Bombay High Court
Hariprasad S/O Babulal Mehadia (Dead ... vs M/S Mehadia And Sons (Sitabuldi), ... on 11 March, 2016
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
WP2735.15.odt 1/47
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.2735 OF 2015
PETITIONERS: 1. Hariprasad S/o Babulal Mehadia (dead)
through his Legal Representatives:
(Orig. Plaintiffs)
a) Kesharibai wd/o Hariprasad Mehadia,
Aged about 70 years, Occ. Business,
b) Gajadhar S/o Hariprasad Mehadia, Aged
about 51 years, Occ. Business,
c) Sanjay S/o Hariprasad Mehadia, Aged
ig about 47 years, occ. Business,
All r/o 165, Bajaj Nagar, Nagpur.
d) Rajani w/o Kamalkishore Agrawal, Aged
about 50 years, occ. Household, R/o C-
39-40, Netaji Nagar, near S. K. Trading
Co, Nagpur.
e) Anju W/o Pramod Agrawal, Aged about
43 years, Occ. Household, R/o
Vishnupriya, Muktanand Nagar
Khamgaon.
2. Kesharibai Wd/o Hariprasad Mehadia,
Aged about 70 years, Occ. Business, R/o
165, Bajaj Nagar, Nagpur.
3. Kaushal W/o Bharat Bhushan Mehadia,
Aged about 53 years, Occ. Business, R/o
opp. Regal Cinema, Main Road,
Sitabuldi, Nagpur.
-VERSUS-
RESPONDENTS: 1. M/s Mehadia & Sons (Sitabuldi), A
partnership firm having its registered
(Ori. Defendants)
office, Op. Regal Cinema, Main Road,
Sitabuldi, Nagpur.
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2. Syamsunder Mandangopal Agrawal,
Aged about 75 years, Occ. Business, C/o
M/s Mehadia & Sons (Sitabuldi), Main
Road, Sitabuldi, Nagpur.
3. Vijay Kumar Mandangopal Agrawal,
Aged about 65 years, Occ. Business, C/o
M/s Mehadia & Sons 9Sitabuldi), Main
Road, Sitabuldi, Nagpur.
Shri M. G. Bhangde, Senior Advocate with Shri B. B. Mehadia,
Advocate for the petitioners.
Shri J. M. Gandhi, Advocate for the respondents
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 23-12-2015.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 11-03-2016.
ORAL JUDGMENT :
1. Rule. In view of notice for final disposal issued on 8-5-2015, the writ petition is heard finally with the consent of the learned Counsel for the parties by making the Rule returnable forthwith.
2. By this writ petition filed under Article 227 of the Constitution of India, the petitioners who are the original plaintiffs
- landlords seek eviction of the respondents who are the original defendants - tenants. The decree for eviction passed by the trial Court in favour of the petitioners has been reversed by the appellate Court as a result of which the suit for possession has ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 3/47 been dismissed.
3. Certain facts that are found relevant for deciding the writ petition are that the plaintiffs are the owners of the Municipal House No.12 and 12/1 admeasuring about 2392 sq. ft. The ground floor premises admeasures about 1618.87 square ft. The respondents are in occupation of constructed area admeasuring 1171.50 sq. ft. as tenants of one Shri B. S. Mahajan paying rent of Rs.202.93 per month. By virtue of two sale deeds dated 13-1-1999 executed by said Shri B. S. Mahajan in favour of the petitioners, they claim to have become absolute owners of the said property.
After the sale deeds were executed, the petitioners' vendor issued a notice of attornment dated 21-1-1999. The respondents were called upon to make payment of monthly rent of Rs.202.93 per month to the petitioners. According to the respondents, said Shri B. S. Mahajan had entered into an oral agreement of sale of the suit premises with them on 18-9-1998 for a consideration of Rs.5,50,000/-. The respondents, therefore, called upon the said Shri B. S. Mahajan to complete the oral agreement. The petitioners thereafter issued a notice dated 16-4-1999 to the respondents demanding rent for the period from February 1999 and onwards.
In the meanwhile, the respondents filed Special Civil Suit No.389/1999 for specific performance of the oral agreement dated ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 4/47 18-9-1998. In the said suit, the petitioners as well as their vendor were impleaded as the defendants. The petitioners filed a counter claim seeking permanent injunction. On 17-12-1999 another notice was issued by the petitioners demanding rent from the respondents but in reply, the respondents denied the ownership of the petitioners. Ultimately, on 1-4-2004, the petitioners issued a notice under Section 15(2) of the Maharashtra Rent Control Act, 1999 (for short, the said Act) demanding arrears of rent from February, 1999 to March, 2004. In reply the ownership of the petitioners was denied. The petitioners filed Civil Suit No.202 of 2005 on 12-4-2005 seeking eviction of the respondents on the ground that they were in arrears of rent and that the petitioners were in bonafide need of the suit premises under provisions of Section 16(1)(g) of the said Act.
4. As regards the claim for eviction on the ground of arrears of rent, it was the case of the petitioners that the respondents were in arrears of rent from February, 1999 onwards.
The demand notice dated 1-4-2004 issued under Section 15(2) of the said Act was not complied with. The amount of arrears of rent was Rs.15,016.82. As regards the claim on the ground of bonafide need is concerned, it was the case of the petitioners that the premises in question were required to meet the growing needs of ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 5/47 the family members for the purposes of residence as well as for the purposes of business.
The respondents filed their written statement below Exhibit-133 and denied the claim of the petitioners. They took the stand that there was no relationship of landlord and tenant between the petitioners and themselves. Reference was made to the oral agreement dated 18-9-1998 entered into with the vendor of the petitioners. The claim for eviction on the ground of arrears of rent was denied on the ground that the rent had been sent to the vendor of the petitioners and that subsequently the amount of arrears had been deposited in the Court as per the requirements of Section 15(3) of the said Act. Similarly, the claim on the ground of bonafide need was also denied by stating that the properties in occupation of the petitioners was sufficient to satisfy their requirements.
5. The petitioners examined Shri Hariprasad Mehadia, the original plaintiff no.1 and Shri B. B. Mehadia who was the husband of the petitioner No.3 in support of their case. He was examined below Exhibit-52. The respondents examined the respondent No.3 as their witness below Exhibit-71. Two other witnesses namely Shri Shailendra Anand below Exhibit-76 and Shri Anil Agrawal below Exhibit-79 were also examined.
::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 6/476. The trial Court by judgment dated 15-11-2007 decreed the suit filed by the petitioners. Regular Civil Appeal No.23/2008 filed by the respondents was dismissed on 4-8-2010. Writ Petition No.4542/2010 filed by the respondents was partly allowed on 11-9-2011 and the proceedings were remanded to the trial Court with liberty to the parties to amend their pleadings and to lead evidence in support of their respective cases. Letters Patent Appeal No.497/2011 filed by the petitioners was dismissed on 31-3-2012 and Special Leave Petition No.19899/2012 filed by them was also dismissed on 2-12-2013.
After remand of the proceedings both the parties amended their pleadings. The petitioner Nos.1 & 2 stated that their bonafide need was only with regard to using the suit premises for commercial purposes. Shri B. B. Mehadia was again examined below Exhibit-138. The respondents examined the respondent No.3 below Exhibit-158 and another witness, Shri Pradip Wadibhasme at Exhibit-178. The trial Court thereafter held that the petitioners had proved that the respondents were in arrears of rent. It also held that the petitioners had proved their bonafide need for the occupation of the suit premises. It was held that greater hardship would be caused to the petitioners if the decree for possession was not passed. By judgment dated 21-6- ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 7/47 2014, the trial Court decreed the suit for possession.
The appellate Court after hearing both the sides held that the petitioners had not established the relationship of landlord and the tenant as the suit for specific performance filed by the respondents was still pending. It further held that the respondents were not in arrears of rent having deposited the rent from time to time. It further held the petitioners had not proved their boanafide need for the suit premises and that they had also not proved the aspect of comparative hardship. Thus, by judgment dated 8-4-2015, the appellate Court allowed the appeal and dismissed the suit. This judgment is under challenge in the writ petition.
7. On behalf of the petitioners Shri M. G. Bhangde, learned Senior Counsel along with Shri B. B. Mehadia learned Counsel made the following submissions:
(a) The attornment of tenancy in favour of the petitioners was not a requirement for conferring validity to the transfer of title in favour of the petitioners. It was submitted that however a notice of attornment dated 21-1-1999 (Exhibit-30) had been issued to the respondents and that they were liable to pay rent to the petitioners. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Dr. Ambica Prasad Vs. Md. Alam and another 2015 (4) SCALE 605 in that regard. It was, therefore, ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 8/47 submitted that the appellate Court could not have held that the petitioners were not landlords of the respondents. It was also submitted that the petitioners having acquired the title on the basis of two registered sale deeds dated 13-1-1999, the pendency of the suit for specific performance against the erstwhile owner would not affect the title of the petitioners.
(b) That under Section 15(1) of the said Act, it was incumbent upon the tenant to comply with the terms and conditions of the tenancy. The respondents having denied the title of the petitioners as landlords, they were not entitled for any protection under Section 15(1) of the said Act. Reliance was placed on the judgment of the Hon'ble Supreme Court in Keshar Bai Vs. Chhunulal 2014(1) SCALE 170 and the judgment of the Gujarat High Court in Nanduben Dayalji v. Bhatia Ranchhoddas lalji and another AIR 1977 Gujarat 173 in that regard.
(c) The respondents having failed to comply with the requirements as contemplated by provisions of Section 15(3) of the said Act, they were not entitled for any protection against the forfeiture of the tenancy. It was submitted that the respondents were in arrears of rent and had not deposited the same as required by Section 15(3) of the said Act. Similarly, even during pendency of the proceedings before the trial Court as well as the appellate ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 9/47 Court, the respondents were not regular in depositing the arrears of rent. Reference was made to the certificate at Exhibit-145 issued by a Chartered Accountant indicating the arrears of rent.
It was, therefore, submitted that having failed to comply with the statutory requirements of Section 15 of the said Act, the respondents were liable to be evicted on the ground of arrears of rent. Reliance was placed on the judgments in Ganpat Ladha v.
Sashikant Vishnu Shinde AIR 1978 SC 955, Bhimsen Gupta Vs. Bishwanath Prasad Gupta (2004) 4 SCC 95, Jaypal Bandu Adake and another Vs. Basavali Gurulingappa Mhalank and another 1982 Mh.l.J. 512, Shri Subhash Janardhan Kulkarni vs. Smt. Rajashree Avinash Pardeshi 2009 (3) Mh.L.J. 340 and Chandiram Dariyanumal Ahuja Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola 2013(1) Mh.L.J. 28.
(d) The bonafide need of the petitioners had been duly proved by the petitioners. It was submitted that after the remand of the proceedings, the pleadings had been amended giving various details about need of the petitioners. The said need was bonafide and the burden was on the tenant to rebut the presumption as regards genuineness of the need. It was submitted that one of the sons of the petitioner No.1 was required to do business in a tenanted premises. It was further submitted that the ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 10/47 acquisition of the additional premises at Bajaj Nagar and Ranapratap Nagar was only for residential purposes and said acquisition did not have any effect on the need of the petitioners for business purposes. The land at YMCA was neither useful nor relevant while considering the need of the petitioners. Reliance was placed on the decision in Smt. Ramkubai vs. Hajarimal Dhokalchand Chandak AIR 1999 SC 3089 and Shankar Bhairoba Vadangekar vs. Ganpati Appa Gatare 2001(4) Mh.L.J. 131 in that regard.
(e) Merely because the proceedings had been remanded to the trial Court, the evidence led prior to the remand could not have been ignored and evidence already recorded before the remand would not get wiped off. Reference was made to the decision in United Bank of India, Calcutta vs. Abhijit Tea Co. Pvt.
Ltd. And others AIR 2000 SC 2957 in that regard.
(f) It was submitted that merely because the petitioners were represented by the husband of the petitioner No.3 who was also an Advocate and the power of attorney holder, the case of the petitioners could not be discarded. Reference was made to the order passed by the trial Court below Exhibit-53 whereby the objection raised to such participation by the power of attorney holder/Advocate had been rejected. It was urged that as the ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 11/47 power of attorney holder was having personal knowledge of the case of the petitioners and was also related to the petitioner No.3 being her husband, it was not necessary for the plaintiffs to have entered the witness box.
It was, therefore, submitted that the trial Court having rightly found the respondents to be in arrears of rent and the bonafide need of the petitioners having been found to have been duly proved, the appellate Court was not justified in reversing said finding on the grounds on which the same was done. It was, thus submitted that the impugned judgment deserves to be set aside and the decree passed by the trial Court deserves to be restored.
8. On behalf of the respondent, Shri J. M. Gandhi, learned Counsel for the respondents countered the aforesaid submissions and urged as under:-
(a) The respondents were not in arrears of rent and were not liable to be evicted under provisions of Section 15 of the said Act. It was submitted that in the suit as filed for eviction there was a prayer for passing a decree for an amount of Rs.7,305.48 while the respondents had deposited an amount of Rs.20,000/- in the Court on 20-6-2005. By referring to the deposition of the witness examined on behalf of the petitioners, it was submitted that various deposits of rent had been made by the respondents from ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 12/47 time to time which indicated that the respondents were in arrears of rent. The amounts deposited were as per the pleadings as made in the suit prior to its amendment. In that regard, a reference was made to the judgments of the Hon'ble Supreme Court in Advaita Nand v. Judge, Small Cause Court, Meerut and others (1995) 3 SCC 407, Mohan Laxman Hede v. Noormohamed Adam Shaikh AIR 1988 SC 1111, Vatan Mal v. Kailash Nath (1989) 3 SCC 79, Ajai Agarwal and others v. Har Govind Prasad Singhal and others AIR 2006 SC 282, Ibrahim Abdulrahim Shaikh v. Krishanamorari Sripatlal Agarwal (1995) 1 SCC 265, C. Chandramohan v. Sengottaiyan AIR 2000 SC 568 and Ashok Kumar v. Rishi Ram 2002 (7) SRJ 375.
(b) There was no question of forfeiture of tenancy as urged by the petitioners. It was submitted that the respondents had not denied their status as tenants and it was their case that the vendor of the petitioners Shri B. S. Mahajan was their landlord.
A suit for specific performance of the oral agreement of sale was pending in the civil court and hence, until the same was decided, the respondents were justified in not accepting the petitioners as their landlords. It was urged that as the provisions of the said Act were applicable and were invoked by the petitioners for evicting the respondents, the provisions of Section 111(g) of the Transfer of Property Act, 1882 would not apply. If the ground with regard ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 13/47 to forfeiture of tenancy was sought to be canvassed, a notice under Section 106 of the Transfer of Property Act, 1882 was necessary.
In this background, the denial of title of the petitioners was bonafide and, therefore, there was no question of forfeiture of tenancy. The learned Counsel placed reliance on the judgments reported in Punjalal v. Bhagwatprasad AIR 1963 SC 120, Meenakshi Jain v. State AIR 1998 MP 78, Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajakhan Mus AIR 2006 Allahabad 115 and Gulam Mohd. Khan (Dead) v. Gulam Nabi Channu Miya (dead) through L.Rs 2010(2) CLJ 278.
(c) The petitioners had examined Shri B.B. Mehadia as their witness in whose favour they had executed a power of attorney. Said Shri B.B. Mehadia is the husband of the petitioner No.3. It was not permissible for him to act in the dual capacity of being a witness for the petitioners and also appearing as their Counsel. Such course was not permissible and, therefore, his evidence in support of the claim for eviction did not deserve to be taken into consideration. As the power of attorney holder was aware that he would be required to lead evidence in support of the claim of the petitioners, he could not have also acted as their Counsel. Reliance was placed on the judgment in Vinoy Kumar v.
State of U.P. AIR 2001 SC 1739, Oil & Natural Gas Commission v.
::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 14/47offshore Enterprises Inc. AIR 1993 Bombay 217 and R. K. Agarwal v.
Rana Harishchandra Ranjitsingh AIR 1994 Bombay117.
(d) After remand of the proceedings pursuant to the judgment in Writ Petition No.4542/2010, the evidence that was already on record stood wiped of and the same could not have been taken into consideration. Only the evidence that was led after the demand was required to be taken into consideration. The original plaintiff No.1 had expired after the order of remand had been passed and therefore after remand his deposition could not be considered. Though liberty was granted to amend the pleadings only with regard to the bonafide need of the petitioners, the entire plaint had been amended thereby causing prejudice to the case of the respondents. Reliance was placed on the decisions in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. And others AIR 2005 SC 439 and Popcorn Entertainment Corporation & Anr. v. The City Industrial Development Corporation and Anr. 2009 (6) ALL MR 133.
(e) As the suit for specific performance filed by the respondents was pending in the civil court in which the petitioners had also filed their counter claim, unless the question of title was decided, the present proceedings were not maintainable and there was no jurisdiction with the Court to decide the same. The sale ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 15/47 deeds on the basis of which the petitioners were claiming title were itself under challenge and, therefore, the present proceedings ought to have been stayed till the aforesaid questions were decided by the civil court. In that regard the learned Counsel placed reliance on the decisions in Wilfred Lovette v. Ganesh AIR 1988 Bom.142 and Subhash Chand v. State of Haryana AIR 2011 SC 409.
(f) The respondents had failed to prove their bonafide need for the premises. Various material facts had been suppressed by the petitioners in the suit as was originally filed. The premises in occupation of the petitioners was sufficient to satisfy their need.
There was no evidence on record to indicate as to how the premises at Bajaj Nagar and Ranapratap Nagar that were in possession of the petitioners were not sufficient for satisfying their need. The various admissions in the cross examination of the petitioners' witness indicated the fact that the claim of the petitioners was not bonafide. The premises acquired during pendency of the proceedings was also a factor which was against the petitioners. None of the plaintiffs had examined themselves and only the evidence of the power of attorney holder came to be recorded. The need of the petitioners was, therefore, neither honest nor genuine to term the same as bonafide. The premises at YMCA were also available for use by the petitioner no.3 and her ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 16/47 husband. Moreover, there were no pleadings or evidence as to how the suit premises would be used by the landlords in case a decree was passed. In the absence of any partition between the petitioners who were claiming title on the basis of two different sale deeds, the case as pleaded did not deserve to be accepted. It was necessary for the petitioners to have approached the court with clean hands by giving details of all the properties owned by them, but the same was not done. Reliance was placed on the decisions in Sarvate T. B. v. Nemichand 1966 MPLJ 26, Gulabai v.
Nalin Narsi Vohra and others AIR 1991 SC 1760, Narendra v.
Shiocharan 2011(1) Mh.L.J. 839, and Shabbir Ahmed v. Shamlal AIR 2002 SC 1036.
Even on the question of hardship, it was submitted that the same was likely to be caused to the respondents in case a decree for eviction was passed. The respondents were conducting their medical business in the suit premises since 1954. It was, therefore, submitted that the respondents were not liable to be evicted from the premises.
It was, thus submitted that the appellate court was justified in setting aside the decree for eviction passed by the trial Court. There was no case made out to interfere with the judgment of the appellate Court and the writ petition was, therefore, liable ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 17/47 to be dismissed.
9. Before considering the aspect as to whether the petitioners have made out any case for evicting the respondents, certain ancillary challenges may be taken up first for consideration.
It may be stated that though the learned Counsel for the parties have referred to various judgments, reference is being made to those judgments that have been found relevant while deciding the challenges as raised.
ig The suit for eviction filed by the petitioners was initially decreed by the trial Court by judgment dated 15-11-2007.
This judgment and decree was set aside by the appellate Court vide judgment dated 4-8-2010. This judgment, in turn, was challenged by the petitioners in Writ Petition No.4542/2010. The learned Single Judge by judgment dated 19-9-2011 partly allowed the writ petition and set aside the judgment of the appellate Court as well as the judgment of the trial Court. The proceedings were remanded to the trial Court to decide the same afresh. While doing so it was observed thus:
"26.................................................................. The matter is remanded back to the Trial Court to deal with Regular Civil Suit No.202 of 2005 afresh by granting the parties an opportunity to amend their pleadings, framing proper issues, and permitting the parties to lead evidence, and to decide the said suit in accordance with law as per the ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 18/47 time-table framed as under."
The judgment of the learned Single Judge was challenged by the petitioners in Letters Patent Appeal No.497/2011. By judgment dated 31-3-2012, the Division Bench dismissed the Letters Patent Appeal and maintained the order of remand passed by the learned Single Judge. It is informed that the Special Leave Petition filed by the petitioners challenging aforesaid judgment was also dismissed. Thus, in effect, the order of remand passed by the learned Single judge stands confirmed.
10. According to the learned Counsel for the respondents though liberty was granted to amend the pleadings only with regard to the claim for eviction on the ground of bonafide need, the petitioners carried out substantive amendments in the plaint.
Similarly, it was urged that it was not open for the trial Court and the appellate Court to take into consideration the evidence that was led before the order of remand.
These submissions cannot be accepted in view of the fact that the entire proceedings had been remanded and the trial Court had been directed to deal with Civil Suit No.202/2005 afresh by granting the parties an opportunity to amend their pleadings and also to lead evidence. The order of remand was, therefore, not a restricted order in that sense and the entire ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 19/47 proceedings had been remanded for being decided afresh. Hence, the ratio of the judgment in Popcorn Entertainment Corporation and another (supra) cannot be made applicable to the facts of the present case. There was no limitation imposed on the parties in the matter of amending their pleadings or in the matter of leading evidence. Hence, this contention raised on behalf of the respondents cannot be accepted.
11. The next aspect is with regard to the power of attorney holder of the petitioners leading evidence on their behalf and also acting as their Advocate. The petitioners relied upon the evidence led by their power of attorney holder Shri B. B. Mehadia. He was examined vide Exhibit-52 and Exhibit-138. According to the respondents, Shri B. B. Mehadia was the husband of the petitioner No.3 and had deposed as the power of attorney holder of the petitioners. He had also appeared as their Advocate and the same was not permissible. He could not have acted in a dual capacity both as their witness as well as their Counsel.
This submission on behalf of the respondents was sought to be buttressed by the learned Counsel for the respondents by relying upon various decisions. In Vinoy Kumar (supra), various criminal cases were transferred from the Court of one learned District and Sessions Judge to the Court of another learned District ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 20/47 and Sessions Judge. An Advocate representing the accused persons in the transferred cases filed a writ petition challenging the said order. This writ petition was filed by the Advocate in his own name and it was held that filing of such writ petition by the said Advocate was not a part of the professional obligation of the Advocate. It was held that the said Advocate had no locus standi to filing the writ petition.
In R. K. Agrawal (supra), it was held that an Advocate's duty of good faith and trusteeship would prevent him from acting as an Advocate and witness in the same case unless he is a formal witness. It was observed that it was undesirable that the Advocate should testify either for or against the party whose case he is conducting.
In Oil and Natural Gas Commission (supra), it was held that in case of any conflict between interest and duty, the Advocate must yield in favour of his duty to assist the cause of fair and impartial justice. It was observed that an Advocate acting in a personal capacity must be totally independent and detached from his client or recognized agent.
In Kamla Bakshi (supra), it was observed that where an Advocate knows that he is a material witness in a case and that he would have to appear as such at any point of time, he should ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 21/47 not continue to appear as a Counsel. Similar view has been taken in Rajendra Nagrath and Ramprasad (supra). It was held that provisions of Order III Rule 2 of the Code of Civil Procedure, 1908 wherein the word "acts" have been used do not include the act of a power attorney holder to appear as a witness on behalf of a party.
In Usha Rangnathan (supra), it was held that a power of attorney holder cannot be allowed to depose on behalf of the principal of matters which would be within the knowledge of the principal. In Rompi Cheria (supra), it was observed that as long as a Counsel is not required by the Court to figure as a witness, he can continue as a Counsel and if he is required to figure as a witness then he should retire from the case to enable the party to engage another Counsel.
12. From the aforesaid decisions, it is clear that when an Advocate knows that he would be cited as a witness for being examined during the course of the proceedings, he should ideally cease to act as an Advocate and retire from the case so as to avoid embarrassment. In the present case, however, it is to be noted that the petitioners had executed a power of attorney in favour of Shri B. B. Mehadia, the husband of the petitioner No.3. The said power attorney holder is a member of the family of the petitioners and more particularly the husband of the petitioner No.3. Said ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 22/47 power of attorney holder is related to the petitioners and, therefore, it cannot be said that he was acting as an Advocate exclusively in professional capacity. He is in fact, the brother of the plaintiff No.1 and brother-in-law of the plaintiff No.2. In the facts of the present case, therefore, when the power of attorney holder is a member of the family of the landlords and is also an Advocate, it could not be said that his continuation to act as an Advocate after he had examined himself as a power of attorney holder of the petitioners would have caused embarrassment. It is to be noted that the trial Court vide order passed below Exibhit-53 had permitted the continuation of Shri B. B. Mehadia to act as Advocate for the petitioners. This order passed by the trial Court was not challenged by the respondents at any point of time.
Moreover, the respondents while supporting the judgment of the appellate Court have also relied upon the statements made by said witness in his cross examination to urge that the dismissal of the suit by the appellate Court was legally justified. Hence, this submission on behalf of the respondents cannot be accepted.
13. Turning to the merits of the challenge, it would first be necessary to consider the aspect of attornment of tenancy. After purchasing the suit property vide sale deeds dated 13-1-1999, the vendor of the petitioners Shri B. S. Mahajan issued a notice of ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 23/47 attornment which is at Exhibit-30. It has been stated therein that the petitioners have become owners of the suit property and hence, the respondents should pay rent to them. This notice was received by the respondents. According to the respondents, they have not accepted the petitioners as their landlords as they claimed entitlement to the suit property on the basis of an oral agreement to purchase the suit property dated 18-9-1998.
In this regard, it is to be noted that in the earlier round of litigation this aspect as regards attornment of tenancy was considered in Writ Petition No.4542 of 2010. In paragraphs 18 and 19 of the judgment dated 19-9-2011, a finding has been recorded that the rights of tenancy have been attorned in favour of the petitioners by the erstwhile owner. It is further observed that the respondents are not the owners of the suit property and the suit filed by them for specific performance of the contract against the petitioners and erstwhile owner was pending. This finding has not been disturbed either in the Letters Patent Appeal or in the Special Leave Petition before the Hon'ble Supreme Court. Even otherwise, it is to noted that under Section 109 of the Transfer of Property Act, 1882, the transfer of the right of the landlord is not dependent on the tenant attorning to him. As held by the Hon'ble Supreme Court in Dr. Ambikaprasad (supra) an attornment by the tenant is ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 24/47 not necessary to confer validity on the transfer of the landlord's right. It was further held that as attornment by a tenant is not required, a notice issued under Section 106 of the Transfer of Property Act, 1882 in terms of the earlier lease by the transferor landlord would be proper. Hence, in view of the notice of attornment dated 21-1-1999 issued by the erstwhile owner, it was necessary for the respondents to have paid rent to the petitioners who had become landlords by virtue of purchasing the suit property.
14. Much emphasis was laid by both the parties on the aspect of denial of title of the petitioners by the respondents. This denial of title is contained in the reply dated 6-1-2000 as well as the reply dated 6-4-2004 issued by the respondents. The denial of title is based on the ground that the respondents claimed to have entered into an oral agreement of sale in respect of the suit property with the erstwhile owner on 18-9-1998. The respondents having filed Special Civil Suit No.389/1999 for specific performance have taken a stand that they are the tenants of the erstwhile owner and they had not recognized the petitioners as their landlords.
It is well settled that while it is not open for a tenant to question the title of the landlord who has inducted him in the ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 25/47 premises, it is open for a tenant to question the derivative title of the landlord to whom the property has been transferred. Reference in this regard can be usefully made to the judgment of the Hon'ble Suprme Court in Subhashchandra Vs. Mohammad Sharif and others (1990) 1 SCC 252. In the present case, the respondents have challenged the derivative title of the petitioners. Considering the fact that the respondents have not challenged the title of the original owner as their landlord coupled with the fact that they have also filed a suit for a specific performance of the agreement dated 18-9-1998, it cannot be said that this denial of title is not bonafide. The title has not been denied merely as a matter of course. The respondents rely upon an oral agreement of sale in their favour along with the fact that they have sought specific performance of the said agreement. In view of these facts, the submission made on behalf of the petitioners that having denied the title of the petitioners, the respondents were not entitled for any protection under said Act cannot be accepted.
15. The other limb of argument made on behalf of the petitioners is that as the respondents have not accepted the relationship of landlord and the tenant between them, they have not followed the other terms of tenancy as stipulated by Section 15(1) of the said Act. In this regard heavy reliance was placed on ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 26/47 the judgment of the Gujarat High Court in Nanduben Dayalji (supra). While considering the provisions of Section 12(1) of the Bombay Rents Hotel and Lodging House Rents Control Act, 1947, it was held that while seeking protection of the Act in question, the acceptance of relationship of the landlord and tenant is necessary.
It has been further observed that the expression "the other conditions of tenancy" used in Section 12(1) of the Act of 1947 would mean the conditions of tenancy other than one relating to payment of rent which has been expressly specified in sub-section (1) of Section 12. It was, therefore, held that when such a condition is pressed into service by a landlord to evict his tenant, the same can be given effect to and a decree for possession can be passed against him if it is consistent with the provisions of the Act of 1947. Once it is proved by the landlord that their exists between the parties the relationship of landlord and tenant, the landlord is entitled to maintain a suit under the provisions of the Rent Act to recover possession. The judgments in Wilfred Lovette and Subhash Chand (supra) are clearly distinguishable on facts.
In the present case, the relationship of landlord and tenant stands established in view of the notice of attornment dated 21-1-1999. It was, therefore, incumbent upon the respondents to have paid rent to the petitioners and also to have observed the other conditions of the tenancy at least from 21-1-1999 which is ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 27/47 the date of the notice of attornment. Thus, having held that the relationship of landlord and the tenant stands established between the parties and that denial of title by the respondents was not totally unjustified, it would be necessary to consider the grounds on which the eviction of the respondents has been sought.
16. According to the petitioners, the respondents are in arrears of rent and are, therefore, liable to be evicted on said ground. The petitioners have issued a notice under Section 15(2) of the said Act on 1-4-2004 vide Exhibit-36. In said notice, a demand has been made to the respondents to pay arrears of rent from February 1999 till March, 2004. This notice was replied by the respondents on 6-4-2004 denying the relationship of landlord and tenant. On 1-4-2005, the suit for possession came to be filed.
In the plaint, it has been stated that arrears of rent from 1-2-1999 till 31-3-2005 are Rs.15,016.82. However, the petitioners were restricting their claim on account of limitation for the period from 1-4-2002 till 31-3-2005 which amount came to Rs.7305.48.
According to the petitioners, for claiming the relief against the forfeiture of tenancy on account of arrears of rent, the respondents should have paid the entire amount of arrears along with permitted increases with simple interest @ 15% per annum. The amount of interest as calculated @15% per annum on the amount ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 28/47 of arrears of Rs.15,016.82 was Rs.7039.14. Thus, according to the petitioners, the total arrears as on 1-4-2005 were Rs.22,055.96.
The petitioners relied upon the certificate at Exhibit-145 issued by their Chartered Accountant showing aforesaid calculations.
17. In the written statement, it has been stated by the respondents that the calculations as made by the petitioners were incorrect and that the claim included the arrears that were barred by limitation. An amount of Rs.20,000/- was deposited by the respondents on 20-6-2005 which was the first date of hearing as per Exhibit-13. According to the respondents, this amount included the suit claim of Rs.7305.48 as well as advance rent for a period of one year from April, 2005 till March, 2006.
In the deposition of the witness examined on behalf of the respondents, it was admitted that the amount of arrears prior to April 2002 that were not claimed in the suit had not been paid.
It was further admitted that the amount of arrears from January, 1999 till March, 2002 had not been deposited in the Court. It was stated that said rent was paid to the erstwhile landlord by way of money orders. These money order receipts were placed on record at Exhibit-162.
18. Under the provisions of Section 15(2) of the said Act, the landlord has to first issue a notice of demand to the tenant ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 29/47 calling upon him to pay standard rent or permitted increases that are due. A suit for recovery of possession on the ground of non-
payment of standard rent or permitted increases can be filed only after expiry of 90 days from the service of the demand notice in case the arrears are not paid. On such non-payment of arrears, if a suit for eviction is filed by the landlord, then under provisions of Section 15(3) of the said Act the tenant has to pay or tender in the Court the standard rent and permitted increases 'then due' along with simple interest on the amount of arrears @15% per annum.
He has thereafter to continue to pay or tender in the Court regularly such standard rent and permitted increases.
While it is the case of the petitioners that the requirements of Section 15(3) of the said Act have not been complied with by the respondents, it is the stand of the respondents that having deposited the amount claimed in the suit along with advance rent for the subsequent period of one year, the provisions of Section 15(3) of the said Act have been complied with. It is necessary to note that under provisions of Section 15(2) of the said Act, a claim for the arrears of standard rent or permitted increases can be made. Though a landlord may not be in a position to recover time barred arrears of rent and the claim in the suit is restricted for the period of arrears that are within ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 30/47 limitation, the provisions of Section 15(3) of the said Act require the tenant to pay or tender in the Court the arrears of standard rent and permitted increases 'then due'. The use of the words 'then due' would clearly indicate that it is the duty of the tenant to deposit the entire arrears that have fallen due atleast till the date of service of the suit summons. The effect of the words 'then due' cannot be restricted to mean arrears that are due excluding the arrears that cannot be recovered due to the bar of limitation.
The scheme of Section 15 of the said Act does not indicate that a tenant would be saved from eviction only he paid the arrears of rent that were due and claimed within a period of limitation.
The words "then due" appear to have been deliberately used by the Legislature so as to protect a tenant from eviction if he pays all the arrears of standard rent and permitted increases with simple interest and also with a view to ensure that the landlord receives all the arrears of rent "then due" with interest.
19. A some what similar question fell for determination in Prabhakar V. Manekar Vs. Surendra D. Sharma 2015 (4) Mh.L.J.
351. The question was as to whether time barred rent could be claimed by a landlord in a suit for eviction on the ground of arrears of rent. In paragraph No.12, it was observed thus:
::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 31/47"12. The expression "then due" was used in the provisions of section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which stood repealed as a result of said Act coming into force. Considering similar arguments as advanced that if the amounts that were claimed to be due could not be recovered on account of bar of limitation, then the tenant could not be evicted for being in arrears of such dues, learned Single Judge in Karamchand Deoji Sanghavi vs. Tulshiram Kaluy Kumawat, 1992 Mh.L.J. 560, held that if the tenant intended to seek protection from eviction then the entire amount of arrears even if time barred were required to be paid. It was held that the ig provisions of section 12 of the Bombay Rent Act did not alter the entitlement of the landlord in the light of law of limitation.
In Sriniwas Babulal (supra) relied upon by the learned Counsel for the respondent it was held that the demand of time barred rent in a notice issued under section 15 of the said Act was not fatal and it was incumbent on the tenant to pay even time barred arrears. It is, therefore, clear that the expression "then due"
will have to be construed to include amount of arrears that were due and payable disregarding the fact that part thereof had become time barred. In Khadi Gram Udyog Trust vs. Ram Chandraji Virajman Mandir, Sarasiya Ghat, Kanpur, (1978) 1 SCC 44, it was held by the Supreme Court that even if the remedy was barred, the debt was not extinguished and if the tenant wanted to seek benefit of the statute then for avoiding the decree of eviction, the amounts due were required to be paid. Hence, the expression "then due" in section 15(3) of the said Act would include the amount of arrears even prior to three years of such notice."
In Bhimsen Gupta (supra) that was relied upon by the learned Counsel for the petitioners, it has been clearly held that ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 32/47 the law of limitation bars the remedy of the landlord to recover the rent for the period of three years prior to the institution of the suit, but the same cannot be a ground for defeating the claim of the landlord for a decree of eviction on the ground of arrears of rent.
It is, therefore, clear that it would not be open for the tenant to contend that though part of the arrears of standard rent and permitted increases are due and payable, the same would not be paid as the claim in that regard is barred by limitation. For the purposes of seeking protection from eviction, it would be necessary for the tenant to comply with the requirements of Section 15(3) of the said Act which would include the payment of arrears of standard rent and permitted increases 'then due' with simple interest @ 15% per annum.
20. In the present case, the respondents have only paid that part of the arrears of rent for which the claim was within limitation, but have not paid that part of the arrears of rent that were beyond the period of limitation. The fact that the entire arrears of rent till 31-3-2005 along with 15% interest amounted to Rs.22,055.96 is clearly proved by the certificate at Exhibit.145.
There is no rebuttal to the calculations made therein. On the contrary, it is the specific case of the respondents that only that part of the arrears that were within limitation and claimed in the ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 33/47 suit had been paid along with advance rent for the subsequent year. The deposit of Rs.20,000/- on the first day of hearing falls short of the total arrears of standard rent and permitted increases 'then due' along with simple interest @Rs.15% per annum. Thus, failure to pay or tender the amount of arrears of standard rent and permitted increases 'then due' renders the respondents liable for eviction under provisions of Section 15(3) of the said Act.
21. The appellate Court while holding that the respondents were not in arrears of rent failed to take into consideration this aspect of the matter. It has proceeded on the basis that as the petitioners had claimed only those arrears that were recoverable as per the law of limitation, the deposit of Rs.20,000/- by the respondents was sufficient. Another reason given by the appellate Court is that as the suit for specific performance was pending and the title to the suit property was not yet decided finally, failure to deposit rent would not attract provisions of Section 15 of the said Act. It has, therefore, concluded that the petitioners could not be treated as the landlords and, therefore, could not take recourse to the provisions of Section 15 of the said Act. Considering the position of law referred to herein above in the matter of liability of the tenant to pay all arrears 'then due', the aforesaid conclusion of the appellate ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 34/47 Court cannot be sustained. On account of failure to comply with provisions of Section 15(3) of the said Act, which are mandatory in nature the respondents are liable to be evicted. The decisions relied upon by the respondents in that regard are clearly distinguishable as they do not relate to the aspect of the claim for arrears of rent "then due" or being time barred.
Payment of rent to the erstwhile landlord even after he had issued to notice of attornment on 21-1-1999 also does not save the respondents from eviction as the erstwhile owner ceased to be their landlord after the sale of the suit property. Though it was urged on behalf of the petitioners that even after filing of the suit, the respondents had not been regular in depositing the amount of rent which aspect was countered by the respondents, nothing much would turn on said aspect once it is found that there has been non-compliance with the provisions of Section 15(3) of the said Act on account of failure to pay or tender in Court the entire areas then due.
22. The other ground for seeking eviction is under Section 16(1) (g) of the Act. In the plaint as amended, it has been stated that the family of the plaintiff no.1 Shri Hariprasad consists of his wife - Keshribai and two sons Shri Gajadhar and Shri Sanjay.
They also have two daughters who are married. Shri Gajadhar has ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 35/47 two daughters while Shri Sanjay has one daughter. It is stated that Shri Hariprasad was running the business of cloth under the name of Pooja Saris on the first floor of the suit premises. Shri Sanjay is working in the firm of M/s Puja Saris, a proprietory concern of the plaintiff No.1. Said Shri Hariprasad, however, expired during pendency of the proceedings on 7-6-2013. It is then pleaded that Shri Gajadhar is working in the firm M/s Shivani Saris which is the proprietory concern of the plaintiff No.2 - Keshribai. This concern is being run from a tenanted premises owned by Smt. Madhuribai Buty at Abhyankar Road. Both the sons intend to carry out the business independently.
In so far as the plaintiff No.3 is concerned, her family consists of her husband Shri Bharatbhushan and their two daughters. The plaintiff No.3 is associated with M/s Bhartiya Leasing Private Limited, while her husband is an Advocate. The husband of the plaintiff No.3 does not have any independent office and the plaintiff No.3 wants to start the business of boutique in the suit premises. It is stated that the plaintiff No.3 has 50% share in the entire suit premises and even if she is given her share, the requirement of the plaintiff No.3 and her family would be met with great difficulty. It is stated that the plaintiff No.3 is having a super built up area of about 550 sq. ft. on the first floor and a ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 36/47 temporary shed of about 140 sq. ft. that is used as a kitchen and 16 sq.ft. for WC. The terrace on the second floor of the building situated at Ranapratap Nagar admeasuring about 311.43 sq. mtrs., has been allotted to the husband of the plaintiff No.3 in a family settlement.
It is, therefore, stated that in case a decree for eviction is passed, the plaintiffs would get an area admeasuring about 1171.50 sq. ft., and the requirement of each of the plaintiffs would be met as far as possible.
23. In the written statement filed by the respondents these claims have been denied. Though it is admitted that the plaintiff No.1 was a Doctor in Homeopathy and the plaintiff No.2 was doing cloth business in the name of M/s Shivani Saris, it was stated that though the plaintiff no.2 was doing business in a rented premises owned by Smt. Madhuribai Buty, in some other proceedings, the plaintiff nos.1 and 2 have been allotted shops on ownership basis. It is denied that the sons Shri Gajadhar and Shri Sanjay are rendering any services for which they are paid remuneration. They are in fact partners in the business. It is stated that the plaintiffs owned various other properties including the property at Rana Pratap Nagar. It is stated that the sons of the plaintiff Nos.1 & 2 are in fact, managing all the business and they ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 37/47 do not require any other premises.
As regards need of the plaintiff No.3 is concerned, it is stated that M/s Mehadia Marketing Corporation Limited and Bhartiya Leasing Private Limited are having their own separate premises in YMCA Complex that have been taken on a lease for 30 years. It is stated that the plaintiff No.3 and her husband are also doing their business under the name Mehadia Institute of Career Development. The husband of the plaintiff No.3 has two offices one on the first floor of the suit premises and another in the YMCA Complex. It is then stated that the area allotted to the husband of the plaintiff No.3 at the premises at Ranapratap Nagar are available from where the plaintiff No.3 and her husband can carry on their activities. It is then stated that the husband of the plaintiff No.3 is a legal advisor of Apna Bhandar that is run by the Marketing Federation and he has been provided space for office premises.
The respondents in their written statement have also stated that the petitioner nos.1 and 2 are having premises admeasuring 2500 sq. ft. at Bajaj Nagar, the same having been purchased during pendency of the proceedings. It is, therefore, stated that the need as sought to be canvassed by the plaintiffs is not bonafide and, therefore, the plaintiffs are not entitled for a ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 38/47 decree on said ground.
24. For the purposes of considering the bonafide need of the petitioners, it would be necessary to note the total area of the premises in question. The plot area of the suit house is 26' X 92', which comes to about 2392 sq.ft. The constructed area on the ground floor is 1618.87 sq.ft. out of which an area of about 1171.50 sq.ft. is in possession of the petitioners. On the first floor also, the constructed portion is about 1618 sq.ft. which is in possession of the petitioners. Thus, possession of 1171.50 sq.ft. is sought by the petitioners from the respondents on account of their bonafide need.
The bonafide need as pleaded is with regard to enabling the two sons of the original plaintiff No.1 to start their own business. As noted above, one son Shri Sanjay is stated to be working in the proprietary concern of the plaintiff No.1, while the other son Shri Gajadhar is working in proprietary concern of the plaintiff No.2. Both the sons are concerned with the Sari business.
The premises in question are required only for the purposes of commercial use and the need of residential purpose has been given up. According to the petitioners, the sons of the original plaintiff No.1 would require about 600 sq.ft. of area on the ground floor and it is stated that except these premises, they do not own any ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 39/47 other non-residential premises. In the cross-examination of the witness examined on behalf of the petitioners, it is sought to be suggested that only a show has been made to the effect that the said two sons of the original plaintiff No.1 were working in the respective firms. The income-tax returns of the original plaintiff No.1 and plaintiff No.2 were not placed on record and, therefore, according to the respondents, this was deliberately done to cover up the aspect of employment of the two sons. It is to be noted that both the firms namely M/s. Pooja Sari Center and M/s. Shivani Saris are proprietary concerns owned by the original plaintiff No.1 and plaintiff No.2. Though, both the sons may not be in actual employment in the aforesaid proprietary concerns, considering the fact that the same are owned by their parents, the fact remains that both the sons are engaged in Sari business that has been started by their parents.
25. It is a fact that the original plaintiff no.1 is no more.
It is admitted in the cross examination of the petitioners' witness that now Shri Sanjay is looking after said concern. It is not the case that after the death of the original plaintiff no.1, the other son Shri Gajadhar has staked any claim in M/s Pooja Sari Center.
According to the respondents, the proprietary concern run by the plaintiff No.2 under the name M/s. Shivani Saris is being ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 40/47 conducted in a tenanted premises at Abhyankar Road. According to the respondents, there was some compromise entered into with the owner of said premises Smt. Madhuri Buty and reference is made to an agreement in that regard, which is at Article-E. According to the respondents, the original plaintiff No.1 was to receive 1700 sq.ft. of area in the complex that was to be constructed after demolishing the existing structure. Therefore, according to the respondents, the need in so far as the sons of the plaintiff Nos.1 and 2 would be satisfied.
The agreement at Article 'E' to which the original plaintiff nos.1 and 2 were a party was not brought on record by the petitioners. The petitioners' witness was confronted with the same in his cross examination. The said witness did not claim to have detailed knowledge of the same. The respondents are justified in contending that the same was deliberately not produced on record as the same would have had affected the petitioners case of bonafide need. Further, it is not the case that there was any threat of eviction of Shri Gajadhar from said premises wherein the original plaintiff nos.1 and 2 were to receive 75% of the constructed area on ownership basis. There is also no evidence on record to indicate any intention on the part of the two sons to expand the existing concerns.
::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 41/47It can therefore, be seen that presently both the sons, Shri Sanjay and Shri Gajadhar are managing the two proprietory concerns owned by the original plaintiff no.1 and plaintiff no.2.
The observations in M. M. Quasim and Gulabbhai (supra) as regards subsequent events could be made applicable in these circumstances.
26. Insofar as the need of the petitioner No.3 is concerned, it has been stated that the petitioner No.3 desires to start her boutique business in the portion of the premises and her husband who is an Advocate requires some space for setting up his office.
According to the petitioner No.3, she would require an area admeasuring about 600 sq.ft. for setting up boutique business on the ground floor. The evidence on record indicates that the petitioner no.3 is having built up area of about 550 sq. ft. on the first floor of the suit premises. Some area is also available on the ground floor. The petitioner no.3 as well as her husband were Directors in Mehadia Institute of Career Development. Though it is stated that it was closed in the year 2008, no documents in that regard are placed on record. An area of 700 sq. ft. is in possession of the Company. Though absence of experience on the part of the petitioner no.3 as regards running of boutique or fabric business cannot be a ground to hold against the petitioner no.3, at the same ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 42/47 time it has not been shown that the area of 550 sq. ft. that is available on the first floor is insufficient for starting the boutique.
It is to be noted that the need of the petitioner no.3 is stated to be of 600 sq. ft. for starting the boutique on the ground floor. In this backdrop therefore the finding with regard to the bonafide need of the petitioner no.3 as recorded by the appellate Court cannot be termed to be so perverse to warrant interference. There being no misdirection of law by the appellate Court while holding against the petitioners on this count, interference would not be possible as observed in Mattulal (supra).
27. According to the respondents, the power of attorney holder could not have deposed about the bonafide need of the petitioners. Said power of attorney holder could not have deposed in place of and instead of the principal. In the present case, the power of attorney holder is the husband of the petitioner No.3 and the brother of the original plaintiff No.1. He is thus a member of the family and, therefore, it cannot be said that he had deposed about those aspects of which only the principal had exclusive knowledge. Being a member of the family he had personal knowledge about the bonafide need of his family members.
Moreover, in Ramkubai (supra), it was held that for the purposes of proving bonafide need, it would not be necessary for the ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 43/47 landlord to step into the witness box. It was observed that bonafide requirement was not a fact which could be established only by the landlord. The decisions relied upon in the case of Janki Bhojwani, Church of Priest, Man Kaur, Kesari Gaur and Varsha Maheshwari (supra) cannot come to the aid of the respondents in support of their submission that the power of attorney holder could not have deposed in place of the petitioners.
28. The husband of the petitioner No.3 intended to have his office on the first floor of the premises and it is stated that he requires an area admeasuring about 500 sq.ft. for the same. It has come in his deposition that he along with the petitioner No.3 were the Directors in Mehadia Tourist Hotel Private Limited. He has further stated that he is the legal advisor of Maharastra State Cooperative Consumers Federation Limited which is running "Apna Bhandar". In his cross examination, he has stated that though he was practicing since last about 30 years, he was not having any separate office and was operating from his residence.
He has further stated that the area of about 80,000 square feet belonging to YMCA is in possession of Mehadia Tourist Hostel Pvt.
Ltd.
It is to be be noted that though the husband of the petitioner No.3 was practicing since last 30 years, he could do so ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 44/47 by having his office at his residence. There is no evidence brought on record to indicate that the place from where he is conducting his office is either insufficient or is inconvenient for him to do so.
His need for running the office, therefore, does not appear to be so pressing in nature. It appears from the evidence on record that his need as projected for setting up an office is merely a desire which can be distinguished from a pressing need.
In so far as the premises at Ranapratap Nagar are concerned, the husband of the petitioner No.3 has received the terrace portion on the second floor of said building to the extent of 311 square meters. The said premises are being used by the brothers of the husband of the petitioner No.3 for the purposes of residence. These premises are available to the husband of the petitioner no.3 for residence as he has a share therein.
29. In Shankar Vadangekar (supra), it was observed that the landlord is the best judge of his requirements and that it is not for the Courts to dictate to the landlord as to how and in what manner he should leave. It was further observed that it could be presumed that the requirement of the landlord is bonafide and when the same is so asserted, the onus is on the tenant to show that the suit premises are neither reasonably nor bonafide required by the landlord. In Sarvate T. B.(supra), it was observed by the ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 45/47 Hon'ble Supreme Court that the word "genuinely" would mean honestly or in good faith. It was held that the burden to prove the genuine need was upon the landlord and mere assertion in that regard would not raise any presumption that the landlord genuinely requires the premises for his use. In S.J. Ebenezer and Govind (supra), it was observed that mere desire on the part of the landlord was not sufficient and the matter must be examined objectively.
ig Considering the entire material on record and especially the aspects of both the sons, Shri Sanjay and Shri Gajadhar looking after the separate business firms of the original plaintiff nos.1 and 2 respectively coupled with the availability of area with the plaintiff no.3, I do not find it proper to disturb the finding recorded by the appellate Court in this regard. Though it is urged on behalf of the petitioners that the appellate Court has not correctly considered the area available to the petitioners in the suit premises and that no construction was possible in the area admeasuring 700 sq.ft. On the ground floor, the same would not have the effect of rendering the finding recorded by the appellate Court that the bonafide need was not proved to be perverse. On re-consideration of the material on record, it cannot be said that the view of the appellate Court is either an impossible view or that ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 46/47 the same is perverse. Said finding recorded by the appellate Court on the ground of bonafide need therefore, does not call for any interference in writ jurisdiction.
30. Coming to the aspect of hardship as contemplated by provisions of Section 16(2) of the said Act, once it is found that the petitioners have failed to make out a case of bonafide need, there is no question of passing a decree under Section 16(1)(g) of the said Act. If no such decree is to be passed, the question of considering greater hardship would therefore, not arise for consideration.
31. Hence, for all the aforesaid reasons, it is held that the petitioners are entitled for a decree of eviction on the ground that the respondents are in arrears of rent and are liable to be evicted under provisions of section 15(3) of the said Act. However, the petitioners have not made out a case for eviction of the respondents under provisions of Section 16(1)(g) of the said Act on the ground of bonafide need.
Accordingly, the judgment of the appellate Court in Regular Civil Appeal No.350/2014 is quashed and set aside. Civil Suit No.202/2005 is partly decreed and the petitioners are held entitled for a decree of eviction of the respondents on the ground of arrears of rent. The writ petition is allowed in aforesaid terms ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 ::: WP2735.15.odt 47/47 with no order as to costs.
JUDGE //MULEY// ::: Uploaded on - 15/03/2016 ::: Downloaded on - 31/07/2016 08:36:45 :::