The fact that the petitioner and his wife, who are somewhat in the evening of their lives, desire that their daughter should come and stay with them can be regarded as a fact of bonafide requirement by the petitioner of the suit premises - the learned Joint Judge has referred to a judgment of this Court in Nanalal Goverdhandas & Co. v. Samratbai, AIR 1981 Bombay 1, wherein certain illustrative cases of the requirement of the landlord of the premises tenanted by the tenants have been given. I do not see why the petitioner's case should not fall under proposition No. 6 mentioned in that case, which is as follows:-
"Even if emotionally the landlord feels that a relation of his, such as his daughter or son-in-law, would stay with him, it can be regarded as the requirement by the landlord of the premises for occupation by himself."
8. The learned Joint Judge, though had a look at this proposition, thought that it was not enough because, according to him, the emotional inter-dependence between the petitioner and his daughter has not been sufficiently established on evidence. The learned Joint Judge also thought that there was no trace of any such emotional dependence disclosed in the deposition of the petitioner. The depositions may not have been, as indeed they are not always given, in terms of the requirements of the legal propositions which often find place in the judgments. The Court should not lightly brush aside a requirement pleaded by the father for accommodation of his daughter. Reading the judgment of the Court to first instance and the material which has been noticed by the learned Joint Judge I would, if I were called upon do so, have reversed the finding of the learned Joint Judge and held that the petitioner has established his bonafide requirement of the suit premises. The question, however, is whether the petitioner has established reasonable requirement of the suit premises and whether greater hardship would be caused to the respondent if a decree for possession were refused.
IN THE HIGH COURT OF BOMBAY
W.P. No. 2362 of 1981
Decided On: 03.10.1984
Dattaraya Pilaji Atre Vs. S.G. Hiremath
Hon'ble Judges/Coram:
Jahagirdar, J.
1. The petitioner had filed a suit, being Civil Suit No. 1626 of 1972, in the Court of Small Causes at Pune, against the respondent for possession of a tenement having an area of 1233 square feet tenanted by the respondent in this petition. Along with the said tenement, a garage also formed part of the tenancy of the respondent. The suit was filed by the petitioner for possession of the aforesaid tenement and the garage, hereinafter referred to as "the suit premises", on the ground that the petitioner required the suit premises reasonably and bonafide for his own use and occupation. It was the case of the petitioner that he was constrained to file the suit because his tenanted premises had been partly, at any rate, acquired by the Municipality of Pune, for the road-widening scheme as a result of which the area which was available to him for residence had been drastically reduced. He also pleaded that his unmarried daughter who was staying at Bombay intended to come and settle down at Pune because, according to the petitioner, the Bombay climate did not suit her, who is an artist by profession, and the Pune climate would be beneficial to her. The respondent resisted the suit by denying the reasonable and bonafide nature of the requirement pleaded by the petitioner and also by contending that if a decree for possession were passed greater hardship would be caused to him than the hardship that would be caused to the petitioner if a decree for possession were refused.
2. The learned trial Judge raised several issues, not all of them relevant to the questions which he had to decide in a suit filed essentially for possession under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act". Nevertheless, he did raise issues which were relevant and answered the issue on the question of the reasonable and bonafide requirement of the petitioner in the affirmative. He also considered the issue arising under Section 13(2) of the Bombay Rent Act and answered, again, that issue in favour of the petitioner predominantly. He noticed that the family of the respondent was considerably large, but the hardship that would be caused to the respondent by the passing of a decree could, according to the learned trial Judge, be mitigated if a part of the suit premises were allowed to be retained by the respondent. Accordingly, by his judgment and order dated 7th of April, 1979 the learned trial Judge decreed the suit for possession of the area tenanted by the respondent, except one room.
3. This decree was challenged by the respondent in an appeal, being Civil Appeal No. 268 of 1979, which was heard and allowed by the learned Joint Judge of Pune by his judgment and order dated 31st of March, 1981. The learned Joint Judge disagreed with the learned trial Judge on both the questions namely the reasonable and bonafide requirement of the petitioner and the question of hardship that would be caused to the parties. The learned Joint Judge, after reviewing the entire evidence which, as a final Court of facts he was required to do, came to the conclusion that the petitioner has failed to establish his bonafide and reasonable requirement of the suit premises because, according to him, the requirement of the unmarried daughter who wanted to settle down in Pune has not been conclusively proved. On the question of comparative hardship, the learned Joint Judge noticed that the family of the respondent consisted of the respondent himself, his wife and seven children. The hardship that would be caused to the respondent if a decree for eviction were passed would be infinitely more than the hardship that would be caused to the petitioner if a decree for possession were refused. Consistent with this view of the evidence which he took, the learned Joint Judge allowed the appeal and set aside the decree for possession that had been passed by the Court of first instance. The petitioner has now approached this Court under Article 227 of the Constitution of India challenging the finding recorded by the learned Joint Judge.
4. Mr. Valsangkar, the learned Advocate appearing in support of the petition, has taken me through the judgments of both the Courts below and has also invited my attention to certain relevant parts of the evidence on record. He has quarrelled with the finding given by the learned Joint Judge on the question of the reasonable and bonafide requirement of the petitioner. Left to myself and subject to what Mr. Dalvi, the learned Advocate appearing for the respondent, might say on this aspect, I would be inclined to uphold the contention of Mr. Valsangkar on the question of the requirement of the suit premises by the petitioner. In paragraph 14 of his judgment the learned Joint Judge has mentioned that the learned Advocate appearing before him for the petitioner candidly conceded that having regard to the state of affairs discussed in the earlier parts of the judgment the learned Advocate would be in a position to prove the reasonable and bonafide requirement under Section 13(1)(g) of the Bombay Rent Act unless he also proves the requirement of the suit premises on account of the unmarried daughter staying at Bombay. Thereafter the learned Joint Judge proceeded to consider, in a somewhat elaborate manner, the requirement of the artist daughter who is in Bombay.
5. Part of the reasoning as to why the learned Joint Judge rejected the requirement of the petitioner for his daughter was that no attempt had been made for a considerable time by the petitioner or his daughter to show that the daughter intended to settle down in Pune. The evidence which was led on behalf of the petitioner that the suit premises were constructed partly at least to suit the requirement of the musical programmes which the daughter was intending to hold did not sufficiently impress the learned Joint Judge. In paragraph 16 of his judgment the learned Joint Judge has mentioned as follows:-
"It was, therefore, that to the theory of the daughter starting a music tuition class a theory of her need for residential accommodation was also somewhat hastily planned, invented and added to plug this gaping loophole of a legal prohibition in the plaintiff's claim."
6. I am not quite sure the learned Joint Judge is right in holding that the petitioner had to invent a case for residential accommodation of the unmarried daughter in order to establish that the suit premises were required for holding music classes. If one carefully reads the analyses under Section 6 of the Bombay Rent Act it is not difficult to notice that if the petitioner's daughter holds music classes in the residential house it would not be legally prohibited by Section 25 of the Bombay Rent Act. By no stretch of imagination can it be said that holding of music classes in residential accommodation would tantamount to changing the user of residential premises to business or other purposes mentioned in Section 6 of the Bombay Rent Act.
7. The fact that the petitioner and his wife, who are somewhat in the evening of their lives, desire that their daughter should come and stay with them can be regarded as a fact of bonafide requirement by the petitioner of the suit premises - the learned Joint Judge has referred to a judgment of this Court in Nanalal Goverdhandas & Co. v. Samratbai, AIR 1981 Bombay 1, wherein certain illustrative cases of the requirement of the landlord of the premises tenanted by the tenants have been given. I do not see why the petitioner's case should not fall under proposition No. 6 mentioned in that case, which is as follows:-
"Even if emotionally the landlord feels that a relation of his, such as his daughter or son-in-law, would stay with him, it can be regarded as the requirement by the landlord of the premises for occupation by himself."
8. The learned Joint Judge, though had a look at this proposition, thought that it was not enough because, according to him, the emotional inter-dependence between the petitioner and his daughter has not been sufficiently established on evidence. The learned Joint Judge also thought that there was no trace of any such emotional dependence disclosed in the deposition of the petitioner. The depositions may not have been, as indeed they are not always given, in terms of the requirements of the legal propositions which often find place in the judgments. The Court should not lightly brush aside a requirement pleaded by the father for accommodation of his daughter. Reading the judgment of the Court to first instance and the material which has been noticed by the learned Joint Judge I would, if I were called upon do so, have reversed the finding of the learned Joint Judge and held that the petitioner has established his bonafide requirement of the suit premises. The question, however, is whether the petitioner has established reasonable requirement of the suit premises and whether greater hardship would be caused to the respondent if a decree for possession were refused.
9. Considering the first aspect of the reasonable extent of the requirement of the respondent, one must notice that the respondent is in possession of premises which are, as already mentioned in the earlier part of this judgment, measuring 1233 square feet. It has come on record that during the pendency of the suit the petitioner has acquired vacant possession of another tenement occupied by another tenant called Bhat. That tenement measures 424 square feet in area. The petitioner's family, as disclosed by the evidence consists of himself, his wife and daughter who would come and stay with them. There is, in addition, a grand-daughter who is also staying with the petitioner's family. The learned Joint Judge has not given much importance to the fact that a grand-daughter is staying with the petitioner's family because he has regarded that stay as purely temporary. One cannot find fault with the same. So there is in possession of the petitioner already a tenement measuring 424 square feet in area. Can it be said, considering the fact that there are only three members including the daughter who is returning to settle down in Pune, that a tenement of 424 square feet is not sufficient for the requirement of the petitioner ? The answer must necessarily be in the negative. It has not been shown by evidence on record that it could be otherwise. It is, no doubt, true that it has been pleaded by the petitioner that one hall at least is required for his daughter for holding her music class and, therefore, the area which is available in the form of a tenement which was original in the occupation of a tenant called Bhat cannot be sufficient.
10. One must now turn to the question on comparative hardship. Here again the size of the petitioner's family cannot be overlooked. It consists of basically three units, the petitioner, his wife and daughter. The family of the respondent, as mentioned by the learned Joint Judge in paragraph 21 of his judgment, consists of himself, his wife and seven children. Mr. Valsangkar has invited my attention to the deposition given by the respondent in the trial Court and has tried to show that the statement regarding the size of the respondent's family made in paragraph 21 of the judgment of the learned Joint Judge is incorrect. That deposition shows, according to Mr. Valsangkar, that the family of the respondent consists of himself, his wife, a son who was at the relevant time studying for the M.B.B.S. course, one daughter-in-law (wife of a doctor working in Sasson Hospital) and her child, and the wife and son of another doctor who was working at the relevant time in the Sian Hospital in Bombay. I must now identify these persons in the light of the averments made in Civil Application No. 1248 of 1984 and the affidavit in reply thereto by the respondent.
11. The son who was studying for the M.B.B.S. course is Jagdish. The doctor who was working in the Sasson Hospital is Dr. Murtyanjay. The doctor who was working in the Sion Hospital is Dr. Mrigesh. By Civil Application No. 1248 of 1984 the petitioner has tried to bring additional evidence on record for the purpose of showing that at least at this moment most of the persons who were residing with the respondent when the evidence was being recorded have gone out of the suit premises, if not out of the family, and, therefore, the question of hardship acquires an altogether different complexion. In reply to the said application the respondent has filed an affidavit. Considering the material to be found in the civil application as well as in the affidavit in reply I notice that Jagdish who was at the relevant time studying for the M.B.B.S. course has now become a doctor and is married and in now staying with the respondent in the suit premises. Dr. Murtyanjay along with his wife and child have undoubtedly left the suit premises and are staying in an apartment of their own, but Dr. Mrigesh, who was in Bombay working in the Sion Hospital, has returned to Pune is staying along with his wife, Dr. Leena, and son in the suit premises. The net result, if everything that is mentioned in the civil application is accepted, is that there is a reduction of hardly one in the total number of members residing in the suit premises. I am not satisfied that in a petition under Article 227 of the Constitution of India such uncertain, inchoate evidence should be taken on record for the purpose of reversing or re-opening a finding given on the question of comparative hardship under Section 13(2) of the Bombay Rent Act. No case, therefore, is made out for revising the decree passed by the learned Joint Judge.
12. In the result, this petition must fail. Rule is accordingly discharged with order as to costs. The additional evidence sought to be brought on record by means of two applications is not necessary for the disposal of this petition. They are, therefore, rejected.
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"Even if emotionally the landlord feels that a relation of his, such as his daughter or son-in-law, would stay with him, it can be regarded as the requirement by the landlord of the premises for occupation by himself."
8. The learned Joint Judge, though had a look at this proposition, thought that it was not enough because, according to him, the emotional inter-dependence between the petitioner and his daughter has not been sufficiently established on evidence. The learned Joint Judge also thought that there was no trace of any such emotional dependence disclosed in the deposition of the petitioner. The depositions may not have been, as indeed they are not always given, in terms of the requirements of the legal propositions which often find place in the judgments. The Court should not lightly brush aside a requirement pleaded by the father for accommodation of his daughter. Reading the judgment of the Court to first instance and the material which has been noticed by the learned Joint Judge I would, if I were called upon do so, have reversed the finding of the learned Joint Judge and held that the petitioner has established his bonafide requirement of the suit premises. The question, however, is whether the petitioner has established reasonable requirement of the suit premises and whether greater hardship would be caused to the respondent if a decree for possession were refused.
IN THE HIGH COURT OF BOMBAY
W.P. No. 2362 of 1981
Decided On: 03.10.1984
Dattaraya Pilaji Atre Vs. S.G. Hiremath
Hon'ble Judges/Coram:
Jahagirdar, J.
1. The petitioner had filed a suit, being Civil Suit No. 1626 of 1972, in the Court of Small Causes at Pune, against the respondent for possession of a tenement having an area of 1233 square feet tenanted by the respondent in this petition. Along with the said tenement, a garage also formed part of the tenancy of the respondent. The suit was filed by the petitioner for possession of the aforesaid tenement and the garage, hereinafter referred to as "the suit premises", on the ground that the petitioner required the suit premises reasonably and bonafide for his own use and occupation. It was the case of the petitioner that he was constrained to file the suit because his tenanted premises had been partly, at any rate, acquired by the Municipality of Pune, for the road-widening scheme as a result of which the area which was available to him for residence had been drastically reduced. He also pleaded that his unmarried daughter who was staying at Bombay intended to come and settle down at Pune because, according to the petitioner, the Bombay climate did not suit her, who is an artist by profession, and the Pune climate would be beneficial to her. The respondent resisted the suit by denying the reasonable and bonafide nature of the requirement pleaded by the petitioner and also by contending that if a decree for possession were passed greater hardship would be caused to him than the hardship that would be caused to the petitioner if a decree for possession were refused.
2. The learned trial Judge raised several issues, not all of them relevant to the questions which he had to decide in a suit filed essentially for possession under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act". Nevertheless, he did raise issues which were relevant and answered the issue on the question of the reasonable and bonafide requirement of the petitioner in the affirmative. He also considered the issue arising under Section 13(2) of the Bombay Rent Act and answered, again, that issue in favour of the petitioner predominantly. He noticed that the family of the respondent was considerably large, but the hardship that would be caused to the respondent by the passing of a decree could, according to the learned trial Judge, be mitigated if a part of the suit premises were allowed to be retained by the respondent. Accordingly, by his judgment and order dated 7th of April, 1979 the learned trial Judge decreed the suit for possession of the area tenanted by the respondent, except one room.
3. This decree was challenged by the respondent in an appeal, being Civil Appeal No. 268 of 1979, which was heard and allowed by the learned Joint Judge of Pune by his judgment and order dated 31st of March, 1981. The learned Joint Judge disagreed with the learned trial Judge on both the questions namely the reasonable and bonafide requirement of the petitioner and the question of hardship that would be caused to the parties. The learned Joint Judge, after reviewing the entire evidence which, as a final Court of facts he was required to do, came to the conclusion that the petitioner has failed to establish his bonafide and reasonable requirement of the suit premises because, according to him, the requirement of the unmarried daughter who wanted to settle down in Pune has not been conclusively proved. On the question of comparative hardship, the learned Joint Judge noticed that the family of the respondent consisted of the respondent himself, his wife and seven children. The hardship that would be caused to the respondent if a decree for eviction were passed would be infinitely more than the hardship that would be caused to the petitioner if a decree for possession were refused. Consistent with this view of the evidence which he took, the learned Joint Judge allowed the appeal and set aside the decree for possession that had been passed by the Court of first instance. The petitioner has now approached this Court under Article 227 of the Constitution of India challenging the finding recorded by the learned Joint Judge.
4. Mr. Valsangkar, the learned Advocate appearing in support of the petition, has taken me through the judgments of both the Courts below and has also invited my attention to certain relevant parts of the evidence on record. He has quarrelled with the finding given by the learned Joint Judge on the question of the reasonable and bonafide requirement of the petitioner. Left to myself and subject to what Mr. Dalvi, the learned Advocate appearing for the respondent, might say on this aspect, I would be inclined to uphold the contention of Mr. Valsangkar on the question of the requirement of the suit premises by the petitioner. In paragraph 14 of his judgment the learned Joint Judge has mentioned that the learned Advocate appearing before him for the petitioner candidly conceded that having regard to the state of affairs discussed in the earlier parts of the judgment the learned Advocate would be in a position to prove the reasonable and bonafide requirement under Section 13(1)(g) of the Bombay Rent Act unless he also proves the requirement of the suit premises on account of the unmarried daughter staying at Bombay. Thereafter the learned Joint Judge proceeded to consider, in a somewhat elaborate manner, the requirement of the artist daughter who is in Bombay.
5. Part of the reasoning as to why the learned Joint Judge rejected the requirement of the petitioner for his daughter was that no attempt had been made for a considerable time by the petitioner or his daughter to show that the daughter intended to settle down in Pune. The evidence which was led on behalf of the petitioner that the suit premises were constructed partly at least to suit the requirement of the musical programmes which the daughter was intending to hold did not sufficiently impress the learned Joint Judge. In paragraph 16 of his judgment the learned Joint Judge has mentioned as follows:-
"It was, therefore, that to the theory of the daughter starting a music tuition class a theory of her need for residential accommodation was also somewhat hastily planned, invented and added to plug this gaping loophole of a legal prohibition in the plaintiff's claim."
6. I am not quite sure the learned Joint Judge is right in holding that the petitioner had to invent a case for residential accommodation of the unmarried daughter in order to establish that the suit premises were required for holding music classes. If one carefully reads the analyses under Section 6 of the Bombay Rent Act it is not difficult to notice that if the petitioner's daughter holds music classes in the residential house it would not be legally prohibited by Section 25 of the Bombay Rent Act. By no stretch of imagination can it be said that holding of music classes in residential accommodation would tantamount to changing the user of residential premises to business or other purposes mentioned in Section 6 of the Bombay Rent Act.
7. The fact that the petitioner and his wife, who are somewhat in the evening of their lives, desire that their daughter should come and stay with them can be regarded as a fact of bonafide requirement by the petitioner of the suit premises - the learned Joint Judge has referred to a judgment of this Court in Nanalal Goverdhandas & Co. v. Samratbai, AIR 1981 Bombay 1, wherein certain illustrative cases of the requirement of the landlord of the premises tenanted by the tenants have been given. I do not see why the petitioner's case should not fall under proposition No. 6 mentioned in that case, which is as follows:-
"Even if emotionally the landlord feels that a relation of his, such as his daughter or son-in-law, would stay with him, it can be regarded as the requirement by the landlord of the premises for occupation by himself."
8. The learned Joint Judge, though had a look at this proposition, thought that it was not enough because, according to him, the emotional inter-dependence between the petitioner and his daughter has not been sufficiently established on evidence. The learned Joint Judge also thought that there was no trace of any such emotional dependence disclosed in the deposition of the petitioner. The depositions may not have been, as indeed they are not always given, in terms of the requirements of the legal propositions which often find place in the judgments. The Court should not lightly brush aside a requirement pleaded by the father for accommodation of his daughter. Reading the judgment of the Court to first instance and the material which has been noticed by the learned Joint Judge I would, if I were called upon do so, have reversed the finding of the learned Joint Judge and held that the petitioner has established his bonafide requirement of the suit premises. The question, however, is whether the petitioner has established reasonable requirement of the suit premises and whether greater hardship would be caused to the respondent if a decree for possession were refused.
9. Considering the first aspect of the reasonable extent of the requirement of the respondent, one must notice that the respondent is in possession of premises which are, as already mentioned in the earlier part of this judgment, measuring 1233 square feet. It has come on record that during the pendency of the suit the petitioner has acquired vacant possession of another tenement occupied by another tenant called Bhat. That tenement measures 424 square feet in area. The petitioner's family, as disclosed by the evidence consists of himself, his wife and daughter who would come and stay with them. There is, in addition, a grand-daughter who is also staying with the petitioner's family. The learned Joint Judge has not given much importance to the fact that a grand-daughter is staying with the petitioner's family because he has regarded that stay as purely temporary. One cannot find fault with the same. So there is in possession of the petitioner already a tenement measuring 424 square feet in area. Can it be said, considering the fact that there are only three members including the daughter who is returning to settle down in Pune, that a tenement of 424 square feet is not sufficient for the requirement of the petitioner ? The answer must necessarily be in the negative. It has not been shown by evidence on record that it could be otherwise. It is, no doubt, true that it has been pleaded by the petitioner that one hall at least is required for his daughter for holding her music class and, therefore, the area which is available in the form of a tenement which was original in the occupation of a tenant called Bhat cannot be sufficient.
10. One must now turn to the question on comparative hardship. Here again the size of the petitioner's family cannot be overlooked. It consists of basically three units, the petitioner, his wife and daughter. The family of the respondent, as mentioned by the learned Joint Judge in paragraph 21 of his judgment, consists of himself, his wife and seven children. Mr. Valsangkar has invited my attention to the deposition given by the respondent in the trial Court and has tried to show that the statement regarding the size of the respondent's family made in paragraph 21 of the judgment of the learned Joint Judge is incorrect. That deposition shows, according to Mr. Valsangkar, that the family of the respondent consists of himself, his wife, a son who was at the relevant time studying for the M.B.B.S. course, one daughter-in-law (wife of a doctor working in Sasson Hospital) and her child, and the wife and son of another doctor who was working at the relevant time in the Sian Hospital in Bombay. I must now identify these persons in the light of the averments made in Civil Application No. 1248 of 1984 and the affidavit in reply thereto by the respondent.
11. The son who was studying for the M.B.B.S. course is Jagdish. The doctor who was working in the Sasson Hospital is Dr. Murtyanjay. The doctor who was working in the Sion Hospital is Dr. Mrigesh. By Civil Application No. 1248 of 1984 the petitioner has tried to bring additional evidence on record for the purpose of showing that at least at this moment most of the persons who were residing with the respondent when the evidence was being recorded have gone out of the suit premises, if not out of the family, and, therefore, the question of hardship acquires an altogether different complexion. In reply to the said application the respondent has filed an affidavit. Considering the material to be found in the civil application as well as in the affidavit in reply I notice that Jagdish who was at the relevant time studying for the M.B.B.S. course has now become a doctor and is married and in now staying with the respondent in the suit premises. Dr. Murtyanjay along with his wife and child have undoubtedly left the suit premises and are staying in an apartment of their own, but Dr. Mrigesh, who was in Bombay working in the Sion Hospital, has returned to Pune is staying along with his wife, Dr. Leena, and son in the suit premises. The net result, if everything that is mentioned in the civil application is accepted, is that there is a reduction of hardly one in the total number of members residing in the suit premises. I am not satisfied that in a petition under Article 227 of the Constitution of India such uncertain, inchoate evidence should be taken on record for the purpose of reversing or re-opening a finding given on the question of comparative hardship under Section 13(2) of the Bombay Rent Act. No case, therefore, is made out for revising the decree passed by the learned Joint Judge.
12. In the result, this petition must fail. Rule is accordingly discharged with order as to costs. The additional evidence sought to be brought on record by means of two applications is not necessary for the disposal of this petition. They are, therefore, rejected.
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