* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 467 OF 2007 IN REGULAR CIVIL APPEAL NO. 318 OF 2005 IN REGULAR CIVIL SUIT NO. 343 OF 1996 M/s.Shrikisan Sitaram Sarda .... Petitioner V/s. Sou. Icharabai Bhagwandas Mutha .... Respondents. & anr. ======= Mr.P.P.Kulkarni, adv.for petitioner. Mr.P.M.Arjunwadkar,adv.for respondents no.1 and 2. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 21st JANUARY, 2009. P.C.: 1. This Civil Revision Application arises out of judgment and order dated 13th July, 2007 passed by the District Judge-I at Ichalkaranji dismissing Regular Civil Appeal No. 318 of 2005, preferred against the judgment and order dated 8th November, 2005 passed by the Joint Civil Judge Junior Division, Ichalkaranji decreeing the eviction suit. The applicant is the original defendant, the tenant. Respondents to the application are the original plaintiffs, the landlords. They will hereinafter be referred to by their original nomenclature. 2. The plaintiffs are the owners of the building situate at C.T.S. No.7059, 7060 and 7061 of Ward No.9, * 2 * Ichalkaranji, District-Kolhapur. The defendant, a partnership firm, had been the tenant in respect of the building since the year 1945 i.e. since prior to purchase of the building by the plaintiffs. In the year 1996, the plaintiffs filed suit for eviction of the defendant on the ground of (i) arrears of rent, (ii) non-user of the premises for a period of more than six months prior the suit without reasonable cause and (iii) bonafide requirement. 3. The plaintiffs allege in the plaint that the defendant had failed to pay rent for 26 months from January 1993 to February 1995. The plaintiffs served demand notice dated 24th March, 1995 and terminated the tenancy with effect from 30th April, 1995. After receipt of the demand notice, the defendant paid the rent which was received by the plaintiffs under protest. However, the defendant again fell in arrears of rent from April 1996 to September 1996 thereby becoming a defaulter in payment of rent. As regards the second ground of eviction, plaintiffs allege that the suit premises were let out to the defendant for the purpose of carrying out cloth business. Subsequently, it purchased property at C.T.S.No.7028, 7029 and 7030 and started running it's cloth business from the said premises. Since then it no longer needed the suit premises and kept the same in a locked condition. The premises are not being used for the purposes the same were let out since more than six months prior to filing of the suit. The third ground of eviction pleaded by * 3 * the plaintiffs is of bonafide need of the suit premises for their own use. Son of plaintiff no.1 is a Surgeon. He runs a hospital which is adjoining the suit premises. He needs the suit premises to expand his hospital. 4. The defendant firm denies that it was in arrears of rent at any time. It contends that after the plaintiffs purchased the suit property, they started demanding exorbitant rent. Therefore, the defendant had to approach the court with an application for fixation of standard rent. That application was allowed and the standard rent was fixed at Rs.37.50 paise. It contends that the ground of default in payment of rent is not available to the plaintiffs because no notice is served upon the defendant for default in payment of rent from the period April 1996 to September 1996. As regards the non-user of the suit premises, the defendant denies the same contending that the suit premises were let out to it not for the purpose of business alone, but, for the purpose of residence as well as business. It denies that it has kept the suit premises locked for a period of more than 6 months prior to filing of the suit. As regards the bonafide need of the plaintiffs for the suit premises, the defendant denies that Dr.Sudhir needs the premises for expansion of his hospital. According to the defendant Dr.Sudhir is employed and permanently settled at Ahmednagar. * 4 * 5) The trial court after considering the rival pleadings and the evidence led thereupon, held that the plaintiffs are in reasonable and bonafide requirement of the suit premises for their own occupation. It also held that the defendant has kept the suit premises unused for more than 6 months, since, prior to filing of the suit. As regards the ground of eviction for default in payment of rent, the trial court did not accept the same and held that the defendant is not a defaulter in payment of rent. With this evidence, the trial court decreed the suit and directed the defendant to hand over vacant possession of the suit premises within one month from the date of the order. Being aggrieved by the eviction decree, the defendant preferred Regular Civil Appeal No. 318 of 2005 which was dismissed by the impugned order. 6. There is concurrent findings of the courts below as regards all the three grounds of eviction. The ground of eviction based on the default in payment of rent having been negatived by both the courts below is not required to be considered by this Court. In case of concurrent finding of the two courts below this court should be slow in disturbing the same unless the defendant establishes that the concurrent findings are manifestly unjust. Further this court sitting in revision cannot reappreciate the evidence as if it were a court of appeal. The scope of consideration in revision is limited to jurisdictional error. The contentions of the defendants are required to be appreciated on the above * 5 * backdrop. 7. The plaintiffs contend that the suit premises were let out to the defendant for the purposes of running cloth business therefrom and on acquisition of new premises the defendant has shifted it's shop to the new premises and kept the suit premises in locked condition. On the application of the plaintiffs, the trial Court had appointed Commissioner to visit the suit premises and make a report as regards it's condition and use. P.W. 2 Advocate Vina Magdum visited the premises and submitted her report in favour of the plaintiffs. Mr. Kulkarni, the learned Advocate for the defendant submits that report of the Commissioner is required to be discarded since she had not given notice to the defendant before commencing with the work of commission. It is alleged that she did not comply with the mandatory provisions of Order 26, Rule 18 and executed the commission behind the back of the defendant. In this connection, he relies upon a decision of this Court in Kishor H. Desai v/s Lilawati Virji Chheda and ors. reported in 1993 (2) Maharashtra Law Journal, 1155. Both the Courts below having accepted the evidence of the Commissioner, it is necessary to see whether there is any jurisdictional error in it. P.W.2 stated that on her appointment as Commissioner, she personally visited the defendants premises and informed that she would be undertaking the work. She was at that time accompanied by two panchas, Mr. Gajabi and Mr. Kandarkar and the plaintiff. She had found the suit premises locked. Therefore, she had gone to the shop * 6 * of the defendant and asked for the keys which were not given to her. She then repeatedly visited defendants shop at 12 noon, 12.30 pm. and 12.50 pm. with a request for keys, but the request was not acceded to. When she and the persons accompanying her were waiting near the suit premises, they heard sounds from the suit premises. They saw that the western side window of the suit premises was open. On peeping through the window, they found one person cleaning the room. The room was full of dirt, dust and cobwebs. They saw a heap of plastic papers and cardboards upto the height of 4 feet lying inside. The building was dirty, its plaster having fallen in several patches, the window panes broken, with moss and tiny shrubs grown on the western wall. She made a report accordingly which is at Exh. 9. In her cross-examination, she was asked whether she had sent notice of the commission by Post to the defendant. She answered in the negative. But she reiterated that she had visited the shop of the defendant with the order appointing her as Commissioner and asked for the keys. Her visit to the shop is not disputed. Order 26 of Code of Civil Procedure does not prescribe any specific form of notice. In the instant case, it is not the contention of the defendant that the order appointing Commissioner was made ex-parte. The defendant was aware of the order. The Commissioner visited the shop of the defendant four times with a request for keys of the suit premises. Therefore, both the Courts below have rightly held that notice of execution of the work of the commission was given to the defendant. As such, * 7 * there is no breach of Order 26 Code of Civil Procedure by P.W. 2. It is clear that not only the defendant was given notice by the Commissioner but it took advantage of the notice and of the fact that keys of the suit premises were with it and tried to alter the condition of the suit premises. The trial Court has observed that the plaintiffs have brought sufficient evidence to hold that the condition of the suit premises shows that it is not in use. The defendant has not been able to rebut this by leading evidence in support of its claim that the premises are being used for residence. The courts have noted the condition of the suit premises and held that it is not fit for human habitation. There was also no evidence that premises were being used for business. The lower appellate court has shown same appreciation of the evidence. In my opinion that is a reasonable view taken and no fault can be found with the same. 8. This brings us to the second ground of eviction upheld by the courts below. It is bonafide need of the landlord of the suit premises. It is the plaintiffs case that son of plaintiff no. 1 Dr. Sudhir Mutha is in bonafide need of suit premises for expansion of his hospital. The defendant has denied the claim of the plaintiffs. It contends that the alleged need of the plaintiffs of the suit premises further got extinguished by the subsequent event of son of plaintiff No.1 joining service at Ahmednagar and shifting to Ahmednagar during pendency of the suit. * 8 * 9. Mr. Kulkarni has relied upon decisions of the Apex Court and of this Court to submit that in eviction petition for the bonafide requirement of demised premises subsequent events of fact or law which have a material bearing on the entitlement of the parties to the relief ought to be taken into consideration. The need of the landlord must not only be shown to exist at the date of the suit, but it must exist on the date of final decree or the date when higher court deals with the matter. The citations of the decisions are as follows : i) M/s Variety Emporium Vs. VRM Mohammed Ibrahim Naina reported in AIR 1985 SUPREME COURT 207; ii) Ramesh Kumar Vs. Kesho Ram reported in AIR 1992 SUPREME COURT page 700; iii) Gaya Prasad Vs. Pradeep Shrivastava reported in AIR 2001 SUPREME COURT page 803; iv) Gulabai Vs. Nalin Narsi Vohra & Ors. Reported in 1991 (3) BCR Page 174; v) Kiran K. Gujar & Ors. Vs. Pradip B. Kasavkar & Ors. 2002 (6) BCR 109. 10. The above observations will have to be kept in sight while appreciating the evidence before the Court in support of the rival claims. 11. Dr. Sudhir, son of plaintiff No. 1 runs hospital from the premises which are adjacent to the suit premises. It is the plaintiffs' case that the place is not adequate and * 9 * the suit premises are needed for expansion of his hospital. The suit premises being adjacent to the hospital premises are most suitable and convenient. It is the evidence of the plaintiffs that for want of sufficient place, Dr. Sudhir Mutha is unable to accommodate all his patients in the hospital. Until the premises are made available to expand the hospital, Dr. Sudhir has taken up temporary service as visiting lecturer at Ahmednagar. It is contended that as soon as possession of the suit premises is received, he proposes to resign from the service and devote himself to the hospital. As against this, the defendants contend that the need of Dr. Sudhir of the suit premises for expansion of his hospital is extinguished since he is permanently settled at Ahmednagar. It is also contended that plaintiff No 1 and Dr. Sudhir are living separate and having their independent activities. Therefore, according to the defendant, need of Dr. Sudhir cannot be considered as need of the landlord. This last contention has been rightly rejected by the trial Court with observation that not only the need of the landlord but the need of his family members can be bonafide need. 12. The trial court has found that Dr. Sudhir has the qualification of M.S.. He being a specialist doctor needs larger place as compared to the general practitioner. Presently the area of his hospital is about 1500 sq.ft. to 2000 sq.ft. It consists of consulting room, reception room, operation theater, four separate rooms, post operation care * 10 * room etc. The area available for the hospital is not sufficient. Therefore, he needs additional premises. As regards his joining of service, the learned trial Judge opines that it is entirely his discretion and that cannot be a ground to suspect bonafides of the need. He has also found that the service joined is temporary. The learned Judge has accepted the explanation offered by the plaintiffs that Dr. Sudhir has joined service only because he is unable to expand his hospital. The lower appellate court has also held that merely because Dr.Sudhir has accepted temporary service at Ahmednagar his need of the suit premises does not get extinguished. It has further observed that the defendant cannot advice Dr. Sudhir to start his hospital from any other premises. 13. Both the courts have held that the plaintiffs will suffer greater hardship if they are denied the suit premises. The act of the defendant in keeping the suit premises locked shows that it does not need the suit premises. The defendant has not offered any explanation or justification for keeping the suit premises locked. This court is in total agreement with the view taken by both the courts below on the issue of bonafide need of the plaintiffs. It is consistent with the evidence before the court. It need not be and cannot be disturbed. 14. There is one more grievance aired by the defendant. It concerns adequate opportunity of hearing. On 10.4.2007, * 11 * the learned District Judge hearing the Regular Civil Appeal in this case, had after hearing both the sides and going through the pleadings held that Issue no.1 framed by the trial court was not proper. He also framed additional issue at Issue no.5-A. The reframed Issue no.1 and additional Issue No.5-A read as follows : . (1) Do the plaintiffs prove that the suit premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of suit ? (5-A) Do the plaintiffs prove that the legal notice has been served upon the defendant demanding standard rent or permitted increases, in the manner provided in Section 106 of the Transfer of Property Act, 1882 ?' 15. Two months thereafter i.e. on 13th June, 2007 the applicant filed the praecipe at Exhibit-26 stating that he desires to lead oral and documentary evidence in the appeal. The learned appellate judge by his order dated 13th July 2007 held that Issue no.1 is only recast in the appeal, taking into consideration the requirements of Section 13(1)(k) of the Bombay Rent Act. Therefore, there could be no additional evidence on that issue. As regards Issue No.5-A, the court found that the plaintiffs had not filed cross-objections against the decision of the trial court, that the defendant has not committed default in payment of rent. Therefore, additional Issue no.5A was redundant and the issue came to be deleted. Mr.Kulkarni, submits that the appellate court erred in deleting additional Issue no.5A which was framed after * 12 * hearing both the sides. I have perused the order dated 13th July 2007. The learned judge has rightly deleted Issue no.5A. In fact, he ought not to have framed that issue in the first place as the trial court had already held that the defendant has not committed default in payment of rent. As regards Issue no.1, the same was only recast so as to bring in all the ingredients of Section 13(1)(k) into the issue. The evidence on the issue had been extensively led before the trial court. Besides, as rightly pointed out by Mr. Arjunwadkar, the learned counsel for the plaintiffs, the application filed by the defendant was not under Order 41 Rule 27 C.P.C.. Under the said provision, the evidence can be allowed to be led only on fulfillment of certain conditions. The defendants application at Exhibit-26 is a mere purshis. It does not state anything beyond the desire of the defendant to lead oral and documentary evidence. In the circumstance, the court, even otherwise, could not have allowed the defendant to lead evidence in the matter. Therefore, there is no substance in the submission on behalf of the defendant that it did not have proper opportunity to lead evidence in the matter. 16. In all the above circumstances, the challenge to the two orders does not succeed. The Civil Revision Application is dismissed. [Smt.R.P.SondurBaldota, J] * 13 *