1 cra.51.07 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 51 OF 2007 Wilfred Marchon and others. ... Applicants Versus Smt. Veena Desai. ... Respondent -------- Mr. P.K.Dhakephalkar, Senior Counsel, i/b Mr. A.K.Goel for the Applicants. Mr. Malik S., Advocate for the Respondent. -------- CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 26 th November, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 24 th January, 2011. JUDGMENT : 1 The revision Applicants are the original plaintiffs and the Respondent herein is the original defendant. A suit for eviction filed by the Applicants under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to 2 cra.51.07 as “the said Act”) was decreed by the Court of Small Causes in an appeal preferred by the Respondent. The Appeal Bench of the Court of Small Causes interfered with the decree and has dismissed the suit filed by the Respondent. 2 The Applicants are the landlords of the building known as “Monte Villa” situated at Meera Baug, Talmiki Road, Santacruz (West), Bombay – 400 054. The Applicants have referred to the said property as the “suit property”. The Respondent is the monthly tenant of the Applicants in respect of Block No. 5-A on the ground floor of the Monte Villa. It is stated that area of the said Block No.5- A (referred to as the suit premises) is about 650 sq.fts. The suit premises consists of two bed-rooms. The monthly rent, according to the Applicants, is Rs.130/- exclusive of permitted increases, water taxes and common light expenses. 3 According to the case of the plaintiffs, their parents late 3 cra.51.07 Mr.Alick Marchon and Mrs.Louisa Marchon were the owners of the suit property and the Applicants have inherited the suit property from them. There is another house in the suit property on the front side of Monte Villa in the compound of the suit property. The said house is known as “Marchon Villa”. The Applicants stated that their families after the respective marriages (except Applicant No.4) were residing in the Marchon Villa. As the accommodation in the said Marchon Villa was found by the Applicants to be cramped , considering the needs of their growing families, the Applicants’ late mother decided that the Applicants should approach a builder to develop the said Marchon Villa to enable all the Applicants to have an independent units in the developed property. It is stated by the Applicants that due to demise of their mother, the said plan could not be implemented. According to the case of the Applicants, they along with their mother arrived at a similar decision in respect of the building Marchon Villa and an agreement of development was executed in the year 1991 in favour of a builder. According to the 4 cra.51.07 case of the Applicants, the said agreement was required to be cancelled due to fraud perpetrated by the said builder. 4 The case made out by the Applicants in the plaint is that in July, 1994 one Mr.Ramesh Mankani, a non-resident Indian approached them for development of the building Marchon Villa. According to the case of the Applicants, Mr.Mankani entered into an agreement for sale with understanding that on development of the property, each of the Applicants would be given a flat for their personal residence. According to the case of the Applicants, the property Marchon Villa was acquired by the Income Tax Department under Section 269 UE(2) of the Income Tax Act, 1961 (hereinafter referred to as “the said Act of 1961”). It is stated that as a result of acquisition of the said property by the Income Tax Department, the Applicants had to vacate the building Marchon Villa and therefore, the Applicants suddenly found themselves to be on street. It is stated in the plaint that thereafter, the 2 nd applicant along 5 cra.51.07 with his family started residing at Borivali, Bombay. It is disclosed in the plaint that the 3 rd Applicant is residing abroad. It is stated that the 4 th applicant, who is the sister of 1 st to 3 rd applicants is residing in a small room on the terrace of the Monte Villa, which does not have any facilities. It is stated that the 4 th applicant has filed a separate suit in the year 1995 for possession of premises on the first floor of the building Monte Villa in possession of another tenant. The said suit has been filed on the ground of bona fide and reasonable requirement of the 4 th applicant. 5 It is alleged in the plaint that the 1 st applicant had to shift to Goa, since the funds which came to his share on sale of Marchon Villa were not sufficient to secure a place in Bombay. It is stated that the 1 st applicant is unemployed and has been ailing for last ten years. It is stated that the 1 st applicant has been under continuous medical care of physicians as well as specialists in Bombay and requires constant medical monitoring in Bombay. It is stated that 6 cra.51.07 due to ill health of the 1 st applicant, he has been advised not to climb stairs and to reside on the ground floor. It is alleged that the 1 st applicant is suffering from repeated attacks of Malaria in his place of residence at Goa, as the climate in Goa does not suit him. It is stated that the 1 st applicant has two school going sons. It is stated that both the sons were educating in the English medium school in Santacruz, Bombay and their education suffered a setback after they were put in a school in Goa where the medium of instruction changed from English to Konkani. It is alleged that the sons of the 1 st applicant have not settled down in Goa and they badly want to come back to Bombay. Thus, the Applicants have pleaded bona fide need of only of the 1 st applicant and his family members as a ground of eviction. 6 It is alleged that the Respondent is a very affluent person and her husband was having a tanning factory at Dharavi, Bombay, which has been sold after demise of her husband. It 7 cra.51.07 stated that the defendant deals with shares in stock market and was earning large profits. It is stated that the defendant has all the amenities and gadgets like Air Conditioner, Water Pump Booster, T.V. Etc. It is alleged that the Defendant has acquired residential premises in J.V.P.D. scheme at Bombay. It is stated that the Respondent was not regularly occupying the suit premises. It is stated that the Applicants have offered alternate accommodation to the Respondents at Andheri (West) in Bombay. 7 It is alleged that on 18 th October, 1995, the Respondent approached the 4 th applicant and informed her that her nominee would be inducted in the suit premises and the Respondent requested the 4 th applicant to transfer the tenancy in the name of the said nominee. According to the Applicants, the Respondent informed the 4 th applicant that the said nominee was ready to pay substantial amount for transfer of rent bill. It is stated that considering the bona fide need of the 1 st applicant, the 4 th applicant 8 cra.51.07 declined to transfer the rent bill in the name of the nominee of the Respondent. It is alleged that one Mr. Devnani approached the 4 th applicant on 28 th October, 1995 and asked as to whether the 4 th applicant was interested in transfer of tenancy as the Respondent was interested in shifting from the suit premises. However, the 4 th applicant declined to accept to the request. 8 The suit was contested by the Respondent by filing written statement. It was contended that the property Marchon Villa was auctioned by the Income Tax Department at the price of Rs. 2,50,00,000/- and after deducting income tax bills, each applicant approximately got a sum of Rs.60,00,000/-. Various allegations made in the plaint were denied by the Respondent. It was contended that the 1 st applicant voluntarily shifted from Mumbai to Goa and has acquired a flat in Goa. The Respondent denied various allegations in the plaint regarding health condition of the 1 st applicant. It was contended that in any event all the facilities of 9 cra.51.07 education of the children as well as health care facilities are available in Goa. 9 The Respondent denied that she was a very rich and affluent person. She stated that the business of tanning factory owned by her late husband was sold for consideration of Rs. 2,75,000/-. The Respondent denied that she has acquired a premises in J.V.P.D. scheme and that her financial position is very sound. The Respondent stated that she continues to occupy the suit premises. The Respondent denied that she had approached the 4 th applicant for transfer of tenancy in favour of her nominee. The Respondent stated that she has no intention of transferring the suit premises. 10 The parties adduced evidence. The learned trial Judge held that the Applicants have proved their plea of bona fide and reasonable requirement. The issue of comparative hardship was 10 cra.51.07 answered against the Respondent. Therefore, the trial Court proceeded to pass a decree for eviction on the ground of bona fide need. 11 An appeal was preferred by the Respondent. The appeal was allowed by setting aside the decree. The Appellate Court proceeded to dismiss the suit. 12 The learned senior counsel appearing for the Applicants submitted that the settled law is that the bona fide need pleaded by the landlord normally should not be doubted. He submitted that landlord is the best judge of his requirements and it is not for the tenant to dictate in what manner the landlord should live. He pointed out that the fact that the property Marchon Villa was acquired under the said Act of 1961 by the Income Tax Department has been established by documentary evidence and this fact has been accepted by the Courts below. The 1 st applicant who was 11 cra.51.07 occupying a premises in the said building was therefore forced to shift to Goa along with his family including school going children. He pointed out that the failure to examine the 1 st applicant is not at all fatal to the case of the Applicants. He submitted that the 4 th applicant who is one of the landlords and real sister of the Applicants stepped into witness box and deposed about the ailment of the 1 st applicant. The 4 th applicant being the sister of the Applicants who was regularly visiting the 1 st applicant at Goa had personal knowledge of the facts stated by her. He pointed out that to prove the ailments suffered by the 1 st applicant, PW-4 and PW-5, who were medical practitioners were examined by the Applicants. He submitted it was thus established that the 1 st applicant who was forced to shift to Goa, for his own health care and for education of the children badly needs to come back to Bombay. He submitted that the Appeal Bench has not at all considered the evidence on the ground of bona fide need and in fact the appeal Court has discarded the evidence on the ground that the 1 st applicant was not 12 cra.51.07 examined. He submitted that the Appellate Court proceeded on erroneous assumption that the Applicants have all become separate and therefore, the non-examination of the 1 st applicant was fatal. He submitted that the Appellate Court has not at all considered the evidence of the 4 th applicant on the ground of bona fide need of the 1 st applicant and his family members. He submitted in the alternative that this is a fit case where order of remand to the Appellate Court is required to be passed. He submitted that the finding of the trial Court on the issue of comparative hardship could not have been disturbed as the same is supported by the evidence on record. 13 The learned counsel appearing for the Respondent supported the impugned judgment and decree. He submitted that in view of relevant clauses in the power of attorney executed by the 1 st applicant in favour of the 4 th applicant, it is apparent that the power of attorney was granted only for the purposes of development of the 13 cra.51.07 suit property and therefore, the 4 th applicant was not entitled to depose. He submitted that on merits, ground of bona fide need has been negatived by the Appellate Court. He submitted that the 4 th applicant has not even disclosed the amount received by the Applicants from the Income Tax Department by way of consideration. 14 I have given careful consideration to the submissions. In the plaint itself, it is accepted that the building Marchon Villa, which is situated in the compound of Monte Villa, was acquired by the Income Tax Department under Section 269 UE(2) of the said Act of 1961. In paragraph No.6 of the plaint, it is asserted by the Applicants that the Income Tax Department had called upon the Applicants to vacate the said building within 15 days and informed the Applicants that unless they vacate, compensation would not be paid. Paragraph Nos.7 and 8 of the plaint make it clear that need pleaded is only of the 1 st applicant. The specific need of the 1 st 14 cra.51.07 applicant is pleaded in paragraph No.8 of the plaint, which reads thus: “8. The Plaintiffs further state that the Plaintiff No.1 had to shift to Goa, since the funds that came to his share where no sufficient to get him a place in Bombay as the Plaintiff No.1 is unemployed with a growing family and has to bear his medical expenses. The Plaintiff No.1 has been ailing for last 10 years and has a very frail health and an unhealthy disposition due to an eneamic condition and weak liver and heart. The Plaintiff No.1 has been under constant medical care of his personal physicians as well as specialists in Bombay and needs constant medical monitering in Bombay. The Plaintiff No.1 has deteriorated and he has been advised no to climb stairs, and to reside on the Ground Floor. The Plaintiff No.1 has been having repeated attacks of Malaria in Goa as the climate of Goa dos not suit him. Due to constant ill-health, the Plaintiff No.1 is not working and has been advised to shift back to Bombay. The Plaintiff No. 1 has his wife Mrs. Lynnette Marchon and two growing children. The elder son Master Royston is 12 years old, who was studying in 6th Standard prior to his shifting to Goa. Master Royston was studying at Sacred Heart School, Santacruz, Bombay and if he comes back to Bombay, he can continue his academic career once again in the same school. The younger son Master Dillano is six years old and has been studying in the same 15 cra.51.07 School. The Plaintiffs state that education of both the children has suffered a set back due to sudden change of medium from English to Konkani as both the children have been brought up in Bombay. The Plaintiff states that his children have not settled in Goa physically and emotionally and they want to come back to Bombay.“ The suit was instituted on or about 1 st November, 1995. 15 As stated earlier, the 1 st applicant did not step into witness box and the 4 th applicant, who is the real sister of the Applicants deposed before the Court. In paragraph No.3 of her examination-in-chief, she stated that on 23 rd March, 1995 the Income Tax Department acquired Marchon Villa. After stating about the auction of the said property, the 4 th applicant states thus: “.... Thereafter, Plff. No.1 alongwith his family shifted to Goa when the property was handed over in order to vacate the property. He had to shift because he had no other alternative accommodation and having no sufficient fund. Ad as he had educate his children for the next academic year.“ 16 cra.51.07 16 In paragraph No.4 of the examination-in-chief, the 4 th applicant stated that the 1 st applicant shifted to Goa as he did not have funds to purchase a property in Mumbai as he is unemployed. She deposed that the health condition of the 1 st applicant was not good for about 10 years and he is residing on third floor of a building in Goa. She stated that members of the family of the 1 st applicant were frequently suffering from Malaria. She further stated that the children of the 1 st applicant were taking education in English medium school in Mumbai and that there was change in medium of education from English to Konkani in Goa. Further affidavit in lieu of examination-in-chief was filed by the 4 th applicant on 6 th September, 2002 in which she denied the allegation that the Marchon Villa property was sold at the price of Rs.2,50,00,000/- and stated that after deduction of income tax, each Applicant got nearly a sum of Rs.60,00,000/-. 17 The evidence of the 4 th applicant has been tested in 17 cra.51.07 cross-examination. She stated that she was not aware as to why the Income Tax Department acquired the building. She stated that she was unable to remember the year in which the building was acquired. She stated that she was unable to remember what amount she got from the Income Tax Department. She pleaded ignorance as to whether the 3 rd applicant received any amount from the Income Tax Department. She pleaded ignorance as to whether the reserved price mentioned in the auction was Rs.2,91,00,000/-. Further examination of the 4 th applicant shows that she could not disclose the date on which compensation was paid by the Income Tax Department. Thus, taking the assertions of the 4 th applicant as it is, compensation was not received by the Applicants from the Income Tax Department at least till the end of February or March, 1995. There was no reason for the Applicants not to disclose total amount received by them from the Income Tax Department and the proportion in which the same was distributed amongst them. 18 cra.51.07 18 The 4 th Applicant was cross- examined on the issue as to when the 1 st applicant shifted to Goa. Her response was as under: “....... It is not true that he has gone to Goa 2 yrs. before the year 1993-94. In Goa, he has purchased ownership Flat. My brother’s children are studying in Goa. From the yr., when my brother has gone to Goa. According to me, my brother has gone to Goa in the yr. 1995. My brother deft.no.1 has not written any letter to me that he is unhappy in Goa. I say that he phoned me and as and when visited, stated me that he is unhappy in Goa. From the date of filing of the suit, I may have visited the Goa to my brother’s place in or about 50 times. It is not true that the premises of my brother is in a locality where there is no pollution. The question of acquiring accommodation in Mumbai does not arise when my brother is a legal heir.” 19 She accepted that the 1 st applicant was earlier working in the middle east. She accepted that a power of attorney was executed by the 1 st applicant in her favour. It is pertinent to note that the power of attorney produced on record is prepared in July, 1995, but appears to have been executed on 1 st September, 1995. The 19 cra.51.07 material recitals in the power of attorney read thus: “VII. I, my brother said Melwyn Marchon and my sister said Anjela Marchon have decided to develop the said property ourselves. VIII. Since I am staying in Goa and unable to come to Bombay to pursue, attend and defend the abovereferred suit filed by said Subhash Sharma and also to probate the Testamentary Petition filed by us in the Hon’ble High court and also unable to attend to the development of the said property. In the circumstances, I am desirous to appoint some fit and proper persons to conduct the said suit and said Testamentary Petition and for development of the said property in the manner following:” 20 Thus, in September, 1995, the power of attorney was executed by the 1 st applicant essentially to facilitate development of the suit property – Monte Villa. Thus, in September, 1995, the 1 st applicant intending to develop the suit property. It must be noted here that the Respondent examined witnesses and brought on record that the property was sold in public auction by the Income 20 cra.51.07 Tax Department on 27 th September, 1997 at the price of Rs. 2,91,51,000/-. 21 The Applicants have not disclosed exactly how much amount was received by the 1 st applicant from the income-tax department on account of the acquisition of the property. It is not specifically disclosed as to when the 1 st applicant shifted to Goa and when he acquired a flat in Goa. Even the date on which acquisition was completed and compensation amount received by the Applicants is not disclosed in the evidence of the 4 th applicant. The 4 th applicant disclosed that the 1 st applicant purchased a flat on ownership basis in Goa. However, she has not stated as to when the said flat was purchased. The evidence of the 4 th applicant shows that she was reluctant to disclose total amount received from the Income Tax Department. In fact, she stated that she was unable to remember whether the amount of compensation from the Income Tax Department was in lacs or crores. The Applicants did 21 cra.51.07 not place on record any document specifically disclosing the amount received from the compulsory sale of the property in favour of the income-tax department. The 4 th applicant merely stated that the 1 st applicant shifted to Goa because he did not have funds to purchase the property in Mumbai. Not only that the 1 st applicant shifted to Goa, but he secured admission for his children in a school in Goa. There is material on record to show that the 1 st applicant received at least a sum of Rs.60,00,000/- after deduction of income tax from the income-tax department. For proving the fact that the 1 st applicant could not acquire premises in Mumbai, the examination of the 1 st applicant was necessary for the simple reason that assuming an accommodation could not be acquired in Mumbai, he could have acquired an accommodation in the nearby cities and he could not have gone all the way to Goa to acquire accommodation. In the power of attorney executed by the 1 st applicant in September, 1995, recitals are incorporated to show that the Applicants had decided to develop the suit property (Monte Villa) and that the power of 22 cra.51.07 attorney was executed as the 1 st applicant being a resident of Goa, was unable to attend to the development of the said property. The power of attorney makes a specific reference to a suit filed by one Mr.Subhash Sharma and the power of attorney incorporates a recital that the same is being executed as the 1 st applicant is unable to come to Bombay to defend the suit. The entire tenor of the power of attorney executed in September, 1995 shows that it is for enabling development of the suit property. Clause 18 of the power of attorney authorizes the 4 th applicant to negotiate with the tenants. Thus, going by the evidence of the 4 th applicant, after February, 1995, the possession of the Marchon Villa was taken over by the