1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4472 OF 1992 Godavati Parvati Sadashiv Waingankar, since deceased through Lrs :- Ratnaprabha Wd/of Ramesh Waingankar and Others. .. Petitioners Vs Sanjay Gopinath Pokade & Anr. .. Respondents -- Shri S.M. Kazi for the Petitioners. Smt. Shakuntala A. Mudbidri for the Respondents. -- CORAM : A.S.OKA, J. DATE : 26TH APRIL, 2010 P.C: . The legal heirs and representatives of the original defendant have challenged the decree for possession passed by the Appellate Court in a suit for eviction filed by the Respondents. 2. The original respondents filed a suit for possession of the suit premises admeasuring 420 sq. feet in a House No.3447 situate at Ratnagiri, more particularly described in Paragraph 1 of the Plaint. According to the case of the Respondents, one Nagwekar was the owner of larger property. 2 The case of the Respondents is that they purchased large property from the legal representatives of the said Nagwekar by a registered Sale Deed dated 7th September, 1981. The case made out in the plaint is that the original Petitioner was occupying the suit premises as the licensee of Nagawekar. It is alleged that after the Respondents purchased the property, they called upon the Petitioner to vacate the suit premises. As the Petitioner requested for grant of time to vacate, time of one month was granted by the Respondents. It is alleged that the other occupants vacated the premises in their respective possession. Reliance is placed on a notice dated 23rd February, 1982 sent by the predecessor of the Respondents by which the Petitioner was informed about the transfer of property. By the said notice, the predecessor of the Respondents informed the Petitioner to pay arrears of license fee of 37 months which was payable by him to the Respondents. On 26th July, 1983 the Respondents issued a notice of demand by which a demand was made for license fee in the sum of Rs.1,475/-. It is stated in the suit that after receipt of the notice, money orders of the amounts of Rs. 550/- and 898/- were sent by the Petitioner and a reply dated 9th September, 1983 was sent by the Petitioner raising a false contention that he was a tenant. It was contended in the suit that the Respondents needed the possession of the suit premises on the ground of bonafide and reasonable requirement. It is stated that in the larger property purchased by the Respondents, there were number of coconut and other trees planted on the said property. It was contended that in the absence of possession of the suit premises, it was not possible for the Respondent to look after the 3 plantations. In Paragraph 8 of the Plaint, it was contended that the Petitioner was never the tenant of the suit premises. It is contended that even if it is assumed that the Petitioner was a tenant in accordance with the provisions of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( hereinafter referred to as the said Act of 1947 ), he has become a defaulter and his right to occupy the suit premises has been terminated by the notice dated 26th July, 1983. Therefore, a suit for possession was filed. The suit was contested by the Petitioner by contending that the notice was illegal as the relationship between the Plaintiff and the Defendant is that of the tenant and the landlord. It was contended that there was no notice of demand issued under the said Act of 1947 and no default under the provisions of the said Act of 1947 was alleged. The Petitioner relied upon the money orders sent by him to the Respondents. The Petitioner denied the ground of bona fide requirement. 3. The Trial Court framed various issues. The first issue was whether the Respondents prove that the Petitioner was a licensee. The said issue was answered against the Respondents - Plaintiffs. The Trial Court negatived both the grounds i.e. bona fide requirement and arrears of rent. The Trial Court came to the conclusion that by sending money orders, the compliance has been made by the Petitioner and therefore, the suit on the ground of arrears of rent was not maintainable. An appeal was preferred by the Respondents. The Appellate Court has passed a decree for possession on the ground of bonafide requirement. The Appellate Court 4 recorded the finding that the Trial Court ought to have held that the Petitioner was a defaulter either under Section 12(3)(a) or under Section 12(3)(b) of the said Act of 1947. 4. It must be stated here that when this Writ Petition came up before this Court for admission, the learned counsel appearing for the Respondents made a statement that the Respondents were pressing their contention that the arguments supporting a decree of eviction under Section 12(3)(b) of the said Act of 1947 were seriously advanced before the Trial Court as well as the Appellate Court but the Courts have not considered the said arguments. Therefore, this Court framed two issues. The first was whether the Respondents have proved that a case was made out for passing a decree under Section 12(3)(b) under the said Act of 1947 and the second was that there was any cause of action for filing a suit either under Section 12(3)(a) or 12(3)(b). This Court directed that the learned Civil Judge, Senior Division, Ratnagiri, shall answer the said issues and submit a finding to this Court. Accordingly, the Trial Court has done the exercise of recording a finding by a judgment and order dated 19th December, 1992. The said finding is that the Defendants have committed default in payment of rent within the meaning of Section 12(3)(b) of the said Act of 1947 and the Respondents had cause of action under Section 12(3)(a) of the said Act of 1947. 5. The learned counsel appearing for the Petitioner has taken me 5 through the copy of the demand notice, Plaint, Written Statement and the findings of the Courts below. He submitted that there is no notice of demand of rent as contemplated by Section 12(2) of the said Act of 1947. He pointed out that the bonafide need pleaded in the plaint is that the Respondents needed the suit premises to enable them to look after the plantations made in the larger property as the Respondents were desirous of developing plantation. He submitted that apart from the fact that there is no clear finding recorded by the Appellate Court in respect of a bona fide requirement, the Appellate Court seems to have been impressed by an altogether different requirement. He submitted that the finding on the issue of bona fide requirement is perverse. He submitted that in fact the suit proceeds on the footing that the Petitioner was a licensee and therefore ,the suit was not maintainable . 6. The learned counsel appearing for the Respondents submitted that there is a clear finding recorded by the Appellate Court that the Petitioner was in possession of five rooms and the Respondents were in possession of only one room. She pointed out that after considering the evidence and the report of the Commissioner, the Appellate Court has recorded a clear finding on the issue of bona fide requirement and comparative hardship. She pointed out that the possession of the premises received by the Respondents was not parted with, which fact is clear from the report of the Commissioner. She pointed out that a very small portion of the house was in possession of the Respondents and as 6 against this, the Petitioner was in possession of five rooms. Now there is a clear finding of fact recorded by the Trial Court that the suit is filed under Section 12(3)(a) of the said Act. She pointed out that the Trial Court has recorded a finding that though the money orders were sent by the Petitioner, in one of the money orders, the amount of commission was deducted and the money orders were received after the expiry of a period of one month from the date of service of the notice. Therefore, the learned counsel submitted that no interference is called for in the impugned order. 7. I have given careful consideration to the submissions. Perusal of the Plaint shows that the entire suit proceeds on the footing that the Petitioner was the licensee of the Respondents. In Paragraph 8 of the plaint, it is reiterated that the Petitioner was not a tenant. It is averred that even assuming that the Petitioner is declared as tenant in accordance with the provisions of the said Act of 1947, his tenancy has been terminated by a notice dated 26th July, 1983. As the pleading is a mofusil pleading , some laxity has to be shown, and therefore, the plea raised by the Petitioner in paragraph 8 of the plaint can be considered as the plea in the alternative. As per the settled law, at the time of hearing, it was for the Respondents to elect one of the pleas taken in the alternative. From the issues framed by the Trial Court, it appears that the evidence was led by the Respondents for contending that the Petitioner was a licensee. In fact, a specific issue has been framed on the said aspect putting a burden on the Respondents. The said issue is whether the Respondents prove that the Petitioner was a 7 licensee. It must be stated here that the suit was filed in the Court of special jurisdiction under Section 28 of the said Act of 1947. Under Section 28, the Court has no jurisdiction to entertain and try the suit filed by the licensor against the licensee for possession of the premises given on license. Only a suit for recovery of license fee is provided under the provisions of Section 28 of the said Act of 1947. Therefore, the Court could not have entertained the suit in a limited jurisdiction under Section 28 of the said Act of 1947. Nevertheless, there are findings recorded on merits on the footing that the Petitioner was the tenant and therefore, I am considering the merits of the case. 8. As far as bona fide requirement is concerned, the findings have been recorded in Paragraphs 7 to 12 of the judgment of the Appellate Court. The paragraphs 13 and 14 deal with the comparative hardship. I have carefully perused the findings recorded in Paragraphs 7 to 12 of the judgment of the Appellate Court. Even if what is stated in the said paragraphs is taken as a gospel truth, bona fide need is not at all established. There is no finding recorded that the bona fide need for a particular purpose is established. In the plaint, there is no pleading regarding bona fide need of the 1st Respondent who was a practicing Advocate. However, in Paragraph 7 of the judgment, the Appellate Court has referred to the alleged need of the 1st Respondent for his profession. Again no specific finding has been recorded that the bona fide need of the 1st Respondent has been established. Paragraph 8 records a vague finding 8 that the evidence of the 1st Respondent has not been shaken. It further records that the Petitioner is in possession of five rooms. Paragraph 9 deals with the report of the Commissioner who was appointed to find out whether the other premises in the property of which possession was obtained by the Respondents have been let out to third parties. Paragraph 10 records a finding that after receipt of the notice, no effort has been made by the Petitioner to search for other suitable accommodation. Paragraph 11 refers to a decision of this Court which deals that a tenant is not bound to vacate the premises unless he receives notice of termination of tenancy but the tenant must look for an alternative accommodation and whether the tenant has made an effort in the said direction or not is certainly a relevant factor for deciding the issue of comparative hardship. In Paragraph 12 of the judgment, there is a finding in a single sentence that the bona fide need is established. These Paragraphs do not spell out the nature of bona fide need. These Paragraphs do not spell out the purpose for which the Respondents/Landlords needed the suit premises. The learned counsel appearing for the Respondents relied upon certain observations made by the Appellate Court while dealing with the issue of comparative hardship. In the said paragraph, reliance is placed on the admission of the Petitioner in the suit filed by the predecessor of the Respondents to the effect that only one hall on the first floor of the property is in possession of the landlords. There is no finding as to what is the extent the premises is in possession of the Respondents/Plaintiffs on the date of the institution of the suit. The finding is that in the earlier suit filed by the predecessor of the 9 Respondents, the Petitioner admitted that the predecessor of the Respondents was in possession of only one room on the first floor. Thus, taking the findings of the Appellate Court as it is, no case for passing a decree of bona fide requirement is made out. Therefore, it is not necessary to deal with the issue of comparative hardship. 9. After this Court directed the Trial Court to record a finding on the two issues, a finding has been recorded that there was a cause of action available to the Respondents to file a suit under Section 12(3)(a) of the said Act of 1947. Therefore, it is necessary to peruse the notice dated 26th July, 1983 on which the suit is based. In the entire notice, there is no assertion that the Petitioner is a tenant of the Respondents. In the fourth Paragraph, there is an assertion that the Petitioner was in arrears of licence fee of Rs.1,475/-. In the second last paragraph, there is a specific demand of Rs.1,475/- which was the licence fee allegedly due and payable by the Petitioner. The notice proceeds on the footing that the petitioner was a licensee and was in arrears of licence fees. Thus, the notice is not a notice addressed by the Landlord to a tenant and there is no demand for payment of arrears of rent. Taking the assertions of the notice as it is, it cannot be read as the notice of demand for arrears of rent which is a condition precedent for passing a decree under section 12(3)(a). There is no dispute that the rent was payable by month. There is no dispute regarding standard rent. Therefore, there was no cause of action for filing a suit under Section 12(3)(a) of the said Act of 1947 in as much as there was no 10 demand made for arrears of rent. As there is no dispute regarding the standard rent and as the rent is admittedly payable by month, Clause (b) of Sub-section (3) of Section 12 will have no application. In any case, there is no cause of action for filing a suit on the ground of arrears of rent. Therefore, the finding recorded by the learned Trial Judge in terms of the order of this Court was completely erroneous. So is the finding of the Appellate Court which curiously records that the Petitioner was a defaulter either under Section 12(3)(a) or under 12(3)(b) of the said Act of 1947. The said finding is completely contrary to Section 12 of the said Act of 1947. 10. Therefore, the Petition must succeed and I pass the following order. (a) The impugned judgment and decree passed by the Appellate Court is quashed and set aside and the decree of the Trial Court is restored. (b) Rule is made absolute in above terms with no orders as to costs. (A.S.OKA, J)