Bombay High Court
Shafi Ahmed Khudabux Kazi (Deceased By ... vs Hashmatbi Hajjumiya Mogal on 1 January, 1800
Equivalent citations: AIR1997BOM260
ORDER
1. By the present petition, the petitioners, who happened to be the legal representatives of the original landlord -- Shafi Ahmed Khudabux Kazi, are challenging the judgment and decree passed by the learned District Judge, Ahmadnagar in Regular Civil Appeal No. 168 of 1977, which arose out of the judgment and decree dated 29-1-1977 passed by the Joint Civil Judge, J.D. Ahmednagar in Regular civil Suit No. 546/73 whereby the learned Judge of the trial Court had decreed the suit of the landlord for possession of the suit house and with some ancillary reliefs.
2. Deceased Shafi Ahmed Kazi had purchased Municipal House No. 2617, CTS No. 981-B situated in Panchalimb Galli, Ahmednagar. The ground floor of the said premises is in possession of the present respondent/original defendant as a tenant thereof with an agreed rent of Rs. 8 per month. Since the plaintiff wanted to shift in the present premsies as it was his bona fide need as also the plaintiff having found that the defendant/tenant had defaulted in payment of the rent and was also causing damage to the suit property, a notice dated 30th June, 1973 was issued by the plaintiff/petitioner calling upon the tenant to vacate the premises as also to make payment of the amount. The above said notice was duly replied. However, since there was no compliance on the part of the respondent, the plaintiff/landlord was required to initiate legal proceedings by filing Regular Civil suit No. 546/73 in the court of learned Civil Judge, Junior Division, Ahmednagar. After having framed the necessary issues for determination in the matter and after having recorded the evidence and hearing the parties, the learned Civil Judge Jr. Dn. who dealt with the matter, by his judgment and decree dated 29-1-1977 decreed the suit on two counts, i.e. the bona fide need of the landlord to occupy the premises and hearing the parties, the learned Civil Judge, Jr. Dn. who dealt with the matter, by his judgment and decree dated 29-1-1977 decreed the suit on two counts, i.e. the bona fide need of the landlord to occupy the premises and further that the defendant/tenant was in arrears of rent of two months. Since the case of bona fide need was proved, naturally eviction was also granted in favour of the plaintiff/landlord. However, on the third count, i.e. the alleged waste and damage to the suit property by the tenant, the trial Court reached to the conclusion that the same was not proved by the plaintiff/landlord.
3. The tenant, who was naturally dissatisfied with the judgment of the trial Court, approached to the District Judge, Ahmednagar by filing an appeal which came to be registered as Regular Civil Appeal Number 168/1977. The learned Judge of the lower Appellate Court who, then, dealt with the matter, reached to the conclusion that the case as regards the bona fide need of the landlord was not proved and since the arrears were only of two months, there was no question of passing a decree for eviction against the defendant/tenant, i.e. the present respondent. The learned Judge of the lower Appellate Court by his judgment and decree dated 18-10-1973 allowed the appeal and the judgment and decree passed by the trial Court was set aside.
4. The present petitioners since dissatisfied with this judgment, approached the High court by filing Writ Petition No. 657/1979 challenging the order of the District Judge on various points. It was one of the points which was argued before the High Court in the abovesaid writ petition that there was total misinterpretation of evidence and something more was read by the learned Judge when it was not actually on the record. His Lordship of the High Court (as he then was), who dealt with the matter having found that the learned District Judge had committed several mistakes, has remanded the matter by his judgment and order dated 22-2-1983. During the pendency of the proceedings before the High Court in Writ Petition No. 657/79, the original landlord -- Shafi Ahmed expired the record. This Court, while dealing with the matter in Writ Petition No. 657/79 found it necessary that in view of the changed circumstances it was necessary to find out that the need and bona fides of the legal representatives of deceased Shafi Ahmed and, therefore, this Court remanded the matter to the District Judge with specific directions. Needless to mention that while remanding the matter, this Court had already pointed out vide its judgment, the very many illegalities which were committed by the learned District Judge. While remanding the matter to the District Judge, this Court specifically directed that the learned District Judge, Ahmednagar to consider the question involved in the appeal in the light of the observations made in the judgment and in determining them after taking into account the events which had subsequently taken place after passing of the decree by the trial Court. This Court further directed that the parties would be permitted to lead evidence if necessary only relating to the subsequent events after passing of the decree by the trial court. In para 4 of the judgment, this Court specifically observed as under:
"Apart from that, to my mind, it is clear that the learned Judge failed to draw proper and natural inferences from the circumstances which are established on record. In view of the order, which I propose to pass and since the matter has to be sent back to the District Judge for the determination of the question of bona fides and comparative hardship, so as not to deprive the appellate Court on remand freedom in determining those questions, I refrain from expressing any opinion on the facts established. I would, however, set them down. No new facts excepting the circumstances that the petitioner-plaintiff has died pending the petition will be taken into account by the learned District Judge on remand."
In view of the observations of this Court referred to above, it is clear that it was open for the learned District Judge to deal with the matter only on the point of bona fide need of the landlord-petitioner. From the judgment of this Court, it is absolutely clear that the scope of inquiry and decision was well-demarcated by this Court and the learned District Judge was not supposed to transgress the said limits even in slightest manner.
5. After remand of the matter, as is clear from the record, additional evidence was recorded of one Zaheda Shafi Kazi i.e., the widow of the original landlord and no evidence whatsoever was led on behalf of the respondent-tenant. After having recorded the evidence, the learned District Judge who then dealt with the matter, by his judgment and order dated 30th April, 1983, again, allowed the appeal and the judgment and decree passed by the Judge of the trial Court, was set aside. The suit which was filed by the present petitioners was dismissed. It is this judgment which is under challenge before this Court in the present petition.
6. In the present petition though the respondent is served, she is not represented and hence I had no advantage to hear her case or to some one else on her behalf. I heard the arguments of the learned counsel Shri A.B. Gatne, for the petitioners. Shri Gatne has very severely assailed the judgment of the learned District Judge, pointing out specifically that the learned District Judge, appeared to have totally forgotten that there was a specific direction given in the remand order and it was in the nature of mandate by the High Court to the District Judge, to consider a specific point which was already dealt with by this Court in earlier Writ Petition No. 657/79. Shri Gatne, further, specifically pointed out and rightly so, that the learned District Judge had totally failed to weigh the evidence on the record in the backdrop of the facts of the present case. From the judgment of the learned District Judge through which the learned counsel took me, it is abundantly clear that the learned Judge instead of considering the evidence on record, did consider something else. It would not be an exaggeration if I say that the learned District Judge while writing the judgment, had definitely gone off track. I will be pointing out the same in the subsequent paragraphs of this judgment.
7. The learned District Judge in paragraph 7 of his judgment has framed three material issues. These are:--
(i) Whether the plaintiff proves his personal bona fide requirement;
(ii) To whom the greater hardship would be caused; and
(iii) Whether the decree in eviction to follow.
While dealing with these points, the learned District Judge who dealt with the matter, did refer to the provisions of Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and, thereafter, the learned Judge, tried to go to the history of legislation by observing, "on account of the increase in prices due to second World War unscrupulous landlords, taking advantage of the situation, stated evicting their tenants basing their suits on the rights given to them under the Transfer of Property Act. "In fact, it is not clear as to what prompted the learned District Judge to make such type of comments and observations and by labelling the landlord unnecessarily as 'unscrupulous'. It appears that the learned District Judge while writing the judgment was not considering the facts and evidence on the record but, something else which had nothing to do with the present case. The learned Judge has further tried to pen down his very many thoughts in his judgment which otherwise might be much impressive but totally irrelevant for the purpose of the Present case and for the purpose of the judgment with which the learned Judge was concerned with. The learned Judge continued such writing in the subsequent paragraphs also. However, due care is also taken while writing the judgment by observing," I am aware that the judgment of His Lordship Tulpule, J. making order of remand does not leave sufficient space for this Court to move here or there, but to walk on a tight-rope and to keep a balance to see that it must do justice on the facts on record and also not to go against the observations made by his Lordship, Tulpule, J. This observations made by the learned District Judge clearly indicate that the learned District Judge was well-aware of the limits of his judgment and the point beyond which he was not permitted to go. The learned District Judge has also observed. "It is a moot question as to whether this Court is permitted to consider the additional or even contrary facts coming in the additional evidence allowed by the judgment." From these observations of the learned District Judge, it is also clear that there was unnecessarily a doubt which he had entertained in his mind as regards the consideration of additional evidence. In fact, when this court while remanding the matter had given a specific direction to consider the case only on the point of bona fide needs in view of the changed circumstances, it clearly mean that the learned District Judge was to weigh the additional evidence the way it would have come if there would not have been contradictions as regards the evidence recorded earlier, the same also were to be weighed by him with proper perspective.
8. The learned counsel Shri Gatne, for the petitioners, assailed the order observing that the learned District Judge unnecessarily went to trace out the family history and the system in 'Sunni' family which, according to Shri Gatne, was absolutely unnecessary and Shri Gatne, was absolutely unnecessary and Shri Gatne rightly pointed out that in the present matter, there was no question of Personal Law overriding the provisions of the Act under which the matter was being dealt with. In fact, according to Shri Gatne, it was not open for the learned District Judge to find out as to whether the wife and the children of deceased Shafi Ahmed Khudabux Kazi were entitled to inherit the property of deceased Shafi Ahmed. Shri Gatne, further, specifically pointed out from the judgment of the learned District Judge that the learned Judge instead of weighing the evidence on the record properly did unncessarily for further and observed, "one more fact must be taken into consideration that is the status of a woman in Indian society. Before she is married, she is under the tutelage of her father. After she is married, she is under the protection of her husband. If she becomes a widow, she is under the protection of her sons if they are major or otherwise on the other members of the family. At no time an Indian woman is without this protection nor she even survive without this protection." Shri Gatne assailed the observations of the learned District Judge as totally irrelevant for the purposes of the present case. How to live, where to live and under whose protection to live was not the matter to be considered by the learned District Judge nor was it necessary for him to make any observations in this respect. Ultimately it was the lay who was to live and who had to take her own decision.
8. Shri Gatne, the learned counsel for the petitioners, further pointed out that in para 14 of the judgment, the learned District Judge observed. "Could the Court take into consideration personal bona fides requirements which came into existence subsequently. I am of the view that this subsequent events cannot be considered as against the tenant as the intendment of the legislature is more in the nature of protection of the tenant." This observation of the learned District Judge, according to the learned counsel for the petitioner, appears to be contrary to the direction given by the High Court. From these observations, it appear that the learned District Judge might have forgotten the directions given by the High Court. In fact, there was no occasion for the learned District Judge to unnecessarily observe and express his view. It was neither necessary nor called for in the present matter. According to Shri Gatne, the learned Advocate, the learned District Judge appeared to have been impressed by the extraneous consideration rather then the facts on record. Shri Gatne rightly pointed out that the learned District Judge while dealing with the matter instead of weighing the evidence on the record properly, has tried to base his judgment on his own reading and ideas.
10. Shri Gatne, the learned counsel for the petitioners further, pointed out that it was a specific pleading on behalf of the plaintiff/landlord that he needed the house in question for bona fide accommodation as there were always quarrels in between the families. The learned District Judge anyhow to find out some support to label the case of the plaintiff as false one, did choose certain sentences from the deposition of Zaheeda, the widow of deceased Shafi Ahmed Khudabax Kazi. The learned District Judge observed "the second fact is false on the face of it and that can be seen from the evidence of Zaheeda -- his widow who has in clear categorical terms stated that only one brother is married and that also some two years from today." The learned District Judge while commenting on these sentences from the deposition observed, "now this cause did not exist when the notice was given as Shafi Ahmed was not married then. Strangely, no mention is made of this cause either in the eviction notice or even in the plaint. If we read between the lines, it becomes crystal clear that the excus of personal bona fide requirement was put in by Shafi Ahmed in order to get to away with certain other obligations put by the said act on Shafi Ahmed as the landlord and this was in connection with reconstruction of the building." After going through the above said observations made by the learned District Judge totally lost sight of the fact that it was specific direction by this court to consider the bona fide needs of the legal representatives of Shafi Ahmed and when it was so directed, as Shafi Ahmed expired during the pendency of the writ petition before the High court, there was no question of any pleadings as regards the bona fide requirement of the lady and her kids, much the less, about its reference either in the notice or in the plaint. In fact, the learned District Judge should have just weighted the evidence to find out, whether evidence led by the lady was sufficient to prove her case of bona fide need. When this Court in writ petition referred to above, specifically directed that additional evidence be permitted and then the bona fide needs to be seen, which clearly means that this Court was aware of the fact that there was no occasion for the pleadings to that effect as till then Shafi Ahmed was alive. The learned District Judge, therefore, according to learned counsel for the petitioners, did transgress his jurisdiction which, according to the counsel for the petitioners, has vitiated his arguments of the learned counsel and I have no hesitation in observing that the learned District Judge has unnecessarily weighed something else which was not on the record forgetting the evidence which was led by the parties.
11. The learned District Judge, further, tried to show that Shafi Ahmed wanted to get the premises vacated under the false reason of reconstruction of the house and, according to the learned District Judge, the reasoning of bickerings is an after-thought. Shri Gatne, specifically pointed out that it was at no point of time the case that his client had wanted to reconstruct the house, but even the evidence on record indicate that it was the case of repairs since the house was in dilapidated condition. It appears that the learned District Judge was much impressed because of the rent to which reference is made in the plaint as well as in the judgment of the learned District Judge. The learned District Judge taking into consideration that the rent which was being paid by the tenant was just Rs. 8/- and according to the calculation, in ordinary course, it would be something like Rs. 200/- per month, the learned District Judge took it to the reason to evict the tenant and this intention is tried to be attributed to the landlord. I think that this approach of the learned District Judge in the instant matter, was also totally unwarranted.
12. Smt. Zaheeda, the widow of Shafi Ahmed, has in categorical terms stated that she wanted to shift to the premises in question which were purchased by her husband and more so because she was living on the back side of the shop as she used to live there along with her husband before his death. According to her since in front portion of the house the business is being carried on of utensils, the same is now being looked after by her brother-in-laws, in view of the death of her husband. She has categorically stated that she is living separately even after the death of her husband along with her children. She has further specifically stated in her cross-examination that she wanted to shift to the premises in question and further denying the specific suggestion given in the cross examination that she wanted to reconstruct the house in question. In fact, in so many words, she has stated that she only wanted to have certain repairs and would shift to the premises in question. It is pertinent to not that from the cross-examination of this lady a very clear cut case of bona fide need is made out and this witness even in slightest manner could not be shattered in her cross-examination. She has further specifically pointed out that there are many more members who ware living there on the first floor and an irresistible conclusion that can be drawn from this evidence is that in the absence of her husband, she was staying at the mercy of father-in-law in her father-in-law's house. I think that this much evidence was sufficient to show that the changed circumstances also, if taken into consideration, did prove the case of bona fide need of the legal representatives of deceased -- Shafi Ahmed. In fact, in view of the judgment of this Court, it was only the need of the lay and her children which was to be seen and not only the need of Shafi Ahmed during his life time, who had given the notice and filed the suit. However, the learned District Judge unnecessarily tries to harp on certain irrelevant things and erroneously reached to the conclusion that the need of bona fide accommodation could not be proved and the plaintiff was not entitled for the reliefs sought for.
13. The learned District Judge also dealt with the point of comparative hardship. While considering this point, surprisingly, the learned District Judge has, again, made a reference which is touching to the personal Mohamedan Law. The learned District Judge observed, "I am aware of the fact that Zaheeda and her children may have no right in this house left by Khudabax. We need not even enter this for the simple reason that we do not know what arrangements Khudabax had made after his death. No evidence in this respect was led nor any contention was taken though the fact that they are Sunni Muslims." These observations, accordingly to the learned counsel for the petitioners, are also absolutely unwarranted as to what arrangement either Shafi Ahmed has made or the father-in-law has made, this Court is not concerned with the same. The question to be seen was whether she proved her necessity for that house or not. As to what arrangement was made as regards living of his wife and children by Shafi Ahmed, the Court was not concerned with the same in any manner. The learned District Judge has observed that no evidence in this respect was led nor any contention was taken. In fact, there was no occasion to lead evidence on that point, particulary when it is not disputed on the record that the house was purchased by Shafi Ahmed for his own residential purposes. Even otherwise when the house belonged to the husband of Zaheeda and when she had come up before the Court with her additional evidence in view of the permission granted by this Court, the only thing was to be seen as to whether she could prove her bona fide need and further whether the hardship would be more to her or to the tenant.
14. The learned District Judge, further, has no doubt, taken into consideration the hardship which is likely to be caused to the tenant. It is no doubt true that this is the point wherein the matter is to be looked into from comparison point of view. The record shows that Hashmatbi, the tenant who was then 65 years of age, was earning Rs. 3/- per day from rolling beedies, so taking her monthly income maximum to Rs. 100 according to the learned District Judge. The learned District Judge with full sympathy towards the respondent, observed that in view of the high cost of accommodation, granting of decree would tantamount to throwing her on the road and, according to the learned District Judge, this is the very thing which the legislature wanted to avoid by enacting the said Rent Act. She has two minor children as per the record. The learned District Judge tried to compare the case of wife of Shafi Ahmed and observed that, she had four children between 7 and 1/2 years of age. According to the learned District Judge if the decree is allowed to be executed, the tenant would be virtually thrown on the street. According to the learned District Judge, this hardship could be reduced by giving some time to the tenant to leave; but simultaneously, the learned District Judge observed, "but I do not think in this case it would be possible for her to obtain some accommodation." The observations made above by the learned District Judge, definitely show that he has tried to consider the hardship of both the parties. But the learned District Judge when having come to the conclusion that the hardship could be reduced by giving some time, it clearly means that there was an alternate remedy for the hardship which is likely to be caused to the tenant. It is not observed by the learned District Judge that there is no hardship caused to the landlord or is no hardship caused to the landlord or is of lesser gravity than that of the tenant. Even otherwise, taking into consideration the facts of the case and the evidence led by Zaheeda, I do not find these words of consolence by the learned District Judge, are of any use. In the end I have no hesitation in observing that the petitioner has proved her case of bona fide need and further that the hardship which she is to suffer is more, particularly when she in spite of being the owner of the house and having proved the bona fides, has to suffer the hardship of living at somebody else's mercy.
15. In the result, the petition succeeds. The judgment and order passed by the learned District Judge is set aside and that of the trial Court is restored.
16. Before parting with this case, one important point needs consideration in the instant matter. This writ petition is filed on 22-8-1983. The matter had come up for admission before this court on 12th December 1983 and the following order is passed on the date:
"Rule. Liberty to apply for fixed date of hearing after service is effected.
The question of contempt of Court for disobeying the directions of this Court can be considered at the time of final hearing of this petition."
(JULY 16, 1996)
17. It appears that time of admission of the present petition, this Court took the cognizance of the matter so far as regards the contempt part is concerned. After going through the judgment of the learned District Judge, Ahmednagar, it is clear from paragraph 11 thereof that the learned Judge was also of the opinion that whatsoever the learned Judge was to write would not be correct. The learned Judge observed, "the observations that are being made by this Court hereafter are not meant by way of disrespect. But I am trying to deal with it in the interest of justice without meaning any disrespect to His Lordship Tulpule, J." From these observations itself, it is clear that the learned District Judge in spite of being aware that whatsoever he would write thereafter would amount to disrespect, he simply by saying that he did not want to disrespect Tulpule, J. proceeded further in making the comments thereon. In para 14 also the learned Judged at one point of time, has observed, "I am of the view that this subsequent events cannot be considered as against the tenant as the intendment of the legislature is more in the nature of protection of the tenant". These observations also clearly suggest that though this Court had specifically directed to take into consideration the subsequent, events, the learned Judge observed absolutely contrary to that. According to him, these events could not be considered for the reasons stated by him. I feel that the language used by the learned District Judge is definitely not only harmful but causing damage to the harmony in judicial hierarchy. It would not be incorrect to say that the above-said observations of the learned District Judge are nothing but a definite and sophisticated mode of criticising the High Court's decision. In fact, the learned District Judge should have seen that so long as the judgment of the High Court has not been so overruled or set aside, it is binding on all the Judicial Officers subordinate to it and subordinate Judicial Officers have no liberty whatsoever either to criticise the same or to act against the same, even in slightest manner, If that is so, it not only amount to in-subordination but a clear-cut contempt of the Court, which this Court would always look at with all seriousness. From the language in the judgment and the tenor thereof, it is clear that it is not written with carelessness or ignorance, but it appeared to be an intentional attempt to show that the acceptance of the judgment of the High Court by the District Judge is with reluctance. This is nothing but a serious act of judicial indiscipline. It appears that while writing the judgment, the learned District Judge has lost sight of the fact that even the difference in opinion by the Subordinate Judge could be shown in a most courteous language without slightest discourtesy therein for the superior Court, else it would be always at his own peril.
18. After giving due consideration to the point of contempt and particularly when the cognizance of contempt of the Court was taken by the Court itself, as is pointed out by the learned counsel for the petitioners, vide its order dated 12-2-1983, I am told that the learned District Judge has retired long back and he is of much advanced age, only because of this, I do not intend to pursue the matter any further. However, the observations above are required to be made for the guidance of those who would be writing judgments hereafter. I do not, therefore, feel it necessary to issue notice of contempt to the concerned Judge. With the above observations, the Writ Petition is allowed. Rule is made absolute. However in the circumstances of the case, no order as to costs.
19. Petition allowed.