CIVIL APPEAL 316 of 1991 on 2 May 1991

JUDGMENT:

1. Rule. Rule is made returnable forthwith, heard finally with the consent of parties.

2. Under the present civil revision application, the applicant-original defendant / tenant purports to take exception to the judgment and decree dated 2nd May, 1991 passed by the learned Joint Civil Judge, Junior Division, Ahmednagar in Regular Civil Suit No.675 of 1984 and to the judgment and order dated 24th June, 2011 passed by learned Principal District Judge, Ahmednagar in Regular Civil Appeal No.316 of 1991. The Respondents are original plaintiffs whereas, as referred to herein above, the applicants' predecessors are defendants in said suit. The parties are hereinafter referred to by their status in the suit.

3. The suit was instituted by deceased Plaintiff No.1 and his brother deceased Plaintiff No.2 for eviction of defendant from suit property bearing Municipal No.5780-A upon C.T.S. No.3578-B as described in the plaint.

4. The defendant entered the suit premises as tenant on monthly rent payable on first day of calendar month at the rate of Rs.40/- per month and additionally, municipal taxes and education cess at the rate of Rs.10/- per month. The defendant defaulted payment of rent for more than six months and had fallen in arrears by end of July, 1984.

5. Plaintiff No.1 retired. His son was taking a course in Polytechnic and had passed I.T.I. vocational course. As also, son of Plaintiff No.2 wanted to be stable and to stay at one place and to help and support the intended business of Plaintiff No.1 and his, son, who wished to start business in hardware and workshop.

6. The defendant had acquired alternate accommodation and the suit premises had been in dilapidated condition.

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7. The suit, referred to herein above, came to be instituted by ,the plaintiffs in 1984, seeking eviction of defendant upon aforesaid grounds viz. default, bonafide need, acquisition of alternate accommodation by defendant and dilapidated condition of the suit premises.

8. The defendant had resisted the claims of the plaintiffs and denied subsistence of the grounds referred to above, seeking his eviction.

9. Upon pleadings of parties, issues with regard to arrears of rent, bonafide and reasonable requirement of plaintiffs and their family members, condition of premises being dilapidated, and making permanent construction in the suit premises, by the defendant without consent of plaintiffs, suffering of greater ,hardship and about validity of notice terminating the tenancy, were framed. The trial court answered in negative the issue in respect of default and the issue regarding carrying permanent construction by the defendant and answered in the affirmative the issues about the suit premises being reasonably and bonafide required by the plaintiffs and their family members and that the greater hardship would be caused to the plaintiffs and held the notice to be valid.

10. The defendant had preferred Miscellaneous Civil Application No.177 of 1984 seeking fixation of standard rent. The point with regard to that had been framed and the court found that the standard rent of Rs.40/- per month is payable.

11. It would not be out of place to refer to that against the order of fixation of standard rent, the defendant had preferred a revision application before the District court, which came to be allowed fixing the standard rent at the rate of Rs.16/- per month which order was not challenged by the plaintiffs.

12. Eventually, it appears that the position was conceded to that no issue arises in respect of standard rent and default and as such the grounds of eviction of tenant were narrowed down to bonafide requirement of plaintiffs, as to whom greater hardship would be caused, the dilapidated condition of the premises and permanent construction by tenant without consent of the plaintiffs.

13. On appreciation of evidence, the courts found the ground of bonafide requirement proved in favour of plaintiffs as well as found that greater hardship would be caused to plaintiffs. The courts, however, held that the plaintiffs could not prove the condition of suit premises was dilapidated or for that matter, there was any permanent construction by the defendant without taking consent of the plaintiffs / landlords.

14. The defendant objects to the judgments and decrees of both the courts on the ground of bonafide requirement, contending that bonafide requirement of plaintiffs cannot be said to have been proved, the requirement of plaintiffs is not at all bonafide as they are in possession of other premises and that pleadings of the plaintiffs with regard to bonafide requirement are vague.

15. It is contended that, taking into account Civil Suit No.385 of 1986 for partition, wherein plaintiffs No.1 and 2 were parties, was pending, it could not have been considered that the requirement of plaintiffs was bonafide. Apart from that, according to defendant, plaintiff No.1 in his evidence has admitted that the property at Burdgaon was sold by plaintiff No.2 and plaintiffs are in possession of property at Hatampura which is nearer to suit premises. According to the defendant, Abdul Rafique had no experience about business and he had been working in government office, wherein he has also got promotion. So is the case of Salim Abdul Hamid who intended to start workshop, but he does not have any experience of running workshop and as such plaintiffs' need cannot be said to be bonafide. It is submitted that the suit premises have been in possession of the defendant from a long time and he has gained goodwill over the same. According to defendant, the point of greater hardship has not been considered and it ought to have been taken into consideration that the defendant would suffer loss and contended that there are no other premises in his possession. The property situated at khistgalli are residential premises and cannot be said to be suitable for business. Only desire of the landlord is not sufficient for eviction on the ground of bonafide requirement. It is submitted that lower court has not recorded reasons about greater hardship and as such, the decision on the issue is not proper.

16. During pendency of the civil revision application, the defendant has filed civil application bearing No. 8710 of 2013 seeking amendment to the written statement, contending that during pendency of proceedings requirement of landlords-plaintiffs had come to an end as son of plaintiff No.1 Salim Hamid joined government service in R.T.O. office and since son of plaintiff No.2 Rafiq Abdul Masjid is working as quasi judicial officer at Pune, the bonafide requirement as contended by plaintiffs does not subsist and does not survive and further wanted to refer to that the plaintiffs have settled their dispute of partition whereunder sisters of plaintiffs No.1 and 2 have relinquished their rights in the suit property as well as other properties and as such all the properties vest in their sons Salim and Rafique, referring to a compromise decree of appellate court, and urged to consider that the plaintiffs are in possession of various properties and therefore need of the landlord has been extinguished and with this, it cannot be said that the plaintiffs require the suit premises bonafide and reasonably.

17. The civil application has been stiffly resisted by the plaintiffs pointing out that the dispute involved between the parties in the proceedings of partition had no concern with the suit premises. The requirement of plaintiffs of the suit premises exists for the purpose of starting business. The contention with regard to possession of number of properties by plaintiffs is incorrect. Their said contention could not be established before the trial court as also first appellate court and there is no basis for such

statements. It is further pointed out that during pendency of the litigation, Salim had joined government service in 1999. The litigation for eviction against the defendant is of 1984. The suit had been decreed in 1991. Appeal had been preferred against the same by defendant and was pending till 2011. During pendency of litigation the defendant was aware that plaintiff No.1's son had joined service in 1999 and Rafique, plaintiff No.2's son, was already in service from the inception and wanted to join plaintiff No.1 and his son for better earning to maintain their growing family. Apart from that, the nature of duty required to be performed by Rafique did not suit his nature and fitness. Moreover, Rafique is now retired. The amendment sought are not only irrelevant but also have been intended for further procrastinate the pending litigation since 1984.

18. The applicant relies on citation reported in AIR 2002 SC 665 (Om Prakash Gupta V/s Ranbir B. Goyal) in support of his contention that the landlord's need under the subsequent event stands extinguished and as such to take into account the subsequent events referred to herein above. The citation would hardly be of any assistance to the applicant for, it has been rendered on altogether different set of facts whereunder as well, the subsequent event about cancellation of allotment of premises to the landlord of the tenant by the authority concerned was not considered to be a relevant subsequent event and thus the head note "B" of the citation on which reliance is sought to be placed, is wholly inapplicable to the facts for the present matter. The deaths of both the plaintiffs or even subsequent employment during pendency, of plaintiff No.1's son, do not eclipse bonafide need of the plaintiffs.

19. The other citation relied on by the applicant viz. 2004 (4) Mh.L.J. 382 (Chanchalben Wd/o Dharshi Shah & others V/s Municipal Corporation of Greater Mumbai and another) is in support of civil application for amendment, wherein the landlord had sought impleadment of additional grounds for eviction arising under the subsequent events at belated stage which, according to the court, do not change the nature of suit. The facts of that matter and in the present matter are different and the observations thereunder have been made in the context of the facts of that case which are hardly of any relevance and as such cannot be of any assistance to the defendant to carry his case further.

20. The counsel for the Respondent/ landlord has placed reliance on various authorities in order to support rejection of the civil application viz. (2001) 2 SCC 604 (Gaya Prasad V/s Pradeep Srivastava) in which it is observed that landlord should not be penalised for the events which occurred under the tardy progress of litigation and that crucial date for deciding bonafide requirement of landlord is the date of application for eviction and as such subsequent developments occurring, cannot be made the basis for denying the landlord relief when the litigation reaches the final stages. The court ""made reference to the maxim Actus curiae neminem gravabit.

Arguments

21. The other citation relied on is "AIR 2004 SC 3484 (Shakuntala Bai and others V/s Narayan Das and others) wherein it is held that on the death of the landlord the bonafide requirement cannot be said to come to an end. The sons of landlord who attained majority during pendency of appeal are entitled to defend the estate and the bonafide need has to be examined as on the date of institution of the suit. The subsequent events are not relevant.

22. In addition to aforesaid, a case decided by Honourable Single Judge of this Court, reported in 2008 (Supp.) Bom.C.R. 811 (Parashram Tuljaram Belhekar V/s Tejmal @ Kankamal Mulchand Jain and others) has been relied on. One more citation reported in AIR 2008 (9) SC 3095 (Deep Chandra Juneja V/s Smt. Lajwanti Kathuria (Dead) through L.Rs.) is also relied on, referring to that, concurrent findings of two authorities in respect of bonafide requirement in the face of tenant having separate accommodation in the city could not be disturbed and when there is no infirmity in the decisions rendered, High Court was right in not interfering with the decisions of the authorities. The other authority relied on is of Supreme Court reported in 2009 (9) SCC 678 (N. Eswari, W/o Adinarayana V/s K. Swarajya Lakshmi, W/o Late K.V.L.N.A. Sastry), for the purpose of, when the findings of fact arrived at by the courts below are not perverse or arbitrary in such a case High Court would not be justified in interfering with said concurrent findings. Learned counsel for the Plaintiffs relied on AIR 2010 SC 330 (Ashok Kumar V/s Ved Prakash and others) in order to support his contention that the deaths of plaintiffs No.1 and 2 cannot be said to have caused abatement of the purpose for which eviction has been sought, taking into account that sons of the plaintiffs needed the premises on the date of the suit along with the plaintiffs, as also the plaintiffs, and the need continues.

23. From the aforesaid and the evidence on record, as has been appreciated by the courts below, it cannot be lost sight of that after over almost 16 years, plaintiff No.1's son had joined government service since the suit premises were not vacated for the intended business of the plaintiffs. It appears that he was required to join the government service due to the pendency of litigation. Having regard to the position, the need of the premises by landlord on the date of suit would be a relevant factor to be considered. Apart from the son, plaintiff No.1 also required the suit premises for providing source of income in addition to his terminal benefits on account of his service and also to that plaintiff No.2's son who was already in service while this litigation had commenced, also required the suit premises to support the business of plaintiffs and that he is no longer in service. It would thus be apparent that it cannot be said that the need of the landlords has got absolutely eclipsed. Additionally, taking into account that plaintiff No.1's son Salim is in service since 1999 and no effort has been made by the defendant to bring said fact on record till the revision was filed, along with that need of the landlords in the present case as on the date of the suit would be a relevant factor to be considered and further

to that even in the partition suit, the ownership of plaintiffs' to the suit property has not been disturbed, civil application seeking amendment obviously would be untenable.

24. The trial Court as well as the appellate court, on the basis of facts, have found that the evidence establishes that the defendant runs several businesses. He runs business under the name and title Ganpatdas Magandas, Nicko Enterprises, Rahul Electricals and Gayatri Traders. The courts have found, in the cross examination defendant has admitted that he has Shop Act Licence and has also admitted the photographs of the businesses which were at Exhibits-199, 201, 202 and 213. He has accepted that Gayatri Traders is his shop and is a proprietary concern. He admitted the position that he has been doing business jointly with his sons and that their ration cards are not separate. It has emerged that he could not establish, he was giving salary to his sons and he has admitted that he is not doing any business at present. In addition to this, he has admitted that he is in possession of his own building wherein underground floor is used by him for storing business material, which was earlier given on rent. He has further admitted that there are 2 or 3 rooms on ground floor out of which, 2 rooms are being used to run and conduct several businesses and further has admitted that he had not referred to these businesses in his written statement and that he has house in Khistgalli which is main business area. The courts, on evidence, found that the fact is proved, the shops are quite near to the suit premises and various businesses are run in the surrounding area owned by defendant. The courts have found that the defendant is doing number of businesses under different names in his own building and that underground area in his building was given on hire and that was now lying vacant and further that the defendant is residing in the market area and alternate accommodation is available. Apart from above, the defendant failed to establish the availability of suitable alternate accommodation for intended business of plaintiffs.

25. The Courts have found that there is sufficient evidence adduced by the plaintiffs in support of their need to be bonafide and reasonable and have referred to the evidence given by the witnesses.

26. The courts have further found that it is the plaintiffs who would suffer greater hardship in case the decree is not passed in their favour.

27. Taking into account the evidence as has been appreciated by the courts below, it cannot be said that the appreciation is perverse or arbitrary. The appreciation by the courts below appears to be proper and reasoned one. In such a case, it would not be appropriate for this Court to interfere with the findings of fact recorded by the courts below. It is not a case wherein revisional powers are required to be exercised to overturn the decisions of the courts below.

28. The Revision Application as such fails and is dismissed. Rule is discharged.

29. Civil Application no. 8710 of 2013 for amendment stands rejected.

[SUNIL P. DESHMUKH, J.]

Dated:09/12/2013.ans/CRA-31.13