Wednesday, 8 May 2019

Burden of proof is on whom to prove issue of comparative hardship in eviction suit?

 In Mst. Bega Begum and Others v. Abdul Ahad Khan (dead) by Lrs. and others, MANU/SC/0313/1978 : (1979) 1 SCC 273 pari materia provision contained in J & K Rent Act came up for the consideration of this Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.

35. A perusal of these paragraphs would go to show that nowhere the Supreme Court held that there is no requirement to raise pleadings. What the Supreme Court held in paragraph 10 is that it is expected of the parties to raise necessary pleadings and the Court to frame necessary issues based on the pleadings so as to enable the parties to adduce evidence and bring on record such relevant material as would enable the Court forming an opinion on the issue of comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the Court may discharge its duty by taking into consideration such material as may be available on record.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 257 of 2007

Decided On: 22.02.2013

Chetan Anand Shetty  Vs.  Indrajeet Chandrasen Shirole and Ors.

Hon'ble Judges/Coram:
S.C. Dharmadhikari, J.
Citation: 2013(3) MHLJ 310,2013(3) ALLMR 33,2013(4) AIR BOM R 530.



1. Heard. Rule. The Respondents waive service. By consent, Rule is made returnable forthwith.

2. This Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 20.01.2006 of the Small Causes Court at Pune in Civil Suit No. 561/1999. This judgment and decree is confirmed by the lower Appellate Court on 30.11.2006 in Civil Appeal No. 187/2006. The Applicants before me are the original Defendants.

3. The Civil Suit was filed for possession of the suit premises which are more particularly described in paragraph 1 of the plaint. The Respondents (original Plaintiffs) are owners of the premises and after setting out as to how the Applicants were inducted in the premises, what is referred to is that there was a family arrangement after death of one Dinkarrao Shirole. The property is allotted to the share of the Respondents/Plaintiffs in terms of this arrangement. It is stated that the monthly rent of the suit premises is Rs. 3,000/-. There is Lease Deed dated 12.12.1967 executed by the predecessor in title of the parties. What has then been alleged is that though the Plaintiffs are of advanced age, they are physically capable and anxious to set up hotel business in the suit premises. One Pravin Dhairyasheel Shirole is son of the Plaintiff No. 2 and he was at the relevant time 40 years of age and he was desirous of setting up a hotel business. It is stated that the said Pravin does not have any occupation at present and for want of suitable premises he is unable to utilize the time at his disposal. It has been stated that the said Pravin does not have source of income and for that also he requires the suit premises so that the hotel business can be set up. It has been then stated that the original Defendants are rich and resourceful people and they have financial capacity and they can acquire any other premises for their business. However, if the possession is not delivered to the Respondents/Plaintiffs, they will suffer irreparable loss and more hardship than the Defendants.

4. There are allegations made against the Defendants of having made changes of permanent nature and all these have been set out. It has been stated that the Defendants have been running a vegetarian restaurant by name "Savera" and a non-vegetarian hotel and bar by name "Namaskar" on the ground floor of the suit premises. They are also running permit room and bar in the name and style "Hotel Deewar" in the basement of the suit premises. It is in these circumstances that the suit came to be filed.

5. Since what survives for consideration is the issue of bonafide requirement of the Respondents/Plaintiffs and comparative hardship, the stand in the Written Statement on this point needs to be noted.

6. In the Written Statement while denying all allegations with regard to reasonable and bonafide requirement, what has been stated is that the Plaintiffs have other premises of their own. The Plaintiffs are of advanced age and they cannot now seek possession of the premises and particularly for the said Pravin. The said Pravin has no experience whatsoever in hotel/restaurant business. All allegations in paragraph 8 of the plaint were thus denied and with regard to capacity of the Plaintiffs, it was stated that they are very rich and they have started the Net Cafe under the name and style "Net-Hut". On the point of comparative hardship, what has been stated is that the Plaintiffs have their own building at CTS No. 1202/15, Shivajinagar, Pune comprising of three floors and a ground floor exclusively being kept for parking. This building is adjoining the restaurant known as "Ambar" and the hotel known as "Surya". The entire first floor of the building was let out to an organization and that organization has left the premises four months back. The flat No. 2 has been let out to an Advocate and the remaining premises on the first floor have been let out to another person. The Plaintiffs are getting exorbitant rent from the occupants on the first floor. The son of Plaintiff No. 2, namely, Pravin has renovated the second floor and has started the internet café, namely, "Net-Hut". This shows financial capacity of the Plaintiffs. The remaining portion of the second floor has been let out to other several persons. The third floor is lying vacant. The Plaintiffs are not residing in the building at CTS No. 1202/15, but they are residing at CTS No. 1205/2/2, Shivajinagar in a bungalow known as "Deep Laxmi" at Shirole Road. They have other properties in and around Deccan Gymkhana area and they are financially sound. Therefore, irreparable loss and injury and hardship would be caused to the Applicants in the event the Decree for possession is passed.

7. The Trial Court has framed the necessary issues on these pleadings and the parties were permitted to lead evidence. Upon appreciating and appraising the oral and documentary evidence, the Trial Court held that the requirement of the Plaintiffs in relation to the suit premises is reasonable and bonafide and hardship would be caused to them if the Decree is refused.

8 Aggrieved by such a Decree of the Trial Court, the Applicants preferred the subject appeal which has been also dismissed leading to the filing of this Civil Revision Application.

9. Mr. Jahagirdar, learned Senior Counsel appearing for the Applicants, submitted that insofar as the allegation of bonafide need is concerned, the Plaintiffs have miserably failed to prove their requirement. It is neither reasonable nor bonafide. The requirement of Pravin has been pleaded and Pravin has not deposed. Somebody else has deposed for his need. The evidence in that behalf is lacking and Mr. Jahagirdar has relied upon the deposition of the Plaintiffs' witnesses and particularly the statements made during the course of their cross-examination. Mr. Jahagirdar submits that once there are enough materials to indicate that the landlords have other properties, they are rich and influential and there is really no need much less reasonable and bonafide, then, the Decree on the ground of reasonable and bonafide requirement could not have been passed.

10. Mr. Jahagirdar has then invited my attention to the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "Bombay Rent Act, 1947") and has submitted that the law requires that when the possession is sought to be recovered of any premises on the ground of reasonable and bonafide requirement by the landlord for occupation by himself or by any person for whose benefit the premises are held, then, what has been provided by law is that no decree for eviction can be passed on the ground specified in Section 13(1)(g) 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. Mr. Jahagirdar then invites my attention to the further part of this sub-section and states that the Court must satisfy itself that no hardship would be caused either to the tenant or the landlord by passing the Decree in respect of a part of the premises and the Court shall pass the decree in respect of such part only. Mr. Jahagirdar submits that there is a mandate on the Court which is required to be fulfilled. It is for the Court to decide as to whether a partial decree would satisfy the requirement and whether the decree in respect of a part of the premises would meet the need of the landlord. Mr. Jahagirdar submits that both the Courts have not adhered to the mandate of this sub section, therefore, their judgments are vulnerable and not sustainable in law. There is ex-facie error and the jurisdiction vested in them has not been exercised by the Courts below in accordance with law. In these circumstances the decrees be set aside even if they are concurrent.

11. Mr. Jahagirdar has relied upon certain judgments in support of the above contentions. I will make reference to the same hereinafter.

12. On the other hand, Mr. Sakhare, learned Senior Counsel appearing for the Respondents, firstly submitted that the revisional jurisdiction is not available for reappreciation and reappraisal of the evidence on record. There are concurrent findings of fact rendered by both the Courts below. There is no perversity established. Insofar as the comparative hardship is concerned, there is complete discussion on that point also. The Respondents have pointed out that the allegation that there are several properties available to them to satisfy their need, has no merit. The Courts below have found that despite such properties, the need of the landlord in respect of the suit property is reasonable and bonafide. Even on the point of comparative hardship, there is detailed discussion in both judgments.

13. Insofar as the argument with regard to passing of a partial decree is concerned, Mr. Sakhare submits that such plea is raised for the first time in the revisional jurisdiction. This Court should not permit the Applicants to raise such plea because there is no foundation laid for the same in the Trial Court or the lower Appellate Court. There is no ground taken in the memo of appeal on this point nor any such plea was raised during the course of oral arguments before the Court below. There is absolutely no evidence and now an attempt is made to stall the execution and enforcement of the decree by raising such pleas. Even otherwise, the mandate on the Court does not mean that an issue has to be specifically framed as contended by Mr. Jahagirdar. Non framing of an issue on the satisfaction about a partial decree is not fatal provided the materials with regard to the same are placed and duly considered. It is not as if the Court is obliged to render a finding on such issue although there is no plea raised. If there are no pleadings, then, there is no obligation to frame an issue. In any event, the law laid down by the Honourable Supreme Court in the case of Rehman Jeo Wangnoo v/s. Ram Chand reported in MANU/SC/0362/1977 : (1978) 3 SCC 539, was confined to the provisions in the Jammu and Kashmir Rent Control Legislation. Later on that judgment has been distinguished and its applicability is confined to the cases under the specific law. Therefore, there is no general rule laid down. For all these reasons, this Civil Revision Application be dismissed.

14. With the assistance of the learned Senior Counsel appearing for the parties, I have perused the judgments rendered by the Courts below. I have also perused the pleadings and the oral and documentary evidence whenever reference is made by the counsel.

15. As far as the plea of reasonable and bonafide requirement is concerned, what has been stated in the plaint is that the premises are commercial. Though the Plaintiffs are of advanced age, they are physically capable and enthusiastic to run a hotel business in the suit premises. The son of Plaintiff No. 2, namely, Pravin needs the suit premises for running a hotel business. He does not have any occupation at present and for want of suitable premises he is just wasting his time. He has the experience necessary for the hotel business and what has been stated is that he does not have regular source of income presently.

16. I have also noted denials in the Written Statement on this point. As far as the oral evidence is concerned, the witness examined on behalf of the Plaintiffs has deposed and consistent with the requirement pleaded. One Indrajeet Shirole (Respondent No. 1) filed his affidavit in lieu of examination in chief and referred to the plaint allegations. He has specifically stated in paragraphs 8 to 10 of his examination in chief that the said Pravin requires the premises because he does not have any occupation at present. Upon the witness being cross examined, what has been tried to be elicited is that the witness was unaware that the said Pravin was having any business of internet caf in Chandrashil Apartment. The questioning revolves around the other properties of the landlord. With regard to the age of the Plaintiff No. 2, it was answered that he is 72 years. He was in fabrication business. As far as Pravin's age and educational qualification is concerned, it is stated that he is Arts graduate and he has not done any business. The said Pravin does not have any business by name "Net-Hut". The cross-examination on the other point is thus not material, but what the witness has reiterated is that Pravin is having experience of hotel business as he is working in the hotel of uncle of the witness. The suggestion that there is no requirement of Pravin, is denied.

17. The Applicant No. 1 (Chetan Shetty) stepped into the witness box on behalf of the Applicants/Defendants and consistent with the stand taken in the Written Statement, he has deposed. What he has deposed is that the contents of paragraph 8 of the plaint are not true and not admitted. The original Plaintiff No. 1 (Chandrasen Shirole) is no more and he died on 09.01.2002. The original Plaintiff No. 2 (Dhairyasheel Shirole) is above 76 years of age. He was doing the business of structural engineering by name and style "Shilpa Structural Engineering" at Erandwana, Pune. It is then stated that due to old age, the Plaintiff No. 2 has closed the business and leading retired life. The Plaintiff No. 2 is not physically fit to do any business nor he intends to do so. He has huge rental income and sufficient income from his investments. Even if the Plaintiff No. 2's son (Pravin) desires to set up any business, there are several properties available. In paragraph 9 of the examination in chief, the properties have been referred to and then what is stated is that the business of Net Hut is being managed by Pravin himself. Therefore, this is not a case where the need is reasonable and bonafide and on the other hand, there is running hotel business and the Applicants will suffer greater hardship.

18. As far as the cross-examination of this witness is concerned, what has been elicited therefrom is that the witness is unaware whether Pravin has any premises for hotel business. He is unaware as to whether Pravin is having business or income source. He does not know whether the said Pravin is having experience of hotel business. He states that he is unaware that Pravin requires the premises for hotel business and then proceeds to state that Chandrasheel Apartment which is available to the landlord, is a residential building. The property at CTS No. 1202/2 is also stated to be a residential bungalow by name "Deep Laxmi". The witness says that he does not know whether the property bearing CTS No. 1202/19 admeasuring 63000 feet is declared as a slum. However, he admits that the property is occupied by the slum dwellers. Thereafter, he says that he has no idea as to whether the other properties bearing CTS Nos. 893/2 and 904 at Shivajinagar, Pune were in occupation of the servants of the India Society as lessees. But, the witness admits that Amar Builder has acquired these properties by an agreement with the servants of the India Society and for which the Shirole family has given consent. On the point of hardship, what he says is that it is not correct that the Defendants are having number of businesses. Then he denies that the Plaintiffs will suffer greater hardship. What he has then stated is that the Defendants have not searched alternate premises.

19. The Trial Court on the issue Nos. 1 and 2 has referred to this evidence and concluded that the requirement is both reasonable and bonafide. The Plaintiffs have proved that they and Pravin do not have any occupation at present. The said Pravin has required experience of hotel business, but he does not have any source of income. Thus, to earn livelihood for himself and his family he needs the premises for running the hotel business. The depositions of the witnesses have been extensively referred to in paragraphs 21 to 23 of the Trial Court's judgment. It is not as if the Trial Court has not noted that some of the Plaintiffs are very old and are of advanced age. However, once the requirement of the son of Plaintiff No. 2 could have been pleaded and has been pleaded and there is material in that behalf, then, the Trial Court held that this raises sufficient presumption that he requires the premises for the purpose of hotel business. The Plaintiffs' family may be a rich family and it may have number of properties, but the Court has referred to each of the properties, details of which were placed by the Applicants and in paragraph 23 of the judgment, the Trial Court has held that none of these properties could be said to be commercial or non residential and fit for commercial use. The argument that there were several properties available and which have been let out to various tenants and there could be certain places or flats for office or business purpose, has been referred to in paragraph 24 of the judgment, but the Trial Court has held that none of the premises could be said to be suitable for business which is proposed to be set up. Their locations and they being residential in nature, does not make them fit for hotel business. It may be that there is business of internet cafe in the flat in Chandrasen Apartment, nonetheless it is a flat in a residential building. Even that aspect has been referred to and what the learned Judge has held is that the hotel business could be set up by Pravin and it is not as if there is any further requirement of any experience which is to be pleaded and proved. Therefore, the Trial Court held that the Respondents/Plaintiffs have proved that they require possession of the suit premises bonafide and reasonably for the hotel business of their son Pravin. If the Defendants have been carrying on business from the said premises since 1976, that by itself does not mean that the Respondents/Plaintiffs cannot set up a plea of reasonable and bonafide requirement, is the conclusion arrived at by the Trial Court which could be found in paragraph 25 of its judgment.

20. It is not possible to agree with Mr. Jahagirdar that there was no pleading or evidence with regard to the issue of reasonable and bonafide requirement. The Courts below have found concurrently that there are adequate pleadings, there is proper elaboration thereof in the oral evidence and that nothing was elicited during the course of cross examination of the Plaintiffs' witnesses which could be fatal to their case. That the law does not require that the landlords must plead and prove that they are in the business which they propose to set up and that they have experience and necessary financial backing and resources. Once the requirement has been pleaded and if Pravin is said to be a part of the family of the landlord and intends to set up the hotel business in the commercial premises and other premises are not suitable for such business, then, the requirement cannot, but said to be reasonable and bonafide. I am, therefore, of the opinion that this is not a case where interference is permissible in revisional jurisdiction with the concurrent findings of fact. Once I agree with appreciation and appraisal of the oral and documentary evidence by the Courts below and their conclusions are consistent with the same, then, one cannot fault the Trial Court and the Appellate Court in passing a Decree on this ground in favour of the Respondents. In the context of a bonafide and reasonable requirement for starting a new business and without any experience, I cannot do anything better than to reproduce the following observations of the Honourable Supreme Court in the case of Ram Babu Agarwal v/s. Jai Kishan Das reported in MANU/SC/1719/2009 : AIR 2010 SC 721. In paragraph 7 the Honourable Supreme Court held as under:-

7. However, as regards the question of bona fide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bona fide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also.
21. Then what remains for consideration is the issue of hardship.

22. Section 13(2) of the Bombay Rent Act, 1947 has been relied upon and it reads as under:-

13. When landlord may recover possession.

(1) ....

(2) No decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) 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.

Whether the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.

Explanation:- For the purposes of clause (g) of subsection (1):-

(b) the expression "landlord" shall not include a rent farmer or rent collector or estate manager;
23. Thus, even if the Court is satisfied that the landlord is entitled to recover possession of the premises on the ground that they are required reasonably and bonafide by him for occupation by himself or by any person for whose benefit the premises are held, still the decree for eviction shall not be passed on the grounds specified in clause (g) of Section 13(1), 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. Thus, the first part of sub-section (2) of Section 13 requires the Court to be satisfied that having regard to all the circumstances which includes the question whether other reasonable accommodation is available for the tenant or the landlord, greater hardship will be caused by passing the decree. In the instant case, as far as this aspect is concerned, there is no quarrel or dispute that the Courts below have allowed the Applicants to place adequate and enough material to support their argument that there are other premises available to the Respondents. The Courts have found that other premises cannot be said to be reasonable for the business intended to be commenced by the landlords. Therefore, the finding has been rendered concurrently that greater hardship would be caused by refusing to pass the Decree in landlord's favour. To my mind, the finding in that behalf does not suffer from any perversity or error of law apparent on the face of record warranting interference in revisional jurisdiction. The jurisdiction has not been exercised illegally or with material irregularity. The finding in that behalf and particularly on the point of comparative hardship is thus not vitiated as urged by Mr. Jahagirdar.

24. The further part of sub-section (2) of Section 13 requires the Court to exercise its power to pass a Decree in respect of a part of the premises. However, that satisfaction is required to be recorded if the Court reaches a conclusion that no hardship would be caused either to the Tenant or to the Landlord by passing the Decree in respect of a part of the premises.

25. There is much substance in the contention of Mr. Sakhare that for this part to be attracted there is absolutely no material placed by the Applicants. They have not, during the course of their argument or prior thereto in the pleadings, ever raised a plea that the premises admeasure 3300 sq. ft. and therefore, can be divided so as to facilitate the said Pravin to set up a hotel business and equally permit the Respondents to continue with their existing commercial or business enterprises, namely, hotel. They have not during the depositions either questioned the witnesses of the Plaintiffs or on their own deposed that considering the requirement pleaded and that long standing business in the premises being set up by them and their goodwill and reputation, they will agree to a partial decree or decree in relation to a part of the premises. The Applicants throughout argued that no decree on the ground stated be passed and in respect of the entire premises. The Applicants urged that greater hardship will be caused to them in the event the decree as prayed is passed. Now, alternatively and in this Court readiness and willingness to surrender a part of the premises is shown. What one finds is that in this Revision Application the Applicants have pleaded that the learned Judge should have taken into account this aspect.

26. In paragraph 4 of the Revision Application, it is stated as under:-

4. The Applicants state that it is the contention of the Applicants that the so called need pleaded by the Respondents is completely imaginary, bogus and in fact, malafide. It is the further contention of the Applicants that the Respondents did not need the suit premises at all. It is the further contention of the Applicants that the suit ought to have been dismissed. In any case, it is the further contention of the Applicants that even if it is presumed for the sake of argument, without in any manner admitting, and whilst denying, that the Respondents had proved the alleged bonafide requirement of Pravin, it ought to have been held that no hardship whatsoever would be caused to the Respondents even if the suit is dismissed. However, even without prejudice to the above contention and strictly as an alternate contention, it is the submission of these Applicants that even if the Courts below were to come to a conclusion that the alleged need of the Respondents is proved; it was the bounden duty of the Courts below to consider at least whether hardship would be equalized by passing a Decree only in respect of part of the suit premises. The Applicants state that both the Courts below have not even framed such as issue though such an issue is required to be framed by virtue of the second part of Section 13(2) of the Bombay Rent Act. The Courts below have erred in complying with this obligation cast on them by the Statute by failing to frame issue of or applying judicial mind to the aspect as to whether the hardship could be mitigated by passing a decree only in respect of part of the suit premises. The Applicants are advancing this submission strictly without prejudice to their principal submission that the need as pleaded is malafide and the need in fact does not exist and that the Respondents have filed the suit solely with to evict the Applicants and thereafter let out the premises again for earning huge profits and/or huge rent. With a view to advance this submission which is a without prejudice submission, the Applicants crave leave to refer to and rely upon a map of the suit premises during the course of oral arguments as and when produced.
27. A bare perusal thereof would indicate that the argument and plea raised therein is without prejudice to the Applicants' contention that the need pleaded by the Respondents is completely imaginary, bogus and malafide. It is their contention that the Respondents do not need the suit premises at all. It is their case that the suit should have been dismissed. In any case it is their further contention that even it is presumed for the sake of argument that the Respondents proved the alleged bonafide requirement of the said Pravin, it ought to have been held that no hardship would be caused to the Respondents even if the suit is dismissed. Thereafter, without prejudice to all this contention, what has been alleged in the alternate is that even if the Courts below came to a conclusion that the need is proved, it was their bounden duty to consider at least, whether, the hardship would be equalized by passing a Decree in respect of a part of the premises. The Applicants state that both the Courts below have not even framed such an issue though such an issue is required to be framed by virtue of the second part of Section 13(2) of the Bombay Rent Act, 1947. The Courts below have not complied with this obligation cast upon them by the Statute. Thus, this is the argument to urge that the hardship could have been mitigated by passing a partial decree. To my mind, this conditional and alternate argument is really a last ditch and desperate attempt to avoid the legal consequences of a decree for possession of the suit premises. The plea does not project any genuine grievance at all. Therefore, the same does not deserve acceptance.

28. Firstly, this contention even if permitted to be raised, does not give rise to a pure question of law in this case. It is a mixed question. There being no foundation thereto laid for the same, it is difficult to accept the argument of Mr. Jahagirdar that assuming everything against the Applicants, still the obligation to frame this issue has to be discharged and that being not discharged, the impugned judgments are vitiated in law. Mr. Jahagirdar's argument overlooks the fact that the Courts must be satisfied that no hardship would be caused either to the landlord or to the tenant by passing a Decree in respect of a part of the suit premises. This satisfaction can be based only on the materials which are produced by both sides. In this case, if it is the Applicants' plea that such partial decree could have met the landlord's requirement and need pleaded, then, it was incumbent on the Applicants to urge before the Courts below that they must take into account this aspect. They placed absolutely no material in this behalf.

29. Even if one goes into this academic exercise as desired by Mr. Jahagirdar and that the law requires framing of issues irrespective of any pleadings or not and that the Division Bench judgment of this Court in the case of Kisanrao Madhavlal Bartakke v/s. Narayan Dhondi Shete reported in MANU/MH/0306/1978 : 1978 Mh.L.J. 859, which is heavily relied upon by Mr. Sakhare cannot be said to be a good law, still all this can be considered provided there are materials enabling the Court to arrive at a conclusion that a partial decree will not cause hardship to the landlord. At least, the initial burden and duty is on the Applicant to produce the relevant material.

30. Mr. Jahagirdar has relied upon a decision of the Honourable Supreme Court in the case of Rehman Jeo Wangnoo v/s. Ram Chand and others, reported in MANU/SC/0362/1977 : (1978) 3 SCC 539. There the argument was that Section 11(1)(h) of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 requires the Court to consider the plea as to whether a partial decree would serve the purpose. The Supreme Court held that the Court was obliged to arrive at a finding of fact even though there is no specific pleading on this point. The Supreme Court referred to the proviso and mandate flowing from that proviso. The Supreme Court, therefore, directed the first Appellate Court to go into this question as to whether reasonable requirement of the landlord is substantially satisfied by evicting the tenant in the part only as contemplated in the proviso. The Trial Court and the first Appellate Court have really not considered this question on merits. Indeed the evidence has not been taken on that point and hence, a remand.

31. This judgment of the Honourable Supreme Court has been referred to by a two Judges Bench in the case of Badrinarayan Chunilal Bhutada v/s. Govindram Ramgopal Mundada reported in MANU/SC/0022/2003 : AIR 2003 SC 2713. Mr. Jahagirdar would urge that the Supreme Court has approved its earlier view with regard to the mandate flowing from the said provision and that mandate is required to be fulfilled even if there is no pleading or no foundation. In that behalf what is required to be noted is that in the case of Badrinarayan Chunilal Bhutada (supra), a decree for eviction was passed, but the relief was denied based on the finding as to comparative hardship within the meaning of Section 13(2) of the Bombay Rent Act, 1947.

32. The facts have been noted in paragraph 2 of the judgment in Badrinarayan Chunilal Bhutada (supra) and what the Supreme Court noted is that the Appellate Court directed a Decree being passed in the residential premises of the tenanted premises, but denied eviction so far as non residential part, namely, ground floor. Feeling aggrieved by this judgment, both the landlord and the tenant have filed the Writ Petitions. Both Writ Petitions came to be dismissed. The tenant did not file any appeal to the Supreme Court insofar as the residential part and the decree in relation thereto. The landlord persisted and filed the Special Leave Petition in relation to non residential part. Therefore, the issue was confined as to whether the Decree should have been passed even in relation to this non residential portion. It is in that end, the Supreme Court was taken through the legal provisions and particularly one noted by me hereinabove.

33. The Supreme Court noted the findings of the Courts below in paragraphs 5 to 7 and in paragraph 8 holds thus:-

8. Sub-section (2) of Section 13 falls more appropriately within the domain of equitable or social justice. Section 13(2) obliges the Court, in spite of the finding as to reasonable and genuine requirement having been arrived at in favour of the landlord, to weigh in scales placing the hardship which would result to the landlord in case of denial of eviction in one balance pan and hardship likely to be suffered by the tenant in case of his being evicted in the other and then find out judiciously which way the balance tilts. An empty truism cannot be hardship. A failure of the landlord to make out a case for eviction under Section 13(l)(g) is not a hardship to landlord; so also on a case for eviction under Section 13(l)(g) having been made out the fact that the tenant will be liable to be evicted is not by itself hardship to tenant. A mere wish or desire of the landlord to acquire possession over the tenancy premises cannot be said to be bona fide and reasonable requirement. Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. For the purpose of Section 13(2) the degree of urgency or the intensity of felt-need assumes significance. It is a judicious process of finding out, as far as practicable, and then making a comparative measure of the two degrees, which is involved in arriving at a finding on comparative hardship.
34. A bare perusal of this paragraph would indicate that the Supreme Court terms sub-section (2) of Section 13 as falling within the domain of equitable and social justice. The Supreme Court then denotes in paragraph 9 of the judgment that the family, the business background of parties, the availability of accommodation to either parties in the township, the extent of direness or pressing nature of the need for eviction as against the direness of need or urge of the tenant to continue to occupy or cling to the tenancy premises, with reasons therefor, assume relevance. The Court may keep in view how the things would take shape in a reasonably foreseeable future in either event. The conduct of the parties, their mutual relationship may also be relevant. The fact that the tenant could have shifted to other premises or has missed an opportunity of availing of other premises is also relevant factor. These are taken to be illustrative factors. Then in paragraphs 10 to 12 of the judgment, the Supreme Court has observed as under:-

10 The provisions of the Act do not bar a partial eviction being ordered-rather contemplate a partial eviction specifically-which would of course depend on answer to the question-whether it would be enough to dislodge the tenant from only a part of the premises in his possession, and to what extent, to satisfy the proved requirement of the landlord associated with consideration of comparative hardship? If the Court is satisfied that the ends of justice would be met if the tenant is not called upon to vacate the entire tenancy premises but only a part of it, then the Court may order partial eviction so that the requirement of the landlord is satisfied and the tenant is also not deprived of his running business activity. Inasmuch as Section 13(2) entails the consequence of the landlord being denied decree of eviction, wholly or partly in spite of his having proved reasonable and bona fide requirement within the meaning of Section 13(1)(g), the burden of proving availability of grounds u/s. 13(2) of the Act is on the tenant. It is expected of the parties to raise necessary pleadings, and the Court to frame an issue based on the pleadings so as to enable parties to adduce evidence and bring on record such relevant material as would enable the Court forming an opinion on the issue as to comparative hardship and consistently with such finding whether a partial eviction could meet the ends of justice. Even if no issue has been framed, the Court may discharge its duty by taking into consideration such material as may be available on record.

11. The Act does not lay down any guidelines or relevant factors based whereon the question of comparative hardship is to be decided. A slight indication is given in the first para of Section 13(2) that regard must be had to (i) all the circumstances of the case, (ii) including the question whether other reasonable accommodation is available for the landlord or the tenant. The expression 'other reasonable accommodation' as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The Legislature has chosen it appropriate to leave the determination of issue on sound discretion of the Court.

12. In Mst. Bega Begum and Others v. Abdul Ahad Khan (dead) by Lrs. and others, MANU/SC/0313/1978 : (1979) 1 SCC 273 pari materia provision contained in J & K Rent Act came up for the consideration of this Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.

35. A perusal of these paragraphs would go to show that nowhere the Supreme Court held that there is no requirement to raise pleadings. What the Supreme Court held in paragraph 10 is that it is expected of the parties to raise necessary pleadings and the Court to frame necessary issues based on the pleadings so as to enable the parties to adduce evidence and bring on record such relevant material as would enable the Court forming an opinion on the issue of comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the Court may discharge its duty by taking into consideration such material as may be available on record. There are no guidelines laid down and what the Supreme Court refers to in paragraphs 11 and 12 is that assuming the judgment in the Mst. Bega Begum and others v/s. Abdul Ahad Khan (dead) by Lrs. and others, reported in MANU/SC/0313/1978 : (1979) 1 SCC 273, which contains a pari materia provision, is stated to be attracted even then the tenant cannot insist on getting alternate accommodation of a similar nature in the same locality. The relevant factors are comparative inconvenience, loss and troubles. Thus, the Honourable Supreme Court holds that ultimately the tenant will be ousted from the house, but that by itself cannot constitute a hardship and valid ground for refusing a Decree for eviction. In deciding the extent of hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on the Plaintiffs to prove that lesser disadvantages will be suffered by the Defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years, has overstayed and enjoyed the premises for a long period of time are also relevant factors.

36. Mr. Sakhare has invited my attention to the unreported judgment delivered by a learned Single Judge of this Court to urge that this judgment of the Single Judge holds that the judgments of the Honourable Supreme Court and the law laid down therein, would not enable the parties like the Applicants to raise the issue of partial eviction for the first time in a writ court. In that behalf, he has invited my attention to paragraph 10 of the judgment of the learned Single Judge in Civil Revision Application No. 65/2011 (M/s. Hindustan Petroleum Corporation Ltd. v/s. Sadashiv Vishwanath Natu and others) with Civil Revision Application No. 820/2011 (M.C. D'Mello v/s. Sadashiv Vishwanath Natu and others) decided on 23.10.2012.

37. To my mind, Mr. Sakhare's reliance on this judgment of the learned Single Judge is apposite and appropriate. It is not as if in the case like the present one, the Applicants for the first time in revisional jurisdiction can urge before this Court that the Trial Court has failed to abide by the statutory mandate flowing from sub-section (2) of Section 13. For such plea being raised in revisional jurisdiction and which jurisdiction is limited, there has to be some material before the Courts below. If the materials before the Courts below rest only on the availability of other accommodation and premises to the landlord for his requirement, either of residential or non residential nature, then, the parties like the Applicants cannot claim as of right that they be permitted to raise a plea of the present nature and for the first time in the revisional jurisdiction. Concededly, there is nothing in the judgments of the Courts below or in the oral and documentary evidence, which would enable me to hold that the Applicants did request the Trial Court or the lower Appellate Court to consider passing of a partial Decree or in relation to a part of the premises. Therefore, this is a plea raised for the first time and it being a mixed question, to my mind, it would not be proper to entertain it. Assuming that Mr. Jahagirdar is right in contending that there is a mandate on the Court flowing from the legal provision, yet that mandate is required to be fulfilled by the Courts below provided the parties place before it necessary materials. The Supreme Court judgment in Badrinarayan (supra) does not dispense with such requirement, but rather reaffirms the position that the parties cannot, in the absence of all such materials, urge such a plea for the first time in a higher court. Even if there is mandate which is required to be fulfilled as urged by Mr. Jahagirdar and that mandate is to record satisfaction that no hardship would be caused either to the tenant or to the landlord, but if the Court is satisfied that having regard to all the circumstances of the case including the question as to whether other reasonable accommodation is available for the landlord or the tenant, the greater hardship would be caused by passing the Decree than refusing it, and in relation to that mandate the Applicants have miserably failed to prove their case, then, they cannot be heard in the facts and circumstances of this case to urge that the statutory mandate is not discharged. That statutory mandate requires two things, the Court must be satisfied that no hardship would be caused to either of the parties. That hardship would not be caused by passing a Decree in respect of a part of the premises. If on the earlier point the Court is satisfied that the need of the landlord is proved and in relation to the entire premises and that need could not be satisfied because other accommodation available at his disposal is not reasonable, then, the parties like the Applicants cannot be heard to say that there is non fulfillment of the later statutory mandate, particularly when they fail to place any material in the first instance or the first available opportunity. If such pleas are raised in the highest court for the first time, they cannot be entertained without any material. That means there is no finality to proceedings. This is really the ratio of the above decisions. To my mind, the argument which has been raised before me is as a last resort to avoid consequences of the Decree. That hotel business has been settled by the Applicants in 1976 as claimed by them and has been continuing for decades from the suit premises, is no ground to hold that non fulfillment of the statutory mandate as urged by Mr. Jahagirdar vitiates the decree in this case. Once concurrent findings on the point of both reasonable and bonafide requirement and comparative hardship have been rightly rendered in favour of the Respondents, then, it is futile to urge that a partial decree should be passed. That would mean that this Court finds fault with the satisfaction that has been reached with regard to requirement of the premises by the Respondents. Once that satisfaction in this case has not been found to be vitiated by any error of jurisdiction and particularly the Courts below have not acted illegally nor they committed material irregularity, then, all the more the concurrent decrees cannot be set aside in revisional jurisdiction.

38. As a result of the above discussion, this Civil Revision Application fails. Rule is discharged. No order as to costs.

39. At this stage, Mr. Godbole, learned counsel appearing for the Applicants, submits that it is not as if the Applicants have not placed any material to support their case of partial decree in favour of the landlord and the remaining premises continuing with them. They have placed on record a map or plan of the premises involved in the suit. The plan and sketch of the premises and copy of which was duly forwarded to the Respondents would indicate as to how the need of Pravin can be satisfied by a decree in respect of a part or a portion of the premises.

40. To my mind, the materials that I have referred to and which are required to be taken note of with a view to arrive at a satisfaction as postulated by Section 13(2), cannot be just a map or a sketch handed over before the Revisional Court. That such plan or sketch for the property being divided to meet the requirement of both, has not been placed before the Trial Court or the lower Appellate Court. In the Revisional Court taking such plan into account would mean the Respondents/Plaintiffs are taken by surprise. They will have to meet the case of present nature for the first time in the Revisional Court. Mr. Sakhare justifiably complains that having found no merit in the revision application, now permitting the Applicants/Defendants to tender a map and call upon the Respondents to respond to it, would not be in the interest of justice.

41. Even if Mr. Jahagirdar and Mr. Godbole have produced such a map prior to commencement of argument and have relied upon it, but to my mind, the complaint of Mr. Sakhare cannot be brushed aside in the given facts and circumstances. In a suit filed in the year 1999, a decree was passed on 20.01.2006 which decree has been confirmed on 30.11.2006 and a revision application being filed in the year 2007, but being heard in 2013, would not permit me to start a fresh inning and on the point which was never raised by the Applicants earlier. In these circumstances all the more I do not wish to consider the map or sketch and take its contents into account.

42. At this stage, Mr. Godbole prays that the Decree passed by the Trial Court and affirmed by the lower Appellate Court should be stayed for a period of 10 weeks to enable to the Applicants to approach a higher court.

43. Mr. Pethe, learned counsel appearing for the Respondents, vehemently opposed this request on the grounds noted by me above and by urging that the Respondents have waited for more than a decade for the Decree being passed in their favour.

44. Bearing in mind that the Revision Application was pending since 2007 and there is an ad-interim stay, interest of justice would be served if that stay is continued for a period of six weeks, but on a condition that the Applicants file an undertaking in the usual terms in this Court within three weeks from today. Failure to file such an undertaking, would result in the Decree being executable and enforceable thereafter. The Civil Revision Application is dismissed. No costs.


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