Madhukar Punjaram Sonawane & Another vs Gajanan Vithal Khandekar on 3 February, 2009

[Cites 1, Cited by 5]

Bombay High Court

Madhukar Punjaram Sonawane & Another vs Gajanan Vithal Khandekar on 3 February, 2009

1. This Writ Petition under Article 227 of the Constitution of India is directed against the judgment and decree passed by the Additional District Judge, Nasik dated 12.07.1991 in Civil Appeal No.223 of 1989 thereby allowing the tenant's Appeal and setting aside the decree of possession of the suit premises passed in favour of Petitioner / Plaintiff and instead dismissed the suit filed by the Petitioners / Plaintiffs.

2. The Petitioners had filed suit for possession of the premises situated in Municipal House No. 1173, CTS No. 2482 consisting of 1 ::: Downloaded on - 09/06/2013 14:18:18 ::: one room ad measuring 15' X 10' on the first floor of said house against the Respondent / tenant amongst others on the ground of bonafide and reasonable requirement of the suit premises for personal use and occupation. The Trial Court decreed the suit for possession in favour of the Plaintiffs / landlords accepting the ground of bonafide and reasonable requirement of Plaintiff No.1 for his own use and business. That decision was carried in Appeal by the tenant which in turn has reversed the said opinion of the Trial Court and instead, dismissed the suit for possession preferred by the Petitioners / Plaintiffs.

3. Before proceeding to examine the matter further, it would be apposite to advert to the basis on which the Trial Court proceeded to consider the case to answer the issue in favour of the Petitioners / Plaintiffs. I shall not be burdening this judgment with other issues involved in the suit but confine the discussion to the ground for possession of the suit premises for personal use and occupation of Plaintiff No. 1. The relevant discussion in this behalf can be discerned from paragraphs 6 and 7 of the judgment of the Trial Court. The Trial Court has considered the issue of comparative hardship in Paragraphs 8 and 9. In so far as the case made out by the Plaintiffs, it is common ground that the Plaintiffs have generally stated that suit property were required for bonafide and reasonable requirement for personal use and 2 ::: Downloaded on - 09/06/2013 14:18:18 ::: occupation of the Plaintiff No.1. In the plaint, it is clearly asserted that Plaintiff No.1 has no other accommodation for starting his business. The matter went for trial when the Plaintiffs' witness has spoken about the requirement of suit premises for personal use and occupation of Plaintiff No. 1 to start his business therein. The Trial Court has adverted to this aspect and then proceeded to examine the matter. It found that admittedly, no other property was standing in the name of Plaintiff No. 1 except the suit property which was purchased jointly by both the Plaintiffs. The suit premises in occupation of the Respondent is situated in front portion of the first floor. Behind the said room, there is another room which is also in possession of tenant namely Baburao Bhavsar. The Trial Court has also noticed that there is a shoe and chappal shop stall in the name of Bharat Leather on the ground floor which belongs to Plaintiff No. 2. The Trial Court has also found that it is not in dispute that the Plaintiff Nos. 1 and 2 are real brothers and they are having family business of cobbler and to sell shoes and chappals. The Plaintiff No. 1 has been examined at Ex 50. That evidence has been analysed by the Trial Court wherein he has deposed that the house was purchased by him for opening shop in the suit premises and he has no other alternate accommodation for starting his business. He has deposed that he was doing business of selling chappals and shoes on the road for which he 3 ::: Downloaded on - 09/06/2013 14:18:18 ::: was prosecuted by the police by filing criminal cases. The fact that Plaintiff No. 1 was prosecuted by the police is established from the evidence of Plaintiff's witness who is an independent person and was responsible to lodge prosecution against the Plaintiff No. 1. The Trial Court has then noticed that Defendant's case is that the Plaintiff's father has a shop of shoes and chappals on the ground floor and other places and they have also properties at other places. The Plaintiffs' family was living jointly and have common house property. This argument has been considered by the Trial Court to hold that there was no material on record to substantiate the position that the Plaintiff No. 1 had right in any other property for running business. On the other hand, the evidence would indicate that the Plaintiff No. 1 was staying separately along with his wife and children. The Trial Court has also adverted to the record which supported the claim of the Plaintiffs that the Plaintiff No. 1 was staying separately as he had procured separate ration card which established that the place where he was staying along with his wife and children was different than the place where his father and brother was staying. Taking all these aspects into account, the Trial Court proceeded to hold that Plaintiffs have established that the Plaintiff No. 1 had no other alternative accommodation except the suit property for running his business and further the requirement of Plaintiff No. 1 in respect of suit premises for his personal use and occupation 4 ::: Downloaded on - 09/06/2013 14:18:18 ::: deserves acceptance. With regard to issue of hardship, the Trial Court has adverted to the evidence that the Plaintiff No. 1 had stated that the Defendant has his own property bearing CTS no. 3627 which was admeasruing about 92 sq mtrs in which he had constructed portion only of 10' X 10' . The said house was situated in Lane called Peth Galli and in same lane, there is office of municipality and weekly bazar of Nangaon town is conducted in front of municipality office. The Trial Court has adverted to the fact that the property of the Defendant was situated in a crowded locality wherein weekly bazar was held. On that basis, it has found that the Defendant has alternate accommodation of his own and would not suffer much hardship. Above findings recorded by the Trial Court have been reversed by the Appellate Court on the reasoning that the suit brought by the Plaintiff should fail as the plaint does not disclose any particulars as to which business Plaintiff No. 1 intended to run in the suit premises. The Appellate Court was of the view that mere averment in plaint that the Plaintiffs require possession of the suit premises for own business is not enough to infer that the Plaintiff has real intention to start his business. The Appellate Court has referred to the observation of this Court in a case reported in Bombay Rent Cases, 1986 P. 147 [Abdul Alim Vs Vora] in support of the above opinion. The Appellate Court then proceeded to hold that there was no evidence from which it could 5 ::: Downloaded on - 09/06/2013 14:18:18 ::: be gathered that the real intention of the Plaintiff was to start his own business in suit premises after getting possession. It, then found that there was no evidence as to whether the Plaintiffs were in need of the premises or what difficulties he had to face for want of premises. On that reasoning, the Court proceeded to infer that it was a case of mere desire of the landlords which was not sufficient to order possession of the suit premises.

4. Essentially, on above reasoning, the Appellate Court proceeded to reverse the finding of fact in relation to the factum of bonafide and reasonable requirement of the Plaintiff No. 1 for his personal use and occupation to start his business. In so far as, issue of comparative hardship is concerned, even the finding on that issue is over turned by the Appellate Court on a very curious reasoning. The Appellate Court firstly observed that acquisition of residential premises by the tenant would not militate against the tenant as the ground for eviction for having acquired alternate suitable premises was applicable only to the residential premises.

It, then, proceeded to observe that the Defendant was conducting his own business since many years in the suit shop and upon passing decree for possession, he will have to close down his business which would result in causing irreparable loss to him. It proceeded to record that there is nothing in evidence that for want of premises, the Plaintiff is not in a position to have his own 6 ::: Downloaded on - 09/06/2013 14:18:18 ::: business or that if possession of the premises is not given, what hardship will be caused to the Plaintiffs. On this approach, the Appellate Court proceeded to reverse the view taken by the Trial Court.

5. The question is: whether the approach of the Appellate Court is manifestly wrong or perverse so as to exercise writ jurisdiction. It is well settled position that in exercise of writ jurisdiction, this Court will not venture in re-appreciation of evidence and interfere merely because in its opinion another view was possible. However, the present case is a glaring one which persuades me to take a view that the approach of the Appellate Court is manifestly wrong if not perverse. In that, in first place, the Appellate Court proceeds to hold that no particulars have been disclosed in the plaint itself as to which business, Plaintiff No. 1 intended to start in the suit premises. Indeed, the Appellate Court is right in making that observation in the context of the averment in the plaint but has completely glossed over the other material which was on record. In the plaint, it is clearly stated that the Plaintiff No. 1 had purchased the house property with a view to start his own business in the suit premises. Even if, the nature of business is not disclosed, reading the plaint as a whole and the oral evidence adduced by the Plaintiffs, it is not in dispute that the family business of Plaintiffs was that of cobbler 7 ::: Downloaded on - 09/06/2013 14:18:18 ::: and selling of shoes and chapples. It has also come on record that Plaintiff No. 1 before shifting to Nangaon was doing business at Rahuri but having suffered loss, decided to shift to Nangaon. The suit property was purchased by the Plaintiffs with a fond hope that Plaintiff No. 1 would be able to start his business therein.

The fact that Plaintiff No.1 was engaged in doing chapples and shoes business is substantiated from the evidence which has come on record, to wit, that the Plaintiff No. 1 was prosecuted in criminal cases for conducting that business on a public road. The Appellate Court could not have answered the issue in the negative inspite of all these material on record and more so, when the facts established by the Plaintiffs in this behalf have not even been challenged by the Defendant during trial. Suffice it to observe that the Plaintiffs could not have been non-suited on the technical reasoning that no particulars in the plaint about the proposed business has been disclosed by Plaintiff No. 1. The counsel for the Respondent / tenant,however, relies on the decision reported in 147 Bom.R.C. 1986 [Abdul Alim Vs Mulshankar Vora]. Even, the Appellate Court was impressed with the observations in the said decision. However, the dictum in the said decision is in the context of fact situation of that case. In that case, the Court noticed that the Plaintiffs had given notice for possession of the suit premises to the tenant on the ground of personal requirement, but proceeded to file the suit after over two years 8 ::: Downloaded on - 09/06/2013 14:18:18 ::: thereafter. Criticizing this aspect, it was observed that lower court failed to notice that neither in the suit notice nor in the relevant paragraphs of the plaint, the Plaintiff had mentioned "for what purposes", suit premises were required. In present case, the plaint clearly records that the suit premises were required by Plaintiff No. 1 for his personal use and occupation for starting his "business". It is not as if the purpose of requirement has not been disclosed in the plaint at all. Significantly, in the above noted reported decision, the Court proceeded to observe that apart from bald mentioning that the suit premises were required for personal use and occupation no other details were given, which would have enabled the tenant to challenge the claim of landlord or could have helped the Court in testing whether the landlord' s claim was reasonable and bonafide. That is not the case on hand. As aforesaid, in this case, the plaint clearly records that the requirement of Plaintiff No. 1 was for his personal use and occupation to start his own business in the suit premises. What was lacking was only the disclosure of details of business of selling shoes and chapples which, in my opinion, would make no difference. Those details can be furnished by the landlords in the evidence, being in the nature of particulars only. The foundation on which the suit proceeded is that the Plaintiff No.1 requires suit premises for his personal use and occupation to start his own business therein. Significantly, in the above noted decision, the 9 ::: Downloaded on - 09/06/2013 14:18:18 ::: Court has noted the evidence given by the landlord when he entered the witness box. In his evidence, for the first time, he stated that he wanted to start the hotel business but was not in a position to disclose his qualification and experience that he possessed to start such hotel business. In the facts of that case, therefore, the Court proceeded to hold that the evidence of the Plaintiff was not satisfactory to conclude that the requirement was bonafide and reasonable. In the present case, however, sufficient evidence has been brought on record which plainly substantiates the claim of the landlord that the suit premises were required by Plaintiff No.1 for his personal use and occupation to start his own business and that he had no other premises where he could do so.

6. The Appellate Court, has then, opined that there is no evidence about the real intention of the Plaintiff to start his own business in the suit premises. This finding is clearly the outcome of the surmise of the Appellate Court. As aforesaid,there is ample material on record to establish that the Plaintiffs had proved their claim that their requirement was bonafide and reasonable. Notwithstanding the circumstances and evidence adverted to by the Trial Court to answer the point in issue, the Appellate Court has not offered any good reason as to why the Plaintiffs had no real intention to start business in the suit premises . The Trial Court has rightly adverted to the fact that the Plaintiff has been 10 ::: Downloaded on - 09/06/2013 14:18:18 ::: prosecuted in Criminal Cases for doing business of selling shoes and chapples on the public road. Obviously, the Plaintiff No.1 had resorted to doing business on a public road for want of another accommodation to start that business of his own. That is a strong circumstance to support the fact that the Plaintiff No. 1 was keen to start his own business but for want of proper premises had to do so on a public road. It has come on record that the Plaintiff's family business is of cobbler and selling shoes and chapples. The circumstances, more than establish that the Plaintiff No. 1 had not only a desire but had keen interest in doing such business. It is well established position that the landlord does not have to prove that his need is absolute need or absolute requirement, but it is enough for him to establish that his requirement is more than a mere desire. It is also well settled that the landlord is the best judge of his requirement and it is no concern of the Court to dictate to the Landlord as to how, in what manner, he should live or prescribe for him standard of its own. That the genuineness of the requirement is not to be on par with the dire need. The Plaintiffs have clearly established this position from the evidence of Plaintiff No. 1 and attending circumstances rightly adverted to by the Trial Court. Accordingly, even this opinion of the Appellate Court will have to be discarded being manifestly wrong.

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7. The Appellate Court then proceeds to hold that there was no evidence on record as to whether Plaintiff No. 1 was in need of the premises or what difficulties he would face for want of premises. This approach of the Appellate Court as discussed earlier is manifestly wrong. There was enough material on record to accept the claim of the Plaintiffs that requirement of Plaintiff No. 1 was not only bonafide but reasonable one for his personal use and occupation of the suit premises to start his own business.

8. The counsel for the Respondent would contend that the ground for eviction under Section 13(1)(g) of the Bombay Rent Act was available only in relation to the residential premises and not business premises. Perhaps, what the Learned Counsel intends to submit is that the ground of eviction that the tenant has secured alternate suitable premises is available only in respect of residential premises and not business premises as is referred to by the Appellate Court in Para 10 of the impugned judgment. Indeed, the Plaintiffs had asked for possession of the suit premises even on that ground, but the facts which have come on record in the context thereof, have been considered by the Trial Court to answer the issue of comparative hardship. It is not necessary to elaborate on this matter except to observe that the argument of the Respondents that ground under Section 13(1)(g) of the Bombay Rent Act is unavailable in respect of business premises is 12 ::: Downloaded on - 09/06/2013 14:18:18 ::: preposterous.

9. In the circumstances, I have no hesitation in taking a view that the Appellate Court exceeded its jurisdiction in over turning the well considered opinion recorded by the Trial Court for decreeing the suit for possession in favour of the Plaintiffs on the ground that the same was required for personal use and occupation of Plaintiff No.1 to start his own business.

10. That takes me to the question of comparative hardship. The Trial Court has adverted to the fact that the Respondent / Defendant had his own property in the same locality which were suitable and would not cause any inconvenience to the Respondent to start his business therein. The Appellate Court on the other hand, held that the Respondent was doing business in the suit premises for sufficiently long time and asking him to vacate the same would result in irreparable loss to him. On the same lines, counsel for the Respondent argued before this Court that greater hardship would be caused to the Respondents. By now, it is well settled that the issue of comparative hardship will have to be decided keeping in mind the fact as to whether it is possible to take a view that it was impossible for the tenant to secure alternative premises in the same locality. That is not the case made out by the tenant in the present case. The fact that the 13 ::: Downloaded on - 09/06/2013 14:18:18 ::: tenant will have to close down his long standing business, can be no basis to answer the same. Besides, the Trial Court has rightly found that the tenant even if he were to start his business elsewhere would not suffer as he was engaged in stitching fine clothes and had established goodwill in that behalf. Thus, if the tenant was to shift his tailoring business,he would continue with the same clients and more particularly, as he had alternative accommodation of his own in the same locality. The Appellate Court has found that the Plaintiffs have not produced any evidence about how the Plaintiffs would enhance their income and why they require possession of the suit premises for their own business. This approach is manifestly wrong and preposterous and cannot be the basis to answer the point in issue. As aforesaid, real test is whether it is a situation where it was impossible for the tenant to get alternative accommodation in the same locality. No such case is canvassed on behalf of the tenant. If it is so, even the issue of comparative hardship will have to be answered against the tenant.

11. Accordingly, the Petition ought to succeed. In result, the impugned judgment and decree passed by the Additional District Judge, Malegaon, Dist Nasik dated 12.07.1991 in Civil Appeal No. 223 of 1989 is hereby set aside. Instead, the judgment and decree passed by the Civil Judge Junior Division, Nandgaon 14 ::: Downloaded on - 09/06/2013 14:18:18 ::: dated 11.07.1985 in R.C.S.Suit No. 367 of 1980 is restored.

12. Petition is allowed with costs on the above terms.

(A.M. KHANWILKAR, J) 15 ::: Downloaded on - 09/06/2013 14:18:18 :::

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