It must be realised that every judge would have his own way of dealing with issues and evidence which come up before him. Except for insisting on compliance to legal requirements of a judgment, it would be improper to expect the judges to write their judgments in any fixed format or apply any fixed formula for evaluating such judgments. It would not be necessary for a Judge to reproduce the entire evidence in the judgment or to consider it line by line. The judgment should only indicate that the Judge has applied his mind to the evidence from the reasons which he gives, and from the conclusions drawn. On this count the impugned judgment does not fail.
Bombay High Court
M/S. Shree Krishna Trading ... vs Arvind S/O. Wamanrao Nagpurkar on 6 August, 2009
Bench: R. C. Chavan
1. This petition by tenant takes exception to appellate judgment by the learned District Judge whereby he reversed the dismissal of suit seeking 2
petitioner's ejectment, and instead, decreeing the suit, ordered petitioner's ejectment on the ground of bonafide need of respondent/ landlord.
2. The facts. material for deciding this petition are as under : The premises in question are business premises of the petitioner landlord. He sought to recover possession of the premises on the grounds of bonafide need and non-user clauses (g) and (n) of Section 16(1) of the Maharashtra Rent Act. On the ground of non-user, covered under Section 16(1)(n) of the Act, the District Court has held against the landlord. He has not questioned this finding. Hence, pleadings and evidence in this behalf could be safely excluded from consideration. Though in paragraph 4 of the written statement the petitioner/ tenant had admitted that he was plaintiff's tenant, an attempt was made at trial to show that plaintiff was not the sole owner- which could be ignored in the absence of claim by the petitioner that other alleged co-owners desire to suffer him on the premises.
3. The landlord claimed that he had taken retirement from his employment with MSRTC and had received about Rs.Four Lacs as retirement benefits and thus had sufficient funds. His wife was serving as a teacher. His sons were 20 and 16 years old. The landlord himself had no work. He, therefore, wanted to start grocery and general stores in the suit premises, 3
which would also provide employment to his sons in business as both the sons were of growing age. He pleaded that tenant could re-locate his business elsewhere and greater hardship would be caused to him than that to tenant if decree was refused.
4. In the written statement, filed by the petitioner, he did not specifically deny the circumstances of landlord's family but denied that the landlord really needed the premises to start his business for which he lacked experience as well as skill. Bonafide need was denied. It was alleged that a sum of Rs.50,000/- was paid by the petitioner as advance for renovating the building out of which Rs.10,000/- still remained to be adjusted. The petitioner claimed that if a decree is passed he would suffer irreparably since he is running business in the premises since 1973. Therefore, he sought dismissal of the suit.
5. After framing necessary issues on these pleadings, the learned trial Judge recorded evidence tendered and dismissed Suit No.553 of 2003 by his judgment dated 11.07.2006, holding that bonafide need was not proved and greater hardship would be caused to the petitioner by passing a decree of ejectment. No issue about non-user was framed.
6. On appeal by the landlord, the learned District Judge framed points for 4
determination which included points concerning bonafide need, non-user and entitlement of the landlord to decree for ejectment. He held that the landlord had proved bonafide need and also that the landlord would suffer greater hardship on refusal of decree for ejectment and hence allowed the appeal, reversing dismissal of suit by trial Court and granting decree of petitioner's ejectment, leading the petitioner to file the present petition.
7. I have heard both, the learned counsel for the petitioner and the learned counsel for the respondent.
8. Relying on a number of judgments stating the requirements of judgment of the first appellate Court, the learned counsel for the petitioner submitted that the learned District Judge had flouted the requirement of an appellate judgment. In Madhukar Vs. Sangram, reported at AIR 2001 SC 2171, one of the judgments on which the learned counsel for the petitioner relied, the Supreme Court was considering a judgment rendered in a first appeal by a High Court and observed that sitting as a Court of first appeal, it has the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It noted that the judgment was cryptic and that the appeal was decided in an unsatisfactory manner. The Court held in paragraphs 5 and 6 as under :
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"5. .... First appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
6. In Santosh Hazari V. Purushottam Tiwari (Dead) by L. Rs. (2001) 2 JT (SC) 407 : (2001 AIR SCW 723) this Court opined (para 15 of AIR) :
"The Appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court."
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While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it."
According to the learned counsel for the petitioner, the impugned judgment does not comply with the requirements of appellate judgment laid down by the Supreme Court.
9. The learned counsel for the respondent submitted that this criticism of the impugned judgment is harsh and unjust. At the trial the landlord had examined himself and his son Swapnil. On behalf of the tenant, apart from the tenant himself, one Vijay Dhanraj Mankar, an officer in Life 6
Insurance Corporation, was examined. The landlord and his son stated about their needs. According to the learned counsel for the petitioner the landlord had started working as Life Insurance Corporation agent after retirement and therefore, need for his employment has come to an end. The witness examined by tenant viz. Vijay Mankar had stated that the landlord Arvind Nagpurkar was an agent attached to his branch of Life Insurance Corporation. A licence was issued to Nagpurkar on 21.08.2002 and was possibly reissued on 18.07.2005, for a period up to 20 th August, 2008. Though the witness stated in his examination-in-chief that the landlord was working as Life Insurance Corporation agent and had received commission of Rs.32,827/- for the year 2005-2006, in cross- examination he admitted that the agency of the landlord had been terminated and he was not entitled to commission. In view of this, any objections to landlord's bonafide need on this count had been set at rest by the tenant himself by examining Manager of Life Insurance Corporation.
10. The learned counsel for the petitioner next submitted that the landlord's son Swapnil, for whose business the landlord wanted the premises, stated in his cross-examination that he had not decided that when to start business, whether after completion of education or not. He admitted that he had no experience for running the business. He stated that he did not know whether a false case was filed because his father wanted enhanced 7
rent from the tenant. According to the learned counsel for the petitioner they would show that the need setup for the son is imaginary. He submitted that these aspects had not been discussed by the learned District Judge in his appellate judgment which runs into as many as in 36 pages.
11. I have carefully considered this contention. The first 12 pages of the judgment deal with pleadings and enumerate points for determination. In paragraph 17 of the judgment the learned Judge has recorded undisputed facts. In paragraphs 18 to 27, 30 and 32 the learned Judge has taken a review of several authorities cited before him. In paragraph 33, though the learned Judge has not stated in specific words that he was referring to the evidence of the plaintiff, he had stated at the beginning of this paragraph that from the evidence adduced by the parties it was clear that the plaintiff was the landlord and the defendant was the tenant. Therefore, it is clear that in paragraph 33 the learned Judge was discussing evidence in paragraph 33. He had then considered the plaintiff's voluntary retirement from service, need of plaintiff's sons and the need of the plaintiff to start a general and grocery store, considering the possibility of plaintiff's sons helping the plaintiff eventually in the business. Had the learned Judge not taken into consideration the evidence of Swapnil, he would not have hinted at the possibility of Swapnil merely helping the plaintiff, but would have rather observed that the Swapnil was to run the 8
business. Therefore, it cannot be said that there is no discussion of the evidence at all, or that the learned Judge had flouted the norms of the appellate judgment.
12. In paragraph 34 the learned Judge concluded that the landlord had proved that he needed the premises bonafide for his own use. It is true that there is no explicit discussion of the evidence of the tenant, but as already pointed out, one of the witnesses examined by the tenant the present petitioner, in fact, supports the plaintiff's claim by stating that the landlord has ceased to be Life Insurance Corporation agent. As far as petitioner/ defendant's own evidence is concerned, it consists of denial of the need and does not show that there was any concrete evidence which would have resulted in rejection of landlord's claim. On the other hand, the learned counsel for the respondent/ landlord pointed out that the petitioner/ tenant had admitted in paragraph 4 of his cross-examination that the landlord had taken voluntary retirement, his wife was teacher in a private school, he had two sons, elder son was studying in Final Year of B. Com., and that the landlord did not have any vacant premises for starting his business. The learned Judge has also considered the question of comparative hardship in paragraph 37 of the judgment and it cannot be said that even this discussion is deficient.
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13. It must be realised that every judge would have his own way of dealing with issues and evidence which come up before him. Except for insisting on compliance to legal requirements of a judgment, it would be improper to expect the judges to write their judgments in any fixed format or apply any fixed formula for evaluating such judgments. It would not be necessary for a Judge to reproduce the entire evidence in the judgment or to consider it line by line. The judgment should only indicate that the Judge has applied his mind to the evidence from the reasons which he gives, and from the conclusions drawn. On this count the impugned judgment does not fail.
14. The learned counsel for the petitioner submitted that the learned trial Judge has rightly held that the landlord failed to prove that he bonafide or reasonably required the premises for his own use. He submitted that while setting aside this finding the learned District Judge had merely gone by the word of the landlord without considering the probabilities. Relying on the two judgments of the Apex Court, he submitted that mere desire to have the premises cannot be equated to need.
15. In Rahabhar Productions Pvt. Ltd. Vs. Rajendra K. Tandon, reported at (1998) 4 SCC 49, on which the learned counsel for the petitioner relied, the Supreme Court was considering a tenant's appeal opposing claim of 10
premises under Section 14-C of the Delhi Rent Control Act on the ground of bonafide need of landlord who had retired from service. The Court observed in paragraph 18, relying on the judgment in Ram Dass Vs. Ishwar Chander (1988) 3 SCC 131, that bonaide need should be genuine, honest and conceived in good faith. Landlord's desire for possession however honest it might otherwise be, has a subjective element in it. For a "desire" to become a "requirement" it must have the objective element of a 'need', which can be decided only by taking all relevant circumstances into consideration, so that the protection afforded to a tenant is not rendered illusory or whittled down. On considering the facts in the light of these requirements the Supreme Court dismissed tenant's appeal.
16. In Shiv Sarup Gupta Vs. Mahesh Chand Gupta, reported at AIR 1999 SC 2507, again while considering and dismissing tenant's appeal opposing landlord's claim based on bonafide need, the Court observed in paragraph 13 as under :
"13. ..... Thus the term bona fide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bona fide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, 11
any setting of the facts and circumstances protruding the need of landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against.".
17. The learned counsel for the petitioner submitted that applying the tests laid down in the aforesaid judgments the evidence of the landlord is hardly adequate to prove that he needed the premises. His learned adversary stoutly contested this proposition submitting first, that the landlord was the best Judge of his needs. He had proved that he had taken voluntary retirement and had requisite funds for starting his business, as also that he 12
had no other avocation. The learned counsel submitted that the landlords taking up Life Insurance Corporation agency for a short time cannot be interpreted to mean that he had given up the idea of starting a business. The learned counsel for the respondent submitted and rightly, in my view, that a landlord is not expected to sit idle waiting for judgments to be delivered by hierarchy of Courts in his lis for securing possession of the premises to start a business. Lack of clarity in evidence of landlord's son need not mean that the premises were not required for setting up the son in business. Given vicissitudes of fortunes of parties to a case in our Courts, it would be improper for a young boy to irrevocably seal his future by choosing an option, or foreclosing other options. Therefore, in the context of the fact that the landlord's sons were grown up and could take up avocation of running a general or grocery store, it cannot be said that the need of the landlord is illusory or fanciful or that it was a mere desire. It must be noted that the Rent Legislation places restrictions on the rights of owner of the property and therefore, such restrictions would have to be strictly construed, bearing in mind the object of the legislation and the requirement to balance the equities. It cannot be said in the circumstances of the case, and in the context of the evidence tendered, that the learned District Judge erred in holding that the landlord was entitled to recover possession of the premises for his bonafide needs.
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18. As to the comparative hardship also the learned Judge has rightly concluded that the tenant could have searched for or secured alternate accommodation to shift his business. It is notorious that in the present days commercial premises are coming up in cities like Nagpur in big numbers and it would not be impossible for a person to secure such premises, rather than squat in the premises of a landlord and to prevent him from setting up his own business in his own premises.
19. In view of this, even on the question of comparative hardship, the learned District Judge rightly held that the tenant would not suffer greater hardship if a decree of ejectment was passed. In the light of the foregoing it has to be held that the impugned judgment does not call for any interference. The petition is, therefore, dismissed.
20. In the circumstances, there shall be no order as to costs. JUDGE
RR.
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