1 judg-350-95 s. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.350 OF 1995 Ramdas Shripad Deo (since deceased through L.Rs.) 1-a.Smt.Usha Ramdas Deo,R/at room no.7,Yamuna Niwas,Paralkar Marg,Dadar, Mumbai -400028 1-b.Shri.Anand Ramdas Deo, R/at room no.7,Yamuna Niwas,Paralkar Marg,Dadar, Mumbai -400028 1-c. Shri.Sunil Ramdas Deo, room no.7,Yamuna Niwas,Paralkar Marg,Dadar, Mumbai -400028 1-d.Shri.Anil Ramdas Deo , Type-4,Block no.10, Bldg.no.2,RCF Colony, Chembur,Mumbai -400 074. 1-e. Mrs.Mrunmai Sadanand Dabir, 1B/206,Viman Darshan CHS Jiva Mahal Marg ,Andheri (E), Mumbai 400 069 1-f. Mrs.Shubhangi Srikant Joshi, R/at A-7,Prabhudayal CHS,Pariwada, Sahar Road,Andheri (East),Mumbai 400069 1-g. Mrs.Sandhya Ravindra Aadkar, Block no.2,RBI Employees Chaitanya 2 judg-350-95 Co-operative Hsg.Society, Ground floor, Parharli Road,Gogras Wadi, Dombivali (East),Dist.Thane 1-h. Mrs.Prachi Uday Chendvahkar , Room no.111,Swapanapurti, First Floor,Jerbai Wadia Road, Parel,Mumbai-400 012. Petitioners vs. Metro Tea Company, Through its Proprietor, Subhash Ramchandra Joshi, 1162,North Kasba, Solapur. Respondent Mr.S.N.Deshpande Advocate for the petitioners Ms.A.R.S.Baxi for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 20, 2010 O R A L J U D G M E N T 1 By this petition, the original petitioner who is the original plaintiff has taken an exception to the judgments and decrees of both the Courts below by which the suit for eviction has been dismissed. 2 The suit relates to the shop premises 3 judg-350-95 admeasuring 18’ X 3’ situated at Solapur. According to the case of the plaintiff, the respondent-defendant was inducted in the suit premises in the year 1939. It appears that the defendant is a tenant of the plaintiff in respect of two rooms located behind the suit shop premises which have been let out for the purpose of residence. In the present suit, the plaintiff came out with the case that the defendant was in arrears of rent from 1/4/1981 to 31/8/1983. Therefore, a notice of demand was issued by the plaintiff on 8/8/1984, which was received by the defendant on 9/8/1984. 3 The case made out in the plaint is that the plaintiff is a retired person and he has three sons . It is stated that the eldest son of the plaintiff was unemployed and therefore, the plaintiff wants to open a business in the suit shop. It is stated that if the unemployed son gets the shop premises he will be relieved of the liability and responsibility of his son. Thus , the suit was filed for eviction on the ground of 4 judg-350-95 bona fide requirement and arrears of rent. 4 The defendant filed written statement and contested the suit. The defendant pointed out that Misc.Application no.215/1981 for fixation of the standard rent was already pending and in the said application the entire amount of the arrears has been deposited and therefore, on the date of the suit notice, the defendant was not in arrears. It was pointed out that another suit bearing Regular Civil Suit No. 551/81 filed by the plaintiff in respect of two residential rooms situated on the rear side of the suit shop on the ground of bona fide requirement has been dismissed on merits. It was contended that the tenancy in respect of the suit shop premises and two residential rooms is single tenancy. Hence the suit was not maintainable. 5 The Trial Court held that the plaintiff has failed to prove that the defendant was a willful defaulter as in fact the defendant was ready and willing to pay the rent. The 5 judg-350-95 ground of bona fide need was negatived and the finding on the issue of comparative hardship was recorded in favour of the defendant. The Appellate Court has confirmed the findings on all the issues. 6 The learned counsel appearing for the petitioner submitted that the findings recorded by the Court on both the grounds are perverse. He submitted that on the date of notice of demand, the defendant was in arrears of rent for a period of 29 months and therefore, it was necessary for the defendant either to tender the entire arrears or to file an application for fixation of the standard rent within a period of one month from the date of service of notice. He submitted that the deposit of the amount of arrears by the defendant in pending Misc.Application no.215/81 cannot be treated as a valid tender as the same is without notice to the plaintiff. He submitted that the Court had no option but to pass a decree for possession on the ground of arrears of rent . He submitted that the requirement 6 judg-350-95 pleaded was that the petitioner’s eldest son requires the suit premises for starting a business. He pointed out that even the Courts below have accepted the case made out by the petitioner that the petitioner’s son is doing the business of selling tickets of drama outside a drama theatre in Mumbai . He submitted that it was not necessary for the petitioner to plead and prove that his son intended to start a particular business or that he has expertise in any particular business. He submitted that the finding of the Courts below that the petitioner’s son is doing business of selling drama tickets in Mumbai was sufficient to come to the conclusion that his son needs shop premises for starting his own business. He submitted that the findings on the issue of bona fide need as well as comparative hardship are perverse. He submitted that there is no case made out by the defendant that any effort was made to search any other accommodation. He submitted that merely because the defendant was doing business for a long time is no ground to record a finding on the ground of 7 judg-350-95 comparative hardship in his favour. 7 Learned counsel appearing for the defendant submitted that the evidence shows that the petitioner’s son is happily settled in Mumai and is carrying on business in Mumbai. She submitted that the petitioner’s son is residing in Mumbai from his childhood , and therefore, it is impossible to believe that he will go back to Solapur and will start the business. He submitted that there is no whisper in the plaint or in the evidence as regards the nature of business which the petitioner’s son intended to start. She submitted that in absence of pleadings and evidence on this aspect,by no stretch of imagination bona fide need can be accepted. She pointed out that when the suit was filed in the year 1984 the age of the son of the petitioner was about 34-35 years. After lapse of 26 years it is impossible for the petitioner’s son to go to Solapur and start business there. She submitted that the defendant has been carrying on business from the year 1939 and there is 8 judg-350-95 no evidence to show that any other premises was available to the defendant. 8 As far as ground of arrears of rent is concerned she submitted that on the date of service of notice of demand, the defendant was not in arrears and hence the suit on the ground of arrears of rent is incompetent. 9 I have given careful consideration to the submissions . As far as the first ground of arrears of rent is concerned the suit is based on notice of demand dated 8/8/1984 . It is not in dispute that in the year 1981 the defendant had filed an application for fixing the standard rent bearing Misc.Application no.215/1981 to which the plaintiff was a party. On the date of demand notice, in fact entire arrears demanded in the notice were deposited in the said application for fixing the standard rent . The plaintiff was a party to the standard rent application and he had knowledge of the pendency of the said application. 9 judg-350-95 Therefore, the deposit of amount of arrears in the standard rent application will have to be treated as a valid deposit and in fact on the date on which the demand notice was issued, the defendant was not in arrears. Under the circumstances, the Courts below have recorded a finding that the defendant was always ready and willing to pay the rent and hence no decree can be passed on the ground of arrears of rent . There is no reason to disturb the said concurrent findings. 10 The second question is regarding the bona fide requirement .The requirement which is specifically pleaded in the plaint filed in the year 1984 is that the plaintiff’s 33 years old elder son was unemployed and the suit shop premises is needed for starting a business for the said unemployed son. Before discussing the bona fide requirement as pleaded, a submission made by the learned counsel appearing for the defendant on the basis of decree of dismissal of Reg.Civil Suit no.551/1981 will have to be 10 judg-350-95 considered . The submission was that three years prior to the institution of the present suit, the plaintiff filed the said suit on the ground of bona fide requirement which was dismissed and the dismissal of the suit has been upheld by the higher Courts. It must be noted that the judgment in the said suit is placed on record of the Trial Court at Exh. 38.Said judgment shows that the suit related to the two residential rooms. The requirement pleaded was of the plaintiff himself to occupy the said rooms on various grounds. There was no requirement pleaded in the said suit of the plaintiff’s son . Moreover the subject matter of the present suit is the shop premises and not the residential rooms. The residential rooms are situated at the rear side of the shop premises. Hence, the decree passed in the said suit will not affect the bona fide need pleaded in the present suit. 11 It will be necessary to advert to the findings recorded by the Courts below and in particular the Appellate Court, 11 judg-350-95 on the point of bona fide requirement. In paragraph 15 of the judgment of the Appellate Court, it is observed thus - “On the other hand , it is the contention of the respondent that the demands of the premises is made by the appellant for his eldest son is totally false because the appellants son iz.Anand was examined in this case and he has given a clear admission that he is doing the business of selling tickets of drama programmes and he is engaged in drama and he is sufficiently earning as he has got a job and he is well in Bombay and he is not clear what business he is going to do in the premises as he has simply stated in vague terms that he intends to start the business in the suit premises . The learned Advocate for the respondent has further submitted that the appellant’s son is not having any experience in business and moreover, he has no finance for doing the said job. Since last 12 years he is doing the job of selling of tickets of drama at Bombay and he does not desire to start any business in Bombay and even if the premises is made available he will not start the business. Further he has started that he has not the bank account and his monthly income is more 12 judg-350-95 than Rs.2000/-and under these circumstances, it cannot be said that the appellant-plaintiff requires the suit premises for his son.” After making aforesaid observations , in paragraph 16 ,the Appellate Court observed that the requirement in order to be reasonable must have some relation to the actual need of the person for such kind of occupation. In paragraph 16, the Appellate Court observed thus - “Here, in this case, though the plaintiff and his son have categorically stated about the requirement about the shop . But looking to their evidence they have not stated all the particulars of the business and about the financial aid. In the absence of such material evidence it wold not be proper to hold that the requirement of the landlord is bona fide and reasonable.” 12 As far as the Trial Court is concerned, the Trial Court has considered the evidence of the plaintiff’s son . While referring to the evidence, the Trial Court has observed 13 judg-350-95 thus- “He states on imagination that he will do this or that business. His brother is B.E.Electrical and he is working in Videocon Agency at Bombay. It is the idea of the plaintiff’s son that videocon Company has started manufacturing Videocon Washing Machine and plaintiff’s son will get its agency at Solapur. Though the plaintiff’s son has stated all these facts ,he is unable to give particulars.” 13 Perusal of the evidence of the elder son of the plaintiff shows that he is residing in the city of Mumbai. He has stated that out of two brothers, one is engineer and he is in service and other is a student. His specific case is that he was doing the work of selling tickets of drama at Shivaji Mandir, Mumbai which is not a permanent service . In the cross examination not only that this case is not challenged but it is brought on record that the plaintiff’s son was selling the tickets sitting in the booking office and he was giving account of the sale of tickets to the manager of the company holding the drama programme. He specifically stated that he was sitting in the booking office on behalf of the manager of the concerned drama company. Thus , what 14 judg-350-95 is accepted by the Appellate Court is that the plaintiff’s son is residing in Mumbai and he is doing work of selling tickets of drama at drama hall Shivaji Mandir on behalf of the manager of the particular company holding the drama. The suit on the ground of bona fide requirement was filed in the year 1984 when the age of the son of the plaintiff was admittedly 34 years. The Apex Court has repeatedly taken a note of the fact that in the legal system in our country, the proceedings remain pending for inordinately long time. The Trial Court and the Appellate Court have non suited the plaintiff on the ground that the plaintiff has not disclosed the nature of the business which his son intended to start. The Trial Court itself has observed that it has been brought on record in the evidence that at that time the plaintiff stated that idea of his son was to get the agency of Videocon Washing Machines at Solapur. What is established is that the unemployed son of the plaintiff is doing the work of selling drama tickets outside the drama hall in Mumbai. The need pleaded is of occupying the suit 15 judg-350-95 shop for starting his own business. The plaintiff’s shop is in possession of tenant and the plaintiff’s son has been selling drama tickets outside a drama hall. In the case of Mst.Bega Begum and others Vs.Abdul Ahad Khan (dead) by L.Rs.and others (1979) 1 Supreme Court Cases 273, the Apex Court has considered the concept of bona fide need holding that it is different from dire necessity .It is well settled that for proving bona fide need, it is not necessary to prove a dire or compelling necessity. In the case of Raghunath Panhale since deceased by L Rs Vs.Chaganlal Sunderji & Ors.(I (1998) 8 SCC I ) the Apex Court held that landlord need not reach a level of starvation to justify getting possession of the business premises in order to establish business. The Apex Court held that starting of some other business to make the ends meet is not an impediment to seek possession of his own non residential premises. It was further held that it is not necessary for the landlord to prove that he had money to 16 judg-350-95 invest in new business contemplated, nor that he had experience of it. 14 The proceedings have remained pending from the year 1984 till the year 2010. Going by admitted facts on record , the only conclusion which could have been arrived at by both the Courts is that the requirement of the landlord’s eldest son was established . It is not for the tenant or as a matter of fact for the Court to dictate in what manner the landlord should enjoy his premises. For want of business premises, the eldest son of the landlord who was unemployed continued to do the work of selling drama tickets at Mumbai. In the argument now it is canvassed that the landlord’s son is now 60 years old and he cannot go back to Solapur and carry on business. Mere passage of time is not sufficient to establish that the bona fide need pleaded in the year 1984 has been totally eclipsed. The Courts below have erroneously held that the requirement of the landlord is not reasonable and bona 17 judg-350-95 fide and have rendered perverse finding on this aspect. The Court cannot expect the landlord’s unemployed son to remain without any source of livelihood of his choice and the fact that he does the work of selling drama tickets outside a drama theatre is no ground to reject plea of bona fide need. 15 As far as comparative hardship is concerned, the Appellate Court was impressed by the fact that the business of the defendant is being conducted from 1939. The suit was filed in the year 1984 on the ground of bona fide need. It is not the case of the respondent that any effort was made by the respondent to secure any other accommodation and that he has failed. In absence of any such evidence on the part of the defendant-tenant , the finding on the issue of comparative hardship could not have been recorded in favour of the defendant -tenant. Therefore, the finding on the said ground is perverse which has to be set aside. The tenant cannot take advantage of the fact that the Writ Petition of the year 1995 arising out 18 judg-350-95 of the suit of 1984 is being decided by the Court in the year 2010. 16 Hence, the petition must succeed and there will have to be a decree on the ground of bona fide requirement . To enable the defendant-tenant to secure some other accommodation, a reasonable time deserves to be granted. Hence I pass the following order. O R D E R a. The impugned decrees and judgments are quashed and set aside. b. Suit for possession filed by the petitioner stands decreed in terms of prayer clause ‘b’ thereof . c. The petitioner will be entitled to costs throughout. d. The respondent-tenant is granted time up to 31st May, 2011 to vacate the suit premises. JUDGE 19 judg-350-95