IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1276 OF 1991 WITH CIVIL APPLICATION NO.1409 OF 2001 AND CIVIL APPLICATION NO.1186 OF 2007 Shri Rasiklal Chandulal Mehta, aged 51, Occ.business, r/o 1195/4-K, Shivajinagar, ...Petitioner PUNE - 411 005. (tenant) Versus 1.Shri Balasaheb Hiralal Zad, aged 43 yrs., occ.business. 2.Mrs.Chandrakala Balasaheb Zad, age 37 yrs., occ.household, both residing at 416/8, Raghuvir Coop.Hsg.Society, ...Respondents Mukund Nagar, PUNE - 411 037. (Plaintiffs) WITH CIVIL APPLICATION NO.2718 OF 2006 IN WRIT PETITION NO.1276 OF 1991 1.Mr.Balasaheb Hiralal Zad, Age-60 years, Occ.-Business. 2.Mrs.Chandrakala Balasaheb Zad, Age-56 years, Occ.-Business, Both reside at 416/8, Raghuvir Society, Gultekadi, ...Applicant PUNE - 411 037. (Ori.Respdt.landlord) Versus Shri Rasiklal Chandulal Mehta, Age-56 years, Occ.Business, R/at.1195/4-K, Shivaji Nagar, ...Opponent PUNE - 411 005. (Ori.Petr.tenant) : 2 : ...... Mr.Shirish Pitre for Petitioner in WP. Mr.A.Y.Sakhare, Sr.Counsel with Mr.Siddharth Karpe for Respondents 1 & 2 in WP. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JULY 29, 2008. JULY 29, 2008. JULY 29, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Petition under Article 227 of the Constitution of India filed by the tenant takes exception to the Judgment and Decree dated 16th January 1991 passed by the 9th Additional District Judge, Pune in Civil Appeal No.140 of 1990, which in turn, confirms the decree of eviction passed by the Principal Judge, Small Causes Judge at Pune in Civil Suit No.44 of 1989 dated 27th November 1989 on the ground of reasonable and bonafide requirement of the landlords. 2. The premises in question is part of building bearing C.T.S. No.545, Sadashiv Peth, Pune. The Petitioner/tenant was inducted in the : 3 : said premises which consists of four rooms on monthly rent of Rs.100/- plus education cess of Rs.10/-. It is not in dispute that the Respondents are the landlords in respect of the suit premises. The Respondents in the year 1989 instituted Suit for possession of the suit premises on two grounds. The first ground was for bonafide and reasonable requirement of the landlords and the second ground was that of change of user of the suit premises by the tenant without prior permission of the landlords. Both the Courts below have rejected the claim of the Respondents/landlords insofar as the latter ground is concerned. 3. As aforesaid, the Trial Court accepted the claim of the Respondents/landlords insofar as ground of reasonable and bonafide requirement is concerned. The Trial Court also accepted the claim of the Respondents/landlords that they would suffer greater hardship. As a result, the Trial Court passed decree of eviction against the Petitioner vide Judgment and Decree dated 27th November 1989 limited to the ground of reasonable and bonafide requirement of the Respondents. The said decision : 4 : was carried in appeal by the Petitioner/tenant before the District Court at Pune being Civil Appeal No.140 of 1990. The said Appeal, however, was dismissed by the Appellate Court while upholding the finding of fact recorded by the Trial Court on both the issues namely bonafide and reasonable requirement of the landlords as well as of greater hardship. The present Petition under Article 227 of the Constitution of India by the tenant thus takes exception to the concurrent finding of facts recorded by the two Courts below on the ground of bonafide and reasonable requirement. 4. Let us straightway analyse the case made out by the Respondents/landlords in the plaint as filed. The Respondents in Para 4 of the Plaint made out case regarding bonafide and reasonable requirement as well as greater hardship to be caused to the landlords. For the present, I shall refer to the relevant averments concerning the ground of bonafide and reasonable requirement. 5. According to the Respondents, the suit : 5 : premises were required by the Respondents and their family members for their personal use and occupation for residence. The Respondents have stated that recently on account of the strained relations with his father, dispute has been filed in the Court which was pending for over 2/3 years and on account of which, the father of Respondent No.1 was after the Respondents to vacate the premises occupied by them. The Respondents have then stated that the present accommodation of the Respondents was highly inadequate being only two room accommodation in the bungalow of father of the Respondent No.1 and that the Respondents and their family members were somehow managing their affairs in the said accommodation. The Respondents have then stated that having regard to the present age, education, occupation, status of the family members of the Respondents, the present accommodation was very inconvenient, insufficient and inappropriate. The Respondents have then asserted that they have four children who were still pursuing education and would require additional premises for their educational need. The Respondents have then asserted that they have obtained loan from Bank : 6 : which is required to be repaid and that the financial condition of the Respondents would not permit them to procure or purchase another accommodation. It is further stated that if the decree of possession of the suit premises as claimed by the Respondents was to be denied, the Respondents would suffer greater hardship and irreparable loss. On the other hand, if the decree was to be granted, no hardship would be caused to the Defendant (Petitioner). 6. The Petitioner filed written statement. While dealing with the averments in Paragraph 4 of the Plaint, the Petitioner generally denied the same in Paragraph 6 of the written statement. In other words, the written statement filed by the Petitioner was of general denial only. 7. On the basis of said pleadings, the Trial Court proceeded to frame issue of bonafide and reasonable requirement. The parties adduced oral and documentary evidence in support of their respective claim. Insofar as the Respondents/landlords are concerned, the Respondent : 7 : No.1 entered the witness box and deposed in support of their claim. The relevant evidence of PW 1 with regard to issue under consideration can be discerned from Paragraphs 2 to 4 of the examination-in-chief. The Respondent No.1 has reiterated in his evidence that he along with his family members consisting of his wife and four children (three daughters and one son) were residing in the bungalow owned and possessed by his father. He was occupying only two small rooms in the said bungalow which was admeasuring about 1200 square feet. He has further deposed that his relation with his father had become strained since 1986 and since then his father was after him to vacate the premises occupied by him. He has also referred to the Civil Suit pending between him and his father in relation to property No.416/8, Mukund Nagar filed in or about 1986 which was dismissed and appeal against the said decision was pending in the District Court. He has further deposed that his eldest daughter Rajashri was 19 years at the relevant time and was in 2nd year B.Com., second child being son Tushar was aged about 17 years and was in 12th standard, third child being daughter : 8 : Sonali was aged 15 years and studying in 10th standard and the fourth child being daughter Manali was eight years and studying in 8th standard. He deposed that two rooms presently in his occupation were insufficient for the need of his family and his children have no separate room for doing their homework/studies. He has further stated that two rooms in his occupation were inadequate and insufficient to meet the requirements of his family. He has further stated that since he was presently burdened with construction loan taken by him from the bank in the sum of Rs.11,00,000/- (Rupees Eleven Lakhs) for constructing 4th and 5th floors in the property, he was not in a position to incur any expenditure to acquire suitable alternative premises. He has deposed that he had constructed 4th and 5th floors in 1984 for starting lodging business. At the relevant time in 1984 as relationship with his father was generally good, for which reason, he did not require additional accommodation for his residence. He has stated that he required the suit premises for bonafide occupation for himself and his family. PW 1 has been cross examined by the Petitioner/Defendant. : 9 : In the cross-examination, however, the case made out by the Respondent No.1 in his deposition has remained unchallenged. The relevant cross-examination on the issue under consideration can be discerned from paragraphs 11, 13 and 15 of the deposition of PW 1. The Respondent No.1 was asked in the cross-examination whether the lodge was throughout fully occupied. He was then asked whether he paid income-tax. He has stated that he maintained a register of the lodgers in the lodge. He was asked whether he could state about the occupancy of his lodge. He has stated that on an average, the occupancy of his lodge was about 50% to 60%. He has then stated that there are eight rooms on 4th as well as 5th floor each. Significantly, in the cross-examination of Respondent No.1, he was asked as to where he was residing with his father in the bungalow. In that context, he has stated that in 1984, he and his father were residing in 1200 sq.ft. of area in house No.416/8, Mukund Nagar, which is a bungalow. He has then stated that since 1986, he was occupying only two small rooms out of the said bungalow. Suggestion was put to Respondent No.1 : 10 : that there was no dispute between him and his father to which he has denied. There is nothing in the cross-examination so as to doubt the credibility of the witness or about the claim set up by him in respect of the requirement of the suit premises being bonafide and personal requirement for himself and his family. 8. The Defendant himself entered the witness box and has been examined as DW No.1. Insofar as the issue under consideration, the relevant evidence can be discerned from Paragraphs 2 and 3 of the examination-in-chief. In his examination-in-chief, the Petitioner has admitted that he was not aware about the dispute between the Respondent No.1 and his father. He has also admitted that he was not aware as to whether inspite of such dispute and insults, the Respondent No.1 was required to reside with his father. Indeed, he has stated that the present accommodation in possession of the Respondent was adequate and sufficient. He has then asserted that the Respondents are financially in a position to : 11 : secure separate residential accommodation. This is the material deposition of DW 1. During cross-examination, the Petitioner has admitted that he has not visited the residential premises of the Respondent No.1 at Mukund Nagar, nor he was aware about the extent of accommodation in possession of the Respondents at Mukund Nagar. 9. The Trial Court on analysing the pleadings and the evidence which has come on record, accepted the claim of the Respondents that their requirement was bonafide and reasonable. That discussion can be found in paragraph 8 of the Judgment of the Trial Court. All relevant aspects have been taken into account by the Trial Court before recording finding of fact that the requirement of the Respondents was bonafide and reasonable. This finding of fact was assailed before the Appellate Court by way of Appeal filed by the Petitioner. The Appellate Court has once again considered all the pleadings and the evidence on record and reiterated the same finding of fact recorded by the Trial Court, as can be discerned from discussion in paragraphs 10 and 11 of the impugned judgment. The : 12 : Appellate Court on reappreciating the evidence has opined that the version of Respondent No.1 about the requirement being bonafide and reasonable, in fact had gone unchallenged. The Appellate Court believed the version of the Respondent No.1 that he was in possession of only two rooms and his relations with his father were strained. The Appellate Court has also adverted to the argument of the Petitioner/Defendant that some rooms of the lodge could have been conveniently used for residence of the Respondents and their family members. However, the Appellate Court has rejected that argument on the reasoning that from the evidence on record it would appear that the requirement of the Plaintiffs was not only bonafide but reasonable for their own use and occupation. 10. The question is: whether the finding of fact reached by two Courts below on the basis of pleadings and evidence which has come on record can be said to be perverse or error apparent on the face of record so as to warrant interference in exercise of writ jurisdiction under Article 227 of the Constitution. In my opinion, the answer is an : 13 : emphatic "NO". In the pleadings, the Respondents have asserted that the Respondent No.1 along with his family members consisting of his wife and four children were residing in an accommodation owned by the father of Respondent No.1, which was only small two rooms in the bungalow. That the relationship of the Respondent No.1 with his father had become strained since 1986; that the father of the Respondent No.1 was insisting that the Respondent No.1 should vacate the premises occupied by him (Respondent) in the bungalow owned by him. These facts have been duly established by the Respondents/landlords. 11. The argument of the Petitioner is that, the Respondents could have used portion of the premises on the 4th or 5th floor earmarked for lodging business. In the first place, this argument clearly overlooks the factual position established by the Respondents that the said construction was done in 1984 so as to start the business of lodging. Besides that, construction was undertaken after obtaining loan of over Rs.11,00,000/- (Rupees Eleven Lakhs) from the bank. : 14 : The construction was intended to do lodging business only and not for residential premises. Indeed, it may appear that the Respondents could have utilised some portion thereof for their residential premises. However, the Respondents have clearly asserted that when the construction was done in the year 1984, the relationship between the Respondents and his father was cordial. The relationship got strained only since 1986. By that time, the construction was already completed and the business of lodging was started. All these facts have been pleaded and proved by the Respondents. Moreover,it would not be rational to suggest that the Respondents should have converted portion of the premises on the 4th and/or 5th floor for residence of their family, especially when the remaining premises on those floors were to be used exclusively for lodging business. This argument of the Petitioner, if accepted, would lead to the inevitable result that the Petitioner and the Court were to dictate to the landlord as to how he should reside. It is well established by now that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his : 15 : residential requirement. In deciding question of bonafide requirement,it is not open to make an endeavour as to how else the landlord could have adjusted himself (See R.C.Tamrakar & Anr. vs.Nidi Lekha - (2001) 8 SCC 431). Reliance has been justly placed on the dictum of the Apex Court in the case of Joginder Pal v. Naval Kishore Behal Joginder Pal v. Naval Kishore Behal Joginder Pal v. Naval Kishore Behal reported in (2002) 5 SCC 397 reported in (2002) 5 SCC 397 reported in (2002) 5 SCC 397, which restates the principles to be kept in mind while examining the claim of landlord for his own or personal requirement. 12. Significantly, the requirement of the Respondents in relation to the suit premises for residence is on account of the fact that the suit premises are situated on the second floor, which are not only close to the place of business but at the same time, would provide sufficient privacy to the family members of the Respondents. One cannot expect the landlord to stay with his family members on the same floor, which were meant for lodging business. For, the entire 4th and 5th floor, it is common ground, were being utilised for lodging business. : 16 : 13. Suffice it to observe that the fact that the Respondents constructed 4th and 5th floor in 1984 and utilised the entire portion thereof for lodging business, cannot be the basis to doubt the bonafide of the landlords in the fact situation of the present case. In other words, it is not possible to upset the concurrent finding of fact recorded by the two Courts below on the issue of bonafide and reasonable requirement of the suit premises for themselves and for their family. 14. That takes me to the issue of greater hardship to be caused to the landlords in the event decree of eviction was to be refused? With regard to this issue, the Respondents in paragraph 4 of the Plaint after giving the background, have asserted that the Respondents would suffer greater hardship in the event of refusal of decree of eviction. The Respondents have also asserted that they were financially not in a position to invest for procuring another accommodation, as they have taken heavy loan from the bank for the construction of 4th and 5th floors to be utilised for lodging : 17 : business. The Petitioner in the written statement has merely denied the case made out by the Plaintiffs on the issue under consideration as can be seen from the averments in Paragraph 6 of the written statement. In the latter part of para 9 of the written statement, the Petitioner has then referred to the fact that the building was originally owned by one Shri Khan till 1966 from whom the Petitioner had taken the suit premises on monthly rent basis. The Petitioner has stated that he was having one shop premises on the ground floor of the building where he was doing retail business of spare parts of cars. He had taken the suit premises to be used as godown to store the stock required for his business. He has then stated that the Plaintiffs could have converted portion on the 4th or 5th floor of the building which has been constructed in 1983-84 for their residence. He has denied the requirement of the Plaintiffs for educational purpose of their children. None of the averments really address the issue of greater hardship, except the one sentence that the Petitioner would suffer greater hardship in the event decree of eviction was to be passed. : 18 : 15. The Respondent No.1 in support of his claim has deposed that the Defendant was residing at 1195/4 Shivaji Nagar, Pune and was occupying flat consisting of four rooms. In that backdrop, he has stated that no hardship would be caused to the Defendant in case decree of eviction was to be passed; whereas, greater hardship would be caused to the Respondents if decree was to be refused. Even during the evidence, the Respondent No.1 has reiterated that his financial position was not sound enough to permit him to acquire even alternative rental premises. In the cross-examination, however, the version of the Plaintiffs has remained unchallenged with regard to the issue of greater hardship to be caused to them. Significantly, the Defendant examined himself on oath as DW 1. Even during evidence, the Defendant has not chosen to elaborate as to why greater hardship would be caused to the Defendant in the event of decree of eviction was to be passed. All that is stated in the examination-in-chief in Paragraph 3 is that the Plaintiffs were not at all in need of the suit premises and the Plaintiffs : 19 : claim was not proved. He has further stated that greater hardship would be caused to him in case of eviction. Accordingly, neither in the written statement nor in the evidence, the Defendant has chosen to elaborate as to how greater hardship would be caused to him. He has not stated that after the notice of termination of tenancy was received, he made any attempt to find out another premises in the same locality. He has not stated that it was not possible for him to get another premises in the same locality for the purpose for which he is presently occupying the suit premises. He has not stated that he had no financial means to acquire suitable accommodation in the same locality or that suitable accommodation in that locality would be beyond his means. 16. The Trial Court considered the issue of greater hardship in Paragraph 9 of its Judgment and proceeded to hold that the Plaintiffs/landlords have succeeded in establishing the said issue. The Trial Court has found that the Plaintiff No.1 had no other place for his residence and he was presently staying with his father in two small : 20 : rooms along with his family members with great difficulty. The Trial Court has noted that the Defendant has admitted that he has house at 1195/4-K, Shivaji Nagar, Pune and was residing therein along with his family. The Trial Court has also noted that the Defendant is already in possession of the shop premises in the suit building where he can store his goods to be stocked. The Trial Court has then noted that the Defendant is possessing flat consisting of four rooms and he is in a position to secure alternative accommodation. On that finding, the Trial Court proceeded to hold that the Defendant cannot be heard to complain that greater hardship will be caused to him in the event of decree of eviction was to be passed. The Appellate Court considered the matter in the same perspective and concurrently found that the landlords would suffer greater hardship in the event of decree of eviction was to be refused. 17. Once again, even on the issue of greater hardship, both the Courts below have concurrently answered the same against the Petitioner/Defendant. : 21 : The finding of fact so recorded by both the Courts below is consistent with the pleadings and evidence on record. It is not a case where the finding has been recorded by the Courts below in absence of evidence to substantiate the same. Taking overall view of the matter, even the concurrent finding on the issue of greater hardship will have to be upheld in favour of the Respondents/Plaintiffs. No case for exercising writ jurisdiction is made out in that behalf. 18. The next question that needs to be addressed in this matter however is: whether the subsequent events spelt out by the Petitioner in the Application and the affidavit filed before this Court can be the basis to hold that the same have direct impact on the requirement established by the Respondents/landlords. 19. Before we proceed to analyse the stand of respective parties on this aspect, it would be apposite to advert to the legal position expounded by the Apex Court as to when the Court would be obliged to consider the subsequent events. It will : 22 : be useful to straightaway advert to the decision in the case of Om Prakash Gupta v. Ranbir B.Goyal Om Prakash Gupta v. Ranbir B.Goyal Om Prakash Gupta v. Ranbir B.Goyal reported in (2002) 2 SCC 256 reported in (2002) 2 SCC 256 reported in (2002) 2 SCC 256. In Paragraph 12 of this decision, the Apex Court has expounded the statement of law on the issue under consideration. It has observed that subsequent event may be one purely of law or founded on facts. Insofar as the subsequent event, founded on facts, it proceeded to hold that the party relying on such subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to resort to amendment of pleadings under Order VI Rule 17 of the Code of Civil Procedure. Such