1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6462 OF 1996 Maruti Dattatraya Upalavikar (since deceased) through legal heirs Baby Sidheshwar Potdar & Ors. .. Petitioners versus Nandkumar Ramkrishna Babar & Ors. .. Respondents Mr.A.M.Kulkarni for the petitioners. Ms.Madhavi Tavanandi for respondent Nos.1 and 2. CORAM : A.S.OKA, J. DATE : 8th September 2009. ORAL JUDGMENT: . The submissions were heard when the petition was called out for final hearing on 31st August 2009. With a view to appreciate the submissions, it will be necessary to refer to the facts of the case in brief. The present petitioners are the original plaintiffs. The respondents are the tenants. A suit for eviction under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) was filed by the petitioners. The suit premises are business premises on the ground floor admeasuring about 297 sq. ft consisting of three small rooms. The respondents are running a restaurant in the suit premises. The suit was filed on various grounds including the ground of bonafide requirement under 2 section 13(1)(g) of the said Act. In the suit filed by the petitioners it was alleged that the respondents were in arrears of rent for the period from 01st June 1968 to 31st May 1984. A reliance is placed on notice of demand issued by the petitioners. In the suit it was asserted that the petitioners have a large family. It is stated that the 2nd petitioner was residing on the first floor of the property in which the suit premises are situated. It is stated that the 2nd petitioner has a son and two daughters. It is alleged that the son has obtained B.A degree and he has passed typing examination in English and Marathi. It is stated that the said son has no source of earning and he desires to start typing classes. It is stated that he desires to run business by installing a xerox machine in the suit premises. It is alleged that the petitioners are not possessing any other premises where the son of the 2nd petitioner can start business. It is stated that the respondents have acquired various properties which are set out in paragraph No.2b of the plaint. Ground of nuisance is also urged in the plaint. The suit was contested by the respondents by filing written statement as well as additional written statement. As far as plea of bonafide requirement is concerned, the case of the respondents was that of denial. It was contended that the respondents have no other premises and therefore greater hardship will be caused to the respondents if decree for eviction is passed. 2. The trial Court decreed the suit. The trial Court recorded a finding that the petitioners have established their bonafide need. The trial Court 3 observed that by passing a decree for possession, hardship will be caused to both the parties. After considering the nature of the suit premises, the trial Court recorded a finding that decree for partial eviction cannot be passed in as much the suit premises consists of three rooms which are in a row having only one opening on the road. The other grounds of eviction were answered against the petitioner. An appeal was preferred by the respondents. The Appellate Court has interfered and set aside the decree for possession which was passed on the ground of bonafide requirement. The Appellate Court observed that the petitioners have not shown that they were having financial position to invest the capital required for opening typing class and for acquiring a xerox machine. The Appellate Court observed that on the contrary the contention raised by the petitioners was that their financial condition was not so good. The Appellate Court observed that no evidence has been brought on record to show that efforts were made by the 2nd petitioner’s son to start business in some other premises. The Appellate Court observed that the petitioners could have brought on record evidence to show that an attempt was made to secure another premises for starting the business but the said attempt failed. The Appellate Court observed that when the petitioners became aware that they will not get decree on the ground of bonafide requirement which was earlier prayed in the suit, they have come out with amendment for pleading the bonafide requirement of the son of the 2nd petitioner. The Appellate Court observed that the 2nd petitioner was in employment and the 1st petitioner could have secured employment. 4 The learned Judge observed that the mind of a middle class person is always in favour of the service than in favour of starting any business. The learned Appellate Court held that the trial Court committed an error by holding that the hardship will be caused to both the parties. 3. The learned counsel appearing for the petitioners submitted that the findings of the Appellate Court are perverse and contrary to the established law. He has placed reliance on several decisions of the Apex Court and this Court. He submitted that the bonafide need of the son of the 2nd petitioner was established on evidence. He pointed out the findings recorded by the trial Court regarding the other properties possessed by the respondents and contended that the said findings are not upset by the Appellate Court. He submitted that going by the said findings, the issue of comparative hardship ought to have been decided in favour of the petitioners and against the respondents. He submitted that the findings recorded by the Appellate Court on the issue of requirement are perverse and deserve to be set aside. The learned counsel appearing for the respondents submitted that no interference was called for. She pointed out that the respondents are running the hotel business in the suit premises for last 50 years or more and admittedly no other premises are available to the respondents where the business can be conducted. She submitted that the finding recorded by the Appellate Court on the issue of comparative hardship cannot be interfered with in writ jurisdiction. 5 4. I have given careful consideration to the submissions. The requirement which is pleaded by way of carrying out amendment to the plaint is of the son of the 2nd petitioner. Both the petitioners were examined as witnesses. They stated in evidence that the son of the 2nd petitioner by the name Avdhoot had obtained a degree in Arts faculty and he has passed English as well as Marathi typing examination. The requirement pleaded is that the said Avdhoot was unemployed and he wants to start a business of running a typing classes as well as business of xerox. It was contended that the son of the 2nd petitioner also desires to take job work. The certificates issued by Bureau of Government Examinations were produced at Exhibits 61 and 63 showing that the 2nd petitioner’s son has passed requisite examinations in Marathi and English typing. The trial Court found that though the respondents came out with a case that the said Avdhoot was not unemployed, there is no evidence adduced to show that he was in employment. This finding has not been disturbed by the Appellate Court. The trial Court has noted the admission in the evidence of the petitioners that the said Avdhoot had applied for employment at different places. It appears that a contention was raised by the respondents that premises were available with the petitioners consisting of two rooms on the first floor of the property in which suit premises are situated. The evidence was adduced by the 2nd petitioner for showing that he alongwith his wife, daughters and son Avdhoot were residing on the first floor of the property. It must be stated 6 here that no evidence was brought on record to show that the petitioners were having any accommodation on the ground floor which could be used for starting business of the 2nd petitioner’s son. A case was sought to be made out by the petitioners in the evidence that certain other premises were sought to be shown to the respondents. However, the said contention has not been accepted by the trial Court. What is brought on record by the petitioners is that the respondents are having their own property bearing Survey No.477/B in which there is one commercial tenement which is in front of the suit premises. The 1st respondent stated in his evidence that the commercial premises in the said property is of the size 9 ft X 8 ft where a xerox business has been already started by the respondents. The other fact which is brought on record is that the respondents are having property bearing City Survey No. 944/2, Dilbahar Talim at Azad Chowk, Kolhapur where they are residing. It was brought on record that the respondents are having premises at Ujaliawadi which is at a distance of 10 kms from Kolhapur near the aerodrome. 5. The finding of the trial Court that the 2nd petitioner’s son Avdhoot is an Arts graduate and has passed typing examination in English and Marathi has not been disturbed by the Appellate Court. It must be stated here that it is not even the case of the respondents that the petitioners are having any premises available on the ground floor, save and except, the suit premises where business can be commenced. A contention was sought to be raised 7 that business could be started in the residential premises of the 2nd petitioner on the first floor of the same property. However, it is not for the respondents tenants to dictate in what manner the landlord or his son should start business. There is nothing wrong if the landlord desires that his son should start business in the business premises on the ground floor. 6. The findings/observations made by the Appellate Court can be summarised as under: (a) Evidence ought to have been brought on record by the petitioners-plaintiffs that the the 2nd petitioner’s son made an effort to see that some other premises are available for opening the business. (b) If the petitioners were really honestly thinking of opening a business for their son, they could have tried to open a business in rented premises and then a case could have been made out for bonafide requirement. (c) The 2nd petitioner’s son had applied for employment. Though there is a problem of employment, the mind of the middle class is always in favour of employment rather than in favour of starting a business and therefore the 2nd petitioner’s son must have applied for securing an employment. (d) There is no evidence to show that the petitioners were possessing sufficient capital to start the business. 8 7. If the aforesaid findings of the Appellate Court are perused, it is obvious that the entire approach of the Appellate Court seems to be perverse. The Appellate Court expects the landlord to find out whether any accommodation can be made available to enable his son to start business. The Appellate Court expects the landlord to take a premises on rent to enable his son to start a business. The Appellate Court has gone by the mind set of the middle class and has made a bold observation that the mind set of middle class people is for an employment rather than starting a business. As far as bonafide requirement is concerned, the law is well settled in the case of Raghunath G. Panhale (Dead) by legal representatives Vs. Chaganlal Sundarji And Company [(1999) 8 Supreme Court Cases 1]. The Apex Court has held that the need or requirement of the landlords is not equivalent or dire or absolute or compelling necessity. The Apex Court held that it is not necessary for the landlord to adduce evidence that he had money deposited in the bank. The Apex Court observed that a suit on the ground of bonafide requirement is not a suit for specific performance so that the landlord is required to produce proof of availability funds. The Apex Court held that it is not necessary for the landlord to prove that he is jobless in order to secure possession of his rented premises on the ground that he needs the premises for starting his own business. 8. In the case of Ramkubai (Smt) Deceased by leagl representatives & Ors. Vs. Hajarimal Dhokalchand Chandkar & Ors [(1999) 6 Supreme Court 9 540], the Apex Court observed that as suit filed on the ground of bonafide requirement takes long time, it is not expected that the landlord or the member of his family who is required to be earn will continue to remain unemployed till the suit is decided. In the present case, the only material brought on record is that the 2nd petitioner’s son had applied for employment. In the case of Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde & Anr. [(1999) 4 Supreme Court Cases 1] the Apex Court held in paragraph Nos.9 and 12 thus: “9. In this case the appellate court found that the landlord’s requirement to occupy the building is to start a business in electrical goods. The fact that the landlord is a holder of a diploma in Electrical Engineering was counted as a factor lending assurance that he would be genuinely contemplating such a business idea. Regarding the contention of the respondent-tenant that the landlord has not acquired practical experience in the business of electrical goods the appellate court has observed that it is not necessary in every case that the landlord should establish previous experience for starting a new business. 10. .... 11. ..... 12. If a person wants to start a new business of his own it may be to his own advantage if he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. Many a business has flourished in this country by leaps and bounds which was started by a novice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propunders. The opinion of the learned single Judge that acquisition of sufficient know-how is a precondition for even proposing to start any business, if gains approval as a proposition of law, is likely to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that “no experience no venture”.” 10 9. In the present case, what is brought on record is that the 2nd petitioner’s son has passed typing examinations both in English and Marathi. To prove the bonafide requirement, it is not necessary that the 2nd petitioner’s son should conduct the business for some time. It is also not necessary that the petitioners have to prove that the said Avdhoot had requisite expertise to start the business. 10. In the circumstances, if the matter is considered on touchstone of well settled legal principles of bonafide requirement of landlord, it is crystal clear that bonafide need as pleaded by the petitioners has been clearly established. 11. Now turning to the question of comparative hardship, it must be noted here that the area of the suit premises is hardly 300 sq ft. What is brought on record is that the respondents are having a property which is opposite the suit premises and there is a small commercial premises on the ground floor of the said property. There is one more immovable property available to the respondents in the city of Kolhapur wherein the respondents are residing. There is a third property available with the respondents which is stated to be close to the air port which is at the distance of 10 kms from the heart of the city. Thus, the respondents are affluent enough to have immovable properties in and around city of Kolhapur. The suit claiming bonafide requirement has been filed in the year 1985. In this case it is 11 obvious that the respondents are having other properties in the same city. In fact, one of their family members has started a business on the ground floor of the premises owned by them which is situated opposite the suit premises. On the other hand, there is no material brought on record to show that any other premises on the ground floor are available to the petitioners. The fact that the 2nd petitioner’s son has residential premises available on the first floor cannot be considered while deciding the question of comparative hardship. This is not a case where the respondents can claim that they were not in a position to acquire any other accommodation for their business. They have not come out with the case in evidence that during the pendency of the suit, any attempt was made by them to secure another accomodation. Therefore, going by the findings recorded by the Courts below regarding availability of the properties to the respondents, the inferences drawn by the District Court are not consistent with the findings. It is obvious that issue of comparative hardship ought to have been decided in favour of the petitioners. 12. As stated earlier, the entire approach of the Appellate Court is perverse and therefore, the judgment of the Appellate Court is required to be quashed and set aside and the decree passed by the trial Court will have to be restored. 12 13. Hence, I pass the following order: : O R D E R : (a) The impugned judgment and decree passed by the Appellate Court is quashed and set aside and the decree passed by the trial Court for possession is restored. (b) At this stage, the learned counsel appearing for the respondents prays that the decree be stayed for a reasonable time. The said prayer is opposed by the learned counsel appearing for the petitioners. Considering the facts and circumstances of the case, it is directed that decree for possession shall not be executed for a period of 16 weeks from today. (c) The respondents are restrained from creating any third party interests in respect of the suit premises and from parting with possession of the suit premises in favour of any third party till they hand over possession thereof to the petitioners. (A.S.OKA,J)