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.440 OF 1994 Chotumal Bahiramal Sindho (since deceased) through his legal heirs and representatives. 1a) Sudama Jodharam Hanswani, 1b) Manohar Hotumal Hanswani, 1c) Indira Sinkumar Israni, 1d) Kalavati Pitambar Tekwani, 1e) Shanti Shrichand Digreja. residing at Holaram Colony, Sharanpur Road, Nasik. ..Petitioner. V/s. Baburao Vinayak Mohadkar (since deceased) through his legal heir and representatives: 1A) Shri Dattatraya Baburao Mohadkar, adult, R/a. Guruprasad, Asher Estate, Pune Road, Nashik Road, Nashik. 1B) Jaywant Baburao Mohadkar,adult, 1C) Shri Yeshwant Baburao Mohadkar,Adult, Both R/a 14/4, Bhadrakali Road, Nashik. 1D) Mukund Baburao Mohadkar, adult, R/a 11, Shakti Co-op.Hsc.Soc.Indira Nagar, Nasik. 1E) Smt.Kusum Baburao Mohadkar,adult, R/a 14/4 Bhadrakali Road, Nashik 1F) Smt.Suman Prabhakar Vispute,adult, R/a Kapilkunj Building, Opp.Parvati Chinema, Vasai Road, Vasi, Dist: Thane. 1G) Smt.Prabhavati B.Dindorkar, adult, R/a. 207, Sheetal Building, Apna Ghar Co-op.Hos.Soc.Swamisamartha Nagar, Andheri(W),Mumbai. ..Respondent. 2 WITH WRIT PETITION NO.3271 OF 1994 Shri Baburao Vinayak Mahadkar since deceased through L.Rs.and heirs. 1A. Shri Dattatraya Baburao Mohadkar Adult-42,Guru Prasad, Ashee Estate, Pune Road, Nasik Road, Nasik-422 001. 1B. Shri Jaywant Baburao Mohadkar Adult 1C. Shri Yashwant Baburao Mohadkar Adult,Nos.1B & 1C Residing at 1414, Bhadrakali Road, Nasik 422001. 1D. Shri Mukund Baburao Mohadkar Adult,Residing at Shakti Co-op. Housing Society, Indira Nagar, Nasik. 1E. Smt.Kusum Baburao Mohadkar Adult, Res.at 1414, Bhadrakali Road, Nasik 422001. 1F. Sau.Suman P. Visphule. Adult, Res.at Kapilkunj Building, Opp.Parvati Cinema, Vasai Road, Vasai, Dist.Thane. 1G. Sau. Prabhavati B.Dindorkar, Adult, 207, Sheetal Building, Apna Ghar Co-op.Hou.Socciety, Swami Samarth Nagar, Andheri(west), Mumbai. ..Petitioners V/s. 1) Shri Hotumal Bahirumal Sindhi since deceased through his heirs and LRs. 1A) Manoharlal Hotumal Hauswani Block No.20, Krishi Nagar, College Road, Nashik-5. 1B) Sau. Indra Sinkumal Israni 3 Block No.18, Section No.1687 Kalyan Camp No.3, Ulhasnagar. 1C) Shri Kalawanti P. Tekwani, Kumar Nagar, Dhule. 1D) Sau Shanti Shrichand Dingreja 5/B-2 Vimal Viar, Satar Road, Bibewadi, Pune. 1E) Sudama Jodharam Hanswani, adult,Occ: Business of Gauri Shankar Metal Mart, 1414 Bhadrakali Road, Nasik-1. ..Respondents. Mr.M.M.Sathaye for petitioner. Mr.V.A.Thorat for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 6, 2009. DATE : MARCH 6, 2009. DATE : MARCH 6, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. This Judgment will dispose of both the Writ Petitions, which are directed against the self-same Judgment and Decree passed by the 5th Additional District Judge, Nasik dated 12th October, 1993 in Civil Appeal No.333 of 1989, allowing the Appeal preferred by the landlord and setting aside the order passed by the Trial Court dismissing the suit and instead ordering delivery of vacant possession of Eastern portion of the suit property admeasuring 6 ft. x 10 ft. to the landlord within three months from the date of the order with further consequential directions. 4 2. The former Writ Petition is filed by the tenant, whereas the later by the landlord. The tenant has questioned the correctness of the finding recorded on the issue of bonafide and reasonable requirement of the landlord and also on the issue of comparative hardship and of ordering partial eviction from the suit premises. On the other hand, the landlord has challenged the finding on the issue of comparative hardship and the decree for possession limited to partial eviction and not for the whole of the suit premises. 3. The landlord filed suit for possession before the Civil Judge, Junior Division, Nasik being RCS No.110 of 1981 in respect of the Municipal House No.1414B situated on Bhadrakali Road, Nasik upon CTS No.2028B, which is a shop premises consisting of three Khans. The relief of possession was claimed on diverse grounds. However, in the present Petitions, filed by the landlord as well as the tenant, the only ground for possession that needs to be addressed is bonafide and reasonable requirement of the landlord and that of comparative hardship and partial eviction. In the context of these issues, in paragraph-6 of the plaint, the landlord has asserted 5 that he was engaged in goldsmith business. He has four sons who have become major. The eldest son is Dattatraya aged 32 years, who is in service. Second son Jaywant, about 30 years. Third son Yashwant is of 26 years. Both these sons were unemployed and were extending help to the landlord in his goldsmith business. He has stated that his first three sons have been married. It is then stated that the Plaintiff has only one shop in his possession, which can be used by him for his business. It is then stated that in the western side of the said shop, there is one staircase for going upstairs and beneath that staircase there is very little space, which is not useful for the shop. It is further stated that his youngest son was doing business in the shop which was in his possession. His son uses the space below the staircase for putting up Bhatti and also stores his business items. The landlord has asserted that the area available with the landlord was not sufficient for his business and he was also using gallery attached to his residence on the second floor for his business activities. He has then stated that now the business of goldsmith does not yield good returns and also because his sons Jaywant and Yashwant have no interest in the goldsmith business, it has become necessary for him to think of 6 increasing his income. Moreover, keeping in mind the future of his two sons and to give them sufficient independence and also keeping in mind the arrangement in the family so that no disputes would arise between the family members after they are independent, it has therefore, become necessary to provide them means of income. It is then stated that his third son Yashwant was also married and has children. It is further stated that as there is no independent sufficient income from his business, there is quarrel between the female family members. For that reason, the second son of landlord intends to start his independent stationary business for which he would require the shop premises. It is then stated that the third son has qualified up to B.A., but is without any job and the degree has no value so as to secure good employment. Moreover, the said son has no desire to take up any employment. Besides, keeping in view his age, it may not be possible to get employment. For all these reasons, he intends to start independent cloth business. It is then stated that for the needs of both the sons to start their independent business, the Plaintiff has enough capital arrangement and is willing to take loan from the bank if required. For all these reasons, the Plaintiffs asserted that the suit premises are 7 bonafide and reasonably required urgently by the Plaintiff for his use and occupation as well as for the use and occupation of the members of his family. It is further stated that if the possession of the suit premises is not given to the Plaintiff, he and his family members would suffer irreparable hardship. Indeed, the tenant by filing Written Statement disputed the correctness of the stand taken by the Plaintiff. During the trial, the Plaintiff entered the witness box and deposed about the need of the suit shop being bonafide and reasonable. As can be discerned from paragraph-4 of the examination-in-chief, he has reiterated the case made out in the plaint regarding bonafide and reasonable requirement. In his evidence, he has disclosed the area in possession of his son under the staircase from where he was conducting his business, which is only 3 ft. x 8 ft. He has deposed that the space available under the staircase is not sufficient for even doing his business. He has stated that income from his business was not sufficient to meet his house expenditure for which he intends to allow Yashwant to start cloth business and Jaywant cutlery business independently to have their own income and expenses separately. He has stated that his sons do not have space for starting their separate business. 8 Therefore, they are in bonafide need of the suit shop. 4. Relying on the evidence of the Plaintiff that he has stated that Jaywant intends to start cutlery shop, whereas in the plaint it is stated that Jaywant would start independent stationary business, the argument canvassed on behalf of the defendant/tenant that the requirement of the landlord was not bonafide and reasonable, this contention has been dealt with by the Appellate Court and rejected. I shall refer to that aspect a little later. 5. Reverting back to the evidence of the Plaintiff in the cross-examination with regard to the issue of bonafide and reasonable requirement, questions were put, in response to which the Plaintiff has answered the same. The suit premises consisted of three galas of house. The suit house was ground plus one. That the whole first floor of the suit house was in his possession. He has stated that he has shifted his business from Pagadbandha lane, Nashik to suit house after giving possession of the rented premises to his landlord but he has continued to do his business from the suit building. He has stated that facing to Bhadrakali Road there 9 are four shops. One is of temporary in the suit house. Whereas facing to the Tanksal lane there are two temporary shops in the suit house. He has stated that when he had purchased the suit property three temporary shops were existing there right from that time. The said temporary shops are in the same condition even now. He has stated that one of the temporary shop was in dilapidated condition. The questions put to Plaintiff during cross-examination of some relevance can be seen from paragraph-10 of his evidence. The Plaintiff has stated that he was not maintaining any account of his business. He has stated that one shop facing to Bhadrakali Road was in his possession. Mukunda was doing business of goldsmith in the suit shop. The business conducted in the said shop is run in the name and style as "V.B.Mohadkar and Sons". He has stated that he and Mukunda were doing separate business. Mukunda started his business 10 years back. Witness was then asked about the business of Mukunda and other details, which are of no relevance to decide the point in issue. The Plaintiff was then asked about the details of the building constructed by his son Dattatraya. In response to which he has stated that there are residential blocks on the two storied of the suit building. Suggestion put to him that on the 10 ground floor of the said building five shops are constructed and have been sanctioned by the Nashik Corporation has been denied by the Plaintiff. The other evidence in the cross-examination which has bearing in the point in issue reads thus: . "When I purchased suit house deft. Shri. Gore, Ghatendas one bearber, one tailor Thakur were the tenant on the ground floor. One Dashrath used to seat near hotel and was running his pan-bidi shop. Not true that apart from the above mentioned tenants there was another washerman, as a tenant in the suit house. Ghatandas was running his hotel in the premises admeasuring 10 x 10ft. Dashrath were occupying the pace admeasuring 3 x 3 for his pan bidi shop. Barbar was in 6 x 8 ft while tailor 10 x 10 ft. After Ghatendas one Pesumal was started running hotel business. In the year near about 1970 I got possession from Pesumal through Court, together with speace occupied by Dashrath. 2 yrs. back possession of Barbar’s got. Not true that tailor handed over possession his premises to me. The barbars shop is not being used by me, Witness volunters answer that because it is dilapidated condition. Not true that apart from the shop premises in my possession in which my business is going on there are other 2 shops in my possession in the suit house." 6. The Trial Court on analysing the evidence proceeded to answer the point in issue primarily on the reasoning that the Plaintiff had full details about the new building constructed by his son Dattatraya named as "Guruprasad", but was unwilling to disclose the details thereof. No plans of the 11 said building were produced. The Trial Court then proceeded to observe that it is possible for the Plaintiff to have separate premises in the said building for the business of his two sons. On this reasoning, the Trial Court answered the issue of bonafide and reasonable requirement against the landlord. Even the other grounds for eviction of tenant came to be answered against the landlord. Resultantly, the suit for possession filed by the landlord was dismissed by Judgment and Decree dated 6th July, 1989. Against the said decision, the landlord carried the matter in appeal, namely, Appeal No.333 of 1989. The Appellate Court in the first place found that the approach of the Trial Court in answering the point in issue solely on the basis of construction of one new building by Dattatraya, son of the Plaintiff/landlord, was inappropriate and manifestly wrong. The conclusion reached in the context of the said fact by the Trial Court were based on surmises and conjuncture. In fact, there was no pleading of the Defendant in respect of the said building being available to the Plaintiff in his own right for his own business or for that matter for offering it to his two sons to whom he intended to settle by starting separate business for each of them other than the business of goldsmith, in which he was 12 engaged. It has further noted that the Plaintiff had denied the existence of any shop on the ground floor of the new building. Moreover, the photograph of the said new building constructed by the Plaintiff’s son Dattatraya showed that it was only a stilt portion. Obviously it was an open space. Besides, the Appellate Court then proceeded to analyse the pleadings and evidence of the Plaintiff. The argument regarding discrepancy in the pleadings and the evidence of Plaintiff as to what purpose the suit shop was intended to be offered to Jaywant-whether for stationary shop or cutlery shop-has been dealt with and rejected on the finding that it is not material so as to have any impact on the factum of bonafide and reasonable requirement of the landlord. The Appeal Court has taken note of the fact that the Plaintiff has only one shop premises which was already in his occupation where he was doing his present business. Alongwith him even Mukunda was engaged in same business and using a small space available beneath the staircase. It has accepted the claim of the Plaintiff that neither the Plaintiff nor his sons Jaywant and Yashwant have any other premises to start their business. It has also noted that the Plaintiff was using even first floor of his gallary(attached to his residential premises) for 13 doing his business. It has also noted that the Plaintiff was not interested in involving his two sons Jaywant and Yashwant alongwith him in the same business, as he was keen to settle them separately and also with a view to generate independent income from different type of business. On that reasoning, the Appellate Court proceeded to conclude that the need pressed into service by the Plaintiff to settle his two sons in separate business was bonafide. The question whether the requirement was reasonable is also separately addressed by the Appellate Court. The Appellate Court has taken into account that the Plaintiff has three shops in Tanksal lane, out of which only two shops are in his possession. One out of that is in dilapidated condition. The efficacy of the cross-examination of the Plaintiff, extracted in the earlier part of this Judgment, has been considered by the Appellate Court in paragraph-13 of the impugned Judgment. It has found that presently, the Plaintiff was in possession of three shops which were in Tanksal Lane and form part of the suit building. It has also noted that the shop in the Tanksal Lane was offered to the defendant in exchange, but the defendant refused to accept the said offer. It has opined that obviously the shop in Tanksal lane could not have fetched good business and 14 profit, whereas the suit premises were facing the main road. It then proceeded to hold that the Plaintiff would be justified in insisting for the suit shop which is on the main road so that the business to be conducted therefrom would result in good business. Taking over all view of the matter, the Appellate Court therefore, proceeded to answer the issue of bonafide and reasonable requirement in favour of the Plaintiff/landlord. However, insofar as the issue of comparative hardship is concerned, the Appellate Court was of the view that no hardship would be caused to the Plaintiff, if only partial eviction decree was to be passed. That opinion is founded on the basis that the Plaintiff’s son could be accommodated in that part of the premises, who can start his cloth business. His need would be satisfied. Accordingly, the Appellate Court proceed to pass decree for partial eviction only to the extent of area admeasuring 6 ft. x 10 ft. out of the suit premises. 7. As aforesaid, aggrieved by this decision of the Appellate Court, both the landlord as well as the tenant have approached this Court by way of Writ Petition under article 227 of the Constitution of India. The first question that needs to be addressed 15 is whether the finding of fact reached by the Appellate Court on the issue of bonafide and reasonable requirement can be said to be manifestly wrong or error apparent on the face of the record or perverse. After having wadded through the pleadings and evidence of the parties, in my opinion, the conclusion reached by the Appellate Court on the said issue is unimpeachable. If so, the finding of fact recorded by the Appellate Court on the issue of bonafide and reasonable requirement of the Plaintiff/landlord will have to be upheld being binding even on this Court. To get over this position, only two arguments were canvassed before me on behalf of the tenant. 8. The first argument is that the fact that the Plaintiff was in possession of three shops was not disclosed in the plaint, though a material and relevant fact. According to the tenant, this fact has come on record only during the evidence of the Plaintiff. That too, when confronted in cross-examination by the tenant. It is argued that the landlord will have to be non-suited for having failed to disclose the material and relevant facts, which had bearing on the outcome of the ground of bonafide and reasonable requirement. To buttress 16 this submission, reliance is placed on the decision of our High Court in the case of Tarachand Hassaram Tarachand Hassaram Tarachand Hassaram Shamdasani v/s.Durgashankar G.Shroff & Shamdasani v/s.Durgashankar G.Shroff & Shamdasani v/s.Durgashankar G.Shroff & Ors.[2004(Supp.) Bom. C.R.333]. Ors.[2004(Supp.) Bom. C.R.333]. Ors.[2004(Supp.) Bom. C.R.333]. On the other hand, Counsel for the Respondent submits that this argument is the outcome of distorted reading of the pleadings. In that, the Plaintiff had already disclosed in the plaint that he was in possession of one shop premises which is used for his business in the suit building, as can be discerned from paragraph-6 of the plaint. Besides him, his son Mukunda was using small space beneath the staircase for his independent business. Even in the examination, the Plaintiff has reiterated this position. However, the argument of the tenant was on account of the facts stated in the cross-examination which portion is already extracted herein before. According to the landlord, however, the premises which are now in possession of the landlord were originally occupied by one Ghatandas and later on by Pesumal who started his hotel business. Possession thereof was eventually received by the Plaintiff through Court in the year 1970. The Plaintiff has already made reference to the said premises in paragraph-6 of the plaint, albeit without giving specific details thereof. Besides this premises, the premises which were used by one 17 Dashrath, who used to sit near the hotel and conduct panbidi shop also became available. Significantly, the premises in possession of the Ghatandas later on with Pesumal, which has now come in possession of the Plaintiff admeasure only 10 ft. x 10 ft., in which the Plaintiff was already conducting his business. His son Mukunda was also occupying portion of the space beneath the staircase for his business. The premisses which were received from Dashrath were only 3 ft. and 3 ft. used by him for his panbidi shop. It is not a case of non-disclosure of those premises, as such. It is further contended on behalf of the landlord that the premises referred to as received from Barbar two years back admeasured only 6 ft. x 8 ft.. Obviously, possession of the said premises received two years before the recording of evidence in the year 1988, whereas the suit was filed in the year 1981. If so, the question of disclosure of availability of those premises in the plaint does not arise. At best, this new development may be relevant to examine whether the requirement pressed into service by the Plaintiff had completely eclipsed. It was argued on behalf of the Plaintiff that by no standard it can be said that it is a case of non-disclosure of material and relevant facts by the Plaintiff. It is then contended that the reported 18 decision relied by the Counsel for the tenant will be of no avail. Inasmuch as,in that case, the facts were gross and it was a clear case of non-disclosure of material and relevant facts which would have bearing on the point in issue. 9. After having perused the plaint and the oral evidence of the Plaintiff, I have no hesitation in accepting the stand taken by the Plaintiff which is reproduced herein before. I am in agreement with the submission of the Plaintiff that it is not a case of non-disclosure of the material and relevant facts by the Plaintiff. The Plaintiff has already disclosed the fact that he was in occupation of one shop, which was used for doing his business. He has categorically stated that he has no other shop in his possession except one mentioned by him. The premises in possession of the Mukunda were only a small space below the staircase in the shop possessed by the Plaintiff, used by him for his independent business. Possession of the premises received during the pendency of the suit from Barbar two years before giving evidence and much after institution of the suit cannot be the basis to non-suit the Plaintiff. On this finding, the exposition in the case of Tarachand(supra) Tarachand(supra) Tarachand(supra) is of no avail. 19 10. My attention is also invited to the decision in the case of Mrs.Minal Eknath Kshirsagar v/s. Mrs.Minal Eknath Kshirsagar v/s. Mrs.Minal Eknath Kshirsagar v/s. M/s.Traders and Agencies and anr[AIR 1997 SC 59] M/s.Traders and Agencies and anr[AIR 1997 SC 59] M/s.Traders and Agencies and anr[AIR 1997 SC 59]. In paragraph-18 of this decision, the Apex Court has noted that the landlady did not own any other premises in the city of Mumbai was indisputable. Insofar as the premises in which her husband was a tenant who had parted with possession of such premises and the same were occupied by the landlady’s husband’s brother, the Court went on to observe that it cannot be said that the said premises were available to her and by not referring to those facts she had come to the Court with unclean hands and that itself was sufficient to disentitled her from getting decree of eviction. The Apex Court no doubt has observed that it would