1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4074 OF 1991 Chandmal Shankarlal Varma (Died) Through L.Rs. a Kantilal Chandmal Varma, age : 47 years, Occ : Business, b Deepak Chandmal Varma, age : 40 years, Occ : Business, c Tarachand Chandmal Varma, age : 35 years, Occ : Business, d. Sow. Radha Sureshchand Varma, age : 51 years, Occ : Household, e. Satyam Chandmal Varma, age : 22 years, Occ : Business, f Sundaram Shantilal Varma, age : 20 years, Occ : Business, g Govardhan Shantilal Varma, age : 19 years, Occ : Business, All R/o Katariya Wada, Manik Chowk, Ahmednagar. PETITIONERS VERSUS 1 Sumatilal Shantilal Baldota, age : 33 years, Occ : Advocate, 2. Rajendra Shantilal Baldota, age : 30 years, Occ : Trader, 3. Sau. Ratnaprabha Ahsokalal Baldota, age : 36 years, Occ : Trader. 4. Shantilal Zumbarlal Baldota, age : 56 years, Occ : Trader and Agriculture, All R/o Manik Chowk, Ahmednagar. RESPONDENTS ..... Mr. D.K. Kulkarni, Advocate for petitioners. Mr. S.P. Brahme, Advocate for respondents. ..... 2 WITH WRIT PETITION NO. 1002 OF 1992 1 Sumatilal Shantilal Baldota, age : 33 years, Occ : Advocate, 2. Rajendra Shantilal Baldota, age : 30 years, Occ : Trader, 3. Sau. Ratnaprabha Ahsokalal Baldota, age : 36 years, Occ : Trader. 4. Shantilal Zumbarlal Baldota, age : 56 years, Occ : Trader and Agriculture, All R/o Manik Chowk, Ahmednagar. PETITIONER VERSUS Chandmal Shankarlal Varma (Died) Through L.Rs. a Kantilal Chandmal Varma, age : 49 years, Occ : Service, R/o Savedi Gaothan, Near house of one Baraskar, Near shops of Nagar Palika, Savedi, Ahmednagar, Tq. & Dist. Ahmednagar. b Deepak Chandmal Varma, age : 40 years, Occ : Nil, R/o Near Vasant Talkies, Maliwada, Ahmednagar, Or 3586, Manik Chowk, Ahmednagar. c Tarachand Chandmal Varma, age : 40 years, Occ : Service, Chief Engineer, Pune Zone, Mankoni Mehta Road, Pune-1 or at post Charoli, Tq. Haveli, Dist. Pune. d. Sow. Radha Sureshchand Varma, age : 38 years, Occ : Household, C/o Suresh shankarlal Varma, Varma Jwellers, Anna Stores, at post. Tq. Sangamner, Dist. Ahmednagar. RESPONDENTS ..... Mr. S.P. Brahme, Advocate for petitioners. Mr. D.K. Kulkarni, Advocate for respondents. ..... 3 (CORAM : B.P. DHARMADHIKARI, J.) DATED : 13th January, 2011. ORAL JUDGMENT : Tenant has filed Writ Petition No. 4074 of 1991, challenging the concurrent orders passed by the trial Court, as also, the District Court granting decree of his eviction to respondents-landlord on account of bonafide need and non-user. The land-lord has filed Writ Petition No. 1002 of 1992 challenging the denial of decree by appellate Court, on the ground of nuisance and also for bonafide need of the respondent nos.3 and 4 in Writ Petition no. 4074 of 1991. As the challenge in both Petitions arise out of same judgment, both are heard together. 2. Shri D.K. Kulkarni, learned counsel for tenant has contended that though the findings on bonafide need of respondent nos. 1 and 2 in Writ Petition No. 4074 of 1991 are concurrent, the same are perverse, as admissible evidence has not been looked into. He has urged that two rooms in his possession admeasuring 15 Ft. X 12 Ft. and 5 X 10 Ft., are required for his bonafide need. He has further stated that landlord also secured possession of six rooms from the tenant and this event has not been looked into. Matter against another tenant by name; Shri Aher is pending at the 4 instance of landlord before this Court in Writ Petition. Learned counsel has urged that looking to the purpose for which the possession is sought, rooms in possession of tenant are too small. Lastly he has contended that the respondent nos.1, 2 and other respondents are residing at Karjat and not at Ahmednagar and this position is accepted by them in plaint filed in R.C.S. No. 461 of 1988. According to him, as they are residing at Karjat, need of two rooms with petitioner-tenant at Ahmednagar is unwarranted and can not be accepted. 3. About the grant of decree on account of alleged non- user, learned counsel has contended that it has been granted for the first time by the appellate Court and findings in that respect are not concurrent. The attention has been invited to the discussion in that respect against point no.6 by appellate Court, to urge that that discussion does not record any consistent and cogent findings about non-user. He has further stated that the pleading before the trial Court on this account was in relation to both rooms but then the appellate Court has delivered the finding only in relation to room admeasuring 5 Ft X 10 Ft. He has pointed out that challenging the findings recorded against him, the landlord has filed cross objection before the appellate Court and omission of trial Court to look in to the ground of nonuser was not assailed in 5 that cross objection. In this view of the matter, learned counsel stated that the appellate judgment is unsustainable. He has invited attention to the observations in that respect as contained in that judgment and also in the judgment of the trial Court. 4. He has further pointed out that Civil Application Nos. 2397 of 1993, 126 of 1996 and 6833 of 2010 have been moved by tenant before this Court to point out subsequent events. He has invited attention to the orders passed on 04.08.1998 by this Court to show that these subsequent developments/applications are required to be looked into at the stage of final hearing. According to him, Civil Application no. 126 of 1996 points out demolition of entire structure at Ahmednagar except two rooms in possession of tenant and a new construction in its place. He states that the landlord has accepted this position and hence in view of the new construction, the need of landlord is satisfied. The attention is also invited to Civil application no. 2397 of 1993 to urge that the landlord had not initiated any action for eviction of tenant by name Shri. Datar and premises in occupation of another tenant-Shri Aher were delivered in possession of landlord because of compromise in Writ Petition. He states that, in reply, the landlord has accepted that compromise. Lastly he points out that in Civil Application no. 6833 of 2010 purchase of flat and house in Ahmednagar by landlord has 6 been pointed out. To show that such events looked into by this Court, he relied upon the judgment reported in "AIR 1981 SC 1113" ( M.M. Quasim V/s Manohar Lal Sharma and others), particularly paragraph nos. 15, 16 and 17 and "AIR 1992 SC 700" (Ramesh Kumar V/s Kesho Ram) particularly para no. 4. Learned counsel, therefore, prayed for allowing the Writ Petition as filed by tenant and for dismissal of Writ Petition as filed by the landlord. 5. Advocate Mr. Brahme for landlord has in reply to Writ Petition No. 4074 of 1991 contended that there is no challenge to finding of hardship concurrently recorded by the trial Court or appellate Court. He further states that findings on need of respondent nos.1 and 2 are concurrent and positive view has been taken. Hence this Court should not interfere in the present Writ Petition. He has relied upon the judgment of the Hon'ble Apex Court reported in "2010 (6) Mah. L.J. 661" ( Shalini Shetty V/s Rajendra Patil), to substantiate his contention. 6. Learned counsel has further urged that the decree granted on the ground of non-user by appellate Court is in accordance with law and it was open to landlord to assail the finding recorded against him by the trial Court without filing any 7 cross objection and he invited my attention to the provisions of Order 41 Rule 22 of the Civil Procedure Code, to substantiate this stand and also took support of paragraph nos.31 and 33 of the Judgment reported in "2005 (Supp.) Bom C.R. 816 (Musaji Mohamadali Master & another V/s Gulamali Dadabhai Amreliwala & others). 7. On subsequent events, learned counsel states that need has not been shown to be eclipsed by these development at all. He urged that in applications only effort is to raise some disputed questions of facts and those disputed questions of facts can not be looked into for the first time by this Court. 8. He has further added that the trial Court had granted decree, after accepting that need of all four landlords was proved. The appellate Court has restricted that permission only to respondent nos.1 and 2. He states that the respondent no.3 is a daughter-in law in the family and she wanted to start business of medicine preparation or the computer center. The decree to her has been declined because of absence of knowledge or training in those fields. The reliance is placed on the judgment of "2001(4) B.C.R. 804" ( Shankar Bhairoba Vadangekar since deceased by his heirs and legal representatives V/s Ganpati Appa 8 Gatare, since deceased by his heirs and legal representatives) (Para no. 25), 2003 (2) B.C.R. 190 (Balwant P. Doshi V/s Shantaben Dhirajlal Shah & another) (Para no.6) and 2005(5) B.C.R. 114 ( Motor Cycle House and Metro Cottage Industries & another V/s Kamalabai Dattatraya Kale and others) (para no. 14), to urge that knowledge of training and financial capacity are already held to be totally irrelevant consideration in so far as bonafide need is concerned. He, therefore, states that the said finding of appellate Court must be reversed by this Court and the landlord should be allowed the decree of eviction even on account of bonafide need of respondent nos.3 and 4. He points that the respondent no.4 needs a room to store agricultural produce which he brings from Karjat to Ahmednagar for sale. He points out that there is evidence on record to show that he has acquired Godown on hire for that purpose. 9. He has also invited attention to discussion in this respect to show that the alleged contention of tenant about 17 rooms in possession of landlord is found to be incorrect and finding recorded is of six rooms only. He has further stated that all landlords (respondents in Writ Petition No. 4074 of 1991) reside at Ahmednagar only. 9 10. Taking up the Writ Petition No. 1002 of 1992 filed by the landlord, Shri. Brahme has contended that denial of decree on the ground of nuisance and annoyance by appellate Court is unsustainable. He has invited my attention to the provisions of Section 13(1)(c) of Bombay Rent, Hotel and Lodging House Rates Control Act 1947 (In short hereinafter referred to as, Bombay Rent Act), to urge that the ingredients thereof are fully satisfied in the present matter. He has pointed out, the discussion in this respect as contained in judgment of trial Court against issue no. 5 and consideration of documents at Exhibit-31 to 38 to show that the said evidence conclusively established mode and manner in which the tenant is behaving himself. To point out this Court, how "nuisance" or "annoyance" is understood in law, he relied upon the judgments reported in " 1984(1) Bom. C.R. 520 (Gulam Husain Mirza V/s Laxmidas Premji alias Sugar Premji & another), 1994(1) Bom. C.R. 608 ( Narpatchand A. Bhandari V/s Shantilal Moolshankar Jani and another), T2004(4) Mah. L.J. 372 ( Sushilabai W/o Narayan Raut and others V/s Navnit S/o Bhojraj Lakhotiya), 2005(2) Bom. C.R. 409 (Jagdish Brothers Agrawal & others V/s Gayasuddin Abdul Kadar Konkani & others) and 2007(14 SCALE 618 (Raju @ Gautam Ghosh V/s Rekha Ghosh and others). According to him, the lower appellate Court has taken too technical view in the matter, while discussing 10 this aspect in paragraph nos.16 to 28 of its judgment. 11. Advocate Mr. Kulkarni in his brief reply has reiterated his earlier stand. However, in Writ Petition No. 1002 of 1992, on behalf of tenant, he contended that the test to be applied is of nuisance to neighbour or other adjoining owner and the trial Court has not applied that test. Appellate Court has recorded its finding that there is no material on record to show such nuisance to neighbour. According to him, this being the finding of fact and as possible view of evidence has been taken by the appellate Court, this Court should not interfere. 12. The contentions raised by the petitioner in so far as bonafide need is concerned, are already reproduced above. The grant of decree to respondent no.1-Sumatilal and respondent no.2- Rajendra concurrently in this respect by both the Courts, is on record. The appellate Court has considered the evidence available in this respect while deciding point nos.2 and 3. The discussion in this respect is contained in paragraph no.31 onwards. The Court has found that Sumatilal is a law practitioner and he has desire to start law practice at Ahmednagar. It also recorded that respondent no.2-Rajendra has obtained requisite qualification in law and also desired to start legal practice at Ahmednagar. The said 11 consideration by both the Courts is not shown to be either erroneous or perverse. The tenant has not pointed out that any other premises were available to these brothers namely Sumatilal and Rajendra to have their office at Ahmednagar. This finding, therefore is based upon the material available on record and can not be regarded as either erroneous or perverse. 13. The stand about the number of rooms in possession of landlord is also considered in paragraph no. 45 and it has been found that landlord only had six rooms and utilisation of those six rooms is also looked into in that paragraph. This discussion is not demonstrated to be either erroneous or perverse and it is therefore obvious that after considering all relevant material on record, finding in that respect has been reached. The contention that this finding is perverse and admissible evidence is ignored, is therefore not substantiated. What is that admissible evidence has not been even shown to this Court. 14. The other effort has been made by pointing out subsequent events. In so far as the Civil Application no. 126 of 1996 is concerned, that Civil Application is already rejected by this Court on 04.08.1998, while passing order on it in Writ Petition No. 4074 of 1991. However, the petitioner was given liberty to raise this 12 point at the time of final hearing. The landlord was also given right to raise objection to tenability of said contention. The alleged subsequent events in Civil Application no. 126 of 1996 has thereafter been not raised before this Court at all. The contention in disposed Civil Application shows the attempt to bring on record the fact that except portion occupied by this applicant/tenant, the whole old structure has been demolished and new construction has been raised in that place. It is admitted position that two rooms in possession of the tenant have been left intact by the landlord. Perusal of the reply filed to that application by landlord show that in that reply the landlord had undertaken to give necessary details later. However as the application came to be rejected, it was not necessary for landlord to furnish those details. As the ground has not been raised again before this Court as per the procedure prescribed, the landlord has not filed reply afresh in this respect. Along with Civil Application no. 126 of 1996, one photo copy of invitation card is placed on record by the tenant. That photo copy shows that the establishment by name Sanjivani Medical and Agency already in existence has been transferred to Manik Chowk, Ahmednagar and it was inaugurated on 17th September, 1995 and the names appearing therein are of Sumantilal, Rajendra, Shantilal and Ashoklal. Shri Shantilal is respondent no.4 in Writ Petition no. 4074 of 1991 while Ashok appears to be husband of the 13 respondent no.3 in that Petition. But as already noted above, because the Civil Application is already rejected and liberty given has not been exercised, that card by itself, is of no use in the present matter. 15. Perusal of the Civil Application no. 2397 of 1993 shows that on 29.06.1995, this Court directed its consideration at the stage of final hearing. The subsequent event alleged in that application is the inaction on the part of landlord to take action against tenant by name Datar and compromise with one tenant- Aher by landlord before this Court in Writ Petition and receipt of possession of his premises by landlord. In reply filed to that Civil Application, the compromise has been accepted by landlord. Again it is to be noted that this application has been filed in the year 1993 and subsequent Civil application no. 126 of 1996 makes a grievance that except two rooms in possession of tenant entire structure has been demolished by the landlord. It is, therefore, apparent that events mentioned in Civil Application no. 2397 of 1993 do not remain relevant after development pointed out in Civil Application no. 126 of 1996. 16. Civil Application no. 6833 of 2010 has been filed at the stage of final hearing and the landlord has also filed reply to it. 14 Along with Civil Application, two sale deeds are filed by tenant. Those sale deeds show acquisition of residential house and a Flat by Ashoklal. Ashoklal is husband of respondent no.3. How acquisition of these premises eclipses the need of respondent nos. 1 and 2 has not been placed on record. 17. The procedure of pointing out such subsequent events and their relevance is laid down by the Hon'ble Apex Court in "A.I.R. 2002 S.C. 665" (Om Prakash Gupta V/s Ranbir B. Goyal) and "(2007) 5 S.C.C. 660" (Ram Kumar Barnwal V/s Ram Lakhan (Dead). That procedure has not been followed by the tenant at all. Mere filing of Civil Applications without requesting for leave to amend the pleading is of no assistance. Findings to be delivered by this Court are required to be based upon the pleadings and as no amendment is sought to the pleadings, it is apparent that the Civil Applications being pressed into service by the tenant are not sufficient for that purpose. 18. The non-user is considered by the appellate Court while adjudicating the point no. 6 framed by it from paragraph 27 onwards. It is to be noted that the pleadings show that the landlord had alleged that the tenant had kept room at back side admeasuring 5 X 10 Ft. locked since last two or three years. The 15 parties led evidence on that nonuser and the trial Court namely 3rd Joint Civil Judge, Junior Division, Ahmednagar framed the issues. In those issues, there is no issue in this respect i.e. about nonuser. The provisions of Section 13(1)(k) permit landlord to evict the tenant when the 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 the suit. The question therefore, specifically arose and the trial Court has not recorded any finding as it lost sight of the same. The appellate Court has considered that aspect by framing point no.6. The parties advanced arguments before the appellate Court and no objection to jurisdiction in this regard of appellate Court was taken by tenant. The situation is covered by the provisions of Order 41 Rule 22 of Civil Procedure Code which permits the landlord to even challenge the finding on issues recorded against him by the trial Court in an appeal filed by tenant. This consideration is also covered by the judgment of Hon'ble Apex Court reported at 2003(9) S.C.C. 606 (Banarasi & others V/s Ram Phal). 19. The findings on facts recorded against nonuser are not seriously challenged before this Court. Consideration thereof by appellate Court shows that the tenant himself in cross examination stated that he was residing separately in adjoining 16 house owned by one Kataria. In written statement, he had contended that he was residing in that room admeasuring 5 Ft X 10 Ft along with his 17 family members. Appellate Court found this story unbelievable. It has also considered the admission given by tenant in his cross examination that when he obtained lease from the original owner for the first time, he was using both the rooms for business purpose. The evidence adduced in this respect is also looked into and appellate Court has noticed that it is no where the case of tenant that room admeasuring 5 Ft X 10 Ft. was being used for business purposes. After appreciating the entire evidence, it has found that grievance of landlord that the said room is kept locked since two to three years prior to filing of the suit acceptable. Said finding and consideration is not demonstrated to be erroneous and perverse. 20. It is therefore, apparent that the decree as granted on the ground of bonafide need of respondent no.1-Sumatilal and respondent no.2-Rajendra and on account of nonuser deserves to be maintained. 21. The landlord has contended that the bonafide need of respondent no.3-Sau. Ratnaprabha ought to have been looked into independently. Various judgments, to which the learned counsel for 17 landlord made reference to urge that the previous experience, knowledge, training and financial capacity are not relevant, are already mentioned by me above. The words used here by Courts below in relation to the respondent nos.3 and 4 are preparedness and knowledge. The judgment on which the reliance has been placed take that view because of the need of the person to start the business or venture considered in those precedents. Here, it can not be overlooked that the respondent no.3 is a lady and her claim was for the same room which was being claimed by her brother-in-law Sumatilal and Rajendra for their offices and which was sought by their father in law for storing the agricultural produce. The Courts below have in this background found that something more is required to be brought on record to show her preparedness. It is to be noted that the respondent no.3 has chosen not to enter into witness box. In other words, the Courts have found that the readiness and willingness to start such business by the respondent no.3 should have been brought on record by some positive evidence. The knowledge and training are only indication of such preparedness. When same room was asked for by all and their claims were mutually inconsistent, some evidence about desire of said lady to start business of Medicine- preparation and computer centre should have been placed on record. I, therefore, do not find anything wrong in consideration of 18 said aspect by both the Courts. 22. Need of respondent no.4 is found to be not established by the appellate Court and its consideration in paragraph no.38 shows that the said respondent has not entered into witness box. It has however found that there was enough evidence to show that his agricultural produce was being sold at Ahmednagar. It has then found that if the agricultural produce was being sold in wholesale, same were required to be sold in market yard and only for retail sale, the small shop is essential. It then found that need of the respondent no.4 that he also needed some rooms at Ahmednagar for storing agricultural produce is reasonable. In paragraph no. 39, it has then considered that one room in between the shop of one Eknath Aher and Sanjiwani Medical Stores was available for the respondent no.4 and on that room, the name Board of respondent no.3 was hanging. Because of that room, it found that his claim for storage of agricultural produce is unsustainable. Again this consideration shows that the evidence adduced has been looked into and thereafter the finding has been reached. The finding can not be labeled as either erroneous or perverse. 23. Challenge in Writ Petition No. 1002/1999 now needs 19 to be considered. The appellate Court has refused decree on the ground of nuisance to landlord. Its discussion in this