Bombay High Court
Parshuram Chunilal Kanojiya vs Shri. Manohar Vithoba Kuntha ... on 4 October, 2024
2024:BHC-AS:39343
Neeta Sawant CRA-238-2021-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 238 OF 2021
Parshuram Chunilal Kanojiya ....Applicant
-Versus-
Manohar Vithoba Kuntha (since
Deceased through Legal Heirs)
And another ....Respondents
____________
Mr. Rajesh Kachare with Mr. Tushar Dahibawkar with Ms. Sonal
Dabhokar i/b Dahibawkar & Co., for the Applicant.
Dr. Ranjit A. Thorat, Senior Advocate with Ms. Pratibha Shelake with
Ms. Anamika Malhotra i/b Mainak Adhikary, for the Respondent
No.1(a) to 1(d).
_____________
CORAM : SANDEEP V. MARNE, J.
Reserved On : 24 September 2024.
Pronounced On : 4 October 2024.
JUDGMENT :
1) This Revision Application is filed challenging the decree
dated 8 October 2021 passed by the Appellate Bench of the Small
Causes Court dismissing Appeal No. 376/2017 filed by the
Applicant/Defendant No.2 and confirming the eviction decree dated
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26 October 2017 passed by the learned Judge of the Small Causes Court
directing the Defendants to handover possession of the suit premises
in addition to conduct of enquiry into mesne profits.
2) Briefly stated, facts of the case are that, Plaintiffs are
owners and landlords in respect of the property known as Building
No.4 situated on plot of land bearing CTS No.425, 12th lane,
Kamathipura, Nagpada, Mumbai 400 008. Defendant No.1 was
inducted as a monthly tenant in respect of Shop No.1 on the ground
floor of the said Building No.4 on monthly rent of Rs.400/-, which are
the 'suit premises'. Plaintiff instituted R.A.E. Suit No.253/426 of 2011
seeking recovery of possession of the suit premises alleging
unauthorised subletting by Defendant No.1 in favour of Defendant
No.2. Plaintiff also claimed the ground of non-user as well as bonafide
requirement of the landlord. The suit was resisted by Defendant No.2
by filing Written Statement that he is the son of Defendant No.1 and
denied the allegation of unlawful subletting. Defendant No.2 also
contested the grounds of non-user and bonafide requirement of
Plaintiff-landlord. Both the sides led evidence in support of their
respective claims. It appears that during the pendency of the suit,
Defendant No.1-Tenant passed away. In the Affidavit of Evidence,
Plaintiff made a statement that he was not pressing the grounds of
non-user and unlawful subletting though pleaded in the plaint. Thus,
the suit proceeded on the sole ground of bonafide requirement of
Plaintiff. After considering the pleadings, documentary and oral
evidence, the Trial Court answered the issues of bonafide requirement
and comparative hardship in favour of Plaintiff and proceeded to
decree the suit vide judgment and order dated 6 October 2017.
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Defendants were directed to handover possession of the suit premises
with further enquiry into mesne profits under Order 20 Rule 12 of the
Code of Civil Procedure, 1908. Revision Applicant/Defendant No.2
filed Appeal No. 376/2017 before the Appellate Bench of the Small
Causes Court challenging the eviction decree dated 6 October 2017.
The Appellate Bench has however dismissed the appeal confirming
the eviction decree by its judgment and order dated 8 October 2021.
Defendant No.2/Revision Applicant has accordingly filed the present
Revision Application under the provisions of Section 115 of the Code.
3) Mr. Kachare, the learned counsel appearing for Petitioner
would submit that the Trial Court and Appellate Bench have
erroneously accepted the ground of bonafide requirement for passing
eviction decree against the Revision Applicant. He would take me
through the averments in the plaint in support of his contention that
the bonafide requirement as originally pleaded was that Plaintiff's
daughter-in-law needed the suit premises for the purpose of her
business as Consultant in investment and Agency of Postal Savings,
R.B.I. Bond Saving Scheme, ICICI Bond Saving Scheme, ICICI
Prudential Life Insurance etc. That it was pleaded that the daughter-
in-law had clients around the suit premises and she was looking after
the affairs of the business from residential premises of the Plaintiff
located in the same building which consisted of only one room and
kitchen. He would submit that in the cross-examination, it was
admitted by the Plaintiff's daughter-in-law that the Plaintiff was not
residing in the building, in which the suit premises are located and
that he had permanently shifted to the flat at Wadala. He would
submit that the said witness also admitted that Plaintiff was also in
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possession of Room No.3 in the suit building, which is kept vacant.
That she was also admitted availing of commercial electricity
connection in respect of the said Room No.3. That she further
admitted that neither she nor any member of her family ever resided
in the suit building at any point of time. That she further admitted
that no difficulty would arise for the Plaintiff if the decree was to be
refused.
4) Mr. Kachare would submit that in the light of the above
specific admissions given by the Plaintiff's witness, the ground of
bonafide requirement and/or comparative hardship could not have
been held to be proved. He would take me through the electricity
meter in respect of Room No.3 in support of his contention that the
same could be used for commercial purposes. He would submit that in
any case, the Plaintiff himself had admitted that the daughter-in-law
was doing business from residential premise and the premises were
required because of nuisance caused to him on account of the
daughter-in-law conducting business therefrom. That it was admitted
by the daughter-in-law that Plaintiff no longer resides in the said
residential premises located in the suit building and therefore there is
absolutely no difficulty for the daughter-in-law to conduct her
business activities. That the business activity of the daughter-in-law is
such that the same does not require use of any commercial premises.
That even if it is to be assumed that any commercial premises are
required, Plaintiff is in possession of Room No.3 with commercial
electricity connection, which can also be used by the daughter-in-law.
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5) Mr. Kachare would submit that the provisions of Section 25
of the Bombay Rents, Hotel and Lodging House Rates Control Act or
Section 30 of the Maharashtra Rent Control Act do not put any
prohibition on landlord converting his own premises from residential
to commercial. In support, he would rely upon judgment of this Court
in Motilal M. Mehra Versus. Rutty Homi Bharucha and another 1
and Madhukar Vishnu Sathe and others Versus. Vithoba Ramji
Thorat (since deceased by L.R.'s) and others 2. Mr. Kachare would
accordingly submit that sufficient premises are available for
Plaintiff's daughter-in-law for conducting business. That despite
establishment of availability of alternate premises, the Trial Court
have erroneously held that the tenant cannot dictate terms of the
landlord. That this is not a case involving dictation of terms by tenant
for landlords and once it is proved that suitable premises are
available for conducting business, the Trial Court ought to have
dismissed the suit seeking recovery of possession on the ground of
bonafide requirement.
6) Dr. Thorat, the learned senior advocate appearing for
Respondent Nos.1(a) to 1(d) would submit that no interference is
warranted in the concurrent findings recorded by the Trial Court and
its Appellate Bench in exercise of revisionary jurisdiction by this
Court. That Plaintiff's daughter-in-law needs commercial premises
and the tenant cannot dictate terms for landlord to use residential
premises for commercial purposes. That suit premises are the only
commercial premises which can be used for conducting business by
1983 Mh.L.J. 25
AIR 1992 Bom 272
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the daughter-in-law. He would rely upon the provisions of Section 30
of the Maharashtra Rent Control Act in support of his contention that
there is a prohibition for landlord to convert residential premises for
commercial use. In support he would rely upon the judgment of the
Apex Court in Bapubhai Mohanbhai Versus. Mahila Sahakari Udyog
Mandir3.
7) Dr. Thorat would submit that the electricity connection in
respect of Room No.3 was procured by mistake. That in any case, mere
procurement of electric connection does not mean that premises got
converted for commercial use. He would submit that in the records of
the Planning Authority, Room No.3 still continues to be for residential
use. That the Trial Court and the Appellate Court have considered all
these aspects and have rightly arrived at the conclusion that the
Defendant could not establish availability of any commercial premises
for conducting of business by the Plaintiff's daughter-in-law. That
therefore in absence of any commercial premises, the bonafide
requirement as well as comparative hardship for Plaintiff is rightly
held to be proved. That Defendant No.1 was the original Tenant and
other sons of Defendant No.1 are well established at Banaras and
Saudi Arabia. That the Appellate Bench has recorded a specific finding
that Defendant No. 2 is not running laundry business in the suit
premises. As against this, need of Plaintiff's daughter-in-law is
established. That in such circumstances, no interference is warranted
in the concurrent findings recorded by both the Courts below. He
would pray for dismissal of the Revision Application.
AIR 1975 SC 2128
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8) Rival contentions of the parties now fall for my
consideration.
9) As observed above, though the suit was initially filed on
three grounds of (i) unlawful subletting, (ii)non-user and (iii) bonafide
requirement of landlord, Plaintiff gave up the grounds of unlawful
subletting and non-user by making following statements in his
Affidavit of Evidence:
9. I say that the original Defendant No.1 died and the Defendant
No.2 is his son, one of the heirs and legal representatives, the
Plaintiff is not pressing the ground of non-user and unlawful
subletting for eviction which are taken in the plaint against the
Defendants.
10) The suit thus proceeded on the sole ground of bonafide
requirement, in respect of which, the Trial Court was supposed to
answer the issues of establishment of bonafide requirement of
Plaintiff and cause of comparative hardship to rival parties within the
meaning of Section 16(2) of the MRC Act.
11) Plaintiff pleaded for recovery of possession of the suit
premises on the ground of bonafide requirement, which was premised
on his daughter-in-law's need for conduct of her business as
Consultant as well as of Agency of various financial and insurance
schemes. It would be necessary to reproduce relevant pleadings in
paras-10 to 13 of the plaint, which read thus:
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10. The Plaintiff states that the Plaintiff is in dire need of the suit
premises. The Plaintiff states that the suit premises are required by
the Plaintiff for reasonably bonafide for the use of his family
members. The Plaintiff states that the suit premises are required
for the office of his daughter-in-law Mrs. Sunita Amul Kuntha (the
wife of his son) by the Plaintiff. The Plaintiff states that his
daughter-in-law is educated in Diploma in Electronic and Telecom
Engineering. The Plaintiff states that said daughter in law of the
Plaintiff is doing business as consultant in investment and also
having Agency of Postal Saving, R.B.I. Bond Saving Scheme, ICICI
Bond Saving Scheme, ICICI PRUDENTIAL LIFE INSURANCE. etc. The
Plaintiff states that the Government of India Small Savings Schemes
& Mahila Pradhan Kshetriya Bachat Yojana Authority for
Appointment as Authorized Agent has issued the certificates to her
said daughter-in-law. The said certificate is annexed herewith and
marked as "Exhibit - A". The Plaintiff states that National savings
Organization of Government of India has issued certificate to her
daughter-in-law. The same is annexed herewith and marked as
"Exhibit - B" colly. The Plaintiff states that the Insurance
Regulatory and Development Authority issued the Licenses being
Licence No. 819402 and 'Identity' card to his daughter-in-law. The
same is annexed herewith and marked as "Exhibit -C" colly. The
Plaintiff states that his daughter in law is having other certificates
in respects of her Business. The said certificates are annexed
herewith and marked as "Exhibit-D" colly.
11.The Plaintiff states that she is having one staff to assist her in his
business. The name of the said Assistant is Mr. Uday Govalkar. The
daughter-in-law of the Plaintiff is paying his salary by cheque. The
Plaintiff craves leave to refer to and rely upon the Banks Statement
when produced.
12. The Plaintiff states that at present her daughter in law Mrs.
Sunita is looking after all the affairs of her said business from the
residence premises of the Plaintiff. The Plaintiff states that the
residential premises in occupation of the Plaintiff is very small
premises having area 325 sq.ft. consisting of one Room and kitchen,
and one residential small room having area approximately 80 sq.ft.
on the ground floor of the suit building. The Plaintiff states that the
premises having on third floor is residential premises and the same
is belonging to the legal heirs of the brother of the plaintiff. The
Plaintiff states that the family of the Plaintiff is consist of six
members. The Plaintiff states that the Plaintiff is having two grand
sons aged 13 years and 4 years respectively. The Plaintiff states that
the elder grand son is studying in fifth standard. The Plaintiff states
that his son was in possession of one residential premises at lower
parel. The said premises was not suitable hence he has sold the said
premises and taken one residential premises at Wadala from the
amount of Lower Parel premises and also taken the loan by
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mortgaging the said residential premises with the Bank as the
residential premises available with the Plaintiff was inadequate to
accommodate all family members as the family of the Plaintiff are
increasing.
13. The Plaintiff states that now the Plaintiffs' family residing at
both the premises at the above referred premises and Wadala
premises. The Plaintiff states that he and his wife reside for at the
suit building for most of the time and his son, daughter in-law and
granddaughter and son residing at wadala premises and also
residing with the Plaintiffs. The Plaintiff states that all costumers of
the daughter of Plaintiffs are from the area/locality of Kamathipura
wherein the suit premises are situated. The Plaintiff states that at
present his daughter-in-law is looking after all affairs of her
business from the residence of the Plaintiff it causes disturbs to the
privacy of the family of the Plaintiff as her clients/costumers visit
her and she use to hold meeting in the residence as she is not
having any other place. The Plaintiff state that the Plaintiff and his
wife are senior citizen having 76 years and 65 years old and in their
old age they don't get peaceful atmosphere in the residence as the
clients of his daughter-in-law visits the residence of Plaintiff.
12) Thus as pleaded in the plaint, Plaintiff's daughter-in-law
was conducting the business of consultancy and agency of financial
and insurance schemes in residential premises of Plaintiff located in
the suit building comprising of one room Kitchen admeasuring 325
sq.ft on upper floor and 80 sq.ft on the ground floor. Plaintiff,
however admitted that his son was residing separately at Wadala with
his daughter-in-law and grandchildren, but since customers of his
daughter-in-law were located in Kamathipura area, the daughter-in-
law was looking after the business from the residence of Plaintiff,
which was disturbing Plaintiff's privacy. This was Plaintiff's pleaded
case.
13) Plaintiff examined Smt. Sunita Kuntha, daughter-in-law,
as his constituted attorney as P.W.1. In her evidence, she produced
various certificates to prove conduct of business by her of
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consultancy and agency of financial and insurance schemes. She also
proved payment of salary to her Clerk. She reiterated the contents of
the plaint about convenience of carrying out business in Kamathipura
area on account of location of customers in that area.
14) However, when Smt. Sunita was subjected to cross-
examination she gave vital admissions against the case of Plaintiff and
in support of Defendant. It would be relevant to reproduce the
relevant part of cross-examination of P.W. 1, which reads thus:
It is true to say that my father-in-law has given me power of attorney to
file suit. At the time of filing of suit my husband and me went to the office
of advocate to give instructions. My father-in law was waiting outside the
office. My father-in-law at present 81 years old. It is true to say that he is
residing in the house and not doing any work. At present me and my
husband looking after my father-in-law. Suit premises is at building No.4,
12th Lane, Kamathipura, Nagpada, Mumbai. It is true to say that suit
premises is at ground floor. There are three floors in the suit premises. At
present my father-in-law is not residing at suit premises but he is residing
at Dosti Acre, Flora Tank Bldg. 705, Vadala (East), Mumbai. The said
premises is in my name and in the name of my husband. It is true to say
that my mother-in-law is also residing at Vadala. It is true to say that
initially I along with my husband, father-in-law and mother-in-law were
residing together. It is true to say that I was residing at Nilganga society,
Lower Parel in the year 2004. I have taken the said premises in the lucky
draw of MHADA. At the relevant time I have paid Rs.2,50,000/- to MHADA.
The area of said premises was 500 sq.ft. It is true to say that on some
occasions my father-in-law used to come at Lower Parel for residence. It is
to say that I have not mentioned about the residence of Lower Parel in
plaint and affidavit. It is true to say that I have not filed proof about the
residence at Lower Parel. By obtaining the loan of bank and selling the
property of Lower Parel, I purchased the property at Vadala. Approximate
area of flat situated at Vadala is 1200 sq.ft. It is true to say that I alongwith
my husband, father-in-law and mother-in-law are residing at Vadala. I
have two sons namely Apurv and Indra. Apurv is of 19 years and Indra is of
12 years. It is true to say that both are taking education. The elder son is
taking education in Poddar College, Matunga and younger son is taking
education at Vadala.
No family member is residing at suit premises. My some clients of LIC are
residing in the suit building. I tried to search the other premises but I
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could not get it in Kamathipura. I have taken the flat at Vadala in year
2009. It is true to say that at the time of filing of suit I was having a place
to reside at Lower Parel. It is true to say that since filing of first suit till
today my father-in-law is having possession of second and third floor of
suit building.
xxxxx
xxxxx
In the suit building one residential room except the suit premises was
available in the name of my father-in-law. It is true to say that room
available in the suit building is having room No.3. The rent receipt of room
No.3 is in the name of my mother-in-law. My mother- in-law is housewife.
Initially she was doing the tailoring business in private firm. At present
room No.3 is kept vacant. It is true to say that at present my father-in-law
and mother-in-law are residing with me at Vadala. The electric bill of
premises i.e. Room No.3 is in the name of Rajani Manohar Kuntha i.e. my
mother-in-law. It is residential electric bill. I have seen the electric bill of
room No.3. It is not true to say that electric bill is at present commercial.
It is true to say that due to residence of my in-laws with me, second and
third floor of suit building are kept vacant. It is true to say that room No.3
of ground floor is also kept vacant. It is not true to say that for commercial
purpose bank can issue loan in my favour.
Xxxx
It is true to say that neither me nor any family member is resided at any
time in the suit premises. Para 17 of examination-in- chief is now shown to
the witness. It is true to say that physical condition of my father-in-law is
not good to use the suit premises. It is true to say that I am managing the
affairs of family. It is true to say that at present my father-in-law i.e.
plaintiff is dependent upon me. It is true to say that at present my father-
in-law i.e. plaintiff is residing at Wadala and therefore, there is no
question of nuisance to my father-in- law. It is true to say that at present
no person is residing in room No.3 of the suit building. It is true to say that
my client can meet me in room No.3 situated at ground floor of the suit
building. It is true to say that no difficulty will arise to me and my father-
in-law, if decree is refused. Witness volunteers that room situated at
ground floor is a residential premises, hence same cannot be used for
commercial premises. When my father-in-law was residing in the suit
premises, room No.3 was kept for the purpose of visiting of the clients. It is
true to say that at present plaintiff cannot climb the second and third floor
of the suit building due to his ill health.
It is true to say that in year 2016 the electric meter of room No.3 was
commercial meter. Witness volunteers that the electric meter was
converted into commercial by mistake. I cannot exactly tell the date when
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I came to know about the electric meter of suit premises converted into
commercial. It is not true to say that the electric meter of room No.3 is a
commercial meter. It is not true to say that only to harass the defendant, I
have filed the false suit against the defendant. It is not true to say that
only as a counter blast to the proceeding filed by defendant before the
Hon'ble High Court I have filed the present suit. It is not true to say that
suit premises is not reasonably and bonafidely required by the plaintiff. It
is not true to say that hardship will cause to the defendant, if decree is
passed. I do not know whether the defendant is having any other
commercial premises for the business.
(emphasis added)
15) Plaintiff's daughter-in-law thus admitted that Plaintiff
was no longer residing in the suit building and was residing alongwith
his son and daughter-in-law at Dosti Acre, Wadala (East), Mumbai. She
also admitted that none of the family members were residing in the
suit building. She further admitted that in addition to the premises in
which her father-in-law was residing, additionally Room No.3 is in
possession of the Plaintiff which is kept vacant. Though, she claimed
that the electricity connection in respect of Room No.3 was
residential, she later admitted that in the year 2016, commercial
electricity meter was procured in respect of Room No.3. She further
admitted that neither she nor any member of her family ever resided
in the suit building. She further admitted that since the Plaintiff was
residing at Wadala, therefore there was no question of cause of any
nuisance to him on account of her absence. To make case worst for
Plaintiff, she admitted that 'It is true that no difficulty would arise for
me or my father-in-law if decree is refused'. She further admitted that
when Plaintiff used to reside in the suit building, Room No.3 was
actually being used for visiting the clients.
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16) In my view, the above admissions given by Plaintiff's
witness completely demolishes the case of bonafide requirement.
Plaintiff's witness (daughter-in-law for whose need recovery of
possession of suit premises is sought) admitted the following:
(i) That Plaintiff was no longer residing in the suit building and
therefore no nuisance would be caused to him if business is
conducted by the daughter-in-law in the room, in which the
father-in-law was earlier residing.
(ii) That Room No.3 on the ground floor is kept vacant.
(iii) That commercial electricity connection was procured in
respect of Room No.3.
(iv) That while Plaintiff was residing in the suit building, Room
No.3 was being used for doing her business.
17) The above admissions go contrary to the theory pleaded
in the plaint that Plaintiff's business in residential premises of the
father-in-law located in the suit building was causing annoyance,
which is why the daughter-in-law needed to conduct her business in
the suit premises. As of today, the residential premises in which the
Plaintiff was residing, and where the daughter-in-law was allegedly
conducting business while residing at Wadala, are admittedly vacant.
Plaintiff did not plead that she was facing any difficulty in conducting
any activities of consultancy in the residential premises of father-in-
law. All that she pleaded was that Plaintiff was facing nuisance on
account of clients of daughter-in-law visiting the said residential
premises. Now that those residential premises are vacant, the very
cause of alleged nuisance to Plaintiff no longer survives.
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18) Additionally, it has come in evidence that Plaintiff
possesses Room No. 3 on the ground floor, which was being used for
meeting clients by the daughter-in-law and that Plaintiff was residing
in the residential premises located in the suit building. It has also
come in evidence that Plaintiff procured commercial electricity
connection in respect of said Room No.3. True it is that mere
procurement of commercial electricity meter cannot be a reason
enough for assuming that there is conversion of residential premises
into commercial one. However, at the same time looking at the nature
of business of daughter-in-law, it is more in the nature of a profession
of consultancy, which can be and was being carried out earlier from
Room No.3.
19) Dr. Thorat has relied on provisions of Section 30 of the
Maharashtra Rent Control Act in support of his contention that there
is prohibition for the landlord to convert residential premises into
commercial one. Provisions of Section 30 of the Maharashtra Rent
Control Act reads thus:
30. Conversion of residential into commercial premises prohibited.
(1) A landlord shall not use or permit, to be used for a commercial
purpose any premises which, on the date of the commencement of
this Act, were used for a residential purpose.
(2) Any landlord who contravenes the provisions of sub-section (1)
shall, on conviction, be punishable with imprisonment for a term
which may extend to six months or with fine which may extend to
ten thousand rupees or with both.
20) The prohibition under Section 30 is on use of residential
premises for commercial purpose. Since the word 'landlord' is used,
the prohibition is essentially with reference to a tenant. Thus, the
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owner of property who has created tenancy, cannot permit the tenant
to use the residential premises for commercial use. Even if it is to be
accepted that the prohibition applies to landlord as well, at the
highest, it can be held that the landlord who secures possession of the
residential premises cannot use the same for commercial use. Mr.
Thorat has relied upon judgment of the Apex Court in Bapubhai
Mohanbhai (supra). In para-7 of the judgment, the Apex Court held as
under:
7. Learned counsel for the respondent places great reliance on the
non-obstante clause of section 13 (1) and argues that legislature ,
having considered the question whether section 13 should be made
subject to any other law or to any other Provision of the Act came
to the conclusion that it should be made subject to the provisions
of section 15 only and therefore it would be wrong to subject the
provisions contained in section 13(1) to section 25. The High Court
also approached the problem before it by saying that the material
question for consideration was whether section 13(1) can be made
subject to section 25. This auction was answered by the High Court
by saving that since the legislature did not subject the right
conferred on the landlord by section 13(1) to any other provision
save the one contained in section 15, section 25 cannot be
permitted to override section 13(1). This approach, in our opinion,
is misconceived. The true question for consideration is not whether
as between section 13(1) and section 25(1) one overrides the other
and indeed, in view of the wording of the non obstante clause
of section 13 (1), the pervasions of that section must have priority
over the rest of the Act, except for what is contained in section 15.
But conceding to section 13(1) its rightful precedence and granting
that it stands supreme except for section 15, according to its own
terms the court has to be satisfied that the requirement of the land
lord is reasonable A requirement which runs in the teeth of section
25 and which, if established, may throw the landlord open to the
risk of a prosecution cannot be called reasonable. Therefore, if the
respondent shall have failed, it is not because section
25 overrides section 13 (1) hut because of its failure to prove the
reasonableness of its requirement. Whether the requirement of the
landlord is reasonable or not is to be judged from all the facts and
circumstances of the case and a highly relevant circumstance
bearing on the reasonableness of the land lord's requirement is
that the purpose for which the possession is sought is a purpose for
which the premises cannot be used save on pain of penal
consequence. Courts ought not to construe a statute in a manner
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which will encourage the breach of any of its provisions and, most
certainly, a decree ought not to be passed which, if honored, will
attract penal consequences. To pass a decree in favour of the
respondent on the grounds accepted by the High Court is to invite
the respondent to commit a breach of the statutory injunction
contained in section 25 (1).
21) In the case before the Apex Court, the landlord filed suit
for recovery of possession of the tenanted premises for its business,
whereas the premises were let out for residential purposes. It is in the
light of those facts that the Trial Court held that the landlord cannot
secure possession of residential premises and then use the same for
commercial purposes on account of prohibition under Section 25 of
the Bombay Rent Act which prohibition was pari materia to Section 30
of the Maharashtra Rent Control Act. In the present case, Room No.3
is not let out to any tenant for residential purposes and therefore
there is no embargo on the landlord for converting the same for
commercial use. This is however not to suggest that Plaintiff can use
the premises for commercial purpose.
22) Thus, reliance by Plaintiff on provisions of Section 30 of
the MRC Act, which is pari materia to Section 25 of the Bombay Rent
Act, in support of the contention that there is prohibition on use of
Room No.3 for the landlord and to convert the same into commercial
purposes is completely misplaced.
23) In fact, reliance of Mr. Kachare on judgment of this Court
in Motilal M. Mehra (supra) appears to be apposite. In that case,
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Neeta Sawant CRA-238-2021-FC
owner of the building consisting of four floors converted ground floor
in his exclusive possession into a guesthouse. The tenant residing on
third floor instituted suit for injunction against the owner from using
the same on ground floor for non-residential purposes by relying
upon Section 25 of the Bombay Rent Act. In the light of these facts,
this Court held in paras-9, 10 and 11 as under:
9. There is another difficulty in the way of the plaintiff. The bar
created by section 26 is firstly against a landlord and secondly it is
in respect of a certain premises. Now both these terms have been
defined in the Act itself. The use of these terms pre-supposes a
relationship between landlord and a tenanted premises. That is the
concept which is given effect to in the definition which is
exhaustive in section 5(3) of the Bombay Rent Act. The term
landlord is defined in so far as is material is as follows:
"Landlord" means any person who is for the time being
receiving, or entitled to receive rent in respect of any
premises whether on his own account or on account, or on
behalf, or for the benefit of any other person............... who
would ............... be entitled to receive the rent if the
premises were let to a tenant; ........."
The term landlord is defined in the context of premises, and the
premises must be those in respect of which rent is being received
or receivable by the landlord. Therefore, unless the premises are
rented out, the owner cannot become a landlord for the purposes of
the Bombay Rent Act. Consistent with this definition and with the
object of the Act, the word 'premises' has also been defined in
section 8 as meaning, inter alia, "any building or part of a building
let or given on licence separately ............ but does not include a
room or other accommodation in a hotel or a lodging house". The
other part of the definition is not relevant. What is, however,
important is that here again the definition of premises is an
exhaustive definition, because the word used is "means".
Therefore, before any house or accommodation can be called
premises for the purposes of the Bombay Rent Act it must be a
building or a part of a building let or given on licence separately.
This exhaustive definition of premises will, therefore, not include
any premises in the possession of the owner and which are not let
or given on licence separately.
1o. Now it is a known canon of construction of statutes that where
the Act itself provides for a dictionary of the meaning of the words
used in the Act, wherever those words are utilised in the different
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Neeta Sawant CRA-238-2021-FC
provisions of the law, those definitions must be substituted in those
provisions. If we now thus read section 26, having regard to the
definition of the words landlord and premises, it is obvious that
section 26(1) will be attracted only where the premises which are
let or given on licence are allowed to be used or used by the
landlord of the premises for a non-residential purpose if they were
originally used for residential purpose. In other words, the
disability created by section 26(1) fastens itself only on rented
premises or premises given on licence and the person subjected to
the disability must satisfy the character of a landlord. Where none
of these or any one of these conditions are not satisfied, it is
obvious that section 26(1) will not be attracted at all.
11. Mr. Gumaste, however, contended that the definition in section
5 opens with the words "unless there is anything repugnant to the
subject or context" and, therefore, according to the learned
counsel, the word landlord in section 26(1) must be given a wider
meaning and must take within it even an owner of a property
which is not a subject of tenancy. It is difficult to accept this
argument. Firstly, it is not pointed out by the learned counsel how
there is anything repugnant to the subject or context in section 26
to justify the giving of a different meaning to the word landlord.
Secondly, even generally understood the term landlord implies that
there is a relationship of landlord and tenant in respect of certain
premises, though a landlord would be an owner of a property.
However, owner of a property will not be a 'landlord' as understood
in the context of a law relating to landlord and tenant unless the
premises are let out. I have, therefore, no doubt in my mind that
section 26(1) is wholly irrelevant so far as the premises owned by
the petitioner is concerned. The tenant in the instant case can have
no right to challenge the user by the landlord of his other property.
The averments in the plaint and the relief sought from the Small
Causes Court show that the suit is founded wholly on the
assumption that section 26(1) creates a right in favour of the
plaintiff-respondent. In the view which I have taken, it is obvious
that the suit does not relate to any question arising out of the
provisions of the Rent Act and, apart from the fact, it is wholly
misconceived.
(emphasis added)
24) In Madhukar Vishnu Sathe (supra), this Court has followed the
ratio in Motilal M. Mehra's case and has held in para-11 as under:
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11. The appellate Court has declined to grant the decree for
eviction on this ground only on the basis of the effect according to
it of Section 25 of the Bombay Rents Act prohibiting the change of
user from non-residential to residential and residential to non-
residential. The said provision states that the land lord shall not
use or permit to be used for a non-residential purpose any premises
which on the date of the coming into operation of this Act were
used for a residential purpose. The appellate Court found difficulty
of conversion of the use of the premises which have been found
suitable and having been acquired by the tenants. Therefore, it
becomes necessary to consider whether the bar of Section 25 can be
said to be applicable to the situation at hand. In a decision
considering the question of jurisdiction under Section 28 of the
Bombay Rents Act. Motilal Mehra's case (1983 Mah L.J. 25) (supra),
the Court has taken into consideration the disability of the landlord
with regard to the change of the use of the premises as
contemplated under Section 25 of the Bombay Rents Act and in that
connection it has been observed that this fastens itself only on
rented premises or on premises given on licence or the person
subject to the disability imposed satisfying the character of a
landlord. Thus, it is clear that before proceeding to consider the
application of Section 25 of the Bombay Rents Act it will have to be
considered as to whether respondents would be in the position of
landlords in relation to the premises in question. It would also be
necessary to consider as to whether the premises in question is
rented premises and it is then only it would be possible to consider
whether the provisions of Section 25 of the Bombay Rents Act could
be held to apply prohibiting residential character being converted
into non-residential character. On the facts of this case the
respondents are the owners of the premises in question. The
admitted position is that the premises which is sought to be
contended as suitable accommodation is in the possession of the
respondents-tenants in their capacity as the owners. In any sense
of the term, they cannot be considered to be landlords of the
premises. The premises is not rented out. It is not in possession of
anyone even under licence. The facts and the material on record is
more than clear that the position is that no satisfactory material is
on record in any manner to state that the premises in question can
be the premises to which Section 25 of the Bombay Rents Act could
at all apply. In this view of the position it is not possible to endorse
the view of the appellate Court that the decree for eviction cannot
be passed on the ground of there being a bar of Section 25 of the
Bombay Rents Act.
(emphasis added)
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Neeta Sawant CRA-238-2021-FC
25) In the present case, Plaintiff's daughter-in-law has not
been conducting any commercial business as such. It is Plaintiff's own
case that prior to filing of the suit, the activities of profession of
consultancy were being carried by daughter-in-law from the
residential premises, in which the Plaintiff was residing. The root
cause for filing of the suit was alleged nuisance caused to Plaintiff on
account of his daughter-in-law's clients visiting the residential
premises. Therefore, if the daughter-in-law conducted consultancy
activities from residential premises, in which Plaintiff was residing at
the time of filing of the suit, I do not see any reason why the same
activities cannot be continued after Plaintiff left the said residential
premises and shifted in son's house at Wadala. Additionally, Room No.
3 on the ground floor, in which admittedly commercial electricity
connection was procured by Plaintiff, is also available for conducting
daughter-in-law's consultancy activities. I am therefore of the view
that Plaintiff has thoroughly failed to prove his bonafide requirement.
26) Despite acknowledging availability of necessary premises
for conducting daughter-in-law's consultancy activities, the Trial
Court has held that the tenant cannot dictate terms upon the
landlord. True it is that landlord is the best judge in respect of his
need and that the tenant cannot dictate terms upon the landlord as to
how the premises need to be used. However, in the present case, the
tenant is not dictating terms to the landlord. It is Plaintiff's own case
that the daughter-in-law has been conducting her consultancy
activities from residential premises. This is not a case where the
daughter-in-law intended to embark upon a new business activity, for
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Neeta Sawant CRA-238-2021-FC
which commercial premises were necessary. There is no pleading or
evidence that the daughter-in-law faced any difficulties in carrying
out consultancy activities from residential premises. The only
difficulty expressed was nuisance caused to Plaintiff and his wife, who
were aged at the time of filing of the suit. Apart from the fact that at
the time of filing of the suit, Room No.3 on the ground floor was also
available for carrying out consultancy activities by daughter-in-law,
Plaintiff shifted to his son's flat at Wadala as is clearly admitted by
Smt. Sunita and no member of the family was found residing in the
residential premises located in the suit building as on 11 August 2016,
when Smt. Sunita deposed. She gave a specific admission that 'It is
true that no difficulty will arise to me and my father-in-law if the
decree is refused'. Thus, Plaintiff's witness gave an admission that she
would not face any difficulty in carrying out her consultancy
activities if decree of eviction was not granted. In the light of these
clear admissions and since no case is made out by Plaintiff about
genuine need to occupy the suit premises for carrying out
consultancy activities by Smt. Sunita, in my view, the bonafide
requirement of Plaintiff itself is not established. In the light of
Plaintiff not making out a case that any difficulty or inconvenience
was caused in using residential premises for consultancy activities of
Smt. Sunita, there is no question of tenant dictating terms on
Plaintiff. In my view, therefore the Trial Court and the Appellate
Court have grossly erred in accepting the grounds of bonafide
requirement.
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Neeta Sawant CRA-238-2021-FC
27) Since bonafide requirement itself is not established, it is
not necessary to go into the issue of comparative hardship under
Section 16(2) of the MRC Act. However, just for the sake of completion
of the findings on all issues framed in the suit, it would be necessary
to consider the evidence led by parties on the issue of comparative
hardship. As observed above, Plaintiff's witness Smt. Sunita gave
specific admission of non-cause of any difficulty to Plaintiff and to
herself in the event of decree being refused. Additionally, in the
cross-examination, Defendant's witness specifically stated that 'After
death of my father i.e. Defendant No.1, I myself is running the business
in the suit premises'. Thus, there is specific evidence led by the
Defendants that Defendant's witness has been carrying out business
in the suit premises after death of the original Tenant. Plaintiff gave
up the ground of non-user and thereby admitted that Defendant No. 2
has been running the laundry business from the suit premises. In my
view, therefore the point of comparative hardship also needs to be
decided against the Plaintiff and in favour of the Defendants.
28) After considering the overall conspectus of the case, I am
of the view that the Trial Court and its Appellate Bench have palpably
erred in accepting the ground of bonafide requirement for passing a
decree of eviction. The finding recorded by both the Courts are of
such a nature that they are impossible of being sustained in the light
of pleadings and evidence available on record. Therefore, this Court is
justified in exercising revisionary jurisdiction under the provisions of
Section 115 of the Code in interfering with the same.
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29) Consequently, the Civil Revision Application succeeds.
The judgment and decrees passed by the Trial Court on 6 October
2017 as confirmed by the Appellate Bench on 8 October 2021 are
accordingly set aside. R.A.E.& R. Suit No. 253/426 of 2011 filed by
Plaintiff is dismissed. If any interim compensation is deposited by the
Revision Applicant before the Small Causes Court or before this Court
(except rent), the same shall be permitted to be withdrawn by the
Revision Applicant alongwith accrued interest. The amount of rent, if
deposited in Small Causes Court or in this Court, is permitted to be
withdrawn by Respondents/Plaintiffs alongwith accrued interest. The
Civil Revision Application is accordingly allowed. Considering the
facts and circumstances of the case, there shall be no order as to
costs.
Digitally
signed by
NEETA
NEETA SHAILESH [SANDEEP V. MARNE, J.]
SHAILESH SAWANT
SAWANT Date:
2024.10.05
14:45:14
+0530
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4 October 2024
