Bombay High Court
Sakharam D. Patwardhan @ Hairs Pradeep ... vs Shri Shankar 3K on 2 January, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:239 6 WP 2956.1996.24+.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2956 OF 1996
Dr. Sakharam Dinkar Patwardhan (since ...Petitioners
deceased) through Heirs Pradeep Sakharam
Patwardhan & Ors.
Versus
Shri. Shankar Kondo Kalekar & Ors. ...Respondents
WITH
CIVIL APPLICATION NO. 837 OF 2000
IN
WRIT PETITION NO. 2956 OF 1996
Dr. Sakharam Dinkar Patwardhan (since ...Applicant
deceased) through Heirs Pradeep Sakharam
Patwardhan & Ors.
Versus
Shri. Shankar Kondo Kalekar & Ors. ...Respondents
WITH
CIVIL APPLICATION NO.2427 OF 2002
IN
WRIT PETITION NO. 2956 OF 1996
Shri. Shankar Kondo Kalekar & Ors. ...Applicant
Versus
Dr. Sakharam Dinkar Patwardhan (since ...Respondents
deceased) through Heirs Pradeep Sakharam
Patwardhan & Ors.
WITH
CIVIL APPLICATION (ST) NO. 47608 OF 2002
IN
WRIT PETITION NO. 2956 OF 1996
Dr. Sakharam Dinkar Patwardhan (since ...Applicant
deceased) through Heirs Pradeep Sakharam
Page 1 of 14
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6 WP 2956.1996.24+.DOC
Patwardhan & Ors.
Versus
Shri. Shankar Kondo Kalekar & Ors. ...Respondents
Mr. Tejas D. Deshmukh, Advocate for the Petitioner
Mr. Niranjan P. Shimpi, Advocate for the Respondent Nos. 3/1, 3/2
and 3/3.
CORAM: MADHAV J. JAMDAR, J.
DATED : 2nd JANUARY 2025
JUDGMENT :
1. Heard Mr. Deshmukh, learned Counsel appearing for the
Petitioner and Mr. Shimpi, learned Counsel appearing for the
Respondent Nos. 3/1 to 3/3 i.e. the contesting Respondents.
2. The challenge in this Writ Petition, filed under Articles 226
and 227 of the Constitution of India, by the Petitioner, who is the
original tenant is to the legality and validity of the Judgment and
Decree dated 29th February 1996 passed by the learned III
Additional District Judge, Solapur in Civil Appeal No.415 of 1989.
The challenge in said Civil Appeal No. 415 of 1989 was to the
Judgment and Decree dated 30 th March 1989 passed by learned II
Joint Civil Judge, Junior Division Solapur in Regular Civil Suit No.
1099 of 1980, by which the said Suit was dismissed. By the
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impugned Judgment and Decree dated 29 th February 1996, the
Appeal is partly allowed by passing partial eviction decree
regarding only Block No.14 out of Suit premises being Block Nos.
14, 15 and 16 of Kalekar Building, Navi Peth, Solapur.
3. It is the submission of Mr. Deshmukh, learned Counsel that,
although earlier the bonafide requirement mentioned as of all the
Plaintiffs, however, during the pendency of the Suit, the plaint has
been amended by adding paragraph 2(v) and paragraph Nos. 6(v)
by which it has been brought on record that the partition has been
effected between the Plaintiffs and as far as the Plaintiff No.3 is
concerned, he has been allotted Block Nos. 7, 14, 15, 16, 20, 21
and 22 of said Kalekar Building. He submitted that the entire basis
of the case of Plaintiff No.3 is on the partition of the properties,
however, said partition has not been proved and in any case, the
same is challenged by filing Suit by one co-owner. He submitted
that the said partition is malafide. He submitted that the Plaintiff
No.3 has failed to prove bonafide requirement and therefore, the
impugned decree of partial eviction should not have been passed.
He further submitted that the learned Trial Court by giving cogent
reasons has dismissed the suit and therefore the learned Appellate
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Court should not have interfered with the findings recorded by the
learned trial Court.
4. Mr. Shimpi, learned Counsel appearing for the Respondents
submitted that as far as allotment of these blocks in favour of
Plaintiff No.3 is concerned, there is no dispute raised by Plaintiffs
before the learned Trial Court as well as the learned Appellate
Court. He further submitted that all the Plaintiffs are parties to the
present Writ Petition as the Respondents, however, none of the
Respondents have raised any dispute atleast regarding allotment of
these block Nos. 7, 14, 15, 16 and 20 and 21 in favour of the
Plaintiff No.3. In any case, he submitted that even assuming that
there is no partition, then also admitted position is that the Plaintiff
No.3 is co-owner of these properties and therefore, as per settled
legal position, even one co-owner can file the Suit for eviction. He
further submitted that the evidence on record clearly shows that
the son of Plaintiff No.3,who is an Advocate is having need of the
premises. He therefore, supported the decree passed by the learned
Appellate Court.
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5. At the outset, it is required to be noted that the Petitioner
i.e. the Defendant is in possession of Block Nos. 14, 15 and 16 i.e.
each block consisting of 3 rooms and thus admittedly the
Defendant is in possession of 9 rooms. By the impugned Order of
the Appellate Court only partial decree is passed by which the
Defendant is directed to deliver vacant possession of Block No.14 to
the Plaintiff. The said Block No.14 is consisting of 3 rooms and
even after eviction of the Defendant of said Block No. 14, the
Defendant will be in possession of 6 rooms of Block Nos. 15 and
16. The position on record shows that all these rooms are very
specious.
6. With the above background, it is required to note the
reasons given by the learned trial Court while rejecting decree of
eviction and even the partial eviction decree. The reasons given by
the learned Trial Court reads are as under:
"At present the Plff. No.3 is in possession of Block No.7
consisting of 4 rooms. Plff. No.3 and his wife can have
a one room for maintaining their privacy. Son of Plff.
No.3 and daughter-in-law of Plff. No.3 can live along
with small kid in one room. There remains 2 more
rooms. One room can be used by the Plff. No.3 as
drawing room and remaining one room can be used
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for other purposes. It is admitted fact that during
pendency of the suit, the Plffs. have received
possession of Block No.1, 8 and 18. Block No.1 is used
by Plff.No.1. Plff. No.1 is in possession of 9 rooms.
There were 9 persons in the family of Plff. No.1 at the
time of institution of the suit. The Plff. No.1 is in
possession of 9 rooms. I am of the opinion that the
premises of 9 rooms for the family members of Plff.
No.1 are sufficient. Moreover, Block No.1 is used by
Plff. No.1 for the office purpose. There is a board of
son of Plff. No.3 on Block No.1. It means son of Plff.
No.3 is also using Block No.1 as office for his legal
practise. Moreover, Plff. No.1 and son of Plff. No.3
have deposited Rs.30,000/- each for getting Chambers
in the Court Campus of Solapur. Plff No.1 and son of
Plff. No. 3 will get one Chamber each of area 17 x 10
ft. within a few months. Therefore, the problem of
office of the Plff. No.1 and son of Plff. No.3 will be
solved. It is pertinent to note that the Chambers will be
available for the Plff. No.1 and son of Plff. No.3 since
8.30 am to 8 pm. It means crowd of litigants will not
be at the Block No.7 of Plff No.3 during the above
hours. From all the circumstances and facts of the case,
I am of the opinion that the Plffs do not require suit
premises, reasonably and bonafide. Hence, I reply the
issue in negative."
(Emphasis supplied)
7. It is required to be noted that while considering bonafide
need of the Plaintiff No.3, even the area which is in possession of
Plaintiff No.1 or more particularly the possession of Block which
the Plaintiff No.1 has received has been taken into consideration by
the learned Trial Court. However, the learned Trial Court failed to
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appreciate that the Suit has been filed against the Petitioner-
Defendant seeking eviction decree with respect to the Suit premises
i.e. Block Nos. 14, 15 and 16, which have been allotted to the share
of the Plaintiff No.3 in the partition. Thus, the availability of rooms
for the Plaintiff No.1 is totally irrelevant.
8. Apart from that, it is required to be noted that one of the
contention raised by the Plaintiff No.3 is that the son of Plaintiff
No.3 is an Advocate and therefore, he requires space for
independent office. The learned trial Court has held that the
Plaintiff No.1 is also an Advocate and therefore, son of Plaintiff
No.3, who is junior Advocate also can work from the office of
Plaintiff No.1. The learned Trial Court has relied on the fact that
the office premises of the Plaintiff No.1 also bears the name-plate
of son of the Plaintiff No.3. The learned Trial Court has also held
that the family members of the Plaintiff No.3 can adjust in the
premises which are available with them. However, the said
approach of the learned Trial Court is not in accordance with law.
The Supreme Court in the case of R.C. Tamrakar And Another Vs.
Nidi Lekha1 has held that:-
1 (2001) 8 SCC 431
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"10. Law is well settled that it is for the landlord to decide
how and in what manner he should live and that he is the
best judge of his residential requirement. In deciding the
question of the bona fide requirement, it is unnecessary to
make an endeavour as to how else the landlord could have
adjusted himself."
As per settled legal position, it is the landlord who is the best judge
of his requirement and he will decide the manner in which the
property will be used. The Court cannot dictate the manner in
which the landlord should use the property. The approach of the
learned Trial Court is contrary to the legal position.
9. The another reason given by the learned trial Court in effect
is that the Chambers would be available in near future to the
Advocates in Court campus of Solapur, and the same would be
available to them from 8.30 a.m. to 8.00 p.m., therefore it is not
necessary to have separate office near the residence. However, the
learned trial Court has completely ignored that if an Advocate has
office near the Court as well as another at his residences or near
the residence, the same is very convenient for Advocate's work. The
Advocates who are the officers of the Court and have to assist the
Court in best possible manner have to work very hard for preparing
their cases including for studying the facts of the cases, the
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applicable legal provisions, latest decisions of the Supreme Court
and the High Court. Therefore, it cannot be said that the Advocates'
work is only for certain hours as noted by the learned trial Court.
The Advocates also have to held conferences with their clients for
taking instructions. The Advocate has to give full time attention to
his profession. The approach of the learned Trial Court as reflected
in the reasoning as quoted hereinabove is completely wrong.
10. In any case, it is the landlord who will decide the manner in
which the premises is required to be used. It is required to note the
manner in which the learned Appellate Court has considered the
need of the Plaintiff No.3 and particularly his son, who is an
Advocate. The relevant discussion is in paragraph No.17 which
reads as under:
"17/- Needless it to say bonafide need of the land lord
of the suit premises is to be considered in the context of
landlord's own status, occupation and size of his family.
In short, it is the landlord's own state of mind in the
background of which the requirement has to be
considered. Then the requirement must be bonafide
i.e. honest and not actuated by motive. In the instant
case, plaintiff No.3's son is practising as an Advocate
and not only that but he is additional public Prosecutor
and Government pleader. Having regard to the
functions which he has to discharge and having regard
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to the nature of the work and his status, his claim that
he needs separate office room-cum-study room and a
drawing room is not imaginary and hypothetical. I have
already discussed extent of his family and his other
needs. Considered in the background of all these facts,
I hold that the plaintiff has proved bonafide and
reasonable need of the suit premises. Lower Court
while considering this aspect of the matter wrongly
held that plaintiff No.3's son can use office of the
plaintiff No.1 which is at the ground floor. This is not
only impracticable but contrary to the ethics of the
profession because plaintiff No.3's son is now working
as Additional public prosecutor and representing State
in most of the matters. Lower Court then wrongly
relied upon the fact that plaintiff No.3's son was in
possession of Lawyer's Chambers and it was sufficient
for his office and study. While holding so, Lower Court
completely ignored the restrictions on the use of the
Lawyer's Chambers and its distance from residence of
the plaintiff. Therefore, finding recorded by the Lower
Court that need of the plaintiff is not bonafide and
reasonable cannot be sustained. I, therefore, differ with
the Lower court and the conclusions which are based
on certain wrong hypothesis cannot be sustained."
(Emphasis added)
Thus, the reasons given by the learned Appellate Court are on the
basis of evidence on record and the approach is in accordance with
the law.
11. One more contention raised by Mr. Tejas Deshmukh, learned
Counsel appearing for the Petitioner that the partition on the basis
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of which the Plaintiff No.3 is claiming right to Suit premises has
been challenged by one of the co-owner. It is required to be noted
that although all the co-owners are parties to this Writ Petition, as
well as in the Appeal and Suit, however, none of them have raised
any objection. In any case as per settled legal position even one co-
owner can file a Suit for eviction. The Supreme Court in the case of
Mohinder Prasad Jain Vs. Manohar Lal Jain2 has held as follows:
"10. This question now stands concluded by a decision of
this Court in India Umbrella Mfg. Co. v. Bhagabandei
Agarwalla [(2004) 3 SCC 178] wherein this Court
opined: (SCC p. 183, para 6)
"6. Having heard the learned counsel for the
parties we are satisfied that the appeals are liable
to be dismissed. It is well settled that one of the
co-owners can file a suit for eviction of a tenant
in the property generally owned by the co-
owners. (See Sri Ram Pasricha v. Jagannath
[(1976) 4 SCC 184] and Dhannalal v.
Kalawatibai [(2002) 6 SCC 16] , SCC para 25.)
This principle is based on the doctrine of agency.
One co-owner filing a suit for eviction against
the tenant does so on his own behalf in his own
right and as an agent of the other co-owners. The
consent of other co-owners is assumed as taken
unless it is shown that the other co-owners were
not agreeable to eject the tenant and the suit was
filed in spite of their disagreement. In the
present case, the suit was filed by both the co-
2 (2006) SCC 724
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owners. One of the co-owners cannot withdraw
his consent midway the suit so as to prejudice
the other co-owner. The suit once filed, the rights
of the parties stand crystallised on the date of the
suit and the entitlement of the co-owners to seek
ejectment must be adjudged by reference to the
date of institution of the suit; the only exception
being when by virtue of a subsequent event the
entitlement of the body of co-owners to eject the
tenant comes to an end by act of parties or by
operation of law."
11. A suit filed by a co-owner, thus, is maintainable in
law. It is not necessary for the co-owner to show before
initiating the eviction proceedings before the Rent
Controller that he had taken option or consent of the
other co-owners. However, in the event a co-owner
objects thereto, the same may be a relevant fact. In the
instant case, nothing has been brought on record to show
that the co-owners of the respondent had objected to
eviction proceedings initiated by the respondent
herein....."
(Emphasis added)
As noted hereinabove, all the co-owners are party to the present
Writ Petition, Suit as well Appeal and none of them have raised any
objection. Nothing has been pointed out to this Court that the
partition on the basis of which the Plaintiff No.3 has raised the
claim has been set aside. Thus, there is no substance in the
contention raised by the Petitioner.
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12. As far as the hardship is concerned, the learned Appellate
Court has also considered the same fairly in paragraph 18, which
reads as under :
"18. Now the question is whether possession of all the
three suit blocks which consists of 9 rooms possessed by
the defendant is required by the plaintiff. As discussed
above, Block No.7 consists of four rooms and they are
bigger in size than the areas of the rooms in the suit
blocks. Therefore, possession of one block or addition of
one block from the three suit blocks possessed by the
defendant would satisfy the need of the plaintiff No.3
and son. I am told that block No.14 is first amongst the
three blocks and it is near to the block No.7 possessed by
the plaintiff. Map produced by the plaintiff also supports
this submission, Therefore, I would hold that bonafide
and reasonable need is established to the extent of one
more block which consists of three rooms only."
(Emphasis added)
13. It is required to be noted that the suit has been filed seeking
possession of 3 blocks i.e. total 9 rooms. The learned Appellate
Court has only decreed the suit partially with respect to block
No.14 consisting of 3 rooms. Thus, as far as the suit seeking
possession of balance 2 blocks Block Nos. 15 and 16 i.e. 6 rooms,
the same is dismissed and only partial decree with respect to one
block consisting of 3 rooms has been granted. Thus even after
confirming the decree of the learned Appellate Court, the
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Petitioner-Defendant can continue to occupy 2 Blocks i.e. Block
Nos. 15 and 16 i.e. total 6 rooms. Thus, the partial decree passed
by the learned Appellate Court is just and equitable.
14. Thus, in the facts and circumstances of the case, no
interference is warranted under Article 227 of the Constitution of
India. Accordingly, the Writ Petition is dismissed, however, with no
order as to costs.
15. In view of disposal of the Writ Petition nothing survives in
the Civil Applications and the same are also disposed of.
BHALCHANDRA
GOPAL
DUSANE (MADHAV J. JAMDAR, J.)
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