Wednesday, 15 August 2018

Whether one of dependent of landlord can prove his bonafide need?

The Division Bench in the case of Nathulal Gangabaks Khandelwal held that bona fide need of a landlord was a matter which could be proved by any evidence; there was nothing in the provisions of the Rent Act which required the landlord to adduce his own evidence for proving his bona fide need. In the absence of any specific provision to that effect, the facts constituting a bona fide need could be proved by the landlord by adducing any evidence which satisfies the Court or the Rent Controller. It may be that certain facts, which are needed to be established as per the requirements of the Rent Act, in this behalf, are in the personal knowledge of the landlord alone. In that case, he may have to step into the witness box to prove these facts and the Court or the authority concerned may not accept any other evidence. But barring such a case, if the facts in dispute could be, and are, established by any other competent witness other than the landlord by examining himself, the landlord cannot be visited with the fatal consequence of adverse inference, if he omits to personally step into the witness box. So also, in the case of Mangesh Govind Patane, the learned Single Judge held that so long as the witness had the personal knowledge of the bona fide requirement of the landlord, he could very well step into the witness box and prove the same. The Court particularly held that the expression "himself used in section 13(1)(g) of the Rent Act had been defined to mean not only the landlord alone but also his wife and children. It would cover the case of a family and all persons staying together including dependents and other relation of the landlord. If one of these dependants steps into the witness box and proves bona fide need of the landlord not only for himself but for his dependents including the witness, there is no reason why his evidence should not be accepted by the Court.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 3973 of 2015

Decided On: 25.09.2017

 Premchand Vs.  Murtuzakhan Rahmankhan

Hon'ble Judges/Coram:
S.C. Gupte, J.

Citation: 2018(4) MHLJ 295

1. Heard learned counsel for the parties. The petition challenges two concurrent judgments and decrees passed by the Courts below, namely, learned District Judge-3, Amravati in Regular Civil Appeal No. 134 of 2010 and learned Joint Civil Judge Junior Division, Amaravati in Small Cause Suit No. 26 of 2008.

2. The suit was originally instituted by the respondent herein as landlord against the petitioner as tenant. The suit sought eviction of the petitioner on the ground of bona fide need of the landlord and also on the ground of illegal subletting by the petitioner. The bona fide need was stated to be not only of the landlord, i.e. the respondent himself, but also of his son, who was a family member residing with him and was of marriageable age. It was the case of the respondent that he and his son were doing business on handcart and now wanted to settle down in their business in the suit premises. It was claimed in the suit that the petitioner had already sublet the premises to one Narendra Sawarkar. It was also the case of the respondent that the petitioner was having his own separate shop and had no need for the suit premises. The trial Court as well as the lower appellate Court found in favour of the plaintiff both on the ground of bona fide need and on illegal subletting. The decree of eviction passed by the trial Court was, accordingly, confirmed by the lower appellate Court.

3. The only ground on which the present petition is pressed before this Court is that the respondent having filed the present suit through a constituted attorney and neither the plaintiff nor his constituted attorney having stepped into the witness box to prove the case, an adverse inference needs to be drawn. Relying on the judgment of the Hon'ble Supreme Court in the case of Vidhyadhar vs. Manikrao and another, reported in MANU/SC/0172/1999 : AIR 1999 SC 1441, learned counsel for the petitioner submits that since the plaintiff did not step into the witness box or state his own case on oath or offer himself to be cross-examined by the other side, the Court ought to have drawn an inference against the plaintiff that the case set up by him was not correct. Learned counsel submits that the Court, in the premises, ought not to have decreed the suit. In Vidhyadhar's case, the original plaintiff, who was the appellant before the Hon'ble Supreme Court, had filed the suit for redemption of mortgage by conditional sale or, in the alternative, for a decree of specific performance of the contract for repurchase of the suit property. The suit was decreed by the trial Court and the decree was upheld by the Lower Appellate Court. The Hon'ble Supreme Court, however, set aside both the judgments and disposed of the suit by directing restoration of the suit property to the defendant on payment of a certain sum. The case of the contesting defendant before the Court was that the document drawn in his favour was not a mortgage by conditional sale but an out and out sale and since the amount of consideration had not been tendered within the time stipulated therein, the plaintiff could not claim reconveyance of the suit property. One of the questions before the Court was whether the sale deed purportedly executed by defendant No. 2 in favour of the plaintiff in that case was fictitious and the whole transaction was a bogus transaction as only a meagre amount was paid as sale consideration to defendant No. 2. The contesting defendant (defendant No. 1), in the premises, was mainly contesting the transaction of sale between the plaintiff and defendant No. 2. Defendant No. 1 did not step into the witness box or state his own case on oath and did not offer himself to be cross-examined. In the premises, the Hon'ble Supreme Court held that a presumption would arise that the case set up by him was not correct. The Court, in this behalf, referred to judgments of various High Courts as well as the Privy Council. These judgments were to the effect that when a party abstains from entering the witness box, it would give rise to an adverse inference and a presumption would be drawn against him under section 114 of the Evidence Act. The facts before the Hon'ble Supreme Court made it clear that defendant No. 1 himself was not a party to the transaction of sale between defendant No. 2 and the plaintiff. He himself had no personal knowledge of the terms settled between defendant No. 2 and the plaintiff. Neither was the transaction settled or executed in his presence nor was he a scribe or marginal witness of that sale deed. The Court, in the premises, raised a pertinent question, namely, could he in such situation raise a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part payment thereof. It was in the light of these facts that the Court considered the matter of defendant No. 1 refusing to step into the witness box for deposing to his case and offering himself to cross-examination. There is no general rule of law that in a case where the plaintiff could prove his case through a competent witness other than himself, who could depose to the case based on his (i.e. the witness's) personal knowledge, the Court must still hold against the plaintiff, drawing an adverse inference. In a case like the present, where bona fide need of the plaintiff was itself based on the need of his son, who was a family member residing with the plaintiff and who was of a marriageable age and needed the premises to do business, it can never be said that the son cannot enter into the witness box and depose to his need. So also, the other aspect of the plaintiffs case, namely, illegal subletting of the suit premises by the defendant to a third party, was certainly a matter which could be proved by the plaintiff's son, if that were a matter of his personal knowledge. In this case, the son, who stepped into the witness box, deposed to the fact of subletting through his own knowledge. Learned counsel for the petitioner referred to some parts of the cross-examination of the plaintiffs son. He particularly referred to the lack of knowledge expressed by the witness as to the date of partition when his father came into the ownership and possession of the suit property or as to the time since when the defendant was a tenant of the suit premises. These are not matters of dispute. Neither the plaintiffs ownership of the suit property nor the existence of the relationship of landlord and tenant between the plaintiff and the defendants is a matter of contest. Lack of knowledge, therefore, of the witness as regards these aspects is not determinative of his competence to depose to the plaintiffs case.

4. I am fortified in this view by two judgments of our Court, namely, the cases of Nathulal Gangabaks Khandelwal vs. Nandubai and others, reported in MANU/MH/0287/1984 : 1994 Mh.L.J. 253 : AIR 1984 Bom. 340, decided by the Division Bench of our Court and Mangesh Govind Patane vs. Nagesh Kadam and others, reported in MANU/MH/0526/2005 : 2005 (4) Bom. C.R. 554 decided by a learned Single Judge of our Court. The Division Bench in the case of Nathulal Gangabaks Khandelwal held that bona fide need of a landlord was a matter which could be proved by any evidence; there was nothing in the provisions of the Rent Act which required the landlord to adduce his own evidence for proving his bona fide need. In the absence of any specific provision to that effect, the facts constituting a bona fide need could be proved by the landlord by adducing any evidence which satisfies the Court or the Rent Controller. It may be that certain facts, which are needed to be established as per the requirements of the Rent Act, in this behalf, are in the personal knowledge of the landlord alone. In that case, he may have to step into the witness box to prove these facts and the Court or the authority concerned may not accept any other evidence. But barring such a case, if the facts in dispute could be, and are, established by any other competent witness other than the landlord by examining himself, the landlord cannot be visited with the fatal consequence of adverse inference, if he omits to personally step into the witness box. So also, in the case of Mangesh Govind Patane, the learned Single Judge held that so long as the witness had the personal knowledge of the bona fide requirement of the landlord, he could very well step into the witness box and prove the same. The Court particularly held that the expression "himself used in section 13(1)(g) of the Rent Act had been defined to mean not only the landlord alone but also his wife and children. It would cover the case of a family and all persons staying together including dependents and other relation of the landlord. If one of these dependants steps into the witness box and proves bona fide need of the landlord not only for himself but for his dependents including the witness, there is no reason why his evidence should not be accepted by the Court.

5. Two Courts below have, after considering the evidence before them, come to concurrent findings of fact concerning the bona fide need of the landlord, which includes the need of his family members including his son and the grievance of illegal subletting by the petitioner in favour of a third party. No interference is called for in the writ jurisdiction of this Court with these findings. The conclusions are clearly possible conclusions based on evidence. No irrelevant or non-germane material is considered by the Court and no relevant or germane material is disregarded by the Courts whilst arriving at these conclusions. In the premises, simply on the basis that the landlord himself did not step into the witness box, the conclusions cannot be termed as impermissible or warranting interference.

6. Accordingly, there is no merit in the writ petition. The writ petition is dismissed. No order as to costs. At the request of learned counsel for the petitioner, the interim stay operating in his client's favour is directed to continue for a further period of four weeks.


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