1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.385 OF 2008 Neviel Navroj Italia and Anr. ....Applicants Versus Ms. Beatrice Maureen Clifford & Ors. ....Respondents Mr. V. A. Thorat, Sr. Counsel with Mr. R. A. Thorat i/b. M/s. Utangale & Co. for the Petitioners. Mr. Hiralal Thacker, Sr. Counsel with Mr. D. A. Joseph i/b. M/s. David and Associates for Respondents. CORAM : R. V. MORE, J. DATE : 22nd JUNE, 2009. P.C. : Heard, Mr. Thorat and Mr. Thacker, learned Senior Counsel for the Petitioners and the Respondents, respectively. 2. Rule. By consent, Rule is made returnable forthwith. 3. This is tenants’ revision against decree of eviction on the ground of reasonable and bonafide requirement of the Respondents. The facts in brief which gave rise to the revision are as follows: In the year 1986, the landlady-Isabel Clifford filed a suit against the original tenant-Homi Italia for possession of the suit premises on the ground that she requires the suit premises reasonably and bonafide for the use of her daughter and two sons i.e. Respondent Nos. 1a to 1c. 2 The dispute is about ground floor at “Peace Haven”, 38, Perry Road, Bandra (West), Mumbai – 400 050 (hereinafter called as “the suit premises”). The possession was claimed on the ground that landlady does not keep good health, her daughter could not marry and settle her matrimonial house and her two sons who reside in United Kingdom intend to come in India and reside in the suit premises alongwith landlady during her last days of life. During the pendency of the suit, the landlady died. The original tenant/Homi Italia was a widower when inducted in the suit premises as a tenant. He was residing in the suit premises with his old mother. His mother died and thereafter, he married for the second time but his second wife also died issueless. His nephew and daughter-in-law were residing with him during his lifetime. His nephew Navroj, also died. The original tenant-Homi Italia filed a written statement to this suit. He contended that he is a tenant in respect of the suit premises alongwith ground floor and the garden area. It was also alleged that the suit premises are not properly described in the plaint and therefore, the suit was not maintainable. It was also contended that he is residing in the suit premises for more than thirty years and his nephew alongwith his wife is also residing with him. It was further contended that he has no other suitable premises for his residence. On the contrary, both the sons of the landlady are married and having wives and children and residing in London for so many years and they are not interested in coming back and settling in India. It is also contended, that the premises on the first floor in Peace Haven, 38, Perry Road, Bandra (West), Mumbai – 400 050 are sufficient enough to accommodate all family members of the landlady. In this facts and circumstances, it was submitted that the landlady will not suffer any hardship, in case decree of possession is refused to her. The Trial Court on the basis of pleading and evidence lead by the respective parties , dismissed the suit. However, in paragraph nos.14 and 15 of 3 judgment, the Trial Court held that the Applicants had right to garden as same was not appurtenant to the ground floor premises. The Respondents preferred an Appeal No.52 of 2005, challenging the Trial Court’s judgment refusing the decree of eviction on the ground of bonafide requirement. The Applicants also filed cross objections challenging the finding of the Trial Court in paragraph Nos.14 and 15 in which it was held that the Applicants failed to prove that the garden was appurtenant to the ground floor premises. During the pendency of the Appeal, the Respondents filed an application at Exhibit “23” under the provisions of Order 19 Rule 1 of the Code of Civil Procedure, 1908 for bringing subsequent events on record. The Appellate Court did not pass any Order in Application at Exhibit “23”. However, the averments made thereunder were considered at the time of the disposal of the said Appeal and ultimately by the order dated 3rd and 4th July, 2007 allowed the Appeal of the Respondents and the Cross-Objection of the Applicants came to be rejected. The Applicants, thereafter, preferred Revision No.484 of 2007 before this Court. This revision was disposed of by the learned Single Judge by his order dated 10th December, 2007. The above decree of eviction passed by the Appellate Bench of the Small Causes Court came to be set aside and the matter was remanded back to the Appellate Court for hearing and disposal, afresh. The matter was remanded by agreement between the parties to give an opportunity to Respondents to lead necessary evidence in support of their contention at Exhibit “23” and further opportunity to the Applicants to cross-examine the Respondents and also lead any additional evidence, if necessary. 4 In pursuant of the above High Court Order, the Respondents made an application at Exhibit “29” for amendment to the plaint. This application was contested by the Applicants. The Appellate Bench of the Small Causes Court by its order dated 24th January, 2008 dismissed the Respondent’s Application for amendment. However, matter was sent to the Trial Court to record the evidence on Exhibit “23” with direction to return the papers after recording the evidence. The Trial Court thereafter, recorded the evidence and returned the same to the Appellate Bench. The Appellate Bench thereafter, reconsidered the matter afresh and came to the conclusion that the Respondents required the suit premises reasonably and bonafide for their own use and occupation. The contention of the Applicants that the suit premises alongwith the ground and the garden area was let out, was also negatived. Consequently, the Appeal was allowed by setting-aside the Trial Court’s decree and eviction decree was passed. The Cross Objection of the Applicants also came to be dismissed. This order is impugned in the present Revision. 4. Mr. Thorat, learned Senior Counsel, took me through the original pleadings of the landlady and submitted that it does not disclose any intention of the landlady’s children to settle permanently in India. He further submitted that earlier, the High Court allowed the Applicant’s revision No.484 of 2007 rightly, as the Appellate Court could not have considered the Application at Exhibit “23” filed by the Respondent without there being any order. He further submitted that after remand, the Respondents preferred an Application at Exhibit “29” for amendment to the plaint but the said application was rejected by the Appellate Bench of the Small Causes Court, which order has become final as the same is not challenged by the Respondents. He further submitted that in the absence of amendment to the plaint, the evidence could not have been recorded and even though it is recorded, the same cannot be considered. In this regard, he has relied upon Apex Court’s decision in Om Prakash Gupta Versus Ranbir B. Goyal reported in 2002 AIR SCW 278 and Ram Kumar Barnwal versus Ram Lakhan (Dead) reported in (2007) 5 Supreme Court Cases 660. He 5 also submitted that the subsequent events are nothing but device to remove lacuna in the pleadings. He lastly, submitted that the Appellate Court accepted Respondents’ case for requirement of the suit premises without any consideration of the fact that first floor premises are available to the Respondents and therefore, an error apparent on face of record is committed by the Appellate Bench of the Small Causes Court and therefore, the impugned decree deserves to be quashed and set-aside. 5. Mr. Thakkar, learned Senior Counsel appearing on behalf of the Respondents, supported the impugned judgment and decree. He submitted that there are sufficient pleadings about the Respondents’ requirement of the suit premises. He further submitted that by the order dated 10th December, 2007, this Court remanded the matter with liberty to respective parties to lead evidence regarding the subsequent events brought on record under Exhibit “23”. He submitted that the further application for amendment was not necessary. However, application at Exhibit “29” was preferred by way of abundant caution. He lastly, relied upon the Apex Court’s decision in Mundri Lal versus Sushila Rani (Smt) and Anr. reported (2007) 8 Supreme Court Cases 609 in support of his argument that inadequate pleadings, if not prejudicial may not be sufficient to set-aside the impugned judgment. He also submitted that the Lower Appellate Court considered the availability of the first floor premises and thereafter finding of facts was recorded that comparative hardship will be caused to the Respondents in case of eviction decree is refused. 6. Having heard the learned Senior Counsel for the respective parties and having gone through the revision alongwith the compilation annexed there to including the impugned order, I do not find any merit in the Revision. The two sons and the daughter of the Respondent/Landlady i.e. Respondent Nos.1a to 1c entered into the witness box and gave evidence. PW-No.2-Rudolph Clifford and PW-No.3-Merwyn Clifford, both stated on oath, their desire of coming to 6 India from United Kingdom, with a view to reside and settle in India. Even after remand of the matter by the High Court, they gave evidence and produced documents to show their urge of getting Indian Citizenship and permission to visit and reside in India, during their lifetime. They have specifically stated that the premises in their possession is inadequate and therefore, they require the suit premises for their own use and occupation. Both Respondent Nos.1b and 1c have already been retired from their job and they intend to settle in India. It is a settled law that “it is for the Landlord to decide how and in what manner he should live and he is the best judge of his residential requirement”. In the above said facts and circumstances, the Respondent Nos. 1b and 1c’s requirement of the suit premises cannot be said to be malafide. The Lower Appellate Court in my view, correctly approached the issue and recorded the findings in this regard. 7. Regarding comparative hardship, in paragraph no.33 of the impugned order, it is observed that the original tenant, his wife and nephew, all are dead. It is further observed that the nephew’s wife and his son do not reside in the suit premises and the nephew’s daughter-Hutoshi is at present residing in Canada and therefore, neither the tenant nor any of his family members are in possession of the suit premises. This finding is not controverted by the Applicants. In the contrast of above facts, the Respondent Nos.1b & 1c are desirous to come to their motherland with a view to reside in their parental house. In the above facts and circumstances, I do not find any error in the finding that the Respondents will suffer more hardship incase of refusal of decree of eviction. 8. This takes me to consider the submission of Mr. Thorat, learned Senior Counsel. The first submission is that the order of the Trial Court rejecting the application of amendment at Exhibit “29” having become final and there being no initial pleading in the suit about the intention of the children of the Landlady to settle in India, the decree on the ground of reasonable and bonafide 7 requirement could not have been passed. In this regard, he also submitted that the subsequent events are nothing but device to remove lacuna in the original pleadings. I find this submission without any merit. After the death of the Landlady, the Respondent Nos.1a to 1c came to be added and added plaintiffs amended the plaint. In paragraph 8 it is averred as follows: “The added Plaintiffs submit that the Plaintiff No.1(a) Betty is also not able to marry for want of accommodation of premises for her stay after marriage. The Added Plaintiffs therefore, require the suit premises for the bonafide use and occupation of themselves, since the ground floor premises are required to be given to Added Plaintiffs Nos. 1(b) and 1(c) for whose benefits and requirements and bonafide use the suit premises are required.” In paragraph 11, it is further averred as follows: “The added Plaintiffs say that apart from the Plaintiffs since deceased old and ailing condition, the Added Plaintiffs Nos.2 & 3 also want to settle permanently in Bombay as they and their children want to permanently settle in Bombay.” In paragraph 12, it is further averred as follows: “In the circumstances aforesaid, the added Plaintiffs submit that the added Plaintiffs are entitled to recover the quiet, peaceful and vacant possession of the suit premises as the same are required by 8 the added Plaintiffs for a reasonable and bonafide use and occupation of themselves, and their families.” The applicants have filed additional written statement in paragraph “d”. They have averred as follows: “The case of the Plaintiff about the alleged requirement of her son is totally false, malafide and not reasonable. The two sons of the Plaintiffs have left India several decades ago and have settled abroad with their respective families. One of the son of the Plaintiff has married a foreigner and has got children from her. The other son is also married abroad and is residing out of India. The sons of the Plaintiff have no intention of coming down and residing in the suit property. In any event, there is more than sufficient accommodation on the first floor to accommodate the Plaintiff and her alleged family members.” 9. If the additional pleading after the death of the Landlady and additional written statement of the Applicants is considered, then in my view there is sufficient pleading making out requirement of Respondent Nos. 1b to 1c of the suit premises, as they wanted to permanently settle in India. The decisions of the Apex Court cited by Mr. Thorat, learned Senior Counsel in Om Prakash Gupta and Ram Kumar Barmwal, have no application to the facts and circumstances of the present case, in as much as, I do find that there are sufficient pleadings by the Respondents making out their case under section 13(1)(g) of the Bombay Rent Act. Even assuming that there are no sufficient pleadings, the decision of the Apex Court in Mundri Lal, Supra, will come to the rescue of the Respondents. The Apex Court held that inadequate pleading is no ground to set-aside the judgment when the parties have gone into trial knowing fully the issue involved. The averments of the added plaintiffs and the 9 additional written statement, do show that the Applicants were aware about the Respondents’ case and they have cross-examined the Respondents, in this regard. 10. The second submission of Mr. Thorat, learned Senior Counsel that the Lower Appellate Court did not consider the availability of the first floor premises to the Respondents, is also without any merit. In paragraph no.32 of the impugned judgment, the Appellate Court considered this aspect, the Appellate Court held that it is for the Respondents to decide as to how and in what manner they intend to reside. The Appellate Court also considered the status of the Respondents, their style of living and observed that it would be embarrassing for the Respondent Nos. 1b and 1c to reside on first floor wherein their sister is already residing with her servant. The Appellate Court also took into consideration the fact that nobody from the Applicants family is residing in the suit premises. 11. Taking over all view of the matter, I do not find any reason to interfere in the impugned judgment and the decree in exercise of my jurisdiction under section 115 of the Code of Civil Procedure, 1908. The Civil Revision Application is, accordingly dismissed. 12. At this stage, Mr. Thorat, learned Senior Counsel appearing for the Petitioner, seeks eight weeks’ time to approach the Apex Court. In the interest of justice, time as prayed for is granted. The impugned decree of eviction shall not be executed for the period of eight weeks from today, subject to undertaking that the Petitioners will not part with the possession or create third party interest in the suit property. sd/- (R. V. MORE, J.)