skt/- 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 4739 OF 1990 1. Shri Pandit Keshav Chipade, Since deceased by legal heir : 1A. Shri Dilip Pandit Chipade, 2. Shri Dilip Pandit Chipade, age 37 years, occu. Doctor, R/o. 3100, ‘A’ Ward, Chipade Building, Mahadwar Road, Kolhapur. ...Petitioners. (Orig. Plaintiff) Vs. 1. Shri Atmaram Balkrishna Thakar, since deceased through his heirs and legal representatives : 1A) Ambabai Atmaram Balkrishna Thakar, age 70 years, (wife of late Atmaram Balkrishna Thakar) 1B) Purushottam Atmaram Thakkar, age 50 yrs. (son), R/o. Plot No.31, F/4, Panchasheel Apartment, Sarnaik Colony, Devkar Panand, Kolhapur – 12. 1C) Krishna Atmaram Thakar, skt/- 2 age 34 yrs. (son), R/o. Plot No.34, Sanjay Apartment, Timber Market, Kolhapur – 12. 1D) Avinash Atmaram Thakar, Age 45 yrs (son), R/o. Plot No.31, R/5, Panchasheel Apartment, Sarnaik Colony, Devkar Panand, Kolhapur – 12. 1E) Rajendra Atmaram Thakar, age 40 yrs. (son), R/o. C/2, Flat No.B/5/3, Gajalaxmi Park, Sane Guruji Road, Kolhapur – 12. 1F) Mrs.Padmaja Vaman Sarpotdar, (daughter) R/o. C-2, Ground Floor, Nilgiri Apt. Near Pratidnya Hall, Karve Nagar, Pune 411 052. 1G) Mrs.Shailaja Ashok Vakeel, (daughter) ...Respondents. (Heirs of Orig.Deft.No.1) 103, Ashish Co-op.Hsg.Soc.Kastur Park, Borivali (W), Mumbai 400 092. 2. Shri Ramchandra Balkrishna Thakar, Age 62 yrs, occu. Printing business, of 1004/15, ‘A’ Ward, Kolhapur. ...Respondent. (Orig.Deft.No.2) ..... Mr.A.A.Kumbhakoni i/by A.M.Kulkarni, Advocate for the petitioner. Mr.Rajesh Patil, Advocate for respondent No.1(A) to 1(G) & 2. ..... skt/- 3 CORAM :- A.S.OKA, J. DATED :- 19TH MARCH, 2010. JUDGMENT : 1. By this writ petition, under Article 227 of the Constitution of India, the petitioners who are the plaintiffs have challenged the judgment and decree dated 16th October 1990 passed by the learned Additional District Judge, Kolhapur. 2. A suit for possession was filed by the petitioners under the provisions of Bombay Rents, Hotel Lodging House Rates Control Act, 1947 (hereinafter referred to as ‘the said Act’). The description of the suit property has been incorporated in paragraph no.1 of the plaint. Clause (A) of paragraph refers to property bearing City Survey No.2629 in ‘A’ Ward at Kolhapur. Clause (B) of paragraph no.1 refers to property bearing City Survey No.2688 in ‘A’ Ward at Kolhapur. The property mentioned in Clause (A) is a building consisting of two floors. The property mentioned in Clause (B) is an open land abutting the building mentioned in clause(A). The case made out in the plaint by the petitioners is that the suit property was a joint family property of the petitioners and in partition, the same has been allotted to the share of the 2nd petitioner. The 2nd petitioner is the son of the 1st petitioner. skt/- 4 3. It is alleged in the plaint that the building which is a part of the suit property touches a public road, which was widened by the Municipal Corporation by demolishing a part of the building. It is alleged that the remaining part of the building became dilapidated and that the respondents attempted to reconstruct the same and therefore, a suit for injunction has been filed by the petitioners. In short, the suit property consists of a building described in clause (A) of paragraph 1 together with abutting open land described in clause (B) of paragraph 1of the plaint. The case is made out in the plaint that the suit property was let out for the purposes of business. It is contended in the suit that the 2nd petitioner is a Medical Practitioner and that he has taken a premises on rentfor his profession at Mahadwar Road, Kolhapur. It is contended that the premises acquired by him on rental basis for conducting dispensary is insufficient and inconvenient. It is stated that the building forming part of the suit property was in dangerous condition and therefore, the same is required to be demolished. It is stated that 2nd petitioner desires to construct a new building which will be suitable in all respects for starting his clinic. Suit was filed on the ground of bona fide and reasonable requirement under Section 13(1)(g) of the said Act. skt/- 5 4. The suit was contested by the respondents by filing written statement. It was contended that after demolition of a part of the building forming part of the suit property, the respondents obtained permission of the Municipal Corporation and carried out repairs to both the floors of the building. It is alleged that compliance has not been made by the petitioners with the provisions of Section 13(h), 13(hh), 13(hhh) of the said Act. It is contended that the respondents are running Printing Press in the suit premises from the year 1910. It is stated that no other premises is available for the respondents to conduct the business of Printing Press and on the other hand, the sufficient accommodation is available to the petitioners. 5. The trial Court held that bona fide need has been established by the petitioners. The trial Court answered the issue of comparative hardship under Section 13(2) of the said Act in favour of the petitioners and accordingly a decree of possession was passed on the ground of the bona fide requirement. An appeal was preferred by the respondents. By the impugned judgment and decree, the appeal has been allowed. The learned District Judge confirmed findings of the trial Court on the ground of bona fide requirement. However, the learned District Judge proceeded to disturb the decree skt/- 6 on the ground that the issue of comparative hardship ought to have been answered in favour of the respondents/tenants. The learned District Judge held that the petitioners have not produced on record any evidence to show that a plan has been prepared for construction of the building which has been duly approved by the local authority. The learned Judge held that the petitioners have not adduced any evidence to show that they are in possession of requisite funds for construction of the building. 6. The learned counsel appearing or the petitioners pointed out that the petitioners have succeeded in both the Courts in establishing the the bona fide need of the 2nd petitioner. He submitted that the appellate Court completely ignored that the ground of eviction was under Section13(1) (g) of the said Act and therefore, it was not necessary for the petitioners to adduce any evidence for showing that plan of the proposed building has been sanctioned and that the 2nd petitioner had requisite financial capacity to construct a building. He submitted that there is evidence on record to show that respondents have acquired a large house property. He submitted that the said evidence could not have been discarded on the basis of bar created by Section 25 of the said Act. He submitted that the finding of the trial Court on the issue of skt/- 7 comparative hardship has been disturbed by the appellate Court based on totally irrelevant considerations and therefore, interference is called for in writ jurisdiction. He submitted that notwithstanding the fact that the petitioner no.2 established his bona fide need before both the Courts below , the said petitioner could not get possession of his own premises for last 32 years. 7. The learned counsel appearing for the respondents invited my attention to the averments made in Civil Application 546 of 2010. He pointed out that the subsequent events which have been set out in the said application as well as in the rejoinder clearly prove that the alleged bona fide need of the 2nd petitioner has been completely eclipsed. He submitted that in October 2009, the respondents became aware that the 2nd petitioner has stopped practicing as a Dentist. He pointed out that according to the petitioners, the 2nd petitioner was having his clinic in rented premises at 2934/A, Mahadwar Road, Kolhapur and it was found that the electricity supply to the said premises was disconnected and in fact a notice to that effect was affixed on the said premises. He pointed out that photographs of the said premises have been annexed to the civil application. He stated that on a query made to the Dental Council of the Maharashtra, a communication has been skt/- 8 issued by its Registrar by letter dated 18th February 2010, stating that the 2nd petitioner has not made renewal of the Sanad/ registration from the year 1987 and that his address of the place of practice was not available on the record of the said council. He submitted that the 2nd petitioner’s wife has started a shop at Mahadwar Road for selling sarees and the said shop premises is owned by the 2nd petitioner. He pointed out that the 2nd petitioner has became a Partner of M/s.Chipade Saraf. He pointed out that the 2nd petitioner has acquired a flat which is occupied by the family of 2nd petitioner, his mother and his brother and brother’s family. He submitted that a reply containing false statements has been filed by the 2nd petitioner. He pointed out that though the 2nd petitioner has asserted that he still continues to carry on his dental practice , electricity supply to his clinic has been disconnected. He has pointed out that a false statement has been made by the 2nd petitioner that he has taken electricity supply from his neighbour by the name Kanoje Tailors. He submitted that the rejoinder filed by the respondents clearly proves that the stand taken in the reply is totally false. He submitted that in absence of registration, 2nd petitioner cannot practice in Dentist clinic. He pointed out a letter dated 16th February 2010 issued by the Executive Engineer of the skt/- 9 Maharashtra State Electricity Board. He submitted that the documents received under Right to Information Act show that there has been no consumption of electricity from January 2005 in the clinic premises of the 2nd petitioner. He pointed out that from March 1998, the electricity consumption is negligible. He pointed out that Kanoje Tailors has vacated the premises two years back and the story that the 2nd petitioner has taken supply from M/s.Kanoje Tailors is totally false. He pointed out that in the list of Members published by Kolhapur Saraf Vyapari Sangh, the name of 2nd petitioner appears, which shows that the 2nd petitioner is no longer a practicing Dentist. He pointed out that as far as the flat is concerned, it is revealed that the electricity meter stands in the name of the son of 2nd petitioner. It is obvious that the 2nd petitioner has purchased it in the name of his son. He submitted that there is enough evidence to show that 2nd petitioner has stopped practicing dentistry and therefore, the need pleaded in the suit has been completely eclipsed. He submitted that the statements made in the reply to the civil application are found to be false and therefore, no interference can be made in writ jurisdiction by this Court at the instance of the petitioners. 8. The learned counsel appearing for the respondents placed reliance skt/- 10 on a decision of the Apex Court in the case of “Ram Kumari Barnwal v/s. Ram Lakhan (2007[5] S.C.C., 660] . The learned counsel appearing for the petitioners has placed reliance on various decisions of the Apex Court and submitted that the need has to be judged on the date of the institution of the suit. He submitted that under the provisions of the Dentists Act, 1948, even if renewal fees is not paid, after payment of the renewal fees, the name of the a Dentist can be restored to the register. He submitted that the landlord cannot be expected to sit idle during the pendency of proceedings for eviction which has taken an inordinately long time and since it is not established that the need is totally eclipsed because of the subsequent events , the said events are not sufficient to defeat a claim for eviction on the ground of the bona fide requirement. 9. I have given the careful consideration to the submissions. It will be necessary to advert to the concurrent findings recorded by the Courts below on the issue of the bona fide requirement. The Courts below have accepted that in the partition, the suit property has been allotted to the share of the 2nd petitioner. The 2nd petitioner is a Dentist by a profession. The trial Court has extensively referred to the memorandum of partition at Exhibit 44 and has recorded a skt/- 11 finding that the suit property has been allotted to the share of the 2nd petitioner. The memorandum of partition records the details of partition effected by and between the 1st petitioner, 2nd petitioner and 1st petitioner’s other son on 15th May 1977. The learned Judge, in paragraph no.12 of the judgment, has set out the dimensions of the properties as well as the other details of the properties in possession of the parties. The learned Judge has noted that the suit property bearing City Survey No.2629 is a two storied building having total area of 2210 sq.ft. The learned Judge has recorded a finding that the 2nd petitioner was occupying three rooms in the property of the 1st petitioner in City Survey No.3100/1B/1. The learned Judge has referred to the area in possession of the 2nd petitioner in the property allotted to the share of the 1st petitioner. The Learned Judge observed that the 2nd petitioner was occupying three rooms admeasuring 12’x12’, 5’x8’ and 10’x12’ for his residence at the mercy of the 1st petitioner. The learned Judge noted that after passing B.D.S. examination in 1976, the 2nd petitioner proceeded to U.S.A. for advanced studies and after eight months, he returned to India. A finding of the fact has been recorded that the 2nd petitioner had to acquire a premises consisting of two rooms on the rental basis for running his clinic. skt/- 12 The learned Judge noted that the open land out of the suit property was lying vacant and unused. Thus, considering all these aspects, the learned trial Judge held that the bona fide need of the 2nd petitioner has been established. 10. The appellate Court has noted that a part of the suit property was acquired by the Municipal Corporation for road widening. The appellate Court also noted that after obtaining B.D.S. Degree and after doing advanced studies in U.S.A., 2nd petitioner was carrying on his dental practice in a two room tenement, taken by him on rent. The appellate Court noted that apart from the part of the suit property, there is no other property held by the 2nd petitioner and he was occupying three rooms for the purpose of the residence in the property allotted to the share of 1st petitioner. In paragraph 15 of the judgment the appellate Court observed that the trial Court rightly held that the bona fide and reasonable need was established. Thus, in short, the concurrent findings of the Courts below are that 2nd petitioner has been allotted the suit property in partition and as he has no other property owned by him, he has taken a two room tenement on rental basis for running his dental clinic. The Courts have also accepted the fact that the 2nd petitioner is occupying three rooms in the property allotted to the skt/- 13 share of his father for the purpose of residence. Thus, the finding of the Courts below is that the 2nd petitioner has no other premises of his own available except the suit premises. 11. Before dealing with the subsequent events, it will be necessary to consider the findings recorded by the Courts below on the issue of the comparative hardship. While dealing with the said issue, the trial Court has observed that the 2nd petitioner has no other property available. The trial Court has extensively referred evidence adduced by the respondents with reference to the availability of the other property as far as respondents are concerned. The trial Court noted that 1st respondent admitted that the land bearing City Survey No.1004/15A was owned by him and the 2nd respondent. The trial Court also noted that the property bearing City Survey No.1004/15-B consisting of 12 rooms is exclusively owned by 1st respondent and the property bearing Survey No.1004/15-C consisting of 12 rooms is exclusively owned by 2nd respondent. Relying upon the admission of the 1st respondent that they are no tenant in property bearing CTS No. 1004/15-B and 1004/15C, a finding was recorded that 1st and 2nd respondents are brothers and that they were in possession of aforesaid twenty four rooms of their own. Apart from this, the trial skt/- 14 Court noted the admitted position that the property bearing City Survey No.1004/15-A was jointly owned by 1st and 2nd respondents. Relying upon the admitted documents placed on record , The trial Court noted that the area of City Survey No.1004/15-A was 935 sq.ft., on which there is a shed admeasuring 15’ x 10’ and rest of the said property was open. The trial Court, on the basis of the documentary evidence on record came to the conclusion that the respondents were in exclusive in his possession of area about 3000 sq.ft.. The trial Court also considered that the fact that according to the respondents, in the suit property, the business of running Printing Press was being run from the year 1910. 12. The trial Court referred to the evidence of the 1st respondent which shows that number of constructions were coming up which are available on rental basis. After considering the aforesaid circumstances, the finding on the issue of the comparative hardship was recorded in favour of the petitioners. 13.The appellate Court dealt with the contentions raised by the respondents that the petitioners have not complied with the requirements of clauses (h), (hh), (hhh) and (i)of Section 13(1) of the said Act. The said contention was negatived by the appellate Court by holding that the requirement pleaded was governed by skt/- 15 Section 13(1)(g) of the said Act. However, the appellate Court proceeded to record a finding that no evidence has been adduced by the petitioners to show that a plan of the proposed building has been sanctioned and that the petitioners were possessing requisite funds to construct a new building.. On the basis of the said finding, the appellate Court concluded that there were no bona fides on the part of the landlords to ask the tenants to vacate the suit premises. The said finding is erroneous on the face of it. When the case of the petitioners is covered by Section 13(1)(g) of the said Act, the said factors are totally irrelevant and in any case, finding on the issue of bona fide requirement is recorded in the favour of the petitioners in paragraph no.15 by the appellate Court. 14. On the point of comparative hardship, the appellate Court referred to the finding of the trial Court that residential premises consisting of 24 rooms were is available to the respondents. But the appellate Court held that the availability of such huge premises was not relevant as the said premises being residential premises cannot be converted into a non-residential use of running a Printing Press in view of Section 25 of the said Act. Another aspect considered by the appellate Court is that it is not a case of 2nd petitioner that the 1st petitioner has called upon 2nd petitioner to vacate the premises skt/- 16 consisting of 3 rooms occupied by the him for residence in the property to his father, the 1st respondent. 15. In my view, the appellate Court has completely overlooked the scope of adjudication as regards the issue of comparative hardship. The trial Court considered the fact that 24 rooms are available to the respondents. Apart from that there is a finding of fact recorded on the basis of the documentary evidence that respondents are holding a land bearing CTS No. 1004/15-A admeasuring 935 sq.ft. The trial Court noted that there is a shed admeasuring 15 ft x 10 ft on the said property and rest of the portion is vacant. Availability of such a large property consisting of twenty four rooms and a property having a large open area were certainly relevant considerations of deciding the issue of comparative hardship. On one hand , the landlord was compelled to acquire a rental premises for conducting his own profession and on the other hand ,the tenants are in possession of large properties including an open land. Section 25 of the said Act was totally irrelevant for deciding the issue of comparative hardship. The learned Judge has commented that the 1st petitioner has not called upon the 2nd petitioner to vacate the 3 rooms in possession of the 2nd petitioner. The fact remains that both the Courts have found that the said 3 skt/- 17 rooms are in the property allotted to the 1st petitioner in partition and the entire property allotted to the share of the 2nd petitioner was in possession of the respondents. Therefore, the finding of the appellate Court on the question of comparative hardship is illegal and perverse and the same is required to be quashed and set aside. However, even on this aspect, the effect of alleged subsequent events will have to be considered. But , on the basis of the material which was available before the appellate Court, the finding on the issue of comparative hardship was certainly completely erroneous and illegal. 16.Now coming to the subsequent events pleaded in the form of civil application and rejoinder filed to the civil application, the learned counsel appearing for the respondents has placed reliance on decision of the Apex Court in the case of Ram Kumari Barnwal v/s. Ram Lakhan (supra). The Apex Court was dealing with the case arising under the relevant Rent Control legislation applicable to the State of Uttar Pradesh. The Apex Court held that the Court has power to take note of subsequent events and mould relief on condition that the relief, as claimed originally has, by the reason of subsequent events, became inappropriate or cannot be granted. At this stage, it will be necessary to advert to the other decisions of skt/- 18 the Apex Court. In the case of Maganlal Son of Kishanlal Godha V/s. Nanasaheb, Son of Udhaorao Gadewar ( [2008] 13 S.C.C. 758), the Apex Court dealt with the argument based on the subsequent events in a case arising out of eviction proceeding filed on the ground of bona fide requirement. In paragraph 25, the Apex Court held thus : “25. It is common experience in our country that especially landlord-tenant litigations prolong for a long time. It is true that neither can the person who has started the litigation sit idle nor can the development of the event be stopped by him. Therefore, the crucial event should be taken as on the date when the suit for eviction was filed, unless the subsequent events materially change the ground of relief.” (emphasis added) The another relevant decision of the Apex Court is in the case of Gaya Prasad V/s. Pradeep Srivastava [(2001) 2 S.C.C. 604]. Here again the issue was regarding the effect of subsequent development on eviction proceeding where eviction was sought on the ground of bona fide requirement. In paragraph 10 of the Apex Court observed thus : “10. We have no doubt that the crucial date for deciding as to the bona fides of the skt/- 19 requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post- petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any