Wednesday, 8 August 2018

Whether court should consider issue of comparative hardship if landlord has failed to prove his bonafide need?

The lower Appellate Court, in its exhaustive judgment held that the requirement of the landlords was not established and the requirement made out was the same as that in the case of Marathe. In view of the fact that the landlords lost on the issue of requirement, the lower Appellate Court held that the issue of comparative hardship does not survive. Mr. Karlekar reiterated his submissions about the requirement of landlords as urged in the case filed against tenant Marathe and for the reasons recorded herein above, these submissions are required to be rejected. Mr. Karlekar submitted with reference to an affidavit sworn on April 12, 1985 by plaintiff No. 2 that Vimalabai had retired on attaining age of superannuation in September 1982 and that she had property at village Dharangaon in Erandol Taluka where she can easily shift and, therefore, decree of eviction should be passed against her. It is impossible to accede to the suggestion because the question of comparative hardship arises only after the landlord establishes that his requirement is bonafide and reasonable. The landlords have failed to establish that the requirement is bonafide and reasonable and, therefore, the question of comparative hardship is of no consequence

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2431 of 1979 with Writ Petition Nos. 1655 of 1985, 430 of 1980, 2781 of 1980

Decided On: 13.07.1989

Shriram Vishram Marathe Vs. Pitambar Govinda Patil

Hon'ble Judges/Coram:
M.L. Pendse, J.




1. All these petitions filed under Article 227 of the Constitution can be conveniently disposed by common judgment as the petitions arise out of three suits filed by the landlords against three tenants occupying different blocks in house bearing T.P. No. 1715/B situated at Amalner in Dhulia District. The common controversy in all the petitions is about the claim made by the landlords for recovery of possession on the ground of bonafide personal requirement as prescribed under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act'). The landlords have sought possession from the tenants on other grounds also and those other grounds will be dealt separately. The original plaintiff No. 1 Pitambar Govinda Patil is the natural father of plaintiff No. 2 Jagatrao Shankarrao Bagul. The plaintiff No. 1 is a permanent resident of village Mangrul which is situated at a distance of hardly two miles from Amalner. The plaintiff No. 1 owns house and large plots of irrigated lands at Mangrul. The plaintiff No. 2 was given in adoption to the brother of plaintiff No. 1. The plaintiff No. 2 is a practising advocate. The plaintiff No. 1 had five sons and several grand-children and all of them were residing at village Mangrul in the ancestral property.

2. On May 29, 1971, the two plaintiffs jointly purchased house property situated at Amalner from Saifuddin. The property consists of ground and first floor and there were three blocks on the ground floor and three on the first. At the time of purchase the plaintiffs secured vacant possession of one of the blocks. The remaining five blocks were let out to tenants and the three tenants involved in these petitions are school teachers paying rent between Rs. 6 and Rs. 10 per month. Each of the block consists of three roo Immediately after the purchase of the property, the plaintiffs served notices on all the five tenants terminating their tenancy and demanding possession on all conceivable grounds provided under Section 12 and Section 13 of the Rent Act. The notices were followed by five suits instituted against five tenants. It is not in dispute that one of the tenants Baburao handed over possession of his block, in favour of the landlords with the result that the landlords are in occupation of two blocks consisting of six months in the suits property. The landlords claim that plaintiff No. 2 is a practising lawyer at Amalner and one block consisting of three rooms is in his occupation for his residence. The family of plaintiff No. 2 consists of his wife and four children. The plaintiff No. 2 claims the additional room is needed for the use as his office for the legal profession. The plaintiff No. 1 claims that he visits Amalner from time to time to effect purchase of agricultural goods and is in need of premises to reside at Amalner. The next claim is of Yeshwant grandson of plaintiff No. 1 who had passed his Homoeopathic examination and was practising at Mangrul for about six years. The plaintiffs claim that Yashwant is desirous of setting up his practice and open clinic at Amalner and, therefore, additional accommodation is necessary. The landlords also claim that another grandson of plaintiff No. 1 by name Sambhaji had passed Homoeopathic examination and intends to set up practice at Amalner.

3. The landlords further claim that one Mangala, granddaughter of plaintiff No. 1 is required to travel from village Mangrul to Amalner to attend the school and the suit premises are required to accommodate her at Amalner. One more requirement made out by the landlords is that of Raghunath, grandson of plaintiff No. 1 who is employed in Pratap Mills at Amalner. It is claimed that Raghunath is required to attend three shifts and some shifts are over at midnight and Raghunath finds it extremely difficult to travel back to village Mangrul at late hour. This is the requirement made out by the landlords while instituting suits.

4. Suit against tenant Shriram Vishram Marathe was instituted in the year 1972 and was numbered as Regular Civil Suit No. 189 of 1972. The suit against tenant Vimalabai Vishnu Saraf was instituted on December 21, 1972 and was numbered as Regular Civil Suit No. 221 of 1972. Regular Civil Suit No. 42 of 1973 was instituted against tenant Shantabai Ganesh Dharmadhikari. All these three suits were instituted before Civil Judge, Junior Division, Amalner and the common ground in respect of all the three suits was one of requirement and the requirement, as set out herein above, was claimed in respect of suits filed against all the three tenants Marathe, Saraf and Dharmadhikari. The three suits were heard by the same Judge but separate evidence was recorded and the three suits were disposed of by separate judgments. The suit filed against Marathe came to be decreed on the strength of finding that though the landlords failed to establish the requirement in respect of plaintiff No. 1, plaintiff No. 2, the two grandsons Yeshwant and Shambhaji of plaintiff No. 1 and Mangala, granddaughter of plaintiff No. 1, the requirement of Raghunath who was working in Pratap Mills was established and that requirement being both reasonable and bonafide, the landlords were entitled to recover possession of one block in occupation of legal representatives of Marathe, Marathe having died after the institution of suit. The Trial Judge dismissed the claim made by the landlords on the ground of requirement against the tenants Saraf and Dharmadhikari in view of the decree passed against Marathe.

5. The principal question which is common in all the four petitions is whether the landlords establish the requirement of three blocks for bonafide personal occupation. It is required to be stated that though the District Court, in appeal preferred by Marathe confirmed the finding of the Trial Judge awarding possession to the landlords, the claim made against the other two tenants Saraf and Dharmadhikari was dismissed even by the District Court. To ascertain whether the requirement made out by the plaintiffs is bonafide and reasonable as required under Section 13(1)(g) of the Rent Act, it is necessary to examine the availability of premises to the plaintiffs and need made out before the two Courts below. It is not in dispute that plaintiff No. 1 died during the pendency of this litigation and, therefore, the requirement made out by plaintiff No. 1 to store the foodgrains in the suit premises and enable plaintiff No. 1 to reside at Amalner on his visits no longer survives for consideration. The plaintiff No. 2 who is a practising lawyer claims that though one block consisting of three rooms is in his occupation and used as residence additional premises are needed for setting up an office. It was not disputed that after the institution of the suits against Marathe, Saraf and Dharmadhikari, the landlords recovered one more block in the suit property from tenant Baburao. The block occupied by Baburao consists of three rooms and the need of plaintiff No. 2 was only for a room to set up his office for carrying out legal practice. The need was, therefore, satisfied after Baburao left the block in his possession. As regards the requirement of plaintiff No. 1, the claim was that Yeshwant had passed his Homoeopathic examination and was desirous of setting up practice at Amalner. Both the Courts below concurrently found that his requirement was not genuine and the reasons given for reaching this conclusion are very proper. Yeshwant was practising at village Mangrul for over six years and the house accommodation available at Mangrul is quite spacious. Village Mangrul is hardly at a distance of two miles from Amalner and, therefore, the two Courts below have rightly held that the requirement of Yeshwant made out by the plaintiff No. 1 i.e., Sambhaji, the Courts below held that this requirement was not set out in the plaint but was introduced while evidence was recorded in the year 1978. The landlords claimed that Sambhaji had also passed Homoeopathic examination and was desirous of setting up a clinic or a hospital in the suit premises. The two Courts below wondered why the two rooms available from the block vacated by the Baburao cannot be used by Sambhaji and Yeshwant. The Courts below noted that plaintiff No. 2 point blank refused to accommodate Yeshwant and Sambhaji on the precious ground that the block is recovered by him from Baburao. The claim made by the landlords that additional space was required so that Mangala, a school going child who travels down from Mangrul to Amalner every day and finds it inconvenient, could be accommodated was also turned down by both the Courts below observing that the two rooms available out of the block of Baburao could be conveniently used for accommodating Mangala. Again plaintiff No. 2 did not show inclination to accommodate Mangala probably on the ground that he has recovered the block from Baburao and he would not allow the grandchildren of plaintiff No.l to occupy the same. It required to be stated at this juncture that the property was purchased jointly by plaintiff Nos. 1 and 2 and plaintiff No. 2 deposed in the witness box that even though he had gone in adoption, he was joint with his natural father. Inspite of this claim, plaintiff No. 2 was not willing to accommodate any of the grandchildren of plaintiff No. 1, in the block secured from Baburao. In these circumstances the Courts below very rightly held that the requirement of plaintiff No. 1, plaintiff No. 2 and the grandchildren Yeshwant, Sambhaji and Mangala was neither bonafide nor reasonable.

6. The Courts below held that the requirement made out by the landlords for accommodation of Raghunath, a grandson of plaintiff No. 1, is bonafide and reasonable and Mr. Rane, learned counsel appearing on behalf of tenant marathe seriously disputed the correctness of the finding. Raghunath is employed in Pratap Mills at Amalner and deposed that he is required to attend three shift at different times and some of the shifts get over at 12 midnight and it is difficult then to travel down to village Mangrul. Ragunath claimed that it is essential that he should stay alongwith his family at Amalner. The two Courts below held that the requirement of Raghunath is genuine and to enable Raghunath to stay at Amalner, it is necessary for Marathe to vacate one block in his possession. Mr. Rane submits that even assuming that the claim of Raghunath is genuine, still the two rooms available in the block vacated by Baburao can be conveniently enjoyed by Raghunath and it is not necessary to throw out the legal representatives of tenant Marathe, the legal representatives being the widow and minor children. I find considerable merit in the submission urged by Mr. Rane. The lower Appellate Court wondered why plaintiff No. 2 could not provide accommodation to Raghunath in two rooms vacated by Baburao. The lower Appellate Court noticed that plaintiff No. 2 was insistent that the block vacated by Baburao was secured by him and he would not provide accommodation to any of the sons or grandsons of plaintiff No. 1. If this is the attitude of plaintiff No. 2, then it is impossible to hold that the requirement made out by Raghunath is genuine. It is more so when the property is jointly purchased by plaintiff No. 1 and plaintiff No. 2 and the property is not divided by metes and bounds. In these circumstances, it is difficult to imagine how plaintiff No. 2 can insist that the block vacated by Baburao would be exclusively used by him and Raghunath would not be accommodated in the portion of the block. In my judgment, an impression is clearly left that the requirement made out is not genuine or bonafide but the landlords are out and out to evict all the tenants on one or the other pretence. The Courts below were wrong in evicting a widow and minor children on the ground that the requirement of Raghunath is genuine. Mr. Karlekar appearing on behalf of the landlord submitted that the finding recorded by the two Courts below is a pure finding of fact and should not be disturbed in the exercise of writ jurisdiction. The submission is not correct because I am not disturbing any of the findings but upsetting the decision of the Courts below as it has been overlooked that accommodation is available with the landlords to accommodate Raghunath in the two rooms from the block vacated by Baburao. The refusal of plaintiff No. 2 to accommodate Raghunath in those two rooms is a tell-tale circumstance to indicate that the requirement is neither bonafide nor reasonable. In these circumstances, the conclusion reached by the Courts below in the suit filed against Marathe that the requirement of Raghunath is genuine and, therefore, legal representatives of Marathe should be evicted cannot be sustained.

7. In the suits filed by the landlords against the other two tenants namely, Miss Saraf who is working as headmistress in a school at Amalner and Shantabai Dharmadhikari who is also working as a teacher in a school at Amalner, the claim on the ground of requirement is rightly turned down and both the suits are dismissed by both the Courts below and those decisions are not required to be disturbed. In my judgment, the requirement made out by the landlords is entirely mala fide and unreasonable. The issue of comparative hardship does not survive for consideration in view of the finding that requirement is not established. Even otherwise, it is obvious that greater hardship would be caused to the widow and minor children of Marathe by passing decree of eviction than to the landlords by refusing the decree. The minor children are educated at Amalner and they cannot be disturbed to enable plaintiff No. 2 to have large office.

8. In suit filed against Marathe, the landlords have made out one more ground while seeking eviction and that is that the tenant has erected permanent construction in the suit premises without prior written consent of the landlord. The Trial Court decreed the claim of the landlords even on this count, but the lower appellate Court set aside the decree on that count. As mentioned herein above, the property was purchased by the plaintiffs on May 29, 1971. The Trial Judge held that the permanent construction alleged by the landlords was carried out after the date of purchase. The fact that the construction was carried out prior to date of purchase was not disputed before the District Court. The District Court, relying upon judgment of a Single Judge of this Court in Shantinath S. Ghongade v. Rajmal Uttamchand Gugale, 1979 Mah. L.J. 229, held that the cause of action for recovering possession on the ground of erection of permanent construction is not available to the purchaser of the property. The lower Appellate Court even on merit, was not inclined to hold in favour of the landlords. The decision of the learned Single Judge on which reliance was placed by the District Court was disproved by the Division Bench in decision in Radhabai Baburao Shelar, (deceased by heirs) v. Trimbak Madhavrao Shirole and others, 1981 Mh. L.J. 967 and it was held that the cause of action accruing to the landlord in view of erection of permanent construction by the tenant would be available to the purchaser of the property from the landlord. In view of the decision of the Division Bench, it cannot be debated that the cause of action to seek possession on the ground of erection of permanent construction in the suit premises was available to the plaintiffs against Marathe. The question that requires determination is whether Marathe was guilty of erecting permanent construction so as to attract the provisions of Section 13(1)(b) of the Rent Act and is liable to be evicted. The claim made out by the landlords in the notice served upon the tenant and also in the plaint was that tenant had secured water connection and the water pipes were brought to the suit premises by inserting holes in the wall. The second complaint was that the tenant had fitted cupboard on a wall and also fixed a swing (Jhoola) in the suit premises. The next complaint was that the tenant had fixed a water tank admeasuring 3 ft. x 3 ft. x½ ft. and had also damaged the wall while fitting the water tank for storage of water. The landlords alleged that the acts committed by the tenant were in breach of terms of tenancy and, therefore, attracted provisions of Section 108(o) of Transfer of Property Act. There was one more complaint that the tenant had constructed a kitchen platform and the landlords alleged that all these constructions were made without prior written consent of the landlords. The tenant did not dispute that a cupboard was fixed on wall, a kitchen platform was erected, a water tank was fitted and so also a Jhoola in the sitting room. The tenant claimed that all these constructions were done long prior to the purchase of the property and were never objected to by Saifuddin, the former landlord. During the pendency of the suit, on November 12, 1976, the landlords filed an application Exhibit 24 requesting the Trial Court to appoint a commissioner to visit the suit premises and ascertain whether the construction as alleged had been raised by the tenant Marathe. The Trial Judge granted the application & appointed Mr. Patil, a practising lawyer, as a commissioner. The commissioner submitted his report on February 28, 1977. Mr. Karlekar, learned counsel appearing on behalf of the landlords, submitted that this construction effected by the tenant amounts to erection of permanent construction and, therefore, the tenant is liable to be evicted under Section 13(1)(b) of the Act. The sub-section provides that the landlord is entitled to recover possession if the Court is satisfied that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure. An explanation was added by the legislature in the year 1987 which provides that the expression "permanent structure" does not include erecting a wooden partition, standing cooking platform in kitchen, door, lattice work or opening of a window necessary for ventilation, a false ceiling installation of air-conditioner, an exhaust outlet or a smoke chimney. The legislature also provides that this explanation shall be deemed to be in the Act all along. In view of the explanation, Mr. Karlekar very rightly did not press the complaint about erecting to cooking platform. The learned counsel also did not dispute that fitting of a cupboard on a wall or fixing a Jhoola does not amount to erection of a permanent construction. Mr. Karlekar submitted that a water tank constructed by a tenant and fitted on the wall amounts to permanent construction. It is not possible to accede to the submission of the learned counsel. It has now been repeatedly held that certain basic amenities are required for enjoyment of the residential premises and if the tenant erects a water tank for storage of water, then his act would not amount to violation of Section 13(1)(b) of the Act requiring eviction. It is common knowledge that there is always shortage of water supply at many places and the tenant is required to store the water in steel drums or have a water tank in the premises. In my judgment, taking into consideration the extent of the water tank it is difficult to accept the submission that fitment of a water tank amounts to erection of a permanent structure. The complaint about fitting of water pipes for supply of water to the suit premises is of no merit. A tenant is entitled to get water through water pipes to his premises and for fitment of such pipes, opening of a hole in the wall is necessary. In my judgment the grievance of the landlords that Marathe was guilty of erecting permanent construction is without any merit.

9. Mr. Karlekar submitted that in addition to this violation, the tenant has built one more room and construction of a room clearly amounts to erection of a permanent structure. Mr. Rane seriously disputed the claim made by Mr. Karlekar on this count. It is necessary to point out that there was no complaint on this count either in the notice served in the year 1971 or in the suit filed against Marathe on October 9, 1972. Even in application Exhibit 24 filed in November, 1976, the landlords made no complaint that Marathe erected one additional room towards the south of the block let out. The commissioner's report was submitted on February 28, 1977 and the plaintiff No. 2 entered the witness box on June 14, 1978 and till that date there was not even a whisper of a complaint that the tenant was guilty of erecting an additional room. This claim was made probably on the basis of the report of the commissioner which refers to the fourth room while giving description of the property. The alleged fourth room is towards the extreme south of the suit block. The main gate is on the northern side and the third room is used as kitchen and is towards the southern end. Beyond this room there was a mori or a sink and it is the claim of Mr. Karlekar that construction was erected around this sink and that is the fourth room. Mr. Karlekar submits that the water tank is also fitted in this room. The widow of Marathe entered the witness box and in cross-examination it was taken out from her that the alleged fourth room is in existence right from the time when the premises was let and that is about 25 years before. Plaintiff No. 2 deposed on behalf of the landlords and stated that he was not aware as to when the alleged construction was carried out. The plaintiff No. 2 deposed that on purchase of the property in the year 1971 he carried out the inspection, but did not claim that this alleged room was constructed thereafter. Indeed there is no reference in the testimony of plaintiff No. 2 as to when the alleged fourth room was constructed, but on the other hand the widow of the tenant Marathe unequivocally stated that the alleged fourth room was in existence all along. The evidence given by the widow of Marathe is acceptable because if the landlord felt that this construction was carried out by the tenant after the purchase of the property or sometime prior to the purchase, then this fact would have found predominant place in the notice served upon Marathe or atleast in the plaint filed against the tenant. Not only there is no reference to the construction of alleged fourth room in the notice or the plaint, but even in the application for appointment of commissioner the landlord did not find it wise to refer to the alleged construction. In these circumstances, it is difficult to accept the claim that the tenant had constructed an additional room. I have perused the report of the commissioner and I find that the commissioner nowhere mentions that the alleged fourth room was recently constructed. The alleged fourth room is nothing but the enclosure of an open sink where the tenant and his family members take bath. It is obvious that the area was enclosed with a view to secure privacy for the women. The commissioner was not right in observing that a wooden door was fitted after enclosing the said portion. The evidence establishes that only a temporary door of tin plates is fitted with a view to gain privacy. In the absence of any specific evidence from the landlords as to when the alleged enclosure was carried out and in absence of any complaint on this count both in the notice and in the plaint, it is obvious that the landlords introduced this claim for the first time in the testimony of plaintiff No. 2 as an afterthought. The suit was instituted in the year 1972 and the plaintiff No. 2 gave evidence in June 1978 and on that day for the first time is a complaint about the alleged construction of fourth room. On perusal of the commissioner's report and the deposition of plaintiff No. 2 and the widow of Marathe, the conclusion is inescapable that the claim of alleged construction is totally false. In my judgment, the landlords are not entitled to secure decree against legal representatives of Marathe on the ground that the tenant erected permanent structure.

10. In view of this construction, the decree passed against legal representatives of Marathe is required to be set aside and Writ Petition No. 2431 of 1979 filed by the legal representatives of Marathe must succeed while Writ Petition No. 1655 of 1985 filed by the landlords to challenge the finding of the lower Appellate Court on the issue of permanent construction is required to be dismissed.

11. Writ Petition No. 430 of 1980 is filed by the landlords against Vimalabai Saraf who is occupying one block as tenant. Initially the block was let out to her father and after his death this lady is all along staying in the premises. Vimalabai is employed as a teacher in a school at Amalner and by the time the suit was instituted, she had rose to the position of head mistress. The suit was filed against her on the ground of arrears of rent and bonafide personal requirement. The Trial Court dismissed the suit on both the counts and the ground of arrears was not pressed in appeal filed by the landlords before the District Court. The only ground pressed before the District Court was that the block in occupation of Vimalabai was required reasonably and bonafide for occupation, by the landlords. The lower Appellate Court, in its exhaustive judgment held that the requirement of the landlords was not established and the requirement made out was the same as that in the case of Marathe. In view of the fact that the landlords lost on the issue of requirement, the lower Appellate Court held that the issue of comparative hardship does not survive. Mr. Karlekar reiterated his submissions about the requirement of landlords as urged in the case filed against tenant Marathe and for the reasons recorded herein above, these submissions are required to be rejected. Mr. Karlekar submitted with reference to an affidavit sworn on April 12, 1985 by plaintiff No. 2 that Vimalabai had retired on attaining age of superannuation in September 1982 and that she had property at village Dharangaon in Erandol Taluka where she can easily shift and, therefore, decree of eviction should be passed against her. It is impossible to accede to the suggestion because the question of comparative hardship arises only after the landlord establishes that his requirement is bonafide and reasonable. The landlords have failed to establish that the requirement is bonafide and reasonable and, therefore, the question of comparative hardship is of no consequence. Vimalabai had lived in Amalner throughout her life and had taught in the school at Amalner and at the fagend of her life it is impossible to evict her because of the landlords craze to evict each and every tenant from the suit premises. All the three tenants involved were working as teachers in the local school and it is impossible to throw out any one of them only because the plaintiff No. 2 desires that he should have large office for his legal practice. In my judgment, the Courts below were right in dismissing the suit against Vimalabai Saraf and Writ Petition No. 430 of 1980 filed by the landlord is required to be dismissed.

12. Mr. Karlekar stated that the landlords are not interested in prosecuting Writ Petition No. 2780 of 1981 filed against the third tenant Shantabai Ganesh Dharmadhikari. The landlords desire to withdraw this petition and accordingly the permission is granted. Accordingly, Writ Petition No. 2431 of 1979 filed by the legal representatives of Marathe is allowed and decree and judgment dated July 25, 1978 passed by Civil Judge, Junior Division, Amalner in Regular Civil Suit No. 189 of 1972 and confirmed by 2nd Extra Assistant Judge, Dhulia on August 23, 1979 in Civil Appeal No. 89 of 1978 are set aside and suit filed by the landlords for recovery of possession against legal representatives of Marathe stands dismissed. The landlords shall pay the costs of the legal representatives. Writ Petition No. 1655 of 1985 filed by the landlords against legal representatives of Marathe to recover possession on the ground of erection of permanent construction is dismissed and the rule is discharged but without any order as to costs. Writ Petition No. 430 of 1980 filed by landlords against tenant Vimalabai Saraf is dismissed and the rule is discharged with costs. Writ Petition No. 2780 of 1981 filed by the landlords against Shantabai Ganesh Dharmadhikari is allowed to be withdrawn and rule is discharged but without any costs.




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