Bombay High Court
Shri Noshir Jehangir Postwalla vs Shri Keki Rattanji Postwalla Since ... on 16 June, 2000
Equivalent citations: 2001(1)BOMCR152
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition under Article 227 of the Constitution of India has been filed by the petitioner-landlord challenging the decree of the trial Court and that of the Appellate Court in dismissing the suit filed by him for possession of the suit premises admeasuring 1250 sq.ft. in a building known as Postwalla Building No. 3 Shankarset Road, Pune 2.
2. The petitioner-landlord had filed suit in the Court of the Small Causes at Pune bearing Civil Suit No. 2907 of 1978 for possession of the suit flat on the ground of bona fide requirement. According to the petitioner, when the suit for possession was filed, he was residing with his mother in a bungalow belonging to his mother and since the mother was about to sell out her bungalow, he was in immediate need of some residential accommodation for his residence and for the residence of his family. Consequently, the petitioner had issued notice dated March 16, 1976 and thereafter a second notice which is the suit notice dated August 6, 1978 calling upon the original tenant Shri Keki Rattanji Postwalla to vacate the suit premises. Since the original defendant did not vacate the suit premises, the petitioner filed the aforesaid suit for getting possession on the ground of bona fide requirement for his personal use and occupation. The suit for bona fide requirement has been filed as far back as an October 17, 1978.
3. The original tenant resisted the said suit. According to him, the petitioner did not require the suit premises for bona fide and personal use but intended to sell the same to earn huge profit. The original defendant further contended that in any case no decree on the ground of bona fide requirement can be passed since the respondent would suffer greater hardship.
4. The parties went to trial and led evidence in support of their respective stand. The trial Court, by its judgment and order dated 18-9-1982 on examining the rival contentions, was pleased to dismiss the suit. The trial Court held that the petitioner had failed to prove that the suit premises were reasonably and bona fide required for his personal use and occupation. The trial Court further held that in any case, greater hardship would be caused to the respondent if a decree of eviction is passed. Accordingly, the trial Court was pleased to dismiss the suit filed by the petitioner.
5. Against the dismissal of the suit, the petitioner preferred an appeal before the District Court at Pune, being Civil Appeal No. 352 of 1983. The Appellate Court, after re-examining of the evidence on record, held that the petitioner was able to establish his bona fide and personal requirement only in respect of the part of the suit premises to the extent of the garage portion of the suit premises. With regard to hardship, the Appellate Court held that greater hardship would be caused to the defendants in the event of a decree of eviction is passed. The Appellate Court was, accordingly, pleased to partly allow the appeal preferred by the petitioner only to the extent of the garage portion of the suit premises and the claim of the petitioner for the rest of the suit premises was ordered to be dismissed vide the judgment and order dated 27-8-1984.
6. The petitioner has challenged the conclusion reached by the courts below that the suit premises were not required for bona fide and personal use and occupation of the petitioner as well as on the point of greater hardship. According to the learned Counsel for the petitioner, the petitioner had very clearly asserted in the plaint that he had no other residential accommodation of his own in the city of Pune and that he was at the relevant time staying with his mother, who had asked him to vacate the suit premises as she intended to sell the bungalow in her occupation. The petitioner, in my view, made good the pleadings before the trial Court by examining himself. In his deposition, the petitioner has given all the particulars about the present accommodation occupied by him. It has come in evidence that the petitioner was staying with his mother-in-law as he was required to shift from the premises owned and possessed by his mother. It has also come in evidence that the petitioner was staying along with his mother-in-law as a casual occupant in the property belonging to a trust. The said flat in which the petitioner was staying was given in the name of his mother-in-law only as a casual occupant thereof. There was no written permission for the petitioner to occupy the said premises even today. In other words, the petitioner in the pleadings as well as in the evidence had clearly established that the petitioner has no other accommodation for his personal use in the city of Pune. It is preposterous to contend that the present accommodation of the petitioner, which are the tenanted premises of the mother-in-law, can be said to be sufficient and suitable accommodation for the petitioner so as to non-suit his claim of bona fide and personal requirement of the suit premises. From the evidence on record, I am more than convinced and have no hesitation to hold that the petitioner has made out the case of bona fide and personal requirement in respect of the suit flat. In my view, the approach of both the courts below is wholly unsustainable which has caused manifest injustice. The courts below have given undue importance to factors which have no significance in adjudicating the question of bona fide requirement of the petitioner. It is well-settled that the landlord with a view to succeed on the ground of bona fide and reasonable requirement need not establish compelling or absolute or dire necessity, but it is enough to show that the requirement set up by him is not fanciful or unreasonable.
7. It has been held in the recent judgment of the Supreme Court in the case of Raghunath G. Panhale (Dead) v. Chaganlal S. & Co., 2000(2) Bom.C.R. (S.C.)9 : 2000 Vol. 102(1) Bom.L.R. 95 (S.C.) as follows :
"The word 'requirement' coupled with the word 'reasonable' means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity."
It is further held in the said case as follows :
"A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end."
Keeping the said principle in mind, I have no hesitation in concluding that, in the present case, the petitioner had clearly established and proved the bona fide and reasonable need for his personal use and occupation of the suit flat. I am quite aware that the scope for interference in writ jurisdiction is very limited, but from the record, I am more than convinced that sustaining the judgments of the courts below would result in manifest injustice to the petitioner. Moreover, applying the principle enunciated by the Apex Court in the above matter to the facts of the present case, in my view, no other conclusion can be reached but to hold that the petitioner has proved bona fide and reasonable need.
8. Now, coming to the question of hardship, learned Counsel for the petitioner would contend that from the evidence on record, it is clearly established that the respondent-tenant was an affluent person and was capable of acquiring alternate and suitable accommodation. It is further contended on the basis of the record that the respondent was inducted as a tenant in the said flat for a limited period so as to enable him to secure alternate accommodation in the meantime. It is rightly contended that the respondent, instead of looking for another accommodation, continued to occupy the same from 1958, though his entry in the suit flat as agreed between the parties was for a limited period. According to learned Counsel for the petitioner it would subserve the ends of justice if the tenant is allowed sufficient time to vacate the suit flat. Learned Counsel for the petitioner further contended that the Court can even consider of passing a partial decree of eviction as the suit flat is capable of being partitioned into two parts, which can be enjoyed by the respective occupants. Learned Counsel for the respondent, on the other hand, contended that it would not be proper to pass a partial decree of eviction having regard to the strained relationship between the parties. According to learned Counsel for the respondent, if the parties are required to stay together in the same suit flat, albeit separately, it would give them an opportunity to interfere with the peaceful enjoyment of the other. Learned Counsel for the respondent vehemently contended that the original tenant is no more and the present respondent, being an heir, namely the wife of the original tenant, has no independent source of income and has already crossed 80 years of age. According to him, she is not in a position to secure alternate accommodation at this stage.
9. Although I was initially inclined to consider the prayer for a partial decree of eviction, however, in view of the stand taken by the respondent it will not be in the interest of justice to examine the said contention. Accordingly, the possibility of passing a partial decree of eviction, as pressed into service by learned Counsel for the petitioner, is rejected. I find force in the submission advanced by the learned Counsel for the respondent that both the parties cannot live together as neighbours on account of their strained relations and it will not be proper to force them to stay together.
10. I have considered the materials on record and am not inclined to accept the plea of the respondent that it would not be possible for the respondent to secure an alternate accommodation. As a matter of fact, the suit for eviction on the ground of bona fide requirement has been filed as far back as in 1978 and no evidence is placed before the Court to show that the respondent during this period had at any stage made any efforts to secure alternate accommodation but could not succeed in that behalf. On this basis alone, I would have rejected the plea of the respondent of greater hardship. I am of the view that the petitioner would suffer greater hardship than the respondent if the decree of eviction is refused. I find that the respondent is quite affluent and capable of securing alternate and suitable accommodation, but has failed to do so till now without any sufficient cause. Nonetheless, in view of the fact that the parties are closely related and having regard to the old age of the respondent, I am inclined to accept the prayer made by learned Counsel for the respondent that although decree for eviction be made, sufficient time to vacate be granted to the respondent subject to the condition that the respondent as well as her nephew (husband's sister's grandson), who is staying along with her in the suit premises, to file usual undertaking in this Court that they will vacate the suit premises on or before 30th June, 2005 or till the lifetime of the respondent herein, whichever is earlier. In my view, this arrangement would be more than fair and deserves to be accepted as it would mitigate hardship of the respondent, if any.
11. In the circumstances, the writ petition is allowed and the judgment and decree passed by the courts below is set aside and instead the suit filed by the petitioner is decreed in toto. The respondent and her nephew are, however, granted time to vacate and handover peaceful possession of the suit flat to the petitioner on or before 30th June, 2005 or immediately after the death of the respondent, whichever is earlier. The respondent as well as her nephew, who is staying along with the respondent, to file usual undertaking within four weeks from today, failing which it will be open for the petitioner to get the decree executed through Court. The learned Counsel for the petitioner submits that the petitioner does not recognize any right of the respondent's nephew to occupy the suit premises nevertheless would permit him to do so on his filing the usual undertaking and, of course, without prejudice to the rights and contentions of the petitioner. The respondent as well as her nephew who is allegedly staying with her are hereby restrained from creating any third party rights or inducting any other person in the meantime. In order to obviate any future complication, the Nazir, District Court, Pune, is appointed as the Court Receiver in respect of the suit premises with effect from today, who would take symbolic possession of the suit flat and permit the respondent and her nephew to remain in possession of the suit flat as agents of the Court Receiver until 30th June, 2005 or till the lifetime of the respondent, whichever is earlier. In the event the respondent dies before 30th June, 2005, the Nazir, District Court, Pune, will take immediate steps to take vacant possession of the suit flat by removing the occupants, if any, in the said flat with the help of Police force, if necessary, and to put the petitioner in vacant and peaceful possession of the said flat. The Nazir, District Court, Pune, will permit the respondent and her nephew to remain in possession of the suit premises as aforesaid without charging any royalty or compensation, but the respondent will continue to pay Rs. 200 per month as compensation, in lieu of the agreed rent.
12. Accordingly, the writ petition is allowed as aforesaid with no order as to costs.
Certified copy expedited.
Office to send writ forthwith.
Parties to act on the authenticated copy.