Gujarat High Court
Indumati Sadashiv Deshmukh vs Mohanlal Dahyabhai Gandhi on 26 February, 2004
Author: P.B. Majmudar
Bench: P.B. Majmudar
JUDGMENT P.B. Majmudar, J.
1. The petitioners are the original defendants of Regular Civil Suit No. 78 of 1985, against whom as well as against respondent No. 2 herein a suit for possession was filed by respondent No. 1 herein - original plaintiff. Respondent No. 1 - original plaintiff is the owner of property situated in the city of Navsari in Ward No. 1, which is situated at Dargah Road having Municipal Census No. 1415. Originally, the suit premises were let out to one Sadashiv Deshmukh for residential purpose and after his death his heirs continued to occupy the suit premises. It is the case of the plaintiff that at the time of filing of the suit, defendant No. 1, one Sindhuben and defendant No. 2 - Induben, were residing in the suit premises and both of them are sisters and both of them are spinsters. Rest of the defendants, i.e. defendants Nos. 3, 4 and 5, are not residing in the suit premises and they are residing elsewhere. They were joined as the heirs of original tenant - Sadashiv Deshmukh. It seems that during the pendency of the suit, said Sindhuben expired and therefore her name was deleted from the suit. The case of the plaintiff is that the defendants are staying on the first floor of the suit premises and on the ground floor the plaintiff is doing the business of running a provision store, which, according to him, is going on since the time of his father and grandfather and the plaintiff is also residing in the ground floor in one room along with his other family members. According to the plaintiff, defendant No. 2 is occupying a room and a katariya (a store room). It is the case of the plaintiff in the plaint that he is having a large family and that the premises of one room, which is in their possession, is not adequate and therefore the said suit was filed for a decree for possession on the ground of bona fide requirement under Section 13(1)(g) of the Bombay Rent Act. It is also the case of the plaintiff that since he is having aged sons, the privacy is not maintained. As against that, defendant No. 2 is occupying two rooms and if decree as prayed for is not passed, the plaintiff will suffer irreparable hardship. On the aforesaid grounds the suit for possession was instituted by the plaintiff.
2. On behalf of the defendants written statement at exh.16 was filed denying the claim of the plaintiff. After appreciating the evidence on record, the trial Court came to the conclusion that the plaintiff has proved his case for getting possession of the suit premises on the ground of bona fide requirement. The trial court also found that if the decree for possession is not passed, the plaintiff will suffer immensely and that even if the decree is passed, the defendants are not likely to suffer any hardship. The finding about the comparative hardship is given by the trial court in view of the fact that the plaintiff had offered to the defendants alternative accommodation, which is a flat, in the same city, free of cost. However, since defendant No. 2 has refused to accept the said offer, the trial court came to the conclusion that if the decree is passed in favour of the plaintiff, it will not cause any hardship to the said defendant No. 2. Since it has been pointed out by advocates for both the sides that, at present, only defendant No. 2 Indumatiben is residing in the suit premises, the question about the bona fide requirement as well as the question about passing of eviction decree was to be considered only in respect of Indumatiben as no one else is residing in the suit premises. The learned advocate for the petitioner has also argued that the question of bona fide requirement and eviction decree is required to be considered in connection with Indumatiben only as except her no one else is interested in the suit premises. Ultimately, the trial court passed the decree for possession upholding the claim of the plaintiff for decree for possession on the ground of bona fide requirement.
3. Being aggrieved by the aforesaid decree of the trial court, an appeal, being Regular Civil Appeal No. 42 of 1992, was preferred by the original defendants. During the pendency of the said appeal, the original plaintiff submitted an application before the appellate court below exh.38 for amending the plaint, on the ground that during the pendency of the appeal, defendant No. 2, Indumatiben, had acquired an alternative accommodation and therefore an additional ground for getting the possession under Section 13(1)(i) of the Bombay Rent Act was pressed into service. The appellate Judge allowed such amendment vide order dated 1.9.2002. Appellant No. 1 before the appellate court thereafter submitted amended written statement on the said point. The appellate court thereafter framed issue to the effect whether the plaintiff proves that the defendants have acquired suitable accommodation? The appellate court after framing the said issue sent the matter back to the trial court for deciding the aforesaid issue with the direction that the said issue be decided after giving opportunity to the parties to lead the evidence on the aforesaid issue and thereafter to return the record of the suit with the evidence led by the parties to the suit, together with its finding and reasons, within the stipulated time.
4. Thereafter the trial court, after recording the evidence on the issue of alternative accommodation, came to the conclusion that the said alternative accommodation is in a different town and therefore negatived the aforesaid ground raised on behalf of the original plaintiff. The trial Court thereafter returned the record of the original suit to the appellate court. The appellate court thereafter decided the aforesaid appeal, i.e. Regular Civil Appeal No. 42 of 1992. The appellate court confirmed the finding of the trial court in connection with bona fide requirement and confirmed the decree for possession on the aforesaid ground. So far as question about alternative accommodation is concerned, the appellate Court found that the defendant has acquired alternative accommodation, as contemplated under Section 13(1)(i) of the Bombay Rent Act and the appellate Court reversed the order of the trial Court by which the trial court refused to pass the decree under Section , that is, in connection with acquisition of suitable alternative accommodation on the part of the tenant. By the impugned judgement, the appellate Court accordingly dismissed the appeal filed by the present petitioners by its order dated 4.4.2001. By virtue of the aforesaid judgement and decree of the appellate Court, the suit of the plaintiff is ultimately decreed on the ground of bona fide requirement as well as on the ground of acquisition of alternative premises under section 13(1)(l) of the Act.
5. Being aggrieved by the aforesaid judgement and decree of the appellate court, the petitioners have filed this Civil Revision Application under Section 29(2) of the Bombay Rent Act.
6. At the time of admitting this revision application, a learned single Judge of this Court vide order dated 25.9.2003, stayed the order of the appellate court as well as the trial Court on condition that the tenant shall hand over one room and katariya within two weeks from the date of the order. However, since the tenant failed to hand over even that much portion, on behalf of the landlord, Civil Application No. 815 of 2004 was preferred before this Court, with a prayer that it may be clarified that in view of the fact that since the tenant has not complied with the order dated 25.9.2003 and has not handed over vacant possession of one room and Katariya portion to the landlord, there is no interim relief in operation. Mr Pardiwala, learned advocate appearing for the landlord, submitted that, as such, there is only one room and Katariya on the first floor and even such conditional order was not capable of being executed and therefore interim relief may be vacated. However, the learned counsel for both the parties submitted that the entire C.R.A. may be decided without considering the fact whether the interim order is complied with or not. The said Civil Application No. 815 of 2004 was accordingly disposed of by this Court vide order dated 10.02.2004, by fixing the CRA for final hearing with the consent of the parties.
27.02.2004:
6. Mr. D.V. Shah, learned counsel for the petitioners, submitted that both the courts below have committed an error in upholding the claim of the landlord for getting the decree on the ground of bona fide requirement. He has also further submitted that the appellate court has committed an error of law in passing a decree under Section 13(1)(l) of the Bombay Rent Act on the ground that the tenant has acquired suitable alternative accommodation. In this behalf, he has submitted that, assuming that the so-called alternative accommodation is acquired by the defendant, the same is in a different town and therefore it cannot be construed that the same is an alternative accommodation which is acquired by the defendant No. 2. It is also further submitted by Mr Shah for the petitioners that there is a subsequent event which has taken place during the pendency of the revision namely, the plaintiff landlord has migrated to USA with his wife and therefore there is a reduction in the family members of the plaintiff who are in occupation of the suit premises and therefore the ground of bona fide requirement of suit premises no longer survives. It was lastly submitted by Mr Shah that the courts below should have considered the case about passing partial decree as the need of the plaintiff can be satisfied, if, out of two rooms, possession of one Katariya is given to the plaintiff, as the plaintiff himself alternatively pleaded before the trial court that he can be given the possession of katariya (store room).
7. Mr Pardiwala, learned advocate for the respondent No. 1 - original plaintiff, on the other hand submitted that both the courts below have concurrently found that the requirement of the plaintiff is absolutely bona fide requirement and that this finding is based on appreciation of evidence. This Court, in a revision application, cannot disturb such finding of fact arrived at by both the courts below. In order to substantiate his argument that when the finding of fact is recorded by the courts below, this Court, in its revisional jurisdiction, under Section 29(2) of the Bombay Rent Act, cannot reappreciate the evidence, Mr Pardiwala has relied upon the decision of this Court in the case of Modi Bachubhai Sakalchand v. Mariyambibi Noormohmad reported in 2001 (3) GLR 2019, wherein it is held that reappreciation of evidence is impermissible. Mr Pardiwala submitted that the question about bona fide requirement is a finding of fact and therefore this Court may not reappreciate the evidence on record by disturbing such a finding recorded by the courts below.
8. Regarding subsequent event, which is pleaded by Mr Shah, learned advocate for the petitioners, it is submitted by Mr Pardiwala that the application exh.17 was preferred by the petitioners before the appellate court but the said ground was not pressed into service at the time of hearing of the appeal and therefore the petitioners are not entitled to press into service this ground again and again. It is submitted by Mr Pardiwala that the son of the plaintiff, who has been given power of attorney by the landlord, had filed a detailed reply before the appellate court at exh.18. In the said reply it is clearly stated that since adequate space is not available in the suit premises and since the decision of the appellate court is likely to take some time, the original plaintiff, with his wife, has gone to USA for a temporary period in order to stay with his married daughter who is residing in USA with her husband. It is submitted by Mr Pardiwala that the plaintiff is going to come back, at any time, to Navsari the moment adequate space is available where he can reside along with his other family members.
9. Mr D.V. Shah, learned advocate for the petitioners, submitted that, in any case, at the time of upholding the claim of bona fide requirement the Court should consider whether any partial decree can be passed which can satisfy the requirements of both the sides.
In this behalf, he has relied upon the judgement of the Apex Court in the case of Badrinarayan Chunilal Bhutada v/s Govindram Ramgopal Mundada reported in (2003) 2 SCC 320 to contend that the courts should have considered the ground of partial eviction and passed a partial eviction decree. In the aforesaid case the rented premises consisted of ground floor and two upper floors and the tenant was occupying western unit of the suit premises in which he used to run his shop on the ground floor and used to reside with his family in the upper two floors. It has been observed by the Apex Court in paragraph 10 as under:-
"10. The provisions of the Act do not bar a partial eviction being ordered -- rather contemplate a partial eviction specifically -which would of course depend on the answer to the question -- whether it would be enough to dislodge the tenant from only a part of the premises in his possession, and to what extent, to satisfy the proved requirement of the landlord associated with consideration of comparative hardship. If the court is satisfied that the ends of justice would be met if the tenant is not called upon to vacate the entire tenancy premises but only a part of it, then the court may order partial eviction so that the requirement of the landlord is satisfied and the tenant is also not deprived of his running business activity. Inasmuch as Section 13(2) entails the consequence of the landlord being denied decree of eviction, wholly or partly, in spite of his having proved reasonable and bona fide requirement within the meaning of Section 13(1)(g), the burden of proving availability of grounds under Section 13(2) of the Act is on the tenant. It is expected of the parties to raise necessary pleadings, and the court to frame an issue based on the pleadings so as to enable parties to adduce evidence and bring on record such relevant material as would enable the court forming an opinion on the issue as to comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the court may discahrge its duty by taking into consideration such material as may be available on record."
However, during the course of arguments, it is argued by learned advocate Mr Pardiwala that there is only one room and katariya and even though the order was passed by this Court the tenant has failed to hand over the possession as it was not feasible even to divide the same. It is argued by Mr Pardiwala that so far as Katariya portion is concerned, it is a small room in which one cannot stay comfortably. He further submitted that looking to the situation of the rented premises, even partial decree is not possible. As per the evidence on record it is found that the tenant is in occupation of one room and katariya (small store room).
I have heard both the learned advocates in detail and I have also gone through the record and proceedings of the case. So far as decree for possession on the ground of bona fide requirement is concerned, it is required to be noted that after appreciating the evidence on record, both the courts have concurrently found that the requirement of the plaintiff is absolutely genuine and bona fide. It is required to be noted that the plaintiff is residing in the ground floor of the suit premises, wherein he is running provision stores in one room, and in the adjoining room, the plaintiff and his other family members are residing, viz., the plaintiff, his wife, his son, and daughter-in-law, with one child (By this time the child must have grown up as considerable time has passed since the time of filing of the suit and recording of the evidence). It is also required to be noted that from the evidence on record it is clearly borne out that it is impossible for the plaintiff to accommodate all his family members in the portion which is in their possession. It is also required to be seen that the plaintiff and his wife are not expected to stay together only in one room with his married son and therefore the say of the plaintiff, is believed by the courts below that in order to maintain the privacy of other family members, that is, his son and daughter-in-law, the plaintiff required additional accommodation, which is in possession of the tenant. Even the learned advocate Mr Shah for the petitioner also frankly submitted that the requirement of the plaintiff cannot be said to be not reasonable. Accordingly, so far as finding of fact recorded by the courts below regarding bona fide requirement of the plaintiff is concerned, the same is not required to be interfered with by this Court in the revision application. Even if the evidence recorded is also required to be reappreciated, no view other than the one taken by the courts below is possible.
10. So far as the question of comparative hardship is concerned, it is required to be noted that petitioner No. 1 herein was offered alternative accommodation free of charge by the plaintiff as he was badly in need of the premises. However, the said offer was flatly refused by the defendant No. 2. Mr Pardiwala also submitted that the plaintiff himself was not in a position to purchase the said flat for his occupation because, in the suit premises the plaintiff is also running a grocery shop on the ground floor and in the adjoining portion he is residing and therefore the said premises in which he is residing is more suitable for his residence. Under these circumstances, the plaintiff wanted to purchase new flat in the same area for defendants by spending from his own pocket. Considering the aforesaid aspect of the matter, in my view, the courts below are perfectly justified in coming to the conclusion that greater hardship will be caused to the plaintiff by refusing the decree for possession and that defendant No. 2 will not suffer greater hardship if such decree is passed.
The plaintiff in his evidence has clearly pointed out how badly he requires the suit premises. He has stated in paragraph 4 in his examination-in-chief that defendant No. 2 (present petitioner No. 1 - Indumatiben) is the only one who is occupying the suit premises. He has also stated that he is willing to purchase a flat for defendant No. 2 consisting of the same area of the rented premises and he is ready to give said flat free of charge. The description of such flat is also given by him in his evidence. The plaintiff has also pointed out in his evidence in paragraph 9 that there are five members in the family of the plaintiff and that they cannot reside in one room, which is in their possession. The appellate court has found that the defendant No. 2 is having another premises in Garudeshwar town where she is residing and therefore she may not be subjected to hardship if eviction decree is passed. As against that if the decree is refused the landlord would suffer greater hardship. Considering the totality of the facts and circumstances of the case, it cannot be said that the finding of fact arrived at by both the courts on the question of hardship is in any way erroneous. At this stage it is argued by Mr Shah for the petitioner that even though for some time she is residing at Garudeshwar town, she is also required to come to Navsari on and off for medical treatment. The appellate Court has given specific finding that she has already purchased the property for which the Court has relied upon the document at exh.87. Even if she is required to come to Navsari wherein the rented premises is situated by way of casual visit, even then it cannot be said that she will suffer more hardship than the plaintiff if the eviction decree is passed. The finding of the courts below on the ground of comparative hardship is also not required to be disturbed.
11. So far as question about partial eviction decree is concerned, it has been pointed out earlier that there is only one katariya (store room), which is in possession of the defendant tenant along with one room, though this point was never pressed into service by the defendant at the time when the matter was pending before the trial court or before the appellate court. Even from the evidence available on the record, it is not possible to come to a conclusion that such small store room can satisfy the need of the plaintiff. Even at the time of admitting the revision, this Court granted conditional stay to the petitioner, asking her to vacate one room and store room (katariya) and as pointed by Mr Pardiwala for the petitioner it was not possible to divide the same and therefore naturally, the petitioner could not comply with the same, as, according to him, there is only one big room and katariya (store room), which is in her possession. He, therefore, submitted that the property is not capable of being partially partitioned and therefore in that view of the matter, no such argument was advanced by either side before the courts below.
12. It was thereafter argued by Mr Shah that in any case in view of the subsequent event regarding plaintiff and his wife having migrated to USA the requirement of the plaintiff cannot be said to be genuine and bona fide. So far as so called subsequent event is concerned, as already pointed out earlier, this point was never pressed even though raised before the appellate court. Even in the reply to that application the plaintiff's son has clearly stated in his reply that for want of appropriate accommodation the plaintiff and his wife have gone to USA to reside with their daughter because of some matrimonial problems of the daughter of the plaintiff and they were required to go to USA frequently. It is stated by the plaintiff's son that at any time they are going to come back to Navsari and reside in the suit premises the moment appropriate accommodation is made available. Considering the reply given in the appellate court, it is clear that the said point was thereafter never raised by the present defendants in the appellate court. In the present revision application the very point is again pressed into service. It is required to be noted that the landlord was required to leave the city of Navsari in order to see that his other family members are accommodated in the suit premises and they are able to reside with reasonable comforts. I find great force in the argument of Mr Pardiwala that at the fag end of his life, the plaintiff is unable to reside with his near and dear ones and he is required to go from pillar to post. As against that, the tenant was offered free of cost accommodation but the same was flatly refused by defendant No. 2. It is submitted by Mr Pardiwala that looking to the financial condition of the plaintiff it is not possible for the plaintiff to offer another premises to defendant No. 2 as he has retired from the business and he is now spending days with his wife with whatever fianncial reseources at his command. Had the tenant accepted the said offer at the relevant time the plaintiff would have been in a position to purchase the flat and would have given the same to defendant No. 2. There is nothing on record to show that the plaintiff has left Navsari forever. Under these circumstances and especially when this point was not pressed into service, the claim of the plaintiff for getting the possession on the ground of bona fide requireement cannot be negatived on the ground of socalled subsequent development. It is no doubt true that the subsequent event can be taken into consideration at any point of time as laid down by the Honoruable Supreme Court in the case of LEKH RAJ V. MUNI LAL & ORS. (2001) 2 SCC 762. However in the instant case it cannot be said that plaintiff's temporary visit to USA would debar him from getting the suit premises for his own requirement.
In this behalf Mr pardiwala relied upon the decision of the Supreme Court in the case of GAYA PRASAD V. PRADEEP SRIVASTAVA reported in (2001) 2 SCC 604. In para 15 the Supreme Court has observed as under:-
"15.The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused."
At this stage reference is also required to be made to the decision of the Apex Court in SIDDALINGAMMA V. MAMTHA SHENOY [ (2001) 8 SCC 561 ]. The Apex Court has observed in paragraph 9 as under:-
"9. Rent control legislation generally leans in favour of the tenant; it is only the provision for seeking eviction of the tenant on the ground of bona fide requirement of the landlord for his own occupation or use of the tenanted accommodation which treats the landlord with some sympathy. In Shiv Sarup Gupta v. Dr Mahesh Chand Gupta this Court has held that a bona fide requirement must be an outcome of a sincere, honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive the need is bona fide. 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. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant's continued occupation in tenancy premises. In Deena Nath v/s Pooran Lal this Court has held that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire."
13. It is a matter of pity that because of long drawn legal battle, the plaintiff is required to leave the place and required to go to USA to reside with his married daughter and as argued by Mr Pardiwala the plaintiff was even required to go to his other releatives on his return to Navsari town. The fact that the plaintiff and his wife cannot stay with their married daughter for all time to come cannot be brushed aside. In that view of the matter, it cannot be said that the plaintiff has lost his right to get the suit premises on the ground of bona fide requirement in view of the so called subsequent development regarding his visit to USA and threfore it was not rightly pressed even by the defendant No. 2 before the appellate court. That point cannot be agitated again and again once the said point was not pressed into service before the appellate court.
14. So far as the ground of acquisition of alternative premises by defendant No. 2 is concerned, it has been found that the said premises is acquired by the tenant in Garudeshwar town. The appellate Court has passed a decree on the aforesaid ground also by coming to the conclusion that defendant No. 2 has already shifted to the said town and that she is residing there. The appellate court has also found from exh.87 that it can be said that she is the owner of the said house. Mr Shah for the petitioner has, however, relied upon the judgement of this Court reported in Ramagauri Girdharlal v. Narottam Narandas reported in 1975 GLR page 176 to substantiate the say that if the house is acquired in another town it cannot be said that the tenant has acquired suitable alternative accommodation, as contemplated under Section 13(1)(l) of the Act. It is, no doubt, true that if a premises is purchased in another town altogether, it cannot be said that the tenant has acquired suitable alternative accommodation, as contemplated under the provisions of the Bombay Rent Act.
Mr Pardiwala, learned advocate for respondent No. 1, submitted that hardly for a couple of days in a month defendant No. 2 visits Navsari town and practically the suit premises is in possession of her servant. Since on this point there is no evidence on record, it is not possible to accept the bald submissions made by Mr Pardiwala. Considering the aforesaid aspect of the matter so far as the decree passed by the appellate court on the ground of acquisition of alternative accommodation is concerned, the said finding is not sustainable and the same is set aside. However, the judgement and decree of both the Courts below in connection with the claim of bona fide requirement is upheld.
15. Provisions of Bombay Rent Act were enacted with an object that in view of the scarcity of accommodation the tenant can protect his possession of rented premises and further for the puprose of protecting tenants from misuse of landlord's power to evict them by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. However, here is a case, where, at the relevant time, the landlord wanted to purchase a flat free of cost and give it to the tenant so that he may stay in the suit premises along with his family members with little bit ease. However, unfortunately, the tenant did not accede to the said offer and the landlord was required to move out of the said house for a considerable period for want of appropriate accommodation available to him. Considering the totality of the facts and circumstances and considering the evidence on record, in my view, it cannot be said that the finding of fact regarding bona fide requirement or even regarding comparative hardship is in any way erroneous. Considering the arguments of both the sides and considering the facts of the case even the partial decree is also not feasible. Even though the landlord cannot succeed in getting the decree on the ground of acquisition of alternative accommodation, as the said alternative accommodation is in a different town, however, at least, it may have some bearing regarding comparative hardship. However, Mr Shah, for the petitioners, submitted that for her treatment she is required to go to Navsari off and on. Even if that be so, the landlord cannot be denied the decree for eviction as he is in dire need and requirement of suit premises for his residential purpose.
I, therefore, do not find any error in the decision of the courts below in connection with passing the decree on the ground of bona fide requirement. This C.R.A. is devoid of any merits and therefore the same is rejected. Rule is discharged. No order as to costs.
16. At this stage, Mr Shah submitted that since the petitioner wants to approach the Honourable Supreme Court, the interim relief granted in this revision application by this Court may be continued for some time. Mr Pardiwala, on the other hand, submitted that he has no objection if the stay is extended for a period of one month in order to enable the petitioners to appraoch the Honourable Supreme Court. In view of the request of the petitioner, the execution and operation of the decree is stayed up to 30th April, 2004 in order to enable the petitioners to approach the Honourable Supreme Court.