High Court
Facts
{1} CRA No.100-2023IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO. 100 OF 2023Anandkumar S/o. Shrinathdas Gupta,Age : 72 years, Occ. : Nil,R/o. : Rajendra Prasad Road, New Jalna, Tq. and Dist. Jalna … APPLICANT (Ori. Defendant)VERSUSSatishkumar S/o. Mangilal Sethiya,Age : 51 years, Occ. : Business,R/o. : Nehru Road, New Jalna,Tq. and Dist. Jalna … RESPONDENT (Ori. Plaintiff)…Mr. Sushant V. Dixit – Advocate for ApplicantMr. A.S. Bajaj – Advocate for Respondent….CORAM : SANDIPKUMAR C. MORE, J.RESERVED ON : 5th April,2024PRONOUNCED ON : 12th June, 2024JUDGMENT :1.The present applicant who is original defendant in Regular CivilSuit No. 92 of 2014 has challenged the judgment and decree dated17.03.2023 passed by the learned Principal District Judge, Jalna (“theFirst Appellate Court” for short) in Regular Civil Appeal No. 157 of2018, whereby the eviction order against the present applicant hasbeen passed, by setting aside the judgment and decree passed by thelearned 3rd Joint Civil Judge, Junior Division, Jalna ( “the learned TrialCourt” for short).2.Brief facts of the present application is as under :Pooja Kale {2} CRA No.100-2023The applicant is the tenant in suit house bearing No. MunicipalPlate No. 1-20-10, CTS No. 966, admeasuring 113.7 Sq. Meter situatedat Rajendra Prasad Road, New Jalna, Tq. and Dist. Jalna. The presentrespondent is original plaintiff and landlord, who filed the aforesaidRegular Civil Suit No. 92 of 2014 for eviction of the applicant – tenanton the ground of default in-payment of rent as well as bona fide andreasonable requirement. According to the respondent – landlord, theapplicant – tenant had agreed to pay rent of the suit house of Rs. 550/-per month, but the applicant – tenant was not paying the rentregularly and, therefore, he was in arrears of rent from 01.09.2002 till30.09.2013 i.e. for the period of 49 months, amounting to Rs.26,950/-.Accordingly, the respondent – plaintiff issued legal notice dated14.09.2013 demanding the aforesaid arrears of rent. Though theapplicant – tenant on receipt of said notice paid the amount ofRs.26,950/-, but according to the respondent – landlord entire arrearsof rent where not paid and, therefore, the applicant – tenant becamewillful defaulter and liable to be evicted under Section 15 of theMaharashtra Rent Control Act, 1999. In addition, the respondent –landlord also claimed eviction of the applicant – tenant from the suitpremises on the ground of bona fide requirement of the same for hisown use and occupation. According to the respondent – landlord somedispute arose among the ladies in the family and, therefore, herequired the suit premises for his own use and occupation. Pooja Kale {3} CRA No.100-20233.On the contrary, the applicant – tenant resisted the suit by filingwritten statement at Exhibit – 12 and came with the case that, therespondent – plaintiff was not collecting the rent and when therespondent and his mother refused to accept the rent, he had sent therent amount by cheque issued in the name of mother of respondentbut it was refused. The applicant – tenant also contended that, hetried to sent the rent amount to the respondent – landlord from time totime through various modes, but the respondent – landlord did notaccept the same. In respect of requirement of the suit premises on theground of bona fide use, the tenant denied the said aspect andclaimed that the respondent – landlord owned and possessed severalother properties in Jalna city, which can be used to satisfy his bonafide needs. As such, he claimed dismissal of suit. The learned TrialCourt after conducting the trial, dismissed the suit of the respondent –landlord by giving negative finding on the aspect of willful default aswell as bona fide requirement. However, learned First Appellate Courtin the aforesaid appeal though kept the negative finding on the aspectof willful default as it is but evicted the applicant – tenant on theground of bona fide requirement of respondent – landlord in respect ofthe suit premises. Hence, this appeal.4.Learned Counsel for applicant – tenant vehemently argued that,the learned First Appellate Court though negatived the contention ofrespondent – landlord about the willful default on the part of thePooja Kale {4} CRA No.100-2023applicant – tenant in respect of payment, but wrongly observed thatthe respondent – landlord established his claim of possession of thesuit house on the ground of bona fide requirement. According to him,there is no whisper in pleading of respondent – landlord as to whatwas the nature of dispute between the ladies of his family. He pointedout that, even in the notice sent by the respondent – landlord nothingis mentioned about the aforesaid so called disputes between theladies. According to him, the learned First Appellate Court erred inevicting the applicant – tenant from the suit premises, when it hadcome on record that the respondent – landlord owns and possessed somany other properties. According to him, it was for the respondent –landlord to show that, how those other properties were not suitable forhis own use. As such, he prayed for setting aside the decree ofeviction against the applicant – tenant passed by the learned FirstAppellate Court. In support of his arguments, he also relied onfollowing judgments :(i)Bombay High Court bench at Bombay in the case of Vasant Mahadeo Gujar Vs. Baitulla Ismail Shaikh and Anr., reported in 2015(5) ABR 415(ii)This Court in the case of M/s. Vivek Trimbakrao Paturkar Vs. Sow. Sulochanabai w/o. Gangadharrao Wattamwar in Civil Revision Application No. 91 of 2021 decided on 04.03.2022(iii)Bombay High Court bench at Bombay in the case of Pooja Kale {5} CRA No.100-2023Tarachand Hassaram Shamdasani Vs. Durgashankar G. Shroff and Ors., reported in 2004(Supp.) Bom.C.R. 3335.On the contrary, learned Counsel for respondent – landlordsupported the judgment of the learned First Appellate Court andcontended that, though the applicant – tenant contended that theplaint is silent in respect of nature of ladies as alleged by therespondent – landlord, but it was not disputed by applicant – tenantduring the cross – examination of respondent – landlord. According tohim, the applicant – tenant is having his own property as described inparagraph No.4 of the plaint, which can be used by him. He furthersubmitted that, even if the respondent – landlord is having otherpremises but neither the tenant nor the Court can dictate the landlordas to how he should use his properties. He pointed out that, since theapplicant – tenant did not lead any evidence as to how there will begreater hardship to him, the aspect of comparative hardship needs tobe decided against him. As such, he prayed dismissal of the CivilRevision Application. He also placed reliance on the followingjudgments : (a)This Court in the case of Rameshwar Nanakram Prajapal Vs. Sundrabai Keru Ghadage in W.P. No. 250 of 1992 decided on 18.06.2012(b)Bombay High Court bench at Bombay in the case of Sharadabai Anandrao Durgule Vs. Ramchandra Pooja Kale {6} CRA No.100-2023Pol and Ors., in W.P. No. 5426 of 1991 decided on 03.12.2008(c) Bombay High Court bench at Bombay in the case of Sudha Sumant Barve Vs. Ranjana Ramesh Padhye in W.P. No. 5202 of 2002 decided on 10.05.2013(d)Hon’ble Supreme Court in the case of Prativa Devi (Smt.) Vs. T.V. Krishnan reported in (1996) 5 SCC 353(e)This Court in the case of Sunil Mulchand Jain Vs. Smt. Purnima Prakash Kulkarni in Civil Revision Application No. 168 of 2011 decided on 20.10.2011(f)Hon’ble Supreme Court in the case of Dhannalal Vs. Kalawatibai and Ors., reported in (2002) 6 SCC 16(g)Hon’ble Supreme Court in the case of India Umbrella Manufacturing Co. and Ors. Vs. Bhagabandei Agarwalla (Dead) Through L.Rs. Savitri Agarwalla (Smt) and Ors., reported in (2004) 3 SCC178(h)This Court in the case of Rafiq Ahmed Qureshi S/o. Bashir Ahmed Vs. Iqbal Khan S/o. Hashmat AliKhan and Ors., in W.P. No. 4722 of 2011 decided on20.09.2011(i)Hon’ble Supreme Court in the case of Rajinder Pershad (Dead) by L.Rs. Vs. Darshan Devi (Smt) reported in (2001) 7 SCC 69Pooja Kale {7} CRA No.100-20236.Heard rival submissions and also perused entire material onrecord.7.It is significant to note that, the respondent – landlord hadclaimed eviction of applicant – tenant on the ground of willful defaultand bona fide requirement, but both the Courts below have givennegative finding on the aspect of willful default. As such, there is noneed to discuss the evidence in respect of such aspect. The learnedFirst Appellate Court has granted the eviction of applicant – tenantonly on the ground of bona fide requirement. On going through thejudgment of the learned Trial Court, it is evident that the learned TrialCourt has refused to grant eviction decree against the applicant –tenant on the aspect of bona fide requirement mainly by observingthat, the respondent – landlord could not establish as to what was thenature of alleged dispute among the ladies in his family. It is alsoobserved that, even there were some quarrel as alleged by therespondent – landlord but such quarrels are common in almost allIndian families. Further, it appears that the learned Trial Court refusedthe decree of eviction by observing that, the respondent – landlord ishaving so many other properties as mentioned in paragraph No.50 ofthe judgment, which are sufficient to satisfy his alleged bona fide needof accommodation. Further, it is also observed by the learned TrialCourt that, though the respondent – landlord contended that theapplicant – tenant is having other properties, but failed to adducePooja Kale {8} CRA No.100-2023satisfactory documentary evidence to that effect supported by thepleading. However, learned First Appellate Court mainly observed that,the tenant or the Court cannot dictate as to how the landlord shoulduse his premises, as he is the best judge of his bona fide need.8.Admittedly, it is not mentioned by the respondent – landlord inhis plaint as to what was the nature of dispute between the ladies ofhis family which obviously, between his mother and his wife. Further,the learned Counsel for applicant – tenant also pointed out that, therespondent – landlord in his cross–examination has admitted about theexistence of his so many other properties, which were suppressed byhim in the pleading. He relied upon the decision in Vasant MahadeoGujar (supra) wherein it is observed that, when the plaintiffsuppressed the facts of having several properties owned by him thenit cannot be held that, his bona fide requirement is reasonable. It isfurther observed that, the landlord is duty bound to make disclosure ofhis another properties in his pleadings and unless such disclosure ismade, no decree of eviction under Section 16 (1) (g) can be granted.Similar observation is made by this Court in judgment in the case ofM/s. Vivek Trimbakrao Paturkar (supra) about the non–disclosureof other properties and thereby refusing passed the eviction decree onthe ground of bona fide requirement of the landlord. Further, thelearned Counsel also relied upon the judgment in case of TarachandHassaram Shamdasani (supra) wherein it is observed as follows :Pooja Kale
Legal Reasoning
{9} CRA No.100-20238. To my mind, however, it is obligatory for the landlord todisclose in the pleadings and in his evidence the fact that heowns other premises which were capable of being utilizedfor the requirement pressed into service in the suit filedagainst the tenant and to further disclose and explain thatinspite of those acquisition and ownership of otherpremises, the requirement which is pressed into serviceagainst the tenant would still survive. It is only then thelandlord would be entitled to invoke this ground and wouldsucceed in establishing his need to be bona fide andreasonable.Thus, from the observations of this Court in the aforesaid casesit is evident that, if the landlord has suppressed the fact of having somany other properties by non–disclosure in the pleadings, no evictiondecree can be passed against him. 9.However, learned Counsel for respondent – landlord vehementlyargued that, even if the disclosure of other properties are not madestill the bona fide requirement of the landlord can be established inthe light of observations of this Court as well as Hon’ble Apex Court.According to him, this Court in the case of Rameshwar NanakramPrajapal (supra) has referred the observation of Hon’ble Apex Courtin the case of Prativa Devi (Smt) (supra) as follows :It is well settled law that the landlord is the best Judge of hisresidential requirement and has a complete freedom in thematter. It is no concern of the Courts to indicate to thelandlord how and in what manner he should live or toPooja Kale {10} CRA No.100-2023prescribe for him a residential standard of their own. TheHigh Court was not justified in giving such a gratuitousadvice to her which was uncalled for. There is no law whichdeprives the landlord of the beneficial enjoyment of hisproperty.10.Further, this Court in the case of Sharadabai AnandraoDurgule (supra) has made following observation :As noted in Motor Cycle House and Metro CottageIndustries, Pune (supra) that once the landlord has placedon the record the material evidence to support his bona fideand reasonable need and as it is proved, the question ofhardship normally tilts in favour of the landlord. In thepresent case, it is in favour of the landlord.In the case of Sudha Sumant Barve (supra) this Court hasmade following observation :32.By now it is settled principle of law that neither thetenant nor the Court can dictate the landlord as to what isbona fide and reasonable need. It is equally settled thatlandlord is the best Judge of his requirement.Reliance in this respect could be placed on the judgment of theApex Court in the case of Meenal E. Kshrisagar v. Traders andAgencies, 1997 (1) Mh.L.J. (S.C.) 121. It will be relevant to refer to thefollowing observations of the Apex Court :“As pointed out by this Court it is for the landlord to decidehow and in what manner he should live and that he is thebest judge of his residential requirement. If the landlordPooja Kale {11} CRA No.100-2023desires to beneficially enjoy his own property and when theother property occupied by him as a tenant or on any otherbasis is either insecure or inconvenient it is not for theCourts to dictate to him to continue to occupy suchpremises.”In the case of Prativa Devi (supra) Hon’ble Apex Court hasmade following observation :The reason given by the High Court that the appellant is anold lady aged about 70 years and has no one to look afterand therefore she should continue to live with ShriChatterjee, was hardly a ground sufficient for interference.The landlord is the best judge of his residential requirement.He has a complete freedom in the matter. It is no concern ofthe courts to dictate to the landlord how, and in whatmanner, he should live or to prescribe for him a residentialstandard of their own.Further, in the case of Mulchand Jain (supra), this Court hasmade following observation :Yet, in another decision in the case of Yogesh DattaramPathak Vs. Shrikrishna Shriram Joshi [2003 Bom.R.C. 433],this Court has taken a view that if the tenant has notpleaded or led evidence showing that it is not possible tosecure similar accommodation, in that case, question ofcomparative hardship has to be decided against the tenant.11.On going through the aforesaid observations it can be seen that,the requirement of suit premises by the landlord for his own bona fidePooja Kale {12} CRA No.100-2023use can be established even if the landlord is having other properties.It is now settled that, neither the tenant nor the Court can dictate asto what is bona fide need since the landlord is the best judge of hisrequirement. Further, it is evident that the issue of comparativehardship can be decided against the tenant, if the tenant had notpleaded or led the evidence showing that it is not possible for him tosecure similar accommodation. In the instant case, it is not the case ofapplicant – tenant that, it is impossible for him to secure similaraccommodation in Jalna city, like the suit premises. Moreover, he hasadmitted that, he owns another premises in Jalna city which accordingto him is given on rent to some other person. That apart, but there isno evidence on record to show that, the applicant – tenant had in factmade any attempt to search any another suitable accommodation inJalna city. In the light of judgments relied by the respondent – landlordas mentioned above, the applicant – tenant cannot retained thepossession of the suit house by merely pointing out the fact that, therespondent – landlord is having other premises. Even otherwise also ithas come on record that, other premises of the respondent – landlordare commercial in nature and not suitable for residential use.Therefore, finding of the learned First Appellate Court in favour ofrespondent – landlord that the suit house is required for his own use,appears proper and reasonable.12.Learned Counsel for applicant – tenant also tried to argue thatPooja Kale {13} CRA No.100-2023the suit premises owned by respondent – landlord as well as hismother, but his mother is not party to the litigation and, therefore, itcannot be ascertained that mother of landlord is also willing to evictthe applicant – tenant. On this aspect the learned Counsel forrespondent – landlord heavily relied on observation of the Hon’bleApex Court in the case of Dhannalal (supra) wherein following :16. It is well settled by at least three decision of this Court,namely, Sri Ram Pasricha v. Jagannath [(1977) 2 SCC 814]and Pal Singh v. Sunder Singh [(1989) 1 SCC 444] that oneof the co-owners can alone and in his own right file a suit forejectment of the tenant and it is no defence open to thetenant to question the maintainability of the suit on theground that the other co-owners were not joined as partiesto the suit.13.Further, in the case of India Umbrella ManufacturingCompany (supra) the Hon’ble Apex Court has made followingobservations :One co-owner filing a suit for eviction against the tenantdoes so on his own behalf in his own right and as an agentof the other co-owners. The consent of other co-owners isassumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suitwas filed in spite of their disagreement.On going through the aforesaid observations, it can be seen thatone of the co-owners can file suit for ejectment of the tenant in hisown right and the tenant is prohibited to question of maintainability ofPooja Kale {14} CRA No.100-2023suit on the ground of non–joinder of party. Further, it can be seen that,the consent of such co-owners as assumed to be taken unless it isshown by the tenant that the other co-owners are also agreeable toeject the tenant and that the suit was filed in spite of theirdisagreement. In the instant case, the applicant – tenant did not bringany evidence on record to show that, the mother of respondent –landlord had in fact in disagreement to file such suit of evictionagainst him. Therefore, I find no force in such submission of learnedCounsel for applicant – tenant that, the suit is bad for non–joinder ofthe parties.14.Considering all these aspects and in the light of observations ofthis Court as well as Hon’ble Apex Court in the judgments relied uponby the respondent – landlord, the judgment and decree passed by thelearned First Appellate Court in Regular Civil Appeal No. 157 of 2018appears proper. Therefore, the present Civil Revision Application filedby the present applicant – tenant is dismissed.15.The Civil Revision Application is disposed of accordingly.[ SANDIPKUMAR C. MORE ]JUDGE16.After pronouncement of the judgment, learned Counsel forapplicant – tenant submits that, the applicant – tenant wants tochallenge the judgment passed by this Court before the superiorPooja Kale {15} CRA No.100-2023authority. The learned Counsel for respondent – landlord stronglyopposed the request, since the matter is decided on merit. However,interim relief in favour of the applicant – tenant was in force during thependency of this application. In view of the same, it stands continuedtill further period of four weeks only.[ SANDIPKUMAR C. MORE ]JUDGEPooja Kale