Whether landlord has discretion to seek premises from any of tenant?

Once it is established that the landlord required the premises bonafide and reasonably, it is his choice as to which premises and from which tenant he should seek the same. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3037 of 1985

Decided On: 29.10.1990

Shankar Vishnu Vengurlekar Vs. Rajaram Pandurang Deshpande and Ors.

Hon'ble Judges/Coram:

I.G. Shah, J.

Citation: 1992 (1)  Rent Control Reporter 511

1. The original defendant, through his heirs, in Suit No. 1962 of 1979 on the file of the 4th Additional Small Causes Judge, Pune, have preferred this writ petition under Article 227 of the Constitution of India to challenge the order of eviction passed against them and directing them to hand over vacant and peaceful possession of the suit premises to the defendants on or before 8th October, 1983 and to pay a sum of Rs. 331.55 with costs of the suit and also fixing standard rent of the suit premises as their appeal against the said order also came to be dismissed by the VII Additional District Judge, Pune. Briefly stated the facts giving rise to this petition are as under:-

The plaintiff filed a suit against the original defendant to seek possession of the suit premises under the provisions of the Bombay Rent Act claiming that the suit premises consist of 2 rooms tenements in C.T.S. House No. 249, Narayan Peth Pune; that the plaintiffs are the owners and landlords; that the original defendant was a tenant and had agreed to pay Rs. 42.10 per month as rent inclusive of permissible increases; that the defendant had not paid the rent after 1979 and was a defaulter; that the defendant was a permanent resident of Belgaum in the State of Karnataka and had taken the suit premises for education of his children at Pune; that the daughter of the defendant thereafter got married and that she is residing with her husband; that the son of the defendant has construed a bungalow in Kothrcted with the help of the family funds and the entire family had gone to reside in the said newly constructed bungalow from May 1978; that they had locked the suit premises and the same was being damaged due to non-user. It appears that the plaintiffs had purchased the suit premises on 18th July, 1974 and at that time the defendant was a tenant in two rooms in the said premises and three rooms on the ground floor and one room on the first floor which were vacant were occupied by the plaintiffs. The plaintiffs also claimed that taking into consideration the number of members in the family, their age, work, education etc., the said premises in their possession was insufficient and, therefore, they needed the suit premises reasonably and bonafide for their personal occupation. They also claimed that the defendant's family had acquired suitable alternate residential accommodation and therefore, also the plaintiffs were entitled to obtain possession of the suit premises. They also claimed that they were entitled to the possession of the suit premises as the defendant had not been using the suit premises for purpose for which it was taken for a continuous period of six months immediately preceding the filing of the suit. The plaintiffs, therefore, claimed possession of the suit premises under Sections 13(1)(g), 13(1)(1) and 13(1)(k) of the Bombay Rent Act.

2. It appears that the defendant died before he could file his written statement and, therefore, the heirs of the original defendant were brought on record and the widow of the defendant filed written statement and the same was also adopted by the son of the defendant who is brought on record as defendant No. 1(b). The daughter of the defendant who was also made a party to the suit, did not file any written statement. The defendant Nos. 1 (a) and 1(b) resisted the suit and contended that the claim of the plaintiffs that they required the suit premises for bonafide and reasonable occupation was not correct. They also contended that the suit premises was required for residence of defendant No. 1(a), the widow of deceased defendant and she has been occupying the said premises and that the said premises was not locked and kept unused.

3. The trial Court on the strength of evidence led before him found that the plaintiffs are entitled to possession of the suit premises under Section 13(1)(I) of the Bombay Rent Act only, and that the plaintiffs have failed to establish that the premises were required for personal use or occupation and that the premises were not used continuously for a period of six months preceding the filing of the suit and, therefore, decreed the suit of the plaintiffs only under Section 13(1)(I) of the said Act.

4. The defendant carried an appeal to the District Court and the learned VII Additional District Judge, Pune, dismissed the appeal. The learned Additional District Judge, however, found that the premises were not being used for a period more than six months preceding the date of filing of the suit and, therefore, the plaintiffs would also be entitled to possession of the suit premises under Section 13(1)(k) of the Bombay Rents Act, but as the plaintiffs had not filed an appeal against the finding of the trial Court in that respect nor had filed any cross objection he refused to interfere with the said findings. The learned Additional District Judge also found that the finding of the trial Court in respect of the requirement under Section 13(1)(g) was correct. The defendants through the legal heirs have preferred the present petition to challenge the order of eviction passed by the trial Court and confirmed by the Appellate Court.

5. In view of the facts stated above, it would be proper to first consider the case of the plaintiffs under Section 13(1)(I) of the Bombay Rents Act as the decree has been passed in favour of the plaintiffs on that count.

6. On behalf of the petitioners, relying on the decision reported in 1984 Mah. L.J. 834, it is strenuously contended that the acquisition of a suitable residence by the defendant No. 1(b) the son of the original defendant, cannot be a ground for eviction of a tenant under Section 13(1)(I). In the said decision Jahagirdar, J. did hold that the acquisition of a suitable residence must necessarily be by the tenant and not by any other person who is related to the tenant. In the case before Jahagirdar, J. suitable residence was acquired by the son of the tenant and it was held in the said decision that the acquisition of a suitable residence by the son could not be a ground under Section 13(1)(I) for eviction of the father of the said son who was the tenant.

7. On behalf of the present respondents, it is tried to be contended that in the present case the facts are distinguishable and the said ruling has no application. Relying on the decision reported in 1989(3) SCC Cases 77, it is contended that the defendant Nos. 1(a) and 1(b) are in fact joint tenants, even if it is held that the suit premises were taken by the original defendant on rent. It is contended that after the death of the original defendant the wife and the son would become the joint tenants of the suit premises and, therefore, the son who is a joint tenant having acquired a suitable accommodation he could be evicted on the ground under Section 13(1)(I) of the Bombay Rents Act. As against this, on behalf of the petitioners, it is tried to be contended that the widow of the original defendant cannot be forced to reside in the house of the son built by him and even if it is held that the widow and the son became the joint tenants in the suit premises, the case of the widow would be required to be considered on a different footing.

8. There is one another feature which needs be taken into consideration in the present case. It appears that initially the premises were taken by the original defendant for the education of his children consisting of the son and a daughter as he had been residing and practising law at Belgaum in the State of Karnataka where it was not possible to give education in Marathi to his children. The original defendant continued to reside at Belgaum and the son and the daughter were residing at Pune in the suit premises and the wife of the original defendant, it appears, used to reside more predominantly with the children at Pune. The daughter after completing her education got married and shifted herself to Jalgaon to reside with her husband. The son and the mother, however, continued to reside at Pune. The son on completion of his education, got an employment. He also got married in 1971 and subsequently also got children and he had been residing with his family and the mother in the suit premises. Later on, it appears that he constructed a bungalow of three rooms at Kothrud in Pune city and admittedly shifted himself and his wife and children to the said newly constructed bungalow. According to the respondents, the mother also shifted with them along with her husband as he was also staying at that time with them whenever he used to come to Pune. So according to the respondents the claim of the wife that she is residing in the suit premises even after his son had constructed a bungalow, itself is false. But while considering the claim of the present respondents under Section 13(1)(I), it would be necessary to consider the same without taking into consideration as to whether in fact the mother has also shifted along with the son and his family to the new premises or not. Short question that arises for determination is whether the acquisition of the suitable residential premises by the son in the present case could be considered to be the acquisition of a suitable premises by the son as well as the mother. On behalf of the respondents, reliance is placed on the fact that the mother and the son must be held to be joint tenants in view of the decision of the Supreme Court cited above and the further fact that even the father i.e. the original defendant, has contributed for the said new construction by the son. No doubt the son and the mother have come out with a case that the father had only given loan for construction of the new bungalow and the said loan was also returned by the son to the mother after the death of the father. The said contention of the present petitioners was turned down by the trial Court as well as the Appellate Court on facts and it was heen held that the suit premises were constructed from the joint family funds. In view of this, on behalf of the respondents, it is very strenuously contended that the said finding of facts cannot be interfered with by this Court in a writ petition under Article 227 of the Constitution of India. It was also contended that it was within the right of the lower Courts to consider on facts as to whether the said construction carried out by the son was carried out actually from the funds of the joint family and if the said two Courts accepted the contention of the present respondents that the construction was out of the family funds, the two Courts were right in holding that the mother and the son had constructed a suitable residence and, therefore, their case fell within the purview of Section 13(1)(I) of the Bombay Rents Act cannot be interfered with. Reliance was also placed on the ruling reported in 1986 Bombay Rent Cases 295 on behalf of the respondents. It was contended that Deshpande, J. in the said decision had considered the effect of the judgment reported in 1985 Mah L.J. 834 relied upon by the present petitioners. Now in the said decision, Deshpande, J. no doubt even after considering the judgment reported in Shankar Nana Waychal v. Mohan Ganesh Date, 1984 Mah. L.J. 857 by Jahagirdar, J. held that he did not think that the said judgment is an authority for the proposition that the real nature of the transaction cannot be accepted by the Court in such matters. Relying on this, it is very strenuously contended by the respondents that both the Courts below had concluded on good evidence that in reality the said construction made by the son was not only from his own funds and was from the joint family funds. Reasons have been given by the Appellate Court to come to the said conclusion and I do not see any reason to differ with the said reasoning.

9. It is an admitted position that Rs. 10,000/- were taken from the father for constructing the said house. The son no doubt claims that he had taken the said amount by way of loan and he had returned the said amount after the death of his father to his mother. The Appellate Court in view of the evidence on record concluded that the said contention of the son was not accepted as there were no documents produced by the son to indicate that the transaction was a loan transaction and that he had in fact returned the said amount to the mother. Even though the mother has stated so in the evidence, the said reasoning given by the trial Court definitely cannot be concluded as untenable completely so as to require interference under Article 227 of the Constitution of India. In view of this, I do not find any reason to interfere with the said finding.

10. Coming to the other grounds which were pleaded by the present respondents to seek the possession of the premises and which have not found favour with the trial Court on facts. It becomes necessary to consider as to whether the said grounds could be taken into consideration. The Appellate Court, though it concluded that the present respondents would be also entitled to decree of possession, refused to interfere with the finding of the trial Court on the ground that the respondents had not preferred any appeal against the said finding and had also not filed any cross-objection in the appeal filed by the present petitioners. Order 41 Rules 28 and 33 are complete answers to the said questions. Under Rule 22, Order 41, any respondent, though he may not have appealed from any part of the decree may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court. Now therefore, the present respondents who had succeeded in the trial Court in getting a decree of eviction on only one ground out of the grounds pleaded in the suit, can definitely support a decree of eviction of any other ground though the trial Court had found against them on those grounds. It is not necessary that he must file an appeal against the findings. Similarly, the power of the Appellate Court under Rule 33 is very wide and the Appellate Court has power to pass any decree and make any order which ought to have been passed or made to pass or make such further decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed an appeal or objection.

11. Jahagirdar, J. in AIR 1980 Bombay 307 Gulabchand Ramchand Jain v. Noorbeg Umarbeg Mirza, also found that the appeal or cross-objection lies against a decree and not against a finding. In the said decision, it was also held that merely because an appeal arises from a decree passed under the Rent Act, the application of Order 41, Rule 22 of the Civil Procedure Code is not automatically excluded. Even under the Rent Act decrees may be passed on more than one ground and if in appeal such decrees are upheld on one rather than the other ground prejudice may not be caused to the appellant at all. In such a case there is no reason why the provisions of Order 41, Rule 22 of the Civil Procedure Code should not be applied. No doubt in the said decision, Jahagirdhar, J. refused to express view on the above aspect as it was not necessary to do so on the facts of the case before him. But the view that is expressed by Jahagirdar, J. clearly appears to be tenable on plain reading of Rule 22 Order 41. This appears to be also a consistent view of number of High Courts and therefore, I do not find any reason to hold that the Appellate Court could not have corrected the judgment of the trial Court even after finding that the present respondents were entitled to a decree under Section 13(1)(k) of the Bombay Rents Act.

12. Now, therefore, it would be necessary to consider as to whether the finding on facts under Section 13(1)(k) of the appellate Court could be considered to be a correct finding. If the said finding can be said to be a correct finding then the respondents would also be entitled to a decree of eviction on that ground also. The present respondents had contended in the suit that after shifting from the suit premises to the newly constructed premises, the present petitioners had kept the suit premises locked and unused. The shifting is alleged to have taken place in 1978 and the suit was filed on 1979. On behalf of the present petitioners, it was tried to be contended that the trial Court had come to the conclusion that the said ground was also not established by the present respondents and the appellate Court, therefore, was not right in concluding otherwise, when the present petitioners had denied the allegation in the plaint that the suit premises were not being used and were kept locked for a period more than 6 months preceding filing of the suit. It was contended that the evidence whatever was led by the present respondents to prove the said fact was not sufficient. It was contended that the shifting of gas connections and telephone connection to the newly constructed premises by the son could not be considered as sufficient to establish that the mother also had shifted. It was tried to the contended that there were two gas connections and one remained in the suit premises and, therefore, the said fact is also not established. On behalf of the respondents it was also pointed out that the appellate Court found that the suit premises was not put in use and there was sufficient record to establish that. On behalf of the petitioners, however, it was tried to be contended that the appellate Court had only stated that there is sufficient record to show that the premises were not being used, but there is no specific mention as to which record was being considered. It was also tried to be contended on behalf of the petitioners that on the other hand there was evidence also to show that the ration card of the family of the present petitioners continued to be having the same address of the suit premises and a xerox copy of the same was also produced before the trial Court. Now, it is true that the xerox copy of the ration card has been produced, but the said document has not been proved by leading any evidence. However, even if the said document is read, it is clear that the ration card shows that the entire family consisting of the son, his wife his children and the mother continued to be shown to be residing in the suit premises even though admittedly the son, his wife and children had already shifted to the newly constructed premises. Therefore, the said ration card cannot be of use to the present petitioners to show that the mother continues to reside in the suit premises. On the other hand, there is record of receipts issued to the present petitioners, and in particular the son, which clearly show that after May 1978 there was no electricity consumption by the present petitioners in the suit premises. The receipts are exhibited documents and are proved. The receipts which are produced are the counter-foils and the original receipts have been issued to the present petitioners and the counter-foils are also bearing the signature of the son and they show very clearly that no electricity charges were included except the meter charges of .50 p. per month in the said bills. On the reverse of the said counter-foils, the meter reading is also shown and that specifically mentions that consumption was nil. On the reverse of the said counter-foils there is also signature of the son and, therefore, it cannot be said that what was written on the reverse of the counter-foils was not known to the present petitioners. As a matter of fact, he could not have said so as the rent receipts have in fact been issued to them and if there was any variance in the same, they could have definitely produced the same in the Court as the receipts must be in possession of the petitioners. The said receipts therefore, conclusively establish that there was no electricity consumption in the suit premises from May, 1978 and it cannot be said to be a coincidence that it is only since May, 1978 that the son occupied the newly constructed premises. Putting all this evidence together, it cannot be said that the appellate Court was in error in concluding that the suit premises was proved to be not in use by the mother, i.e. the present petitioner No. 2 and as the said finding is based on evidence on record it cannot be interfered with by this Court.

13. It also appears from the contentions raised on behalf of the mother that it was claimed that she was required to stay in the suit premises as she was under treatment of Dr. Sardesai and it was not suitable for her to shift to the newly constructed premises by the son. The said contention needs only be mentioned and need not be taken into consideration. In a city like Pune, it is difficult to accept that the mother would not be able to travel short distance to reach the consulting room of Dr. Sardesai. Hence the said circumstances, in my view, has no bearing at all.

14. During the course of arguments, it was also tried to be contended that the mother is not able to pull on with the wife of the son and that is why she preferred to reside separately. This ground also appears to have been taken only for the sake of convenience. It is clear from the evidence on record that the suit premises were taken initially for educating the children at Pune. The mother, therefore, out of a necessity was also required to stay with them shifting from Belgaum where her husband continued to reside and practised law. The son, it appears, got married in 1971 and the entire family consisting of the son, his wife and the children and the mother resided together from 1971 to 1978. If there were any tiffs between the mother-in-law and the daughter-in-law she definitely could have returned to her husband's house at Belgaum which she did not do. The children are already grown up during this period. The daughter already got married and, therefore, there was absolutely no reason for the mother to continue and bear the tiffs of the daughter-in-law if genuinely she was suffering from the said quarrels and due to that she wanted to reside separately from her son and the daughter-in-law. I have absolutely no doubt in my mind to conclude that the said tiffs are outcome of the necessity only so as to retain the possession of the suit premises somehow.

15. The next question that arises for determination is again of the requirement of the present respondents under Section 13(1)(g) of the Bombay Rents Act. There is sufficient evidence led by the present respondents about the number of members in their family and also of the fact that they were in possession of hardly three rooms in the neighbour-hood of the suit premises. The evidence on record also clearly shows that the present petitioners in the newly constructed bungalow have sufficient area in there possession. There is also material on record that was brought before the Appellant Court, which clearly shows that during the pendency of the appeal the present petitioners have also constructed the upper storey to the bungalow and, therefore, it is also clear that the present petitioners will have sufficient accommodation available in the newly constructed bungalow to accommodate family of the son as well as the mother. Under Section 13(1)(g) if the decree is to be passed, no doubt question of hardship would be required to be taken into consideration. Both the trial Court as well as the Appellate Court have concluded that the decree under Section 13(1)(g) could not be passed and, therefore, it was not necessary to consider the question of hardship. As far as the trial Court is concerned, it concluded that the present respondents were not entitled to decree under Section 13(1)(g) of the Bombay Rents Act as no reason was given as to why they have chosen to seek the possession of the premises of the present petitioners when there were other tenants also. This ground also is not tenable at all. Once it is established that the landlord required the premises bonafide and reasonably, it is his choice as to which premises and from which tenant he should seek the same. It is not necessary to refer to the decisions of this Court on this point. In view of the material on record, it could be also concluded by this Court that the hardship would be caused to the present respondents and not to be the present petitioners as the present petitioners definitely are in possession of sufficient accommodation in the newly constructed bungalow at Kothrud. There are at least 6 rooms in the said bungalow which, according to me, would be sufficient for the entire family including the mother. In result, there is no merit in the petition and the same will have to be dismissed with costs and is accordingly dismissed with costs. Rule discharged.