Having considered the rival submissions, to my mind, the approach of both the courts on material issues was completely wrong and has resulted in manifest injustice. The courts below have proceeded to examine the matter by questioning the factum of partition asserted by the Petitioner. Whereas, it was not open to the Rent Courts to do so. Instead, the Courts ought to have proceeded on the assumption that the plea of partition as taken by the landlord was genuine. The learned Counsel for the Petitioner has rightly placed reliance on the decision of this Court reported in 1990 BRC 496 in Subhash W. Lele v. Popatlal T. Shah. In the said decision, this Court has observed that it is not open to the tenant to challenge the factum of partition. The only challenge available to the tenant in such proceedings is, that the so called partition was not bonafide and effected only for the purpose of maintaining a suit for possession against him. This is the limited enquiry that can entered upon by the Rent Court.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 2508 of 1991
Decided On: 15.07.2002
Shri Yogesh Dattaram Pathak
Vs.
Shri Shrikrishna Shriram Joshi
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Additional District Judge, Pune dated December 31, 1990 in Civil Appeal No. 566 of 1988. The premises in question consist of four rooms situate at Survey No. 1418/B Sadashiv Peth, Pune-30. The Respondent is the monthly tenant in respect of the suit premises. The suit building was originally owned by the joint family of which the Petitioner was a coparcener. The said property was partitioned some time in 1976 and, the suit premises came to the share of the Petitioner, whereas the portion of that property bearing property No. 1418A went to the share of the Petitioner's brother, Ajay. Necessary entries have been incorporated in the relevant revenue records and City Survey record in that behalf, in 1979. At the relevant time, however, petitioner was minor and the suit property was managed by his father as his guardian. When the Petitioner became major in 1985, he started managing his property being CTS No. 1418B. It is the case of the petitioner that after the partition, the family members started staying separately and that at the relevant time (in or around 1986) the petitioner was staying in the attic portion of the building which was hardly a room with three sides covered by tin shed. According to the Petitioner, since the Petitioner felt the requirement of the suit premises for his personal use and occupation, therefore, instituted a suit before the Court of Small Causes Court, Pune, being CS No. 176 of 1986. That suit against the Respondent was filed on the ground of bonafide and reasonable requirement and also on the ground that the Respondent has unauthorisedly erected permanent structure in the suit premises on portion which was not let out to the Respondent and that the same was also causing nuisance and annoyance. The trial Court by its judgment and decree dated April 22, 1988 was pleased to dismiss the suit on all the three counts. The appeal preferred by the petitioner before the District Court at Pune being Civil Appeal No. 566 of 1988 was also dismissed by the Appellate Court. Both the Courts below have essentially proceeded to examine the case on the premise that the theory of partition pressed into service by the landlord was doubtful and that if the same was to be discarded, then, it necessarily follows that the Petitioner was staying with the joint family and, therefore, it was not possible to hold that the premises in question were required by the petitioner for his bonafide and personal requirement. The Courts below have also opined that it was inconceivable that the Petitioner was staying in the attic portion of the same building. For this, the Courts below have relied on the evidence of witness examined by the defendant Shri Rahalkar and also because the petitioner did not indicate as to when he started staying in the attic portion. These concurrent decisions are challenged in the present writ petition under Article 227 of the Constitution of India.
2. According to the learned Counsel for the Petitioner, the approach of both the Courts below is manifestly wrong and impermissible, which has caused serious miscarriage of justice. he submits that, in a suit for possession filed by the landlord against the tenant, it was not open for the rent Court to examine the fact as to whether the partition has in fact taken place between the members of the joint family. He submits that in any case there is no specific plea taken on behalf of the Respondent-defendant that the said partition was malafide so as to defeat the rights of the Respondent or only to secure possession of the suit premises from the tenant. It is further submitted that the defendant on the other hand has admitted in his evidence that the Petitioner's father had informed him that the plaintiff has become landlord and since he has started managing the property himself, the defendant should start paying the rent directly to the petitioner: And that since then the Respondent has been paying rent directly to the petitioner, which presupposes that the Respondent has accepted the petitioner as his landlord. It is contended that, in this backdrop, it was not open to the Respondent to question the title of the Petitioner in respect of the suit property on the premises that the partition had never taken place as contended and, which contention has erroneously found favour with the two courts below. The learned Counsel has also relied on the CTS record and other documents and contends that the partition was recorded in the relevant records as back as in the year 1976-79. Therefore, it is incomprehensible that the partition can be said to have been effected only for the purpose of claiming possession of the suit property. The learned Counsel further contends that the finding of fact recorded by the courts below that the Petitioner was not staying in the attic portion of the suit building is based on conjectures and surmises. That the Courts below have given undue importance to some minor errors and preferred to rely upon the evidence of the defendant's witness. It is contended that the approach of the courts below was inappropriate. In so far as the question of greater hardship is concerned, the learned Counsel brought to my attention pleadings in the written statement filed by the Respondent in which there is no averment made that it was or will not be possible to get alternative accommodation in the same locality or in the city of Pune. All that has been mentioned in the written statement by the Respondent is that, it is not possible to get residential accommodation unless more deposit amount is paid and the Respondent has no funds to bear the same. In other words, it is not the case of the defendant that no premises could be secured in the city of Pune or for that matter in the same locality. Understood thus, according to the petitioner, even the issue of comparative hardship ought to be answered against the Respondent and also having regard to the fact that the Respondent was admittedly the owner of premises - one residential flat at Mumbai. The learned Counsel has also invited my attention to the affidavit placed on record before this Court by the respective parties pointing out the events that have occurred after filing of the petition. In so far as issue of Respondent having erected unauthorised structure and nuisance is concerned, the learned Counsel contends that both the Courts below have committed error in answering the said issue against the petitioner.
3. On the other hand, the Counsel for the Respondent submits that two courts below have concurrently found that the need set up by the Petitioner is neither bonafide nor reasonable and, therefore, it is not open for this Court to reappreciate the evidence on record so as to over turn and said finding of fact in exercise of writ jurisdiction under Article 227 of the Constitution of India. He further submits that the courts below have not decided the issue of partition as the main issue, but they were required to answer the same incidentally for ascertaining the factum as to whether the need set up by the petitioner is bonafide and reasonable. He, therefore, submits that no fault can be found with the approach of the courts below in taking the view that the partition was doubtful. He further submits that, in any case, the courts below have rightly found that the petitioner has not been able to establish that he was staying in the attic portion of the suit building at the relevant time, and, therefore, adverse inference ought to be drawn against the petitioner - that he was having sufficient accommodation to stay elsewhere, either with his family or otherwise. In such a situation, contends learned Counsel, this Court ought not to show any indulgence to the petitioner. In so far as the issue of hardship is concerned, the learned Counsel submits that the Respondent has no other place in the city of Pune, except the suit premises. Moreover, because of his old age and conducive weather condition in Pune, he cannot now settle down in Mumbai. He, therefore, submits that it would be iniquitous to dispossess the Respondent from the suit premises; and especially when there is material on record to show that the petitioner was also the owner of other premises along with his family members. According to him, the sole intention of the Petitioner is to get possession of the suit premises so as to utilise the said premises for the lodging business and not for his personal use and occupation for residence for himself as well as his family members. In this back drop it is submitted that the finding recorded with regard to the comparative hardship also needs no interference. The learned Counsel further contends that, in so far as the issue of permanent structure and nuisance is concerned, the same have been rightly answered by the two courts below because, there was absolutely no evidence forthcoming from the Petitioner as to when the offending structure was erected. On the other hand according to the Respondent, the said structure was in existence since 1943. He therefore, submits that taking any view of the matter no interference was warranted on these two issues. The learned Counsel further contends that this court ought not to look into the affidavits which have been filed in the present writ petition, to bring on record the so called subsequent events. According to him, no corresponding amendment in the pleadings has been carried out by the parties and the facts which are attempted to be brought on record are essentially question of facts, for which amendment to the pleadings was essential. He was placed reliance on the decision of the apex Court reported in MANU/SC/0035/2002 : [2002]1SCR359 inn Om Prakash Gupta v. Ranbir B. Goyal.
4. Having considered the rival submissions, to my mind, the approach of both the courts on material issues was completely wrong and has resulted in manifest injustice. The courts below have proceeded to examine the matter by questioning the factum of partition asserted by the Petitioner. Whereas, it was not open to the Rent Courts to do so. Instead, the Courts ought to have proceeded on the assumption that the plea of partition as taken by the landlord was genuine. The learned Counsel for the Petitioner has rightly placed reliance on the decision of this Court reported in 1990 BRC 496 in Subhash W. Lele v. Popatlal T. Shah. In the said decision, this Court has observed that it is not open to the tenant to challenge the factum of partition. The only challenge available to the tenant in such proceedings is, that the so called partition was not bonafide and effected only for the purpose of maintaining a suit for possession against him. This is the limited enquiry that can entered upon by the Rent Court.
5. In the present case, it is seen that the partition was effected in the year 1976 and has been registered in the relevant records immediately thereafter, it is not in dispute that the suit has been filed only in the year 1986, therefore, it is not possible to countenance the tenant's plea that the partition was effected only with a view to seek possession of the suit premises from him. Besides, the learned Counsel for the Petitioner has rightly pointed out that no specific plea has been taken in the written statement by the Respondent, questioning the genuineness of the partition or for that matter asserting that the partition was effected only to maintain the suit for possession against him. On the other hand, in the written statement, a vague plea is taken that the partition was fake one and the plaintiff and his family are joint. To my mind, such a plea would be of no avail to the Respondent. Moreover, there is no positive evidence brought on record to even suggest that the partition was effected only to maintain the suit for possession. In the circumstances, I have no hesitation to observe that the entire exercise undergone by the Courts below to record a finding on the factum of partition as such, will have to be obliterated from the records, for that could not have been the scope of enquiry for the Rent Courts. It necessarily follows that the reasoning recorded by the two courts below that the partition was bogus and, therefore, inferring that the Petitioner was staying with the joint family or had sufficient accommodation in his possession would be unavailable. Once these reasoning were to be ignored, then the only reasoning that remains to be considered, as found by the courts below, is that the Petitioner has failed to establish that he was staying in the attic portion of the suit building, which consisted of only one room. I shall advert to this aspect a little latter. To my mind, even if the Courts below were right in recording finding regarding the factum of partition or otherwise the consequences would be that the matter will have to be examined on the basis that there was no partition. Even then, it is well settled that, a co-owner can proceed to institute suit of this kind against the tenant without impleading all the other owners (See MANU/SC/0473/1976 : [1977]1SCR395 - Sri Ram Pasircha case). Even for this reason, the Court would be obliged to investigate as to whether the Petitioner-landlord has established that the need set up by him is reasonable and bonafide.
6. While considering this aspect the Courts below have, to my mind, proceeded on the basis of conjunctures and surmises. The courts below have opined that merely because the Petitioner has produced record to show that during the relevant period he was staying in the attic portion was not enough, for he did not explain his place of abode prior to that period. On that reasoning inference has been drawn that the Petitioner was staying elsewhere along with his other family members. The Appellate Court has also adverted to the evidence of Rahalkar who was examined on behalf of the Respondent. It is not in dispute that Rahalkar is also one of the tenant in the said building.
7. However, as is seen that the Petitioner has not only pleaded but also produced evidence to show that at the relevant time he was residing in the attic portion of the Building which was hopelessly inadequate to satisfy his need or requirement and that he bonafide required the suit premises. The Courts below have discarded that plea and evidence on the specious reasoning that the Petitioner did not disclose his place of abode for the earlier period and therefore inferred that he was staying elsewhere with his family. That reasoning cannot be countenanced. On the other hand, it is well settled that the Court cannot start the enquiry by doubting the bonafide of the landlord. (See MANU/SC/0198/1998 : [1998]2SCR197 in Rena Drego's case, MANU/SC/0657/1999 : AIR1999SC3864 Raghunath Panhale's case). The apex Court in the case of Meenal Eknath Kshirsagar v. Traders and Agencies and Anr. reported in 1997 (1) Mh.L.J. 121has held that the landlord is the best judge of his residential requirement and it is for him to decide how and in what manner be should live and it is not for the Courts to dictate to him and prescribe for him standard of their own. Applying the settled legal position, it was not open for the courts to enquire into the matter by questioning the bonafide of the Petitioner that too in the absence of any positive evidence adduced by the Respondent to show that the Petitioner's claim was not bonafide as such.
8. The Courts below were further impressed by the fact that, in addition to the suit premises, the Petitioner was having other rooms which have come to his share. The total rooms which have come to the share of the petitioner are about 19 rooms. It is not in dispute that out of 19 rooms - 4 rooms are in possession of Respondent-tenant; the other 4 rooms are in possession of another tenant - Rahalkar, 3 rooms on the ground floor are in possession of another tenant - Mahajan; other 5 rooms on the ground floor are, admittedly, used for commercial purposes by Devdhar Utkarsha Lodge and dispensary cum Laboratory by one Dr. Vaze; other rooms on the first floor are used by Utkarsha Lodge which is conducted by the mother of the Petitioner. No doubt the said business is run by the Petitioner's mother, but the fact remains that the said room is used for commercial activity and not for residential purpose. It will be too much to suggest that the Petitioner could have got those premises vacated so that he could occupy the same for residence. The fact remains that no additional premises were physically available in the suit building amongst the premises which have come to the share of the Petitioner. Understood thus, the requirement set up by the Petitioner was obviously bonafide and reasonable one.
9. The argument for the Respondent that the intention of the Petitioner was to obtain possession of the suit premises and use the same for lodging business is wholly without any basis. No such plea has been taken before the court below nor any evidence has been adduced in that behalf. In any case, this argument overlooks the mandate of Section 17 of the Bombay Rent Act, which would entitle the tenant to claim possession of the suit premises if the premises are put to use other than the one for which possession was obtained under a court's decree. This position has been taken note of in the decision of the apex Court reported in MANU/SC/1003/1999 : AIR1999SC3089 (See (para 14) in Ramkubai's case). Understood thus, it is not open to doubt that the Petitioner after getting possession would use the premises for some other purpose. If that happens, it will always be open to the Respondent to take recourse in appropriate remedy permissible by law.
10. Having examined the matter in this perspective, to my mind, given the pleadings and evidence which has come on record, the need set up by the Petitioner in respect of the suit premises cannot be doubted either being unreasonable or malafide. The learned Counsel for the Petitioner has rightly drawn my attention to the decision of this court report in 1984 Bombay Rent Cases 19 in the case of Bagalkot Udyog Limited v. Mina(SIC) Surendra Patel and Ors. where this court has held that merely because the landlord is residing with his relatives out of love and non availability of his own premises, the court as a rule cannot refuse the relief of possession and compel the landlord to stay with his relative. Applying the said principle, the issue of bonafide and reasonable requirement will have to be answered against the Respondent and in favour of the Petitioner landlord.
11. The argument that this Court ought not to interfere with the concurrent decision is wholly without any substance. The apex Court in Ragbhunath Panhate's case (supra) has observed that when the subordinate courts have committed manifest error then it is the duty of the High Court in exercise of writ jurisdiction under Article 227 to remedy the mistake. From the above discussion it is seen that I have not reappreciated the evidence as such, but interfered with the concurrent decisions of the two courts below because, both the courts below have committed manifest error in their approach and applied wrong tests in deciding the matters in issue.
12. Coming to the issue of comparative hardship, as is seen, the Petitioner has not only pleaded but also established on record that the Petitioner has no other place and was at the relevant time staying in one room accommodation in the attic portion of the suit building. On the other hand, the Respondent in his written statement has merely stated that he would suffer comparative hardship if the decree was to be passed. The Respondent has further averred that he was staying in the suit premises for last more than 43 years and his father had taken the premises on lease from the grand father of the present Petitioner. It is not the case of the Respondent that no alternative accommodation for residence would be available in the same locality or for that matter in the city of Pune. All that is mentioned in para 4 of the written statement is that, it is not possible to get residential accommodation on lease unless huge deposit is paid and that he was unable to afford the same. No doubt financial condition of the tenant can 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 the tenant cannot afford another accommodation as he would be required to pay deposit for securing suitable alternative accommodation, cannot be legitimate basis to deny relief of possession to the landlord inspite of having established the fact of bonafide and reasonable requirement in the suit. That cannot be and is not the legislative intent. The principles to be borne in mind while examining this issue is well stated in the decision of the apex Court reported in MANU/SC/0313/1978 : [1979]2SCR1 in Bega Begaum's case. The apex Court has held that both the parties have to discharge the onus with regard to issue of comparative hardship. It is not enough for the tenant to say that he would suffer hardship but he has to further plead and prove that it will not be possible for him to get alternative suitable accommodation in the same locality or for that matter in the same city. In absence of which the Court will have no option but to answer the issue of comparative hardship against the tenant.
13. In the present case, however, the courts below have examined the issue of hardship by applying wrong tests. The trial court has observed that the Respondent was staying in the premises for sufficiently long years and he had produced certificate from Corporation to the effect that the flat owned by him at Kothrud (which is part of Pune) cannot be used for residential purpose. The trial Court has also adverted to the evidence of Respondent that he was financially not in a position to spend to acquire another flat at Pune as his monthly salary was only Rs. 3300/- and he had three family members. The Appellate Court has more or less adopted the same reasons to answer in favour of the Respondent. To my mind, this approach of both the Courts below is completely wrong and contrary to the settled legal position. On the other hand, in the fact situation of the present case, the Courts below ought to have answered the issue against the Respondent. It is not in dispute that the Respondent already owns a flat in Mumbai, though admeasuring 295 sq.ft. carpet area. Although I am not going into the correctness of the stand in the affidavits filed before this Court to show the subsequent events and, I have not based my decision on that basis, but it will be relevant to point out that it is stated on affidavit that the Respondent has retired from service, which was one of the reason pressed into service for contending that it was necessary for him to stay at Pune. Moreover, during the pendency of this petition, it is stated on affidavit that the Petitioner's wife as well as mother have expired, whereas his son has permanently settled abroad more particularly - USA. This facts are not in dispute. It is stated on affidavit before this Court that the Respondent has recently disposed of the flat at Kothrud for sum of Rs. 20 lacs. Even this fact is not countered. Be that as it may, taking over all view of the matter and applying the settled legal position, I am of the view that the issue of comparative hardship will have to be answered against the Respondent, for there is no necessary pleading or evidence adduced that it is not possible to secure alternative accommodation in the city of Pune.
14. Accordingly this writ petition succeeds, the Judgments and decree passed by the two courts below are set aside and instead the suit is decreed on the ground of reasonable and bonafide requirement of the Petitioner. It is made clear that I have not examined the merits of the other ground as the Petitioner is entitled in decree for possession on the ground under Section 13(1)(g) of the Act. No order as to costs.
15. Certified copy expedited.
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