1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1564 OF 1989 Moulanasaheb @ Allisaheb Shaikh .. Petitioner versus Padmakar Dnyandeo Shinde & Anr. .. Respondents Mr.Vivek Salunke i/by Mr.Prafulla Shah for the petitioner. Mr.Surel S. Shah i/by Mr.P.R.Arjunwadkar for respondent No.1. CORAM : A.S.OKA, J. DATE : 14th January 2010. JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard yesterday. The original petitioner is the original defendant and the respondents are the plaintiffs. For the sake of convenience the parties are hereinafter referred to with reference to their status before the trial Court. The suit was filed by the plaintiffs for possession of the suit premises under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the said Act). A decree for possession was sought on the ground of bonafide requirement under section 13(1)(g) of the said Act. The suit premises subject matter of dispute consists of block of two rooms admeasuring 10 ft X 10 ft and 8 ft X 10 ft forming part of a structure on the final plot more particularly described in paragraph 1 of the plaint. The plaintiffs are brothers. It is stated in the plaint that the family of the plaintiffs is a joint family and the member of the family were occupying a premises admeasuring 10 ft X 10 2 ft which was a rental premises. It was contended that the plaintiff and his brothers were unable to get married on account of non-availability of sufficient accommodation. The claim for possession was contested by the defendant. A contention was raised by the defendant that his age was 75 years and due to advanced age he was not earning any income. He stated that his younger son was taking education and he was not in a sound financial position to take another accommodation. 2. The trial Court passed a decree for possession which was challenged by the defendant. The appeal preferred by the defendant was dismissed by the District Court. This writ petition came up for final hearing before this Court on 17th January 2009. Reliance was placed by the legal representatives of the defendant on the alleged subsequent events, namely, acquisition of four additional blocks consisting of two rooms each by the plaintiff. The submission before this Court was that the possession of two blocks was already acquired by the plaintiffs and possession of two other blocks was likely to be acquired in execution of the decree of eviction passed against the respective tenants. Paragraph Nos.7 to 9 of the order passed by this Court on 17th July 2009 reads thus: “7. Taking overall view of the matter, I am inclined to keep the present writ petition pending and instead, invite finding of the District Court, Solapur on the issue as to whether on account of acquisition of four additional blocks consisting of two rooms each (two blocks already acquired and the two other blocks are likely to be acquired on execution of decree of eviction against the respective tenants), the requirement of the landlords still subsists or stands fully satisfied. The District Court, Solapur shall permit both the parties to file their respective affidavits articulating their claim that the ground of bonafide requirement no more subsists or otherwise. The persons who would file affidavit for and on behalf of 3 landlords and tenants respectively will be then subjected to cros- examination. In additional to producing oral evidence, it will be open to the parties to produce documentary evidence to substantiate their case. After this material becomes available to the District Court, the District Court may decide the referred issue and submit the finding to this Court, dependent on which, appropriate view can be taken with regard to the ground of bonafide requirement. 8. While parting, I have no hesitation in observing that insofar as the concurrent finding of fact recorded by the two Courts below on the ground of bonafide requirement and comparative hardship, cannot be seriously assailed but for the only issue that needs to be further addressed and was argued on behalf of the present petitioners regarding subsequent development. Accordingly, hearing of this petition is deferred till 27th April 2009. 9. The parties shall appear before the District Court on 30th January 2009 and file their respective affidavits. The District Court, Solapur may then pass appropriate directions and proceed with the matter for recording its finding on the referred issue and submit the same to this Court not later than 20th April 2009.” 3. Thereafter, the parties adduced evidence before the District Court and a finding dated 20th August 2009 has been recorded by the learned District Judge that due to subsequent acquisitions made, the requirement of the plaintiffs has been satisfied. The respondents-original plaintiffs have filed objections to the findings recorded by the District Court. 4. The learned counsel appearing for the petitioners submitted that the finding of fact recorded by the District Court is that due to subsequent acquisitions, the requirement of the plaintiffs has been satisfied. He submitted that the requirement pleaded in the plaint was only of the plaintiffs and not of their brother Kamlakar who has since expired. He submitted that in any event, the evidence on record shows that widow of Kamlakar has acquired an 4 accommodation. He submitted that in view of acquisition in the name of wife of the 1st plaintiff the requirement of the family has been satisfied. He submitted that as far as 2nd plaintiff is concerned, he is in government employment and he has been occupying the government quarters. He pointed out that the Appellate Court has held that the present age of the 2nd plaintiff is 44 years and there is no possibility of the said plaintiff requiring to vacate the government quarters. He submitted that now the bonafide requirement does not survive due to subsequent events. 5. The learned counsel appearing for the plaintiffs submitted that in the plaint requirement of joint family consisting of three brothers was pleaded and in fact evidence was adduced accordingly by the plaintiffs. He pointed out that the suit was filed in the year 1982. Both the Courts concurrently decreed the suit and the writ petition of the year 1989 is being heard in the year 2010. He submitted that in view of the law laid down by the Apex Court, the requirement on the date of institution of the suit for eviction has to be considered. He submitted that only because there was enormous procedural delay, the genuine claim on the ground of bonafide requirement cannot be thrown out of on the basis of subsequent events. He submitted that if proceedings remain pending for such a long time, no fault can be found with the plaintiffs if they try to acquire some other accommodation as for such a long time the plaintiffs were not supposed to stay in rented accommodation of one room. He submitted that though brother of the plaintiffs might have expired, the requirement of his widow and his children still subsists. He pointed out that Kamlakar is survived by two grown up sons and 5 their requirement still continues. He submitted that the learned District Judge has completely overlooked requirement of members of family of Kamlakar. He submitted that need of Kamlakar was specifically pleaded before the trial Court and the observation of the learned District Judge that his need pleaded is an afterthought his plea is contrary to the record. He submitted that the premises acquired by the wife of Padmakar may be in limits of Municipal Corporation but it is far away form the city of Solapur and hence, the said acquisition cannot be said to be an acquisition by which the genuine need of the family of the plaintiffs is satisfied. He submitted that it is not for the Court to judge what is the requirement of the plaintiffs. He submitted that the plaintiffs are the best judges of their own requirement and they should be allowed to beneficially enjoy their property. He has placed reliance on several decisions of the Apex Court and this Court. By way of reply, the learned counsel appearing for the legal representatives of the petitioner submitted that it was for the plaintiffs to disclose in examination-in-chief the nature and extent of other premises held by them and to explain that notwithstanding the other premises held by him, bonafide need still subsists. 6. I have given careful consideration to the submissions. As far as the issue regarding subsequent events is concerned, in paragraph 8 of the judgment and order dated 17th January 2009, this Court has observed that concurrent findings of fact recorded by the two Courts below on the ground of bonafide requirement and comparative hardship cannot be seriously assailed and the only issue that needs to be further addressed to is regarding the effect of the subsequent 6 developments. As far as effect of subsequent developments is concerned, the learned counsel appearing for the plaintiffs has placed reliance on a decision of the Apex Court in the case of Maganlal Kishanlal Godha Vs. Nanasaheb Udhaorao Gadewar [(2008) 13 Supreme Court Cases 758]. He submitted that the delay in disposal of the proceedings cannot work against the plaintiffs- landlords and during the pendency of the proceedings the landlord is not expected to sit idle. He submitted that the situation on the date of institution of the suit will have to be considered while judging the plea of bonafide requirement. In the same decision, the Apex Court observed that if the subsequent events materially change the grounds of relief, the same are required to be taken into consideration. Even in the case of Gaya Prasad Vs. Pradeep Shrivastava [2001(2) Maharashtra Law Journal 581], the Apex Court observed that subsequent events occurring pendent lite are relevant only if they are of such nature and dimension as to completely eclipse the bonafide need. 7. Perusal of the plaint shows that the suit is filed by the two brothers Padmakar and Madhusudan. In paragraph 6 of the plaint it is stated that the family of the plaintiffs is an undivided Hindu family and the family was occupying only a single room tenement which was a rented tenement. There is a specific averment that the plaintiffs and their brother could not get married as the accommodation available was very insufficient. The 1st plaintiff Padmakar stepped into witness box before the trial Court. He deposed that his younger brother Madhusudan was in police service who was unmarried at that time and 7 his marriage could not be performed on account of shortage of accommodation. He has stated that even his other brother Kamlakar was unmarried when the suit was instituted and he as well as Kamlakar got married in December 1984. Thus, the requirement pleaded by the plaintiffs is of three brothers. 8. Now turning to the findings recorded by the Courts below, as far as trial Court is concerned, it is observed that there are six members in the family of the plaintiffs and they were residing in a single room rented tenement. It is pointed out that the landlord of the plaintiffs has filed a suit for possession. The learned Judge observed that the plaintiffs have purchased the property in which suit premises are situated for their own occupation and the need appears to be based on hard reality and not sentiments. The trial Court noted that Padmakar and Kamlakar got married in December 1984 during the pendency of the suit. The trial Court noted that marriage of Madhusudan could not be performed on account of want of accommodation. The evidence on record shows that the father of the plaintiffs was working as a bailiff in the Court and 1st plaintiff Padmakar is in the employment of the Court. As stated earlier, the 2nd plaintiff Madhusudan is in police service. The Appellate Court has observed that Padmakar is working as a clerk in the Court. The said Kamlakar was working under a contractor. The Appellate Court observed that the entire family of six persons was residing in one room of 10 ft X 10 ft. Therefore, the finding of bonafide requirement has been confirmed. 9. This Court by order dated 17th January 2009 permitted the parties to 8 adduce evidence. After considering the evidence, the learned District Judge by order dated 20th August 2009 has recorded the following findings: (a) Madhusudan, 2nd plaintiff admitted in the cross-examination that he was unable to state as to whether his brother Padmakar was at present in need of the suit house for residential purpose at present or not; (b) Kalpana, the wife of Padmakar has purchased plot No.42 admeasuring 168 sq mtrs at Bale and the said plot is situated within the territorial limits of Solapur Municipal Corporation; (c) Evidence of a junior engineer of Municipal Corporation proves that the said Kalpana has obtained permission for construction of four rooms, bathroom and W.C on the said plot and evidence of one Nazer shows that the construction of the house has been completed and Padmakar and his family members were residing in the said house; (d) Requirement of Madhusudan is not subsisting as he was posted as a police constable at Mohod in district Solapur and he is occupying a government quarters alongwith his wife; (di) The learned District Judge noted that Madhusudan admitted that as he was serving in rural police department he would never be transferred to City of Solapur. The said Madhusudan has not expressed desire to give up government employment and he had 14 years of service left. 9 (dii) Daughter of Madhusudan has married and she is residing at Gadchiroli. (e) The four blocks at Solapur out of the suit house in respect of which decrees for eviction were subsequently passed were sufficient to satisfy the need of Madhusudan, his wife and two sons. (f) The property in which suit premises are situated is exclusively owned by the plaintiffs and the case was made out before the District Court that Kamlakar was co-owner is an after-thought. The learned District Judge proceeded to hold that after obtaining possession of the other two blocks which was likely to be acquired in execution of the decrees, the requirement of the plaintiffs’ family will be satisfied. 10. The said findings of fact have been recorded for the first time by the District Court as this Court directed the parties to adduce evidence before the learned District Judge and finding of the learned District Judge has been invited. The said finding has been objected to by the plaintiffs-respondents. Therefore, I have perused the record of the proceedings before the District Court. As far as the plaintiffs are concerned, the 2nd plaintiff Madhusudan was examined. In paragraph 6 of the examination-in-chief, he stated that he alongwith Padmakar and Kamlakar purchased the property. To that extent a new case appears to have been made out as in the plaint the case is that the plaintiffs have purchased the property in which suit premises is situated. In the examination-in-chief, 10 Madhusudan stated that in the year 1991 one Mashak Kasimsaheb Golandaj handed over possession of a block consisting of one room on account of settlement to the plaintiffs and the said room was in possession of the plaintiffs from 14th September 1991. He stated that the brothers had filed a suit in the year 1982, against one Bismilla Tamboli on the ground of bonafide requirement. In the said suit a decree was passed which has been confirmed up to this Court and possession of the suit premises being a block of one room has been handed over to the plaintiffs on 29th April 1991. He referred to a suit filed by the brothers against one Moulasaheb Shaikh. It is pointed out that the suit for possession against him has been decreed and the decree has been confirmed by the District Court. It is pointed out that a writ petition filed by the tenant has been admitted by this Court. Thus, it is admitted that possession of two blocks was received by the plaintiffs in the same property after the Appellate Court passed impugned decree. He admitted that Kamlakar expired on 2nd January 2002 and he survived by his wife and two sons. He stated that elder son Vishwas is in the employment of an Ashram School at Solapar and younger son is taking education in college. He pointed out that 1st plaintiff was serving in Court at Malshiras and was staying there as a paying guest. He stated that his son Jayprakash was studying in first year of degree course in Arts at Solapur. He stated that Mayur, his own son was studying at Solapur and there was no accommodation available for him. He pointed out that his daughter was taking education at Solapur. He stated that families of the brothers desire to stay together. 11. In the cross-examination, he stated that the suit premises was of joint 11 ownership of he himself and Padmakar. A suggestion was given to him in the cross-examination that widow of Kamlakar by Sale Deed dated 1st February 2008 purchased plot No.161 together with of row-house thereon which is situated at Morarji Peth, Solapur. He denied the correctness of the said suggestion. The witness was confronted with the extract of property register card of said plot No. 161. He admitted that in the said extract there is a reference to acquisition of house property by widow of Kamlakar. In the cross-examination, he stated that possession of two blocks in the same property has been obtained by them and six months back, this Court has passed an order directing delivery of possession of third block to the plaintiffs. A suggestion was given that even there is a direction by this Court for handing over possesion of another block to the plaintiffs. However, the witness pleaded ignorance about this fact. A junior engineer of Solapur Municipal Corporation was also examined as a witness and stated that permission has been granted in favour of wife of Padmakar for construction of a house on the plot at Bale. He stated that permission has been granted for construction of four rooms and a toilet. The evidence on record shows that house has been constructed and it is an admitted position that Padmakar’s family is occupying said house consisting of four rooms. 12. If the entire evidence is analysed, following conclusions emerge: (a) Padmakar’s wife has constructed a house consisting of four rooms and a toilet block and the family of Padmakar is occupying the said house; (b) Madhusudan is residing alongwith his wife in residential quarters 12 allotted to him by the State Government at Mohol in District Solapur and his daughter has got married; (c) There is a plot together with a row-house purchased by the widow of Kamlakar; (d) Possession of two blocks in the same property has been already acquired by the plaintiffs and in respect of another block, there is an order of possession passed by this Court six months back. The two blocks are actually in possession of the plaintiffs. 13. In the cross-examination Madhusudan it is brought on record that widow of Kamlakar has acquired plot No.161 with row-house thereon situated as Morarji Peth, Solapur. However, the widow has not been examined to prove that the said row-house is not sufficient to satisfy the requirements of her family. As far as children of Madhusudan are concerned, two blocks in the same property are admittedly in possession of the plaintiffs. In the circumstances, the finding of fact recorded by the learned District Judge appears to be consistent with the evidence on record. As the acquisitions by the members of the family of the plaintiffs have been brought on record, the nature and dimension of the need as pleaded by the plaintiffs has been eclipsed. Hence, the petition must succeed and I pass the following order: : O R D E R : (a) The impugned judgments and decrees are quashed and set aside. 13 (b) The suit filed by the respondents stands dismissed. (c) Rule is made absolute accordingly with no orders as to costs. (A.S.OKA,J)