1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.182 OF 1992 Balkrishna Narayan Joshi(deceased.) through L.Rs. 1.Smt. Nalini B. Joshi 2.Shri Jayant B. Joshi ..Petitioners. V/s. Shri Madhusudan R. Gokhale (Deceased) through L.Rs. a) Smt.Shalini M. Gokhale b) Sou.Suhasini Sudhir Bhide. ..Respondents. Mr.V.S.Gokhale for petitioners. Smt.Teja Katdare for respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 14, 2008. DATE : AUGUST 14, 2008. DATE : AUGUST 14, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Indeed, this is yet another peculiar case where the landlord has succeeded in the Courts below in getting decree of eviction against the tenant on the ground of bonafide and reasonable requirement. For the reasons that would be recorded hereinafter, the Court is obliged to examine the subsequent events which have unfolded after institution of the present Writ Petition and till the Petition has been disposed of by this order. 2 3. Briefly stated, the predecessor of the present Respondent filed Suit for recovery of possession of the premises which are admeasuring about 50 sq.ft. which were let out to the predecessor of the Petitioner to use it as store room. The predecessor of the Respondent/original landlord filed suit for eviction against the original tenant(predecessor of the Petitioner) on the ground that he was about to retire and had decided to shift to Pune. For that purpose he wanted the suit premises for his personal use and occupation. As aforesaid, both Courts below have accepted that plea of the landlord. Both Courts below have also answered the issue of comparative hardship in favour of the landlord. 4. However, during the pendency of the present Writ Petition in this Court, which is filed as back as in 1992, firstly the original tenant died on 11th June, 1997, as a result of which his legal heirs have been brought on record namely his wife and son. Later on even original landlord has died on 24th October, 1998. Consequent thereto his heirs were brought on record, namely, his wife Shalini and married daughter Suhasini. Incidently Shalini also 3 expired on 22nd April, 2005 leaving behind her daughter Suhasini, who is the only legal representative. It is not in dispute that the daughter Suhasini was already married and staying at Ahmedabad at her matrimonial house during the relevant period. After she was brought on record in the present proceeding, she filed affidavit before this court on 24th August, 2005 asserting the fact that she has decided to permanently settle down in Pune. When the said affidavit was filed at the relevant time, mother of Suhasini i.e. wife of the original landlord was alive. Suhasini has then stated that she has disposed of the ownership flat owned and possessed by her in Ahmedabad and was presently residing in a rented flat at Ahmedabad. This was done as she had decided to shift to Pune and stay in the residence of her father at Pune. It is further stated in the said affidavit that from November, 2005 she would be shifting her residence to Pune and will stay in the house of her mother permanently. She has then stated that the suit premises are adjacent to the residential house bearing No.1639 and she would require the same for her dispensary. She has further stated that since the suit premises is on the ground floor and as she was patient of Arthritis, suit premises are very 4 convenient to her for her dispensary. 5. Relying on this affidavit, Counsel for the Petitioner has contended that it is now "common ground" that the requirement pressed into service on behalf of the landlord when the suit was instituted, is no more subsisting as of now. According to the Petitioner, it is well established position that personal requirement pleaded by the landlord must not only exist on the date of instituting the action, but must subsist till the final decree or an order for eviction is made. It is further submitted on behalf of the Petitioner, relying on the affidavit of the present respondent Suhasini, that it leaves no manner of doubt that on account of subsequent developments which have unfolded during the pendency of the present Writ Petition, requirement of the landlord which was originally pleaded has been completely eclipsed. In that case, the action must fail and no decree of eviction on the ground of personal and bonafide requirement can be passed. To buttress the above submission, Counsel for the Petitioner has placed reliance on the decision of the Apex Court in the case of Hasmat Rai V. Raghunath Prasad reported Hasmat Rai V. Raghunath Prasad reported Hasmat Rai V. Raghunath Prasad reported in (1981) 3 SCC 103 in (1981) 3 SCC 103 in (1981) 3 SCC 103 in particular paragraph-14 thereof. 5 6. On the other hand, the Counsel for the Respondents would submit that these subsequent events can be of no avail to the Petitioners. For, two Courts below have already tested the genuineness and bonafide of the claim of the landlord and have upheld that claim. The same cannot be effaced by referring to the fortuitous circumstances which have unfolded during the pendency of the present Writ Petition. Learned Counsel for the Respondent has relied on the decision in the case of Gaya Prasad V/s. Pradeep Gaya Prasad V/s. Pradeep Gaya Prasad V/s. Pradeep Srivastava reported in (2001) 2 Supreme Court Cases Srivastava reported in (2001) 2 Supreme Court Cases Srivastava reported in (2001) 2 Supreme Court Cases 604 604 604 to contend that even in that case, the subsequent events during the pendency of the proceeding overshadowed the original requirement of the landlord but the Apex Court held that it should be of such nature that the genuineness of the landlord is completely eclipsed and the need must lose significance altogether. In that case, however, the Respondent/landlord needed premises to be used as a clinic for his son who had just become a Doctor and partly as accommodation for a planned post-retirement business. The Court therefore, observed that the need pleaded by the landlord in the fact situation of that case was not completely eclipsed. 6 7. Having considered the rival submission, in my opinion, as the Respondent has herself stated on affidavit certain facts, the Petitioner relying on the said facts is entitled to argue that the original need pleaded by the landlord is no more subsisting. In that, it is accepted in the affidavit of Suhasini that the original landlord as well as his wife has expired. From the plaint which was filed, it is obvious that the original need was for residential requirement of the landlord. As both the landlord and his wife have since expired, the said need is not in existence as of now. Indeed, Suhasini being the legal heir of the landlord is entitled to pursue the present proceeding provided the need would remain the same. However, in the affidavit as filed by Suhasini, the heir of the original landlord, it is conceded that she intends to start a dispensary in the suit premises-which is not the same need or requirement as was pleaded by the original landlord. It is a different matter that it is open to the legal representative of the landlord to pursue the claim in respect of the suit premises for her personal requirement now stated in the affidavit. But the said requirement is materially and qualitatively different from the requirement pleaded by the landlord in the plaint. In such a situation, the 7 appropriate course is to relegate the parties before the Appellate Court so as to permit the parties in the first place to amend their pleadings as may be advised and then to adduce further evidence so as to substantiate their respective stand with regard to the ground of bonafide and reasonable requirement which is now pressed into service by Suhasini who is the legal representative of the original landlord. That ground will have to be adjudicated by the Appellate Court on the basis of the amended pleadings and evidence to be adduced by the respective parties. This course will meet the ends of justice. 8. In the circumstances, this Writ Petition would succeed. Accordingly, Rule is made absolute. Impugned Judgment and Order is set aside and instead, Civil Appeal No.240 of 1987 is restored to the file of the Additional District Judge at Pune, who in turn shall decide the appeal keeping in mind observations made in the earlier part of this order. The Appellate Court shall give opportunity to both sides to amend their pleadings in view of the subsequent events and also permit them to adduce evidence as may be advised to support their respective claim. The Appellate Court would then decide the said issue of bonafide and reasonable requirement and also of 8 comparative hardship in the context of the amended pleadings and the further evidence produced by the respective parties on its own merits in accordance with the law uninfluenced by any observations in the impugned Judgment or for that matter, present order. All questions in that behalf are left open in the restored Appeal. 9. The parties shall appear before the Appellate Court on 22nd September, 2008, on which date the Appellate Court may fix the matter for hearing as per its convenience. However, the Appellate Court shall ensure that the Appeal is finally disposed of not later than end of April, 2009. 10. Both the parties through Counsel assure to extend full cooperation to the Appellate Court for early disposal of the remanded appeal. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)