1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4426 OF 1992 1. Bhalchandra Krishnaji Rajurikar (since deceased by his heirs & L.Rs.) 1(a) Smt.Sheela Bhalchandra Rajurikar 1(b) Subhash Bhalchandra Rajurikar 1(c)Sunil Bhalchandra Rajurikar 1(d) Sudesh Bhalchandra Rajurikar 2 M/s.B.K.Rajurikar & Sons ..Petitioners vs. 1 Shrikrishna Sitaram Salgaonkar 2 The District Judge ...Respondents Mr.Mandar Limaye for the petitioners Mr.P.R.Arjunwadkar for respondent no.1 CORAM :A.S.OKA,J. DATE : SEPTEMBER 22, 2009 JUDGMENT : 1 The submissions of the learned counsel for the parties were heard. The petitioners are the original defendants in a suit filed by the first respondent- plaintiff. The original first petitioner is the tenant of the first respondent in respect of the shop premises (hereinafter referred to as the suit premises) on the ground floor of the building in dispute. The first respondent and his brother Dattatraya filed a suit for eviction against the petitioner. The ground was of arrears of rent and bonafide requirement. In the said suit, bonafide requirement of the first respondent s 2 brother Dattatraya was pleaded. The said suit for possession was dismissed by a Judgment and Decree dated 5th April 1975. As far as issue of bonafide requirement is concerned, the same was answered against the plaintiffs on the ground that the first plaintiff Dattatraya was not a landlord of the suit premises. Thereafter, the first respondent filed another suit in the year 1980 against the present petitioners. The grounds of eviction pleaded therein were bonafide requirement and illegal subletting by the first petitioner in favour of the second petitioner. In the said suit, the first respondent-landlord came out with a case that the first respondent and his elder brother Dattatraya were residing together and his brother Dattatraya had knowledge and experience of watch repairing business. It is stated that the residential premises in which the first respondent s brother was carrying on business was not suitable for the said business and no other suitable premises were available. The first respondent s brother was carrying on business in his other residential premises. It is stated that the first respondent s brother was unable to earn sufficient income from the business. It is alleged that the children of the first respondent s brother were school going and they were not having sufficient accommodation for the purpose of their studies. It is stated that the first respondent s brother was forced to carry on watch 3 repairing business by using a part of his residential premises. In view of lack of availability of sufficient accommodation, the first respondent was required to postpone his decision of getting married. The second allegation made in the suit is that the first petitioner has unauthorisedly sublet the suit premises to the second petitioner. It was alleged that the first petitioner and his sons have started their own shop under the name and style of M/s. Sonal Watch and Glass House. 2 The suit was contested by the petitioners by filing a written statement. The petitioners filed a joint written statement. The petitioners pointed out that the first petitioner was not concerned with the business of Sonal Watch and Glass House and the said shop was an independent business of the sons of the first petitioner. However, it was accepted that the said shop was at a distance of 300 feet from the suit premises. The petitioners denied the ground of bonafide requirement and relied upon the decree of dismissal passed in the earlier suit filed in the year 1972. It is alleged in the written statement that the first petitioner is carrying on business in the suit premises in partnership with his son Subhash. It is contended that the first petitioner was the main partner of the second petitioner and there is no subletting made by him in favour of the 2nd petitioner. The trial court decreed the suit on both 4 grounds. An appeal was preferred by the present petitioners. The Appeal was dismissed by the District Court. 3 The learned counsel for the petitioners at the outset stated that on 13th September 1994, the first petitioner s brother Dattatraya has expired. He submitted that the only requirement pleaded in the said suit was of the said Dattatraya and now the decree passed on the ground of bonafide requirement is unsustainable. He submitted that even otherwise the bonafide requirement is not established. He submitted that the earlier suit by the first respondent on the same ground was dismissed and therefore, the second suit filed on the same ground was not maintainable. He submitted that the finding recorded on the ground of unauthorised subletting is illegal and perverse. He submitted that the first petitioner is carrying on business in partnership with his own son. He submitted that the first petitioner continues to be a tenant and the partnership business is being carried out in the suit premises of which the first petitioner continues to be a partner. He placed reliance on the decision of the Apex Court in the case of Helper Girdharbhai Vs. Saiyed Mohamad Mirasaheb Kadri and others (AIR 1987 SC 1782). He also placed reliance on the another decision in the case of M/s.Madras Banglore Transport Company (West) Vs.Inder Singh and others (AIR 5 1986 SC 1564). He also placed reliance on a decision of this court in case of Vikram s/o Vinakrao Buty Vs. Shri Ram Achal s/o Loknath Tiwari and another [1988 (2) Bombay Cases Reporter 282). He submitted that as the first petitioner continued to be a tenant in respect of the suit premises, there was no occasion for the courts below to hold that there was an unauthorised subletting by the first petitioner in favour of the second petitioner. 4 The learned counsel for the first respondent supported the impugned Judgment and Decree. He placed reliance on the decision of the Apex Court in the case of Shakuntala Bai and others vs. Narayan Das and others [(2004 5 SCC 772] as well as the decision of the Apex Court in case of Usha P.Kuvelkar and others Vs. Ravindra Subrai Dalvi [(2008 1 SCC 330]. He submitted that no interference is called for in writ jurisdiction with the concurrent decrees passed by the courts below. 5 I have given careful consideration to the submissions. It is true that in the earlier suit filed in the year 1972, bonafide requirement of the first respondent s brother Dattatraya was pleaded. It must be noted that in paragraph 12 of the Judgment of the trial court in the said suit, it was observed that the first plaintiff (Dattatraya) in the said said suit was not a landlord and only his requirement was pleaded. In any 6 case, it must be noted that the suit was filed in the year 1972 and the present suit is filed in the year 1980. Elaborate averments have been made in the present suit as regards the bonafide requirement. The said averments can be summarised as under : i) The first respondent and his brother Dattatraya were residing together and the said Dattatraya had knowledge and experience of the business of watch repairing. ii)The residential premises in which the first respondent and his brother were residing was not suitable for carrying on business of watch repairing. iii)There was no business premises available to the said Dattatraya. iv)As no proper premises was available, the said Dattatraya was required to carry on business by using a part of his residential premises. v) It is stated that Dattatraya had school going children and they do not have sufficient accommodation for their studies. vi)It is stated that as the said 7 Dattatraya was not having suitable business premises for conducting business, his income from the business was very meagre. vii)The first respondent had to postpone the plan of getting married on account of lack of availability of the adequate accommodation. 6 There is a time gap of eight years between two suits and what is considered by the courts below is the case of requirement made out by the first respondent on the date of institution of the present suit. With the passage of time of eight years, the situation underwent a change and therefore, the courts below have rightly held that dismissal of the earlier suit will not come in the way of the first respondent of prosecuting a fresh suit. In fact in the earlier suit the bonafide need was not considered on merits. In the earlier suit, the ground of bonafide requirement was negatived by the court on the ground that the 1st plaintiff Dattatraya therein was not the landlord. 7 It will be necessary to deal with the submissions made by the learned counsel for the petitioners on the basis of the subsequent event of the death of said Dattatraya during the pendency of this petition. The 8 decision of the Apex Court in case of Shakuntala Bai (supra) is relevant on this aspect. In paragraph 10.1 to 12 the Apex Court held thus : 10.1 With regard to this category of cases, it was held that the estate is entitled to the benefit which, under a decree, has accrued in favour of the plaintiff and, therefore, the legal representatives are entitled to defend further proceedings, like an appeal, which constitutes a challenge to that benefit. Even otherwise, this appears to be quite logical. In normal circumstances after passing of the decree by the trial court, the original landlord would have got possession of the premises. But if he does not and the tenant continues to remain in occupation of the premises it can only be on account of the stay order passed by the appellate court. In such a situation, the well known maxim actus curiae neminem gravabit that an act of the court shall prejudice no man shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant and claim possession of the premises on the cause of action which had been originally pleaded and on the basis whereof the lower court had decided the matter and had passed the decree for eviction. However, in regard to the case before the court it was held that the requirement pleaded in the ejectment application on which the plaintiff founded his right to relief was his personal requirement and such a personal cause of action must perish 9 with the plaintiff. On this ground it was held that the plaintiff s right to sue will not survive to his heirs and they cannot take the benefit of the original right to sue. 11 In Shantilal Thakordas V.Chimanlal Maganlal Telwala a larger Bench overruled the decision rendered in Phool ani V. Naubat Rai Ahluwalia insofar as it held that the requirement of the occupation of the members of the family of the original landlord was his personal requirement and ceased to be the requirement of the members of his family on his death. The Court took the view that after the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and occupation of the other members of the family. Thus, this decision held that the substituted heirs of the deceased landlord were entitled to maintain the suit for eviction of the tenant. The ratio of this decision by a larger Bench does not in any manner affect the view expressed in Phool Rani that where the death of the landlord occurs after a decree for possession has been passed in his favour, his legal representatives are entitled to defend further proceedings like an appeal and the benefit accrued to them under the decree. In fact, the ratio of Shantilal Thakordas would reinforce the aforesaid view. There are several decisions of this court on the same line. In Kamleshwar Prasad V. Pradumanju Agarwal it was held that the need of the landlord for the premises in question must 10 exist on the date of application for eviction, which is the crucial date and it is on the said date the tenant incurred the liability of being evicted therefrom. Even if the landlord died during the pendency of the writ petition in the High Court, the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any other son. In Gaya Prasad V. Pradeep Srivastava it was held that the crucial date for deciding as to bona fides of requirement of the landlord is the date of his application for eviction. Here the landlord had instituted eviction proceedings for the bona fide requirement of his son who wanted to start a clinic. The litigation continued for a long period and during this period the son joined the Provincial Medical Service and was posted at different places. The subsequent event i.e. The joining of the service by the son was not taken into consideration on the ground that the crucial date was the date of filing of eviction petition. Similar view has been taken in G.C.Kapoor V. Nand Kumar Bhasin. Therefore, the legal position is well settled that the bona fide need of the landlord has to be examined as on the date of institution of proceedings and if a decree for eviction is passed, the death of the landlord during the pendency of the appeal preferred by the tenant will make no difference as his heirs are fully entitled to defend the estate. 12 The High Court in the present case no doubt noticed the decisions rendered in Phool Rani and Shantilal Thakordas but chose to rely 11 upon a decision by a two Judge Bench rendered in P.V.Papanna v. K.Padmanabhaiah. In this case the trial court had passed a decree for eviction which was challenged by the tenant by filing a revision in the High Court which was dismissed but four years time was granted to vacate the premises. The special leave petition preferred by the tenant was also dismissed. During the pendency of this period of four years, the landlord died leaving a will in favour of his brothers. When the tenant did not vacate the premises after the expiry of four years, the appellants applied for execution of the decree. The execution petition was allowed by the trial court and order for eviction was passed but the order was reversed by the High Court in a revision filed by the tenant on the ground that the cause of action did not survive on the death of landlord and the appellants (legatees claiming as legal representatives of the deceased landlord) could not execute the decree for eviction which was purely personal. After examining several earlier decisions, the Court held as under : 18 For the forgoing discussion, we must hold that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into consideration for the purpose of adjudication until a decree is made by the final court determining the rights of the parties but any event that takes place after the decree becomes final cannot be made a ground for reopening the decree. The finality to the dispute culminating in the decree cannot 12 be reopened by the executing court for readjudication on the ground that some event or the other has altered the situation. As a corollary thereto it must also be held that once the decree became final it became a part of the state of the landlord and therefore the appellants as legal representatives of the deceased landlord are entitled to execute the same (Emphasis added) 8 Now turning to the finding recorded on the ground of bona fide requirement, the trial court has noted the fact admitted by both the parties that the first respondent and his brother Dattatraya were having residential house bearing City Survey no.697/1,2 and 3, D Ward, Kolhapur. The trial court noted that the front portion of the said house, having measurement of 6.9 meters with 6.2 meters has been acquired as per the copy of the award at Exh.34. The learned Judge has taken into account the size of the accommodation available with the first respondent-landlord. The court noted that on the rear side on the ground floor, residential premises admeasuring 1290 sq. ft was available and on the first floor an area of 957 sq. ft of residential premises was available was available. The learned Judge thereafter noted that the first respondent his wife and two children, his brother Dattatraya and his family members were residing in the said house. The first respondent 13 deposed that his brother Dattatraya has knowledge of watch repairing and he was carrying on the said business in a part of his residential premises. He also deposed that his sons as well as the sons of his brother were residing together and therefore, a separate study room and bed room was required. He stated that the area in the residential house was not sufficient as some portion was required to be spared for the business of the said Dattatraya. The learned Judge noted that in the year 1972 the children of Dattatraya were minors. 9 The trial court has referred to the documentary evidence on record which showed that the Dattatraya s sons was taking education in high school and his daughter was taking education in a college of commerce. This has been considered coupled with the fact that a part of the front portion of residential premises of the first respondent and his brother was acquired for the public purpose. The Trial Court accepted the plea of bonafide requirement on the ground that there was no business premises available to Dattatraya for carrying on his watch repairing business. It was held that the residential accommodation available to the family of the 1st respondent and his brother was not sufficient to satisfy the growing need of the family. The Appellate Court has confirmed the said findings. Considering the fact that the said Dattatraya was carrying on business in 14 a part of the residential premises and he had no business premises available, both the court were justified in upholding the ground of bona fide requirement. 10 The trial court on the basis of the partnership deed of Sonal Watch House produced at Exh.38 found that the said business in partnership has been started by the first petitioner's sons Subhash, Sunil and Sudesh. The said business has been started in another premises during the pendency of the suit. It is pertinent to note that a stand was taken by the first petitioner that his son Subhash was a partner with him in the second petitioner- firm which was carrying on business in the suit premises. Considering these aspects, the finding on the issue of comparative has been recorded in favour of the first respondent. The said finding has been confirmed by the Appellate Court. In addition to the material considered by the trial court, the learned District Judge relied upon the reply of the petitioners to the suit notice in which the petitioners admitted that the 1st respondent and his brother Dattatraya form a joint Hindu family. Therefore, the Appellate Court negatived the stand taken by the petitioners that the first respondent and his brother were residing separately. The Appellate Court noted that the first petitioner came out with the case that the 1st respondent was residing on 1st floor of the residential building and his brother Dattatraya was 15 occupying the ground floor residential premises along with his family members. The Appellate Court found that the 1st respondent has two children and his brother was having two sons and a daughter and there were total nine members of their family. The Appellate Court noted that as a result of acquisition, the front portion of the residential premises has been taken over for the public purpose. Therefore, in so far as the ground of bonafide requirement is concerned, there are concurrent findings of fact recorded by the courts below. The courts below on the issue of comparative hardship observed that even the petitioners could not bring any material on record to show that the first respondent has any other commercial premises available from which the business of watch repairing could be carried on. Therefore, it is not possible to find fault with the impugned Judgments as far as the concurrent findings on the ground of bonafide requirement and comparative hardship are concerned. 11 As far as subletting is concerned, placing reliance on the decision of the Apex Court in the case of Madras (supra) the learned counsel for the petitioners contended that though the 2nd petitioner partnership was carrying on business in the suit premises, the tenancy rights will continue with the first petitioner. However, he has completely ignored the relevant clauses in the Deed of 16 Partnership of the 2nd petitioner firm which is on record. The clause (3) thereof clearly provides that the suit premises will be handed over by the first petitioner to the partnership and the rent, taxes and other charges in respect of the suit premises shall be borne and paid by the partnership firm. Even clause 8 indicates that the tenancy rights were to be treated an asset of the firm otherwise there was no occasion for incorporating the clause that the partner of the first petitioner will not have any claim over the assets held by the partnership firm. The clause 3 of the deed of partnership itself contemplates that the suit premises will be transferred to the firm and as a result of the transfer, the rent in respect of the suit premises will be payable by the second petitioner. In view of clause (3) of the deed of partnership, it was necessary for the first petitioner to plead and to lead evidence to show that even after execution of the partnership, the rent was being paid by him and not by the partnership firm. However, no material in that behalf is admittedly produced by the first petitioner. There is no material on record to show that the 1st petitioner paid the rent after the partnership was brought into existence. On plain reading of the aforesaid clause of the partnership, it is crystal clear that the first petitioner purported to transfer the suit premises to the 2nd petitioner partnership firm and the partnership took over the 17 liability of payment of rent, taxes and other charges in respect of the suit premises. 12 In the case of Helper Girdharbhai (supra), the Apex Court considered the question whether the partnership brought into existence by the tenant was genuine. In the case of Madras Bangalore Transport Company (West) (supra), the Apex Court was dealing with the case where a firm occupied suit premises as a tenant and the partnership firm established a limited company with its partners and directors. In case of Vikram s/o Vinayakrao Buty (supra) this court considered the question whether the partnership was genuine. 13 it is true that merely because the tenant carries on business in the rented premises with his partners one cannot jump to the conclusion that the tenant has indulged in unauthorised or illegal transfer. In present case, clauses 3 and 8 of the deed of partnership which are discussed above clearly show the intention of transferring tenancy to the partnership firm. In this view of the matter, the courts below were justified in recording the finding of unauthorised and unlawful subletting against the first petitioner. 14 In the circumstances, there is no merit in this writ petition under Article 227 of the Constitution of India. 18 There is no reason to interfere with the concurrent findings of fact recorded by the courts below in exercise of power of superintendence under Article 227 of the Constitution of India. Writ Petition is accordingly rejected. 1 At this stage, the learned counsel for the petitioner prays for continuation of interim relief. The