1 25 cra.212.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 212 OF 2011 Reuben Evelyn Joan @ John Lobo. ... Applicant Versus Shakil Ahmed Adma Katote. ... Respondent ----- Mr. Jaoquim Reis, Senior Counel, a/w Mrs. Martina Arun Sakpal i/b M/s. Arun Sakpal and Company for the Applicant. Mr. R.A.Thorat i/b Mr. P.J.Thorat for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 12 th December, 2011. P.C. 1 The Respondent – landlord filed a suit for eviction under the provisions of the Maharashtra Rent Control Act, 1999 for possession of the suit premises which is a shop premises on the ground of bona-fide need by contending that there are thirty-one members in his family and that the family of the Respondent is occupying only an area of 460 square feet. The possession was sought also on the grounds of non-user and causing waste and damage to the suit premises. 2 25 cra.212.11 2 In the plaint, it is averred that the father of the Applicant was the original tenant in respect of the suit premises. After his demise in the year 1991, his widow (Applicant's mother) became statutory tenant and in fact, the rent receipt was issued by the Respondent in her name. The mother of the Applicant died on 20 th June, 1999. It is alleged in the plaint that the Applicant is the only legal heir of her parents and she has become a statutory tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which was in operation at the relevant time. It is alleged that the suit premises are not being used for a period of more than six months prior to the date of the institution of the suit. 3 The trial Court passed a decree on the ground of bona- fide need, non-user as well as on the ground of causing waste and damage. In the appeal preferred by the Applicant, the said decree has been confirmed only on two grounds namely bona-fide need and non- user. 3 25 cra.212.11 4 The first submission of the learned senior counsel appearing for the Applicant is that the Applicant is not the only legal heir of the original tenant, but admittedly, the Applicant has two brothers. He stated that the plaint proceeds on the erroneous footing that the Applicant is the only legal heir of her parents and therefore, she has become a statutory tenant. He invited attention of the Court to the averments made in the written statement for pointing out that the Applicant is not the sole heir of her parents and the Applicant has two brothers which fact has been suppressed from the Court while filing the plaint. He pointed out that though this contention was specifically raised in the written statement, during the pendency of the appeal for the first time, the Appellate Court framed an issue regarding non- joinder of necessary and proper parties. He submitted that without giving an opportunity of adducing evidence, the issue was decided for the first time by the Appellate Court. He urged that by deciding the said issue against the Applicant, a prejudice has been caused to her. He pointed out the findings recorded by the Appellate Court. He 4 25 cra.212.11 submitted that apart from the fact that there is no evidence on record to show that the Applicant was carrying on business alongwith her mother at the time of her death, it was never the case made out by the Respondent that either the Applicant had become the tenant being the only person carrying on the business with her mother at the time of death of her mother or that there was an agreement between the Applicant and her two brothers under which it was agreed that the Applicant should become tenant. He pointed out that notwithstanding the fact that no such case was made out by the Respondent, the Appellate Court has come to the conclusion that there was an agreement amongst all the heirs of the deceased – mother that the Applicant should became the tenant. He submitted that the said finding is perverse. He placed reliance on the decision of the Apex Court in the case of Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup and another [AIR 1990 Supreme Court 2053] and submitted that all the legal heirs of the deceased – tenant ought to have been made parties to the suit as all of them are the 5 25 cra.212.11 necessary and proper parties. He submitted that in view of the law laid down by the Apex Court, the suit is not maintainable on account of non-joinder of the brothers of the Applicant. 5 As regards the finding on the issue of bona-fide need is concerned, he submitted that admittedly, the Respondent has obtained possession of one premises admeasuring 600 square feet and the fact that he has not executed the decree, is no ground to seek possession against the Applicant of the suit premises on the ground of bona-fide need. He submitted that the need pleaded was for residential use. He submitted that the suit premises being the commercial premises, permission of the competent authority will be required for change of user and without obtaining such permission, the decree for possession could not have been passed inasmuch as there is a possibility that the permission may be denied. He submitted that the case of non-user could not have been accepted inasmuch as it was the specific case of the Applicant that she was prevented from carrying on business in the suit premises. 6 25 cra.212.11 6 I have given careful consideration to the submissions. The Courts below have found that there are thirty-one members in the family of the Respondent – landlord. As far as the premises in possession of the Respondent – landlord are concerned, the finding is that the entire family is residing in the Room Nos.49 and 45 in a chawl which are adjacent rooms. One tenement comprises of two rooms each admeasuring 10' x 9' and 10' x 8'. The finding of the Appellate Court is that the area in possession of the Respondent is only 460 square feet which is certainly insufficient to accommodate the family of thirty-one members of the Respondent – landlord. The Appellate Court has noted that a decree was passed in favour of the Respondent in respect of another premises admeasuring 600 square feet. However, the finding of fact of the Appellate Court is that though there are thirty-one members in the family of the Respondent - landlord, the Respondent – landlord is possessing an area of 460 square feet. Even assuming that another premises admeasuring 600 square feet has become available to the Respondent - landlord, it will not affect the 7 25 cra.212.11 bona-fide need in respect of the suit premises pleaded in the suit in any manner. Even on the issue of comparative hardship, there are concurrent findings recorded in favour of the Respondent – landlord. 7 Admittedly, under the provisions of the Maharashtra Rent Control Act, 1999, there is no prohibition against the landlord using a commercial premises for residential purposes. At highest, a permission for conversion of user may be necessary under the provisions of the Municipal Laws. As there is no prohibition in law against the landlord from using a commercial premises for residential purposes, no fault can be found with the decree passed on the ground of bona-fide need. 8 As far as the issue regarding non-joinder of the necessary parties is concerned, it is true that in the plaint that there is an averment that the Applicant is the only heir of her parents and she has become the statutory tenant in respect of the suit premises. In the written statement, a contention is raised that there are two other heirs namely the brothers of the Applicant. There is no specific plea in the 8 25 cra.212.11 written statement as to who has become the tenant after the demise of the mother in accordance with Section 5(11)(c) of the said Act of 1947. As far as the issue of non-joinder of the parties is concerned, it is not the case of the Applicant that there was no evidence on record of the trial Court to decide the said issue. Accordingly, the Appellate Court has decided the said issue. The Appellate Court could have certainly adopted the said course as per the Rule 24 of Order XLI of the said Code. The Appellate Court has noted an admitted position borne out from the evidence of the Applicant herself that her two brothers were residing in the Canada for last more than ten years and at the time of the death of her mother in the year 1999, both the brothers were in Canada. The Appellate Court has noted a statement made by the Applicant in her evidence that after the demise of her father, her mother was looking after the tailoring business in the suit premises and sometimes she used to assist her mother. The Appellate Court has relied upon a decision of this Court which holds that under Section 5(11)(c) of the said Act of 1947, only one person can become the 9 25 cra.212.11 tenant. This Court held that the agreement contemplated by the aforesaid provision between the legal representatives of the tenant that a particular legal representative should become tenant need not be in writing and the agreement can be inferred on the basis of the conduct of the parties. In the light of the law laid down by this Court, the Appellate Court noted the position that for a period of ten years and more, the brothers of the Applicant have settled abroad and though they must have knowledge about the pendency of the suit in respect of the suit premises, they have not applied for being made as parties and that is the reason why the Appellate Court has drawn an inference that only the Applicant must have been accepted as the tenant by her brothers. It is not possible to interfere with the said finding of fact recorded by the Appellate Court. 9 Perusal of the decision of the Apex Court in the case of Textile Association (India) Bombay Unit (supra) and in particular paragraph No.4 thereof shows that in the case before the Apex Court, there was a finding that the Respondent was as much a tenant as the 10 25 cra.212.11 mother and the other brother. That is the reason why the Apex Court held that the ex-parte decree for eviction passed against the mother and the brother without impleading him has to be set aside. The Apex Court observed that in view of the finding which was already recorded, the decree cannot be kept alive against two other brothers. Therefore, by setting aside the decree, an order of remand was passed. In the facts of the present case, the decision of the Apex Court will have no application. 10 It is not possible to find fault with the findings recorded by the Courts below on the issue of bona-fide need and hence, it is not necessary to consider the merits of other ground for eviction. 11 Hence, the civil revision application is dismissed with no order as to costs. 12 Ad-interim relief granted by this Court on 14 th March, 2011 shall continue to operate for a period of three months from today. [ A.S.OKA, J ]