Bombay High Court
Tarachand Hassaram Shamdasani vs Shri Durgashankar G. Shroff And Ors. on 12 August, 2002
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT
1. This writ petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree dated 30.3.1991 passed by the 8th Additional District Judge Pune in Civil Appeal No. 60 of 1987.
2. The original Respondent No. 1 is the owner in respect of the premises situated at House No. 76, Mahatma Gandhi Road, Pune, which consists of ground plus two floors. The said house was let out to the Petitioner's predecessor Shri Hasaram Shamdasani sometime in 1939. The rent note Exh.117 dated 11.6.1939 indicates that the said suit property was let out to the Petitioner's father for business cum residence purpose. After the premises were let out, the Petitioner's father started using the ground floor for business and upper floor for the residence. It is not in dispute that the original Respondent No. 1 purchased the suit property sometime in 1946 and the tenancy in respect of the demised premises was attorned in his favour. The Petitioner's father died on 21.7.1978. It is the case of the Petitioner that during the life time of his father, business on the ground floor was conducted as partnership firm of which the Petitioner was also one of the partner. Further, after the death of his father the Petitioner continued to occupy the demised premised and the business of partnership in the name of M/s. A. Hassaram and Company is continued. It is however, on 30.12.1978, the Respondent No. 1 issued demand notice purported to be under Section 12 of the Bombay Rent Act which was received by the Petitioner. On receipt of the said notice the Petitioner immediately sent reply on 12.1.1979 denying the material allegations therein. Later on, the original Respondent No. 1 instituted suit in the Court of Small Causes Court, Pune bearing Civil Suit No. 925/1980 claiming possession of the suit property initially on the ground of default under Section 12; tenant having acquired suitable accommodation under Section 13(1)(l); and bonafide and personal requirement for his own business under Section 13(1)(g). However, the plaint as filed on 14.4.1980 was sought to be amended by the original Respondent No. 1 on 4.4.1985 by introducing one more ground for eviction, namely, that the tenants have constructed a bathroom of a permanent nature on the south east corner of the ground floor of the premises admeasuring 6ft.x3ft.x8ft. unauthorizedly, illegally and without the consent of the landlord, thereby contravening Section 13(1)(b) of the Act. After this amendment was carried out, the suit proceeded for trial. The original Respondent No. 1 entered the witness box on 3.2.1983. Later on, the Respondent No. 1 came out with an amendment application on 15.2.1986 asserting that the suit premises were also required for his residence having regard to the growing requirement of his family which already consisted of 3 married couples and one son was likely to be married very soon. The suit was resisted only by the Petitioner/Defendant No. 2. The Petitioner, inter alia, contended that none of the grounds pressed into service were available to the landlord. In so far as the ground of bonafide requirement for his own business was concerned, the Petitioner specifically asserted that the same was false claim set up by the Plaintiff. In the written statement, the Petitioner specifically asserted the fact that the landlord did not disclose that he was owner and in possession of three other properties. Be that as it may, after the abovesaid proposed amendment at the instance of the landlord was allowed, the Trial Court proceeded further. The original Respondent No. 1 entered the witness box as P.W.1. In his examination in Chief he made no mention about the other properties owned and possessed by him either residential or commercial. This was inspite of the objection taken by the Petitioner in the written statement. It is only because of the said written statement, the landlord perhaps was advised to amend the plaint by incorporating the personal requirement also for residence of himself and his family members. None the less, even in the examination-in-chief no disclosure has been made about the relevant fact that the landlord has secured and in possession or otherwise of any other property. In the cross-examination, however, the landlord was confronted with various properties owned by him, which fact is admitted. No doubt, in the cross examination he has made an attempt to offer explanation in respect of House No. 525 Centre Street and House No. 521 Vallabhai Patel Street. However, in respect of most of the other properties, there is no explanation offered whatsoever. None the less, the Trial Court proceeded to decree the suit in favour of the Respondent No. 1 on the ground of bonafide requirement and also on the ground that the tenant has constructed permanent structure, namely, bathroom unauthorizedly and that the tenant has acquired alternate suitable premises for residence. It is relevant to note that, before the Trial Court the ground of default was given up. The Trial Court accordingly decreed the suit by its Judgment and decree dated 19.12.1986. Against this decree the Petitioner-tenant preferred appeal before the District Court at Pune bearing Civil Appeal No. 60 of 1987. The Appellate Court affirmed the findings and conclusions reached by the Trial Court and maintained the decree for possession on the self same grounds as held by the Trial Court. In the result, the appeal preferred by the Petitioner was dismissed by the impugned Judgment and decree dated 30.3.1991. It is against this concurrent decisions the present writ petition under Article 227 of the Constitution of India has been filed.
3. Mr. Dalvi for the petitioner mainly contends that in so far as the ground that the tenant has acquired alternate suitable residence within the meaning of Section 13(1)(l) of the Act is concerned, the same is in applicable to the fact situation of this case. Inasmuch as, it is established on record that the suit premises were let out to the tenant for composite use of business cum residence and in such a case Section 13(1)(l) cannot be pressed into service. In so far as the ground of tenant having constructed bathroom in the suit premises unauthorizedly, Mr. Dalvi contends that the conclusion reached by the Courts below on this issue is unsustainable both in fact and in law. He submits that there is no legal evidence to establish the basic fact that the tenant had in fact made any construction and that the conclusion reached by the Courts below on this issue is very casual and manifestly wrong as can be demonstrated from the materials on record. In so far as the ground of bonafide and reasonable requirement is concerned, he submits that, in the present case, the Courts below have completely over looked the fact that the landlord did not disclose the necessary particulars which were relevant and crucial for deciding that issue. He submits that, in the first place, the landlord approached the Court with vague pleadings and that too only for bonafide and reasonable requirement for his own business but when he was confronted with the ownership and possession of other commercial properties, he amended the plaint by setting up a new plea of bonafide and reasonable requirement also for his residence and for his family members in view of the growing need. Once again while doing so, the landlord did not furnish any details nor disclosed the relevant facts about the ownership and possession of other premises which fat was material and relevant to examine the question whether the need set up by the landlord was bonafide and reasonable. He submits that under the scheme of the provisions of Bombay Rent Act, requirement of the landlord should not only be established to be bonafide but also reasonable one. For that purpose disclosure of acquisition and ownership of all the properties by the landlord in the pleading and in any case in his examination-in-chief was imperative. It was also necessary for the landlord to specifically assert that inspite of the fact that he owns and possesses other properties, the requirement of the suit premises was bonafide and reasonable, only then the issue can be answered in favour of the landlord. He submits that it is well settled that the landlord is required to give all the necessary particulars relevant for deciding the issue of bonafide and reasonable requirement. To buttress this submission he has relied on the decision of this Court reported in 1979 Mah. L.J. 545 in Sukhdeo Krishnarao Gathode v. Laxmibai Dattatraya Mohoril and 1982 Mah. L.J. 647 in Abdul Samad Makhadum Baksh Shaikh v. Sudha Akant Parakhe. Besides he has placed reliance on the decision of the Apex Court in the case of S.P. Chengal Varaya Naidu (dead) by L.R.s v. Jagannath to contend that the material facts which were necessary for full, complete and effectual adjudication of the issue of bonafide and reasonable requirement were suppressed by the landlord, obviously with the purpose to gain advantage on the other side, namely, the Petitioner/tenant, and, having done so, the Respondent-landlord has indulged in playing fraud on the Court as well as on the opposite party. He submits that non disclosure of all the relevant and material facts was obviously an act of deliberate deception with the design of securing something by taking unfair advantage of another. According to him, non disclosure of material fact is an act of abuse of process of the court. He, therefore,submits that in such situation, the court is duty bound to throw the landlord out of court even at this stage in exercise of writ jurisdiction under Article 227 of the Constitution of India.
3A. On the other hand, the learned counsel for the Respondent No. 1 landlord submits that the two courts below have returned concurrent findings of fact on the relevant issues and it is not open for this court to reappreciate the evidence on record and over turn the concurrent findings of fact. Mr. Gokhale submits that the jurisdiction of this Court is limited to see that the inferior court or the Tribunal functions within the limits of its authority and to correct an error apparent on the face of the record much less an error of law. In support of this contention he has placed reliance on the decision of the Apex Court in the case of Mohd. Yunus v. Mohd. Mustaqim and Ors. as well as in the case of Mrs. Labhkumar B. Shaha and Ors. v. Janardhan Mahadeo Kalan and Anr. . The learned counsel further submits that, in any case, the finding relating to the ground under Section 13(1)(l) that the tenant has acquired alternate suitable residence, the same is unexceptionable; and, even that ground alone was good enough to reject this writ petition. He further submits that even in a case of tenancy created for composite user, namely, business and residence, the ground under Section 13(1)(l) is available to the landlord. In so far as ground of tenant having constructed bathroom is concerned, the learned counsel submits that even that issue will have to be answered against the Petitioner tenant and no fault can be found with the concurrent finding of fact recorded by two courts below. He submits that even assuming that there is some error here or there in the decision of the courts below, that is not enough for this court to invoke jurisdiction under Article 227 of the Constitution of India. In so far as the ground of bonafide and reasonable requirement is concerned, the learned counsel submits that the landlord has approached the Court with a clear plea that the suit premises were required for his personal use for business. He submits that in fact the landlord was under a mistaken belief that the pleading was sufficient even to press the personal requirement for the residence for himself and himself and his family in view of the growing need. He submits that in that backdrop permission to amend the pleadings was granted by the Court below. According to him the order allowing amendment has not been challenged, therefore, it will not be open to the Petitioner-tenant to now challenge that position and particularly when the tenant has allowed the evidence to be let in on all material aspects. He further submits that the tenant having permitted to let in evidence, it is not open for him to challenge the correctness of the proceeding and that too on the ground that it is a case of abuse of process. According to him, the plea of abuse of process has not been raised either before the Trial Court nor before the Appellate Court and much less in the memo of the writ petition. Therefore, this court ought not to consider as to whether the proceeding resorted to by the Respondent landlord are in the nature of fraud either on the court or on the Petitioner tenant. He further submits that in the present case assuming that it is possible to contend that the pleadings in respect of ground of bonafide and reasonable requirement is vague, however, vagueness in pleading cannot be a ground to defeat the claim or non suit the landlord for the first time before this court in writ jurisdiction. He submits that the parties have adduced evidence before the court having understood each other's case very well and in such situation vagueness in pleading cannot be a ground to non suit the landlord. Reliance is placed on the ruling reported in 1990 B.C.R. 326 in Waman Pingale v. Sitaram Nathu Shimpi. According to the learned counsel there is no substance in this writ petition and the same deserves to be dismissed.
4. Having considered the rival submission, I shall first advert to the ground under Section 13(1)(l) of the Act. Indeed both the Courts below have elaborately examined the matter and found that the Petitioner tenant has secured alternative accommodation both for business as well as for residence and, therefore, the decree for possession was granted. However, to my mind, the test applied by both the Courts below is wholly incorrect. Whereas, on plain language of the provision, the ground under this provision is available only when the demised premises were let out for residential purpose only. This is the settled legal position. It will be useful to refer to Dr. Gopaldas Verma's case . To put it differently, this ground would come into play only in respect of premises let out for residential purpose only and not in relation to tenancy created for business or for that matter composite tenancy for business cum residence. If we were to hold otherwise, that would be rewriting the provision and against the legislative intent. To my mind, therefore, when tenancy is created for business purpose or composite tenancy for business cum residence; And if such a tenant were to acquire alternative premises even then it would not create any right in favour of the landlord to get back possession of the demised premises by invoking Section 13(1)(1) of the Act as such. None of the Courts below have examined this aspect of the matter. Whereas this is the crucial test to be applied for invoking Section 13(1)(1) of the Act. In the present case, it has been established from the record that the tenancy in respect of the demised premises was initially created in 1939 for composite user of business cum residence. The rent note (Exh.117) establishes this position, besides the other evidence on record. Besides, in this case the Plaintiff has neither pleaded that the dominant purpose for letting out the demised premises was for residence nor any attempt was made to adduce evidence to establish that fact. Moreover, no such argument was canvassed or considered by the courts below. A priori, Section 13(1)(1) will have no application to the case at hand. Therefore, although two Courts below have answered this issue in favour of the landlord, the said view cannot be sustained and will have to be overturned.
5. That brings me to the next ground of tenant having constructed bathroom in the suit premises unauthorizedly. In so far as this ground is concerned, no doubt, two Courts below have answered the same against the tenant but it will be necessary to analyze as to how the matter has proceeded. This ground was not taken in the plaint as filed, but it is only by way of amendment of the plaint, this ground came to be asserted in Para 8(a), which amended reads thus:
"8(a) The Defendants have also constructed a bathroom of a permanent nature on the south east corner of the ground floor of the suit premises admeasuring 6ft.x3ft.x8ft. unauthorizedly, illegally and without the consent of the Plaintiff and against the provisions of Rent Act and hence on that ground also Plaintiff is entitled to claim and get possession of the suit premises."
There is no assertion of the material fact that the tenant has constructed the bathroom of permanent nature recently or otherwise. Be that as it may, when the matter went for trial the evidence that has been brought on record by P.W.1 in this behalf in Para 5 of examination-in-chief, which reads thus:
"The defendants have also constructed a bathroom of permanent nature on the south east corner of the ground floor unauthorizedly and without my consent in writing. The Pune cantonment board had issued me a notice regarding this unauthorized construction of bathroom. I therefore, terminated the tenancy of the defendants and then filed the present suit".
Even during the evidence no details are given as to when the offending construction has been carried out by the tenant. This is relevant in the context of the fact that the specific case of the tenant was that the bathroom has been in existence in the suit premises right from the inception of the tenancy. It is further asserted that there is no other bathroom in the suit premises and if that be so, it is incomprehensible that the bathroom has been constructed recently when the suit premises are in occupation of the tenant since 1939. Besides, in the cross examination P.W.1 was specifically confronted with the fact as to whether before issuance of the so-called notice received by him from the Cantonment Board any inspection was carried out by the officer of the Cantonment Board, to which the landlord P.W.1 was not in a position to answer. Moreover, suggestion has been put to him that the notice has been issued by the Cantonment board at his instance which obviously he has denied. Therefore, it is suggested to the landlord that the ground set up by him was dishonest. What is relevant to note is that there is nothing on record to indicate that such notice was issued to the tenant. It is incomprehensible that the authorities would issue notice only to the landlord without putting the occupant of the premises to notice about the alleged illegality or irregularity. The fact that the landlord has received the notice from Pune Cantonment Board and he has paid fine of Rs. 100/- cannot, by itself, be sufficient to establish the factum that bathroom has been constructed only recently as has been found by the courts below. That is not the case either pleaded or proved by the Respondent landlord. None the less, the two Courts below have proceeded to answer the said issue against the tenant. The Trial Court has dealt with this issue in Para 15. The only reason which has weighed with the Trial Court is that the landlord had received notice from the Cantonment Board and that the landlord was required to pay fine. No other aspect has been considered by the Trial Court. The Trial Court has failed to analyze the oral evidence which has come on record. This finding, as recorded by the Trial Court, has been affirmed by the Appellate Court in Para 14 of the impugned Judgment. The Appellate Court has dealt with this issue, to my mind, in a very casual manner. Even the Appellate Court has not made any attempt to advert to the relevant evidence on record. If this be so, the conclusion reached by the two Courts below on this ground cannot be sustained either on fact or in law so as to decree the suit for possession under Section 13(1)(b) of the Act, for the courts below have committed manifest error which has caused serious miscarriage of justice.
6. That takes me to the last ground of bonafide and reasonable requirement. I have already broadly adverted to as to how the matter proceeded before the Courts below. In so far as this ground is concerned, in the plaint, as filed, the only assertion with regard to this ground can be discerned from Para 7. The same reads thus:
"7. On the other hand the Plaintiff honestly required the suit premises for his bonafide requirements. The Plaintiff is at present doing business in Partnership with Shri. Suresh Achaldas Shroff and others. The said Shri. Suresh Achaldas Shroff is young and head strong and it has become difficult for the Plaintiff to do business with him and other partners. The Plaintiff and the said Partners are running the Partnership business in the premises owned by said Shri. Suresh Achaldas Shroff and his family members. The said Shri. Suresh Achaldas Shroff is after the Plaintiff to dissolve the said Partnership and vacate the Premises, where the Plaintiff is carrying on the said business. In the circumstances, the plaintiff has no other alternative but to start his own business in his own premises. On request of the said. Hassaram, the Plaintiff some how managed to pull on with the said Shri. Suresh Achaldas Shroff but now, it has become impossible to do so. Thus, the Plaintiff requires the suit premises honestly and bonafidely to start his own business in his own premises".
On plain reading of the above averments, it is seen that the requirement pressed into service by the Plaintiff was only for his business in his own premises. The background of that requirement as pressed into service was that, his nephew Suresh Achaldas who was partner alongwith him in other premises, which premises, however, has been described only during the evidence as C.T.S. 545 at Cantonment Street, Pune, owned those premises wherein partnership business was conducted and that the said Suresh has asked him to vacate these premises. It is further averred that the Plaintiff has no other alternative but to start his own business in his own premises. When the Plaintiff went to the Court with this specific plea, the Petitioner-tenant filed written statement denying the bonafide and reasonableness of that need of the landlord. The petitioner then clearly asserted that besides the premises owned by the said Suresh in which partnership business was being conducted, the Plaintiff owns other three premises. In this context, it would be appropriate to advert to the averments in Para Nos. 3 to 7 of the written statement. In other words, the Petitioner tenant exposed the plaintiff of the falsity of his claim that he had no other premises much less commercial premises where he could start his business. It is only thereafter and more particularly after the plaintiff had already stepped into the witness box, the plaintiff thought it appropriate to amend the plaint. By that amendment, the Plaintiff wanted to make out a new case that the suit premises were also required for residence by him for himself and his family members in view of the growing requirement of the family which consisted of three couples and one unmarried son who was likely to get married very soon. The amendment carried out in this behalf reads thus:
"7A. The Plaintiff are in occupation of three room premises in addition to small kitchen with a bathroom therein. There are nine members in the plaintiff's family namely plaintiff and his wife, two in and their respective wives and unmarried son and two grant children. Thus there are three married couples in the plaintiff's family as on today. The engagement of the plaintiff's youngest son has been performed and is to be married in the near future. Because of insufficient accommodation the plaintiff and his family members do not have any privacy. The relation between the plaintiff's wife and his daughter-in-law have been strained due to lack of sufficient accommodation, lack of privacy and other reasons and hence plaintiff's married sons are in need of separate accommodation".
"Thus considering the present and eminent future requirement of the plaintiff and his family members, plaintiff also reasonably and bonafide requires the suit premises for their residence. If the decree of possession is granted in favour of plaintiff, defendants do not suffer any hardship in as much as they have their own independent accommodation."
What is relevant to note is that the plaintiff swiftly changed his stand regarding the nature of his requirement; and, moreover, in spite of serious objection taken by the Petitioner regarding non disclosure of relevant materials which were necessary to decide the issue of bonafide and reasonable requirement, however even during the examination-in-chief the Plaintiff, who had stepped into the witness box as P.W.1, did not think it necessary to make disclosure of all the relevant material fats relevant and crucial for deciding the issue of bonafide and reasonable requirement. It is however, only during the cross examination that the plaintiff was confronted with those material facts when he had to admit that he also owned various other premises, to wit- a House No. 597 Sachapir Street which was located in business locality in Central area and had potential for opening business therein which consisted of four blocks and garage. The Plaintiff also accepted that he owned House No. 489 Centre Street, Pune. It has come in his evidence that the ground floor in this building can be used for commercial purpose, whereas the upper floor can be used for residence. The Plaintiff also admitted that he owned house No. 1553 at Bhimpura which is a two storied building consisting of 4 rooms on each floor. This building also can be used for residence. The Plaintiff also admitted that he owns house No. 1420 at Bhimpura which is single storey building consisting of three rooms. Besides the plaintiff was also in possession of the first floor in House No. 6A Ambedkar road which consisted of three bed rooms, whereas, the ground floor in that building was in possession of tenant Sara Raut against whom decree for eviction has already been passed and further admitted in cross examination in Para 20 that, he has received possession of the said premises from the tenant. Besides, the plaintiff has also admitted in evidence that he owns house No. 1243 at Mochi Mohalla which is two storeyed building consisting of four rooms on each floor. That building can be used for residence. These facts were indeed relevant for deciding the issue of bonafide and reasonableness of the requirement of the Plaintiff, but were not disclosed either in the pleadings or atleast in the examination-in-chief when the Plaintiff entered the witness box. However, were elicited only during the cross examination conducted by the Defendant-tenant. This was possible only because all these details were within the knowledge of the Defendant-tenant. In spite of such overwhelming evidence on record, the Courts below have proceeded to answer the issue of bonafide and reasonable requirement in favour of the Respondent landlord. That cannot be countenanced, to say the least.
8. To my mind, however, it is obligatory for the landlord to disclose in the pleadings and in his evidence the fact that he owns other premises which were capable of being utilized for the requirement pressed into service in the suit filed against the tenant and to further disclose and explain that inspite of those acquisitions and ownership of other premises, the requirement which is pressed into service against the tenant would still survive. It is only then the landlord would be entitled to invoke this ground and would succeed in establishing his need to be bonafide and reasonable.
9. I have no hesitation in taking the view that in the fact situation of the present case the Plaintiffs has failed to plead and also depose in his evidence (examination-in-chief) about the ownership of other premises capable of being used for the requirement pressed into service in the subject suit. Besides, he has failed to disclose and explain that even the other premises were not sufficient to satisfy the requirement pressed into service in the suit against the tenant. Only when the landlord pleads and proves all these material facts that the Court would be able to adjudicate fully, completely and effectually as to whether the requirement pressed into service by the landlord in the suit so filed is bonafide and reasonable. As mentioned earlier, it is well settled that the landlord is not only required to establish his need to be bonafide but also to be reasonable. If the landlord fails to plead or establish either of this ingredient then the ground under Section 13(1)(g) of the Act for eviction is unavailable to the landlord. Inherent in this test is that if the landlord has failed to disclose relevant materials in the pleading and in his evidence (examination-in-chief), dejure, the landlord has not approached the court with clean hands. In such a case, it will be the duty of the court to non-suit the landlord with regard to this ground. It will be useful to place reliance on the enunciation of the Apex court in the case of S.P. Chengalvaraya Naidu's case (supra). The Apex Court has observed that duty is cast upon the Plaintiff to disclose all the facts, it is the duty of the Plaintiff to come to Court with true case and prove it by true evidence. The Apex Court has further observed that deliberate deception with the desire of securing something by taking unfair advantage of another, it is a deception in order to gain by another's loss, it is a cheating intended to get an advantage. Further, in Paragraph 6 it has observed that, non disclosure of all the material and relevant facts at the trial tantamount to playing fraud on the Court. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. Withholding of any vital document in this case information, in order to gain advantage on the other side then he would be guilty of fraud on the Court as well as on the opposite party. Such a person can be summarily thrown out at any stage of the litigation. If this principle is to be applied to the facts of the present case, I have no manner of doubt that the Respondent-Landlord will have to be non suited on this ground. Because, it is a case of non disclosure of material facts and information, therefore, one of approaching the Court with unclean hands. And as observed by the Apex Court tantamount to playing fraud on the court as well as the opposite side. In this case sheerly because the Petitioner tenant was vigilant enough, could muster the necessary information to confront the Respondent landlord regarding his need being note bonafide and reasonable. What is relevant to note is that during the cross examination the Plaintiff not only conceded that he owns and possessed other premises, but also conceded the fact that he had filed atleast three suits against some other tenants and, in all the three suits he has succeeded in getting the decree for possession. As a matter of fact, in the cross examination the plaintiff has admitted that he has obtained possession in respect of ground flor premises in the building in which he is presently staying situated at 6A Dr. Ambedkar road, from his erstwhile tenant. That premises is undoubtedly consisting of three rooms. This is crucial fact and ought to have been disclosed during the evidence since that event had happened prior to the Plaintiff entering the witness box. This fact by itself clearly indicates the need pressed into service by the landlord for himself and his family members was neither bonafide nor reasonable. Besides this premises, the landlord has also admitted in his evidence that the suit filed against the other two tenants Nanawani and Kanawala have been decreed in respect of the properties House No. 1420 at Bhimpura and House No. 597 Sachpir Street respectively. No positive evidence has been brought on record by the Plaintiff landlord that those premises are not in his possession. What is further relevant to note is that in so far as the House No. 489 Centre Street is concerned, the plaintiff has admitted in his cross examination at Para 13 that even that property is owned by him and the ground floor is commercial while the first floor is for residence. Moreover, during the examination in chief the Defendants' witness has positively stated in Para 11 that House No. 489 Centre Street, first floor is vacant. There is no cross examination on this material aspect. The learned counsel for the Respondent landlord is not in a position to point out from the cross examination or other evidence to counter this position. Taking over all view of the matter, the inescapable conclusion is that the case as pleaded by the Plaintiff has not been proved. On the other hand, the evidence on record would clearly show that the landlord has admitted that he is owner of the suit property and also in possession of other premises which can be used both for business as well as residence. Viewed in this perspective, no amount of any other reasoning can be of any avail to the Respondent-Plaintiff. In this view of the matter even the issue of bonafide and reasonable requirement will have to answered against the Respondent-landlord.
10. Be that as it may, the Trial Court has examined the issue of bonafide and reasonable requirement of the Plaintiff as well as the issue of greater hardship together in Para Nos. 9 to 13 of its Judgment. That again is inappropriate as both are substantive issues to be addressed independently. Besides, the Trial Court has found that the Plaintiff wanted to start some separate business so that his sons could be accommodated alongwith him. This has been observed in Para 10 of the Judgment by the Trial Court. However, that is not the case pleaded by the Plaintiff. In the plaint, specific case pleaded is that the Plaintiff wanted the suit premises for his own business and not to start separate business so as to accommodate his sons, as is observed by the Trial Court. In other words, the basis on which the Trial Court has proceeded to examine the matter is not even the case pleaded by the Plaintiff. This is again another manifest error committed by the Trial Court. Besides, although the Trial Court has adverted to all the acquisitions of the landlord but has not examined the matter in proper perspective which it ought to have had examined. To my mind, what is relevant to note is that, specific case is set up in the plaint as filed by the landlord, that one of the partner Shri Suresh has asked him to vacate the premises in which the partnership business was conducted; and that is the reason why he would require separate premises for doing his own business. However, the Trial Court has not examined the efficacy of the evidence or returned a clear finding with regard to that background set up by the landlord to justify his need as bonafide requirement. To put it differently, the foundation on which the requirement has been pressed into service has not been adjudicated. It was improper to proceed to decide the matter on the assumption that the fact as pleaded has been proved by the Plaintiff, as would be seen from Paragraph 12 of the Judgment of the Trial Court. At the end of that paragraph, the Trial Court was more concerned with the background of the defendant, rather than examining the fact as to whether the landlord has pleaded and proved the need being bonafide and reasonable as pressed into service. As such the Trial Court has committed manifest error and applied wrong tests in answering the issue against the tenant. The Trial Court in Paragraph 12 has adverted to the decision of the Supreme Court Phiroze Bamanji Desai v. Chandrakant Patel. However, to my mind, that Judgment is of no avail to the fact situation of the present case. In that case, the court proceeded to examine whether the landlord was in juridical possession of other premises. That ruling would be of no avail to the present case. In the present case, the landlord has admitted in evidence and that evidence would clearly establish the fact that the landlord is the owner and in possession of other premises besides the suit premises. It is therefore, not a case that he landlord is only in juridical possession as such, but a case of de facto or physical possession of the premises. And this aspect is relevant for deciding the issue of bonafide and reasonable requirement pressed into service by the landlord. Understood thus, the reasons indicated by the Trial Court while answering the issue of bonafide and reasonable requirement in favour of the landlord, to my mind, are completely mis-directed and founded on wrong test. As is observed earlier, the Appellate Court has merely affirmed the approach and the conclusions of the Trial Court as it is. For this reason also, it will be necessary for this Court to invoke jurisdiction under Article 227 of the Constitution of India, so as to over turn the findings and conclusions reached by the Courts below so as to remedy the serious miscarriage of justice. The authorities relied upon by the Respondent that the scope of interference in writ jurisdiction is circumscribed would be of no avail in the fact situation of the present case on the above reasoning.
11. I shall now advert to the stand taken by the counsel for the Respondent-landlord that the case of fraud was neither pleaded nor argued before the Trial Court or before the Appellate Court or for that matter taken specifically in the grounds of memo of writ petition. Assuming that case of fraud has not been pleaded or argued before the Trial Court but specific plea that the Plaintiff's claim about the requirement being bonafide and reasonable is "false" is taken in the written statement and evidence also proceeds on that premise. Besides, the facts as are established on record and the pleadings as it were to be, the inescapable conclusion is that the landlord has failed to disclose all the material facts and information in the pleading as well as during the examination-in-chief: and if that is so, as observed by the Apex Court, withholding of vital documents or information as in this case, in order to gain advantage on the other side, tantamount to playing fraud on the court. And on such finding reached by the court, it will be the duty of the Court to non suit the
12. Accordingly this writ petition succeeds. The Judgment and Decree passed by the two Courts below are set aside and the suit filed by the landlord is dismissed with costs all through out.