1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVN. APPLICATION NO. 560 OF 2007 Avinash Gopalrao Vadgaonkar ... Applicant v/s Rameschandra Ramchandra Jhavar ... Respondent Ms.Pallavi Dabholkar i/by Mr.G.S.Godbole for the applicant. Mr.I.M.Khairdi for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 9TH APRIL, 2010 ORAL JUDGMENT: 1. The present civil revision application has been filed against the judgment and order of the Ad-hoc District Judge, Solapur, in Civil Appeal No.49 of 2007. By this judgment, the Appellate Court set aside the judgment and decree dated 24.11.2006 passed by the Joint Civil Judge, Jr. Divn., Solapur in R.C. Suit No.765 of 2004 and dismissed the suit. 2. The applicant is the landlord of the suit premises consisting of a shop and one room. The respondent was the tenant in the premises since 1958. On his retirement from a 2 bank in which he was employed, the applicant sought to recover possession of the suit premises. He terminated the tenancy on the ground of bonafide requirement of the suit premises for himself and his family. As the respondent did not vacate the suit premises, the applicant filed the aforesaid suit. He contended that he required the suit premises as he intended to run a grocery and general provision store in the suit premises. The applicant also pleaded that his son was a major and not employed. He further pleaded that the suit premises were required by him as he had no other alternate employment after retirement from the bank. The applicant further pleaded that the defendant i.e. the respondent herein, was financially sound and that he had alternate premises near the suit premises which were sufficient for him to run his business. The applicant further pleaded that, if a decree for eviction on the ground of bonafide requirement of the applicant was not passed, great hardship would be caused to him. 3. The respondent contested the suit by contending that he had acquired goodwill over the years while conducting his business in the suit premises from 14.11.1958. It was further pleaded that the plaintiff and his son had never engaged in any business and, therefore, the requirement was not 3 bonafide. The respondent denied that he had alternate premises and, therefore, contended that great hardship would be caused to him if he was evicted from the suit premises. 4. Evidence was led by the parties before the Court. Both the applicant and the respondent deposed before the Court. On considering the evidence led before it, the Trial Court decreed the suit by concluding that the applicant had established his bonafide requirement for the suit premises. The Trial Court did not accept the contention of the respondent that greater hardship would be caused to him if the decree was passed. 5. Being aggrieved by the decision of the Trial Court, the respondent preferred an appeal before the District Court. The Appellate Court/District Court reversed the findings of the Trial Court by concluding that the need of the applicant for the suit premises was neither reasonable nor bonafide. The Appellate Court further observed that the respondent had not searched for an alternate accommodation and that from the evidence it was established that the respondent had sufficient premises in his possession for the business. The Appellate Court, therefore, concluded that greater hardship 4 would be caused to the applicant if the decree for eviction was not passed. However, the Appellate Court set aside the decree only on the ground that there was no pleading and evidence to support the case of the plaintiff that he was in urgent need of the suit premises. It was further observed that the plaintiff had not given any reasons for his requirement of the suit premises and that the element of necessity was “conspicuously absent in the plaint”. The Appellate Court further observed that there was no evidence on record to indicate that the applicant intended to start a business or that the income of the applicant, in fact, was insufficient to support his family and himself. The Appellate Court observed that it was only because the plaintiff had retired from service that he had sought the suit premises. Based on certain judgments of the Supreme Court, the Appellate Court observed that the mere desire of the applicant to get possession of the suit premises was not sufficient. The Court further noted that the applicant’s son had obtained an admission in a medical college and, therefore, the question of his requirement for the suit premises for running a business was not established. 6. Being aggrieved by the decision of the Appellate Court, the applicant has preferred the present civil revision 5 application. 7. Ms. Dabholkar appearing for the applicant submitted that the Appellate Court has committed a serious error apparent on the face of the record which requires to be corrected under the revisionary jurisdiction of this Court. She pointed out that the evidence on record has not been correctly appreciated by the Appellate Court. She further submitted that certain admissions of the respondent have not been considered in their proper perspective. She urged that the respondent had admitted that he had not made any attempt to seek alternate premises either before the notice terminating his tenancy was issued or thereafter. The learned advocate then pointed out that the respondent admitted that no special knowledge or training was required for running a grocery shop. She further submitted that the applicant had proved beyond doubt that he required the premises bonafide and reasonably. She drew my attention to the cross-examination of the applicant and submitted that the respondent has not been able to elicit any admissions which were prejudicial to the applicant’s interest. According to her, the applicant had established that he was in need of the suit premises. The learned advocate relied on several judgments of the Supreme Court which I will advert to presently. 6 8. Mr.Khairdi appearing for the respondent submitted that the Appellate Court has corrected the miscarriage of justice which was caused by the suit being decreed. He submitted that the applicant’s need is not genuine and a mere desire to do business cannot be transformed into a genuine bonafide desire to conduct a business. According to him, the respondent was being evicted from the suit premises only so as to provide some kind of occupation for the applicant after his retirement. He submits that the respondent had earned goodwill in his business which he was running from the suit premises from 1958, which the Trial Court had ignored. He then submitted that the pleadings in the plaint are insufficient to support the case of the applicant that he required the suit premises reasonably and bonafide. The learned advocate then pointed out that the applicant’s son could not be interested in conducting any business since he had already obtained admission in a medical college. The learned advocate therefore submitted that no interference is called for by this Court under Section 115 of the Code of Civil Procedure. 9. I have, with the assistance of the learned advocates for the parties, perused the evidence on record although it was not necessary to do so in a revision. According to the 7 applicant, the Appellate Court’s judgment was perverse, inasmuch as, it had not considered certain admissions of the respondent which were on record. The applicant in his plaint, has categorically stated that he required the suit premises since he had retired from service and he wanted to start a grocery store in the suit premises. He has also stated that the suit premises are in the market area and he is residing on one of the upper floors of the building where the suit premises are situated. He has further stated that his son would join him in the business as he had become a major. The evidence on record, in my view, establishes the case of the applicant. The Appellate Court has, in my opinion, erred in observing that it was necessary for the applicant to prove that he was in urgent need of the suit premises. It has further erroneously held that the applicant was required to establish why he intended to start a business. 10. The Supreme Court in the case of Raghunath G. Panhale v/s Chaganlal Sundarji & Co., reported in (1999) 8 SCC 1, has observed that a landlord need not actually lose his existing job, nor resign, nor reach a level of starvation, to justify getting possession of his premises in order to establish a business. It has further observed that starting of some other business temporarily to meet his 8 needs would not be an impediment to seek possession of his own non-residential premises. The landlord further need not prove that he had money to invest in the new business contemplated by him nor that he had any experience of it. The Court has further observed that the word “reasonable” contained in Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (in short, “the Bombay Rent Act”), is a concept between a mere desire or wish on the one hand and the compelling or dire or absolute necessity on the other. The need may be a present need or within a reasonable proximity in the future. In the present case, thus, the applicant has established that the need for the premises was not only present but would exist in the proximity future. 11. In the case of Dwarkaprasad v/s Niranjan & ors., reported in (2003) 4 SCC 549, the Supreme Court has observed that the beneficial provisions contained in the Rent Control legislation must be meaningfully construed so as to advance the object of the Act. The Court held that the term “for occupation by himself” contained in Section 13(1)(g) of the Bombay Rent Control Act must be liberally construed and that it cannot be confined to the landlord alone as it would defeat the very object of the provision. The Court observed 9 that the requirement of any member of the family of the landlord, who is dependant on him for the purposes of his residence or financially, and whose responsibility he has accepted, can be considered as the requirement of the landlord. In the present case, the landlord i.e. the applicant herein sought the suit premises not only to start a business for himself but one where his son would assist him. When the suit was filed, the son had no means of income. Even assuming the fact that the son had obtained admission into a medical college, the need of the landlord to run the business in the suit premises cannot be said to have been extinguished. In my opinion, the Appellate Court has laid stress on issues which could not be considered while determining the need of the landlord as observed by the Supreme Court in the case of Raghunath G. Panhale (supra). 12. In the case of Datta Laxman Kamble v/s Abdul Rasul Moulali Kotkunde & anr., reported in 1999 Bom. Rent Cases 299, the Supreme Court has observed that there is no necessity for a person who wants to start his own business to acquire experience in that line. The Court observed that the statute enjoins that the Court should be satisfied with the requirement of the landlord. The Court has 10 to look into the broad aspects of the matter and it would be for the landlord to establish that he requires the suit premises bonafide. The Court further observed that there was no warrant for presuming that when the landlord seeks his own premises, his need is not bonafide. 13. In the case of R.C.Tamarakar & anr. v/s Nidi Lekha, reported in (2001) 8 SCC 431, the Supreme Court has observed that the landlord is the best judge of his requirement. The Court has observed that, while considering the question of bonafide requirement, it is unnecessary to consider extraneous considerations, or to inquire as to how else the landlord could have adjusted himself. The same observations have been expressed in various other judgments of the Supreme Court which are relied on by Ms. Dabholkar and it is not necessary to refer to each one of them individually. 14. Mr.Khairdi’s main contention, as stated earlier, was that the applicant/plaintiff had not pleaded his case for bonafide requirement of the suit premises. In my opinion, the pleadings in the plaint are sufficient to make out a case for bonafide requirement of the suit premises. The judgment in the case of Sitaram Narayan Shinde & ors. v/s Ibrahim 11 Ismail Rais & ors., reported in 2005 (2) Bom.C.R. 427 would, therefore, have no application to the facts in the present case. A learned Single Judge, in that case, has observed that the need of the landlord must be spelt out in the pleadings. It has been further observed that, while it is now the trend that, in suits for possession, the pleadings are to be construed liberally and it is not necessary for the landlord to prove his absolute need, he must establish that there is an element of need before a decree for possession can be passed. In my opinion, in the present case, the pleadings are indeed sufficient to make the defendant aware of the need of the landlord and the evidence led is in consonance with these pleadings. Therefore, the requirement and the bonafide need of the landlord has been proved. 15. In the case of Kempaiah v/s Lingaiah & ors., reported in (2001) 8 SCC 718, the Supreme Court has observed that the requirement of the landlord must be more than a mere wish or impulse or desire. In the present case, in my opinion, the requirement of the landlord is not merely a desire or a whim as sought to be submitted by Mr.Khairdi. It is a reasonable and bonafide need and not merely a desire for the suit premises. Mr.Khairdi has submitted that it cannot be 12 said that the need of the landlord was genuine since his son had already obtained admission into a medical college and, therefore, the question of setting up a business to enable the son to have a means of livelihood does not arise. This submission of Mr.Khairdi also cannot be accepted. The landlord, in his pleadings has stated that it is he who wished to set up a grocery store since he had retired from service. He has added that the business would also enable his son who had become a major to have some means of livelihood. This would not necessarily mean that the need which the landlord had expressed was only for his son and not for himself. 16. In my opinion, the Appellate Court has committed an error by setting aside the decree passed by the Trial Court. The judgment of the Appellate Court is perverse and contrary to settled principles of law relating to eviction of tenants on the ground of bonafide requirement of the landlord. The judgment and order dated 24.9.2007 passed by the Ad-hoc District Judge, Solapur, in Civil Appeal No. 49 of 2007, is set aside. 17. The civil revision application is, therefore, allowed. 13 18. The learned advocate appearing for the respondent seeks a stay of this order. Stay granted for a period of eight weeks from today on the usual undertaking being furnished by the respondent and the members of his family, to this Court, within a period of two weeks from today. ..... 14