1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 5305 OF 1989 WITH CIVIL APPLICATION NO.2173 OF 2006 1) J.Marathe, ) since deceased on 27-7-87 ) through his legal heirs: ) A. Mrs.Uma Vijay Gune w/o ) Capt. Vijay Gune, residing at ) Post Ashwi, District Ahmednagar. ) ) 2) Ravi Marathe, ) residing at Flat No.D-2, ) Bharatiya Bhavan Co-op.Hous. ) Society, 658/654, 17th Road, ) Khar, Bombay 400 052. ).Petitioners. V/s. ) P.V.Kaloke ) residing at Bharatiya Bhavan ) Co-op. Housing Society Ltd., ) 4-B, 17th Road, Khar, ) Bombay 400 052, at present ) residing in America, since 1972 ) through his Power of Attorney Holder ) Mrs.Jotika Kothari c/o.A.P.Kothari, ) Hiten Apartments, Sherly Village, ) Bandra, Bombay 400 050. ).Respondent. Mr. Madhav Jamdar for Petitioners. Mr.P.S.Dani for Respondent. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : APRIL 8, 2009. : APRIL 8, 2009. : APRIL 8, 2009. JUDGMENT JUDGMENT JUDGMENT : : : 1. This Writ Petition takes exception to the Judgment and Decree passed by the Appellate Bench of the Small Causes Court dated 28th September, 1989 in Appeal No.507 of 1985 thereby confirming the Judgment and Decree passed by the Trial Court dated 16th 2 August, 1985 in R.A.E. & R. Suit No.390/2552 of 1970. 2. The Respondent/landlord filed suit for recovery of arrears of rent and compensation as also possession of the premises bearing flat No.D-2, Bharatiya Bhavan Co-operative Housing Society situated at 653/654. 17th Road, Khar, Mumbai on the grounds of default, bonafide requirement, unlawful subletting and defendant having acquired alternative residential accommodation elsewhere. The Trial Court decreed the suit in favour of the Respondent/landlord on the ground of bonafide requirement and tenant having secured alternative suitable accommodation elsewhere. The said decision was unsuccessfully carried in appeal by the Defendants/tenants. Even the Appellate Court confirmed the decree for possession on the aforesaid two grounds, while dismissing the Appeal preferred by the tenants. Against these concurrent decisions present Writ Petition under Article 227 of the Constitution has been filed by the tenants. 3. Insofar as the ground of bonafide requirement, the Respondent averred in his plaint that he required the suit premises reasonably, bonafide and for his own use and occupation. He 3 further asserted that he had no other residential premises of his own elsewhere. The tenants/defendants in the Written Statement merely denied the claim of the Plaintiff that he requires the suit premises reasonably and bonafide for his own use and occupation. The Defendants asserted that the Plaintiff was staying alongwith his father in the same building Bharatiya Bhavan Co-operative Housing Society Ltd. in another flat, which premises were sufficient for the Plaintiff. The Defendants further stated that they had no other premises in Mumbai and greater hardship would be caused to them, if they were ordered to be evicted. The defendants denied that the first Defendant was not in possession and the second defendant was unlawful occupant of the suit premises. This is the only case made out by the Defendants in the Written Statement, as can be discerned from para-5 thereof. 4. On the basis of such pleadings, the parties went for trial. During the trial, the Plaintiff examined himself as well as his younger brother Shashank. Defendant No.1/tenant did not enter the witness box himself. The Defendant No.2, who is the son of Defendant No.1 and claims to be residing in the suit premises, was examined as defence witness. The Trial Court analysed the evidence adduced by the 4 Plaintiff. The Plaintiff had stated that he was presently staying with his mother in Flat No.4-B which is adjacent to the suit premises and the said flat was of identical dimensions as that of the suit premises admeasuring about 600 sq.ft. The Plaintiff has however, deposed that his younger brother and mother were also residing in the said flat, which stands in the name of his mother. The Plaintiff has asserted that he would require an independent accommodation for himself and his family. When he gave evidence before the Trial Court, his family consisted of himself, wife and two children between 3 to 5 years of age. The Trial Court has further noticed that the Plaintiff in his evidence has stated that he was in medical profession and after obtaining MBBS from Mumbai University in 1972, for some time he worked as House Physician in K.E.M. Hospital at Mumbai. Thereafter till 1977, the Plaintiff was in England where he completed Senior House Officers course. The Plaintiff thereafter, returned to India in June, 1977 and again went to the United States of America, where he completed three years’ course in neurology. The Plaintiff has deposed that he was practising his profession in Chicago in U.S.A. 5. Relying on these facts stated by the Plaintiff, it was argued before the Trial Court that 5 the evidence of Plaintiff would indicate that for last about 7 to 8 years, the Plaintiff was living in USA and practising his profession there. As a result, there was no chance of Plaintiff returning to India. This argument has been rejected by the Trial Court on the finding that from the evidence of the Plaintiff, it does appear that he sincerely and honestly desires to return to his own country(India). The Trial Court has also noted that the Plaintiff has not applied for nor obtained citizenship of America but still continues to be an Indian national. The Trial Court has then observed that the evidence of Plaintiff would also indicate that his mother also insisted on his(Plaintiff) returning to India(Mumbai); since he was the eldest in the family and his mother was dependent on him. The Trial Court has further found that from the Plaintiff’s evidence it appears that his wife is also a physician and they find it very difficult to manage their family affairs and look after their children. On analysing the evidence of the Plaintiff, the Trial Court unhesitatingly found that it is quite reasonable and genuine that the Plaintiff wants to return to India and for which reason his claim of requirement of the suit premises was genuine. The Trial Court specifically dealt with the argument advanced on behalf of the Defendant No.2- that assuming the 6 Plaintiff was to return to India, however, has not clearly spoken about his plans as to when exactly he intends to shift back to India from U.S.A. The Trial Court proceeded to hold that even if the Plaintiff has not given such definite period as to when he intends to permanently return to India, the evidence would establish that he has decided to return to India on the assumption that he would get back possession of the suit premises. The Trial Court has also noted the fact that as the Plaintiff’s mother and brother Shashank and other close members of his family were staying in India, he had more than a mere desire to come back to India. The Trial Court has also opined that the Plaintiff has not applied for citizenship of U.S.A. which clearly indicates that the Plaintiff really intends to return to India for good, for which his requirement of suit premises was genuine. The Trial Court has rejected the stand taken by the advocate for the Defendant No.2 that a person who lived in USA for 7 to 8 years would ever think of returning to India, being devoid of merits. The Trial Court has clearly found as of fact that the Plaintiff’s version that he intends to return to India and settle down with his family has not been challenged in the cross-examination on behalf of the Defendant No.2. Moreover, the Defendant No.1 who was the contractual tenant abstained himself from 7 participating in the trial. The Trial Court has further found that it was not even suggested to the Plaintiff that his plea that he intends to return to India was false. On that basis the Trial Court found that it must be presumed that the defendants do admit and accept by necessary implication the claim of the Plaintiff that he wanted to return back to India and settle down here for the good. The Trial Court has also considered the argument canvassed on behalf of the Defendants that even if the Plaintiff planned to return to India, he could always fall back upon his mother’s flat where his mother and brother Shashank were residing, which could easily accommodate the Plaintiff and his family members. The Trial Court has found that the said flat No.4B stands in the name of Plaintiff’s mother, as it was allotted to her by the Housing Society as she was its member. The Trial Court has further opined that the Defendants have clearly conceded that the suit premises are owned by the Plaintiff. Correctness of the finding that the Plaintiff is the owner of the suit premises has not been debated before this Court. The Trial Court has also noted that the Society has accepted the Plaintiff as tenant member in respect of the suit premises and allotted the same in his name as member, which are independent premises. The Trial Court further found that the adjacent flat No.4B belongs to 8 the Plaintiff’s mother and she was living with her son Shashank who was still unmarried and after marriage would require his own independent accommodation for his residence. The Trial Court has then noted that the Plaintiff is a well qualified neurologist and enjoys a fairly high status in Society. His family also comprises of four members and to ask them to live in Flat No.4B alongwith Shashank and his mother who are already occupying the same would be improper. The Trial Court has noted that there is no dispute that except the suit premises, the Plaintiff does not have any other premises of his own in Mumbai. Taking all these aspects into account the Trial Court found that the demand for possession of the suit premises put forth by the Plaintiff was bonafide and reasonable. Further, in absence of independent premises, it was not possible for the Plaintiff to settle down in Mumbai irrespective of his keenness to do so. Significantly, the Trial Court has found that the Defendants have not suggested any oblique motive in regard to the Plaintiff’s requirement, as nowhere it was suggested to the Plaintiff that he does not wish to occupy the suit premises but he intends to dispose it off for a fat price or premium. On this finding the Trial Court opined that it therefore, follows that the Defendants did not seriously dispute the 9 proposition that the Plaintiff would require suit premises for his residence as and when he comes back to India. The Trial Court has then dealt with the argument of the Defendant No.2 that such a requirement was not requirement in presenti but dependant on some future happenings. If it is so, the claim of the Plaintiff should be rejected. The Trial Court has negatived that plea on the finding that it is now well settled that the landlords need arising in near foreseeable future, as is the case here could very well be considered. That the landlord’s need need not be immediate and existing on the date of the suit and the landlord, who asks for ejectment of the tenant in anticipation of his requirement of the premises in reasonably foreseeable future will be legitimate. 6. Reverting to the evidence of the Plaintiff, the Trial Court has found that the landlord planned to return to India to settle down permanently and for that matter has not obtained citizenship of the country where he is presently pursuing his medical profession. His plan to return to India could be materialised only if he were to get possession of the suit premises. For that reason, the Plaintiff’s claim was not only bonafide and reasonable but genuine one, even though the Plaintiff has not given 10 a fixed time limit before which he intends to return to India in the future. The Trial Court has then dealt with the argument of the Defendant No.2 that the Plaintiff’s brother Shashank, who is examined as witness had conceded that the requirement of the Plaintiff would arise only after his marriage. The Trial Court has rejected that argument. It has held that even if Shashank were to get married or not, the Plaintiff and his family cannot be possibly asked to share Flat No.4-B, where his brother Shashank presently resides. The Trial Court has once again reiterated the finding that the evidence of the Plaintiff would establish that he required the subject flat for his residence when he comes back to India as per his plan. The Trial Court has opined that the Defendants did not offer any resistance to the Plaintiff’s claim of requirement as no suggestion has been put to the Plaintiff about the said claim. Moreover, the Defendant No.1 who was the tenant himself did not appear before the Court and offered himself for cross-examination by the Plaintiff. The Defendant No.2 was unable to offer any tangible evidence as to on what basis he has asserted that the Plaintiff’s claim of requirement was false. Whereas, he admits that he has assumed that the requirement is false as similar accommodation was available to the Plaintiff in the same building. The Trial Court has 11 found that the Plaintiff has no other flat available for his residence in his own right. The other flat was in the name of Plaintiff’s mother where the Plaintiff cannot possibly stay alongwith his entire family. On this basis the Trial Court accepted the claim of the Plaintiff and answered the issue of bonafide and reasonable requirement against the Defendants/tenants. 7. Notably, the Appellate Court has reiterated the view taken by the Trial Court and has affirmed the finding of fact recorded by the Trial Court on the issue under consideration. Even before the Appellate Court, the first argument was that the Plaintiff had another flat available in the said building, being Flat No.4-B. That argument has been rejected by the Appellate Court more or less on the same basis as recorded by the Trial Court. Even the Appellate Court has found that the Plaintiff has no other premises of his own, which could be used for his residence. The Appellate Court has also accepted the claim of the Plaintiff that he has more than a mere desire to return to India, which is his mother land. The Appellate Court has also found that the Plaintiff and his wife were finding it difficult to adjust themselves in USA and intend to come back to India. It has noted that the Plaintiff has not 12 obtained green card, which is suggestive of the fact that he has no intention to stay permanently in USA. The Appellate Court has then found that it would not be possible for the Plaintiff and his family to stay jointly alongwith his mother and brother Shashank in Flat No.4B when he returns to India. Therefore, the plaintiff would require the suit flat for his personal use and occupation. The Appellate Court has noted that the Defendant No.2 in his evidence during cross-examination admitted that it is his inference that the Plaintiff is not likely to return to India from USA, however, did not produce any positive evidence to contradict that claim of the Plaintiff. The Appellate Court has then noted that the Defendant No.2 in his cross-examination has also said that in his opinion, the claim of the Plaintiff was false because the Plaintiff has similar accommodation in the same building namely, the premises of his mother Flat No.4B. The Appellate Court has rejected this argument of the Defendants that the said premises Flat No.4B would be sufficient to accommodate the Plaintiff, his family as well as his brother which was admeasuring only 600 sq.ft. The Appellate Court has also opined that the Defendants failed to substantiate that the Flat No.4B would be sufficient to accommodate the Plaintiff, his wife, two children, his mother and brother. The Appellate Court has 13 accordingly, concurred with the finding of fact reached by the Trial Court on the issue of requirement of the Plaintiff of the suit premises for his own occupation bonafide and reasonable. 8. In the present Petition, the Petitioners have questioned the correctness of the above said concurrent findings of fact recorded by the two Courts below. However, keeping in mind the parameters for interference in exercise of writ jurisdiction, after having waded through the pleadings and evidence produced by the respective parties with the assistance of the Counsel for the parties, in my opinion, the view taken by the two Courts below is just and proper. By no standard, it can be said to be perverse, manifestly wrong or error apparent on the face of the record. The view so taken needs no interference at all. 9. To get over this position, however, Counsel for the Petitioners vehemently argued that on proper analysis of the Plaintiff’s evidence, it would be noticed that the Plaintiff in his evidence has admitted that he would not be able to stay in one bed room flat. Relying on this admission, it is argued that even the suit premises consisted of one bed room flat. The argument though attractive will have to be 14 stated to be rejected. In the first place, the claim of the Plaintiff has not been challenged in the Written Statement on this count. In the Written Statement as is noted earlier, the Defendants have merely denied that the Plaintiff required the suit premises reasonably and bonafide for his own use and occupation. Defendants have then stated that the Plaintiff was staying alongwith his father in the same building. The argument now canvassed before this Court has not been specifically pleaded in the Written Statement. Moreover, what is overlooked by the Petitioners is that the Plaintiff claims possession of the suit premises so that when he returns to India, he could have an independent residence of his own for himself and his family i.e. his wife and children. In that, the other premises stood in the name of his mother; whereas the suit premises belonged to the Plaintiff. Besides, the statement of the Plaintiff in his evidence, on which emphasis is placed by the Defendants, cannot be read out of context. The Plaintiff has asserted that he would not be able to share other premises (which stands in the name of his mother), alongwith his mother and his younger brother. Moreover, he has stated that his younger brother was of marriageable age. Naturally therefore, the Plaintiff has deposed that he would not be able to share one bed room flat, 15 which means he would not be able to share one bed room premises alongwith his mother and younger brother. For that reason, the plaintiff would require independent residential premises for his own use and occupation. 10. It was then argued that the other premises which stood in the name of plaintiff’s mother after demise of his mother was allowed to be transferred in the name of his younger brother Shashank. The Petitioner has given his no objection for that transfer and has relinquished his rights in respect of the said premises. This, however, in my opinion, would not militate against the Plaintiff. The Plaintiff has done that with a view to amicably resolve family matters after the demise of his mother. In that, the Plaintiff’s father purchased two flats together when the plaintiff was a minor. One flat was taken in the name of his mother and the other (suit premises) in the name of the Plaintiff. Obviously, therefore, the Plaintiff already got his full share and had to relinquish his interest in the other flat in favour of his younger brother after the demise of their mother. This development does not take the matter any further. In other words, the premises which stood in the name of mother, ordinarily, ought to have been inherited by all her 16 heirs and legal representatives. However, as per the family arrangement, the Plaintiff as also the other heirs relinquished their rights in respect of the said premises. For, it was decided to transfer the said flat in the name of younger brother Shashank, who stayed in the said premises alongwith his mother. The said arrangement is quite natural and reasonable. Genuineness thereof cannot be doubted. Accordingly, the factum of Plaintiff relinquishing his right in respect of another flat in favour of his younger brother cannot be the basis to doubt the bonafide and reasonableness of the requirement of the Plaintiff in respect of the suit premises. 11. It was then argued that the said premises now transferred in the name of Plaintiff’s younger brother Shashank are mostly found locked for quite some time. In that, the Plaintiff’s brother has also shifted to USA. Even, the Plaintiff’s mother during her life time intermittently visited USA and returned to India only to stay for a while in the said premises and again went back to USA. In this backdrop, it was contended that the Plaintiff can use the said premises when he would return to India. This aspect has been countered by the Respondent/Plaintiff on affidavit. He has denied the case made out by the Petitioners in the affidavit 17 dated 17th January, 2007. He has asserted that in order to maintain cordial relation with his brother he consented to transfer of the said flat No.4B in favour of his brother, which event cannot be made the basis to doubt his genuineness of his requirement. He has also denied that Flat No.4B is kept locked for last several years. The fact remains that said flat now stands in the name of Plaintiff’s younger brother Shashank. The Plaintiff has no other residential premises of his own in Mumbai. Assuming that the suit flat No.4B is kept in locked condition, that cannot be the basis to non-suit the Plaintiff or to doubt his bonafide and genuineness of his requirement in relation to the suit premises. To my mind, this is only an argument of desperation. 12. The Counsel for the Petitioners was at pains to persuade me to take the view that in the cross-examination of the Plaintiff by the Defendants, questions have been put which clearly challenged the factum of requirement of the Plaintiff being genuine, reasonable and bonafide. It is not possible to countenance this submission. The questions posed and on which emphasis was placed are only in the nature of suggestions which in any case have been denied by the Plaintiff. The fact remains that the two Courts below have appreciated the evidence and have recorded 18 concurrent opinion on the issue under consideration. Assuming that there is some error here or there, that cannot be the basis to interfere in writ jurisdiction. In my opinion, the findings of fact recorded by the two Courts below are neither manifest error or error apparent on the face of record or perverse, so as to exercise writ jurisdiction. 13. It was then vehemently argued on behalf of the Petitioners that from the evidence of the Plaintiff, it was obvious that he was staying in America for quite some time. There was no possibility of his return to India. Even the Defendant No.2 in his evidence has stated so. According to the Counsel for the Petitioners, the Plaintiff was expected to file affidavit before this Court disclosing that he has not taken either citizenship of USA or green card and that he continues to be citizen of India. The Plaintiff has failed to file any affidavit disclosing the same, which presupposes that the Plaintiff has no intention to return to India. Therefore, it can be safely inferred that the plaintiff would not permanently settle down in India; whereas the requirement pressed into