Saturday, 28 October 2017

How to ascertain bonafide requirement and comparative hardship in eviction suit?

Upon   examination   of   the   impugned   judgment   and
order,   as   also   the   material   on   record,   the   criticism   leveled   by
Mr.Vinod Tayade with regard to the impugned judgment and order
made by the Appeal Court will have to be accepted.   The Appeal
Court, has no doubt, referred to the  legal position  that in  such
matters the landlord is best judge of his own requirement. However,
the Appeal Court, it appears, has ignored this legal position in its
application to the material on record.  The positive and categorical
evidence on record with regard to the size of the landlord's family,

particularly, after the demise of his wife, has virtually being ignored
by the Appeal Court.  The Appeal Court has not even adverted to the
circumstance that the current premises occupied by the landlord
hardly comprise of two rooms and that the current premises were at
a level lower than the road.  The landlord has deposed that in the
monsoon,   the   water   enters   in   the   current   premises   rendering   it
difficult for the landlord and his family members to reside there.
This deposition was not even challenged.  The Appeal Court, has not
even recorded any finding that the requirement of the landlord was
malafide   or   not   bonafide   in   the   facts   and   circumstances   of   the
present case.   The non­examination of landlords brother or other
family   members,   was   certainly   not   sufficient,   in   the   facts   and
circumstances of the present case, to draw any adverse inference
against the landlord.  Landlord has himself deposed that the current
premises were on Government land.  Further, even notice had been
issued by the Government styling the premises as unauthorized or
illegal.     In   these   circumstances   if   the   landlord   and   his   family
members felt insecure to reside in such premises and felt the need of
recovering their own suit premises, it cannot be said that such facts
were insufficient to establish bonafide requirement.
20. Again,   on   the   aspect   of   comparative   hardship,   the

evidence   on   the   part   of   the   landlord   has   virtually   gone
unchallenged. The respondent, from the deposition of his witness,
appears to be a large company which has employed more than 300
employees.  The witness admitted that it has yet another premises at
Ambernath.     The   witness   also   admitted   that   in   Ambernath   and
Ulhasnagar  area,  there  are   several  constructions  coming  up   and
there are large number of agents and brokers.  All these material is
more than  sufficient to establish that the  hardship  faced by the
landlord is far greater than hardship which is the respondent­tenant
would face, in case eviction was ordered as contemplated by the
Section 13(i)(g) of the Rent Control Act.
21. In   this   case,   it   is   clear   that   there   was   more   than
sufficient positive evidence put forth by the landlord on record.  In
contrast,   the   witness   for   the   respondent   was   totally   vague   and
ambivalent.  On most occasions, this witness, candidly admitted that
he was unaware of the true and correct facts or that he was not in a
position  to   comment   upon   the   deposition   of  the   landlord.    The
evidence of the landlord, in the minimum, was more than sufficient
for the onus to shift upon the tenant.  The deposition of the witness
on behalf of the tenant, however, was not of such nature as to rebut
or  discharge  such  onus.   The  Appeal  Court,  has erred  both, on

principle   as   well   as   on   facts.     This   is   really   not   a   case   of   reappreciation
of the evidence but this is case of relevant and material
evidence not even being looked into by the Appeal Court.   The
Appeal   Court   has   itself   not   followed   the   legal   principles   and
therefore, the impugned judgment and order made by the Appeal
Court warrants interference.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4752 OF 1998
Shri. Om Prakash Suri M/s. Chemiequip Ltd.  
­­­­

­­­­
CORAM : M. S. SONAK, J.
DATE    :  23rd JUNE 2017
Citation: 2017(4) MHLJ 706

1. Heard   Mr.Vinod   Tayade   for   the   petitioner.     The
respondent, though served, has put no appearance through some
authorized representative or advocate.
2. The   challenge   in   this   petition   is   to   the   impugned
judgment and order dated 18th  February 1998 made by the IInd
Additional   District   Judge,   Kalyan   (Appeal   Court),   reversing
judgment and order dated 30th  April  1994 made  by Civil  Judge
(J.D.) Ulhasnagar (Trial Court) ordering eviction of the respondent
from Flat No.24, Radheshyam Co­operative Housing Society Ltd.,

O.T. Section, Ulhasnagar­421 003 (Suit premises).
3. The   petitioner   is   the   legal   representative   of   the
deceased landlord through Shri.Omprakash Suri.  The landlord had
instituted a suit for eviction of the respondent­tenant from the suit
premises, inter­alia on the following grounds :­
(a) Default in payment of rents and Municipal
Taxes;
(b) Non­user   of   the   suit   premises   without
reasonable cause;
(c) Bonafide requirement as contemplated by
Section   13(1)(g)   of   the   Bombay   Rents,   Hotel   and
Lodging House Rates Control Act, 1947 (Rent Control
Act).
4. The learned Trial Judge, vide judgment and order dated
30th  April 1994 ordered eviction of the respondent­tenant on the
ground as contemplated by Section 13(1)(g) of the Rent Control
Act.
5. The   respondent­tenant   thereupon   instituted   Civil
Appeal No.296 of 1998 before the Appeal Court.  The Appeal Court,

vide   impugned   judgment   and   order   dated   18th  February   1998
allowed the appeal and set aside the eviction order made by the
Trial Court.  Hence, the present petition by the petitioner­landlord.
6. Mr.Tayade   the   learned   counsel   for   the   petitioner
submits that the impugned judgment and order made by the Appeal
Court warrants interference, because, the Appeal Court, has failed to
appreciate scope and import of the provisions contained in Section
13(1)(g) of the Rent Control Act in their proper perspective.  In such
matter, the landlord is the best judge of his requirement and it is not
for the tenant to dictate any term to the landlord, in this regard.  He
submits that there is ample evidence on record to the effect that the
premises occupied by the landlord were illegal and unauthorized
premises facing threats of eviction/demolition from the Government
and other Statutory Authorities.  He submits that the landlord's wife,
expired during the pendency of the eviction proceedings before the
Trial Court and the eviction petition  was amended.   By way of
amendment   it   was   pleaded   that   the   landlord's   brother   from
Haridwar along with his family members joined the landlord to stay
at Mumbai, since, the landlord is required to take care of his aged
mother and his young daughter, consequent upon the demise of his
wife.  Mr.Tayade further submits that the tenant in the present case,

is a company and for long time  there  was non­user of the  suit
premises.  In any case, the tenant used the premises intermittently
for   the   purposes   of   providing   accommodation   to   some   of   his
employees.  Mr.Tayade submits that there was positive evidence to
the   effect   that   other   premises   are   available   in   the   locality   and
tenant,   being   a   company,   would   have   no   difficulty   in   acquiring
alternate premises.   Mr.Tayade submits that the Trial Court, upon
detailed   analysis   of   the   evidence   on   record   had   quite   correctly
ordered   eviction.     However,   Mr.Tayade   submits   that   the   Appeal
Court, exceeded his jurisdiction in reversing the order of Trial Court,
without   appreciating   either   the   evidence   on   record   or   the   legal
position,   in   the   proper   prospective.     Mr.Tayade   submits   that   as
against the positive evidence lead by and on behalf of the landlord,
the   evidence   lead   by   the   representative   of   the   tenant   was   very
ambivalent and totally insufficient to rebut the onus, which stood
shifted upon the tenant.   Mr.Tayade, accordingly submits that the
impugned judgment and order dated 18th  February 1998 made by
the Appeal Court warrants interference.
7. As   noted   earlier,   the   respondent   though   served,   is
neither present through its representative nor represented by any
advocate in this proceedings.   Mr.Tayade, the learned counsel for

the petitioner submits that the respondent is no longer interested in
the suit premises and only some security guard sometimes is seen in
the suit premises.  At this stage, however, it is not possible to take
cognizance of this submission made by Mr.Tayade.   Instead, it is
necessary   to   determine   whether   the   Appeal   Courts   impugned
judgment and order dated 18th February 1998 warrants interference
in the exercise of the Writ jurisdiction.
8. Section 13(1)(g) of the Rent Control Act provides that
the landlord shall recover the possession of the suit premises, if the
Court is satisfied that the premises are reasonably and bona fide
required by the landlord for occupation by himself or by any person
for whose benefit the premises are held.
9. Section 13(2) of the Rent Control Act further provides
that no decree for eviction shall be passed on the ground specified
clause (g) of Section (1) of Section 13, if the Court is satisfied that,
having regard to all the circumstances of the case including the
question whether other reasonable accommodation is available for
the landlord or the tenant, greater hardship would be caused by
passing the decree than by refusing to pass it.  The Court if satisfied
therefore   that   no   hardship   would   be   caused   to   the   landlord   by
passing a decree in respect of the part of the premises, the Court
shall pass a decree in respect of  such part only.
10. In support of the plea for an eviction decree on the
ground as contemplated by Section 13(1)(g) of the Rent Control
Act, the landlord had basically urged the following :­
a) That in the present premises only the landlord
was   staying   along   with   his   family   members;   the
premises were constructed on Government property and
therefore, were illegal and unauthorized construction.
There was threat of eviction/demolition and on account
of such insecurity the landlord, bonafide required the
suit premises, belonging to him for his own occupation
along with his family members.
b) Consequent upon the demise of his wife during
the pendency of the eviction proceedings, the landlord's
owner's brother from Haridwar, a rickshw driver had
shifted in the present premises, along with his family
members.   Such shifting was necessary because care
head to be provided to the landlords aged mother and
young daughter.  All these resulted in requirement for
additional secured premises, which, the suit premises

were in position to provide.  
11. The   landlord,   in   support   of   the   aforesaid   ground
examined himself.  In his deposition, the landlord, clearly stated that
the current premises occupied by him were illegal and unauthorized
constructions on Government lands in Ulhasnagar.   He has also
deposed that there were threats of eviction and demolition.  He also
deposed about the demise of his wife and the factum that his aged
mother (75 years old) and his young daughter (14 years old) resides
with him.  He also deposed that since his old mother was unable to
take care of the household work and look after his daughter, he was
constrained to invite his younger brother from Haridwar to reside
with him along with his family members.   He deposed that his
younger brother along with his wife, three daughters and one son
moved into the current premises and the current premises were
totally  insufficient  for   the   purposes  of   the   residence   of   all   such
family members.
12. Landlord has also deposed that the current premises are
not at all suitable for his residence.  Apart from the insecurity arising
out   of   the   treats   of   eviction   and   demolition,   the   landlord   has
deposed   that   the   current   premises   have   two   small   rooms   and

kitchen.   Besides, the house, is situated on the low level of the road
and water flows in the room in the rainy session.  This renders the
residence extremely difficult. In contrast, landlord has deposed that
the suit premises are on the first floor and will be suitable for the
occupation of landlord and the family members.  The landlord, has
deposed to the hardships and inconvenience suffered by him and his
family members at the current premises.
13. The landlord, also deposed about the intermittent use of
the   suit   premises   by   some   of   the   employees   of   the   respondenttenant.
 Landlord also deposed that for almost four to five years the
suit   premises   was   locked   and   unused.     The   landlord   has   also
deposed   that   the   respondent   tenant   has   obtained   two   flats   in
Ambernath and he is in a position to acquire other flat, in case
respondent requires such flat for its use.  Landlord has also deposed
that   the   work   of   construction   of   new   buildings   is   going   on   at
Ulhasnagar and Ambernath on a large scale and if the respondenttenant
is genuinely in need of accommodation, the same can be
easily acquired by the respondent­tenant.
14. In his cross­examination, the landlord, has deposed that
around five to six years earlier, the Government had issued notice to

him regarding unauthorized construction of the house.  However, he
admitted that the Municipal Council has not issued any such notice.
The landlord expressed his inability to produce such notice in the
Court.   The   landlord   has   denied   that   the   current   premises   are
sufficient for his occupation along with his family.   Landlord has
also deposed that he is not going to examine any other relative or
brother or his brothers wife etc as witness on his behalf.  Landlord
has also admitted that he has factory manufacturing Mechanical
Spare parts, he is Income Tax prayer and has a motor car.  In his
cross­examination   the   landlord   has   also   deposed   about   the
particulars concerning the family members of his brother who is
stated, to have come to reside with him in the current premises.
Landlord has categorically deposed that his mother, his daughter,
his brother, brothers wife and four children have come to reside
with him in the current premises and that, the premises were totally
insufficient for their residence.
15. One   Motital   Radhanjomal   Adwani   also   came   to   be
examined as a witness on behalf of the landlord.  However, evidence
of this witness is not relevant to determine whether the ground as
contemplated by the Section 13(1)(g) of the Rent Control Act is
made   out.   Similarly,   Mr.S.V.Chanchalani,   Tax   Inspector   of   the

Ulhasnagar Municipal Council came to be examined on behalf of the
landlord. Again, deposition of his witness, is not very relevant in a
context of the ground contemplated by the Section 13(1)(g) of the
Rent Control Act.
16. Shri.Mulchandani came to be examined on behalf of the
respondent­tenant.  He stated that he has seen the current premises
where the landlord resides about four to five  years prior to his
deposition and that too, only once.  He stated that he has seen the
house only from outside but not from inside.  He has stated that he
is not aware of the number of family members residing along with
the landlord in his current premises.  He has stated that he is not
aware as to whether the current premises have been constructed on
Government property and whether, such construction is illegal or
not.  He has disclaimed knowledge about the construction material
employed for construction of the current premises.  He has candidly
admitted that he has made no inquiries and therefore, he has no
knowledge as to whether the deposition of the landlord is correct or
not.
17. Mr.Mulchandani, the witness for the respondent­tenant
has admitted that respondent­tenant, apart from the suit premises,

had another two room flat at Ambernath and has stated that the
respondent company employees around 325 persons, out of which,
about   180   are   workman   and   95   are   office   employees   and   the
balance are servants.  This witness has admitted that in AmbernathUlhasnagar
there are new constructions being undertaken and there
are plenty of real estate agents or brokers in the said area.    This
witness   admitted  that   he   had   made   no  inquiries  as   regards  the
possibility of obtaining alternate accommodation.  This witness has
deposed   about   details   of   respondent­tenants   factory,   the   market
position of his shares and its financial position.  He has deposed that
one   Dr.Deodar   who   his   employee   of   the   respondent­tenant   is
presently occupying the suit premises.  Finally, he has deposed that
respondent company would suffer hardship, in case, is ordered to be
evicted from the suit premises.
18. As noted earlier, Trial Court, based upon the evidence
on   record,   accepted   the   case   of   the   landlord   on   the   ground   as
contemplated by section 13(1)(g) of the Rent Control Act has been
made out.   Further, the Trial Court also ruled that the hardship
which is being faced, by  the  landlord is much greater  than  the
hardship which the respondent­tenant may have to face by eviction
from the suit premises.   The Appeal Court, has however, reversed

the Trial Court order primarily on the following grounds :­
(i) That the landlord did not examine his brother
and any other family members as a witness.
(ii) That the ground current premises occupied by the
landlord were unauthorized premises is not a sufficient
ground   and   in   any   case,   since,   no   notices   from   the
Government or Municipal Authorities were produced on
record,   there   was   no   evidence   in   support   of   such
ground;
(iii) That there is no sufficient evidence to hold that
the landlord brother and his family members moved in
current premises.
19. Upon   examination   of   the   impugned   judgment   and
order,   as   also   the   material   on   record,   the   criticism   leveled   by
Mr.Vinod Tayade with regard to the impugned judgment and order
made by the Appeal Court will have to be accepted.   The Appeal
Court, has no doubt, referred to the  legal position  that in  such
matters the landlord is best judge of his own requirement. However,
the Appeal Court, it appears, has ignored this legal position in its
application to the material on record.  The positive and categorical
evidence on record with regard to the size of the landlord's family,

particularly, after the demise of his wife, has virtually being ignored
by the Appeal Court.  The Appeal Court has not even adverted to the
circumstance that the current premises occupied by the landlord
hardly comprise of two rooms and that the current premises were at
a level lower than the road.  The landlord has deposed that in the
monsoon,   the   water   enters   in   the   current   premises   rendering   it
difficult for the landlord and his family members to reside there.
This deposition was not even challenged.  The Appeal Court, has not
even recorded any finding that the requirement of the landlord was
malafide   or   not   bonafide   in   the   facts   and   circumstances   of   the
present case.   The non­examination of landlords brother or other
family   members,   was   certainly   not   sufficient,   in   the   facts   and
circumstances of the present case, to draw any adverse inference
against the landlord.  Landlord has himself deposed that the current
premises were on Government land.  Further, even notice had been
issued by the Government styling the premises as unauthorized or
illegal.     In   these   circumstances   if   the   landlord   and   his   family
members felt insecure to reside in such premises and felt the need of
recovering their own suit premises, it cannot be said that such facts
were insufficient to establish bonafide requirement.
20. Again,   on   the   aspect   of   comparative   hardship,   the

evidence   on   the   part   of   the   landlord   has   virtually   gone
unchallenged. The respondent, from the deposition of his witness,
appears to be a large company which has employed more than 300
employees.  The witness admitted that it has yet another premises at
Ambernath.     The   witness   also   admitted   that   in   Ambernath   and
Ulhasnagar  area,  there  are   several  constructions  coming  up   and
there are large number of agents and brokers.  All these material is
more than  sufficient to establish that the  hardship  faced by the
landlord is far greater than hardship which is the respondent­tenant
would face, in case eviction was ordered as contemplated by the
Section 13(i)(g) of the Rent Control Act.
21. In   this   case,   it   is   clear   that   there   was   more   than
sufficient positive evidence put forth by the landlord on record.  In
contrast,   the   witness   for   the   respondent   was   totally   vague   and
ambivalent.  On most occasions, this witness, candidly admitted that
he was unaware of the true and correct facts or that he was not in a
position  to   comment   upon   the   deposition   of  the   landlord.    The
evidence of the landlord, in the minimum, was more than sufficient
for the onus to shift upon the tenant.  The deposition of the witness
on behalf of the tenant, however, was not of such nature as to rebut
or  discharge  such  onus.   The  Appeal  Court,  has erred  both, on

principle   as   well   as   on   facts.     This   is   really   not   a   case   of   reappreciation
of the evidence but this is case of relevant and material
evidence not even being looked into by the Appeal Court.   The
Appeal   Court   has   itself   not   followed   the   legal   principles   and
therefore, the impugned judgment and order made by the Appeal
Court warrants interference.
22. Accordingly, impugned judgment and order dated 18th
February   1998   made   by   the   Appeal   Court   is   set   aside.     The
Judgment and order dated 30th April 1994 made by the Trial Court
is restored.  In the facts and circumstances of the present case, there
shall be no order as to costs.
23. Rule is made absolute to the aforesaid extent without
any order as to costs.
(M. S. SONAK, J.)

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