Bombay High Court
Gyanchand s/o Parmanand Jain,
Bench: B. P. Dharmadhikari
The petitioners in Writ Petition No. 4926 of 2006 are the legal heirs of original plaintiff (landlord), who filed Regular Civil Suit No. 261 of 2002 before Small Causes Court at Nagpur, seeking eviction of the respondent - Wamanrao under Section 16(1)(g) of Maharashtra Rent Control Act, 1999, (hereinafter referred to as Rent Act) i.e. because of bonafide need. The suit was decreed by Small Causes Court and the respondent - Wamanrao then filed Regular Civil Appeal No. 562 of 2005 before Ad-hoc Additional District Judge at Nagpur. Vide judgment and order dated 22.08.2006, that appeal has been allowed. The appellate Court has found that though the landlord proved bonafide need, the finding reached upon consideration of aspect of comparative hardship required it not to grant a decree for eviction. This appellate judgment is questioned by landlords. The respondent - Wamanrao has filed Writ Petition No. 3303 of 2008 contending that the finding of bonafide need upheld by the appellate Court is erroneous and perverse.
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2. I have heard Shri Khapre, learned counsel for the landlords and Shri Shelat, learned counsel for the tenant.
3. Shri Khapre, learned counsel has contended that bonafide need is found to be concurrently established by both the Courts and hence that finding cannot be interfered with in writ jurisdiction. According to him, when bonafide need is established and landlords have no other premises to start their own business, the decree of eviction cannot be denied only because of the finding that more hardship will be caused to the tenant. His contention is, such hardship is not proved & in present circumstances also not very relevant and could not have been used by appellate Court to reverse the decree of eviction. He has relied upon the judgment of learned Single Judge of this Court in the case of Yogesh Dattaram vs. Shrikrishna Shriram, reported at 2003 (3) Mh.L.J. 684, in support of his contention. He has also relied upon the judgment of the Hon'ble Apex Court in the case of Bhimanagouda Basanagouda Patil vs. Mohammed Gudusaheb,reported at AIR 2003 SC 1634, to urge that some 5
inconvenience to tenant is not a hardship relevant under the provisions of Section 16(2) of the Rent Act. He has also relied upon the judgment in the case of Yadvendra Arya vs. Mukesh Kuma
r Gupta
, reported at AIR 2008 SC 773, particularly para 13 where the Hon'ble Apex Court has drawn extensively from its earlier judgment in the case of Joginder Pal vs. Naval Kishore Behal,reported at 2002 (5) SCC 397. His contention is, the earlier presumption of Rent Control Legislation being heavily loaded in favour of tenant has now weakened and in the process of interpretation such need of landlord needs to be given primacy. He has contended that otherwise as observed by the Hon'ble Apex Court there, the provisions of Section 16(2) of the Rent Act may be required to be branded as unreasonable. He points out that the proceedings already filed before the Rent Controller under clause 13(3)(vi) of C.P & Berar Letting of .
Premises and Rent Control Order, 1949 (hereinafter referred to as Rent Control Order) were withdrawn and there was nothing with the appellate Court to show that same were pending. Question of said proceedings being saved by Section 58(2) of 6
the Rent Act does not arise at all.
4. Shri Shelat, learned counsel has pointed out that the tenanted premises with landlords consist of total four shop blocks and out of the same, two are given to a company by name M/s. B.R. Patel and Company. He states that M/s. B.R. Patel and Company has been inducted 15 years after tenant Wamanrao and premises with them are much bigger. He has invited attention to pleadings in plaint and defence in written statement to support this. According to him, the landlords, in order to show bonafides, ought to have taken action against said tenant M/s. B.R. Patel and Company also. In any case, the landlord could have demanded one shop block from M/s. B.R. Patel & Company and one shop block from Wamanrao. He points out that Wamanrao is tenant since 1970 i.e. for past more than 40 years.
5. He further states that the need for business as put forth is not substantiated. The case of landlord that he was 7
running a similar business in premises of Rinki Bhayyaji has not been established at all as said Rinki Bhayyaji was not tendered as witness. According to learned counsel, no tenant will leave any premises in commercial area like Itwari and stand of landlord that upon request made by Rinki Bhayyaji, the premises were vacated in 1996, therefore, cannot be accepted. The business is going on currently at premises occupied by landlord in Shahid Chowk,Itwari. The said premises are not proved to be belonging to Shri Parmar as said Parmar has not been examined as witness. The further contention is, the suit was instituted by the deceased mother of present landlords and after her death, premises have been bequeathed to two brothers. There is no partition by metes and bound and hence the other brother is equally an owner and landlord of two shop blocks let out to Wamanrao. The petitioners in Writ Petition No. 4926 of 2006, who filed the proceedings for eviction are, therefore, not complete owners and they cannot seek eviction decree against Wamanrao.
6. The learned counsel for Wamanrao invites attention 8
to provisions of Section 16(2) of the Rent Act to urge that even if bonafide need is established, the norm of comparative hardship is required to be independently applied, feasibility of eviction from part of tenanted premises also needs to be evaluated and as that is the requirement of statute, the same cannot be dispensed with. The Small Causes Court did not apply that norm and said error has been corrected by the appellate Court partly. According to him, reasons given by the appellate Court are neither erroneous nor perverse. To buttress his contention about the requirements and ingredients of provisions of Section 16(2) of the Rent Act, Shri Shelat, learned counsel has placed reliance upon the judgment in the case of Bismilla Bee vs. Mohd. Anwar, reported at 2010 (2) Mh. L.J. 829. Lastly, he has pointed out that suit as filed before the Small Causes Court was not maintainable in view of the provisions of Section 58(2) of Rent Act. He points out that the proceedings were already filed before the Rent Controller under clause 13(3)(vi) of C.P. & Berar Letting of Premises and Rent Control Order, 1949 (hereinafter referred to as Rent Control Order) and those proceedings are saved by 9
Section 58(2) of the Rent Act. The proceedings were, therefore, pending and fresh proceedings under Rent Act were not maintainable. He has invited attention to pleadings as contained in para 12 of the plaint and also in written statement. Burden, according to him, to show that proceedings were withdrawn from the file of Rent Controller and thereafter Civil Suit was filed, was upon the landlords and as that burden has not been discharged, the suit could not have been decreed. According to him, the provisions of Section 16(2) of the Rent Act, also contemplate application of mind to find out whether part of tenanted premises in possession of Wamanrao could satisfy the need of landlords. He states that tenant is occupying two shop blocks and a finding after scrutiny that restoration of possession of only one shop block to landlords was not sufficient to meet their need, was essential. In view of these submissions, learned counsel states that writ petition filed by landlords need to be rejected while writ petition filed by tenant needs to be allowed.
7. In brief reply, Shri Khapre, learned counsel has stated 10
that the tenant has nowhere pointed out that after institution of suit, proceedings before Rent Controller were going on. He further states that area in possession of M/s. B.R. Patel and Company is not more and it is for the landlords to find out where he has to commence his business. According to him, the pleadings in this respect raised by the landlords are specific and the tenant has not come up with any specific defence. He further contends that it was not necessary to examine Rinki Bhayyaji or Parmar also. The learned counsel states that looking to the status of the landlord and need of landlord and his three sons, the possession of entire tenanted premises has been rightly sought for by them and has been rightly allowed by Small Causes Court, Nagpur.
8. The consideration of controversy by the Small Causes Court reveals that the issue regarding bonafide and reasonable need and also about comparative hardship was framed by it. It has after considering the evidence which has come on record, recorded a finding that bonafide need for use of suit shop for 11
their own use has been established by landlords. In para 13 of the judgment, it has then considered the aspect of comparative hardship. The evidence on record for this purpose has been looked into. The contention of tenant that landlord had a settled business at Shahid Chowk, Itwari, Nagpur, has been also considered. His contention that only one shop block out of his possession can at the most be given to landlords has also been taken note of. The Small Causes Court thereafter has pointed out that in cross examination of tenant, it was brought on record that petitioner No. 1 - Gyanchand is carrying on business in half portion of shop at Shahid Chowk while other half portion of shop is with his brother. Petitioner No. 1 is carrying on business of ready-made garments while his brother is doing business of bags. The extent of area in possession of petitioner No. 1 and his brother is found to be 3' x 4.5' each. The sons of petitioner No. 1 are also found to be sitting in said shop and doing business with their father. The cross examination also revealed that the landlords have no other premises except the rented shop at Shahid Chowk to carry on said business. The evidence of 12
plaintiff has been held to explain why and how they want business for them so that their family can earn sufficiently to maintain all family members. In this background, the Court has found that evidence of witness for tenant (Nandkishor) is different from evidence of tenant himself. The said Nandkishor has deposed that sons of tenant are doing business along with him in suit shop while defendant - tenant maintained total silence about it. He also did not examine his sons. Because of this, the Small Causes Court has found that if sons were doing business in that shop, the place where tenant was doing business was not brought on record. The said Nandkishor also stated that he has no knowledge about business of landlords and about premises in their possession. The Court then found that vide exh. 37, the tenant was already warned about the need by landlords and still tenant did not take any steps to search other accommodation. There was no evidence of any attempt made by him for that purpose. Because of this consideration, it found that the element of comparative hardship also was in favour of the landlords.
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9. The appellate Court has while answering point No. 1 upheld the finding of trial Court insofar as the bonafide need is concerned. From para 8 onwards of judgment, it has considered the requirement of Section 16(2) of Rent Act i.e. who would be put to greater hardship if the suit is or is not decreed. In para 8 it has only explained the legal position and in para 9 it has found that the suit premises are located in business locality and the same were the only source of income for tenant. If he was deprived of those premises, he would suffer more hardship. It found that landlords did not state that if decree was refused, they would suffer any hardship. In this background, it has relied upon certain judgments and then again it has noted that as the landlords themselves are not in a position to get alternate accommodation (other accommodation), the tenant also cannot secure the same. It also found that there was no evidence to point out various accommodations available in the locality where tenant could start his business activities. Because of this application of mind and approach, it has reversed the decree granted by the trial Court as this is found to demonstrate more 14
hardship to the tenant.
10. The judgment of this Court in the case of Bismilla Bee vs. Mohd. Anwar, (supra) shows that it interprets the impact of the provisions of Section 16(2) of the Rent Act dealing with partial eviction. The learned Single Judge of this Court has there in para 13 after noticing that said provision is parimateria with Section 13(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, relied upon the judgment of the Hon'ble Apex Court in the case ofBadrinarayan Chunilal Bhutada vs. Govindram Ramgopal Mundada, reported at 2003 (2) SCC 320. There, the Hon'ble Apex Court has noted that said Section 13(2) does not bar a partial eviction being ordered and/ or contemplated a partial eviction specifically, which would depend on answer to the question whether it would be only to dislodge the tenant from only part of premises in his possession. The consideration by the Hon'ble Apex Court shows that the burden of proving availability of grounds for such partial eviction is on tenant. The parties are expected to raise specific pleadings and 15
the Court has to frame issues based on those pleadings so as to enable the parties to plead evidence to enable the court to form an opinion on the issue of comparative hardship. The Hon'ble Apex Court has also noticed there in para 11 that provisions of Bombay Rent Act do not lay down any guidelines or relevant factors for determination of question of comparative hardship. The Hon'ble Apex Court has stated that regard must be had to all circumstances of the case and the question whether reasonable accommodation is available for landlord or tenant. In this background, learned Single Judge in para 14 has held that requirement of Section 16(2) of Maharashtra Rent Control Act, 1999, is interlinked with its second part ie about partial eviction and hence entire provision of Section 16(1)(g) and Section 16(2) with the second part has to be read as a whole and construed harmoniously. A statutory duty is cast upon the Court to make an enquiry into the extent of need of landlord even if such need is found to be reasonable and bonafide. The right of landlords to seek eviction on one hand and protection granted to the tenant on the ground of hardship can be balanced by the 16
Court by making enquiry into the existence of bonafide need and greater hardship which would be caused by passing the decree rather than by refusing to pass it, to meet the ends of justice. The learned Single Judge has noticed that such an exercise is to be carried out by Court whether party demands it or not. AIR 1978 S.C. 413 "Rahman Jeo Wangnoo v. Ram Chand" construes proviso to explanation 11(h) of J. and K. Houses and Shops Rent Control Act (34 of 1966), to hold that it mandates the Court to consider whether eviction of tenant from part of premises is to be ordered, so as to substantially satisfy reasonable requirement of landlord & even in the absence of a specific pleading under that proviso court has to act in compliance with the mandate and give a finding. In present facts that plea is specifically raised in his evidence by Wamanrao.
11. The law as explained by the Hon'ble Apex Court in the case of Bhimangagouda Basanagouda Patil vs. Mohammed Gudusaheb, (supra) reveals that merely because the landlord has purchased the premises in question, he can not be deemed to be 17
an affluent person and tenant who has a large family whose earning capacity is about Rs. 20/- per day ought not to be held to suffer greater hardship, if an eviction is ordered. It is held that if comparative hardship is held in favour of the tenant solely on the basis of affluence of the parties, then an affluent landlord can never get possession of his premises, even if he proves all his bonafide needs. The fact that a person has a capacity to purchase the property cannot be the sole ground to hold against the landlord while deciding the question of comparative hardship. If the purchase is pursuant to a genuine need of the landlord the said purchase has to be given due weightage unless, of course, the purchase is actuated by collateral consideration. While considering the question of comparative hardship Court has to take note of the hardship which the landlord suffers by not occupying his own premises as against the hardship the tenant would suffer by having to move out to another place. Hon. Apex Court holds that even assuming there will be some hardship to the tenant by having to vacate the premises, same can be mitigated by granting a reasonable time to vacate, bearing in 18
mind the fact that the tenant was residing in the suit house for considerably long period of time and litigation itself had consumed nearly 12 years and the tenant did not take any steps to find out any alternate accommodation. Judgment of the Hon'ble Apex Court in the case of Yadvendra Arya vs. Mukesh Kumar Gupta Bhimangagouda Basanagouda Patil vs. Mohammed Gudusaheb, (supra), also shows similar application of mind. The perusal of earlier judgment of learned Single Judge of this Court in the case of Yogesh Dattaram vs. Shrikrishna Shriram,(supra) on Bombay Rent Act, shows that there the tenant was not financially in a position to afford the other accommodation. Consideration in para 12 shows that the petitioner there had pleaded and established his need and also non availability of any other place. He was at the relevant time staying in one room accommodation in attic portion of the suit building. The tenant on the other hand has stated in written statement that he would suffer more hardship if the decree was to be passed. He pointed out that he was staying in suit premises for over 43 years and no other accommodation for residing was available in the locality or 19
city of Pune. The further allegations reveal that huge deposit was required to get residential accommodation on lease. The learned Single Judge found that the financial condition of tenant has to be taken into account while considering this issue but that alone cannot be the basis to answer the issue one way or the other. Merely because tenant cannot afford another accommodation, it would not be proper to deny relief of possession to the landlord. Thus question of partial eviction did not crop up there for answer. But then it is clear that appellate Court has erroneously declined the decree to landlords on the ground of comparative hardship and the finding of Small Cause Court in that respect needs to be restored.
12. The discussion of both the judgments between parties to this petition here show that while applying mind to issue of comparative hardship, the later part of partial eviction has not been looked into either by the appellate Court or by the Small Cause Court. The trial Court has only found that bonafide need was established and tenant could not establish more hardship to 20
him if the decree is passed in favour of the landlord. Though the specific contention by tenant that requirement of landlord would be met with if possession of one of the shop block with him was restored to them has been mentioned, no finding in that regard has been recorded. In the light of judgments considered above, it is, therefore, apparent that the judgment as delivered by Small Causes Court itself is incomplete and cannot be sustained. The need of complete tenanted premises by landlords (petitioners) cannot be examined for the first time by this Court though such effort has been made by the learned counsel for the petitioner. It is basically a question of fact which needs to be gone into by the trial Court and thereafter by the Appellate Court. Their findings in this respect then can be examined by this Court in its extra- ordinary jurisdiction.
13. Though the learned counsel has contended that landlord has failed to establish the bonafide need, the facts on record clearly show that the landlord had the business till 1996 and then filed Rent Control proceedings in 1998-99 against 21
tenant Wamanrao seeking restoration of possession of two shop blocks for his business. The present tenant is a tenant since 1970. The other tenant ie Patel & Co. was inducted in 1985. At that time, landlord was not having any need and only contention of the tenant before this Court is, no proceedings were filed against the said other tenant M/s. B.R. Patel & Company. M/s. B.R. Patel & Company was placed in occupation in 1985 and continued in occupation till 1996 when the landlord allegedly closed its business. The closure of said business in 1996 or then vacation of tenanted premises of Rinki Bhaiyyaji because of request made by said Rinki Bhaiyyaji cannot be very relevant in present situation. Those premises were also tenanted one and landlord can always demand to shift to his own shops. The fact that landlord had experience of said business, had necessary man power and also necessary finance has been established on record. The landlord is the best judge of his own needs and hence landlord filed the proceedings before Rent Controller in 1998-99 against the tenant - Wamanrao. In suit as filed, the area of shop blocks in possession of the tenant is given as 10' x 12' 22
and 12' x 16'. Area of shop in possession of M/s. B.R. Patel & Company is about 12' x 28'. The landlord has also stated that tenanted premises with the respondent and one other room can be conveniently used by them. It appears that they planned to use the tenanted rooms as shop and other room as shop-cum- godown. Their existing business at Shahid Chouk is in small tenanted premises. In this situation, it cannot be said that bonafide need is not established. The admission given by the tenant himself in his cross examination has been used by Small Causes Court to record a finding in favour of the landlord. It is upheld by the appellate Court. I, therefore, find no substance in the contention of the tenant that bonafide need has not been established in the matter.
14. The contention that suit as filed is not maintainable is also misconceived. The filing of proceedings before Rent Controller is not in dispute and when suit came to be filed, the landlord specifically stated that Rent Control proceedings were withdrawn with liberty to take recourse to the provisions of Rent 23
Act. Reply to these averments in written statement does not disclose any specific defence. The tenant only has stated that it is a matter of record. The tenant has not pleaded before the Small Causes Court or Appellate Court or even before this Court that when suit was filed, the proceedings before Rent Controller were actually pending. The provisions of Section 58(2) of the Rent Act show that the proceedings already filed and being prosecuted before Rent Control authorities under the provisions of Rent Control Order can be continued further and are required to be disposed of as if said C.P. & Berar Letting of Houses and Rent Control Order, 1949, has remained in force. If the proceedings are already disposed of or withdrawn, there is nothing in Section 58 of the Rent Act which prevents the landlord from filing fresh matter as per Rent Act. The need to be pressed into service is bonafide need and that need was in existence in 1998-99 when the proceedings were initially filed before Rent Controller or even in 2002 when suit was filed before Small Causes Court. It, therefore, cannot be said that the suit filed by the landlord was on cause of action which was not 24
available under Rent Act. I, therefore, do not find any substance in the contention of the tenant that suit as filed was not tenable.
15. In view of the discussion above, Writ Petition No. 3303 of 2008 filed by tenant - Wamanrao, is partially allowed. The judgment and decree dated 22.08.2006 delivered in Regular Civil Appeal No. 562 of 2005 is quashed and set aside along with the judgment and decree dated 11.12.2005 in Regular Civil Suit No. 261 of 2002, only to enable Small Causes Court to find out whether partial eviction of tenant from shop blocks is permissible and also sufficient to meet the need of the landlord.
16. Writ Petition No. 4926 of 2006 filed by landlord is allowed and finding recorded on the aspect of comparative hardship by that Court is quashed and set side. The parties to appear before the Small Causes Court on 01.09.2010 and to abide by its further directions in the matter. The Small Causes Court shall attempt to decide the issue and the suit accordingly as early as possible and in any case by 28th February 2011. 25
17. At this stage, Shri Khapre, learned counsel has contended that in view of the findings already reached above, as landlords are carrying on their business practically on streets, the decree for eviction of tenant from one of the shop blocks should be passed and possession of at least one shop block should be immediately restored to them. I am not in a position to undertake such an exercise here and also as that exercise would result in partial decree in a suit which has been remanded for consideration to trial Court.
18. Both writ petitions are thus partially allowed. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE
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