Bombay High Court
Anilkumar S/O Bhaskarrao Walokar vs Sheshrao S/O Ganpatrao Dhabade on 18 February, 2025
Author: G. A. Sanap
Bench: G. A. Sanap
2025:BHC-NAG:1839
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CIVIL REVISION APPLICATION NO. 141 OF 2018
APPLICANT : Anilkumar S/o. Bhaskarrao Walokar,
(Ori. Plaintiff) Aged about Years, Occ. Business,
R/o. Sunil Niwas, Chitar Oli,
Nagpur.
//VERSUS//
NON-APPLICANT : 1. Sheshrao S/o. Ganpatrao Dhabade,
(Ori. Defendant) Aged about 60 Years, Occ. Business,
having their place of business in the
shop block on the ground floor of the
building bearing Municipal
Corporation House No.307, NIT
Plot No.71, Ward No.30, Bhavsar
Chowk, Central Avenue Road,
Nagpur.
**************************************************************
Mr. R.M. Sharma, Advocate for the Applicant.
Mr. M.D. Samel, Advocate for the Non-applicant.
**************************************************************
CORAM : G. A. SANAP, J.
RESERVED ON : 25th OCTOBER, 2024.
PRONOUNCED ON : 18th FEBRUARY, 2025.
JUDGMENT
. In this revision application, challenge is to the
judgment and order dated 25th September, 2018, passed by the
learned District Judge-3, Nagpur, whereby the learned Judge
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dismissed the appeal filed by the applicant/original plaintiff against
the judgment and decree passed by the learned 2 nd Additional
Judge, Small Causes Court, Nagpur, in Regular Civil Suit
No.165/2012 dated 18th July, 2017. The learned Judge of the Small
Causes Court, Nagpur, vide order dated 18th July, 2017, had
dismissed the suit filed by the applicant/plaintiff for possession of
the tenanted premises in possession of the non-applicant/
defendant on the ground of reasonable and bona fide requirement.
02] The facts are as follows:
In this judgment the parties shall be referred by their
nomenclature in the plaint. The applicant shall be referred as the
plaintiff, and the non-applicant shall be referred as the defendant.
The premises, admeasuring about 130 sq. ft., situated on the
ground floor of the Municipal Corporation House No.307, NIT
Plot No.71, Ward No.30, Bhavsar Chowk, Central Avenue Road,
Nagpur, shall hereinafter be referred to as the "suit premises". The
defendant was inducted in the suit premises way back in 1990 as a
tenant. The suit premises is a shop. The defendant has been doing
the business of selling the Cardboard from the suit premises. It is
the case of the plaintiff that the suit premises consist of ground plus
one floor. On the first floor of the suit premises, there is a lodge
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known as Vishranti having nine rooms. The said lodge is run by
the sister-in-law of the plaintiff. The plaintiff and other members
of the family, including the sister-in-law, are residing jointly. It is
stated that, in order to complement to the business of the lodge,
the plaintiff wants to start the business of the restaurant on the
ground floor. On the ground floor, one shop in the line of the suit
premises facing the road is in possession of the plaintiff. The
plaintiff needs 1000 to 1100 sq. ft. area for starting the restaurant.
The plaintiff has no premises in his possession to start his
restaurant business. The suit premises are required reasonably and
bona fide by the plaintiff for starting his restaurant business. The
defendant was requested by the plaintiff to vacate the suit premises.
The defendant did not pay any heed. It is submitted that the
plaintiff would suffer greater hardship, if a decree is not passed in
his favour. On the other hand, it is contended that the defendant
would not suffer any hardship, because the commercial premises
are easily available in the locality. On these averments, the plaintiff
prayed for a decree.
03] The defendant resisted the claim. The defendant has
admitted that he is the tenant of the suit premises. However, the
defendant has denied the claim of the plaintiff with regard to the
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requirement of the premises for starting the restaurant business. It
is contended that the plaintiff is having sufficient premises in the
suit premises as well as in other buildings in the vicinity owned by
the family. The plaintiff can very-well start his business there. The
requirement is not reasonable and bona fide. The defendant has no
alternative premises for doing his business. His livelihood depends
upon the income from the business carried on from the suit
premises. The plaintiff is financially well off. He is in the business
of jewellery. If the decree for eviction is passed, then he would
come on the street. He has no alternative premises. He would
suffer greater hardship in case a decree for possession is passed.
04] The parties adduced the evidence to support their rival
contentions. The learned 2nd Additional Judge, Small Causes
Court, Nagpur, dismissed the suit holding that the plaintiff has
failed to prove his requirement of the premises. The plaintiff filed
the appeal against this judgment and decree. The learned District
Judge-3, Nagpur, has recorded a finding on the issue of reasonable
and bona fide requirement in favour of the plaintiff. However, the
learned District Judge on the point of hardship has recorded a
finding that the defendant/tenant would suffer greater hardship in
case a decree for possession is passed. The learned District Judge,
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by holding that the decree for possession would cause greater
hardship to the defendant/tenant, dismissed the suit. The plaintiff
has challenged the finding recorded by the learned District Judge
on the point of hardship by filing this revision application. The
defendant has also filed the counterclaim and challenged the
finding on the point of reasonable and bona fide requirement
recorded against him.
05] I have heard Mr. R.M. Sharma, learned advocate for
the applicant/plaintiff and Mr. M.D. Samel, learned advocate for
the non-applicant/defendant. Perused the record and proceedings.
06] Learned advocate for the plaintiff submitted that the
learned District Judge has failed to properly appreciate the
evidence adduced by the plaintiff on the point of hardship.
Learned advocate submitted that the defendant in his cross-
examination has categorically admitted that from 24 th April, 2012,
he has not searched the alternative accommodation. Learned
advocate submitted that the learned District Judge has only taken
into consideration further part of the cross-examination where the
suggestion put to the defendant with regard to the efforts to search
for alternative accommodation was denied. Learned advocate
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submitted that the learned District Judge has recorded the finding
on the issue of hardship against the plaintiff by ignoring this
categorical admission. It is submitted that the finding recorded by
the learned District Judge ignoring the admission is perverse and it
needs to be corrected. Learned advocate submitted that the tenant
has to plead and prove that, after the filing of the suit for recovery
of possession on the ground of requirement, he has made efforts to
find out the alternative premises. Learned advocate submitted that
this finding needs to be corrected. Learned advocate further
submitted that other observations made by the learned District
Judge with regard to the affluent status and financial position of
the plaintiff, could not be taken into consideration while deciding
the hardship. Similarly, the other source of livelihood through the
jewellery shop could not have been taken into consideration by the
learned Judge, while recording the finding on the issue of hardship
against the plaintiff. Learned advocate, in order to seek support to
his submission, has relied upon the following decisions:
1. Shamshad Ahmad & Ors. Vs. Tilak Raj Bajaj (deceased)
thr. L.Rs. & Ors. [(2008) 9 SCC 1].
2. Gaur Chandra Basu and Anr. Vs. Ruchira Ashok Sonde &
Anr. [(2002) SCC OnLine Bom 808].
3. Bhimanagouda Basanagouda Patil Vs. Mohd. Gudusaheb
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[(2003) 3 SCC 101].
4. Uday Shankar Upadhyay & Ors. Vs. Naveen Maheshwari
[(2010) 1 SCC 503].
5. Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta [(1999) 6
SCC 222].
07] Learned advocate for the defendant submitted that the
finding recorded by the learned Judge on the issue of bona fide
requirement in favour of the plaintiff is contrary to the evidence on
record. There is ample accommodation available at the disposal of
the plaintiff. He has admitted that, during the pendency of the suit,
he has recovered possession of the premises in the building, which
is in front of the suit premises. Learned advocate took me through
the record and pointed out that in the suit building, ample space is
available at the disposal of the plaintiff to start his business. The
mezzanine floor is admeasuring about 600 sq. ft. The mezzanine
floor is just below Vishranti Lodge, and the same can be used for
starting the restaurant. The requirement is not reasonable and bona
fide. It is actuated with malice. The requirement put-forth is
nothing but a ground created at the whims and fancies of the
plaintiff/landlord. It is submitted that, therefore, the finding
recorded by the learned District Judge against the defendant on the
point of bona fide requirement needs to be set aside.
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08] As far as the comparative hardship is concerned,
learned advocate submitted that the income from the suit premises
is the only source of livelihood of the defendant. If the decree for
eviction is passed, then he would come on the street. The
defendant has established the goodwill of his business carried on
from the suit premises. It is submitted that the defendant has
pleaded as well as proved that he is unable to find out the
alternative premises in the locality. It is submitted that, on this
point, the learned Judge has properly appreciated the evidence and
attending circumstances. It is further submitted that, if the decree
for eviction is passed against the defendant, then he would suffer
greater hardship. Learned advocate submitted that the admission
sought to be capitalised by the plaintiff was given under the
misconception. His evidence in totality has to be considered. It is
submitted that the finding recorded by the learned Judge on the
point of hardship does not warrant interference in the revisional
jurisdiction.
09] At the outset, it would be necessary to consider the law
laid down by the Hon'ble Apex Court. The Hon'ble Apex Court in
the case of Uday Shankar Upadhyay & Ors. (supra) has held that if
the landlord is able to prove his bona fide need of the premises,
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then it is not for the court to say that he should shift to the first
floor or any higher floor. It is well-known that the shops and
businesses are usually conducted on the ground floor, because the
customers can reach there easily. The Court cannot dictate the
landlord which floor he should use for his business; that is for the
landlord himself to decide.
10] The Hon'ble Apex Court in the case of Shiv Sarup
Gupta (supra) has held as follows:
"Once the court is satisfied of the bona fides of the need of the
landlord for the premises or additional premises by applying
objective standards, then in the matter of choosing out of more
than one accommodation available to the landlord, the
subjective choice of the landlord shall be respected by the
Court. The Court would permit the landlord to satisfy the
proven need by choosing the accommodation which the
landlord feels would be most suited for the purpose; the Court
would not in such a case thrust its own wisdom upon the choice
of the landlord by holding that not one but the other
accommodation must be accepted by the landlord to satisfy his
need. It is held that, in short, the concept of bona fide need or
genuine requirement needs a practical approach instructed by
the realities of life. An approach either too liberal or too
conservative or pedantic must be guarded against."
11] In the backdrop of the above-stated legal position, the
finding recorded by the learned District Judge on the point of
reasonable and bona fide requirement of the plaintiff needs to be
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appreciated. The learned Judge of the Small Causes Court did not
accept the claim of the plaintiff. However, the learned District
Judge, on re-appreciation of the evidence in appeal, recorded a
finding that the requirement of the plaintiff was reasonable and
bona fide. It has come on record that, on the ground floor of the
building, there are shops. On the first floor, there is a lodge run by
the sister-in-law of the plaintiff. There are more than one co-owner
of the property. Below the lodge, there is a mezzanine floor
admeasuring about 600 sq. ft. In his evidence, the plaintiff has
stated that this mezzanine floor is proposed to be used to
accommodate the kitchen for the restaurant. The mezzanine floor
cannot be used for running a restaurant, inasmuch as it has no
entrance from the front side of the building. The area of the
mezzanine floor is too short to start the restaurant and
accommodate the kitchen. The plaintiff has deposed that, on the
front side of the building, there are three shops. Out of three shops,
one shop is in possession of the plaintiff.
12] It is undisputed that the suit filed against the tenants of
the adjoining shop was also dismissed. However, in the appeal on
the ground of bona fide requirement, the finding has been
recorded in favour of the plaintiff/landlord. It needs to be
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mentioned at this stage that the tenant of the adjoining shop has
not filed counterclaim in Civil Revision Application No.140/2018,
filed by the plaintiff/landlord against the tenant. The
plaintiff/landlord has challenged the finding recorded on the issue
of hardship against him by filing Revision Application
No.140/2018. It is to be noted that the finding on the issue of bona
fide requirement has been recorded in favour of the plaintiff. It
needs to be stated that the bona fide requirement pleaded by the
landlord needs to be considered objectively. The need of the
landlord must be reasonable and bona fide. The requirement and
bona fide requirement and mere desire are two distinct things. The
desire is an outcome of whims and fancies. The requirement can be
said to be natural, real, sincere, and honest, if it is reasonable and
bona fide. If it is a mere desire, then it could not be said to be
reasonable and bona fide. The landlord has the freedom to choose
the premises for doing the business of restaurant. The tenant
occupies the premises pursuant to the privity of contract. The
parties are bound by the terms and conditions of the contract. The
Maharashtra Rent Control Act, 1999 (for short, "the Maharashtra
Rent Control Act") provides numerous grounds for eviction of the
tenant. While considering the ground of reasonable and bona fide
requirement of the landlord, the Court has to bear-in-mind the
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facts and circumstances of each and every case. There cannot be a
straight jacket formula to arrive at a conclusion on the issue of
reasonable and bona fide requirement. The reasonable and bona
fide requirement pleaded by the landlord has to be addressed
objectively on the basis of the evidence on record.
13] In this case, it has come on record that the tenant from
the adjoining building has vacated the tenanted premises.
However, it shows that those premises are residential premises. The
eviction of the tenant from the residential premises cannot be made
use of by the tenant to defend the requirement of the landlord of
the premises for starting the business. The residential premises
cannot be converted into commercial use. It has come on record
that, on the backside of the building, there are shops. It has come
on record that the plaintiff has also initiated proceedings for
eviction of those tenants. It is the case of the plaintiff that the
premises from the building facing the road are suitable for
restaurant. The learned District Judge, on minute scrutiny and
appreciation of the evidence, has accepted the case of the plaintiff
and rejected the defence of the defendant. The freedom of the
landlord to start the business from his own property cannot be
questioned. He has the right to start the business from his own
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property. The need of the premises to start the business by the
landlord must be reasonable and bona fide. If it is found that the
requirement is not genuine, then the attempt made by the landlord
to evict the tenant under the guise of starting his business needs to
be nipped in the bud. In this case, the evidence adduced by the
plaintiff is sufficient to prove that his requirement is reasonable and
bona fide. There is already a lodge having nine rooms on the first
floor of the building. It is stated that for the occupants of the lodge,
the restaurant on the ground floor is necessary. The occupants of
the lodge are also facing inconvenience for want of boarding
facility.
14] The plaintiff was subjected to searching cross-
examination. Perusal of his cross-examination would show that he
did not conceal anything from the Court. He has stated about his
jewellery business and the separate premises for the jewellery
business. It has come on record in his cross-examination that he is
financially well off. It is submitted that the plaintiff, being
financially well off, is not required to start any other business. In
my view, this submission cannot be accepted. His need of the
premises vis-a-vis the business proposed to be started by him needs
consideration. The evidence on record is sufficient to prove that
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the need of the premises put forth by the plaintiff is genuine. At
this stage, it would be necessary to make a mention of one of the
safeguards provided to the tenant who has suffered the decree
under Section 16(1)(g) of the Maharashtra Rent Control Act. In
this context, it would be appropriate to make a reference to Section
18 which provides the protection to the tenant. As per this section,
a tenant, who has been evicted pursuant to the decree under
Section 16(1)(g), can be directed to be put into the possession of
the said premises, if the landlord does not occupy the premises
within a period of one month from the date of the recovery of the
possession or the premises are re-let within one year of the date of
the recovery of the possession. The complete mechanism is
provided in this regard under Section 18 of the Maharashtra Rent
Control Act. In my view, therefore, the finding recorded by the
learned District Judge on the point of reasonable and bona fide
requirement does not warrant interference. It is based on proper
appreciation of the evidence. The finding recorded by the learned
District Judge on the point of reasonable and bona fide
requirement is consistent with the settled legal position as
enunciated hereinabove. Therefore, the counterclaim filed by the
defendant goes.
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15] The next important issue is pertaining to the
comparative hardship. In this context, sub-section (2) of Section 16
of the Maharashtra Rent Control Act needs consideration. Sub-
section 2 of Section 16 mandates that no decree for eviction shall
be passed on the ground of requirement, if the Court is satisfied
that, having regard to all the circumstances of the case, including
the question whether other reasonable accommodation is available
for the landlord or the tenant, greater hardship would be caused by
passing the decree than by refusing to pass it. In short, it states that
if the decree results in greater hardship than by refusing to pass it,
then the decree on the ground of requirement shall not be passed.
The availability of other reasonable accommodation is the most
important factor while deciding the comparative hardship.
16] It is submitted that the defendant, after filing of the
suit, did not search for the alternative accommodation. Learned
advocate for the plaintiff took me through the evidence as well as
the finding recorded by the learned Judge. The plaintiff has stated
that he has no alternative accommodation for starting the
restaurant business, and therefore the premises are required by him.
The finding recorded by the learned District Judge on the point of
his requirement of the premises in his favour has attained finality.
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The defendant/tenant has denied the claim. It is contended by the
defendant that he has no alternative premises and therefore he
would suffer greater hardship, if the decree for eviction is passed.
Learned advocate took me through the cross-examination of the
defendant and pointed out that he has admitted that he had not
searched for the alternative accommodation since 24 th April, 2012.
The suit was filed in 2012. It is seen from further part of the cross-
examination that the defendant has denied that he did not make
attempts to find out the reasonable alternative accommodation.
The learned District Judge seems to have overlooked this vital and
important admission. The learned Judge has given undue
importance to the other part of his cross-examination. He was
asked in his cross-examination whether he has searched for
alternative accommodation. He answered the said question in the
affirmative and denied the suggestion that he is deposing falsely on
that count. It is to be noted that, in view of this candid admission,
it was not necessary to ask any further question of the defendant in
the cross-examination. However, the advocate for the plaintiff took
the risk. This seems to be a mistake on the part of the advocate.
However, on account of this mistake, the vital admission given by
the defendant that he did not search for the alternative
accommodation from 24th April, 2012, is a very clear and
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unambiguous admission. It can be made use of against the
defendant. The learned Judge, as can be seen from the analysis of
the evidence, has completely missed this part of the evidence. The
finding on this issue has been recorded, ignoring this vital
admission. In my view, this is contrary to the record. This finding is
required to be corrected.
17] The Hon'ble Apex Court in the case of Shamshad
Ahmad & Ors. (supra) has held as follows:
"50. Regarding comparative hardship, nothing has been stated
by the tenant as to whether any attempt has been made by him
to get alternative accommodation and he failed to get such
accommodation. In the circumstances, in our opinion, the
appellate authority was right in observing that there was no
evidence to show that no shop was available to the tenant. It is
quite possible, as noted by the appellate authority, that the
tenant might have to pay more rent. But that would not
preclude the landlords from getting possession of the suit shop
once they had proved genuine need of the property."
18] The Co-ordinate Bench of the Bombay High Court at
Principal Seat in the case of Gaur Chandra Basu & Anr. (supra) has
held as follows:
"12. From the evidence it is obvious that no positive evidence
has been adduced by the defendants that getting alternative
premises in the same locality or the same city was impossible. If
that be so, then applying the principle enunciated by the Apex
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Court in (1979) 1 SCC 273 : A.I.R. 1979 S.C. 272 in the case
of (Ms. Bega Begum v. Abdul Ahad Khan (dead) by L.Rs.), the
Court will have to answer the issue of comparative hardship
against the petitioners-tenants and in favour of the respondent-
plaintiff landlady."
19] In my view, the above-stated settled legal position
seems to have been glossed over by the learned Judge. The
admission given by the defendant, as stated-above, is sufficient to
crystallize this issue. The tenant has to plead and prove that despite
efforts, the alternative premises are not available. Perusal of the
evidence would show that the defendant in his examination-in-
chief has stated that he has tried his level best to search the
alternative accommodation, but he could not get the same. The
defendant was required to adduce the sufficient evidence to
elaborate this aspect. A bald statement of this kind would not be
sufficient to accept the contention. The defendant could have
provided the particulars as to the place where he searched for the
alternative premises. He was required to provide the details of the
locality, the rent, etc. His evidence is silent. In his cross-
examination, he has given admission contrary to what was stated in
the examination-in-chief. The admission cannot be discarded. The
admission is the best evidence. In order to wriggle out of the
admission, it must be proved that it was given on account of some
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misconception or confusion. It could have been explained by
conducting re-examination. In my view, therefore, the settled legal
position is against the defendant. The defendant has failed to prove
that he made search of the alternative premises, and he could not
get the same.
20] The learned Judge, while recording the finding on the
issue of hardship against the plaintiff, has observed that the
plaintiff is having a jewellery shop, and starting the business of
restaurant from the suit premises would help him to earn more. It
is observed that for earning his bread and butter, the business of
the restaurant is not must. His survival does not depend on the said
business. The learned Judge has observed that additional income
from the restaurant business would bring luxury to the plaintiff,
whereas the defendant/tenant would struggle for earning his bread
and butter from the new premises. It is also observed that, if the
defendant is required to vacate the suit premises, then he would
lose his goodwill and may not get a lucrative business at another
premises in a different area. In my view, these observations are
contrary to the settled legal principles.
21] The Hon'ble Apex Court in the case Bhimanagouda
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Basanagouda Patil (supra) has held that the finding of comparative
hardship cannot be recorded in favour of the tenant only on the
basis of the affluence of the parties. If this is the correct approach,
then an affluent landlord can never get possession of his premises
even if he proves all his bona fide needs.
22] In my view, in the backdrop of this settled legal
position, the observations made by the learned Judge on this point
cannot be sustained. The learned Judge has failed to properly
appreciate this aspect. In view of this, I conclude that the finding
recorded by the learned Judge on the point of comparative
hardship is required to be set aside. The defendant has failed to
adduce the evidence and prove that he searched for the alternative
accommodation and he could not get the same. Considering the
non-availability of the premises with the plaintiff for starting his
restaurant business, his case that he requires the premises
reasonably and bona fide for starting his restaurant business
deserves acceptance. In the facts and circumstances, no greater
hardship would be caused to the defendant in case the decree for
eviction is passed. If the decree for eviction is not passed, then the
plaintiff would not be able to start his restaurant business, despite
proving his requirement being reasonable and bona fide. As such,
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the revision application deserves to be allowed. The counterclaim
deserves to be rejected. Accordingly, the suit filed by the plaintiff
deserves to be decreed. Hence, the following order:
ORDER
i] The revision application is allowed.
ii] The counterclaim filed by the defendant is rejected.
iii] The suit is decreed with costs throughout.
iv] The defendant shall deliver the vacant and peaceful
possession of the suit premises to the plaintiff.
v] The tenancy of the defendant has been
determined/terminated by the decree of this Court. If the
defendant fails to vacate the premises, then he shall pay the mesne
profits from the date of this order.
vii] The revision application stands disposed of in the
aforesaid terms.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 24/02/2025 19:45:19
