IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 1369 of 1988 with CIVIL APPLICATION No 1636 OF 2002 in CIVIL REVISION APPLICATION NO 1369 of 1988 with CIVIL APPLICATION No 12922 od 2001 in CIVIL REVISION APPLICATION No 1369 of 1988 For Approval and Signature: Hon'ble MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? @ WADHUMAL T HIRANI Versus INDRAVADAN N PATEL -------------------------------------------------------------- Appearance: MRS MONALI M BHATT for MR RP BHATT for Petitioner No. 1 .......... for Petitioner No. 2-3 MR NK MAJMUDAR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE K.M.MEHTA Date of decision: 20/08/2002 C.A.V. JUDGEMENT 1. Wadhumal T.Hirani and others, petitioners have filed this revision application under Sec.29 of the Bombay Rent Act, challenging the judgment and decree dated 30th August, 1988, passed by the Second Joint District Judge, Vadodara, in Regular Civil Appeal No. 417 of 1981. The learned Appellate Judge by his judgment and decree pleased to allow the appeal and pleased to set aside the judgment and decree passed by learned Second Additional Judge, Small Cause Court, Vadodara, dated 31st July 1991, in Rent Suit No.3369/75 filed by Indravadan Natvarlal Patel respondent landlord herein. 2. The facts giving rise to this revision application are as under:- 2.1 There is a premises namely suit shop bearing Tika No.`A' - 14/7, Survey No.26 on the ground floor bearing Municipal Census No. Va/5726 situated on Gendigate Road at Vadodara (which will hereinafter described as `the suit premises'). The suit shop is occupied by petitioner No.1 - defendant No.1 as a tenant for the purpose of his business in the name of M/s.Kishumal Wadhumal since 1949. According to the opponent - original plaintiff, the suit shop belonged to his ancestors but had gone to the share of the parents of the plaintiff in the family partition. After the death of his mother his father executed one will on 21.5.71 and by this will the suit premises was given exclusively to the plaintiff. The plaintiff's father thereafter died on 13.9.1971 since then the plaintiff has become sole owner of the suit premises on the basis of the will of the parents. 2.2 The plaintiff filed rent suit No.3369/75 on 21.9.75 against defendants no.1 and 2 for eviction on the ground of bonafide requirement of the suit property for the use of the plaintiff. 2.3 It is averred in the plaint that defendant No.1 Wadhumal T.Hirani had hired the suit shop on his personal name and suit shop is being used for the business of the firm of defendant No.2 and hence defendant no.2 is joined as a party-defendant in the suit. 2.4 It is averred that the standard rent of the suit shop is Rs.75/- per month and the month of tenancy is as per English Calendar month i.e. it begins from the first day of every English Calendar month and ends on the last day of the same month. It is then averred that the defendant no.1 is bound to tender the rent regularly to the plaintiff and that the defendant is the statutory tenant of the plaintiff. It is the say of the plaintiff that the suit shop is being hired by the defendants for their own wholesale business. 2.5 It is further averred in the plaint that the children of the plaintiff have grown up and the son of the plaintiff is taking experience of the Automobiles spare parts after completing studies whereas the present plaintiff is in Government service but the plaintiff is about to retire in the near future and the health and physique of the plaintiff is completely sound. It is then alleged that after the retirement of the plaintiff, he also intends to join the proposed business and his son Atul intends to start immediate business in the suit shop which is now being occupied by the defendant no.1 for his own personal use and occupation reasonably and bonafide. 2.6 It was further stated that after the defendant vacated the suit shop it is not to be let out to any one by the plaintiff. It was further stated that the defendant is only making use of the suit shop as a sales office in particular whereas the actual stock of the sugar is being stored in the godown hired by the defendant at several places in the city of Baroda. It was further stated that if the defendant is made to evict from the suit shop he is not going to suffer any sort of hardship because the construction activity is going on with great magnitude in the city of Baroda and even many new shops are being constructed but even then the defendant are not thinking of the hardships of the plaintiff and hence the present suit is required to be filed. 2.7 On the above averments the plaintiff has prayed that a decree for possession of the suit shop mentioned in plaint para.1 be passed in favour of the plaintiff against the defendants with mesne profits till delivery of possession and costs of the suit. 3. The suit was resisted by defendants-tenants on several grounds by filing written statement at Exh.14 and has opposed the plaintiff's suit. The defendants denied that, in the family partition, the suit property had gone to the share of the parents of the plaintiff and the other allegations made in that connection by the plaintiff in para 1 of the plaint. The defendants also denied and pleaded ignorance about the alleged will said to have been executed by the father of the plaintiff on 21.5.70. The defendant No.1 also denied that after the death of the father of the plaintiff, the plaintiff alone has become the sole owner of the suit property. The defendant has admitted that the standard rent of the suit shop is fixed at Rs.75/- per month. 3.1 The defendants have further contended that the suit shop is taken on lease from the very beginning for the business of the firm of defendant no.2 from the plaintiff and that the defendants are the contractual tenants of the plaintiff. The defendants have further denied that the allegations made by the plaintiff in plaint para 4 including the alleged requirement of the plaintiff that the suit shop for his own for use and occupation and for the use and occupation of his own for starting the proposed business of Automobile spare parts as alleged and therefore the defendants contended that the alleged requirement of the plaintiff is neither bonafide nor reasonable. 3.2 The defendants have also denied that they will not suffer any hardship or inconvenience if they are made to evict from the suit shop as alleged by the plaintiff. It was further contended by the defendants that they are carrying on their business in the suit shop since last twenty five years and they have acquired good reputation in the business and if they are evicted then their business will be totally ruined and they cannot get other vacant shop similar to the suit shop. 3.3 The defendants have also contended that the other brothers of the plaintiff are also necessary parties to this suit and therefore the plaintiff's suit is bad for non-joinder of necessary parties. It was also contended by the defendants that the suit notice is not legal and valid and their tenancy is not validly terminated by the said suit notice and therefore they contended that the plaintiff is not entitled to get any reliefs of possession as claimed and therefore the plaintiff's suit be dismissed with costs. 4. In view of the aforesaid pleadings, the trial court has framed the necessary issues at Exh.15 in the suit. 4.1 The learned trial Judge by his judgment and decree dated 31st July, 1981, held that plaintiff failed and neglect to prove that plaintiff has bonafide requirement of the suit shop for the use and occupation of himself and his family. As regards greater hardship is concerned, the learned trial Judge held that the greater hardship would be caused to the defendant if eviction decree is passed or refused but so long as the plaintiff landlord case is concerned, the plaintiff-landlord does not establish his case of bonafide requirement of the premises in question. As regards suit notice is concerned, the same is not decided. The learned trial Judge also held that plaintiff has failed to prove that he became the sole owner of the suit premises. However the learned trial Judge held that the plaintiff is not entitled to recover the possession of the suit premises. The learned trial Judge has considered oral and documentary evidence in this behalf. 5. Being aggrieved and dissatisfied with the aforesaid judgment and decree of the trial court, Indravadan Natvarlal Patel filed Regular Civil Appeal No.4171 of 1981 before the learned Second Jt.District Judge, Vadodara somewhere on 22nd December, 1981. The learned Appellate Judge by his judgment and decree dated 30th August, 1988, allowed the appeal and quash and set aside the judgment and decree of the trial Court in Rent Suit No.3369 of 1975. The learned Appellate Judge held that the lower court has erred in holding that greater hardship would be caused to the defendant by passing the decree than to the plaintiff if the decree is refused. The learned appellate Judge held that on the contrary the greater hardship would be caused to the plaintiff by refusing the decree. 6. Being aggrieved and dissatisfied with the said judgment and decree of the learned appellate Judge, the petitioner original defendants tenant have filed this revision application before this Court somewhere on 18th November, 1988. 7. Mrs.Monali M.Bhatt, learned advocate appeared on behalf of the original petitioner. Before matter was heard, the learned advocate for the petitioners filed civil application No.12922 of 2001 in the main matter in which it has been stated that the learned appellate Judge reversed the judgment and decree of the trial court mainly on the ground of bonafide requirement on the part of the respondent landlord. It was the contention of the respondent landlord that the premises are bonafide required of his son Atul Patel. It has now transpired that Atul Patel has expired on 5th September, 1999. The death certificate issued by the Vadodara Municipal Corporation has been produced on record of the case in this behalf. 8. When the matter was placed for hearing before this Court, this Court issued notice on 20.12.2001 in this behalf. Notice has been served on the respondent landlord and Mr.N.K.Majmudar, learned advocate appears on their behalf. He has also filed Civil Application No.1636 of 2002 in this behalf for which I will make reference at the appropriate stage. 9. Learned advocate for the petitioners has made following submissions: 9.1 As per the deposition on record (page 71) the suit shop is admittedly an ancestral property. On the cut off date i.e. on 1.1.1964 the plaintiff does not have ownership right and at the best was only one of the co-owners. The suit was, therefore, not maintainable on the ground of non-joinder of parties. 9.2 It was further submitted that the lower appellate court decreed the suit on the ground of bonafide requirement of the plaintiff's son. As per the evidence now on record, son of the plaintiff has expired. It was the plaintiff's case that the suit shop was required for his son's business. In view of these changed circumstances, the very ground for eviction does not exist. 9.3 Learned advocate for the petitioners further submitted that the plaintiff wanted to carry on business with his son Atul and therefore this subsequent fact can be considered by this Court in view of the judgment of the Hon'ble Supreme Court in the case of GULABBAI VS. NALIN NARSI VOHRA AND OTHERS REPORTED IN AIR 1991 SC 1760 particularly para 25 which reads as under: "On a conspectus of all these decisions rendered by this Court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bona fide requirement." 9.4 Learned advocate for the petitioners has also relied upon the judgment of the Hon'ble Apex Court in the case of VALLAMPATI KALAVATHI Vs. HAJI ISMAIL REPORTED IN AIR 2001 SC 1441 particularly para 12 which reads as under: "When the litigation lingers on for years certain factual developments are not necessarily relevant for adjudication of the case. No doubt, in proceeding for eviction of the tenant on the ground of personal requirement of the landlord sometime subsequent developments may be relevant to be looked into for enabling the authorities to make a fair and proper adjudication of the controversy. While taking note of subsequent developments the authorities/Courts should keep in mind whether such material is relevant and can turn the balance in the case, the controversy should be decided with reference to the pleadings of the parties and the findings placed on record." 9.5 The learned advocate for the petitioners has also relied upon the judgment of the Hon'ble Supreme Court in the case of LEKH RAJ Vs. MUNI LAL AND OTHERS REPORTED IN AIR 2001 SC 996 and also judgment of this Court in the case of JAMNA MANGAJI Vs. VAKTAVARMAL GANGARAM AND OTHERS REPORTED IN 20 GLR 664 particularly para 5 which reads as under: "It is a settled legal position that a decree under Sec.13(1)(g) of the Rent Act is a personal decree. If a person dies or gets rid of the property, his personal requirement comes to an end." 9.6 In view of the aforesaid decisions of the Hon'ble Supreme Court, the learned advocate for the petitioners has made following submissions: (1) The lower appellate court decreed the suit on the ground of bonafide requirement of plaintiff now on record plaintiff's son expired. (2) As per the judgment of the Hon'ble Supreme Court subsequent event are required to be taken into account at the time of deciding the revision application and in support of the same the aforesaid decisions have been relied upon by the learned advocate for the petitioner. (3) He further submitted that the petitioners are still running the same business and do not have any source of livelihood. (4) It was further submitted that in cross-examination the landlord admits that he will not start business if he will not get the possession of the suit premises. It shows the emphasis on the possession of the premises rather than business requirement. No business is started anywhere upto even today. (5) It was further submitted that the landlord has also open land just behind the shop which he has sold away. The said open land was disposed off by the plaintiff in December 1974 to M/s.M.Ravji & Co. who constructed a commercial complex. If the plaintiff in fact needed the premises for starting any business even for his son, either he would not have disposed off the premises or he could have retained some interest in the premises when constructed by the purchaser. (6) It was further submitted that even the plaintiff had admitted that there are several shops in the buildings on this road on the first floors where various types of business are carried on, if the landlord was really serious to start the business he had enough space on first floor to start business or to hire a shop nearby as per his evidence so many shops are constructed he has not tried to get one and start business. (7) It was further submitted that the trial court had rightly appreciated that in this locality the business of Automobile Spare Parts, which was sought to be started by the plaintiff for his son, could not carried out. The trial court had arrived at a finding of fact that the two rooms and the open land available with the plaintiff were sufficient enough for the purpose of carrying on any business by the plaintiff if he intended to do so. 9.7 In this connection Mr.N.K.Majmudar, learned advocate for the landlord has invited my attention to the para 14 and 15 of the judgement and thereafter para 21 the learned appellate Judge has decided the need of his son. It is no doubt true that the father has retired in 1982 but plaintiff's father wanted to carry on the business of his son. In view of that fact the learned appellate court held that the need of the plaintiff is both reasonable and genuine. As the father already retired in 1982 and he wanted to carry on business in all respects the need of plaintiff is genuine and bonafide. In view of the same the learned appellate Judge held that the requirement of the plaintiff is both bonafide and reasonable in this behalf. 10. Mr. N.K. Majmudar has filed Civil Application No. 1636 of 2002. In this case he has stated that after the proceedings were over due to unfortunate incident of sad demise of the only son of the applicant, the applicant, his daughter-in-law and his grand children are in great difficulty and the applicant is getting pension of Rs. 3089/- per month. The applicant has to maintain himself, his wife, daughter-in-law and his two grand children Rumit and Parth out of the aforesaid meagre amount of pension of Rs. 3,089/- per month. It is submitted that they did not have any other source of income. It is submitted that his family members are residing on the first floor of the suit shop and two rooms are in possession of the applicant. The applicant now requires the suit premises for himself and for his daughter-in-law. Since the applicant has retired from service, he is finding it very much difficult to maintain his family from the aforesaid meagre income of pension. The applicant is 78 years old. In view of these submissions, the learned counsel for the applicant submitted that the subsequent events may be taken on record and thereafter this court may pass order. In support of the same, the learned counsel for the applicant has relied on decision of the Hon'ble Supreme Court in the case of MOHANLAL VS. TRIBHOVAN reported in AIR 1963 SC 358 in which at para 7 on page 361 the Hon'ble Supreme Court has observed thus:- "In our opinion, this argument is without any force. If the landlords had obtained an effective decree and had succeeded in ejecting the tenants as a result of that decree, which may have become final between the parties, that decree may not have been reopened and the execution taken thereunder may not have been recalled. But it was during the pendency of the suit at the appellate stage that the second notification was issued cancelling the first. Hence the Court was bound to apply the law as it found on the date of its judgement. hence, there is no question of taking away any vested rights in the landlords. It does not appear that the second notification, cancelling the first notification, had been brought to the notice of the learned Single Judge, who heard and decided the second appeal in the High Court." 10.1 He has also relied on the judgement of the Hon'ble Supreme Court in the case of .... AIR 1981 SC 1113 particularly para 15. 10.2 He has also relied on the decision of the Hon'ble Supreme Court in the case of RAMESH KUMAR VS. KESHORAM reported in 1992 Supp. (2) SCC 623, JAI MANGAL ORAON VS. MIRA NAYAK (SMT) AND OTHERS reported in (2000) 5 SCC 141 in which on page 149 at para 12 the Hon'ble Supreme Court has held as under: "We have carefully considered the submissions of the learned counsel appearing on either side. The details relating to some of the subsequent developments brought on record in the shape of the relevant orders passed by the competent authorities disclose a disturbing picture bordering on gross misuse and abuse of process of court involving serious criminal offences too. It is rather surprising that a place where he had to face a factual inquiry the appellant seems to have gone underground to avoid the arms of law taking its course but continue to fight in absentia in this Court. We do not propose to indict the appellant for all such misdeeds ourselves since, law in due course will take care of the situation, as it deserves. Such vital facts now coming to light, which are not only grave and serious but also go to the root of the matter, undermining the very basis of his claims and even locus standi or right to agitate before courts in relation to the property in question, cannot be totally ignored to permit perpetuation of grave injustice and abuse of process of court. Those facts themselves constitute, in our view, sufficient ground to dismiss these appeals. It is by now well settled that even subsequent developments or facts and turn of events coming into existence but found really relevant, genuine and vitally important in effectively deciding the issues raised and necessary to do real, effective and substantial justice or prevent a miscarriage of justice not only can but ought to be taken into consideration by courts even at the appellate stage." 10.3 He has also relied upon the judgment of the Hon'ble Apex Court in the case of Gaya Prasad v. Pradeep Shrivastava reported in 2001 AIR SCW 598. In that case in para 10 and para 11 the Hon'ble Apex Court has observed as under: "We have no doubt that the crucial date for deciding as to the bona fides of the 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 long as the unfortunate situation in our litigative slow process system 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 new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the mater for such unduly long period. We cannot forget that while considering the bonafides of the need of the landlord the crucial date is the date of petition. In Ramesh