Bombay High Court
Smt. Induabai Wd/O Madhukar Deshmukh ... vs Shri Gopikisan S/O Jethamal Kalantri on 15 March, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5762 OF 2015
PETITIONERS: 1. Smt. Indubai Wd/o Madhukar
(Ori. Plaintiffs) Deshmukh, Aged about 67 years, Occ:
Household,
2. Shri Chandan S/o Madhukar Deshmukh,
Aged 38 years, occ: Business,
3. Shri Manoj S/o Madhukar Deshmukh,
Aged 36 years, Occ: Business,
4. Shri Ravindra S/o Madhukar Deshmukh,
Aged 34 years, Occ: Business,
All residents of Chamorshi Road,
Gadchiroli, Tehsil and District
Gadchiroli.
-VERSUS-
RESPONDENTS: Shri Gopikisan S/o Tethamal Kalantri,
(Ori. Aged about 71 years, Occ: Business, R/o
Defendant)
Vyankatesh Kirana Shop, Gadchiroli,
Tehsil & District Gadchiroli.
Shri V. S. Kukday, Advocate for the petitioners.
Shri M. P. Khajanchi, Advocate for respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: MARCH 20, 2018.
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ORAL JUDGMENT :
1. Rule. Heard finally with consent of Counsel for the parties.
2. The petitioners are the original plaintiffs who had filed suit for eviction of the respondent on the ground that the suit property occupied by the respondent as a tenant was required for bonafide use of the petitioners. The trial Court by its judgment dated 28-4-2006 decreed the suit and directed the respondent to deliver vacant possession. In the appeal filed by the respondent, the appellate Court held that the bonafide need of the petitioners was duly proved and that greater hardship would be caused to them if the respondent is not evicted. The appeal was however allowed and the suit filed by the petitioners was dismissed on the ground that the provisions of Section 106 of the Transfer of Property Act, 1882 (for short, the Act of 1882) were not complied with while issuing notice to the respondent. The petitioners filed an application for review which came to be allowed and the appeal filed by the respondent came to be dismissed. Being aggrieved the respondent had approached this Court by filing Writ Petition No.1050/2009. By judgment dated 14/15-9-2015, this Court allowed the writ petition and held that the appellate Court had no power to review its judgment. After setting aside the judgment ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 3/10 passed on the review application, the judgment dated 23-3-2007 allowing the appeal filed by the respondent was restored. Pursuant to the adjudication in the said writ petition, the petitioners - original plaintiffs have challenged the judgment of the appellate Court.
3. Shri V. S. Kukday, learned Counsel for the petitioners submitted that the appellate Court was not justified in non-suiting the petitioners on the ground that the provisions of Section 106 of the Act of 1882 were not complied with. He submitted that as the eviction of the respondent was sought on the ground that the petitioners had bonafide need of the suit property, it was not necessary to issue any notice whatsoever before filing the suit under provisions of Section 16(1)(g) of the Maharashtra Rent Control Act, 1999 (for short, the Act of 1999). He therefore submitted that the bonafide need of the petitioners having been upheld by both the Courts, the decree in favour of the petitioners was liable to be passed. Hardship to the respondent was much greater than that to the petitioners. Therefore, the appellate Court ought to have held that the bonafide need of the petitioners was not duly proved. In support of his submissions the learned Counsel placed reliance on the decisions in Bhupinder Singh Bawa v Ashga Devi 2017 ALL SCR 1237 and Mehmooda Gulshan Vs. Javaid ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 4/10 Hussain Mungloo 2017 ALL SCR 1352.
4. Shri M. P. Khajanchi, learned Counsel for the respondent fairly did not dispute the settled position that while seeking eviction of a tenant under provisions of Section 16(1)(g) of the Act of 1999, notice under Section 106 of the Act of 1882 was not required to be issued. He however submitted that the findings recorded by the appellate Court on the question of bonafide need of the petitioners were perverse and were being challenged by the respondent. As the final order was in favour of the respondent, the said challenge was being raised while opposing the writ petition and supporting the ultimate conclusion recorded by the appellate Court. In that regard it was submitted that before the appellate Court additional documents came to be filed along with the affidavit at Exhibit-45. As the additional evidence was refused to be taken into consideration by the appellate Court, the petitioner had challenged the same in Writ Petition No.5348/2006. This Court in the earlier round of litigation in Writ Petition No.5348/2006 had directed the appellate Court to consider the document in question on its own merits. According to him, the appellate Court without following the procedure prescribed under provisions of Order XLI Rule 28 of the Code of Civil Procedure, 1908 proceeded to decide the appeal ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 5/10 which course has caused prejudice to the case of the respondent. He submitted that the need of the petitioners was fully satisfied and the same did not survive in view of the contents of the affidavit at Exhibit-21. The appellate Court despite the directions issued by this Court in Writ Petition No.5348/2006 failed to consider the additional evidence in its proper perspective and therefore the finding recorded in favour of the petitioners was liable to be set aside. Hardship to the respondent was much greater than that to the petitioner. Therefore, the appellate Court ought to have held that the bonafide need of the petitioners was not duly proved. In support of his submissions the learned Counsel placed reliance on the decisions in Hasmat Rai and another Vs. Raghunath Prasad (1981) 3 SCC 103 and Sheshambal vs. Chelur Corporation and others 2010(3) SCC 470.
5. I have heard the learned Counsel for the parties at length and I have given due consideration to their respective submissions. In so far as the finding recorded by the appellate Court that the notice issued by the petitioners was not in compliance of the provisions of Section 106 of the Act of 1882 before filing the suit for eviction on the ground of bonafide need of the respondent is concerned, it is well settled that a suit seeking eviction of the tenant on the ground of bonafide need is not ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 6/10 required to be preceded by any notice to the tenant. Reference in this regard can be made to the decision in Madhukar Laxman Umalkar Vs. Keshao Laxman Shilawant 2005 (3) Mh. L. J. 947. It is only when the eviction is sought on the ground of the tenant being in arrears of rent thus giving a cause to the landlord to seek eviction on that ground that a notice under Section 15(2) of the Act of 1999 is required to be given. The appellate Court therefore was clearly in error in coming to the conclusion that the suit was liable to be dismissed for want of a valid notice to the tenant. The finding recorded to that effect cannot be sustained and the same is therefore set aside.
6. As regards bonafide need of the petitioners, it was pleaded that the suit property which was a shop in occupation of the respondent was required bonafidely for the petitioners who were jobless and they intended to start their own business. It was pleaded that the plaintiff no.3 has started bakery business which was sought to be expanded. The plaintiff no.4 was an Engineering Graduate while the plaintiff no.2 was jobless. It was therefore pleaded that by obtaining financial assistance the need of the plaintiffs could be satisfied by starting some business. It was further pleaded that the defendant was owning a building that was situated at a distance of about 200 meters from the suit shop and ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 7/10 that no hardship would be caused to him if he was evicted. The trial Court after considering the evidence on record held in favour of the plaintiffs. It was found by the trial Court that the plaintiff Nos.2 and 4 were unemployed and did not have any source of income. The plaintiff no.3 had started his Bakery which was receiving good response and he desired to expand that business. After considering admission of the defendant in his cross- examination that the defendant was owning separate property it was held that greater hardship would be caused to the plaintiffs.
7. Before the appellate Court affidavit dated 26-9-2006 was filed by the respondent in which it is stated that the plaintiff no.4 had in April, 2006 gone to London for his higher education The wife of plaintiff no.2 was employed at Gadchiroli as a teacher since last six to seven months. As noted above, the aforesaid affidavit was sought to be relied upon by way of additional evidence alongwith certain documents. This Court in Writ Petition No.5348/2006 permitted the respondent to place on record the documents in question and directed the appellate Court to consider the same on its own merits. The appellate Court while considering the application at Exhibit-101 referred to the contents of the affidavit at Exhibit-21 and in paragraph 11 discussed the said affidavit. It is on this premise that it has been urged by the ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 8/10 learned Counsel for the respondent that while considering these documents, the appellate Court ought to have followed the course prescribed by provisions of Order XLI Rule 28 of the Code and directed the parties to lead additional evidence. This contention cannot be accepted in view of the fact that even if it was accepted that the plaintiff no.4 had gone to London in April, 2006 for further studies and wife of the plaintiff no.2 was in the employment, the same would not mean that the bonafide need as pleaded was satisfied. As noted above, the need of the plaintiffs had been pleaded. The defendant No.3 who had started Bakery business wanted to expand the same while the plaintiff no.2 was jobless. Merely because the plaintiff no.4 had gone abroad for higher education and the wife of the plaintiff no.2 was employed, the same would not mean that even the need of the plaintiff nos.2 and 3 was fully satisfied. Even if it is accepted that the contents of the affidavit at Exhibit-21 were duly proved, there is no material on record to indicate that on that count the need of the plaintiff Nos.2 and 3 stood satisfied. The reliance placed in this regard on the decisions in Mehmooda Gulshan and Bhupinder Bawa (supra) supports the case of the petitioners inasmuch as the need as pleaded was of the entire family and the same was found to be genuine. The landlord being the best judge of his need and both ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 9/10 the Courts having found that this need was bonafide, that finding of fact does not deserve to be interfered with. Though it is true that the need of the landlord should continue to exist even at the appellate stage as held in Hasmat Rai and another (supra) there is no material on record to indicate that the need even of the plaintiff Nos.2 & 3 was duly satisfied on account of any subsequent events. For the same reason, decision in Sheshambal through legal heirs (supra) does not support the case of the respondents.
8. As regards hardship being caused to the tenant, both the Courts have found that the tenant had admitted that he was owning a separate building at Chamorshi and therefore no hardship would be caused to him if he was evicted. It has not been denied that the tenant does not own alternate premises. In that view of the matter the finding that hardship would not be caused to the tenant on account of eviction does not deserve to be interfered with.
9. It is therefore found that both the Courts have rightly held that the bonafide need of the petitioners was duly proved and that the grater hardship would be caused to them if the decree for eviction is not passed. The appellate Court despite recording this finding erroneously dismissed the suit on the ground that a valid notice had not been issued before filing the said suit. ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 ::: WP5762.15.odt 10/10
10. In view of aforesaid adjudication, the following order is passed:
(1) The judgment in Regular Civil Appeal No.37/2006 dated 25-2-2008 is quashed and set aside. (2) The judgment in Regular Civil Suit No.78/2004 dated 28-4-2006 stands restored.
(3) The writ petition is allowed by making the Rule absolute. However the respondent is granted time of three months to hand over the possession of the suit premises to the petitioners.
There would be no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 05/04/2018 ::: Downloaded on - 21/05/2018 10:44:36 :::