Bombay High Court
Sudhir Kesarinath Mantri vs Jhaverben Chapsi Dedhia on 9 August, 2024
2024:BHC-AS:32655
Neeta Sawant CRA-41-2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 41 OF 2022
Sudhir Kesarinath Mantri } ....Applicant
: Versus :
1. Jhaverben Chapsi Dedhia & Ors. } ..Respondents
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Mr. S.M. Vyas, for the Applicant.
Ms. Kausar Banatwala with Ms. Riya Thakkar and Mr. Vandit Joshi
i/by.Mr. Tushar Goradia, for Respondent Nos.1 and 2.
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CORAM : SANDEEP V. MARNE, J.
DATED : 9 AUGUST 2024.
P.C. :
1) Revisionary jurisdiction of this Court is invoked for setting up a challenge to the judgment and decree dated 3 January 2022 passed by the Appellate Bench of the Small Causes Court allowing Appeal No. 194/2021 and setting aside the judgment and decree dated 24 February 2022 passed by the Court of Small Causes, Mumbai in R.A.E. Suit No.11/11 of 2014. The Small Causes Court had decreed the Suit directing Defendants to handover possession of the suit shop vide decree dated 24 February 2021. The Applicant-landlord is aggrieved by the decree of the Appellate Bench dismissing the suit filed by him for eviction of the tenant on the ground of bonafide requirement.
Digitally signed by NEETA
2) Briefly stated, facts of the case are that Shop located on the NEETA SHAILESH SHAILESH SAWANT SAWANT Date:
2024.08.14 19:06:54 +0530 ground floor of the building named 58, Mantri Building, 1 st Carpenter Page No.1 of 8 9 August 2024 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 17:27:18 ::: Neeta Sawant CRA-41-2022 Street, N.D. Road, C.P. Tank, Mumbai-400 004 are the suit premises.
Raoji Hirji Dedhia was inducted as a tenant in the suit premises in which he was running a Restaurant named 'Ambica Vijay Hindu Hotel'. The original tenant passed away on 16 November 1978 leaving behind six legal heirs. It appears that the heirs of the deceased-tenant executed Affidavit/Declaration dated 5 July 1990, by virtue of which hotel business in the suit premises was being run by Chapsi Raoji Dedhia. This is how Chapsi Raoji Dedhia claimed tenancy rights in respect of the suit premises after the death of the original tenant. Chapsi Raoji Dedhia passed away on 1 November 2006 and his heirs, being Defendants, claimed tenancy rights in the suit shop.
3) Plaintiffs filed R.A.E. Suit No. 341/594 of 2008 against Defendant Nos. 1 and 2 seeking recovery of possession of the suit premises on the grounds of arrears of rent, unlawful subletting and bonafide requirement. The suit was compromised on 28 September 2011 by filing Consent Terms. Plaintiff therefore filed one more suit being R.A.E. Suit No.11/11 of 2014 against the Defendants seeking recovery of possession of the suit premises on the ground of bonafide requirement of his daughter. The suit came to be decreed by the Trial Court on 24 February 2011 accepting the ground of bonafide requirement of Plaintiff's daughter. Defendants filed Appeal No. 194/2021 challenging the decree passed by the Single Judge of the Small Causes Court. The Appeal has been allowed by the Appellate Bench by its judgment and order dated 3 January 2022, which is the subject matter of challenge in the present Revision Application.
Page No.2 of 8 9 August 2024 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 17:27:18 ::: Neeta Sawant CRA-41-2022 4) I have heard Mr. Vyas, the learned counsel appearing for the
Applicant and Ms. Banatwala, the learned counsel appearing for Respondent Nos.1 and 2.
5) After having considered the submissions canvassed by the learned counsel appearing for parties, it is seen that R.A.E. Suit No.11/11 of 2014 has been decreed by the Trial Court on the ground of bonafide requirement of the landlord coupled with the finding of cause of greater hardship to Plaintiff in the event of decree being refused.
6) Plaintiff had instituted R.A.E. Suit No.341/594 of 2009 and one of the grounds raised in said suit for seeking the eviction of the Defendants was bonafide requirement of Plaintiff and his son. Plaintiff pleaded in para-10 of the plaint filed in the said R.A.E. Suit No.341/594 of 2009 as under:
10. The Plaintiff states that he is an Architect and Retd Class I Officer, P.W.D. Govt. of Maharashtra. After his retirement he now wants to set up his office in the suit premises. Plaintiff's son Mr. Amey Sudhir Mantri is a Computer Engineer and is pursuing I.T. Degree. He is also in need of the premises to set up his office to earn their livelihood. Hereto annexed and m arked as EXHIBIT 'G' Colly. are the retirement letter and the Decree Certificates of Mr. Amey Sudhir Mantri for our Honour's kind perusal. The Plaintiff therefore humbly submits that as it is Plaintiff's bonafide and personal and genuine requirement for the use and occupation of the suit premises for himself and also for his son and other family members under Section 16(1)() of the Maharashtra Rent Control Act, 1999 and in the circumstances on this count too the Plaintiff is entitled for a decree of possession in respect of the suit premises.
Page No.3 of 8 9 August 2024 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 17:27:18 ::: Neeta Sawant CRA-41-2022 7) R.A.E. Suit No. 341/594 of 2009 came to be compromised
between the parties by filing Consent Terms on 28 September 2011. Under the Consent Terms, Plaintiff waived the grounds, claims and contentions raised in the Suit against the Defendant and withdrew the suit.
8) Within two years of withdrawal of R.A.E. Suit No.341/594 of 2009, Plaintiff was advised to file a fresh suit being R.A.E. Suit No.11/11 of 2014 against Defendants once again seeking recovery of possession of the suit premises on the ground of bonafide requirement. This time, Plaintiff raised the bonafide requirement of his daughter, Sonia Sudhir Mantri in para-9 of the plaint as under:
9. The Plaintiff states that he requires the suit premises reasonably and bonafide for her daughter Sonia Sudhir Mantri (who is now married to Mr. Uday Wagle). The Plaintiff states that his said daughter Sonia is holding B.E. Degree in Electronics and Tele-communication from Bombay University. She also holds M.B.A. Degree in Business Management and Finance from Bombay University. The Plaintiff states that her daughter Sonia is presently doing job and employed as Manager in H.D.F.C. Life Insurance Co. Corporate Office at Lower Parel, Mumbai. The Plaintiff states that her daughter Sonia wants to be independent and wants to start her business and career as consultant and running training course and tuition class to the students in Business Management & Finance and Electronics and Tele-communication. The Plaintiff states that his daughter Sonia does not have any premises available to her to start her said business and career nor she has adequate money to purchase and buy premises for the purpose. The Plaintiff, therefore, states that he requires the suit premises reasonably and bonafide for his daughter. If the suit premises are not made available, the ambition and future of his daughter Sonia to independently start her own career will get stifled and hampered and she will have to permanently confine to do job and seek better employment elsewhere and she will not be able to exploit her talent and knowledge she possess. Hereto annexed and marked Exhibit-'C' and Exhibit-'D' are the copies of the B.E. Degree Certificate and M.B.A. Degree Certificate respectively of Sonia Sudhir Mantri.
9) Thus, in the second suit filed by Plaintiff raising the ground of bonafide requirement, it was contended that his daughter, Sonia Page No.4 of 8 9 August 2024 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 17:27:18 ::: Neeta Sawant CRA-41-2022 (married to Mr. Uday Wagle) held B.E. Degree in Electronics and Telecommunications and had also acquired MBA Degree in Business Management and Finance. Though it was admitted that Plaintiff's daughter was employed as Manager in HDFC Life Insurance at Mumbai, she wanted to be independent by starting her own business and career as a Consultant by running a training course and tuition classes to the students of Business Management and Finance, as well as Electronics and Telecommunication. Though the suit was filed for bonafide requirement of Plaintiff's daughter, she was not examined by Plaintiff as witness. In the circumstances, the Defendants examined Plaintiff's daughter-Sonia as their witness. In the evidence, she admitted that after her marriage, she was residing with her husband at D.N. Nagar, Andheri (West). She also stated that she was working with HDFC Standard Life Insurance but desired to be independent and start her own business. For some unfathomable reasons, even though his daughter was in the witness box (albeit at Defendants' instance) Plaintiff was advised not to cross-examine her. By cross-examining the witness, Plaintiff could have atleast sought some evidence from his daughter about the exact plans she had for starting her business as period of six years had expired from the date of filing of the suit till her evidence was recorded on 29 February 2020. Since Defendants examined daughter- Sonia, they obviously extracted only the requisite information from her and Plaintiff had a second opportunity (after having failed to avail initial opportunity of examining- Sonia as a witness) to elucidate the exact need to possess suit premises by her for her independent business, but Plaintiff failed to avail the opportunity and did not conduct cross-examination of his daughter, Sonia. Thus, Plaintiff withheld the best possible evidence of his daughter-
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Sonia who allegedly required the suit premises for starting her own business.
10) Another factor to be taken note of is the date of acquisition of qualifications by daughter-Sonia. It has come in evidence that she acquired the Bachelor's degree in Engineering in May 2005 and joined the services of HDFC Standard Life Insurance on 11 June 2008. While performing the said job, she acquired master's degree in financial management in the year 2011. The Trial Court has recorded that the said Master's Degree was acquired by her 'just few months before' of execution of the Consent Terms dated 28 September 2011. Thus as on the date of compromise of R.A.E.Suit No.341/594/2009, Plaintiff's daughter-Sonia had already acquired even additional qualification of Masters in Financial Management. Still Plaintiff withdrew the earlier suit rather than amending it by incorporating daughter's requirement in respect of the suit premises. By doing so, he waived the ground of bonafide requirement raised in R.A.E. Suit No.341/594 of 2009 and accepted the position that he did not require the premises for his daughter. As observed above, the time gap between the date of withdrawal of the earlier suit and the date of filing of fresh suit is hardly two years. No evidence is brought on record to indicate the exact bonafide requirement that got created or exact change in circumstances which occurred between the said time gap of two years. The Appellate Bench has in fact considered the position that Plaintiff's daughter-Sonia is well settled on a higher post in HDFC Standard Life Insurance with her husband serving in real estate company. It is also a matter of fact that the suit premises are located at C.P. Tank, Mumbai, whereas Plaintiff's daughter is residing at D.N. Nagar, Andheri. The Appellate Bench has Page No.6 of 8 9 August 2024 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 17:27:18 ::: Neeta Sawant CRA-41-2022 questioned the logic behind the daughter leaving high post job in an Insurance Company and commencing tuition classes in the suit premises.
11) After having considered the overall conspectus of the case, I am of the view that the Appellate Bench has rightly set aside the decree of the Trial Court by dismissing the suit. There is no evidence on record which proves the bonafide requirement of Plaintiff's daughter as pleaded. Since the decree passed by the Appellate Bench does not suffer from any palpable error, no case is made out for interference therein in exercise of revisionary jurisdiction by this Court under Section 115 of the Code. The Civil Revision Application is accordingly dismissed. There shall be no order as to costs.
[SANDEEP V. MARNE, J.] Page No.7 of 8 9 August 2024 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 17:27:18 :::