1 C.R.A.No.47 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.47 OF 2011 Hiralal s/o Sitaji Mahore, Age 76 years, Occu.Contrator, R/o House No.5-12-48, Padampura,Aurangabad ..Applicant (Original Resp.No.1) VERSUS 1. Jyotsnabai w/o Keshavlal Varu, Age 70 years, Occu.Household, R/o H.No.5-9-8, Near R.T.O. Office, Station Road, Aurangabad 2. Bhagirathibai w/o Himmatlal Varu, Age 60 years, Occu.Household, R/o H.No.4-18-34, Plot No.113, 114, Gajanan Colony, Garkheda Parisar, Aurangabad 3. Bhupesh s/o Himmatlal Varu, Age 40 years, Occu. R/o H.No.4-18-34, Plot No.113, 114, Gajanan Colony, Garkheda Parisar, Aurangabad 4. Mukesh s/o Himmatlal Varu, Age 35 years, Occu. R/o H.No.4-18-34, Plot No.113, 114, Gajanan Colony, Garkheda Parisar, Aurangabad 5. Vinnuben w/o Ishwarlal Varu, Age 40 years, Occu.Household, R/o Opp.Tank Hospital, Kranti Chowk, Aurangabad 6. Rita w/o Dinesh Sawriya, Age 55 years, Occu.Household, R/o Near Pendkar Hospital, Bhadkalgate (Peerless Beauty Parlour), Aurangabad 2 C.R.A.No.47 of 2011 7. Keshavlal s/o Hiralal Varu, Died, through L.Rs. 7-a) Gautam s/o Keshavlal Varu, Age 29 years, Occu.Business, R/o As above. H.No.5-9-8, Near RTO Office, Station road, Aurangabad 7-b) Neelesh s/o Keshavlal Varu, Age 25 years, Occu.Business, R/o As above. H.No.5-9-8, Near RTO Office, Station road, Aurangabad 7-d) Rupali Harish Chavan, Age 32 years, Occu.Household, R/o Princess Tailor, Gasaviwadi, Nashik road, Nasik. .. RESPONDENTS Mr A.D.Kasliwal, Advocate for petitioner Mr P.N.Sonpethkar, Advocate for respondent No.1 Mr A.B.Gaikwad, Advocate for respondent Nos.2 to 4 and 6 Respondent Nos.5, 7-a to 7-d served CORAM : K.U. CHANDIWAL, J. DATE : 18th November, 2011 ORAL JUDGMENT 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, heard finally at the stage of admission. 2. This is the landlord’s revision, challenging the order of reversal of decree of eviction in Rent Appeal No.12 of 2008 dated 15.11.2010 by the first appellate Court (disturbing the judgment and decree dated 2.8.2008 in Rent Suit No.15 of 2003). 3 C.R.A.No.47 of 2011 3. The substantial question of law between the parties would be whether the first appellate Court was justified in formulating the point of greater hardship in terms of Section 16(2) of Maharashtra Rent Control Act, 1999, in the absence of any evidence on the part of the respondents (so-called tenants). 4. The plaintiff is owner of the suit property, which was leased to deceased Himmatlal Varu at monthly rent of Rs.300/-. Shri Himmatlal expired in 1997 and original defendant Nos.1 to 5 are his legal representatives, who were residing with him at the time of his death. The original defendant No.6 Keshavlal is brother of Himmatlal and original defendant No.7 Jyotsna is wife of Keshavlal. Keshavlal during the proceedings expired. The original defendant Nos.1 to 5 from the branch of Himmatlal vacated the suit premises, as they have made their own arrangement. The occupation of original defendant Nos.6 and 7 (now respondent No.1 Jyotsna) is asserted to be a sub-tenancy created by Himmatlal, not binding to the rights of the plaintiff/revision applicant, the landlord. The respondent No.1 Smt.Jyotsna is using suit premises for lodging and boarding in the name and style as “Vinu Cafe” under a licence since 1999. The change in the user was objected by the revision applicant by his representation before the Municipal Corporation and Shops and Establishment Officer. The other ground raised by the revision applicant, as landlord was, the suit premises in possession of the defendants (Now respondent No.1) is reasonably and bona fidely required for the residential user, as the 4 C.R.A.No.47 of 2011 present accommodation at Padampura is consisting of three rooms, which are like a godown. Those are not suitable and proper for their residence consisting of seven/eight family members. It is informed, after the marriage of their sons, the family further increased and the suit premises is not sufficient for residential purpose for their family at Aurangabad. 5. The defendants (Respondents) in the said eviction proceedings filed a joint written statement below Exh.14 and they have addressed that Keshavlal and Smt.Jyotsna were residing in the suit premises since the date of lease with deceased Himmatlal. The business of lodging and boarding is conducted since 53 years without any interruption from the revision applicant. The revision applicant has sufficient accommodation. The suit premises is the only source of income and residence for the defendants and they have not other premises with them for their residence. 6. A suit for recovery of rentals being Small Cause Suit No.45 of 1995 by the plaintiff/revision applicant against Himmatlal was dismissed. Another suit being No.21 of 2002 was also filed and in its wisdom, the revision applicant withdrew the same on 3.1.2003. Consequently, the respondent No.1 Jyotsna or for that purpose Himmatlal and his branch claimed that the Eviction suit is not at all maintainable. It was canvassed, in Small Cause Suit No.45 of 1995 all the points, which the revision applicant has raised in eviction 5 C.R.A.No.47 of 2011 proceedings are extensively dealt with, findings given in such suit, (for recovery) operates as res judicata so far as the suit for eviction is concerned. 7. The learned trial Judge formulated three issues, namely - (1) Does the plaintiff prove the change of user of tenanted premises by defendants ? (2) Does plaintiff prove that tenanted premises is required for his personal and bona fide requirements ? (3) Does plaintiff prove that defendants have created sub-tenancy ? (4) What order and decree ? All the issues are answered in affirmative, and awarded an eviction decree, as stated earlier in Rent Suit No.15 of 2003. 8. The learned District Judge-6 in the Rent Appeal No.12 of 2008 formulated following points and recorded findings. (1) Whether the plaintiff proves that the suit premises was let out to the defendants and deceased Himmatlal Varu for their residential purpose only ? ..In the negative 6 C.R.A.No.47 of 2011 (2) Whether the plaintiff proves that the defendant nos.1 to 5 have sub-letted the suit premises to defendant nos.6 and 7 and thereby created sub tenancy without permission of the plaintiff ? ..In the negative (3) Whether the plaintiff proves that the defendant nos.6 & 7 have changed the use of suit premises from residential to Commercial by running Lodging and Boarding business under the name and style as “Vinu Cafe” ? ..In the negative (4) Whether the defendants prove that the Small Cause Suit bearing No.45/1995 operates as res judicata to the present suit ? ..In the negative (5) Whether the plaintiff proves that the suit premises is reasonably and bonafidely requires for the residence for himself and his family members ? ..In the negative (6) To whom the greater hardship would be caused by passing the judgment and decree then refusing to pass it u/sec. 16(2) of the Maharashtra Rent Control Act, 1999 ? ..If decree is passed greater hardship will be caused to defendants instead of plaintiff 7 C.R.A.No.47 of 2011 (7) Whether the plaintiff is entitled for the judgment and decree of possession of suit property as prayed for ? ..In the negative (8) Whether the judgment and decree of the lower Court needs interference of this Court ? ..In the negative (9) What order ? ..As per final order 9. Admittedly, there was no evidence adduced by any of the respondents. The finding of first appellate Court of comparative hardship is in the absence of pleadings and evidence of the respondents. 10. The Revision applicant says, the lower appellate Court, erred in recording that the petition is belatedly filed. It did not consider Exh.78 purshis of respondents in the record, informing that they do not wish to adduce any evidence. The evidence of the landlord is at Exh.42 and of his son is at Exh.65. The five documents tendered by the landlord not controverted, speaks of change of user in the year 1999 from residential to a hotel and purportedly shown to be handed over or given by Bhagirathibai on a stamp paper asserted ownership. Indeed, Bhagirathibai had no contractual relation to brand herself as owner of the suit premises or a landlord of the suit premises, permitting Respondent No.1 to convert premises in a Hotel. 8 C.R.A.No.47 of 2011 11. Mr Sonpethkar, learned Counsel exhaustively dealt with the case. He took me to the plaint to address that it is silent of any rent agreement. The property was not in the name of the plaintiff (revision applicant). It was let out by uncle of the revision applicant. Intentionally he has not given details of rent agreement or user of property. The Revision applicant (plaintiff) has suppressed production of earlier judgments though it is referred in paragraph 13 of the plaint. The premises is used as a hotel and residence since 53 years. The rent receipts are of 1959 in the name of Vinu Cafe. The learned Counsel reiterates, having recorded particular finding in Small Cause Suit No.45 of 1995, dismissing the landlord’s recovery suit, operates as res judicata. The tenancy of the defendants is accepted. Consequently, it amounts to acceptance of tenancy of respondent No.1 Smt. Jyotsna. 12. The learned Counsel for the revision applicant placed reliance to the judgment of this Court, Chotumal Bahiramal Sindho (since deceased) through his L.Rs. Vs. Baburao Vinayak Mohadkar (since deceased) through his L.Rs., (reported in 2009 B.C.I. 7), Gurulingappa Sharnappa Birajdar, since deceased through legal heirs and representatives Vs. Sidramappa Ganpatrao Mulge & anr. (reported in 2009 B.C.I. 40), Shankar Bhairoba Vadangekar (thru L.Rs.) Vs. Ganpati Appa Gatare (thru L.Rs.), (reported in 2001 (4) ALL M.R.61, Tulshiram Bhumayya Shriram & Ors. Vs. Akbarkhan Mujafarkhan & Anr. (reported in 9 C.R.A.No.47 of 2011 2004 (3) ALL MR 279. These judgments deal with bona fide requirement of the landlord. These judgments inform, it is the landlord, who has to decide regarding availability of accommodation, type of accommodation and convenience of his family, when he seeks to regain the possession of rented premises. It is not the tenant, who can dictate the terms. For this purpose reliance was placed to the judgment in the matter of Ramesh Kumar Vs. Kesho Ram, (reported in AIR 1992 SC 700). 13. The learned Counsel for the respondent No.1 Smt.Jyotsna has relied to the judgments reported in - (a) AIR 1981 SUPREME COURT 2235 (Pandurang Jivaji Apte Vs. Ramchandra Gangadhar Ashtekar (dead) by Lrs and ors. on the point of drawing an adverse inference against a party. (b) AIR (36), 1949 PRIVY COUNCIL 278 (Kumbhan Lakshmanna and ors. Vs. Tangirala Venkateswarlu and ors.), which was dealing with provisions of Section 101 to 103 of Evidence Act informing that there is no presumption under law that the grant of an inam conveyed only the melvaram to the grantee but when the question of respective rights of the parties in the land arises for decision each case should be decided on its own merits without reference to any presumption in law regarding the existence of those rights in either of the parties. 10 C.R.A.No.47 of 2011 (c) 2011 AIR SCW 3428 (Rangammal Vs. Kuppuswami & Anr., dealing with burden of proof. It was a suit for partition. The Apex Court found that the property was sold to father of plaintiff by de facto guardian of appellant. In the said matter, it was held that burden to prove such sale and its validity is on the plaintiff; it cannot be placed on the appellant (d) 1991 CIVIL COURT CASES 0343 (S.C.) (Lakhan Sao (deceased) now through his Legal Heirs Vs. Dharamu Chaudhary, again deal with burden of proof informing that it is always open to a party not to lead evidence, where the onus is upon the other party but if he has led evidence, he cannot askthe Court to ignore it. (e) 2006 (3) CIVIL COURT CASES 0243 (Anil Rishi Vs. Gurbaksh Singh) on the point of burden of proof. (f) AIR 1979 SC 551 (Ishwardas V. The State of M.P. and others). It was dealing with issue between the same parties and import of Section 11 of Code of Civil Procedure. The observation of the Loardship relevant for the present was reflected in paragraph 6, which reads as under : “6. The plaintiff in both the suits was the same. The contesting defendant was also the same, namely the State of Madhya Pradesh. In the present suit Melaram and the Chief Conservator of Forests were also 11 C.R.A.No.47 of 2011 impleaded as parties whereas in the other suit some other person was a party. We do not see that it makes any difference. In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim. The issue in the present suit and the issue in the Dewas suit were between the same parties namely the appellant and the State of Madhya Pradesh. The submission that the subject-matter of the two suits were different because the present suit was for a declaration and the other suit was for damages is equally without substance since the issue between the parties was identical in both the suits. The question at issue in both the suits was whether the agreement between Melaram and the Govt. and the surety bond executed by the plaintiff were not enforceable because of the failure to comply with Art.299 of the Constitution. The ground on which the agreement and the surety bond were sustained in the Dewas suit was that the Raj Pramukh had ratified the same. The fact that the ratification by the Raj Pramukh as not expressly mentioned in the present suit does not make any difference to the plea of res judicata. Once the question at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained, without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by S. 11 Civil Proecure Code. The submission of the learned 12 C.R.A.No.47 of 2011 Counsel that the decision of the Dewas Court and the High Court in the other suit were non est because they upheld an illegal contract has only to be noticed to be rejected.” (g) 2010 (2) AIR BOMBAY 132 (Bismilla Bee & Anr. Vs. Mohd Anwar). Indeed, this judgment favours the revision applicant as ground of bona fide requirement of the landlord and comparative hardship was discussed, in which this Court has observed, burden of proving greater hardship so as to deprive the landlord of his established right to seek eviction lies on the tenant. The scope of Section 101 of Evidence Act including Section16(2) and Section 16(1) (g) (2) of Maharashtra Rent Control Act (18 of 2000) was considered. (h) AIR 1987 SC 242 (1) (A. S. Sulochana Vs. C. Dharmalingam), It was in respect of unlawful sub- letting in the light of Section 10(2) (ii) (a) of Tamil Nadu Buildings (Leaseand Rent Control) Act (18 of 1960), the observations of the Honourable Supreme Court deal with particular provision of the law as envisaged and would not be applicable to the lawenvisaged under the Maharashtra Rent Control Act, 2000. (i) AIR 1998 SUPREME COURT 746,(S.J. Ebenezer Versus Velayudhan and others), Ground of bona fide need of the landlord was dealt with. It was observed, burden also lies upon the landlord to establish that he genuinely requires the accommodation. 13 C.R.A.No.47 of 2011 14. There cannot be a quarrel on the legal position, as enunciated in the above referred judgments, either referred by the revision applicant or by the respondent No.1 Smt.Jyotsna. The fact remains, it is prerogative of the landlord, as he is the best judge of his requirements. He has a complete role and choice in the matter. It is basically of no concern of either the Court or of the tenant/respondent to dictate as to how and in which manner the landlord should live or to prescribe his residence or the standard of his residence. The over all effect of the judgment of Honourable Supreme Court in the matter of Ramesh Kumar Vs. Kesho Ram, (reported in AIR 1992 SC 700) (supra), informs that the need of the landlord has to be paramountly considered, weighing the accommodation and the family needs of the landlord. 15. Mr Sonpethkar, though read evidence of the landlord, however it cannot dwell upon any admission of the landlord accepting Smt.Jyoti as a tenant in the suit premises. The evidence has to be read, as a whole, and need not be castigated in the context as he desired. The first part of the cross-examination, suggesting the revision applicant that defendants are the tenants, is wiped out in latter part of the very cross-examination, when the landlord disputes status of Jyotsna or Keshavlal to be his tenants. 14 C.R.A.No.47 of 2011 16. The landlord/revision applicant had tendered before the Court voluminous documents, to which reference is given by both the Courts in their judgments, production of such documents is not in controversy. The stand raised in the written statement below Exh.14 by the respondents was that due to finding in Small Cause Suit No.45 of 1995 against the revision applicant, the suit for eviction is not maintainable. One should not be oblivious, Small Cause Suit No.45 of 1995 was for recovery, that too against Himmatlal and his branch wherein Keshavlal or Jyotsna were not parties. Any observation made by the learned Judge in the said proceedings would not operate as a res judicata, as it was not the issue touching eviction proceedings. The eviction suit proceedings were on altogether different arena i.e. the defendants have changed the user, creation of sub-tenancy and requirement of suit premises on bona fide grounds. The observation of the learned Judge in Small Cause Suit No.45 of 1995, would not change colour and complexion of the matter, as the observations were not in tune, either with the pleadings or in any tune with the issues formulated in the said case, as the issues for a decree of the suit amount, or interest or whether a decree for recovery could be passed. Since the parties did not venture to lead any evidence in respect of three points, which are subject of Rent Suit No.15 of 2003, any observation in the Small Cause Suit No.45 of 1995 would not operate as res judicata. 15 C.R.A.No.47 of 2011 17. It is well indicated in the judgment of three Judges Bench, reported in 2004 SCC 1 (Ashok Lyland Vs. State of Tamil Nadu), “The principle of res judicata is a procedural provision. A jurisdictional question if wrongly decided would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like, estoppel, waiver or res judicata.” 18. To repeat, the learned Judge dealing with Small Cause Suit No.45 of 1995 was not expected to travel to the area of eviction and needs of landlord. Consequently, observations divorced from record, and jurisdiction would not create an obstacle for the landlord in his Rent Suit No.15 of 2003. Such observations in recovery suit are haywire in its nature, and reflects a garble on the part of the learned Judge. 19. The landlord come with a case of change of user of tenancy premises informing that Keshavlal or Smt.Jyotsna are using the premises as Vinu Cafe and obtained licence from Corporation in the year 1999. The said licence was indeed, in the name of defendant No. 7 Smt.Jyotsna. There is no evidence that Vinu Cafe was in existence prior to 1999 though its reference has come in old suit, informing that identical rent receipt of 1959 was passed in the name of Vinu Cafe. The revision applicant has, vide Exh.49 raised proper objection either before the Municipal Corporation or competent authority about change of user and creating false, concocted documents at the instance of 16 C.R.A.No.47 of 2011 Smt.Jyotsna. The respondents, did not tender any document to demonstrate that Vinu Cafe has come into force by way of a commercial activity prior to 1999. 20. The revision applicant claimed premises for his personal and bona fide requirement. He established that he has three rooms, which are of godown structure, not suitable and proper for residence and also his strength of family members increased. The figure given in the evidence was seven members. The revision applicant has also examined his son Anand, who in turn informed, that he, his brother, wife, son and family of his brother reside as a joint family along with their sister and the figure is nine members residing at the house at Padampura consisting of three rooms. The children are school going, The premises in their possession is insufficient. It was informed, not controverted, that the respondents occupied the suit premises consisting of twelve rooms. The revision applicant, as could be seen possessed two houses, one at Padampura and another, the suit premises in nearby area. The other respondents barring Smt.Jyotsna have indeed vacated the premises and shifted to other area. In not stepping of any of the respondents in the witness box, could not indicate that the bona fide requirement asserted by the plaintiff/revision applicant was illusory or without any support of requirement. The comparative hardship that would be faced by the respondents, is a matter of evidence to be established, and that too in tune with obligation in Section 16(1) and 16(2) of the Maharashtra 17 C.R.A.No.47 of 2011 Rent Control Act. Section 16(2) of the Maharashtra Rent Control Act is designed in a negative language, which indeed inhibits the Court from passing a decree of eviction; if it is satisfied that a greater hardship would be caused to the tenant by passing the decree than refusing to pass it. Such requirement is naturally mandatory. It is thus, a satisfaction contemplated therein has to be reached. It does not leave any room to the Court but affects into refusal of a decree for eviction. Considering these features of the matter, this Court again re- appreciated the evidence and the outcome is, there is no comparative hardship that has been established by the respondent, which would magnify greater in its shape and ambit than the bona fide requirement proved by the revision applicant. The reliance placed by the learned first appellate Court to Section 16(2) of the Maharashtra Rent Control Act, 1999, is certainly misplaced for want of tenant’s evidence. Consequently, I hold that the bona fide requirement of revision applicant has paramount effect than the hardship of the respondent in terms of Section 16 of the Act. 21. During the course of submission, Mr Sonpethkar informed, if this Court is not inclined to accept plea raised by the respondents, of not leading evidence, the matter may be remanded to the trial Court to be disposed of within a specified period. Secondly, if this Court does not agree to this proposition, at least six months’ time be granted to vacate the suit premises. Mr Gaikwad, for other respondents submits, his clients have removed themselves from suit premises. He accepts, none of respondent lead any evidence in trial Court. 18 C.R.A.No.47 of 2011 22. Re-visiting facts, taking survey of the evidence, points raised and submissions advanced, I hold that the observations of the learned first appellate Court in Rent Appeal No.12 of 2008 holding that comparative hardship lies with the respondent No.1 Jyotsna, is contrary to record and, therefore, calls for interference. 23. The Civil Revision Application is allowed. The decree of eviction recorded in Rent Suit No.15 of 2003 dated 2.8.2008 is confirmed. The respondents to vacate the suit premises up to 30th June 2012. The respondent No.1 Jyotsna shall give regular undertaking to the Registrar