Bombay High Court
J.Marathe vs P.V.Kaloke on 8 April, 2009
Author: A.M.Khanwilkar
Bench: A.M.Khanwilkar
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5305 OF 1989
WITH
CIVIL APPLICATION NO.2173 OF 2006
1) J.Marathe, )
since deceased on 27-7-87 )
through his legal heirs: )
A. Mrs.Uma Vijay Gune w/o )
Capt. Vijay Gune, residing at )
Post Ashwi, District Ahmednagar. )
)
2) Ravi Marathe, )
residing at Flat No.D-2, )
Bharatiya Bhavan Co-op.Hous. )
Society, 658/654, 17th Road, )
Khar, Bombay 400 052. ).Petitioners.
V/s.
P.V.Kaloke
ig )
)
residing at Bharatiya Bhavan )
Co-op. Housing Society Ltd., )
4-B, 17th Road, Khar, )
Bombay 400 052, at present )
residing in America, since 1972 )
through his Power of Attorney Holder )
Mrs.Jotika Kothari c/o.A.P.Kothari, )
Hiten Apartments, Sherly Village, )
Bandra, Bombay 400 050. ).Respondent.
Mr. Madhav Jamdar for Petitioners.
Mr.P.S.Dani for Respondent.
CORAM: A.M.KHANWILKAR,J
DATE : APRIL 8, 2009.
JUDGMENT :
1. This Writ Petition takes exception to the Judgment and Decree passed by the Appellate Bench of the Small Causes Court dated 28th September, 1989 in Appeal No.507 of 1985 thereby confirming the Judgment and Decree passed by the Trial Court dated 16th ::: Downloaded on - 09/06/2013 14:30:14 ::: 2 August, 1985 in R.A.E. & R. Suit No.390/2552 of 1970.
2. The Respondent/landlord filed suit for recovery of arrears of rent and compensation as also possession of the premises bearing flat No.D-2, Bharatiya Bhavan Co-operative Housing Society situated at 653/654. 17th Road, Khar, Mumbai on the grounds of default, bonafide requirement, unlawful subletting and defendant having acquired alternative residential accommodation ig elsewhere. The Trial Court decreed the suit in favour of the Respondent/landlord on the ground of bonafide requirement and tenant having secured alternative suitable accommodation elsewhere. The said decision was unsuccessfully carried in appeal by the Defendants/tenants. Even the Appellate Court confirmed the decree for possession on the aforesaid two grounds, while dismissing the Appeal preferred by the tenants.
Against these concurrent decisions present Writ Petition under Article 227 of the Constitution has been filed by the tenants.
3. Insofar as the ground of bonafide requirement, the Respondent averred in his plaint that he required the suit premises reasonably, bonafide and for his own use and occupation. He ::: Downloaded on - 09/06/2013 14:30:14 ::: 3 further asserted that he had no other residential premises of his own elsewhere. The tenants/defendants in the Written Statement merely denied the claim of the Plaintiff that he requires the suit premises reasonably and bonafide for his own use and occupation. The Defendants asserted that the Plaintiff was staying alongwith his father in the same building Bharatiya Bhavan Co-operative Housing Society Ltd. in another flat, which premises were sufficient for the Plaintiff. The Defendants further stated that they ig had no other premises in Mumbai and greater hardship would be caused to them, if they were ordered to be evicted. The defendants denied that the first Defendant was not in possession and the second defendant was unlawful occupant of the suit premises. This is the only case made out by the Defendants in the Written Statement, as can be discerned from para-5 thereof.
4. On the basis of such pleadings, the parties went for trial. During the trial, the Plaintiff examined himself as well as his younger brother Shashank. Defendant No.1/tenant did not enter the witness box himself. The Defendant No.2, who is the son of Defendant No.1 and claims to be residing in the suit premises, was examined as defence witness.
The Trial Court analysed the evidence adduced by the ::: Downloaded on - 09/06/2013 14:30:14 ::: 4 Plaintiff. The Plaintiff had stated that he was presently staying with his mother in Flat No.4-B which is adjacent to the suit premises and the said flat was of identical dimensions as that of the suit premises admeasuring about 600 sq.ft. The Plaintiff has however, deposed that his younger brother and mother were also residing in the said flat, which stands in the name of his mother. The Plaintiff has asserted that he would require an independent accommodation for himself and his family. When he gave evidence ig before the Trial Court, his family consisted of himself, wife and two children between 3 to 5 years of age. The Trial Court has further noticed that the Plaintiff in his evidence has stated that he was in medical profession and after obtaining MBBS from Mumbai University in 1972, for some time he worked as House Physician in K.E.M. Hospital at Mumbai. Thereafter till 1977, the Plaintiff was in England where he completed Senior House Officers course. The Plaintiff thereafter, returned to India in June, 1977 and again went to the United States of America, where he completed three years' course in neurology. The Plaintiff has deposed that he was practising his profession in Chicago in U.S.A.
5. Relying on these facts stated by the Plaintiff, it was argued before the Trial Court that ::: Downloaded on - 09/06/2013 14:30:14 ::: 5 the evidence of Plaintiff would indicate that for last about 7 to 8 years, the Plaintiff was living in USA and practising his profession there. As a result, there was no chance of Plaintiff returning to India. This argument has been rejected by the Trial Court on the finding that from the evidence of the Plaintiff, it does appear that he sincerely and honestly desires to return to his own country(India).
The Trial Court has also noted that the Plaintiff has not applied for nor obtained citizenship of America but still ig continues to be an Indian national. The Trial Court has then observed that the evidence of Plaintiff would also indicate that his mother also insisted on his(Plaintiff) returning to India(Mumbai); since he was the eldest in the family and his mother was dependent on him. The Trial Court has further found that from the Plaintiff's evidence it appears that his wife is also a physician and they find it very difficult to manage their family affairs and look after their children. On analysing the evidence of the Plaintiff, the Trial Court unhesitatingly found that it is quite reasonable and genuine that the Plaintiff wants to return to India and for which reason his claim of requirement of the suit premises was genuine. The Trial Court specifically dealt with the argument advanced on behalf of the Defendant No.2- that assuming the ::: Downloaded on - 09/06/2013 14:30:14 ::: 6 Plaintiff was to return to India, however, has not clearly spoken about his plans as to when exactly he intends to shift back to India from U.S.A. The Trial Court proceeded to hold that even if the Plaintiff has not given such definite period as to when he intends to permanently return to India, the evidence would establish that he has decided to return to India on the assumption that he would get back possession of the suit premises. The Trial Court has also noted the fact that as the Plaintiff's mother and brother ig Shashank and other close members of his family were staying in India, he had more than a mere desire to come back to India. The Trial Court has also opined that the Plaintiff has not applied for citizenship of U.S.A. which clearly indicates that the Plaintiff really intends to return to India for good, for which his requirement of suit premises was genuine. The Trial Court has rejected the stand taken by the advocate for the Defendant No.2 that a person who lived in USA for 7 to 8 years would ever think of returning to India, being devoid of merits.
The Trial Court has clearly found as of fact that the Plaintiff's version that he intends to return to India and settle down with his family has not been challenged in the cross-examination on behalf of the Defendant No.2. Moreover, the Defendant No.1 who was the contractual tenant abstained himself from ::: Downloaded on - 09/06/2013 14:30:14 ::: 7 participating in the trial. The Trial Court has further found that it was not even suggested to the Plaintiff that his plea that he intends to return to India was false. On that basis the Trial Court found that it must be presumed that the defendants do admit and accept by necessary implication the claim of the Plaintiff that he wanted to return back to India and settle down here for the good. The Trial Court has also considered the argument canvassed on behalf of the Defendants that even if the Plaintiff planned to return to India, ig he could always fall back upon his mother's flat where his mother and brother Shashank were residing, which could easily accommodate the Plaintiff and his family members. The Trial Court has found that the said flat No.4B stands in the name of Plaintiff's mother, as it was allotted to her by the Housing Society as she was its member. The Trial Court has further opined that the Defendants have clearly conceded that the suit premises are owned by the Plaintiff. Correctness of the finding that the Plaintiff is the owner of the suit premises has not been debated before this Court. The Trial Court has also noted that the Society has accepted the Plaintiff as tenant member in respect of the suit premises and allotted the same in his name as member, which are independent premises. The Trial Court further found that the adjacent flat No.4B belongs to ::: Downloaded on - 09/06/2013 14:30:14 ::: 8 the Plaintiff's mother and she was living with her son Shashank who was still unmarried and after marriage would require his own independent accommodation for his residence. The Trial Court has then noted that the Plaintiff is a well qualified neurologist and enjoys a fairly high status in Society. His family also comprises of four members and to ask them to live in Flat No.4B alongwith Shashank and his mother who are already occupying the same would be improper. The Trial Court has noted that there is ig no dispute that except the suit premises, the Plaintiff does not have any other premises of his own in Mumbai. Taking all these aspects into account the Trial Court found that the demand for possession of the suit premises put forth by the Plaintiff was bonafide and reasonable.
Further, in absence of independent premises, it was not possible for the Plaintiff to settle down in Mumbai irrespective of his keenness to do so.
Significantly, the Trial Court has found that the Defendants have not suggested any oblique motive in regard to the Plaintiff's requirement, as nowhere it was suggested to the Plaintiff that he does not wish to occupy the suit premises but he intends to dispose it off for a fat price or premium. On this finding the Trial Court opined that it therefore, follows that the Defendants did not seriously dispute the ::: Downloaded on - 09/06/2013 14:30:14 ::: 9 proposition that the Plaintiff would require suit premises for his residence as and when he comes back to India. The Trial Court has then dealt with the argument of the Defendant No.2 that such a requirement was not requirement in presenti but dependant on some future happenings. If it is so, the claim of the Plaintiff should be rejected. The Trial Court has negatived that plea on the finding that it is now well settled that the landlords need arising in near foreseeable future, as is the case here could very ig well be considered. That the landlord's need need not be immediate and existing on the date of the suit and the landlord, who asks for ejectment of the tenant in anticipation of his requirement of the premises in reasonably foreseeable future will be legitimate.
6. Reverting to the evidence of the Plaintiff, the Trial Court has found that the landlord planned to return to India to settle down permanently and for that matter has not obtained citizenship of the country where he is presently pursuing his medical profession. His plan to return to India could be materialised only if he were to get possession of the suit premises. For that reason, the Plaintiff's claim was not only bonafide and reasonable but genuine one, even though the Plaintiff has not given ::: Downloaded on - 09/06/2013 14:30:15 ::: 10 a fixed time limit before which he intends to return to India in the future. The Trial Court has then dealt with the argument of the Defendant No.2 that the Plaintiff's brother Shashank, who is examined as witness had conceded that the requirement of the Plaintiff would arise only after his marriage. The Trial Court has rejected that argument. It has held that even if Shashank were to get married or not, the Plaintiff and his family cannot be possibly asked to share Flat No.4-B, where his brother Shashank presently resides. ig The Trial Court has once again reiterated the finding that the evidence of the Plaintiff would establish that he required the subject flat for his residence when he comes back to India as per his plan. The Trial Court has opined that the Defendants did not offer any resistance to the Plaintiff's claim of requirement as no suggestion has been put to the Plaintiff about the said claim.
Moreover, the Defendant No.1 who was the tenant himself did not appear before the Court and offered himself for cross-examination by the Plaintiff. The Defendant No.2 was unable to offer any tangible evidence as to on what basis he has asserted that the Plaintiff's claim of requirement was false. Whereas, he admits that he has assumed that the requirement is false as similar accommodation was available to the Plaintiff in the same building. The Trial Court has ::: Downloaded on - 09/06/2013 14:30:15 ::: 11 found that the Plaintiff has no other flat available for his residence in his own right. The other flat was in the name of Plaintiff's mother where the Plaintiff cannot possibly stay alongwith his entire family. On this basis the Trial Court accepted the claim of the Plaintiff and answered the issue of bonafide and reasonable requirement against the Defendants/tenants.
7. Notably, the Appellate Court has reiterated the view ig taken by the Trial Court and has affirmed the finding of fact recorded by the Trial Court on the issue under consideration. Even before the Appellate Court, the first argument was that the Plaintiff had another flat available in the said building, being Flat No.4-B. That argument has been rejected by the Appellate Court more or less on the same basis as recorded by the Trial Court. Even the Appellate Court has found that the Plaintiff has no other premises of his own, which could be used for his residence. The Appellate Court has also accepted the claim of the Plaintiff that he has more than a mere desire to return to India, which is his mother land. The Appellate Court has also found that the Plaintiff and his wife were finding it difficult to adjust themselves in USA and intend to come back to India. It has noted that the Plaintiff has not ::: Downloaded on - 09/06/2013 14:30:15 ::: 12 obtained green card, which is suggestive of the fact that he has no intention to stay permanently in USA.
The Appellate Court has then found that it would not be possible for the Plaintiff and his family to stay jointly alongwith his mother and brother Shashank in Flat No.4B when he returns to India. Therefore, the plaintiff would require the suit flat for his personal use and occupation. The Appellate Court has noted that the Defendant No.2 in his evidence during cross-examination admitted that it is his inference that the Plaintiff ig is not likely to return to India from USA, however, did not produce any positive evidence to contradict that claim of the Plaintiff.
The Appellate Court has then noted that the Defendant No.2 in his cross-examination has also said that in his opinion, the claim of the Plaintiff was false because the Plaintiff has similar accommodation in the same building namely, the premises of his mother Flat No.4B. The Appellate Court has rejected this argument of the Defendants that the said premises Flat No.4B would be sufficient to accommodate the Plaintiff, his family as well as his brother which was admeasuring only 600 sq.ft. The Appellate Court has also opined that the Defendants failed to substantiate that the Flat No.4B would be sufficient to accommodate the Plaintiff, his wife, two children, his mother and brother. The Appellate Court has ::: Downloaded on - 09/06/2013 14:30:15 ::: 13 accordingly, concurred with the finding of fact reached by the Trial Court on the issue of requirement of the Plaintiff of the suit premises for his own occupation bonafide and reasonable.
8. In the present Petition, the Petitioners have questioned the correctness of the above said concurrent findings of fact recorded by the two Courts below. However, keeping in mind the parameters for interference in exercise of writ jurisdiction, after ig having waded through the pleadings and evidence produced by the respective parties with the assistance of the Counsel for the parties, in my opinion, the view taken by the two Courts below is just and proper. By no standard, it can be said to be perverse, manifestly wrong or error apparent on the face of the record. The view so taken needs no interference at all.
9. To get over this position, however, Counsel for the Petitioners vehemently argued that on proper analysis of the Plaintiff's evidence, it would be noticed that the Plaintiff in his evidence has admitted that he would not be able to stay in one bed room flat. Relying on this admission, it is argued that even the suit premises consisted of one bed room flat. The argument though attractive will have to be ::: Downloaded on - 09/06/2013 14:30:15 ::: 14 stated to be rejected. In the first place, the claim of the Plaintiff has not been challenged in the Written Statement on this count. In the Written Statement as is noted earlier, the Defendants have merely denied that the Plaintiff required the suit premises reasonably and bonafide for his own use and occupation. Defendants have then stated that the Plaintiff was staying alongwith his father in the same building. The argument now canvassed before this Court has not been specifically pleaded in the Written Statement. ig Moreover, what is overlooked by the Petitioners is that the Plaintiff claims possession of the suit premises so that when he returns to India, he could have an independent residence of his own for himself and his family i.e. his wife and children. In that, the other premises stood in the name of his mother; whereas the suit premises belonged to the Plaintiff. Besides, the statement of the Plaintiff in his evidence, on which emphasis is placed by the Defendants, cannot be read out of context. The Plaintiff has asserted that he would not be able to share other premises (which stands in the name of his mother), alongwith his mother and his younger brother. Moreover, he has stated that his younger brother was of marriageable age. Naturally therefore, the Plaintiff has deposed that he would not be able to share one bed room flat, ::: Downloaded on - 09/06/2013 14:30:15 ::: 15 which means he would not be able to share one bed room premises alongwith his mother and younger brother. For that reason, the plaintiff would require independent residential premises for his own use and occupation.
10. It was then argued that the other premises which stood in the name of plaintiff's mother after demise of his mother was allowed to be transferred in the name of his younger brother Shashank. The Petitioner has ig given his no objection for that transfer and has relinquished his rights in respect of the said premises. This, however, in my opinion, would not militate against the Plaintiff. The Plaintiff has done that with a view to amicably resolve family matters after the demise of his mother. In that, the Plaintiff's father purchased two flats together when the plaintiff was a minor.
One flat was taken in the name of his mother and the other (suit premises) in the name of the Plaintiff.
Obviously, therefore, the Plaintiff already got his full share and had to relinquish his interest in the other flat in favour of his younger brother after the demise of their mother. This development does not take the matter any further. In other words, the premises which stood in the name of mother, ordinarily, ought to have been inherited by all her ::: Downloaded on - 09/06/2013 14:30:15 ::: 16 heirs and legal representatives. However, as per the family arrangement, the Plaintiff as also the other heirs relinquished their rights in respect of the said premises. For, it was decided to transfer the said flat in the name of younger brother Shashank, who stayed in the said premises alongwith his mother.
The said arrangement is quite natural and reasonable.
Genuineness thereof cannot be doubted. Accordingly, the factum of Plaintiff relinquishing his right in respect of another flat in favour of his younger brother cannot ig be the basis to doubt the bonafide and reasonableness of the requirement of the Plaintiff in respect of the suit premises.
11. It was then argued that the said premises now transferred in the name of Plaintiff's younger brother Shashank are mostly found locked for quite some time. In that, the Plaintiff's brother has also shifted to USA. Even, the Plaintiff's mother during her life time intermittently visited USA and returned to India only to stay for a while in the said premises and again went back to USA. In this backdrop, it was contended that the Plaintiff can use the said premises when he would return to India.
This aspect has been countered by the
Respondent/Plaintiff on affidavit. He has denied the
case made out by the Petitioners in the affidavit
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17
dated 17th January, 2007. He has asserted that in
order to maintain cordial relation with his brother
he consented to transfer of the said flat No.4B in
favour of his brother, which event cannot be made the
basis to doubt his genuineness of his requirement.
He has also denied that Flat No.4B is kept locked for
last several years. The fact remains that said flat
now stands in the name of Plaintiff's younger brother
Shashank. The Plaintiff has no other residential
premises of his own in Mumbai. Assuming that the
suit flat ig No.4B is kept in locked condition, that
cannot be the basis to non-suit the Plaintiff or to
doubt his bonafide and genuineness of his requirement
in relation to the suit premises. To my mind, this is only an argument of desperation.
12. The Counsel for the Petitioners was at pains to persuade me to take the view that in the cross-examination of the Plaintiff by the Defendants, questions have been put which clearly challenged the factum of requirement of the Plaintiff being genuine, reasonable and bonafide. It is not possible to countenance this submission. The questions posed and on which emphasis was placed are only in the nature of suggestions which in any case have been denied by the Plaintiff. The fact remains that the two Courts below have appreciated the evidence and have recorded ::: Downloaded on - 09/06/2013 14:30:15 ::: 18 concurrent opinion on the issue under consideration.
Assuming that there is some error here or there, that cannot be the basis to interfere in writ jurisdiction. In my opinion, the findings of fact recorded by the two Courts below are neither manifest error or error apparent on the face of record or perverse, so as to exercise writ jurisdiction.
13. It was then vehemently argued on behalf of the Petitioners that from the evidence of the Plaintiff, it ig was obvious that he was staying in America for quite some time. There was no possibility of his return to India. Even the Defendant No.2 in his evidence has stated so.
According to the Counsel for the Petitioners, the Plaintiff was expected to file affidavit before this Court disclosing that he has not taken either citizenship of USA or green card and that he continues to be citizen of India. The Plaintiff has failed to file any affidavit disclosing the same, which presupposes that the Plaintiff has no intention to return to India. Therefore, it can be safely inferred that the plaintiff would not permanently settle down in India; whereas the requirement pressed into service in respect of the suit premises was only a desire to get back the suit premises. The above argument will have to be turned down for more ::: Downloaded on - 09/06/2013 14:30:15 ::: 19 than one reason. Firstly, no such plea has been taken in the Written Statement. Therefore, even if such case is put forth on behalf of the defendants during the cross examination of the Plaintiff, it would be of no avail. Besides, the Plaintiff has caused to file affidavit in this Court on 17th January, 2007 clearly denying the fact that he and his family members have permanently settled down in America. The fact that no green card has been applied by the Plaintiff has been noted by the two Courts below. ig There is nothing on record to belie that factual position. In any case, the Plaintiff being the owner and landlord in respect of the suit premises can legitimately claim possession of the suit premises within the meaning of Section 13(1)(g) of the Act. Significantly, there is nothing in the provisions of the Bombay Rent Act which would preclude the landlord, who has lateron acquired green card or citizenship of some other country, from invoking the ground of eviction under Section 13(1)(g) of the Act, so long he is able to establish that the relationship of the parties still continue as that of landlord and tenant. The only other question to be examined would be as to whether the landlord has been able to establish the fact that his requirement of the suit premises is reasonable and bonafide. If a person enters witness box and speaks ::: Downloaded on - 09/06/2013 14:30:15 ::: 20 about that fact and two Courts below have thought it appropriate to rely on the said version of the Plaintiff, it is incomprehensible as to how this Court would overturn the said concurrent view taken by the two Courts below in exercise of writ jurisdiction. In other words, the argument canvassed on behalf of the Petitioners in the fact situation of the present case will have to be stated to be rejected.
14. It was also contended that if this Court were to take the above view than it would be inconsistent with the opinion recorded by another single Judge of this Court in his order dated 9th June, 2004 passed in the present Writ Petition while referring the matter to the larger bench for answering the issue concerning ground under section 13(1)(l) of the Act.
My attention was invited to the observations in paragraph-2 of the said order wherein it is mentioned as under:
"Had I been satisfied that the judgment of the trial court and first appellate Court on the issue of bonafide requirement was proper, the decree for possession would be sustained and it may not have been necessary to make the reference."
In the first place, this observation is not a binding ::: Downloaded on - 09/06/2013 14:30:15 ::: 21 precedent on me for deciding the point in issue.
Indeed, it is only a tentative opinion recorded while referring the matter to the Division Bench to answer the issue in relation to the ground under section 13(1)(l). No single reason whatsoever has been recorded as to why the Learned Judge was not satisfied with the findings of two Courts below on the issue of bonafide requirement. Besides, the Division Bench after considering the issue with regard to the ground under section 13(1)(l) has sent back the ig matter before the Single Judge to finally answer the issue, that would arise for consideration in the present Petition. Suffice it to observe that reliance placed by the Petitioner on the observations in the Order dated 9th June, 2004 does not take the matter any further. This is obviously an argument of desperation. As aforesaid, the two Courts below have thoroughly analysed the pleadings as well as oral evidence on record to accept the claim of the Plaintiff and held that the requirement of the suit premises of the Plaintiff for his own use and occupation is reasonable and bonafide. The said view is not only a possible view but the only view that ought to be taken on the basis of such material on record. I see no tangible reason to differ or to overturn the concurrent finding of facts so recorded by the two Courts below on this aspect.
::: Downloaded on - 09/06/2013 14:30:15 ::: 2215. Counsel for the Petitioners placed reliance on the decision of the Apex Court in the case of Shiv Sarup Gupta V/s. Dr.Mahesh Chand Gupta[(1999) 6 Supreme Court Cases 222].
222] I fail to understand as to
how this decision would come to the aid of the
Petitioners. Indeed, in the said decision the Apex
Court has considered the purport of the word
"genuine" and "requires bonafide". The Apex Court
has observed that phrase "required bonafide" is
suggestive ofig legislative intent that a mere desire
which is the outcome of whim or fancy is not taken
note by the rent control legislation. Further a
requirement in the sense of felt need which is a
outcome of a sincere, honest desire, in
contradistinction with a mere pretence or pretext to
evict a tenant, on the part of the landlord claiming
to occupy the premises for himself or for any member
of the family would entitle him to seek ejectment of
the tenant. Significantly, in the same Judgment the
Court has observed that the judge of facts should
place himself in the armchair of the landlord and
then ask the question to himself- whether in the
given facts substantiated by the landlord the need to
occupy the premises can be said to be natural, real,
sincere and honest. If the answer be in the
positive, the need is bonafide. This is the
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23
consistent view taken by the Apex Court in catena of
Judgments. Even in the subsequent decision of the
Apex Court reported in (1999) 8 Supreme Court Cases 1
in the case of Raghunath G.Panhale(Dead) by LRs.
V/s. Chaganlal Sunderji & Co.,
Co. the Court has
restated the settled legal position. In paragraph-7
of the said decision while referring to the dictum in
Bega Begum V/s. Abdul Ahad Khan case reported in
(1979) 1 SCC 272, the Apex Court has observed that
the reasonable requirement postulates an element of
"need" as opposed
ig to a mere "desire or wish".
Further, if it was indeed a case of a reasonable
need, the same could not be diluted by characterising
it as only a mere desire. It is further held that
the language of the provision cannot be unduly
stretched or strained as to make it impossible or
extremely difficult for the landlord to get
possession. Reference is made to other decisions of
the Supreme Court to analyse and restate the settled
legal position. Counsel for the Petitioners has also
relied on the decision in the case of Badrinarayan
Chunilal Bhutada V/s. Govindram Ramgopal
Mundada[(2003) 2 SCC 320].
320] Even in this decision,
the Apex Court has considered the scheme of the Act.
Sofar as the ground of reasonable and bona fide
requirement by the landlord for occupation of
residential or non-residential premises is concerned,
::: Downloaded on - 09/06/2013 14:30:15 :::
24
it is observed that section 13(1)(g) contemplates the
decree for eviction being passed on proof of availability of the ground according to law.
16. On analysing the pleadings and evidence adduced by both the parties on record, I find force in the argument of the Plaintiff that the conclusion reached by the two Courts below on the issue under consideration was inevitable. In that, the landlord not only pleaded about his bonafide and reasonable requirement in ig the plaint but himself entered witness box and spoke about his need. On the other hand the tenant(Defendant No.1) did not bother to enter the witness box. The Defendant No.1 merely filed his joint Written Statement. In that sense, the Defendant No.1 himself did not challenge the claim of the Plaintiff by entering witness box. Even the joint Written Statement filed was only of general denial. It merely makes reference to some other premises in occupation of the Plaintiff, which the Courts below have found was owned by the mother of the Plaintiff. The Defendant No.2 in his evidence has assumed on the basis of conjecture and surmises that the Plaintiff was not likely to return from America. No justification for this assumption was forthcoming and in the cross-examination has conceded that it was his inference in that behalf. Indeed, ::: Downloaded on - 09/06/2013 14:30:15 ::: 25 the tenants/Defendants have not made out any case either in the pleadings or evidence adduced that the need of the Plaintiff is tainted with oblique motive.
On the other hand, in the Plaintiff's evidence, the Plaintiff has clearly stated that it is difficult to adjust in America and that he has no intention to settle down in America. He has clearly asserted that he wants to return to India. He has given other reason why his requirement in respect of suit premises is bonafide and reasonable. He has clearly deposed that ig he has no other premises of his own in Mumbai, which can be used for his occupation. He has also deposed about the fact that it was not possible for him to share accommodation of his mother alongwith his younger brother on account of his family size and also because the younger brother was likely to get married, thereby increasing size of his family. It is stated that the premises of his mother were not sufficient to accommodate himself, his family and the mother as well as the younger brother.
None of the above statements have been challenged in the cross-examination but only suggestion given to the witness which has been denied. The Counsel for the Respondent has justly relied on the exposition in the case of Badriprasad K. Agarwal and anr. V/s.
The Premier Garage & Ors.[1980(1) All India Rent Control Journal 385], as also case of Bhika Cullianji ::: Downloaded on - 09/06/2013 14:30:15 ::: 26 & Co. V/s.Avon Electric Company[1995(1) Bom.
C.R.377] which in turn refers to the earlier reported decision to hold that when the case put up by the otherside has virtually gone uncontroverted and undisputed or unchallenged in the oral evidence, it would be regarded as an admission of the other party and that such uncontroverted evidence must be acted upon by the Courts. Reliance has also been rightly placed on the decision of the Apex Court in the case of Vidhyadhar V/s. Mankikrao and anr.[AIR 1999 SC 1441].
1441] In
ig paragraph-15 while dealing with the facts
of that case, the Court has observed that the plea
taken by the Defendant was not supported by the
Defendant No.1 as he did not enter the witness box.
He did not state the facts pleaded in the written
statement on oath in the trial Court and avoided the
witness box so that he may not be cross-examined.
The Court observed that this by itself is enough to
reject the claim of the defendants that the
transaction was bogus. In paragraph-16, the Court
has observed that where a party to the suit does not
enter the witness box and states his own case on oath
and does not offer himself to be cross-examined by
the other side, the presumption would arise that the
case set up by him is not correct as has been held in
a series of decisions passed by various High Courts
and the Privy Council beginning from the decision in
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27
Sardar Gurbaksha Singh v. Gurdial Singh[AIR 1927 PC
230]. Assuming that the exposition in the above said
decision may not strictly apply to the present case
as Defendant No.2 has entered the witness box. In
the first place, the Defendant No.2 is not the
contractual tenant. He is only claiming through the
Defendant No.1 the contractual tenant. It is the
contractual tenant who was expected to enter the
witness box and challenge the claim of the Plaintiff.
The explanation of the defendants that the
contractual tenant ig was very old and has shifted to
Sangli cannot be the basis to extricate the tenant
from having failed to enter the witness box. As
aforesaid assuming that the evidence given by the
Defendant No.2 by entering witness box was sufficient
compliance. However, even evidence of Defendant No.2
is of no avail to the Defendants. Merely saying that
the Plaintiff has another accommodation in the same
building is not enough. The Plaintiff has offered
good explanation as to how the other premises would
not satisfy his requirement. The Defendant No.2 has
vaguely stated that he thought that the Plaintiff
would not return to India. The basis of such
assumption is not forthcoming. The fact that the
Plaintiff would never return to India or had no
intention to return to India, the onus of proving the
same was on the Defendants who asserted that fact.
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28
The Plaintiff on the other hand entered witness box
and categorically stated that he intended to return
to India. To put it differently, both the Courts
below upon evaluation of the rival evidence have
concurrently found that the Plaintiff has established
his bonafide and reasonable requirement. That
finding of fact is unassailable in the fact situation of the present case.
17. Counsel for the Respondent/Plaintiff has placed reliance ig on the decision of the Delhi High Court in the case of M/s. Hi-Bred(India) (P) Ltd.
V/s. Ravi K. Kumar & Anr.[1989(1) All India Rent
Control Journal page 44].
44] In that case, the
Plaintiff was a green card holder issued by the
United States of America. The Delhi High Court
rejected the argument that such landlord cannot
invoke ground of bonafide and reasonable requirement
and stead held that it would not lead to any
inference that he has no bonafide need to come over
to India and live in India. Even in that case, the
Court found the claim of the landlord to be bonafide.
Exposition in the said case applies with full force to the case on hand.
18. A priori, I have no hesitation in upholding the concurrent view taken by the two Courts below on ::: Downloaded on - 09/06/2013 14:30:15 ::: 29 the issue of bonafide and reasonable requirement of the Plaintiff. That takes me to the next issue of comparative hardship, which the Court is expected to examine in term of Section 13(2) of the Act. Insofar as this issue is concerned, the Plaintiff has pleaded and proved the fact that he has no other premises of his own in the City of Mumbai, which could be used for his own use and occupation. Indeed, even the case of the tenants was that they had no other premises in the City. In the present case, however, the Defendant ig No.1 who was the contractual tenant did not enter witness box to depose about relevant facts concerning the issue of comparative hardship. It is well established position that it is the hardship of the contractual tenant, which is to be born in mind.
It has come on record that the Defendant No.1 has acquired alternative premises at Sangli and has permanently shifted to Sangli since long. Atleast two facts would emerge from the said factual position. Firstly, that the contractual tenant himself would no more require the suit premises for himself. Secondly, the contractual tenant had means to acquire another premises else where. As aforesaid, the contractual tenant has not entered the witness box to establish the fact that he would suffer greater hardship. Keeping this in mind, the issue will have to be answered against the ::: Downloaded on - 09/06/2013 14:30:15 ::: 30 contractual tenant.
19. To get over this position, the Petitioners would contend that even though the Defendant No.1 who is the contractual tenant has shifted to Sangli, the Petitioners being the family members of Defendant No.1 and having continued to occupy the suit premises, even their hardship will have to be kept in mind while answering the issue. The question is:
whether the two Courts below have overlooked this aspect of the ig matter. On analysing the Judgments of the two Courts below, they have concurrently answered the issue of comparative hardship considering all aspects of the matter. Indeed, the Trial Court has noted that on account of failure of Defendant No.1 to enter the witness box was fatal to his defence in relation to the issue of comparative hardship but the Court has then noted that the Defendants have failed to establish that Defendant No.2 who is pursuing the present proceedings was residing with the Defendant No.1 before he had shifted to Sangli for the good.
The Trial Court has found that the Defendant No.2 had come in the suit premises after Defendant No.1 had left for Sangli and as such there would be no question of suffering any hardship even by the Defendant No.2. Accordingly, it was held that no hardship would be caused to the tenants. The Trial ::: Downloaded on - 09/06/2013 14:30:15 ::: 31 Court has noticed that the Defendant No.2 has not led any evidence worth the name to show that any hardship would be caused to him. The Defendant No.2 has made no efforts to find alternative accommodation. He has only vaguely suggested that in 1968 an attempt was made to secure alternative accommodation on leave and licence basis, which suggestion was meaningless. The Trial Court has also noted that the Defendant No.2 appears to be financially better off and has his own independent business. He has a bungalow in his name at Sangli where ig Defendant No.1 is presently residing.
He has also stated in his evidence that he intends to start chemical manufacturing business at Sangli. The Trial Court has then noted that since Defendant No.2 has acquired property at Sangli consisting of a house and a plot of land for his business venture, he could shift to Sangli and from there can manage all the businesses through his partners and could make periodical visits. The Trial Court eventually concluded that there was hardly any material on record to show that any hardship was likely to be caused to the Defendant No.2. The Appellate Court has independently considered the issue of comparative hardship, as can be discerned from the discussion in paragraph-17 and 18 of the impugned Judgment. The Appellate Court has affirmed the view taken by the Trial Court that greater hardship would be caused to ::: Downloaded on - 09/06/2013 14:30:15 ::: 32 the Plaintiff if the decree was not passed against the Defendants as he would be permanently deprived of his own premises.
20. Counsel for the Petitioners would however, rely on the observations in the decision of the Apex Court in the case of Badrinarayan Chunilal Bhutada v/s. Govindram Ramgopal Mundada[(2003) 2 SCC 320].
320] In paragraph-7 of the said decision, the Apex Court had occasion to consider the scheme of the Act in relation to ig the ground of reasonable and bonafide requirement. It is observed that inspite of ground for eviction under section 13(1)(g) is made out by the Plaintiff, the Court is entitled to deny the relief of eviction if the issue as to comparative hardship is answered against the landlord and in favour of the tenant. It is further observed that burden of proving availability of ground for eviction under Section 13(1)(g) lies on the landlord; the burden of proving greater hardship so as to deprive the landlord of his established right to seek eviction lies on the tenant. In paragraphs-8 to 11, the Apex Court has dealt with the circumstances and factors to be borne in mind while considering the issue of comparative hardship. It is observed that the Act does not lay down any guide-lines or relevant factors based whereon the question of comparative ::: Downloaded on - 09/06/2013 14:30:15 ::: 33 hardship is to be decided. However, the Court has to keep in mind all the circumstances of the case including question whether other reasonable accommodation is available for the landlord or the tenant. It is observed that the expression "other reasonable accommodation" as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The Court has then adverted to the exposition in Bega Begum vs. Abdul Ahad Khan(supra), Khan(supra) which also dealt with the issue of comparative hardship.
ig In that case, the Apex Court
has observed that in deciding this issue, each party
has to prove its relative advantages or disadvantages
and the entire onus cannot be thrown on the Plaintiff
to prove that lesser disadvantages will be suffered
by the defendants and that they will be remediable.
While considering this issue, the financial means of
the tenant that he can obtain other accommodation is
a relevant consideration. That the proviso in
Section 13(1)(g) with the provision under section
13(2) should not be read as if it confers a practical
immunity on the tenant from being evicted. In
paragraph-21, the Court has noted that in view of the
finding that the landlords have not only a genuine
requirement to possess the house, but it is necessary
for them to do so in order to augment their income and maintain themselves properly.
::: Downloaded on - 09/06/2013 14:30:15 ::: 3421. The question is whether it is a case where the tenant is incapable of securing alternate accommodation and further that such alternative accommodation could not be secured inspite of the best efforts put in by the tenants. On both these aspects, the Courts below have answered the issue against the tenants. Suffice it to observe that the tenants have merely stated that an attempt was made to secure alternate accommodation on leave and licence basis. ig However, the evidence is that that attempt was made in 1968. That is not enough. The Defendants were expected to start looking for alternative accommodation immediately on receipt of the notice to vacate but continued to do so inspite of institution of the suit and even till recording of evidence. In the present case, the suit was filed as back as in 1970. There is no evidence that between 1968 till that date any attempt was made by the tenants to secure alternative accommodation.
Besides, evidence of the Defendant No.2 has been recorded in 1982. There is absolutely no evidence that even during the pendency of the suit, the Defendants continuously tried to secure alternative accommodation and were unsuccessful. It necessarily follows that the explanation offered by the tenants was unacceptable. On the other hand, the Plaintiff ::: Downloaded on - 09/06/2013 14:30:15 ::: 35 would be permanently deprived of his own premises which he intends to use it for his own occupation.
In the circumstances, the issue of comparative hardship also deserves to be answered against the Petitioner/Defendants. On this finding it necessarily follows that the Plaintiff would be entitled for a decree of eviction on the ground of bonafide and reasonable requirement as has been granted by the two Courts below. The same is only confirmed in terms of this decision.
22. There is one more ground on which the two Courts below have decreed the suit for possession in favour of the Plaintiff and against the Defendants.
In that, the tenant has acquired alternative suitable accommodation elsewhere for his residence. The matter was referred to the larger bench on the earlier occasion, the larger bench has now answered the said issue. The conclusion of the larger bench can be discerned from paragraphs-10 and 11 of the said order which read thus:
"10. It is necessary to bear in mind that the Legislature in enacting section 13(1)(l) of the Act did not say that as soon as the tenant gets some residence equal or larger in area than the former residence under the landlord, the tenant should be evicted. The emphasis of the Legislature is on the word "suitable". Therefore, in every case it will have to be seen, having regard to the facts and circumstances of the case, whether the ::: Downloaded on - 09/06/2013 14:30:15 ::: 36 tenant can be said to have acquired or allotted suitable alternative accommodation. In our opinion, the accommodation suitable for the tenant's residence would ordinarily mean that if a person is required to reside in a particular place in connection with his allocation or profession or business, the alternative accommodation must be suitable for his residence there and not at the place which is located far away. For instance, if tenant in Mumbai acquires premises say in Nagpur or Wardha, it will not ipsofacto amount to acquisition of alternative suitable accommodation. If it is further demonstrated that the tenant has shifted to his alternative accommodation with his family then and in that case provisions of section 13(1)(l) of the Act will be certainly attracted. However, ultimately, the question will have to be decided having regard to the facts and circumstances of each case.
ig 11. We are not inclined to agree with the view expressed by Rebello J. in Rejendraprasad's case. It seems that the learned Judge was of the opinion that even if the tenant has constructed house in Pune or Delhi, he would be construed to have acquired suitable residential premises under section 13(1)(l) on the basis that such acquisition shows that he had the capacity to construct the house elsewhere. In our view the capacity of a tenant to acquire suitable premises is not a relevant consideration for considering eviction under sec. 13(1)(l) while it may be relevant for considering the hardship under sec. 13(2) of the Bombay Rent Act while decreeing his claim on the ground of reasonable requirement under sec. 13(1)(g) of the said Act. We are in respectful agreement with the view expressed by C.S.Dharmadhikari J. that ordinarily acquisition or allotment of residential premises outside the local area will not automatically forfeit the protection given by the Rent Act. It will ultimately depend upon the facts and circumstances of a particular case and if the court comes to the conclusion that acquisition of such premises is suitable for residence of a tenant decree can be passed under sec.13(1)(l) of the Rent Act. The reference is answered accordingly. Registry is directed to place the matter ::: Downloaded on - 09/06/2013 14:30:15 ::: 37 before the learned single Judge for deciding the petition in accordance with law."
The Division Bench of our High Court has thus found that acquisition of another premises in some distant city, ipsofacto, does not mean alternative suitable accommodation; but it is to be further demonstrated that the tenant has shifted to his alternative accommodation with his family, so as to attract provisions of section 13(1)(l) of the Act. In the present case, the argument of the Petitioners is that although for the the good, igcontractual his tenant family has members, shifted to namely, Sangli the Defendant No.2 continued to reside in the suit premises and it is not a case of shifting of tenant alongwith his family to some other premises as such.
This argument clearly overlooks the finding of fact recorded by the Courts below that the Defendant No.2 came in the suit premises only after the Defendant No.1 had permanently shifted to Sangli. It is not as if the Defendant No.2 was occupying the suit premises alongwith the Defendant No.1. In that sense, the argument of the Petitioner would be devoid of merits.
However, without dilating any further on this ground I would observe that the Plaintiff having succeeded to get decree for possession on the ground of bonafide and reasonable requirement, it is not ::: Downloaded on - 09/06/2013 14:30:15 ::: 38 necessary to burden this Judgment with the ground under section 13(1)(l) any further.
23. Accordingly this Petition fails. Judgment and Decree passed by the two Courts below for possession of the suit premises is confirmed with costs.
24. In view of this order, nothing survives for consideration in the companion Civil Application.
The same is disposed of accordingly.
25. At this stage, Counsel for the Petitioners prays that operation of the decree for possession which has been confirmed in terms of this order be kept in abeyance for some time to enable the Petitioners to carry the matter in appeal. There is no difficulty in accepting this request of the Petitioners. Accordingly, it is ordered that execution of the subject -decree be kept in abeyance till 31st July, 2009 to enable the Petitioners to carry the matter in appeal. That indulgence is shown on condition that the Petitioners and all other adult members staying in the suit premises alongwith Petitioners shall file usual undertaking in this Court within two weeks from today, failing which it will be open to the Respondent/Plaintiff to proceed ::: Downloaded on - 09/06/2013 14:30:15 ::: 39 with the execution of the decree, if so advised.
Ordered accordingly.
(A.M.KHANWILKAR,J) ::: Downloaded on - 09/06/2013 14:30:15 :::