Tuesday, 13 June 2017

Whether landlord is entitled to get eviction decree if tenant fails to search alternative premises?

While considering comparative hardship, the Court may also take into account the financial position of the parties. In the present case, the finding of fact reached by the Trial Court was that both the parties were financially on the same footing. The Appellate Court has however, observed that the defendant No. 2 was financially not sound. But, financial constraint cannot be the only basis on which the issue can be answered. The Court has to take into account all the attending circumstances and if the tenant has failed to plead and prove the fact that it is impossible to get alternate accommodation in the same locality or for that matter, in the same city, then the issue will have to be answered against the tenant. Besides, the Respondent No. 1 tenant was obliged to establish that during the long drawn pendency of litigation just as this case since 1973, he made sincere attempt to secure alternative accommodation and was unable to get it.
In other words, the tenant cannot remain idle, awaiting for the result of the suit.
What is pertinent to note is that the defendant No. 2 in support of his case that after the service of the writ of summons, he tried to find out alternative premises but, could not secure one, has not adduced any positive evidence in that behalf. Therefore, the fact that it was not possible for respondent No. 1 - defendant No. 2 to secure alternative premises in the same locality or in the city has not been proved. If that be so, applying the principle enunciated by the Apex Court in Bega Begum's case, the issue will have to be answered against the tenant.
It is well settled that once the landlord proceeds to initiate a suit on the ground of bona fide requirement, the tenant is expected to start looking for alternative premises. In the present case, both the Courts have found as of fact that the landlord was badly in need of additional premises. Even the Respondent No. 1 has not challenged the evidence of hardship of the plaintiff.
If that be so, merely because, respondent No. 1 has financial difficulty, it cannot be a ground to deny the relief of possession to the landlord and to force him to stay in inhuman conditions.
MANU/MH/1115/2002
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 4944 of 1988
Decided On: 04.09.2002
 Suhasini Atmaram Parab and Ors.

Vs.
B.H. Khatu and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2003(1) Bom C R 733


1. This writ petition takes exception to the judgment and decree passed by the Small Causes Court, at Bombay in Appeal No. 170 of 1985 on 15-4-1988. Petitioners before this Court are the landlords in respect of premises situate at Ganga Nivas, Ganesh Lane, Lalbaug, Mumbai 12. The predecessor of the petitioners inducted one Ganpat Naik in one room (i.e. the suit premises) out of the three rooms which was in his possession. The said Ganpat Naik later on inducted the respondent No. 1 in the suit premises as a licence; and since he had a subsisting leave and licence agreement on 1-2-1973, became protected by virtue of the amended provisions of the Bombay Rent Act. The predecessor of the petitioners however, filed a suit for possession of the suit premises against the original tenant-Ganpat Naik inter alia on the ground of reasonable and bona fide requirement. In that suit, the respondent No. 1 was also impleaded as defendant No. 2 on the assertion that he was the person in occupation of the suit premises and unlawfully inducted by the tenant Ganpat Naik. It is not necessary to advert to the other details. Suffice it to point out that the trial Court decreed the suit in favour of the plaintiff and held that the ground of reasonable and bona fide requirement was established. The trial Court by its judgment and decree dated 23-1-1985 also answered the issue of comparative hardship in favour of the plaintiff. Consequently, the defendants were directed to hand over the vacant and peaceful possession of the suit premises to the plaintiff or on before 31-7-1985. Against that decision, the matter was carried in appeal only by defendant No. 2 respondent No. 1 herein. It is relevant to note that the original defendant No. 1 tenant did not contest the proceedings and the matter proceeded ex parte against him. The Appellate Bench of the Small Causes Court at Bombay by the impugned judgment has affirmed the finding of fact recorded by the trial Court on the issue of reasonable and bona fide requirement but, however has reversed the finding in so far as the issue of comparative hardship is concerned and therefore, reversed the decree passed in favour of the plaintiff. It is in this backdrop the present petition is filed under Article 227 of the Constitution of India.
2. It is not in dispute that the respondent No. 1 herein has not filed any cross petition challenging the finding in so far as the issue of reasonable and bona fide requirement is concerned. In that sense, finding on that issue has been allowed to become final. Even before this Court no argument was advanced on behalf of respondent No. 1 to assail the correctness of the finding on that issue. Accordingly, this judgment will have to be confined to the issue of comparative hardship.
3. Learned Counsel for the petitioners contended that the Appellate Court has applied incorrect test in answering the issue of comparative hardship in favour of the respondent No. 1. According to him, it has been pleaded and proved by the plaintiff that he did not own any other premises except the suit premises. On the other hand, the tenant has merely pleaded and adduced evidence to the effect that he was not in a position to secure alternative premise because of financial constraints. It is this defence taken on behalf of the respondent No. 1 that has weighed with the Appellate Court as the Appellate Court has observed that the defendant will not be able to secure alternative premises for want of financial support. According to the petitioners, the basis on which the Appellate Court has decided the issue is manifestly wrong, erroneous and against the settled position in that regard resulting in serious miscarriage of justice. It is contended that what was required to be pleaded and proved by the respondent No. 1 was that it was impossible to get any other premises in the same locality or for that matter in the same city then the issue could be answered in favour of the tenant, but that has not been done.
4. On the other hand, learned Counsel for the respondent No. 1 contends that the Appellate Court has recorded a finding of fact with regard to the financial position of respondent No. 1 and that ought not to be reversed in the exercise of writ jurisdiction. According to him, if that finding of fact is to prevail then the issue will have to be answered in favour of respondent No. 1 because, the respondent No. 1 will not be able to secure alternative premises.
5. Having considered the rival submissions, we will first advert to the settled legal position as to how the issue of comparative hardship should be and ought to be examined by the Court. That has been enunciated in the decision of the Apex Court in MANU/SC/0313/1978 : [1979]2SCR1 in the case of Bega Begum v. Abdulahad Khan. The Apex Court has observed that it is no doubt true that the tenant will have to be ousted from the demised premises if the decree for eviction is passed but, such an event would happen, whenever a decree for eviction is passed and was fully in contemplation of the legislature. But, that by itself would not be a valid ground for refusing the decree for eviction. The Apex Court has further observed that each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the plaintiff to prove that lesser disadvantage will be suffered by the defendants and that they were remediable. But, it is enough for the plaintiff to plead and prove that besides the suit premises, he has no other accommodation of his own to meet his requirement which is set up in support of the ground of reasonable and bona fide requirement. On the other hand, the tenant has not only to plead but, also prove the fact that it is impossible to get any other alternative accommodation in the city. If the tenant fails to do so, the issue will have to be answered against the tenant. (Also see Dr. Ranbir Singh, MANU/SC/0829/1995 : (1995)6SCC580 ). No doubt, while considering comparative hardship, the Court may also take into account the financial position of the parties. In the present case, the finding of fact reached by the trial Court was that both the parties were financially on the same footing. The Appellate Court has however, observed that the defendant No. 2 was financially not sound. But, financial constraint cannot be the only basis on which the issue can be answered. The Court has to take into account all the attending circumstances and if the tenant has failed to plead and prove the fact that it is impossible to get alternate accommodation in the same locality or for that matter, in the same city, then the issue will have to be answered against the tenant. Besides, the respondent No. 1 tenant was obliged to establish that during the long drawn pendency of litigation just as this case since 1973, he made sincere attempt to secure alternative accommodation and was unable to get it. See Nana Kamble's, case 1987 Bom.R.C. 390; Kumidini Bagade, 1983 Bom.R.C. 390 as well as Narayan Patil, 1989 Mh.R.C.J. 290. In other words, the tenant cannot remain idle, awaiting for the result of the suit. In the case of Narayan Patil (supra) this Court has observed that the landlord cannot be forced to live in an inhuman condition only because the tenant may suffer decree of eviction. In that case, the Court took into account that even after the decree was passed by the trial Court and, five years had lapsed thereafter, by no stretch of imagination can it be said that such time was not sufficient for the tenant to secure alternative accommodation further when hardship was to be caused to both then there can be no reason why the landlord should be deprived of the decree.
6. In this backdrop, I shall advert to the nature of pleadings and evidence adduced by the parties. This is only to reassure myself as to whether the Appellate Court has applied the correct tests while deciding the issue under consideration and not with a view to reappreciate the evidence for reversing the finding of fact recorded by the Appellate Court. In the plaint in para 7, it is asserted on behalf of the plaintiff that the plaintiff has large members in his family and that the present premises were inadequate for their residence. It is further asserted that greater inconvenience will be caused to the plaintiff and members of his family for want of premises. It is relevant to note that at the relevant time, the family of the plaintiff consisted of himself, his wife and two sons and one daughter who were grown up and were college going. On the other hand, respondent No. 1 in his written statement in para 6 has merely denied that greater hardship will be caused to the plaintiff and has further averred that on the contrary, greater hardship will be caused to him if the decree was to be passed in as much as there was dearth and scarcity of residential premises in Bombay and he was not in a position to afford to buy premises on ownership basis and/or take another premises on ownership basis and/or take another premises by paying huge pagdi which was prevailing at the relevant time.
7. On the basis of these pleadings, the matter went for trial. The plaintiff examined himself and has deposed that the present premises in his occupation consisted of only two room admeasuring 9 x 12 sq.ft. which were absolutely inadequate as his family consisted of himself, his wife, two sons and one daughter. His eldest son Bapu was 22 years while daughter Sunita was 18 years and younger son Sushil was 16 years. All of them were residing with him at the relevant time. Besides this, he has clearly deposed that he does not have any other premises except the suit premises. The plaintiff was cross-examined on behalf of respondent No. 1 but, there is no challenge to the statement made in the chief by the plaintiff regarding hardship. The inevitable consequence is that the case of plaintiff relating to his hardship has gone unchallenged. On the other hand, defendant No. 2 entered the witness box and has deposed that he was getting Rs. 500/- per month and does not own any residential premises in his name. What is relevant to note is that he has deposed that after service of the writ of summons, he tried to find out alternative premises but he could not secure one. He has deposed that the deposit to be paid for securing alternative premises was far beyond his control. Besides, he has deposed that if he is asked to vacate the suit premises, he will not be able to secure another residential premises. During cross-examination of this defendant, he was confronted with his case that he tried to secure alternate premises. A further suggestion was put to him that he was in a position to secure alternative accommodation which he has of course denied. What is pertinent to note is that the defendant No. 2 in support of his case that after the service of the writ of summons, he tried to find out alternate premises but, could not secure one, has not adduced any positive evidence in that behalf. Therefore, the fact that it was not possible for respondent No. 1-defendant No. 2 to secure alternative premises in the same locality or in the city has not been proved. If that be so, applying the principle enunciated by the Apex Court in Bega Begum's case, the issue will have to be answered against the tenant.
8. To get over the above position, it is contended on behalf of the respondent No. 1 that because of his financial constraints, even if accommodation could have been secured, it was not possible for him to fulfil the demands of high deposit or purchasing premises on ownership basis. In the present case undisputedly, the respondent No. 1 was inducted in the said premises on leave and licence basis only for 11 months by Ganpat Naik without the permission of the petitioner's predecessor. This fact has been brought on record during the cross-examination of the defendant No. 2 so as to contend that the respondent No. 1 was fully aware that he has got entry in the suit premises only for a temporary period and therefore it will not be open for him to take the excuse of financial constraint to disrobe the landlord of the relief of possession. As observed earlier, no evidence has been brought on record to the effect that for all these years, respondent No. 1 has made any efforts to secure alternative accommodation and that inspite of his best efforts, he could not secure any accommodation in the locality or in the city. Merely, taking plea of financial constraint would be of no avail to respondent No. 1. It is well-settled that once the landlord proceeds to initiate a suit on the ground of bona fide requirement, the tenant is expected to start looking for alternative premises. In the present case, both the Court have found as of fact that the landlord was badly in need of additional premises. Even the respondent No. 1 has not challenged the evidence of hardship of the plaintiff. Moreover, it is not in dispute that at the relevant time, both his sons were grown up and were of marriageable age. It is stated across the bar which fact is also conceded by Counsel for the respondents on instructions from the respondent No. 1 who is present in Court that both the sons have been married and are staying with their respective spouses and other family members in the same premises consisting of two rooms admeasuring 9 x 12 feet only. If that be so, merely because, respondent No. 1 has financial difficulty, it cannot be a ground to deny the relief of possession to the landlord and to force him to stay in inhuman conditions.
9. In the circumstances, I have no hesitation in taking the view that the Appellate Court has not applied the correct tests in deciding the issue of comparative hardship.
10. Accordingly, this petition succeeds. The impugned judgment and decree passed by the Appellate Court is set aside and instead the one passed by the trial Court decreeding the suit and directing to hand over the suit premises is restored. Rule made absolute with costs all throughout.
11. Learned Counsel for the respondent No. 1 at this stage prays that the operative part of this judgment be stayed. To my mind, there is no reason to stay the operation of this judgment. In fact, an offer was made to the respondent No. 1 to consider to avail of longer time to vacate the premises and even Counsel for the petitioner showed his willingness in that behalf. However, that offer has not been accepted by respondent No. 1 who is personally present in Court. Hence, request for stay is rejected.
Petition succeed.
Print Page

No comments:

Post a Comment