Sadanand Krishnaji Kirloskar vs Tolakchand Genyorom Doshi And Ors
2017 Latest Caselaw 7112 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 3347 OF 1995


            Sadanand Krishnaji Kirloskar
            (since deceased through his
            legal representatives)
            Nirmala Sadanand Kirloskar & Ors.           ..      Petitioners
                   vs.
            Talakchand Gangaram Doshi
            (since deceased)
            through his legal representatives
            Amrutlal Talakchand Doshi
            (since deceased)
            through his legal representatives
            Rajesh A. Doshi & Ors.                      ..      Respondents

                                             WITH
                               CIVIL APPLICATION NO. 3107 OF 2010


            Mr. V. S. Gokhale i/b. Mr. T. D. Deshmukh for Petitioners.
            Mr. Sachin Dhakephalkar for Respondents.

                                         CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 06 September 2017 Date of Pronouncing the Judgment : 14 September 2017

JUDGMENT :-

1] The petitioners (landlords) challenge the judgment, decree

and order dated 22nd March 1995 made by the III Additional District

Judge, Solapur (Appeal Court) in Civil Appeal No. 247 of 1991 and

seek restoration of judgment, decree and order dated 29 th June

1991 made by the Civil Judge, Junior Division, Solapur (Trial Court)

in Regular Civil Suit No. 1439 of 1986 ordering the eviction of the

respondents (tenants) from the commercial premises admeasuring

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1511 sq. ft., Pofferin Chowk, Solapur (suit premises) on the ground

of reasonable and bona fide requirement of the landlords,

subletting, non user and acquisition of alternate accommodation.

2] The landlords case as pleaded in the suit seeking eviction is

that the suit premises were let out to late Mr. Vishwanath Kanhale to

undertake the business of grocery shop under the name and style

of 'Anand Stores' some time in the year 1932. The said Mr. Kanhale,

sold the goodwill of the grocery business along with the stock-in-

trade to M/s. Mohanlal Doshi, which was a partnership firm

comprising Mohanlal Doshi and Talakchand Gangaram Doshi

(original defendant no. 1 in the suit) as partners. Thereafter the firm

was dissolved and Talakchand continued the business of grocery in

the suit premises.

3] The landlord, Sadanand Krishnaji Kirloskar (Kirloskar) in the

year 1955 completed course of licentiate relating to manufacture of

textiles. Kirloskar served with Jain Mills at Solapur as Spinning

Technician and Assistant Spinning Master. In 1977 or thereabouts,

there was a family partition in which the suit premises along with

some other properties came to be allotted to Kirloskar.

            4]      The landlord Kirloskar on 19th December 1986 instituted








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Regular Civil Suit No. 1439 of 1986 seeking eviction of the tenants

inter alia on the grounds that the suit premises were required

reasonably and bona fide for the use of the landlord and his two

sons who intended to start the business from the suit premises;

non user of the suit premises by the tenants, unauthorised

subletting, default in payment of rents and acquisition of alternate

accommodation by the tenants. In the suit, application was taken

out for appointment of Court Commissioner to inspect suit premises

and submit the report. The application was allowed and the Court

Commissioner submitted his report on 22nd December 1986.

5] The tenants contested the suit by filing a written statement.

Evidence was led in the matter and eventually, the trial Court, by

judgment and decree dated 29th June 1991 decreed the landlords

suit and ordered the eviction of the tenants on the grounds of

reasonable and bona fide requirement of the landlords,

unauthorised subletting, non user and acquisition of alternate

accommodation.

6] The tenants instituted Civil Appeal No. 247 of 1991 before the

appeal Court, which has, vide impugned judgment, decree and

order dated 22nd March 1995, allowed the appeal and set aside the

judgment, decree and order dated 29th June 1991 made by the trial

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Court. Aggrieved by the impugned judgment, decree and order

dated 22nd March 1995, the landlords have instituted the present

petition.

7] Mr. Gokhale, learned counsel for the petitioners submits that

the appellate Court has misdirected itself in law and overlooked vital

and relevant evidence on record. Mr. Gokhale submits that it is

settled position in law that a tenant cannot direct the landlord the

manner in which the landlord is required to undertake his business

or to assess his own requirement. Mr. Gokhale submits that such an

exercise is also not within the province of a court. Yet, the appeal

Court, has virtually indulged in such an exercise, which is ex facie in

excess of jurisdiction vested in the appeal Court. Mr. Gokhale has

placed reliance upon the decisions of the Hon'ble Supreme Court in

the case of Meenal Eknath Kshirsagar (Mrs) vs. Traders &

Agencies & Anr.1 and Dattatraya Laxman Kamble vs. Abdul

Rasul Moulali Kotkunde & Anr.2 and decision of this Court in

Chotumal Bahiramal Sindho (since deceased through LRs.) vs.

Baburao Vinayak Mohadkar (since deceased through Lrs.)3.

8] Mr. Gokhale submits that the appeal Court has grossly erred

in reversing the trial Court's eviction order on the ground that the

1 (1996) 5 SCC 344 2 (1999) 4 SCC 1 3 2009 (5) ALL MR 342

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landlords did not allegedly establish that they had the qualifications

or sufficient experience in undertaking the business which they

propose to undertake through the suit premises. Mr. Gokhale

submits that the appeal Court further erred and acted contrary to

the settled position in law in reversing the trial Court's eviction order,

on the ground that the landlords failed to examine the Managing

Directors of the Companies who had issued letters of intent or offers

of work to the landlords, in case, the landlords commence the

proposed business through the suit premises. Mr. Gokhale submits

that the appeal court has failed to consider or give due credence to

the overwhelming evidence on record which establishes that not

only Kirloskar was well qualified and experienced to undertake the

business of dealing in spare parts relating to textile nature but

further, even the landlords two sons Shailendra and Amarendra

were equally competent to undertake such business and further, the

two sons, were in dire need of the suit premises to undertake /

expand their existing business of sale of biscuits, noodles, tea etc.

Mr. Gokhale submits that the approach of the appeal Court is

contrary to several decisions of the Hon'ble Supreme Court as well

as this Court in the matters of assessment of reasonable and bona

fide requirement.

            9]      Mr. Gokhale further submits that the appeal Court's








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judgment, decree and order is riddled with errors apparent on face

of record. The appeal Court has taken cognizance of sale of an

open plot of land by the landlords to Kadam and Shah in the year

1980, when in fact, the need for bona fide and reasonable

requirement was pleaded as having arisen in the year 1986 when

the suit for eviction was instituted. Further, the appeal Court, has

denied decree on grounds of bona fide and reasonable requirement

of holding that the landlords extended the period of lease with the

Indian Oil Company (IOC), where the Company, had set up a petrol

pump on an open plot. Mr. Gokhale submits that the petrol pump

premises were already in possession of the IOC and the same were

by no means useful for undertaking the business proposed through

the suit premises. Mr. Gokhale submits that in any case, the choice

in this regard had to be left to the landlords. The extension of lease

in favour of IOC, was not required to be construed as making a dent

to either the reasonableness or the bona fides of the landlords

requirement in respect of the suit premises.

10] Mr. Gokhale submits that the appeal Court has also grossly

erred in referring to the sale of five shop premises to the existing

tenants. Mr. Gokhale submits that in the first place the shop

premises did not belong exclusively to the landlords but belonged to

the landlord and his brother. Secondly, the shops were sold to the

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existing tenants, since, the eviction of such tenants was not agreed

to by the landlord's brother and in any case, the same, may or may

not have been feasible. Besides, Mr. Gokhale emphasized that

these are matters which are best left to the judgment of the

landlord. Mr. Gokhale submits that such sales in fact demonstrate

that the landlords were in dire need of the suit premises so as to

commence their own business from secure and vantage premises.

Mr. Gokhale points out that the suit premises are located on a

corner plot most suitable to undertake the business which the

landlords proposed to undertake through the suit premises.

11] Mr. Gokhale submits that the appeal Court has also

misconstrued the scope of the expression 'comparative hardships'.

He submits that the mere circumstance that the tenant will have to

face eviction cannot, by itself, be regarded as a hardship sufficient

to deny the landlords decree of eviction on the ground of

reasonable and bona fide requirement. Mr. Gokhale submits that

there is ample evidence on record that in fact the suit premises

were not even being used by the tenants and the sole objective of

the tenants was to stay put in the suit premises so as to deprive the

landlords user / possession of their own premises. Mr. Gokhale

points out that the tenant Talakchand Gangaram Doshi did not

even step into the witness box and therefore, the trial Court, had

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rightly, drawn an adverse inference against the tenants. The appeal

Court, in such circumstances, was entirely unjustified in reversing

the trial Court's eviction order on the ground of reasonable and

bona fide requirement.

12] Mr. Gokhale, in response to certain alleged subsequent

developments attempted to be placed on record by the tenants vide

Civil Application No. 3107 of 2010 submits that there is total breach

of the procedural requirements in the matter of production of an

additional evidence on record. He submits that on this ground itself,

the Civil Application should be dismissed and the alleged

subsequent developments ignored. In any case, he submits that

the Civil Application hardly makes any reference to significant

subsequent developments. He submits that most of the

developments have been noticed by the trial Court as well as the

appeal Court. The sale of open plot to IOC, is hardly a subsequent

development which can have any effect on the reasonability and

bona fides of the landlords requirement. Some of the subsequent

developments like recovery of additional premises are irrelevant, in

as much as the recovered premises are residential and not

commercial as in the case of the suit premises. Mr. Gokhale points

out that certain chawl premises referred to by the tenants have no

nexus whatsoever with the landlord or his sons and therefore, the

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reference to such premises is totally irrelevant for deciding the issue

of reasonable and bona fide requirement. In any case, Mr. Gokhale

submits that subsequent developments must be of such nature as

eclipse the bona fide and reasonable need of the landlord. He

submits that in the course of a litigation which runs over decades

some events are bound to take place. But, he submits that it is not

the law that cognizance is required to take of all such events so as

to deprive the landlord, for no fault on his part of the fruits of the

decree of eviction already made by the trial Court on legal and

cogent grounds. Mr. Gokhale placed reliance on the decisions of

the Hon'ble Supreme Court in the case of Nidhi vs. Ram Kripal

Sharma (Dead) through Legal Representatives4 and Gaya

Prasad vs. Pradeep Srivastava5.

13] Mr. Gokhale submits that in this case there is overwhelming

evidence regards non user of the suit premises. In particular, Mr.

Gokhale stresses upon the Court Commissioner's report and upon

orders made by authorities concerned with professional tax and

income tax. Mr. Gokhale submits that the appeal Court, has virtually

ignored orders made by the tax authorities which record that the

tenants have discontinued their business from the suit premises. He

submits that the appeal Court has misconstrued the Court

4 (2017) 5 SCC 640 5 (2001) 2 SCC 604

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Commissioner's report as merely holding that there was some dust

on the grocery items in the suit premises. The Court

Commissioner's report very graphically describes the state of the

suit premises and on the basis of the same the only inference

possible was that the tenants had ceased to use the suit premises

for their business purposes. Mr. Gokhale submits that the trial Court

had rightly made an order for eviction on the grounds of non user

and there was no justification for the appeal Court to reverse the

eviction order. Mr. Gokhale submits that the findings recorded by

the appeal Court on the ground of non user constitute a perversity

and warrants interference under Article 227 of the Constitution of

India.

14] Mr. Gokhale submits that the suit premises had in fact been

let out to the tenant. However, one of the licenses in respect of the

suit premises was found to be in the name of the original defendant

no. 3 i.e. the daughter-in-law of the original tenant. Mr. Gokhale

submits that this documentary evidence constitutes sufficient

evidence of unauthorised subletting. Mr. Gokhale submits that the

onus of establishing the precise status of original defendant no. 3

lay upon the tenants and such onus, has not been discharged by

the tenants and therefore the trial Judge was justified in making

decree of eviction on ground of unauthorised subletting as well.

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            15]     Mr. Gokhale submits that this is a fit case where a decree

must be made on the grounds of reasonable and bona fide

requirement of the landlords, non user and unauthorised subletting.

Mr. Gokhale does not press any other grounds of eviction. He relies

upon certain decisions including, the decision in the case of Savita

Chemicals (P) Ltd. vs. Dyes & Chemical Workers' Union & Anr. 6

and Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram 7 to

submit that findings if vitiated by perversity can always be

interfered with by the High Court in the exercise of its jurisdiction

under Article 227 of the Constitution of India. He submits that in this

case the findings recorded by the appeal Court are vitiated by

perversity as well as misdirection of law. He submits that the

impugned judgment and order dated 22 nd March 1995 made by the

appeal Court warrants interference and may be set aside.

16] Mr. Sachin Dhakephalkar, learned counsel for the tenants

submits that findings of record recorded by the appeal Court are

backed by the material on record. There is absolutely no perversity

in the record of such findings of fact. He submits that this Court, in

exercise of its jurisdiction under Article 227 of the Constitution may

not re-assess or re-evaluate the material on record, since, this

6 (1999) 2 SCC 143 7 (1986) 4 SCC 447

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Court, does not, under Article 227 of the Constitution exercise

appellate jurisdiction. He submits that the appeal Court, normally, is

the final Court in so far as findings of fact are concerned. He

submits that in this case there is overwhelming evidence which

establishes that the need of the landlords was neither reasonable

nor bona fide. He submits that there is ample material on record

which demonstrates that the landlords have several residential as

well as commercial premises. He submits that the landlords have,

during the pendency of the proceedings for eviction , transferred

several residential as well as commercial premises and in these

circumstances it can never be said any ground for eviction as

contemplated by the Rent Control legislation was made out. He

submits that there is admission on the part of the landlords that

apart from the suit premises, the tenants have no other premises

from which to undertake their business. In these circumstances, he

submits that the issue of comparative hardship was quite rightly

decided in favour of the tenants by the appeal Court. There is

neither any error of jurisdiction nor any perversity in this regard.

17] Mr. Dhakephalkar submits that the subsequent developments

referred to in Civil Application No. 3107 of 2010, in any case,

establish that the need of the landlords is neither surviving nor was

the same ever reasonable or bona fide. He submits that during the

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pendency of the proceedings, the landlords have acquired several

other premises, which they have chosen to dispose of. He submits

that all this militates against both the bona fides as well as the

reasonability of the requirement portrayed by the landlords. He

submits that cognizance is required to be taken of such subsequent

developments and in this regard, he relied upon Om Prakash

Gupta vs. Ranbir B. Goyal8, Shrirang Dharamraj Kale & Anr. vs.

Najmunissa A. Rahimbee Shaikh9 and Kiran K. Gujar & Ors. vs.

Pradip B. Kasavkar & Ors.10

18] Mr. Dhakephalkar submits that there is absolutely no case

made out for eviction on the ground of any alleged non user. He

submits that the appeal Court has very rightly analyzed the report

of the Court Commissioner as well as the other evidence on record

and concluded that there was no non user without any reasonable

cause. He submits that for some brief period, the grocery business

may have been dis continued on account of serious health issues

concerning the family members of the landlords. He submits that

this is reasonable cause. He submits that voluminous documentary

evidence in the form of admissions of 156 documents has been

produced on record, which clearly establishes user of the suit

premises. These documents relate to supplies and sales of

8 (2002) 2 SCC 256 9 2003 3 All MR 51 10 2002 6 Bom. C.R. 109

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groceries. At least three suppliers have been examined and the

appeal Court, has rightly, taken all this material into consideration to

conclude that the case of non user portrayed by the landlords was

false and frivolous. He submits that the trial Court, had erred grossly

in ordering eviction of the landlords on the ground of any alleged

non user of the suit premises and the appeal Court, quite rightly,

has reversed the learned trial Court in this regard.

19] Mr. Dhakephalkar submits that merely because one of the

several licensees was found to be in the name of original Defendant

No. 3, who, admittedly, is the daughter-in-law of the original tenant,

can never be a ground for eviction of a tenant on the ground of

subletting. The finding recorded by the trial Court were patently

perverse and the same were rightly set aside by the appeal Court.

20] For the aforesaid reasons, Mr. Dhakephalkar submits that the

impugned judgment, decree and order dated 22nd March 1995 made

by the appeal Court warrants no interference whatsoever and prays

that this petition may be dismissed with costs.

21] The rival contentions now fall for determination.

            22]     As regards ground of subletting, there is absolutely no case








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made out to interfere with the impugned judgment, decree and

order. There is virtually no evidence on record to sustain the finding

of any subletting, much less, unauthorised subletting. Only one of

the licenses out of several licenses in relation with the grocery

business undertaken by the tenants in the suit premises was in the

name of the original defendant No. 3, who, is admittedly the

daughter-in-law of the original tenant. As against this, there is

voluminous evidence on record which indicates that it is the tenant

who was undertaking the grocery business from the suit premises.

In such circumstances, the appeal Court, was entirely justified in

interfering with the trial Court's order on the aspect of unauthorised

subletting. There is absolutely no perversity in either the approach

or in the record of findings of the appellate Court on the aspect of

unauthorised subletting. Accordingly, Mr. Gokhale's contention on

the aspect of unauthorised subletting is required to be and is hereby

rejected.

23] Similarly, on the aspect of non user of the suit premises,

again, it cannot be said that the findings recorded by the appeal

Court are vitiated by any misdirection in law or perversity. The

appeal Court, has taken cognizance of the orders made by the

taxing Authorities. But at the same time, the appeal Court, has also

taken cognizance all other documentary evidence like telephone

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bills, electricity bills and most importantly almost 156 documents

which relate to the actual conduct of the grocery business from the

suit business. Initially, no leave was granted to produce these 156

documents. However, later on, such leave was granted and such

documents were admitted in evidence. In support of such

documents, even the three suppliers, namely, Prabhu Sopan,

Shrikant Shamrao and Subhash Baburao came to be examined. All

these witnesses deposed to the veracity of the documents and the

transactions which said documents evidence. There is accordingly

substantial evidence on record in the form of supply bills, sales bills,

account books, telephone bills, electricity bills etc. in support of the

appeal Court's reasoning that no case of non user of the suit

premises without any reasonable cause or even otherwise was

made out by the landlords. It is not for this Court to re-evaluate or

re-assess the material on record, as if, it was exercising any

appellate jurisdiction. In such circumstances, it is not possible to

agree with the contentions of Mr. Gokhale that the impugned

judgment, decree and order dated 22nd March 1995 made by the

appeal Court warrants interference on the aspect of denial of

eviction on the ground of non user of the suit premises by the

tenants.

            24]     On the aspect of denial of eviction on the ground of








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reasonable and bona fide requirements of the landlords however,

there is much substance in the contention of Mr. Gokhale that the

appeal Court has misdirected itself in law, ignored vital and relevant

evidence on record and displayed perversity of approach.

25] In this case, the landlord, has made detailed pleadings in

respect of reasonable and bona fide requirement. The landlord has

pleaded that he along with his two sons, intends to undertake the

commercial venture of dealing in sale of spare parts, accessories

etc. needed for textile machinery. The landlord has pleaded that he

has qualifications of licentiate in this line and further, he has

experience on account of his service in textile mills. He has pleaded

to various position he has held in the course of his service in the

textile mills. The landlord has further pleaded that his son has taken

agency of biscuits, soaps and cosmetics and has every intention of

expanding this business activity. He has pleaded that on account of

constraints of space, this is not possible. The landlord has pleaded

that one of his sons has qualification of M.B.A. and the landlord

and his son accordingly have the means and the necessary

experience and capacity for undertaking the business proposed.

26] The evidence on record which has been marshalled by

learned Trial Judge at paragraphs 22 to 24 of the judgment, decree

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and order dated 29th June 1991 substantially supports the pleadings

seeking eviction on the ground of reasonable and bona fide

requirement. The original landlord has deposed to the size of his

family. He has deposed to the qualifications and experience which

he possessed. He has deposed to the qualifications and the

experience of his two sons. He has deposed to the fact that his

eldest son is an agent of Bakeman's Biscuits etc. He has deposed

to the status of premises through which the son undertakes his

business. He has deposed to the offers, which his son is receiving

for expansion of business. He has deposed that expansion of

business is not feasible on account of space constraints. He has

deposed that the premises at Sahyadri Shopping Center through

which the son undertakes his business is on inner side and there is

no scope for expansion. He has deposed that his second son is

also interested in joining the proposed business venture. He has

deposed that he along with his two sons proposes to start of

business of sale of spare parts, accessories and allied equipments

required for textile machineries. He has deposed that the second

son is already working as an Agent / Liaison Officer of Maratha

Engineering Industry and Hindustan Textile Industries. He has

produced certain documents which indicate the appointment. He

has also produced certain documents, which are in the nature of

Letters of Intent (LOI).

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            27]     The landlord's son Shailesh Kirloskar has also been

examined as PW-2. He has deposed that he has completed MBA

qualification and his business activity from the premises at Sahyadri

Shopping Center. He has deposed that he has received a notice

from the Corporation requiring him to vacate the premises at

Sahyadri Shopping Center.

28] In the cross-examination, the evidence of landlord (PW-1) and

his son (PW-2) has really not been dented. Except for

suggestions/denials, the tenants, have not succeeded in

demolishing the deposition of PW-1 and PW-2. Learned Trial Judge

has in fact accepted the evidence of the landlord. As will be noticed

later, the Appeal Court for reasons which are neither germane nor

relevant has chosen to discard such evidence and even overlooked

such evidence in support of the ground of reasonable and bona fide

requirement.

29] The tenants, examined one Gopal Zanvar as DW-2, who has

deposed that he has own agency of Kasturi Tea and his cousin has

agency of Bakeman's Biscuits. However, DW-2, however, in his

cross-examination conceded that he has no personal knowledge

about the agency of Bakeman's Biscuits and therefore, he is not in a

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position to depose to any details in that regard. DW-2 was possibly

examined to establish that the landlord's son (PW-2) had no agency

of Kasturi Tea or Bakeman's Biscuits. In this, DW-2 has failed.

30] The Appeal Court, has reversed the Trial Court on the issue

of reasonable and bona fide requirement, primarily on the following

grounds:

a] That the landlords have not examined the Managing

Director or any Officers of the industries like Maratha

Engineering Industry, Hindustan Textile Industries and Visdhut

Meters Pvt.Ltd. Etc., who had issued documents in the nature

of LOI or assurances of work orders in case the landlords

undertake business of dealing with spare parts of the

machinery and allied equipments relating to textile industries

(Exhibit.41, 42 and 43);

b] That the landlords have sold five shops premises at

ground floor of CTS No.14/1 to 14/6 to Dilip Y. Pethe and

others for Rs1,30,000/-. The Appeal Court reasons that if the

need of the landlord was genuine, then the landlord and his

two sons could have started business from these premises

rather than sell these premises to Dilip Pethe and others;

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                    c]       That the landlords have extended the lease of the open

plot, which they own, to the Indian Oil Company for the period

of 20 years after the lease expired in the year 1968. The

Appeal Court has reasoned that if the requirement of the

landlords was bona fide, then, the landlords would not have

extended these lease, but started the proposed business in

the open plot or by putting up of a construction in the open

plot. The Appeal Court has relied upon the decision of this

Court in Smt Sabu Tai Tanna Vs. Kisen M. Borade - 1976

Bombay Rent Cases page 97, where reasonable and bona

fide requirements ground was rejected on the finding that the

plaintiff had give on lease as room held by him, hardly a year

before the institution of eviction proceedings; and

d] That the landlords have sold another open plot to one

Mrs. Kadam, Advocate and Dilip Shah in the year 1980, which

plot was adjacent to the suit premises.

31] On the aspect of comparative hardships, the Appeal Court

has held that the landlord and his two sons have other properties.

The Appeal Court has held that the landlord in his deposition has

admitted to having commenced construction in property bearing

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CTS No.8306/3 and 8306/4. The Appeal Court has reasoned that

the landlord and his sons can always start their business activity

from the said construction. The Appeal Court has faulted the Trial

Court for drawing an adverse inference against the tenants for not

stepping into the witness box. The Appeal Court has reasoned that

even though the tenant may not have stepped into the witness box,

his son has stepped into the witness box and that was sufficient.

The Appeal Court has reasoned that there is some open space

available in property bearing CTS No. 8306/3, 8306/4 and 8306/5

and the landlord and his sons can always make use of the said

place for commencing their business instead of seeking recovery of

possession of the suit premises. The Appeal Court has also held

that apart from the suit premises the tenants have no other

premises from which to undertake business. The Appeal Court has

reasoned that Garud Bunglow which the tenants own is used for the

residential purpose. The Appeal Court has reasoned that the

landlord has not taken action against some other tenants like

Punekar - Kamathe, Sugar Juice Center, and Kona Stores and

Vijay Medical Stores and such failure to take action against other

tenants is relevant for determining the issue of comparative

hardships.

            32]     Most of the reasons stated by the Appeal Court in the








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impugned judgment, decree and order dated 22 nd March 1995 are

not valid or relevant reasons to deny the landlord a decree of

eviction on the ground of reasonable and bona fide requirements.

The reasons are in fact contrary to several decisions of the Hon'ble

Supreme Court as well as this Court in the matter of evaluation of

bona fide requirement and reasonable requirement.

33] The evidence on behalf of the landlords was not at all shaken

in the course of cross-examination. On the aspect of LOI and

proposed work orders in the form of Exhibit-41 to Exhibit-43 from

various industries concerned in the textile business, the Appeal

Court, was not at all justified in rejecting this evidence on the

ground that the landlords failed to examine the Managing Directors

or the Officers of the Companies, who had issued such

LOI/proposed work order.

34] As regards the sale of five shops in CTS Nos.14/1 to 14/6, the

Appeal Court has completely glossed over the evidence which

indicates that the said five shops were not owned by the landlord

exclusively but were owned by landlord and his brother. Further,

there is evidence which establishes that the five shops were also

tenanted and were ultimately sold to the tenants. In these

circumstances, sale of five shops which were co-owned by the

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landlords to the tenants who were occupying the said five shops is

hardly a circumstance, which makes any dent to the reasonable and

bona fide requirement pleaded and substantially established by the

landlords. On the basis of such kind of a sale, the Appeal Court,

was entirely unjustified in deciding the issue of comparative

hardships against the landlords.

35] The extension of lease of the open plot in favour of the Indian

Oil Company is also not relevant for determining the reasonable

and bona fide requirement of the landlord. Admittedly, the suit

premises is a constructed structure ready for use as commercial

premises. In contrast, the lease which was extended in favour of

Indian Oil Company was in respect of open plot, on which, the

Indian Oil Company has put up a petrol pump. There can be no

comparison between the open plot and the suit premises. Besides,

the Appeal court, is not right in its observation that the landlords

could have carried out their business by putting up some

constructions on this open plot. The landlords, would, have to seek

the eviction of IOC, which might not have been easy task in itself. If

in such circumstances, the landlords chose to extend the lease of

the plot or as has been stated by the tenants in Civil Application No.

3107 of 2010, the landlords ultimately sold the said plot to IOC, that

by itself, does not make any dent to the reasonableness or the

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bona fides of the requirement of the suit premises by the landlord.

The Appeal Court has completely misdirected itself in both law and

fact by taking into consideration this circumstance.

36] The decision in Smt. Sabu Tai Tanna (supra), is completely

distinguishable and was not at all applicable to the fact situation of

the present case. Further, the sale of the open plot to Mrs. Kadam

Advocate and Mr. Dilip Shah was in the year 1980 whereas, the suit

for eviction on the grounds of reasonable and bona fide requirement

was instituted in the year 1986. Again, what was sold to Mrs.Kadam

and Dilip Shah was a open plot, which, is not comparable to the suit

premises in respect of which eviction has been applied for.

37] The Appeal Court, has completely misdirected itself in law in

returning findings on the aspect of comparative hardships. For

reasons, which are neither germane nor relevant, the Appeal Court,

has reversed the cogent findings recorded by the Trial Court on the

aspect of reasonable and bona fide requirements and comparative

hardships. The Appeal Court, in this case, has virtually advised the

landlords what according to it, is the best manner for undertaking

their proposed business. In Meenal Kshirsagar (supra), the

Supreme Court in no uncertain terms, has held that the landlord is

the best judge of his requirement. If the landlord desires to

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beneficially enjoy his own property when the other property

occupied by him as a tenant or on any other basis is either insecure

or inconvenient, it is not for the Courts to dictate to him to continue

to occupy such premises. It is for the landlord to decide how and in

what manner he should live and hie is the best judge of his

requirement.

38] In Raj Kumar Khaitan and ors. vs. Bibi Zubaida Khatun

and anr.11, 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.

39] In Dattatraya L. Kamble (supra), 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. However, the genuineness of the

requirement is not to be tested on a par with the dire need of a

landlord because the latter is a much greater need. The Hon'ble 11 (1997) 11 SCC 411

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Supreme Court set aside the decision of the High Court for having

interfered with a finding of fact recorded by the Trial Court on the

aspect of reasonable and bona fide requirement on the ground that

the landlord had not placed material on record to show that he had

the "know how" necessary for starting business in electrical goods.

The Supreme Court observed that the contention that a person

having no practical experience in a particular field, though

academically qualified, expressing a wish to start a business in such

a field reflects a lack of his bona fides, is fallacious and

unpragmatic. The Hon'ble Supreme Court has gone to 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 Hon'ble 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.

40] In Ragavendra Kumar vs. Firm Prem Machinery and Co.12,

the Supreme Court reiterated that the landlord is the best judge of 12 (2000) 1 SCC 679

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his own requirement for residential or business purposes and has

complete freedom in the matter. In this case, the landlord had

admitted that he owns several other shops and houses, but had

stated that they were not vacant and also that the suit premises

were suitable for proposed business. In such circumstances, the

Supreme Court allowed the landlord's eviction petition on the

grounds of reasonable and bona fide requirement.

41] The reasoning of the Appeal Court is contrary to the settled

position of law as enunciated by the Supreme Court in the aforesaid

decisions. The Appeal Court has clearly misdirected itself in law in

ignoring the relevant and vital material on record and further, failing

to advert to settled position in law in the matters of evaluation of

reasonable and bona fide requirement.

42] In Civil Application No.3107 of 2010, the tenant, has

purported to place reliance upon certain alleged subsequent

developments. In support of propositions that such subsequent

developments have to be considered, Mr. Dhakephalkar has placed

reliance upon the decisions of this Court in Kiran Gujar (supra) and

Shrirang Kale (supra).

            43]     In Kiran Gujar (supra), this Court, in the peculiar facts and








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circumstances of the said case, merely remanded the matter to the

Appellate Court for reconsideration. The direction was also issued

to consider the application for adducing additional evidence in

accordance with law and on its own merits. This decision can hardly

be of any assistance to the tenant in the fact situation of the present

case. Shrirang Kale (supra), in fact lays down that in absence of

prayer for amendment of the pleadings and without such

amendment subsequent events cannot even be considered.

44] In this case, except for filing Civil Application No. 3107 of

2010 and setting out therein certain alleged subsequent

developments, the tenants have not even applied for any

amendment to the pleadings. Even in Om Prakash Gupta (supra),

upon which reliance has been placed by Mr. Dhakephalkar, the

Supreme Court has categorically held that the person wishing Court

to take notice of subsequent events, must make out a case

justifying such notice being taken. Further, the Supreme Court has

held that subsequent events can be taken cognizance of only if the

Court's attention is invited towards them according to established

rules of procedure so that the prerequisites of affording the

opposite party an opportunity of meeting the new case and of

determining the real questions in controversy are fulfilled. Where,

the appellant-defendant before the Supreme Court only filed an

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affidavit stating certain facts and did not seek to amend the the

pleadings, nor made a prayer regarding cognizance of subsequent

events, nor prayed for appropriate relief, the Court would not be

justified in taking into consideration the facts concerned.

45] Apart from the procedural obstacles, if Civil Application No.

3107 of 2010 is perused, then, it can hardly be said that

developments referred to therein are really in the nature of

subsequent developments, which are relevant for deciding the issue

of reasonable and bona fide requirement or the issue of

comparative hardship. The tenant has made reference to the age of

landlord Kirloskar and the fact that he is bed ridden for 4 to 5 years

and he is suffering from Kidney or other ailments. On this basis,

Mr.Dhakephalkar urged that it is impossible for the landlord to

undertake the proposed business in this state of his health. The

submission deserves rejection. On account of litigative process,

such subsequent developments are inevitable. In this case, the

requirement pleaded was not merely of the landlord himself, but

also of his two sons.

46] In the civil application, there is reference to recovery of some

other tenanted premises from one Mr. Joshi in Kirloskar Chawl. It is

stated that the sons of the landlord are now doing the business of

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supply of machinery parts to textile industries and distribution of

wholesale Tea from this new premises for the last 13 to 14 years.

Again, this can hardly be said to be some subsequent

developments which will impact the decree granted by the Trial

Court. In any case, by way of reply, the landlords have pleaded that

House No.40 in Kirloskar Chawl is the residential house of the

landlords and on account of non-availability of the suit premises, the

landlord and his son are forced to inconveniently carry on the

business from the residential house. This means that this so called

development strengthens the case of the landlord rather than

weakens their case.

47] The civil application also makes reference to certain

residential premises, the possession of which, the landlords have

recovered in the meanwhile. Again, this is clearly irrelevant because

the suit premises are being used for commercial purposes and the

landlords have made out a case that they require the suit premises

for commercial purposes.

48] The civil application, once again makes reference to sale of

open plot to Indian Oil Company. For reasons, indicated earlier, this

is an irrelevant circumstance insofar as the issue of reasonable and

bona fide requirement of the suit premises is concerned. There is,

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accordingly, no case made out to upset the decree made by the

Trial Court on the grounds of so called subsequent developments

referred to in Civil Application No. 3107 of 2010.

49] In Gaya Prasad (supra), the Supreme Court has held that

subsequent developments during pendency of eviction petition

occurring because of slowness of process of litigation itself cannot

be made use by the tenants for denying landlord reliefs, when the

litigation at last reaches the final stages. Further, the Supreme

Court has held that subsequent events should be of such nature

and dimension as to completely eclipse such need and make it

loose significance altogether. The developments in lives of landlord

and his family, cannot be expected to come to a standstill during

pendency of eviction petition, especially in view of tardiness and

delays plaguing the legal system. Bona fides of the requirement

have to be tested in relation to the date on which the eviction was

applied for. Where premises were required for starting a son's

business, the fact that during the years that the matter is pending,

the son gets a job or moves out of town, cannot be used against the

landlord. For these reasons also, there is no question of depriving

the landlords reliefs on the grounds of the alleged subsequent

developments referred to in Civil Application No. 3107 of 2010.

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            50]     Upon cumulative consideration of the material on record as

well as the legal position enunciated by the Supreme Court and this

Court, the impugned judgment, decree and order dated 22 nd March

1995 made by the Appeal court denying relief of eviction of the

tenant on the ground of reasonable and bona fide requirement

warrants interference. Accordingly, the impugned judgment, decree

and order dated 22nd March 1995 made by the Appeal Court to the

extent, it reverses the judgment, decree and order dated 29th June

1991 made by the Trial Court on ground of reasonable and bona

fide requirement, is hereby set aside. This means that the judgment,

decree and order dated 29th June 1991 made by the Trial Court

ordering eviction of the tenants on the ground of reasonable and

bona fide requirement of the landlords is hereby restored.

51] The respondents-tenants are directed to hand over the vacant

and peaceful possession of the suit premises to the landlords within

a period of three months from today. This time is granted subject to

the tenants filing usual undertaking before the Trial Court within a

period of four weeks from today after furnish of advance copy to the

landlords or their advocates.

            52]     Rule is made absolute in the aforesaid terms. There shall








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            however, be no order as to costs.



            53]     Civil Application No. 3107 of 2010 is disposed of in the

            aforesaid terms.



                                                     (M. S. SONAK, J.)

            Chandka/Sherla