1 CIV.R.A.NO.206/2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.206 OF 2004 Date of decision:23/12/2010 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/206-04cra 2 CIV.R.A.NO.206/2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.206 OF 2004 Gulabsingh s/o Ratansingh Jahagirdar, Age: 66 years, occ. Business, r/o Nanded. ...PETITIONER (Org.Appellant) Landlord. VERSUS M/s Ambegaonkar Machinery and Automobiles, through its Prop. Ramkrishna s/o. Aneji Nandedkar Major, occ. Business, r/o. Guru Kripa Market, Mahaveer Chowk, Nanded. ...RESPONDENTS Tenant ... Mr. S.P.Deshmukh, Adv., for the petitioner. Mr. S.V.Chandole, Adv., h/f Mr. V.G.Sakolkar, Adv., for respondent (sole). ... CORAM: K.U.CHANDIWAL, J. DATE : 23/12/2010 *** JUDGMENT: 1. Heard. Rule was issued on 7.12.2004. 2. Refusal for eviction, recorded by learned Rent Controller and confirmed by the 3 CIV.R.A.NO.206/2004 learned District Judge in Appeal No.7/2003, dt. 18.12.2003 is questioned by the landlord. The tenant is occupying a shop admeasuring 12 fts. x 32 fts. situate at Sant Kripa Market, Mahaveer Chowk, Nanded, on ground floor at monthly rent of Rs.1315/-. The landlord initiated eviction proceedings on three counts; (a) bona fide need, he has two educated unemployed sons; Gurdeepsing and Gurmitsingh, engaged as Medical Representative and Electrician, the petitioner intends to establish business in the suit shop for his sons. (b) The tenant did not pay rentals for January to March 1995 to the landlord but, allegedly, paid it to his another son, namely, Navnihalsing who was on cross terms with the landlord. (c) The respondent/tenant is having alternate accommodation for his business at New Mondha, behind Market Committee, Nanded. 3. ARREARS OF RENT: The rent receipt for the period of Jan., Feb., March, 1995, for total amount of Rs.3945/- was issued by Navnihalsing, on the printed same receipt book from which normally the landlord used to pass the receipt. The landlord canvassed, his son Navnihalsing was separated from him, however, the evidence of landlord illustrated, Navnihalsing was joint with the landlord upto 1997-1998. It was informed by the 4 CIV.R.A.NO.206/2004 tenant and proved that Navnihalsing in the past also collected such rentals for which receipts were passed. Since there was a notice from the landlord and the tenant was slapped with recovery proceeding being Suit No.241/1995, the tenant moved the learned Rent Controller in terms of Section 14 of Hyderabad House ( Rent, Eviction and Lease) Control Act, 1954 ( in short, Rent Act) and, consequently, the tenant has been depositing the rent, which the landlord has subsequently collected. The learned Rent Controller correctly found that the counter part of the receipt dt.7.1.1995, was from the same book, in the custody of the landlord. The landlord did not produce such counter part. The landlord could not deny and distort issuance of receipt by his son to be contrary to the record. Mere non payment of the rental does not amount to willful default. The onus that has been shifted to the tenant, is provenly discharged in tune with proviso to Section 15(2)(i) of the Rent Act. The findings of no willful default by both the Courts, does not call for any interference, even if here is a decree in RCS No.441/1997 for Rs.3945/- against the tenant. 4. ALTERNATE PREMISES: The theory of respondent/tenant having an alternate accommodation for his business of machinery at New Mondha is turned down, as 5 CIV.R.A.NO.206/2004 premises in New Mondha is a residential and not in the Automobile Market Area. The tenant, has no other commercial premises at Nanded except the suit premises. There is no evidence from the landlord that the premises at New Mondha purportedly owned by the tenant is a commercial premises. During the course of submissions Mr.Chandole submits that said premises has gone to the share of tenants brother, who resides in the said premises. Thus, the theory of tenant occupying or getting an alternate premises is fractured and has vanished. 5. BONA FIDE NEED: Mr.Deshmukh, learned Counsel for the landlord, read both the judgments extensively and to criticize that they are the fragile. He submits, since the status of two sons of the landlord is not disputed, their educational qualification and proof thereof is seldom of any consequence. The availability of shops to the landlord in his own Sant Kripa Market, could not be generated as all the shops are occupied by the tenants. Location of the shop has the prominence for the landlord than the tenant. His two sons, the Medical Representative or the Electrician cannot be expected to remain idle or to continue same vocation. It is for their future prospects, to have independent vocation, the shop premises is bona fide required by the landlord. 6 CIV.R.A.NO.206/2004 6. Learned Counsel for the landlord relied to the judgment of the Hon'ble Apex Court in the matter of - (a) Pratap Rai Tanwani and another V. Uttam Chand and another ( (2004) 8 SCC 490) : 2004 DGLS (Soft) 621. The Hon'ble Lordships discussed the bona fide need of the landlord, effects of subsequent events and illustrated that longer is the life of the litigation, more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of the tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. The Hon'ble Lordships observed, "We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of the petition." (b) In the matter of Uday Shankar Upadhyay v. Naveen Maheshwari ( (2010) 1 SCC 503), the suit shop was required for the landlord for setting up business of his two sons; he had first floor which the Court found to be suitable 7 CIV.R.A.NO.206/2004 to be used for doing business. The Hon'ble Apex Court did not agree to such view of the Courts below. (c) In Rajendrakumar Sharandas Sharma Vs. Shrikrushna Babanrao Guhe (Dead) through L.Rs. ( 2010 (4) ALL MR 7) the learned Single Judge of this Court was interpreting provisions of Maharashtra Rent Control Act 1999 in the context of Section 16(1)(g) relating to bona fide need of the landlord as the landlord was occupying a tenanted premises though he had two plots. Learned Judge observed, it is for the landlord to choose on which plot to construct house and reside. Tenant cannot object to such election by the landlord. Since the landlord intends to construct big house on his plot for his residence, such planning to arrange for finance and its repayment cannot be viewed as an indication of bad faith or mala fides. 7. In Chotumal Bahiramal Shindho (since deceased) through his legal heirs and representatives Sudama Jodharam Hansawani and others Vs. Baburao Vinayak Mohadkar (since deceased) through his legal heir and representatives Dattatraya Baburao Mohadkar and others ( 2009(4) Mh.L.J. 131, it is observed, 13. The question is whether the non- examination of two sons Jaywant and Yashwant is so fatal that the Plaintiff should fail in his claim for 8 CIV.R.A.NO.206/2004 possession on the ground of bonafide and reasonable requirement. Indeed, the Counsel for the Plaintiff may be right in pointing out that in the suit as filed in paragraph-6 clear assertion is that the Plaintiff requires suit premises for his business as well as to start separate business for his sons Jaywant and Yashwant. Even in the evidence, the Plaintiff has maintained this position. As a matter of fact, the said claim of the Plaintiff was not challenged at all in the cross- examination. However, as the Appellate Court has accepted the claim of the Plaintiff only in the context of the requirement of his two sons Jaywant and Yashwant, it would be necessary to consider the argument of the tenant as to whether it was imperative to examine the said two sons to establish that their requirement was bonafide and reasonable. This argument is canvassed essentially on the basis of observations in the case of Ashok Baburao Viskhande(supra). What is however, overlooked is that the observations are in the context of the facts of that case. In that case the Petitioner No.1 had entered witness box, but he had not deposed about what is the need of the Petitioner No.2, except vaguely stating that the Petitioner No.2 was unemployed and would start some convenient business in the suit premises. It is in that context the Court observed that in such a situation it was necessary that person for whose need premises are claimed should have been examined as he was the best person to establish his need. This decision therefore, will be of no avail to the tenant. Counsel for the landlord however, rightly placed reliance on the legal position flowing from the dictum of the Apex Court in the case of C.Karunakaran(supra), C.Karunakaran(supra) which has held that mere non examination of person for whose need, building was required by itself was no ground to non-suit the landlord. Indeed, the Apex Court went on to observe that it depends on the facts and circumstances of each case. In the present case, it is noticed that the Plaintiff has clearly asserted that his two sons had no independent source of income and were associated with him in his business. The Plaintiff wanted his two sons to be settled in life and also to ensure that they would earn additional income by way of separate business and not continuing in the same business, in which he was engaged, which of late was not yielding good returns. In other words, two sons were fully dependent on the Plaintiff and it is the Plaintiff who was keen to make provision for their separate business. This fact could have been spoken only by the Plaintiff himself being the best person to depose on those facts. It is not the case of the tenant in the present case that those two sons had no interest in doing business at all. As a matter of fact, the 9 CIV.R.A.NO.206/2004 requirement as stated by the Plaintiff in the plaint as well as deposed in the examination in chief has only been generally denied and the case made out by the Plaintiff has not been challenged so as to doubt the version of the Plaintiff which would warrant corroboration from his two sons. The argument of the tenant that the Judgment in the case of C.Karunakaran (supra) C.Karunakaran was on the facts of that case, therefore will have to be rejected. 8. In the matter of Sharadabai Anandrao Durgule Vs. Ramchandra Manku Pol (2009(2) Mh.L.J. 225), the learned Single Judge referred to the provisions of Section 13(1)(g) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and referred to Apex Court judgment in the matter of Aahmedabad Mfg. & Calico Ptg.Co.Ltd. Vs. Ram Ramtahel Ramanand and others ( AIR 1972 SC 1598), para 12 reads: " Power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases, for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and, not for correcting mere errors. Reference also has been made in this regard to the case Waryam Singh & Anr. vs. Amarnath & Anr. [1954 SCR 565]. This court in Babhutmal Raichand Oswal vs. Laxmibai R. Tarte and Anr. [AIR 1975 SC 1297] has observed that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has 10 CIV.R.A.NO.206/2004 not conferred a right of appeal. Judged by these pronounced principles, the High Court clearly exceeded its jurisdiction under Article 227 in passing the impugned order." 7. In a recent judgment, the Hon'ble Apex Court, in the matter of State of Haryana V. Manoj Kumar reported in (2010) 4 SCC 350, again highlighted the position of effect of exercise of jurisdiction under Article 227 of the Constitution of India. 8. The Apex Court has clearly indicated that the power under Article 227 is limited to see that the Courts below function within the limits of its authority or jurisdiction. User of Article 227 is not by any means appellate in its nature for correcting the errors of the subordinate Courts but is merely a power of superintendence to be used to keep them within the bounds of their authority. " Once the landlord has placed on the record the material evidence to support his bonafide and reasonable need and as it is proved, the question of hardship normally tilts in favour of the landlord. The landlord is the best Judge of his requirement. .... The tenant cannot dictate that as to how the landlord should adjust the need." 9. In Dwarkaprasad V. Niranjan and another ( AIR 2003 SUPREME COURT 2024) in the matter of Bombay Rents, Hotel and Lodging House Rates Cntrol Act, 1947, while dealing with the provisions of Section 13(1)(g), the Hon'ble Lordships have held, the word "himself" occurring in sub-clause (g) of Section 13(1) has to be read as himself and members of his family dependent 11 CIV.R.A.NO.206/2004 upon him. The requirement of landlord to settle his younger brothers in business in demised premises, held is bona fide. 10. In Dattatraya Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde and another ( 1999(2) Mh.L.J. 793) in terms of Section 13(1)(g) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Hon'ble Lordships held, " That when a landlord says that he needs a building for his own occupation there is no doubt he had to prove it. But there is no warrant for presuming that his need is not bona fide. The Court has to look into broad aspects and if it feels any doubt about the bona fides of the requirements, it is for the landlord to clear such doubts. In appropriate cases it is open to the Court to presume that the landlord's requirement is bona fide and put the contesting defendant to the burden to show how the requirements is not bona fide. The landlord was the holder of Diploma in Electrical Engineering. If a person wants to start a new business of his own, it may be to his own advantage he acquires experience in that line. But to say that any venture of a person in the business field without acquiring past experience reflects lack of his bona fides is a fallacious and unpragmatic approach. The High Court committed jurisdictional error in upsetting a fact finding merely on the individual view held by the Judge about a business venture. Judgment of the High Court reversed. (paras 8 to 13)." 12 CIV.R.A.NO.206/2004 11. In G.C.Kapoor Vs. Nand Kumar Bhasin and others ( (2002) 1 SCC 610), it was found, the tenants stand of loss of business prospects is insignificant, as tenant has alternate premises to conduct business. Son of landlord reasonably wanted to engage in business and landlord had no other premises except the one. 12. The legal position enunciated by the Hon'ble Apex Court and this Court revolves to either Bombay Rents, Hotel and Lodging House Rates Control Act,1947 or under Maharashtra Rent Control Act, 1999. Section 13(1)(g) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 reads as under: "13(1) Notwithstanding anything contained in this Act (but subject to the provisions of Section 15 and 15A), a landlord shall be entitled to recover possession of any premises if the Court is satisfied - ... ... (g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held ( or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or) ... ..." 13 CIV.R.A.NO.206/2004 Section 16(1)(g) of the Maharashtra Rent Control Act, 1999, reads as under: "16. (1) Notwithstanding anything contained in this Act but subject to the provisions of section 25, a landlord shall be entitled to recover possession of any premises if the court is satisfied - (g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or .... ..." The provisions relating to eviction of commercial premises under Hyderabad House (Rent, Eviction and Lease) Control Act, 1954, in terms of Section 15(3)(a) (iii) ordain as under: "15(3)(a)(iii): In case it is any other non-residential house, if the landlord is not occupying for purpose of a business which he is carrying on, a non-residential house in the city, town or village concerned which is his own or to the possession of which he is entitled." 13. Thus, crystallization of above three provisions illustrate, under Hyderabad Rent Control Act, the landlord has necessarily to 14 CIV.R.A.NO.206/2004 establish that he needs a non residential premises which he is not occupying, and he needs such premises in occupation of the tenant of which he is entitled. 14. The Division Bench of this Court in 1975 Appellate Civil (Indian Law Reports, page No. 1334) in the matter of Shantabai alias Jadhavbai w/o Keshrimal Kabra V. Modonlal s/o Mansukhlal Kabra and another explained the legal position in tune and in context with Section 15(3)(a)(iii) of Hyderabad Rent Control Act, observed that the landlord must show that he was carrying on some business in presenti for which he did not have any accommodation by way of non residential premises available in his own right. It was further observed, clause (iii) can apply only to the cases in which the landlord who seeks the eviction of the tenant is already carrying on some business of his own but has no other residential premises available to him for that purpose, as of right. Shantabai's case was followed in a subsequent judgment by the learned Single Judge of this Court reported in 2002 MCR 77 ( Sanjaykumar s/o Govindlal Agrawal Vs. Keshavlal s/o Banduchand Shah). Paragraph no.12 of the said judgment is as under: 15 CIV.R.A.NO.206/2004 " However, it has to be noted that while considering the matter in Pandurang Vs. Prabhakar (supra), the question was whether a landlord, who was in possession of the rented premises for his business, would be entitled to claim possession of the premises which he has given on rent to the tenant for the business. To decide this point, the ruling of the Apex Court, in the matter between M.Padmanabha SettyVs. K.P.Papiah Setty (supra) is referred. There the question was not whether the landlord should have running business at the time of claiming the possession or whether he can claim possession only because he wanted to start a business. So, if this deference is taken into consideration, the ruling in the matter between Pandurang Vs. Prabhakar (supra), would not be relevant because, in the present case, the landlord has come before the Court contending that he wanted to start/new business and, therefore, he required the suit premises, and that very aspect of the case is fully dealt with in the ruling of the Division Bench in the matter between Shantabai alias Jadhavbai Vs.Modonlal (supra)." The reference of M.Padmanabha Setty Vs.K.P.Papiah Setty relates to AIR 1966 Supreme Court 1824 ( V.53 C.366). 15. After testing the legal position on the touchstone of facts of the present case, following glaring aspects emerge. The landlord has in the same vicinity, rather abutting the 16 CIV.R.A.NO.206/2004 suit premises, a well developed commercial complex. He has let out few premises to the tenants. He though claimed that there was partition of the property between him and his son, however, it was established that the landlord had six shops at the material time. It is brought on record that in Gurukrupa market, the landlord had seven to eight other shops and few of the shops are in the name of his son Navnihalsing. The landlord, has admitted that he has undertaken construction of other shops adjacent to suit premises. The observation of the learned District Judge that even if the landlord desired to settle his two sons; the Electrician and Medical Representative, he could have made the shops available to them as on 26.10.2000 when the landlord deposed before the Rent Controller. This finding cannot be said to be perverse or out of context. I agree, both Courts should have refrain to embark on lacking proof of educational qualifications to the sons. 16. As regards alternate accommodation, landlords son Navnihalsing has a premises adjacent to the suit shop. The reference to the tenant possessing a shop at New Mondha, though made in the argument before the learned District Judge, however, it is not established. It is pertinent, the landlord was not certain whether the tenant is having any other residential or non 17 CIV.R.A.NO.206/2004 residential accommodation in the city for running his business. 17. The above details magnificiently establish that the findings of both the Courts against the landlord cannot be said to be in exercise of a jurisdiction not vested in them by law or there was failure to exercise the jurisdiction. 18. Civil Revision Application (No.206/2004) dismissed. Rule discharged. (K.U.CHANDIWAL) JUDGE AGP/CRA206-04