is really no necessity to
interfere with concurrent findings of facts recorded by the two
Courts in the absence of any perversity.
18. In Gurdial Batra (Supra) the premises in question had
been let out for commercial purposes. In such circumstances, the
change of business from cycle repair to sale of television and that to
on temporary basis, was held not to be any change of user as
contemplated by Section 108(o) of the Transfer of Property Act. In
fact, in paragraph No.6 of the said judgment, the Hon'ble Supreme
Court has given instance of change of use i.e. a house let out for
residential purpose put to use as a shop, even without structural
alteration. In this case, since, the suit premises were let out for
residential purposes and were used by the tenants for commercial
purposes, the ground for eviction under Section 13(1)(a) of the
Bombay Rent Act was attracted and there is no reason to interfere
with concurrent findings of facts recorded by the two Courts in that
regard.
N.S. Kamble page 14 of 20
203-wp-1146-1997
19. In Jagdish Lal (Supra), again, the shop was let out for
the business of general merchanise, readymade and cloth merchant.
For some time, the tenant, used the shop as a restaurant and sweet
shop. This was also for a temporary period and the tenant reverted
to the earlier business. In such circumstances, the Supreme Court
held that the main purposes for which the shop was let out was
commercial. Mere change from one business to another, did not
amount to change of user. The nature of use remained commercial
itself. This decision is also distinguishable, because in the present
case the premises were allotted for residential purposes and the
same have been converted to commercial use.
20. In Jagdish Lal (Supra) at paragraph 16, reference is
made to the decision of the Supreme Court in Bishamber Dass
Kohli V/s. Satya Bhalla5 in which it was held that if the building
was let out solely for residence, but in a part of the building a
lawyer's office was established without the written permission of the
landlord, it would amount to a change in the user and consequently
the tenant would be liable to be evicted.
21. Accordingly, there is really no case made out to
5 (1993) 1 SCC 566
N.S. Kamble page 15 of 20
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interfere with the concurrent findings of facts recorded by the two
Courts even on the aspect of change of user.
22. Even on the aspect of reasonable and bona fide
requirement, although, the pleadings in the plaint could have been
better, there is no reason to interfere with the concurrent findings of
facts recorded by the two Courts.
23. In Raj Kumar Khaitan and ors. vs. Bibi Zubaida
Khatun and anr.6, the Supreme Court ruled that the pleadings in a
suit seeking eviction on the grounds of reasonable and bona fide
requirement have to be construed liberally. In such a suit, it is not
even necessary for the landlords to indicate the precise nature of the
business which they intended to start in the premises. Further, even
if the nature of business is indicated, nobody can bind the landlords
to start the same business in the premises after it is vacated.
24. In Dattatraya L. Kamble Vs. Traders & Agencies &
Anr.7, the Supreme Court has held that the expression "reasonably
and bona fide requirement by the landlord" indicates that the
requirements must be really genuine from any reasonable standards.
6 (1997) 11 SCC 411
7 (1999) 4 SCC 1
N.S. Kamble page 16 of 20
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However, the genuineness of the requirement is not to be tested on
par with the dire need of a landlord because the latter is a much
greater need. The Supreme Court has gone to the extent of
observing that though there is no dispute that the landlord has to
prove that he needs the building for his own occupation but there is
no warrant for presuming that his need is not bon fide. The statute
enjoins that the court should be satisfied about the requirement. In
appropriate cases it is even open to the Court to presume that the
landlord's requirement is bona fide and to place the burden of
disproving the presumption on the tenant. The Supreme Court has
ultimately held that the Courts ought not to take uncharitable view
of the landlord when it comes to determining the reasonable and
bona fide requirement.
25. It is also settled that normally the landlord is the best
judge of his requirement and it is not for the tenants to dictate terms
to the landlord as to the manner in which the landlord must lives or
conduct his business. It is also not the law that landlord has to
continue to bear inconvenience and the tenant's comforts are all that
matter. In this case, the tenant, after acquisition of alternate
suitable residence, which is more than double in size, insists that the
N.S. Kamble page 17 of 20
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need of the landlord, is not reasonable and bona fide.
26. Applying the aforesaid principles to the facts of the
present case, there is really no case made out to interfere with the
concurrent findings of facts on the aspect of reasonable and bona
fide requirement. In this case, the landlord, has been residing in
only a portion of the flat since, the rest was leased out to the
tenants. There is cogent evidence produced on record establishing
both reasonableness and bona fide of the landlords need. The
witnesses of landlord have also deposed to the embarrassment faced
even to access the washroom because of lack of accommodation.
The issue of comparative hardship is also required to be answered in
favour of the landlords and against the tenants. In this case, the
tenants did not appear to be themselves using the suit premises for
their residence, but permitted the suit premises to be converted from
residential to commercial use. Further, the tenants have acquired
alternate suitable residence, which is more than two times in size
than the suit premises. All this is sufficient to sustain the concurrent
findings recorded by the two Courts even on the aspect of
reasonable and bona fide requirement.
27. In Gulshera Khanam V/s. Aftab Ahmad (Supra) upon
N.S. Kamble page 18 of 20
203-wp-1146-1997
which, reliance was placed by Ms.Nazia Sheikh the Hon'ble Supreme
Court, at paragraphs 33 and 34 has observed as follows :-
"33. Likewise, when we peruse the impugned judgment,
we find, as rightly urged by the learned counsel for the
appellant, the High Court did not keep in mind the
aforesaid principle of law laid down by the Constitution
Bench in Hindustan Petroleum Corpn. Ltd. So also the
principle laid down by this Court in relation to exercise of
jurisdiction under Article 227 of the Constitution of India
in Surya Dev Rai V. Ram Chander Rai, whil deciding the
writ petition and proceeded to decide like the first
appellate court. The High Court as is clear from the
judgment probed all factual aspects of the case,
appreciated evidence and then reversed the factual
findings of the appellate court and the prescribed
authority. This, in our view, was a jurisdictional error,
which the High Court committed while deciding the writ
petition. In other words, the High Court, in our view,
should have confined its inquiry to examine as to whether
any jurisdictional error was committed by the first
appellate court while deciding the first appeal. It was,
however, not done.
34. In our considered opinion, the question in relation
to the bona fide need of the appellants daughter to
expand the activities of running the clinic was rightly held
by the prescribed authority and the first appellate court in
the appellant's favour by holding the appellant's need to
N.S. Kamble page 19 of 20
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be bona fide and genuine. We find no ground on which
the High Court could have upset the concurrent finding
on this question in its writ jurisdiction under Article 227,
which is more or less akin to revisional jurisdiction of the
High Court. The High Court also failed to hold that
findings of the two Courts were so perverse to the extent
that any judicial person could ever reach to such
conclusion or that the findings were against any provision
of law or were contrary to evidence adduced, etc."
28. Applying the aforesaid principles as well, there is no
case made out to interfere with the concurrent findings of fact
recorded by the Trial Court and the Appeal Court.
29. For all the aforesaid reasons, this petition is dismissed.
30. Interim order, if any, stands vacated. There shall
however be no order as to costs.
31. Mr.Chintan Shah, the learned counsel for the
petitioners requests for continuance of interim order for a period of
eight weeks. Subject to the petitioners filing the usual undertaking
in this Court, within a period of four weeks from today, the interim
order granted earlier shall operate for a period of eight weeks from
today. The petitioners to furnish copy of the undertaking to the
learned counsel appearing for the respondents.
(M. S. SONAK, J.)
N.S. Kamble page 20 of 20
