ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 7899 OF 2005 PETITION NO. 7899 OF 2005 PETITION NO. 7899 OF 2005 1. Anandilal Tulsidas Thanawalla, Age 65 years, 2. Kishanlal Tulsidas Thanawalla, 3. Hariantlal Tulsidas Thanawalla, 4. Laxmikant Tulsidas Thanawalla, 5. Rajnikant Tulsidas Thanawalla, 6. Jayantilal Tulsidas Thanawalla, 7. Miss. Aruna Tulsidas Thanawalla, All residing at Thanawalla Building, 3rd Floor, Fanaswadi, Mumbai-400 002. ...Petitioners (Orig.Plaintiffs) Vs. 1. M/s.Shyamsunder Metal Industries, a firm, carrying on business at Thanawalla Building, Mumbai-400 002. 2. The Court Receiver, High Court, Bombay, having his office at Bank of India Building, Fort, Mumbai-400 001. ...Respondents. (Orig.Defendants) Shri Anandilal Tulsidas Thanawalla, Petitioner No.1 in person, present. Shri Jayantilal Tulsidas Thanawalla, Petitioner No.6 in person, present. Smt.Rekha Shukla for the Respondents. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ( 2 ) DATED DATED DATED : 15TH JANUARY, 2009. : 15TH JANUARY, 2009. : 15TH JANUARY, 2009. JUDGMENT: JUDGMENT: JUDGMENT: The Petitioners / Original Plaintiffs / Landlords have challenged the impugned order passed by the lower Appellate Bench of Small Causes Court, Mumbai whereby while reversing the eviction decree for possession, has dismissed the suit itself. 2. The Petitioners / Orig. Plaintiffs are the landlords of the suit building. The suit premises situate on the first floor of Thanawalla Building, Fanaswadi, Mumbai - 400 002. 3. Respondent / Orig. Defendant No.1, prior to the termination of their tenancy, was tenant of the Petitioners. 4. Respondent / Defendant No.2 is the Court Receiver appointed by the Hon’ble High Court in a Suit No.1263 of 1973 and being necessary party has been joined as party Defendant No.2. Now in place of Court Receiver, an arbitrator has been appointed and at present suit premises is in the custody of the Arbitrator. 5. The Petitioners instituted a suit being R.A.E. & R. ( 3 ) Suit No. 522/2266/1977 in the Court of Small Causes at Bombay, to recover the suit premises from the Defendant on the ground of:- "(a) Arrears of Rent from 01/05/1971 at the rate of 46.67 ps.at the time of filing of the suit. Defendant No.1 was in arrears of rent to the tune of Rs.1145.82 ps. (b) Defendant No.1 is not using the premises for the purpose for which it was let out, since last six months preceding the date of filing of the suit and therefore, liable to be evicted. (c) The Plaintiffs require the suit premises for their own bonafide personal use and occupation and that there will be no hardship to the Defendant." 6. By way of amendment in the year 1995, para 10-A is added and the details of the Plaintiffs requirement are given and the particulars of the premises in their respective occupation are furnished. ( 4 ) 7. The Plaintiffs in their amended Para 10-A of the Plaint also alleged that Plaintiff No.5 in January, 1995 got heart attack and it is very difficult to climb staircase. Therefore, it is prayed that the suit premises on the first floor is required reasonable and bonafide use. 8. Defendant No.1 filed Written Statement on 22/02/1979, denied validity of the Notice of termination of tenancy. They denied service of Notice dated 01/12/1975, and stated that there was dispute between the partners of Defendant No.1 and one of the partner instituted Suit No.1263 of 1973 in the High Court for dissolution of partnership firm. In that suit, the Court Receiver, High Court was appointed with the result the Defendants could not use the suit premises. It is further stated that the Defendants paid the amount to the landlords and deposited with the Court Receiver. Therefore, they are protected under the Bombay Rent Act. By filing additional Written Statement, they also denied that the requirement of the plaintiffs is reasonable and bonafide. They also denied that greater hardship would be caused to the Plaintiffs if the decree is refused. ( 5 ) 9. The Trial Court held; that the Petitioners require the suit premises for their personal use and occupation; hardship would be caused to the Landlord by refusing such decree and not to the Respondent / Tenant; Defendant No.1 was in arrears of rent from 01/05/1975; due legal and valid notice was served upon Defendant No.1; and was unready and unwilling to pay the rent and; thereby granted the decree for possession and arrears of rent as prayed. 10. Petitioner No.2, 4, 5 and 8 are already expired, pending the proceedings. The cause of action still survives with regard to the other owners/ Landlords of the premises. Therefore, the matter heard finally as listed specifically under the caption of Senior Citizen matters at the request of remaining Petitioners. 11. The Landlords in the suit pleaded their case of bonafide requirement and gave further details and evidence. The requirement of Petitioner No.5 on the ground that he was suffering from heart attack at Baroda; he was advised not to climb staircase and, therefore, being one of the owners / Landlords along with other brothers and their growing families, prayed for possession of the premises. They are in possession ( 6 ) of 6 rooms on the 3rd floor and 5 rooms on the 4th floor, each admeasuring about 100 sq.fts. The evidence was led accordingly. They have given details in evidence as recorded by the Appellate Court in following words. . "In para 11 of his examination-in-chief, he deposed about their requirement. He deposed, he is residing in one room on the third floor with his family consisting of himself, his wife and two daughters. he is 66 years old and residing in a single room of 10’ x 10’. In Para 12 he deposed his brother Kishanlal was residing in two rooms on the third floor with his family consisting of himself, his wife, two daughters and two sons. Kishanlal died during the pendency of the suit. His family is occupying two rooms. In para 13 he deposed that his brother Bhailal Plaintiff No.3 resides on fourth floor in three rooms. At the time of filing of the suit, he was residing alongwith his son and daughter. Plaintiff No.4 is ( 7 ) bachelor and residing on the third floor; Plaintiff No.5 is residing in two rooms on the fourth floor. Plaintiff No.6 resides on third floor in a single room. Plaintiff Nos. 7 and 8 are unmarried sisters residing in single room. This evidence is led about the premises available to them. In addition to this, he also deposed in 1995 Plaintiff No.5 suffered heart attack and was advised not to climb upper floors. On this evidence in examination, he is cross-examined by the appellants’ advocate." . "Five rooms on the fourth floor are occupied by Plaintiff No.3 and 5. 12. The Trial Court, in my view, had considered the basic principle that the Landlord is a best Judge of his requirement. A bonafide and genuine need if proved, a decree of bonafide need must followed. In the present case though out of 8 Petitioners 3 Petitioners are dead, still the requirement of other Landlord brothers and their family, just cannot be overlooked, basically when the area in occupation as recorded above is not ( 8 ) specious. The each room is about 100 sq.fts. The submission that one brother shifted to Baroda, is also no reason to discard the case of others. Some rooms were let out, pending the proceedings long back even prior to the filing of the suit is also no reason not to grant possession on the ground of bonafide need, now as required and claimed. One brother of the Landlords though shifted to Baroda that does not mean that he is not entitled to have a premises at Mumbai, to shift back and to occupy his own premises which were not available at the relevant time when shifted to Baroda. The requirement of Plaintiff No.5 to have premises on the ground floor because of his ailment and advanced age, at the relevant time as he was alive is overlooked by the Appellate Court by rejecting the case of all the Landlords on a ground that he is no more. In my view, the requirement of other brothers who are Senior Citizens specially No.1 and 6, just cannot be overlooked when they want the premises for their own accommodation. 13. Admittedly, the suit was filed in 1977 for requirement of premises for all the brothers and sisters. Some of the brothers and sisters, as referred above, are dead. But, considering the area of the premises as referred above, it is difficult to accept ( 9 ) the case of Respondent / Tenant that the Landlords have to accommodate themselves in the premises available and as their need is reduced because of death of other Landlords and as the additional accommodation is also available to them. The death of family members in my view, in the present facts and circumstances of the case, considering the area of the rooms, is no reason to discard their case. The growth in the family is also important. 14. Shri Vipul Rajnikant Thanawalla, who is son of Plaintiff No.3, has been given on the 4th floor premises by Plaintiff No.5 in the year 1986. One room was also allegedly to be let out to Vijay Hiralal Shah who is nephew as recorded in the evidence of P.W. 2. Still in my view, the requirement of the landlords and Family members of more space cannot be rejected. 15. Booking of flat by one of the Landlords, pending the litigation of this nature, is immaterial. 16. In the present case, the reasoning given by the Trial Court with regard to the bonafide need is based upon the material available along with the evidence. There was no perversity to interfere with the same. ( 10 ) Therefore, in my view, the order passed by the Trial Court is correct with regard to this. The order passed by the Appellate Court is incorrect. The change of circumstances in the present case, in no way sufficient to discard the case of the Landlords of their bonafide need of the said premises. In my view, the bonafide need of Landlords is reasonable and genuine and once it is held that, the hardship will cause to the Petitioners / Landlords, if no possession is given, as rightly observed by the Trial Court. 17. Admittedly, as the Receiver was appointed, the termination and demand notice in question was not duly served as it was never served on the Receiver who was incharge of the property in question pursuance to the order passed by the High Court. The impugned notice was admittedly not served upon the Receiver who was in possession of the premises. There was clear intimation from the Receiver to collect the rent from him, the premises was also sealed. Therefore, notice by Registered A.D. or certificate of posting cannot be said to be valid notice under Section 12 (2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "the Rent Act"). It is stated that pursuance to the demand notice of the year 1971, ( 11 ) the Rent was sent by money order. In the year 1975, as Receiver was appointed, the endorsement was "not claimed", returned to same. In this background, the finding given by the Appellate Court that there was no proper service, needs no interference. In view of above, it is also clear and as rightly observed by the Appellate Court, that there is reasonable cause and reason shown that the tenant could use the said premises, as the Receiver was appointed, initially and now later on the arbitrator is incharge of the premises. The suit between the Partners / tenants is pending since 1974. Therefore, no one is in possession to use and utilize the said premises for their business purpose. This is an admitted position on record, therefore, has rightly considered by the Appellate Court that mere non user would make the tenants possession. Therefore, there is a reasonable cause that they are unable to use the said premises, as contemplated under Section 13(1)(k) of the Rent Act. Therefore, on this ground also I am inclined to interfere with the same. 18. However, considering the facts and circumstances of the case, and as already observed above that the Petitioners / Plaintiffs have established their case, genuine and bonafide requirement of the premises, and as ( 12 ) the landlords being owners of the premises are entitled to utilize and use the premises according to their convenient and desire and as the tenant or Court cannot compel to utilize the existing premises which according to the landlords not sufficient and as the issue of comparative hardship goes in favour of the Plaintiffs / Landlords. I am inclined to maintain the order of eviction as passed by the Trial Court dated 25/02/1999. The impugned order dated 02/09/2005, therefore, quashed and set aside. 19. The Petition is allowed in terms of prayer clauses (a) (b) and (c). No order as to costs. 20. On the request of the learned counsel appearing for the Respondents, the effect and operation of this Judgment is stayed for ten weeks, on condition that there should be no third party right or interest created in the premises and pay the arrears of rent, if any, within that period. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)