Bombay High Court
Smt.Kamal D.Bagal vs Sonabai Dinkar Hundekar on 8 August, 2008
Author: A.M.Khanwilkar
Bench: A.M.Khanwilkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1611 OF 1991
Daulatrao Madhawrao Bagal
since deceased, by his heir
and legal representatives:
1.Smt.Kamal D.Bagal,
wife, 62 years
2.Satish D.Bagal,
Son, age 42 years
3.Ulka D.Bagal,
daughter, age 45 years,
All residing at 634 E,
Shahupuri, Kolhapur.
4.Smt.Sucheta S.Kori,
Daughter, age 46 years,
Residing at Dipti, S/2,
2nd floor, Near Venus Corner,
Kolhapur - 416001. ...Petitioners
Versus
Sonabai Dinkar Hundekar,
(since deceased), through
her legal heirs:
1(a) Smt.Shobha Annappa Chougule
(nee Shobha Dinkar Hundekar)
daughter, age about 40 years,
R/a B-4, Flat No.16, Giridhar
Nagar, Warage, Malwadi,
PUNE - 29.
1(b) Smt.Mina Madan Bagane,
(nee Mina Dinkar Hundekar)
daughter, age about 37 years,
R/a 22/11, Jagdale Colony,
Near Pratibhanagar, Kolhapur ...Respondents
......
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Mr.P.S.Dani for Petitioners.
Mr.Pankaj Das for Respondents.
......
CORAM: A.M.KHANWILKAR, J.
AUGUST 8, 2008.
JUDGMENT :
1. This Writ Petition under Article 227 of the Judgment and Constitution of India takes exception to Decree passed by the Additional the District Judge, Kolhapur dated 27th August 1990 in Regular Civil Appeal No.382 of 1984 thereby reversing the Judgment and Decree of possession ordered by the IIIrd Joint Civil Judge, Junior Division, Kolhapur dated 28th September 1984 in Regular Civil Suit No.165 of 1975. The original Petitioner (predecessor of the present Petitioners) being the landlord in respect of premises situated on CTS No.634 C, in 'E' Ward at Kolhapur having two rooms, one admeasuring 30' x 23' 3" and other 30' x 10', instituted Suit for possession of the said premises against the original Respondent ::: Downloaded on - 09/06/2013 13:40:26 ::: : 3 :
(predecessor of the present Respondents) on different grounds. However, before this Court the Petitioners have confined to ground of default and bonafide requirement.
2. The Suit filed by the landlord was decreed by the Trial Court on the ground of default, bonafide requirement as well as non-user of the tenement for the purpose for which it was let. The Appellate Court, however, reversed the decree of eviction on all the three counts. Against the said decision of the Appellate Court, the landlord has filed the present Writ Petition under Article 227 of the Constitution of India and pressed for restoration of decree of possession ordered by the Trial Court limited to grounds of default and bonafide requirement.
3. Reverting to the first ground on which the landlords pray for possession of the suit premises, will have to be addressed keeping in mind the following admitted facts:
. The landlord issued demand notice dated ::: Downloaded on - 09/06/2013 13:40:26 ::: : 4 :
19th December 1974 terminating the tenancy, amongst others, on the ground of default in payment of rent. In the said notice sent to the tenant, it was asserted that the tenant was in arrears since November 1973, which period was more than six months anterior to the date of notice. The tenant on receipt of the said notice, remitted sum of Rs.350/- (Rupees Three Hundred Fifty) to the landlord on 31st December 1974, which was accepted by the landlord. There is no dispute on these facts. The controversy, however, was in relation to the mode ig of tenancy-whether it was monthly tenancy or yearly tenancy. According to the landlord, the tenancy was on monthly basis;
whereas according to the tenant, it was on yearly basis. The Appellate Court has found as of fact that the tenancy was on monthly basis but the rent was payable yearly. Insofar as the finding of fact recorded by the Appellate Court that the tenancy was on monthly basis, is not in issue. Even the finding of fact recorded by the Appellate Court that the rent was payable on yearly basis is not assailed. On this finding, it necessarily follows that the ground of eviction under Section 12(3)(a) ::: Downloaded on - 09/06/2013 13:40:26 ::: : 5 :
of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act') was not available in the fact situation of the present case. The Appellate Court then proceeded to reverse the decree of possession on the ground of default, granted by the Trial Court, on the reasoning that once Section 12(3)(a) is inapplicable, remedy under Section 12(3)(b) also will not be available to such tenancy. To examine the correctness of this opinion, we shall straightway refer to Section 12 of the Act as it applied to the case on hand, which reads thus:
"12(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, insofar as they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.::: Downloaded on - 09/06/2013 13:40:26 :::
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(3)(a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2), the court shall pass a decree for eviction in any such suit for recovery of possession.
(b) In any other case, no decree for eviction shall be passed in any such suit if, on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the standard rent and permitted increases then due and thereafter continues to pay or tender in Court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit directed by the court.
as (4) Pending the disposal of any such suit, the Court may out of any amount paid or tendered by the tenant pay to the landlord such amount towards payment of rent or permitted increases due to him as the Court thinks fit." (emphasis supplied)
4. Section 12, which is a ground for ejectment on account of tenant's failure to pay the standard rent and permitted increases, applies to both types of tenancies. Be it monthly tenancy or yearly tenancy. Section 12(3) recognises separate regime in the form of Clauses (a) and (b), on the basis of factum of mode of payment of rent - either ::: Downloaded on - 09/06/2013 13:40:26 ::: : 7 :
on month to month basis or year to year basis. The tenancy where the "rent is payable by the month", Section 12(3)(a) of the Act would come into play.
Whereas, if the rent is payable on yearly basis, such a tenancy would be governed by the regime of Section 12(3)(b) of the Act.
5. Insofar as sub-section (1) is concerned, that is a general provision governing both types of tenancies, whether the rent is payable by the month or otherwise. Sub-section (2) of Section 12 is a provision which creates a bar for institution of suit, unless the landlord were to issue notice in writing of the demand of standard rent or permitted increases coupled with the notice is duly served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the T.P.Act') and period of one month has expired from such service.
6. In the present case, there is no dispute that demand notice in writing was served on the tenant in the manner provided in Section 106 of the T.P.Act. The argument regarding validity of the ::: Downloaded on - 09/06/2013 13:40:26 ::: : 8 :
notice will be addressed a little later. Once, the stipulation provided in sub-section (2) is complied, the landlord is free to file the Suit for recovery of possession on the ground of default.If the Suit for recovery of possession is in respect of tenancy where the "rent is payable by the month", the rigours provided in Section 12(3)(a) will get attracted. However, in respect of any other type of tenancy, it will be governed by the regime of Section 12(3)(b) of the Act. It is not necessary to elaborate on the other provisions of Section 12 of the Act. In the present case, as the Court below has found that although the tenancy was monthly basis, but the rent was payable on yearly basis, we will have to proceed on the premise that provisions of Section 12(3)(b) will be attracted.
7. Before proceeding further, I would think it appropriate to first deal with the opinion recorded by the Appellate Court that the demand notice was invalid. The Appellate Court relying on the decision of the Gujarat High Court in the case of Vasumatiben & Ors. vs. Bal Kashiben reported in 1977 Bom.R.C. 152, 152 has opined that the demand ::: Downloaded on - 09/06/2013 13:40:26 ::: : 9 :
notice Exhibit 56 was invalid. Before analysing that aspect I would in the first place advert to the dictum of the Gujarat High Court. It has held that the notice of demand must be precise for a sum specified or it must be made in such a manner that the amount actually claimed becomes definitely ascertainable by reference to some other intrinsic evidence in the notice itself such as the point of time from which arrears at a specified rate are due or such sums or other such indications. In absence thereof, there would be really no demand within the meaning of Section 12(2) of the Act. There can be no quarrel with this proposition. The Appellate Court has noted that the demand notice Exhibit 56 does not comply with the requirements of Section 12(2) of the Act as it fails to mention the rate of rent along with the period of arrears. True it is, that the notice Exhibit 56 does not mention the rate of rent. However, there is absolutely no controversy between the parties that the rate of rent was Rs.350/- (Rupees Three Hundred Fifty) per annum as fixed by the Rent Court in the standard rent application filed by the tenant. As a matter of fact, the tenant in his written statement has ::: Downloaded on - 09/06/2013 13:40:26 ::: : 10 :
expressly conceded that position in paragraph 2 of the written statement. If it is so, the assumption of the Appellate Court that the notice is invalid, as it does not specify the rate of rent will have to be stated to be rejected in the fact situation of the present case, having regard to the stand of the Defendant in the written statement. In that, there is no confusion at all in the mind of the Defendant that the rate of rent is Rs.350/- (Rupees Three Hundred Fifty) per annum and that the same was unpaid since November 1973. The Appellate Court, however, then proceeds to observe that the demand notice Exhibit 56 makes no mention even with regard to the period of arrears. This finding is error apparent on the face of the record. Inasmuch as, in Para 4 of the demand notice, it is expressly stated that the tenant was in default since November 1973 till the date of notice and which period was more than six months. In other words, the basis on which the Appellate Court proceeded to hold that the demand notice was invalid, cannot be sustained both on facts and in law. The decision of the Gujarat High Court is therefore of no avail.
In other words, there is intrinsic evidence in the
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demand notice Exhibit 56 itself as to the period of arrears and the amount required to be paid by the tenant. As a matter of fact, the tenant after receipt of the notice immediately remitted sum of Rs.350/- (Rupees Three Hundred Fifty), which according to him was the only amount due and payable at the relevant time. Suffice it to observe that there is no infirmity in the demand notice as served upon the tenant.
8. The next question is: whether the rigours of Section 12(3)(b) would be attracted to the facts of the present case? No doubt, the tenant is justified in asserting that on the date of service of demand notice Exhibit 56, as he was in arrears only from 1st November 1973, the amount then due and payable would be only till 31st October 1974, keeping in mind that rent was payable yearly and not on monthly basis. It is on that assumption, the tenant remitted only sum of Rs.350/- (Rupees Three Hundred Fifty) to the landlord on 31st December 1974. The question is: whether that would deprive the landlord from instituting the Suit on the assertion that entire amount demanded ::: Downloaded on - 09/06/2013 13:40:26 ::: : 12 :
in the notice has not been paid by the tenant?
There is nothing in Section 12 of the Act which would preclude the landlord from instituting such a Suit. Even if the tenant chooses to pay part of the amount demanded in the suit notice, the cause of action to institute Suit on the basis of such a demand notice would continue and the landlord can legitimately institute Suit on that basis. In that case, the parties will be governed by the stipulations of Section 12 of the Act. As aforesaid, the present case is governed by Section 12(3)(b) -
not a case being rent payable by the month. Insofar as Section 12(3)(b) is concerned, in case of institution of the Suit by the landlord, the tenant is obliged to pay or tender in Court the standard rent and permitted increases then due on the first day of hearing of the Suit or on or before such other date as the Court may fix.
Besides, the tenant is obliged to continue to pay or tender in Court regularly such rent and permitted increases till the Suit is finally decided. Section 12(3)(b) cast two obligations to be observed by the tenant against whom the Suit is filed for recovery of possession inspite of the ::: Downloaded on - 09/06/2013 13:40:26 ::: : 13 :
tenant making part payment under the suit notice, which payment, though accepted by the landlord, is not full satisfaction of the claim of the landlord spelt out in the demand notice. In that Suit, the tenant, in the first place, has to ensure that all the arrears then due with regard to standard rent or permitted increases are already paid or tendered in Court before the first date of hearing of the Suit. By now, it is firmly established that the date on which the issues are framed should be reckoned as the first date of hearing of the Suit.
In the
present case, that event has happened on
30th December 1975. Even if the tenant's case were to be accepted as it is, all that the tenant asserts is that after receipt of demand notice, he paid sum of Rs.350/- (Rupees Three Hundred Fifty) on 31st December 1974. No further payment was made by the tenant till the first date of hearing of the Suit. By the first date of hearing of the Suit, the tenant in any case had become liable to pay rent from 1st November 1974 till 31st October 1975 for the whole of that period, if not till 30th December 1975. He was admittedly in default in paying or tendering at least the said amount in ::: Downloaded on - 09/06/2013 13:40:26 ::: : 14 :
Court on the first day of hearing of the Suit even though the said amount had become then due. Thus understood, the first part of Section 12(3)(b) has been breached by the tenant inviting decree of eviction on the ground of default on that count itself.
9. Assuming that the case of the tenant was to be examined further, even then, the latter part of Section 12(3)(b) of the Act mandates that the tenant shall continue to pay or tender in Court regularly such rent and permitted increases till the Suit is finally decided. The payment or tender by the tenant is expected to be on regular basis as and when the amount towards standard rent and permitted increases become due. In the present case, however, the tenant has paid amount in Court on irregular basis, which can be seen from the relevant dates.
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Sr. Date of Amount of Particulars
No. Deposit Deposit
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1) 30.12.1974 Rs.350/- Towards arrears between 1/11/73 till 21/10/74.
2) 30.12.1975 Not paid First date of hearing ::: Downloaded on - 09/06/2013 13:40:26 ::: : 15 :
of the Suit. By then tenant was expected to pay arrears for period between 1/11/1974 to 31/10/1975 (i.e.Rs.350/-).
3) 25.08.1977 Rs.950/- Rent up to Nov.1976 (Rs.700/-, paid surplus Rs.250/-).
4) 27.03.1980 Rs.700/- Rent up to Nov.1979 (Rs.1050-Rs.250=Rs.800/-.
Therefore, short payment Rs.100/-).
5) 01.04.1981 Rs.350/- Rent up to Nov.1980 -
(Rs.350/- + Rs.100/-) short payment Rs.100/-.
6) 01.12.1983 Rs.700/- Rent up to Nov.1983 Rs.1050+Rs.100. Therefore
7) 13.11.1986 ig short payment Rs.450/-.
Rs.1,050/- Rent up to Nov.1986 Rs.1050/- + Rs.450/-.
Therefore, short payment Rs.450/-.
8) 01.01.1988 Rs.350/- Rent up to Nov.1987.
Rs.350+450.Therefore short payment Rs.450/-.
9) 27.12.1988 Rs.350/- Rent up to Nov.1988.
Rs.350+Rs.450. Therefore, short payment Rs.450/-.
10) 07.12.1989 Rs.350/- Rent up to Nov.1989.
Rs.350+Rs.450. Therefore, Short payment Rs.450/-.
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10. From the above chart, it is more than clear that the tenant failed even to regularly pay the amount towards standard rent and permitted ::: Downloaded on - 09/06/2013 13:40:26 ::: : 16 :
increases as and when the same became due with promptitude. In such case, the tenant would expose himself to decree of eviction within the meaning of latter part of Section 12(3)(b) of the Act. If any authority is required on this proposition, it will be useful to refer to the decision of the Apex Court in the case of Mranalini B.Shah & Anr. vs. Bapalal Mohanlal Shah reported in AIR 1980 SC 954 which refers to its earlier decisions to hold that it was clear that the Act interferes with the landlord's right to property and freedom of contract only for the limited purpose of protecting tenants from misuse of the landlord's power to evict them in these days of scarcity of accommodation, by asserting his superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants.
At the same time, the object was not to deprive the landlord altogether of his rights in property which have also to be respected. The Judgment proceeds to examine the sweep of expression "regularly"
appearing in the latter part of Section 12(3)(b).
While considering that, the Apex Court in Para 12 has observed that the said word "regularly" enjoins ::: Downloaded on - 09/06/2013 13:40:26 ::: : 17 :
a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals. It further held that the regularity contemplated may not be a punctuality, of clocklike precision and exactitude, but it must reasonably conform with substantial proximity to the sequence of times or intervals at which the rent falls due. Same view is restated by the Apex Court in the case of Mohan Laxman Hede vs.Noormohamed Adam Shaikh reported in (1988) 2 SCC
481.
481 Though in the fact situation of that case,
the Court
was of the view that the defaults
committed by the Appellant/tenant were few and
there was some delay amounting from two or three
days up to a maximum of 23 days. In the present
case, however, from the chart reproduced above, it
is not possible to countenance that the payment
tendered by the tenant in Court towards standard
rent and permitted increases was on regular basis.
Even for that reason, the landlord was entitled for decree of eviction against the tenant. Suffice it to observe that the opinion of the Appellate Court in reversing decree of eviction on the ground of default on the basis that if Section 12(3)(a) is ::: Downloaded on - 09/06/2013 13:40:26 ::: : 18 :
unavailable, no remedy under Section 12(3)(b) is available to such a landlord. That view cannot be countenanced in law. Accordingly, the conclusion reached by the Appellate Court in relation to ground of default will have to be overturned and the decree of eviction ordered by the Trial Court against the tenant on the ground of default will have to be affirmed for the aforesaid reasons.
11. Counsel for the Petitioners had also relied on the decision of our High court in the case of Waman Deoram Sonawane vs. Shri Ganesh Mandir, Dhulia & Anr. reported in 1984 Mh.L.J. 791 which restates the legal position expounded in the decision in Mranalini Shah's case (supra). The said decision of our High Court was carried in appeal being Civil Appeal No.3231 of 1984 before the Apex Court, which, however, has been dismissed, thereby upholding the said decision.
12. That takes us to the ground of reasonable and bonafide requirement of the landlord. The case made out by the landlord in paragraph 4 of the Plaint is essentially that the landlord wanted the ::: Downloaded on - 09/06/2013 13:40:26 ::: : 19 :
suit premises occupied by the tenant and his family members for starting montessory school therein to be managed by his wife. It is stated that the present residential accommodation will be inconvenient for the wife to conduct montessory school. To establish the case, the landlord not only examined himself as PW 1 but also his wife as PW 2. Both have deposed about the requirement spelt out by the landlord. The landlord (PW 1) has spoken about the need in his examination-in-chief.
He has given the background in which his wife is
going to
start montessory school in the suit
premises. He has deposed that she has completed
D.Ed. course and that the suit tenement was
convenient for starting a montessory school. He
has also deposed that there is no other place
convenient to start montessory school elsewhere in
his residential house. He has also deposed that
there was no possibility for him to secure another
accommodation to start the montessory school. He
has further stated that the suit tenement was
adjacent to the residential building where his
family was staying. He has then disclosed his
financial position and the fact that if his wife
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was to start the montessory school, that would help in supporting the family requirements. The Plaintiff's wife also entered the witness box and reiterated the stand of the Plaintiff stated in his evidence. She has deposed that she has acquired necessary qualification and was eager to start the montessory school. She has also stated that she has already applied to the concerned authority for permission to start the montessory school in 1974.
With regard to the issue under consideration, the Defendant cross-examined the Plaintiff and his wife PW 2.
Besides, the Defendant examined himself as DW 1. In his evidence, he brought on record the fact that the Plaintiff acquired possession of other premises from other tenants during the pendency of the present Suit. The Trial Court, on analysing the entire evidence, proceeded to answer the issue and summed up the position in the following words in Paragraph 34, which reads thus:
"34. Applying these principles to the present suit with the authorities cited above,it would be seen that:
Firstly, the family of the plaintiff consists of himself father, wife, son and daughter having monthly income of ::: Downloaded on - 09/06/2013 13:40:26 ::: : 21 :
Rs.1810/- p.m. and no other source of income. The honorarium of Rs.500/- by the father of the plaintiff cannot be considered as income of the Plaintiff because of the old age of the father that amount is required for his (the father) own maintenance and that the same will not be continued after his death.
Secondly, the children of the Plaintiff are college going.
Thirdly, the service of the plaintiff is transferable.
Fourthly, as the wife of the Plaintiff also requires to look after the aged father-in-law, it is necessary for her to have a Montessory School near her residence.
Fifthly, it is not for the sake of hobby but for necessity that the Plaintiff requires the suit premises for starting a Montessary School by his wife to increase the income of the family for the maintenance of the family considering the status of the Plaintiff.
Sixthly, to require the Plaintiff to get a licence of permission to start a Montessory School before obtaining vacant possession of the suit premises will be to ask him to do something which is impossible because no permission or licence can be granted by the authorities before the Plaintiff satisfied them that he has in his own possession the required premises to start a montessory school.
Seventhly, there is a specific pleading about the reasonable and bonafide requirement of the suit premises in the plaint. Moreover, the Plaintiff and his wife have specifically deposed the element of necessity in their testimony.
35. Considering all these circumstances, ::: Downloaded on - 09/06/2013 13:40:27 ::: : 22 :
I hold that the Plaintiff has proved that he wants the possession of the suit premises on the ground of bonafide and reasonable requirement to run "Shishu Vihar" for children by his wife and answer issue No.5 in the affirmative"
13. The Respondent/tenant carried the matter in appeal being Regular Civil Appeal No.382 of 1984. The Appellate Court reversed the finding recorded by the Trial Court for the following reasons. It proceeded to hold that the Plaintiff's wife got Certificate in the montessory course in the year Plaintiff 1974 and during the same had got possession of premises from four time, the different tenants. The Plaintiff could have started the montessory school in the said premises.
The Appellate Court then went on to observe that the Plaintiff has admitted in his deposition at Exhibit 191 that he took possession of the said four different premises for business purposes.
Insofar as this finding recorded by the Appellate Court is concerned, the same is error apparent on the face of the record. There is no such admission given by the Plaintiff in his evidence. On the other hand, the Plaintiff has asserted in his evidence that the four different premises were used ::: Downloaded on - 09/06/2013 13:40:27 ::: : 23 :
by the concerned tenants for residence and the Plaintiff has recovered possession thereof for the requirement of his family for residence. The other finding recorded by the Appellate Court that the Plaintiff could have used the said premises to start montessory school, clearly overlooks the mandate of Section 25 of the Act, which stipulates that premises which were used for residence on the coming into force of the Act of 1947, could not be used for non-residential purpose. In that sense, even if those premises became available to the Plaintiff during the pendency of the present Suit, were of no avail as the same could not be used for the requirement of Plaintiff's wife to start a montessory school, which is obviously a non-residential user. The Appellate Court has then proceeded to hold that neither the Plaintiff nor his wife has made any application to the concerned authority for permission to start montessory school. In the first place, there is no material on record to doubt the stand taken by the Plaintiff and his wife that application was made to the competent Authority for granting permission to start montessory school in the suit premises.::: Downloaded on - 09/06/2013 13:40:27 :::
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Assuming that the finding recorded by the Appellate Court was to be accepted as it is, the same will have to be discarded as manifest error committed by the Appellate Court. It is well established position that the requirement recognised by provisions of Section 13(1)(g) of the Act means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It is also well settled position that the law does not require that the landlord would first secure all permissions before applying for possession of the tenanted premises.
The Court has to objectively examine the case made out by the landlord as to whether the need of the landlord was reasonable and bonafide. The settled legal position as to the test to be applied to consider the claim of the landlord of reasonable and bonafide requirement has been restated by the Apex Court in the case of Raghunath G.Panhale (Dead) By Lrs. vs.Chaganlal Sundarji & Co.reported in (1999) 8 SCC 1.
1 The Apex Court has referred to several decisions and has deduced the principles stated therein. The test to be applied to consider the requirement of the landlord will necessarily ::: Downloaded on - 09/06/2013 13:40:27 ::: : 25 :
have to be in consonance with the said principles.
It would be apposite to reproduce paragraphs 6 to 9 of the said decision, which read thus:
"6. The word "reasonable", in our view, connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word "requirement"
coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity (Aitken v. Shaw, Nevile v. Hardy). A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It use may be a need in praesenti or within reasonable proximity in the future.
of the word "bona fide" is an
The
additional requirement under Section 13(1)(g) and it means that the requirement must also be honest and not be tainted with any oblique motive.
7. The above principles have been laid down in various decisions of this Court and we shall refer to a few of them which are relevant to the issue before us. It was stated in Bega Begum v. Abdul Ahad Khan that the reasonable requirement postulates an element of "need" as opposed to a mere "desire or wish". It was also pointed out that if it was indeed a case of a reasonable need, the same could not be diluted by characterising it as only a mere desire. It was stated: (SCC Headnote) "The distinction between desire and need should doubtless be kept in mind but not so as to make even a genuine need as nothing but a desire."
(emphasis supplied) It was also held that the language of the ::: Downloaded on - 09/06/2013 13:40:27 ::: : 26 :
provision cannot be unduly stretched or strained as to make it impossible or extremely difficult for the landlord to get possession. If more limitations are imposed upon the landlord holding property, it would expose itself to the vice of unconstitutionality (Yudhishter v. Ashok Kumar). The construction of the relevant statutory provision must strike a just balance between the right of the landlord and the right of the tenant. In Bega Begum case, the landlords adduced evidence to show that they wanted to augment their present income by starting a hotel business. This was treated as a genuine need and it was held that it could not be equated with a mere desire. This Court observed that "the Act does not completely overlook the interest of the landlord". In Mattulal v. Radhe Lal a like principle was laid down stating that the test was not a subjective but an objective one and that the court was to judge whether the need of the landlord was reasonable and bona fide. This Court held that the Additional District Judge in that case was wrong in thinking that the landlord who wanted to start an iron and steel business, had to produce proof of preparations for starting his new business, such as making arrangements or capital investment, approaching the Iron and Steel Controller for the required permits etc. This Court held that the above circumstances were "wholly irrelevant" and observed: (SCC p.374 para
13) "It is difficult to imagine how the respondent could be expected to make preparations for starting the new business unless there was a reasonable prospect of his being able to obtain possession of the Lohia Bazar shop in the near future."
8. This Court took judicial notice of ::: Downloaded on - 09/06/2013 13:40:27 ::: : 27 :
long delays in courts and observed: (SCC pp. 374 & 375, para 13) "It is a common but unfortunate failing of our judicial system that a litigation takes an inordinately long time in reaching a final conclusion and then also it is uncertain as to how it will end and with what result"
and that, therefore, "it would be too much to expect from him (landlord) that he should make preparations for starting the new business. Indeed, from a commercial and practical point of view, it would be foolish on his part to make arrangements for investment of capital, obtaining of permits and receipt of stocks of iron and steel materials when he would not know whether he would at all be able to get possession of the Lohia Bazar shop and if so, when and after how many years".
9. Next comes the decision of this Court in A.K. Veeraraghava Iyengar v. N.V. Prasad. In that case, this Court observed that the need was bona fide and that the tenant failed to adduce any evidence against the "experience of landlord, his financial capacity and his readiness and willingness to start jewellery shop". In Vinay Kumar v. District Judge, Ghazipur it was contended for the tenant that the son of the landlord whose requirement was pleaded, was in government service and, therefore, he could not have any bona fide need to start a private practice as a doctor. This contention was rejected. In Rena Drego v. Lalchand Soni it was observed that in the light of the factual position in that case, "when the landlady says that she needs more accommodation for her family, there is no scope for doubting the reasonableness of the requirement".
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It was held that the circumstances of the case raised a presumption that the requirement was bona fide and that "tenant has failed to show that the demand or eviction was made with any oblique motive". It was held that in the absence of such evidence by the tenant, the presumption of the bona fide need stood unrebutted. In Sarla Ahuja v. United India Insurance Co. Ltd. it was again observed that the Court should not proceed on the assumption that the requirement of the landlord was not bona fide and that the tenant could not dictate to the landlord as to how he should adjust himself without getting possession of the tenanted premises. It was stated in Prativa Devi v. T.V.Krishnan and in Minal Eknath Shirsagar v. Traders and Agencies that the landlord was the best judge of his requirement. In Sheela Chadha v. Dr Achharaj Ram Sehgal it was held that the landlord had the discretion to determine his need. See also in this connection the judgment of this Court in Shiv Sarup Gupta v. Dr Mahesh Chand Gupta. In Raj Kumar Khaitan v. Bibi Zubaida Khatun this Court had even stated that it was not necessary for the landlord to state in the pleadings, the nature of the business he proposed to start."
14. If the above test was to be applied, the reasons recorded by the Appellate Court for non-suiting the landlord will have to be only stated to be rejected. In that, the fact that neither the Plaintiff nor his wife had made any application to the concerned authority for permission to start montessory school, will be of ::: Downloaded on - 09/06/2013 13:40:27 ::: : 29 :
no avail. The other reason recorded by the Appellate Court that the Plaintiff in the previous Suits which he had filed for possession, had not mentioned that he wanted possession of the premises therein for personal use and occupation thereof, does not take the matter any further. Inasmuch as in the said Suits the ground of bonafide requirement was not pressed into service. In other words, extraneous reason has weighed with the Appellate Court to overturn the cogent finding recorded by the Trial Court on the issue under consideration.
15. The Appellate Court has then considered the argument of the Plaintiff that the wife of Plaintiff wants to start montessory school in the suit premises for the sake of hobby but for the sake of necessity. The Appellate Court went on to observe that it is matter of record that the Plaintiff was a Civil Engineer and when he first made his deposition at Exhibit 61 in the year 1977, his emoluments were more than Rs.1,800/- (Rupees One Thousand Eight Hundred) per month. Once again, a wrong test has been applied by the Appellate ::: Downloaded on - 09/06/2013 13:40:27 ::: : 30 :
Court to answer this issue. It is on applying such erroneous test, the Appellate Court then proceeded to observe that the element of necessity to be made out by the Plaintiff was not proved and there was obviously no "compelling necessity" for the Plaintiff to start a montessory school in the suit premises. This approach is manifestly wrong and has been frowned upon by the Apex Court, as can be discerned from the dictum in the case of Raghunath G.Panhale (supra), which is reproduced earlier.
16. The Appellate Court has then noted that in the Plaint, no compelling need has been made out and the recitals in Paragraph 4 of the Plaint would only show that the Plaintiff desires to get possession of the suit premises for starting Shishuvihar only as a formality. As observed earlier, the landlord is not expected to establish compelling or absolute or dire necessity but something in between a mere desire and the wish on the one hand and the compelling or dire or absolute necessity on the other hand. The Trial Court in the fact situation of the present case, on analysing the evidence adduced by the Plaintiff has ::: Downloaded on - 09/06/2013 13:40:27 ::: : 31 :
rightly found that the Plaintiff had established that requirement. The Appellate Court has overturned that finding on applying wrong basis and on assumptions which are manifestly wrong and error apparent on the face of the record to which reference has already been made hitherto. If the basis on which the Appellate Court has proceeded to overturn the finding of the Trial Court on the issue under consideration is on applying wrong test and misunderstanding of the legal requirement, the finding so recorded by the Appellate Court cannot be sustained ig and will have to be set-aside as it would cause serious miscarriage of justice.
17. The Appellate Court has proceeded to hold that it is not likely that earnings would be one of the purpose for starting montessory school and has noted that the testimony of the Plaintiff and his wife on this aspect was not consistent. It has then observed that the family of the Plaintiff was of only four members including the Plaintiff and his wife. The children of Plaintiff were taking education when the Suit was at the trial and before coming to reside in the suit building in the year ::: Downloaded on - 09/06/2013 13:40:27 ::: : 32 :
1974, the Plaintiff was residing in some rented premises at Rajarampuri, Kolhapur. The Appellate Court then went on to observe that the Plaintiff has already vacated the suit premises at Rajarampuri and no explanation is forthcoming as to what prevented the Plaintiff to start montessory school therein. Once again, this reasoning completely overlooks the fact that the premises at Rajarampuri, Kolhapur was occupied by the Plaintiff for the purposes of residence of his family. If the said premises were used for residential purpose, by no standards, the Plaintiff could have used the same premises for non-residential use (for conducting a montessory school). Availability of those premises, therefore, was of no avail to the Plaintiff. The Appellate Court has then adverted to the requirements so as to start the montessory school and has observed that ordinarily 20' x 20' room would be sufficient for that purpose. It has then noted that the Plaintiff had got the possession of the premises in the year 1974 having area of more than 30' x 20' and the Plaintiff could have started the montessory school in those premises. It is on that basis, the Appellate Court ::: Downloaded on - 09/06/2013 13:40:27 ::: : 33 :
doubted the bonafide of the landlord. In the first place, this approach is clearly against the settled legal position that it cannot be forgotten that the landlord is the best Judge of his requirement and neither the tenant nor the Court can dictate to the landlord as to how best he can satisfy his requirement. That legal position has been restated by the Apex Court in the case of Raghunath G.Panhale (supra). On the above erroneous basis, the Appellate Court proceeded to found that the requirement of the Plaintiff is only mere desire and there is no element of need attached to it.
The finding so recorded by the Appellate Court, even though a finding of fact, is palpably and manifestly wrong and is reached by the Appellate Court on applying incorrect test to decide the requirement of the landlord. In my opinion, therefore, the conclusion reached by the Appellate Court cannot stand the test of judicial scrutiny and the same will have to be overturned on the point under consideration.
18. It may not be out of place to mention that the Plaintiff had invoked ground of change of user ::: Downloaded on - 09/06/2013 13:40:27 ::: : 34 :
to claim possession of the suit premises from the tenant. The case of the Plaintiff was that the suit premises were let out to the husband of the Defendant for running a shop but the Defendant has started using the same for residence only. That plea of the Plaintiff has not been accepted.
However, what is relevant for our purpose is to note that the finding of fact recorded by the Courts below is that it was not disputed that the Defendant's husband was running adat shop in the front room of the suit premises since the inception of the tenancy.
ig It is also not in dispute that the suit premises are situated in the business locality for which inference could be drawn that the suit premises were let out for composite purpose if not exclusively for business purpose only. The Courts below have positively found that when the Act of 1947 came into force, the suit premises were not used for residential purpose only. It is on that basis it is found that the provisions of Section 25 of the Act will not come in the way of the Plaintiff to ask for possession of the suit premises on the ground of reasonable and bonafide requirement of the landlord. In that, the wife of ::: Downloaded on - 09/06/2013 13:40:27 ::: : 35 :
the landlord wanted the suit premises for starting a montessory school therein.
19. That takes me to the question as to whether in the fact situation of the present case, it is inevitable to pass decree of possession in favour of the Plaintiff, which is the requirement of Section 13(2) of the Act. It is nobody's case that the suit premises could be partitioned in such a way that partial decree can be passed.
Therefore, the only question that needs to be
examined is:
ig whether the Plaintiff would suffer
greater hardship in the event of decree of eviction was to be refused. The Plaintiff has not only pleaded that fact in the Plaint but has further asserted in evidence that no hardship will be caused to the Defendant if the decree of eviction was to be passed. The Plaintiff has entered the witness box and has deposed that the Plaintiff had no other premises in his possession which could be offered to his wife to start the montessory school.
The Plaintiff has also deposed that it was not
possible for him to purchase another property for
the requirement of his wife. The Plaintiff has
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: 36 :
also brought on record that the Defendant could
conveniently get another accommodation in the
neighbourhood for residence and would not suffer
any hardship if she was required to shift to
another premises. The Plaintiff also placed on
record that alternative premises were offered to
the Defendant which were not availed of by the
Defendant though the same were suitable premises
for the residence of the Defendant. The Plaintiff
has also brought on record that he had offered to
Defendant the premises at Rajarampuri, Kolhapur
which had
become vacant after the Plaintiff had
shifted his family in another premises in the suit
building. However, the Defendant did not avail of
even that option. On the other hand, the Defendant
did not place on record any material fact which
would indicate that the Defendant was unable to
secure another suitable accommodation in the
locality nor the Defendant has produced evidence
that the premises offered by the Plaintiff were not suitable and the reason why the same were not accepted. The question of greater hardship will have to be addressed keeping in mind the settled legal position which has been restated in the case ::: Downloaded on - 09/06/2013 13:40:27 ::: : 37 :
of Suhasini Atmaram Parab & Ors.vs. B.H.Khatu & Ors.reported in 2002(4) All.M.R. 770 in Paragraph 5 of the said decision, which reads thus:
"5. Having considered the rival submissions, we will first advert to the settled legal position as to how the issue of comparative hardship should be and ought to be examined by the court. That has been enunciated in the decision of the Apex Court in AIR 1979 SUPREME COURT 272 in the case of Bega Begum. The Apex Court has observed that it is no doubt true that the tenant will have to be ousted from the demised premises if the decree for eviction is passed but,such an event would happen, whenever a decree for eviction is passed and was fully in contemplation of the Legislature. But, that by itself would not be a valid ground for refusing the decree for eviction. The Apex Court has further observed that each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiff to prove that lesser disadvantage will be suffered by the defendants and that they were remediable. But,it is enough for the plaintiff to plead and prove that besides the suit premises,he has no other accommodation of his own to meet his requirement which is set up in support of the ground of reasonable and bonafide requirement. On the other hand,the tenant has not only to plead but,also prove the fact that it is impossible to get any other alternative accommodation in the city. If the tenant fails to do so, the issue will have to be answered against the tenant. (Also see Dr.Ranbir Singh 1995(6) SCC 580) No doubt, while considering comparative hardship, the court may also take into account the financial position of the parties. In the present case,the ::: Downloaded on - 09/06/2013 13:40:27 ::: : 38 :
finding of fact reached by the trial court was that both the parties were financially on the same footing. The appellate court has however, observed that the defendant no.2 was financially not sound. But, financial constraint cannot be the only basis on which the issue can be answered.The court has to take into account all the attending circumstances and if the tenant has failed to plead and prove the fact that it is impossible to get alternate accommodation in the same locality or for that matter,in the same city, then the issue will have to be answered against the tenant. Besides,the Respondent no.1 tenant was obliged to establish that during the long drawn pendency of Litigation just as this case since 1973, he made sincere attempt to secure alternative accommodation and was unable to get it. (See Nana Kamble's case 1987 Bom.C.R.390; Kumidini Bagade in 1983 Bom.R.C.390 as well as Narayan Patil 1989 Mah.R.C.J.290).
Mah.R.C.J.290) In other words,the tenant cannot remain idle,awaiting for the result of the suit. in the case of Narayan Patil (supra) this court has observed that the Landlord cannot be forced to live in an inhuman condition only because the tenant may suffer decree of eviction. In that case,the court took into account that even after the decree was passed by the trial court and,five years had lapsed thereafter,by no stretch of imagination can it be said that such time was not sufficient for the tenant to secure alternative accommodation, further when hardship was to be caused to both then there can be no reason why the Landlord should be deprived of the decree."
20. The Trial Court, after analysing the pleadings and evidence on record, found as of fact that the Defendant can live at Gangapur for ::: Downloaded on - 09/06/2013 13:40:27 ::: : 39 :
cultivating agricultural lands and also for education of her daughters. It has noted that though Gangapur is little away from Kolhapur, it cannot be a ground for passing a decree of eviction. It is further held that all the relatives of the Defendant reside at Gangapur. It is on that basis, the Trial Court answered the issue of comparative hardship. Indeed, it is not possible to uphold this approach of the Trial Court. Inasmuch as, Gangapur does not form part of the locality or surrounding area. What the Trial Court has overlooked is the evidence on record, which clearly indicates that the Plaintiff had not only pleaded but also proved the fact that Plaintiff had no other premises to offer the same to his wife for the stated requirement. Besides, the Plaintiff has established the fact that he was not in a position to purchase another premises.
The Plaintiff has further established that Plaintiff had offered alternative suitable accommodation to the Defendant which the Defendant did not avail of. The Constituted Attorney of Defendant who entered the witness box made no attempt to prove, or for that matter, assert that ::: Downloaded on - 09/06/2013 13:40:27 ::: : 40 :
the Defendant had tried to search for another premises in the same locality after the institution of the Suit and was unable to get a suitable accommodation at all. The Defendant has also not spelt out the reason why the offer given by the Plaintiff, amongst others, to occupy the premises at Rajarampuri, Kolhapur was turned down by the Defendant.
21. Be that as it may, the Appellate Court considered the issue of comparative hardship.
However, even the Appellate Court has not applied the correct test. The Apex Court in the case of Mst.Bega Begum & Ors. vs. Abdul Ahad Khan (dead) by L.R's. & Ors. reported in AIR 1979 SC 272, has observed that each party has to prove its relative advantages and the disadvantages and the entire onus cannot be thrown to the Plaintiff to prove that lesser disadvantage will be suffered by the Defendants and that they were remedial. Besides, the tenant has not only to plead but also prove the fact that it is impossible to get any other alternative accommodation. The financial constraint of the tenant cannot be the only basis ::: Downloaded on - 09/06/2013 13:40:27 ::: : 41 :
on which the issue can be answered. The tenant in the fact situation of the present case has failed to plead and prove that it is impossible to get alternative accommodation in the same locality. No evidence has been produced by the tenant that during the long drawn pendency of the litigation, she made any sincere effort to secure any alternative accommodation and was unable to get it.
The Appellate Court has not dealt with all these
relevant aspects at all while answering the point
under consideration. The relevant discussion of
the Appellate
ig Court on the issue of comparative
hardship can be discerned from paragraph 35 of the
impugned Judgment. The Appellate Court even though
referred to the evidence produced by the Plaintiff
that offer was made to the Defendant to avail of
some other vacant premises for residence, has held
that the Rajarampuri premises though offered by the Plaintiff were not within the power of the Plaintiff to let out the same to the Defendant as it would result in subletting the premises which was prohibited by the Act. This finding clearly ignores the assertion of the Plaintiff that he would be in a position to provide that ::: Downloaded on - 09/06/2013 13:40:27 ::: : 42 :
accommodation to the Defendant. The Appellate Court then went on to observe that the Plaintiff, besides the Rajarampuri premises, had got possession of other five rooms in the same suit building during the pendency of the trial and no hardship will be caused to the Plaintiff if the decree was to be refused. This reasoning has already been dealt with in the earlier part of this decision. For, it overlooks the mandate of Section 25 of the Act, the said premises could be used only for residential use and not for non-residential purposes which was the requirement of the Plaintiff. There was no other premises available with the Plaintiff for the stated requirement of his wife to start a montessory school. Taking overall view of the matter, even the finding reached by the Courts below on the issue of comparative hardship is on applying incorrect test, and is manifestly wrong, as it fails to refer to the relevant evidence already on record which, if reckoned, would lead to inevitable conclusion that the Plaintiff would suffer greater hardship in the event of refusal to pass decree of eviction.::: Downloaded on - 09/06/2013 13:40:27 :::
: 43 :
22. During the course of arguments, it was
pointed out that the original Defendant has already expired during the pendency of the Suit, leaving behind only two daughters who are also married and staying elsewhere. Obviously, this additional circumstance can also be taken into account to answer the point in issue as the said facts are not disputed. Even otherwise, as observed earlier, there is ample material on record to answer the issue under consideration in favour of the Plaintiff and against the Defendant.
23. Accordingly, this Writ Petition ought to succeed and the rule made absolute. The impugned Judgment and Decree passed by the Additional District Judge, Kolhapur dated 27th August 1990 in Regular Civil Appeal No.382 of 1984 is set-aside.
Instead, the decree of eviction and possession of the suit premises in favour of the Petitioners/Plaintiffs passed by the Trial Court dated 28th September 1984 in Regular Civil Suit No.165 of 1975 is restored. In view of the above, the claim of mesne profits from filing of the Suit till delivery of the possession of the suit ::: Downloaded on - 09/06/2013 13:40:27 ::: : 44 :
premises be determined as per Order 20 Rule 12 of the Code of Civil Procedure, 1908.
24. Petition is allowed on the above terms with costs.
A.M.KHANWILKAR, J.
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