The first argument of the Petitioners is that the Plaintiff purchased the suit property on 4th June, 1982 with full knowledge that the tenant was occupying the suit premises and soon thereafter proceeded to file the suit for possession on the ground of bonafide requirement in November, 1982. The argument is that the background in which the present suit has been filed clearly demonstrates that the requirement of the Plaintiff/landlord was neither bonafide nor reasonable. It was argued that the landlord ought to have waited for atleast three years from the date of purchase before instituting suit for possession of the suit premises on the ground of bonafide and reasonable requirement. This argument is devoid of merit. There is no express provision in the Rent Act which precludes the landlord from instituting suit for possession on the ground of bonafide and reasonable requirement soon after he purchases the suit property. That by itself cannot be the basis to non-suit the landlord.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 468 of 1992
Decided On: 13.02.2009
Gurulingappa Sharnappa Birajdar Vs. Sidramappa Ganpatrao Mulge and Ors.
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation: 2009(3) MHLJ 661
1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the VI Addl. District Judge, Sholapur dated December 5, 1991 dismissing the appeal against the decree of possession ordered by the II Joint Civil Judge, J.D., Sholapur dated October 9, 1987 in Regular Civil Suit No. 1060 of 1982 against the tenant.
2. Briefly stated, the suit premises is a shop premises in Municipal House No. 882, City Survey No. 3015, West Mangalwar Peth, Solapur. The Respondent/landlord instituted suit for possession of the suit premises on the assertion that he was assisting his father in the business conducted in the shop premises, which were taken on rental basis by his father. However, the landlord of those premises has already instituted suit for possession of the suit premises. Apprehending that the possession of the tenanted premises will be lost by his father, the Plaintiff/landlord wanted the suit premises occupied by the defendant/tenant for his personal use for business urgently. Besides asserting this position in the plaint, the Plaintiff entered the witness box and restated the requirements being bonafide and reasonable one. The Trial Court on appreciating the documentary and oral evidence accepted the plea of the Plaintiff that his requirement of suit premises was bonafide and reasonable. The Trial Court then examined the issue of comparative hardship and answered the same against the tenant. Consistent with the said finding, the Trial Court decreed the suit in favour of the Plaintiff and ordered the Defendant/tenant to hand over possession of the suit premises within three months from the date of the Judgment. The Appellate Court on reappreciation of the evidence on record has confirmed the finding of fact reached by the Trial Court on relevant issues and therefore, dismissed the Appeal. Against this concurrent finding of fact reached by the two Courts below present Writ Petition has been filed.
3. The first argument of the Petitioners is that the Plaintiff purchased the suit property on 4th June, 1982 with full knowledge that the tenant was occupying the suit premises and soon thereafter proceeded to file the suit for possession on the ground of bonafide requirement in November, 1982. The argument is that the background in which the present suit has been filed clearly demonstrates that the requirement of the Plaintiff/landlord was neither bonafide nor reasonable. It was argued that the landlord ought to have waited for atleast three years from the date of purchase before instituting suit for possession of the suit premises on the ground of bonafide and reasonable requirement. This argument is devoid of merit. There is no express provision in the Rent Act which precludes the landlord from instituting suit for possession on the ground of bonafide and reasonable requirement soon after he purchases the suit property. That by itself cannot be the basis to non-suit the landlord. This legal position is no more res integra. We can usefully refer to the decision of our High Court in the case of Indubai Govind Lad and Ors. v. Smt. Anjelinabai Jitendra Kumar Bafna reported in 2004 Bom.C.R. 596 (para 5 thereof), which has examined the effect of amendment of Bombay Act 61 of 1953 to answer the point in issue. The Court is obliged to consider the question as to whether the requirement is bonafide and reasonable, uninfluenced by that fact. Indeed, the Petitioners may be justified in contending that the landlord had full knowledge of the fact that the suit premises were already occupied by the tenant when the property was purchased by him. It may appear as if the landlord purchased the property to speculate. However, in the present case, two Courts below have analysed the evidence of the Plaintiff and have accepted the plea of the Plaintiff that it was not possible for him to get any other property in the locality except the house property (in which the suit premises were situated), in vacant condition or free for occupation. It is in this background, the Court below tested the argument of bonafide and reasonable requirement of the Plaintiffs and have found that merely because the landlord purchased the suit property inspite of full knowledge that it was already occupied by the tenant does not militate against the landlord in the fact situation of the present case. That is a finding of fact reached by the two Courts below, which needs no interference in exercise of writ jurisdiction being a possible view and consistent with the evidence on record.
4. Counsel for the Petitioners however, rely on the observations in paragraph-12 of the Apex Court in the case of Variety Emporium v. V.R.M. Mohd. Ibrahim Naina MANU/SC/0332/1984 : [1985]2SCR102 . Emphasis is placed on the observations of the Apex Court where it is noted that- they do not suggest that a decree of eviction can never be passed against a tenant but, whether the provisions of a law specifically require it or not, the court has to have regard for all the aspects of the matter before it and the foreseeable consequences of the order which it proposes to pass. It went on to observe that it is impossible to subscribe to the view of the appellate court that the very fact that the respondent had filed the eviction petitions immediately after he purchased the property, proves that the purpose of purchasing the property was to set up a business there, "whether wholesale or retail". The observation of the Apex Court is relevant to the fact situation of the case before it. In that case, the landlord after purchasing the property proceeded to file seven separate petitions against seven tenants. That is not the case on hand. In the present case, the Plaintiff has candidly come forward to assert that he purchased the suit property with a fond hope that he would be able to use the suit premises for his personal use and occupation for business and urgently required the same in view of the impending threat of eviction of his father from the tenanted premises where family business was being conducted. The suit premises is a small shop premises. Besides, as aforesaid there is nothing in the Bombay Rent Act, which would preclude the landlord who has purchased the suit property to institute suit for possession soon after he becomes the owner thereof.
5. Counsel for the Respondents has relied on the observations of our High Court in paragraph-11 in the case of Madhusudansingh Laxmansingh Chouhan v. Bhaskar Govind Deshpande MANU/MH/0679/1984 : 1987 Mh.L.J. 487. Suffice it to observe that in the fact situation of the present case, merely because the landlord has recently purchased the suit property with full knowledge that the suit premises were already occupied and there was a sitting tenant, that, however, cannot, by itself preclude the landlord from pursuing remedy of possession of suit property on the ground of bonafide and reasonable requirement. The claim of the landlord at best will have to be tested with some circumspection. The question is whether the landlord has discharged that burden. The two Courts below have concurrently on analysing the evidence on record independently reached at the same conclusion that the landlord did not have any other premises to start his business and that there was impending threat of dispossession of his father from the premises where family business was being conducted. In the companion Writ Petition being Writ Petition No. 4492 of 1992 decided today filed by the Respondent/landlord in relation to the said premises has been dismissed. That reinforces the position that the Plaintiff's father was likely to be dispossessed in view of the said decree of possession. As a matter of fact, the said premises which were occupied by the landlord's father have already been completely destroyed and razed to the ground in the fire, which took place in October, 2002. Indeed, that has happened during the pendency of the present Writ Petition. The question is: whether at the time of institution of the suit by the landlord, there was any requirement and whether such requirement continues to exist even now ? On both counts the answer is in the affirmative. The issue will have to be answered in favour of the landlord keeping in mind the concurrent finding of fact recorded by the two Courts below.
6. It was argued that the Court below having considered that there was no recital in the sale deed that the landlord was purchasing the suit property with intention that he would later on claim possession from the sitting tenant in respect of suit premises. This is an argument of desperation. The fact that such recital is not found in the sale deed or conveyance deed executed in favour of the landlord cannot be the basis to hold that the requirement stated by the landlord is not bonafide or not reasonable. The question as to whether the requirement is bonafide and reasonable has to be answered on the basis of the evidence produced by the parties at the trial. In the present case, both the Courts below have accepted the claim of the landlord that he has no other premises to fall back upon and the premises was most suitable for the business of the landlord, as the same were situated in the locality, which is known for sarafi or Goldsmith business. The finding of fact so reached by the two Courts below cannot be said to be manifestly wrong or perverse.
7. Insofar as issue of comparative hardship is concerned, even the conclusion reached by the two Courts below on the said issue will have to be upheld. The Appellate Court has rightly noted that the defendant/tenant has not made any efforts to secure alternative accommodation nor it has come on record that it is impossible to get suitable accommodation in the nearby locality. Once it is found that the Plaintiff/landlord has no other premises which can be used for his personal use and occupation and in absence of any evidence to suggest that it is impossible to secure alternative premises in the locality, the issue of hardship should necessarily be answered against the tenant. The fact that the tenant has acquired goodwill on account of business conducted in the suit premises can be no basis to deny the relief of possession to the landlord. That consequence is inevitable. The Courts below have also found that the financial position of the tenant was sound.
8. Much emphasis was placed by the Counsel appearing for the Petitioners about the nonavailability of the premises to the Petitioners herein. This argument has been rightly countered by the Counsel for the Respondents by pointing out that it is the Respondent No. 2 who had appeared before the lower Court as Defendant's witness. He deposed not only for himself but on behalf of the other tenants including present Petitioners. Now for the first time, the argument of nonavailability of suitable accommodation is canvassed by the Petitioners by taking a plea that the premises bearing House No. 164 is exclusively that of the Respondent No. 2 and the Petitioners have no concern. The argument will have to be stated to be rejected. For, the question of comparative hardship cannot be examined in the context of the possession of the heirs of the original defendant but that of the original defendant himself. The fact that after demise of the original defendant all properties owned and possessed by him have been partitioned and taken over by the concerned legal heirs leaving no independent accommodation to the Petitioners herein cannot be the basis to answer the point in issue. The documents on record as have been referred to by the Courts below would clearly indicate that the tenants had other premises of his own such as CTS No. 3233, now corresponding to Municipal House No. 174, admeasuring 64.4 sq.mtrs. The same was purchased by the Defendant in the name of his son Appasaheb Petitioner No. 1 herein. This admission can be culled out from the evidence of P.W.1. Besides this property, Exh. 48 would reveal that CTS No. 3223/2, which is corresponding to Municipal House No. 164, has been purchased in the name of Suryakant admeasuring about 62.2 sq.mtrs and Exh. 41 refers to CTS No. 2605 purchased in the name of defendant. Having regard to the evidence on record, issue of comparative hardship obviously ought to be answered against the tenant.
9. It was argued that the defendant was one of the partner in a firm and therefore, the suit could not have proceeded against the Defendant. This plea is being taken for the first time at the time of argument. No such plea is found in the Written Statement, or for that matter any evidence brought on record by the defendant or the argument canvassed before the Courts below. On the other hand, it is rightly pointed out by the Counsel for the Respondent/landlord that the rent receipt Exh.54 and 55, which are on record would indicate that the same is issued in the name of Gurulingam himself and not as partner of any firm.
10. Accordingly this petition is devoid of merits and should fail. Hence dismissed with costs.
11. At this stage, Counsel for the Petitioners pray that the execution of the decree be kept in abeyance for a reasonable period to enable the Petitioners to carry the matter in appeal. There is no difficulty in accepting this request, provided the Petitioners and all other adult family members of the Petitioners who are associated in the business conducted from the suit premises shall file usual undertaking in this Court within four weeks from today. Besides providing for usual clauses in the proposed affidavit, the affidavit shall also clearly state that the vacant and peaceful possession of the suit premises will be handed over by the Petitioners and persons claiming through them to the landlords on the expiry of 12 weeks from today subject however to such other order to be passed by the Apex Court in the proposed appeal, without requiring the Petitioners to take recourse to execution of the decree. The Petitioners assure to abide by this assurance. That assurance is accepted.
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