Bombay High Court
S.B. Gaikwad vs Iyer Subramanya Venkateswara on 3 September, 1990
Equivalent citations: 1990(3)BOMCR736
JUDGMENT Ashok Agarwal, J.
1. Writ Petition No. 293 of 1989 has been filed by the original defendant tenant seeking to challenge the judgment and decree dated 24th November, 1988 passed by the Appellate Court of the Small Causes, Bombay in Appeal No. 89 of 1986. By the impugned decree the plaintiff's suit for possession under section 13(1)(g) of the Bombay Rent Act has been decreed on certain conditions.
2. Writ Petition No. 4257 of 1989 is by the original plaintiff seeking to challenge the very judgment and decree which is the subject matter of Writ Petition No. 293 of 2989. By this petition the plaintiff seeks to impugn the order directing him to provide alternate accommodation to the defendant as a condition precedent to the grant of a decree for possession in his favour.
3. The suit premises consist of residential premises admeasuring about 500 sq. ft. Situate on plot No. 12.A, First Road, Chembur, Bombay. 400 071. The said property was purchased by the plaintiff on 22nd May, 1972. On 25th January, 1982 the plaintiff by notice called upon the defendant to had over the possession of the suit premises as he bonafide defendant required the same. In the said notice the plaintiff offered alternate accommodation to the defendant. Since the defendant did not favourably respond, the plaintiff, on 11th November, 1983 filed the instant suit being R.A.E. Suit No. 1982. It was the case of the plaintiff that the suit premises were located a plot which has been earmarked in the city development plan for commercial purposes. According to him, his wife was already engaged in commercial activity in a property close to the suit premises. He was, therefore, interested for setting up an ancillary business supplimental to the business for his daughter who had the aptitude an the necessary finances and facilities for such business. The plaintiff desired to help her set-up the business. He, therefore genuinely, reasonably and bonafide needed the suit premises.
4. On 1st March, 1983 the plaintiff get the development plans sanctioned by Municipal Corporation. By written statement dated 21st July, 1983 the defendant resisted the suit denying all the facts set up for claiming possession.
5. After the evidence led on behalf of the plaintiff was partly recorded, the plaintiff by amendment to the plaint gave better particulars regarding is bonafide requirement. By the amendment he pleaded that his requirements of the suit premises was the purpose of enabling his daughter Miss Geeta Iyer to settle in life and for the purpose of enabling her to run and/or conduct a lodging house therein, as his said daughter is fully conversant and experienced in the field of conducting a lodging house. Her mother has been running such a lodging house and the daughter has been helping the mother throughout. By the said amendment the plaintiff further contended that although the suit plot has been earmarked for commercial purpose, the running and/or conducting of a lodging house is not for use for non-residential purpose and the same is thus not and cannot be prohibited under the provision of section 25 of the said Act. During the evidence the plaintiff made out case that he had no male issue but had only two daughters. Geeta was the elder daughter was aged about 21 and had passed her B. Sc. His younger daughter was studying in first year B. Com. The elder daughter Geeta did not have any desire to get married and he was, therefore, interested in settling her in life. However, the said Geeta, during the pendency of suit, on 29th May, 1985 got married to the one Sivaswamy Ramakrishnan who is an Additional Director of a company "Transport Shipping Services (India) Private Limited" which has its office premises in Maker Chamber No. 32 Nariman Point. The said Sivaswamy Ramakrishnan resides in a flat in Thakur Nivas, Jamshedji Tata Road, Bombay 400 020. Thus, apparently Geeta appears to have got married in a reasonably well off family.
6. By the judgment and decree dated 6th November, 1985 the learned judge of the trial Court was pleased to hold that the plaintiff had failed to prove that he bonafide required the premises for his own use and occupation, and the claim of the plaintiff under section 13(1)(g) is prohibited because of the bar contained in the section 25 of the Bombay Rent Act. Consequent to said findings, the suit of the plaintiff was dismissed with no orders as to costs.
7. Being aggrieved by the dismissal of his suit the plaintiff preferred in the appellate Court of the small causes Court, Appeal No. 89 of 1976. By a judgment and order dated 28th April, 1988 the Appellate Court remitted back the case to the trial Court for recording additional evidence on three points indicated in the judgment, viz.:
"(1) Evidence as to whether or not the respondent was in occupation of the suit premises as a tenant and using the same for his residence on the date of coming into operation of the Rent Act?
(2) What could be the effect on the appellant's claim of requirement after the marriage of his daughter Geeta on 29th May, 1985 (during the pendency of the suit) since the claim of requirement is based on Geeta's requirement; and;
(3) On the question of offers of alternative accommodation that have been made by the appellant to the respondent vide the application that was made in this Court."
The trial Court accordingly recorded additional evidence and remitted the same to the Appellate Court. On receipt of the additional evidence, the Appellate Court after hearing the parties, by its judgment and order dated 24th November, 1988 allowed the appeal of the plaintiff, set aside the judgment and decree of the trial Court in so far as the claim of the plaintiff for possession was dismissed and decreed the suit with no order as to costs. By the very same judgment the plaintiff was ordered to provide alternative accommodation to the defendant as a condition precedent, to being entitled to obtain possession of the suit premises.
8. Taking exception to the decree for possession, the defendant has preferred Writ Petition No. 293 of 1989. The plaintiff being aggrieved by the condition imposed. of providing alternate accommodation has preferred Writ Petition No. 4257 of 1989.
9. At the Inception of the hearing of these writ petitions. Shri Paranjape, the learned Counsel appearing on behalf of the plaintiff pointed out a letter dated 30th August, 1990 addressed to the learned Counsel appearing on behalf of the defendant offering four alternate accommodations which are as under :
OFFER No. 1.
Type of accommodation : Self-contained Flat
system in Pucca RCC building.
Exact location in : In Shell Colony, near
Chembur Chembur
Market and Rly. Stn.
Building No. : 8
Name of the Regd. Society : Mitraksha Co-operative Hous
ing Soc. Ltd.
Flat No. : 141
Floor : Ground floor
Area : Approximately 550 Sq. Ft.
comprising 2 Rooms, Kitchen
Balcony, toilet and w.c. Com
plete with glazed tiles.
Distance from the suit
premises : 1/2 K.M.
Terms : My client is offering the
accommodation on ownership
basis
OFFER NO. 2 :
Type of Accommodation : Self-contained. Flat System in
Pucca RCC Building.
Exact location in Chembur : In Shell Colony, near
Chembur
: Market and Rly. Stn.
Building No. : 32
Floor : 2nd floor
Area : Approximately 550 Sq. Ft.
comprising 2 Rooms, kitchen
balcony, toilet and w.c.
Distance from the suit
Premises : 1/2 K.M.
Terms : My client is offering the
accommodation on ownership
basis.
OFFER NO. 3 :
Type of Accommodation : Self-contained, Flat System in
pucca RCC Building.
Location : In Postal Colony, near
Chembur Station, Market and
Mna Hospital.
Name of the Regd.
society : Chandralayam View Co-op
erative Society Housing Society
Limited.
Floor : 1st floor
Flat No. : 8
Area : Approximately 550 Sq. Ft.
comprising 2 Rooms, kitchen,
Balcony, toilet and w.c.
Distance from the suit
premises : 1/2 K.M.
Terms : My client is offering the
accommodation on ownership
basis
OFFER NO. 4 :
Type of Accommodation : Self-contained, Flat System in
Pucca RCC Building.
Exact location in
Chembur : Near Chembur Main Post Of
fice Garden and Joy Hospital.
Name of the Regd.
Society : New Vishwas Co-operative
Housing Society Limited.
Flat No. : 10
Floor : Ground Floor.
Area : Approximately 550 sq. ft.
comprising 2 Rooms, kitchen,
2 balcony, toilet and w.c.
Distance from the :
suit premises : Approximately 1/2 K.M.
Terms : My client is offering the
accommodation on ownership
basis."
If one has regard to the above offers, it is clear that the defendant has been offered alternate premises which admeasure in area in excess of the suit premises. Moreover, the said premises are being offered on ownership basis. Despite the said offer which, to my mind, is more than reasonable the defendant has declined to accept.
10. Shri Sakhare, the learned Counsel appearing on behalf of the defendant strenuously urged that the requirement set up by the plaintiff cannot be held to be self-requirement as contemplated under section 14(1)(g), 13(1)(g) of the Rent Act. According to him, before the plaintiff can be said to be entitled to possession, he has to establish that the premises are reasonably and bonafide required by him for occupation by himself or by any person for whose benefit premises are held. According to him, plaintiff's daughter Geeta for whose benefit the premises are required has since got married. She no longer continues to be the dependent upon the plaintiff. She is no longer a member of his family. It, therefore, cannot be held that the premises are reasonable and bona fide required by the landlord for occupation of himself. It cannot also be held that the premises are required by a person for whose benefit the premises are held. Consequently, the suit for possession is liable to be dismissed. He relied upon the case of Kumbhar Pragji v. Parekh Harilal, , wherein it was held that the requirement of the member separated from the landlord is not the requirement of landlord though he is living with the landlord. When there is a division of estate and the joint family status has come to an end the requirement of a grandson cannot be considered while considering the requirement of the landlord though he is living with him.
11. Shri Sakhare further cited the case of Institute of Radio Technology v. Pandurang, reported in A.I.R. 1946 Bombay Page 212, wherein it was held that, " The words 'his own occupation ' means occupation of himself and all person who are dependent on him." He placed further reliance on the case of P.B. Desai v. C.M. Patel, , wherein it was held that there must be element of need and not a mere desire before a landlord can be said to require a premises for his own use and occupation. He also relied on the case of Ramesh v. A. Balreddy, wherein premises claimed for a married daughter was rejected.
12. Shri Sakhare further contended that the suit premises are being used for residence since the year 1940 i.e. since prior to the coming into operation of the Rent Act . The claim of the plaintiff is not for residence but for business purposes. According to Shri Sakhare, the provisions of section 25 would be a bar to the passing of a decree since the change of user from residence to business would expose the plaintiff to a criminal prosecution. Such claim cannot be termed as either bona fide or reasonably. He placed reliance on the case of B. Mohanbhai v. M.S.U. Mandir, , wherein it was held that the requirement which runs in the teeth of section 25 and which, if established may throw the landlord open to the risk of a prosecution cannot be held reasonable. He also placed reliance on the cases reported in 74 B.L.R. Page 186 Laxmi Co-op. Bank v. Mohan and 1981(1) Rent Control Journal Page 677 Annappa Appa Anuja v. Kingappa Parmeshwar Naik & anr. where the claim for possession was rejected on the ground of bar of section 25.
13. Shri Sakhare finally contended that the Appellate Court erred in remitting the matter to the trial Court for recording additional evidence without further requiring it to record its findings on the additional evidence. The appeal Court after receiving the additional evidence proceeded to give its findings as if it was in the position of the trial Court. This had deprived the right of the parties to challenge the findings of fact by filing an appeal. Shri Sakhare finally contended that the suit of the plaintiff is liable to be dismissed with costs.
14. Shri Paranjape, the learned Counsel appearing on behalf of the respondent plaintiff supported the findings of the Appellate Court , both on the issue regarding bonafide requirements as also on comparative hardship. According to him, section 25 of the Bombay Rent act will not be a bar for passing a decree for possession in the present case. Placing reliance on the case of R.P. Mehta v. I.A. Sheth, , he contended that it was not necessary for a landlord who claims possession under section 13(1)(g) to use the suit. Premises in the very form in which it exists on the date of the suit. It is open to him to pull down the premises, build another and then occupy it. In the instant case the suit premises are situated in a commercial locality. The plaintiff has made it clear that on obtaining possessing, he proposes to demolish the suit premises and construct new premises. The plaintiff has obtained the necessary no objection certificate and has got the plans of the proposed construction passed. Once the new premises are constructed, the old premises will no longer survive. Hence, section 25 would not bar the plaintiff from using the newly constructed premises for non-residential purposes. Alternatively, he contended that the newly constructed premises are proposed to be used for the purpose of running a lodge. Hence, even though there might be certain portions which may be used for the purpose of housing, consulting rooms for doctors or for establishing a pathological laboratory, the dominant user of the premises would be that of a lodge. The substantial portion of the newly constructed premises would, therefore, continue to be used for residence of lodgers.
15. Shri Paranjape further pointed out that the plaintiff in the instant case has right from the date of the issue of the notice dated 20th January, 1982 has been consistently offering alternate premises to the defendant. Even in this Court he has offered as many as four alternate premises and that too on ownership basis. The defendant has, however, avoided to consider any of these offers. Shri Paranjape, in support of the plaintiff 's writ Petition No. 4257 of 1989 submitted that the lower Appellate Court had erred in directing the plaintiff to provide alternate accommodation as a condition precedent to the plaintiff being entitled to possession of the suit premises. According to him, such a course was not contemplated under any of the provisions of the Bombay Rent Act. If the plaintiff makes an alternate premises that can be a factor that can be taken into consideration while deciding the issue of comparative hardship. If the plaintiff offers alternate premises and the defendant refuses to accept the same, it would not be open to the Court to pass a conditional decree as has been done in the present case. According to the Shri Paranjape, the attitude of the defendant has been unreasonable and this is not a case which warrants interference in the exercise of the jurisdiction under Article 227 of the Constitution. Shri Paranjape submitted that it was perfectly open to the learned Judge of the lower Appellate Court to have called upon the trial Court to record evidence and send the same without recording its findings on the same. Such a course was prescribed under Order 41, Rule 28 of the Code of Civil Procedure. Hence, no prejudice can be said to have been caused to either of the parties. Shri Paranjape finally submitted that the defendant's petition is liable to be dismissed and the petition deserve to be allowed.
16. I will take up for consideration first, the issue regarding bona fide requirement. The facts which have emerged in the present case are the following:-
The plaintiff is a Mechanical Engineer having a small scale unit at Deonar. He could thus, therefore, be styled as a businessman. He has no male issues. He has only his wife and two daughters. The elder daughter is Geeta who has passed her B.Sc Examination in flying colours. She is thus a science student and has no educational qualifications for doing business. Apart from the suit premises the plaintiff has purchased in the name of his wife a building which she has names as Geeta Mala which is located at a short distance from the suit premises. The said building consists of ground and three floors and houses a lodge known as Hotel Annapurna which consist of about 51 rooms. The said lodge is being run by his wife. The ground floor of the said building houses a restaurant known as Geeta Bhavan which is run by one Madhukar Shetty. It has come in evidence that Geeta has been assisting her mother in the conduct of the said lodging house The fact that the building as also the restaurant has been named after Geeta gives an indication of the affection the plaintiff has for his elder daughter.
17. In the suit as originally filed the plaintiff made out a case regarding the requirement of the suit premises for his daughter. By amendment, all that he did was to furnish details regarding the requirement of Geeta. When the suit was files, Geeta was unmarried and it was felt that she had no intentions of getting married. Things however changed for her and wedding bells rang on 29th May, 1984. She got married in a well off family. Thus, this is not a case where Geeta is in financial strangency and requires financial assistance from her father. This is certainly not a case where additional income is required by her to make two ends meet. This is, therefore, not a case where she requires the suit premises to augment her finances. This is, therefore, not a case of necessity. To this extent, Shri Shakhare is undoubtedly justified in his contentions. Now let us take the case of the plaintiff himself. He is a person who has already suffered three heart attacks. When his evidence was recorded, he proposed to go to Texas Heart Centre, U.S.A. for open by-pass surgery. He has his wife and only two daughters. When the suit was filed, Geeta was dependant upon him both socially as also financially. She was very much a member of his family. Thus, when the suit was filed can it be said that the requirement of the plaintiff for starting a business for Geeta was either unreasonable or malafide ? Pending the suit, Geeta got married. She, therefore, went out of the family of the plaintiff and went into her matrimonial home and this is consistent with the Hindu Philosophy prevailing in our society. Can it, however, reasonably be held that the blood relations which existed between the plaintiff and Geeta were served on account of the latter's marriage? Can it, reasonably be held that a requirement before Marriage, which was both reasonable and bona fide has now become unreasonable and malafide merely on account of the latter's marriage? I should think not. Since the plaintiff has no male issues, his wife and the daughters are bound to succeed the plaintiff on his demise. If in these circumstances, the plaintiff makes out a case that he requires the suit premises for the purpose of establishing a business for one of his daughters, in my view, this would be a case of the requirement of the plaintiff himself. This is mere a case of the requirement of the plaintiff rather than the requirement of Geeta. In this view of the matter, I have no hesitation in holding that the plaintiff requires the suit premises reasonably and bonafide for himself i.e. for the purpose of establishing a business for his daughter Geeta.
18. It is no doubt true that it has been held in the case of P.B. Desai v. C.M. Patel, , supra, that the word "requires" in section 13(1)(g) means that there must be an element of need and not mere desire before a landlord can be said to require the premises for his own use and occupation. In my view, having regard to the fact that the plaintiff has no male issue, that the plaintiff has already suffered three heart attacks, his requirement to establish a business for his daughter has as element of need and is not a mere desire. Hence, the plaintiff cannot be non- suited on the basis of the decision in the above case.
19. In case of Ramesh v. A. Balareddy, , supra, it is no doubt true that she Supreme Court disallowed the claim of the landlord for possession of premises which were required by his married daughter for running a separate clinic. In my view , the said decision does not lay down any proposition of law and this is evident from the following observations contained in paragraph 3 of the judgement:-
"The evidence and the circumstances are telling in this case. It has been fully established by the appellant that the respondent has been forcing him to raise the rate of rent from time to time and was making a further demand, which was not acceded to by the appellant. The Rent Controller was also right in relying upon the manner in which R.C. No. 535 of 1977 had been filed by the respondent landlord against another tenant Babu which was later withdrawn when Babu agreed to pay higher rent it is also relevant to note that the respondents's daughter and her husband are on good terms and she was assisting him in his clinic when the case was filed. Both being doctors, it is expected that the husband would be able to take care of the necessities of the wife and there is nothing to suggest that the respondent's daughter had to depend on her father in any manner. In this situation the requirement pleaded by the respondent in his application is a fanciful wish and cannot be accepted as a good ground for a decree for eviction..... "
The above observations make it clear that the said case was decided on the peculiar facts of that case. The said case does not lay down a proposition of law that a landlord can in no circumstances claim possession for providing for his married daughter.
20. In the case of Institute of Radio Technology v. Pandurang reported in A.I .R 1946 Bombay Page 212, supra, it is no doubt true that it was observed that, "The words" his own occupation ' means occupation of himself and all persons who are dependent on him." The said observation, however, cannot be read out of the context in which they are made. They were in reply to a contention advanced on behalf of the tenant that the words in the section are that the premises must be required by the landlord for his own occupation that the plaintiff No. 1 is now dead and the plaintiff No. 2 who is his son does not required these blocks for his own occupation. While repelling the said contention it was observed:-
"On that point evidence was led, and plaintiff 1, while he was alive went into the box and stated that his family consisted of his son, his widowed sister, her two daughter, two daughters of his daughter and his cousin. The learned judge was presumably satisfied with the evidence that these person were the plaintiff's dependants, and that therefore, they were entitled to live along with the plaintiff".
It is in this context that the aforesaid opinion was expressed viz. "his own occupation" mean occupation of himself and all persons who are dependent on him. The said observation was made while repelling the aforesaid contention advanced on behalf of the tenant. The said case, therefore, cannot be of any assistance to the defendant for negativing the claim of the plaintiff".
21. In the case of Kumbhar Prasji v. Parekh Harilal, , (supra), it was observed that the requirement of a member separated from the landlord is not the requirement of landlord though he is living with the landlord. It was further observed that:
"Where a family unit consists of a joint family wherein all members of the joint family reside together and do business in the name of the joint family then while considering the bona fide and reasonable requirement of the landlord, requirement of all the members of the family can be taken into consideration. But when there is a division of estate and the joint family status has come to an end the requirement of a grandson cannot be considered while considering the requirement of the landlord though he is living with him"
In my view, the above decision considered a requirement of grandson when there was a division of the estate and there was a severence of the joint family status. After severence of the joint family, the requirement of a separated member was held as not forming the requirement of the landlord. The facts of the present case are entirely different. This is not a case of requirement of the plaintiff's daughter Geeta. This is a case of the requirement of the plaintiff himself who desires during his life time to provide for his daughter who even otherwise, on his demise would be entitled to inherit his estate. Thus, the above case also cannot be taken in aid to disallow the claims of the plaintiff.
22. In the case of Balbhadra Beharilal v. Premchand Lalchand, reported in A.I.R. 1953 Nagpur Page 144, it was held that the need of widowed daughter and her children must be-deemed to be need of land lord. It was observed that:
"No doubt, after marriage the daughter passes out of the fathers family and goes into that of the husband. But the fact of marriage does not sever the blood relationship which exists between a father and his daughter. The existence of this relationship does give rise to certain moral obligations. Where, in pursuance of such moral obligations, a father affords support to his daughter and her children, their needs become his needs. There is nothing in the Rent Control Order which restricts a landlord's needs to his personal needs."
It has been further observed:-
"The word ' his must be interpreted liberally and not in a narrow way. So interpreted, it would include not only the members of the landlord's family but also all those persons who are dependent on him and whose responsibilities he has accepted"
23. It has been observed in the case of Om Prakash v. Bhagwan Das, that, if the landlord applies for ejectment of the tenant on the ground that the accommodation is bona fide required by him for his use and the members of his family and if the landlord offers reasonably suitable accommodation to the tenant for the needs of his family, the landlord's's claim for eviction shall be considered liberally.
24. In my view, whether the requirement of the landlord for providing for a person other than himself amounts to his need would depends upon facts and circumstances of each particular case it would not be possible or appropriate to lay down any hard and fast rule. Each case will be required to be decided on the peculiar facts and circumstances prevailing in that case. The decision in the case of Balbhadra Beharilal (supra) can undoubtedly be taken in aid for the proposition that the fact of marriage does not sever the blood relationship which exist between the father and his daughter and the existence of this relationship does give rise to certain moral obligations. Thus, through Geeta after her marriage may have walked out of the plaintiff 's house, the same would not necessarily lead to the conclusion that he can no longer claim the suit premises under section 13(1)(g) for her or that he cannot consider his earnest desire of providing for her as his need. In view of the above discussion, I am constrained to hold that the plaintiff has proved that he require the suit premise reasonably and bona fide.
25. As regards the next issue viz. the issue of comparative hardship, the plaintiff, at the very inception of the proceedings while issuing the suit notice dated 25th January, 1982 offered alternate premises. Pending the suit as also the appeal, at all stages, the offers were reiterated. In the present petition a further offer was made in terms of the latter dated 30th August, 1990, which I have already reproduced. The offer was a with prejudice offer. The alternate premises offered admeasure more than the area of the suit premises. They were offered on ownership basis. In my judgment, the offer made by the plaintiff is more than fair. The hardship, if any, on account of the said offer can be said to be completely mitigated. In my view, the attitude adopted by the defendant in refusing to consider the offers which have been consistently made by the plaintiff is a conduct which is sufficient to lead me to an inference that this is not a fit case for interference in my jurisdiction under Article 227 of the Constitutions. Hence, even if it were to be held that there is some merit in the contentions advanced on behalf of the defendant, this is not a case where I would be inclined to exercise my jurisdiction and interfere with the findings of fact arrived at by the Appellate Court. Consequently, I have no hesitation in answering the issue of comparative hardship in favour of the plaintiff and against the defendant.
26. In regard to the bar of section 25 of the Rent Act, reliance was placed on the case of Babubhai Mohanbhai v. Mahila Sahakari Udyog Mandir, . In the said case it has been observed:
"A requirement which runs in the teeth of section 25 and which, if established, may throw the landlord open to the risk of a prosecution cannot be called reasonable."
"Whether the requirement of the landlord is reasonable or not is to be judged from all the facts and circumstances of the case and a highly relevant circumstance bearing on the reasonableness of the landlord's requirement is that the purpose for which the possession is sought is a purpose for which the premises cannot be used save on pain of penal consequences. Courts ought not to construe a statute in a manner which will encourage the breach of any of its provisions and, most certainly, a decree ought not to be passed which , if honoured, will attract penal consequences."
27. There can hardly be any quarrel about the propositions laid down in the above case. As already stated, the suit premises are not going to be used by the plaintiff or his daughter Geeta in the very form in which they are in existence at present. The same are going to be demolished and a commercial complex is going to be raised in pursuance of the plans which are already sanctioned. The substantial portion of the newly constructed building is going to be utilised for running a lodge. Hence, the dominate user of the newly constructed premises will continue to be used for the residence of lodgers. Consequently, in my view, the passing of the decree would not run in the teeth of section 25 and will not throw the landlord open to the risk of prosecution.
28. In this context, reliance was also placed on the case of Annappa Appa Anuja v. Kingappa Parmeshwar Naik, reported in 1981(1) All India Rent Control Journal Page 677. In that case, it was held that if section 25 of the Rent Act, prohibits conversion of residential premises into non-residential then granting a decree will be opposed to the principles which has been legislated in terms of section 25. In that case residential premises were claimed for running a hotel business i.e. rice plate section. When section 25 was pressed into service as a bar to the passing of the decree. the landlord pressed his claim on the ground that the suit premises would be used for lodging his employees. Such a contention was dismissed as not borne out by the evidence and as an after-thought. In the circumstances, the claim of the plaintiff was held to be barred by the provisions of section 25. In my judgment, the said case cannot be pressed into service to defeat the claim of the plaintiff in the instant case, as the claim in the aforesaid case was clearly for running a hotel (for services of rice plates) in residential premises.
29. Further reliance was placed on the case of Laxmi Co op. Bank v. Mohan, reported in 74 B.L.R. Page 186. In that case, the landlords claim for possession of residential premises for the purpose of non-residential viz. of running a Bank was held as unreasonable and not bona fide. For the reasons already stated, this case also can have no bearing in the matter of deciding the case at hand. In the result, I hold that section 25 will not be a bar to the passing of a decree for possession under section 13(1)(g).
30. The only contention which now remains to be considered is the one regarding the direction passed by the Appeal Court calling upon the Trial Court to record additional evidence and remit the same without calling upon the Trial Court to record its findings. In my judgment, such a course is fully justified by the provisions of Order 41, Rule 28 which provides:---
"R. 28. Mode of taking additional evidence. Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."
In view of the above provision, I find that the contention advanced on behalf of the defendant regarding prejudice is devoid of any merit and the same is rejected.
31. In view of the aforesaid discussion, I have no hesitation in confirming the decree passed by the Appeal Court in favour of the plaintiff under section 13(1)(g) of the Rent Act.
32. In regard to Writ Petition No. 4257 of 1989 filed by the plaintiff, I find that the learned Judges of the Appeal Court have clearly erred in passing a conditional decree for possession. Under the impugned order, the plaintiff has been ordered to provide alternate accommodation of specified dimensions and on specified rent and in specified areas. The plaintiff has been awarded a decree for possession on the condition of his providing alternate accommodation. On his failure to provide alternate accommodation within the stipulated time his suit for possession has been directed to stand automatically dismissed. In my judgment, the learned judges of the Appeal Court have clearly erred in passing such a conditional decree. This is not contemplated by any of the provisions of the Rent Act. I may observe that even during the course of my delivering the judgment and at this stage the learned Counsel appearing on behalf of the plaintiff reitererated his offer made by his letter dated 30th August, 1990. I enquired with the learned Counsel appearing on behalf of the defendants whether the defendant even at this stage would be inclined to accept this offer. While so doing, I made it clear that I am inclined to allow the petition of the landlord and set aside the conditional decree passed by the Appeal Court. The learned Counsel after taking instructions from the defendant, who is present in Court, stated that the defendant is not inclined to accept any of the premises which are offered by the letter dated 30th August, 1990.
33. It has been held in the case of Karuna Shankar Bholabhai v. Sagarmal Rajmal, reported in 1981 Bom.R.C. Page 57 that:
"If alternative premises are earlier offered then there is no injunction on the landlord to ensure that the offer is to be kept open till such time as the proceedings in any further appeal and further writ proceedings are disposed of."
In the present case, though the offer was made even at the present stage, the same unfortunately has been turned down by the tenant and for reasons best known to him. Since there is no provision in the Rent Act for passing a conditional decree, that part of the decree passed by the Appeal Court deserves to be set aside, and Writ Petition No. 4257 of 1989 is consequently allowed.
34. In the result, Writ Petition No. 293 of 1989 filed by the defendant is dismissed and the rule is discharged, whereas Writ Petition No. 4257 of 1989 filed by the plaintiff is allowed and the rule is made absolute and the plaintiff's suit for possession under section 13(1)(g) of the Bombay Rent Act is decreed with costs through out.
35. On the application of Shri Sakhare on behalf of the defendant, the interim stay of the execution of the impugned decree is extended for a period of ten weeks from today.