1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3003 OF 1994 L.D.Cooper since deceased by L.Rs .. Petitioners versus Jamnadas Ruttonsey & Ors. .. Respondents Mr.G.S.Godbole i/by Mr.Rajesh S. Patil for the petitioners. Mr.P.K.Dhakephalkar, Sr.Counsel a/w Ms.Sheetal S. Shah i/by M/s.Mehta & Girdharlal for respondent Nos.2a to 2c and 3. CORAM : A.S.OKA, J. DATE : 5th May 2010. JUDGMENT: . By this writ petition under Article 227 of the Constitution of India, the original petitioner has challenged the judgment and decree dated 11th July 1994 of eviction passed by the Appellate Bench of the Court of Small Causes in an appeal preferred by the respondent Nos.1, 2, 3a, 3b and 3c. 2. The dispute relates to suit premises being Flat No.3, 1st floor, Mirador Building, 67-H Bhulabhai Desai Road, Mumbai 400 026. The respondent Nos.1, 2 and 3a to 3c are the original plaintiffs. They claim to be the trustees of Jamnadas Ruttonsey Trust. Their case is that the suit premises vests in them. According to the plaintiffs one Smt.Freny A. Dawar was a monthly 2 tenant in respect of the suit premises. The said Freny died on 14th April 1971 leaving behind the 1st to 4th defendants as her heirs and legal representatives. The present petitioner is the 5th defendant. The case made out by the plaintiffs is that the deceased Freny during her life time allowed and permitted the petitioner to occupy the suit premises along with her as her paying guest and licensee. According to the plaintiffs, after the demise of said Freny, the petitioner continued to illegally and unlawfully use and occupy the suit premises . It is contended that the petitioner had no right, title and interest in respect of the suit premises and the petitioner has being impleaded as a party as he is in occupation of the suit premises. It is contended that the 1st to 4th defendants have got their own residential premises and they have been residing separately for long time. It is contended that none of the 1st to 4th defendants were residing in the suit premises along with tenant Freny at the time of her death. It is alleged that even after her death, none of the 1st to 4th defendants have resided in the suit premises. 2. The suit was filed by the plaintiffs for eviction under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act of 1947) on the ground of bona fide requirement of plaintiff Nos.3(a) Yogesh. It was contended that the plaintiffs require the suit premises reasonably and bona fide for their own use and occupation. It was contended that plaintiff No.3(a) was of marriageable age and there was no sufficient accommodation available to the said plaintiff. Reliance is placed on 3 notice of demand dated 22nd December 1979 send by the plaintiffs to the 1st to 4th defendants. After receiving the notice of demand, the defendant Nos.1 to 4 tendered the rent amount without prejudice to their rights and contentions. The decree of eviction was sought by the plaintiffs on the ground of bona fide and reasonable requirement. 3. The suit was contested by the defendant Nos.1, 2 and 5 by filing a joint written statement. It was contended in the written statement that the petitioner’s wife was also an heir and legal representative of the deceased tenant Freny. It was contended in the written statement that the deceased Freny was residing in the suit premises alone for some time. She requested the petitioner’s wife who was her relative and one of her family members to reside with her in the suit premises as a member of her family. It is stated in the written statement that accordingly the wife of the petitioner along with the petitioner occupied the suit premises and resided along with the said Freny as members of the family of the said Freny till the time of her death. The said defendant Nos.1, 2 and 5 denied that the petitioner was illegally occupying the suit premises. It was contended that the tenancy rights of deceased Freny devolved upon her heirs and legal representatives including the wife of the petitioner. It was contended that wife of the petitioner being in actual possession of the suit premises is protected from the eviction under the provisions of the said Act of 1947. The name of wife of the petitioner is also Freny. It was contended in the written statement that the plaintiffs had issued 4 notice dated 24th April 1971 by which they purported to terminate the tenancy of all the legal representatives of the deceased tenant including the wife of the petitioner. The defendants denied the ground of bona fide requirement. After the plaint was amended, the 4th defendant and the present petitioner filed additional written statement. It was contended that even the original plaintiff has expired and there was more than ample accommodation in the building “Kapoor Mahal” for plaintiff No.3(a) Yogesh, his wife and two children. It was contended that the said Yogesh got married in the year 1975 and along with his family he was residing in the building “Kapoor Mahal”. It was contended that the premises in building “Kapoor Mahal” are very large premises with several rooms and only the original plaintiff No.1, plaintiff No. 2, the said Yogesh along with his family as well as plaintiff No.3b and his wife were occupying the large accommodation in the building “Kapoor Mahal”. The parties adduced evidence. The plaintiff No.3(a) Yogesh examined himself who was extensively cross-examined by the defendants. Various other witnesses were examined by the plaintiffs. The petitioner examined himself as a witness. The petitioner was extensively cross-examined. There were other witnesses examined by the petitioner. The learned trial Judge held that the plaintiffs have failed to prove that the defendant Nos.1 to 4 are the only heirs and representatives of deceased tenant Freny in accordance with section 5(11)(c) of the said Act. The learned trial Judge held that the plaintiffs have failed to prove that during her life time the deceased tenant had allowed and permitted the petitioner’s wife to occupy the suit premises 5 as a paying guest and licensee. The bona fide requirement was held as not proved. Even the comparative hardship issue was answered in favour of the petitioner-defendant No.5. However, the trial Court held that the plaintiffs were the only trustees of Jamnadas Ruttonsey Trust and that the suit was maintainable at their instance. The trial Court referred to a letter dated 1st March 1970 produced by the petitioner which was allegedly addressed by the deceased tenant to the wife of the petitioner. It was contended that the said letter shows that the deceased tenant invited the petitioner and his wife to stay with her. The trial Court dealt with the contention that the said letter was forged and fabricated. The trial Court referred to family tree/genealogy produced by the defendants at Exhibit 23 to prove the relationship between the petitioner’s wife and the deceased tenant. The learned trial Judge held that it was established that the petitioner’s wife is also a relative of the deceased tenant. The trial Court held that the petitioner has established that his wife was relative of the deceased tenant. The learned trial Judge held that in view of section 5(11)(c) of the said Act of 1947, the comparative hardship of the petitioner will have to be considered as the petitioner was residing along with the deceased tenant as a member of her family at the time of her death. 4. The original plaintiffs preferred an appeal before the Appeal Bench of the Court of Small Causes. The appeal was allowed and the suit was decreed on the ground of bona fide requirement. The Appeal Bench held that 6 the petitioner was occupying the suit premises as the paying guest of the deceased tenant. The Appeal Bench held that the petitioner failed to prove that his wife was a relative of the deceased tenant and that he along with his wife occupied the suit premises as members of the family of the deceased tenant at the time of death of the tenant. 5. Civil Application No.608 of 2007 has been filed by the petitioner seeking permission to amend the written statement and to lead oral and documentary evidence in support of the subsequent events set out therein. It was contended in the said application that the plaintiffs have constructed 3rd floor over the suit building. It was contended that the 3rd floor consists of two residential flats which have been sold to the third party on ownership basis. It was contended that a flat admeasuring 1250 sq. ft of carpet area on the 2nd floor has been surrendered by the plaintiffs in the year 1999 which was earlier occupied by a tenant. It was alleged that the said flat has been kept closed. Further allegation has been made that plaintiff Nos.3a, 3b and 3c have acquired a flat and a bungalow. There is a reply filed to the said civil application by the plaintiffs. There is a rejoinder of the son of the petitioner on record. 6. The learned counsel appearing for the petitioner has made detailed submissions. He stated that the petitioner produced and proved a family tree which was duly exhibited. He pointed out that the family tree shows that the 7 petitioner’s wife was related to the deceased tenant. He placed reliance on the letter of the deceased tenant which was duly proved. He pointed out that a common written statement was filed by defendant Nos.1, 2 and 5 in which the 1st defendant has admitted that the petitioner’s wife was one of the heirs of deceased tenant. The learned counsel appearing for the petitioners submitted that the letter dated 1st March 1970 at Exhibit 9 was duly proved to have been written by the deceased tenant which was received by the 5th defendant. He submitted that in the said letter the deceased tenant has described herself as aunty of the petitioner’s wife. He submitted that only because envelope containing the said letter was not produced, the Appellate Court could not have come to the conclusion that the letter was not genuine. He submitted that only because name of the petitioner’s wife does not figure in the advertisement published in daily “Mumbai Samachar”, one cannot jump to the conclusion that she was not related to deceased tenant. He submitted that the trial Court committed gross error by relying upon evidence of one Shirin who had no personal knowledge. He submitted that the said Shirin was brought on record as legal representative of the 1st defendant. He submitted that the 1st defendant in a joint written statement filed by her along with the petitioner accepted and acknowledge the status of petitioner’s wife as a relative and person staying with the deceased tenant as a member of her family at the time of her death. He submitted that in view of admission by the 1st defendant, evidence of her daughter has no significance. The fact that the petitioner and his wife stayed with the deceased only for a period of one 8 year or more was irrelevant in as much as what has been established by genealogy at Exhibit 23 is the fact that the petitioner’s wife was related to the deceased tenant and that the letter at Exhibit 9 proves that it was the deceased tenant who invited the petitioner, his wife and their family to occupy the suit premises. The learned counsel appearing for the petitioner has relied upon various decisions of this Court and Apex Court in support of his submissions. 7. The learned counsel appearing for the petitioner has made detailed submissions on the application for additional evidence. He pointed out that the application for additional evidence and the facts stated therein clearly prove that the bone fide need pleaded by the plaintiffs has been completely eclipsed. He submitted that some of the facts stated in the said application are admitted by the plaintiffs by filing a reply to the said application. He submitted that the Appellate Court has not considered the hardship which may be caused to the petitioner if decree for possession is passed. He submitted that the subsequent events pleaded in the application go to the root of the matter and the same will have effect of completely defeating the bona fide need pleaded by the plaintiffs. 8. He submitted that even assuming without admitting that the petitioner fails in his challenge to the finding of the Appellate Court that the petitioner and his wife were residing in the suit premises as paying guests, this Court 9 will have to deal with the finding on the issue of bona fide requirement in the light of facts stated in the application for additional evidence. He urged that unless bona fide need is established, the Court under section 28 of the said Act of 1947 has no jurisdiction to evict a tenant or persons claiming through the tenant. He submitted that proof of bona fide requirement and satisfaction of the Court of existence of the said ground are conditions precedent for passing a decree on the ground of bona fide requirement. Even assuming that the petitioner has not proved his rights, still the petition will have to be allowed by quashing and setting aside the decree for eviction in as much as the ground of bona fide requirement has not been established and assuming that the same has been established, the subsequent events clearly eclipse the need pleaded by the original plaintiffs. He has placed reliance on several decisions. 9. The learned senior counsel appearing for the original plaintiffs submitted that genealogy at Exhibit 23 is not at all proved. He submitted that the relationship pleaded by the petitioner between his wife and the deceased tenant is very remote. He submitted that even going by the case of the petitioner, till 1st March 1970 the petitioner and his family members were not residing with the deceased. The deceased died on 14th April 1971 and therefore even assuming that the case of the petitioner is true, the petitioner and his family members stayed with the deceased hardly for a year and therefore one cannot jump to a conclusion that the petitioner and his wife 10 stayed with the deceased as members of her family. He placed reliance on several decisions and submitted that the alleged subsequent events have no bearing on the finding of the issue of bona fide requirement. The learned counsel submitted that the petitioner has no right, title and interest in respect of the suit premises and this Court cannot interfere with the decree of eviction at the instance of the petitioner in power of superintendence under Article 227 of the Constitution of India. 10. The first question to be decided is as regards the status of the petitioner-5th defendant and his wife. The case of the original plaintiffs is that 1st to 4th defendants are the legal representatives of the deceased tenant Freny as pointed out earlier. The specific case of the petitioner in the joint written statement along with 1st and 2nd defendants is that : “... However, much prior to the death of the said Miss Freny Davar, requested the 5th defendant’s wife who was also one of her relations and one of her family members, to come and reside with him in the said flat as a member of her family. Accordingly, the wife of the defendant No.5 along with the defendant No.5 came and occupied the said flat and resided therein along with the said late Miss Freny A. Davar, as a member of the family of the said late Miss.Davar.” 11. Therefore, the first question to be decided is whether the petitioner has established that he along with his wife were residing in the suit premises 11 at the time of death of the deceased tenant as members of the family of the deceased tenant. Under section 5 (11) (c) of the said Act of 1947, when the tenant dies, any member of the tenant’s family residing with the tenant at the time of his death becomes a tenant. Such member of the family of the tenant gets priority over the legal representatives of the deceased tenant. On this aspect it will be necessary to consider the findings recorded by the trial Court. The trial Court noted that the 1st defendant was the sister of the deceased tenant and the 2nd defendant was brother of deceased tenant. The 4th defendant is a son of the tenant’s sister. During the pendency of the suit, the 1st defendant Mrs.Ruby expired and her daughter lady Shirin was brought on record. The said Shirin has deposed as a witness of the plaintiffs. The trial Court has noted the case of the plaintiffs that except 1st to 4th defendants, the deceased tenant has no heir. The plaintiffs placed reliance on a news item published in daily newspaper “Mumbai Samachar” recording the death of the tenant Freny. In the said news item, names of the sisters of the deceased tenant have been mentioned and admittedly the name of the petitioner and his wife does not appear in the said news item as relatives of deceased tenant. The trial Court has referred to an affidavit dated 19th August 1977 of the original 1st defendant in which she has stated that the petitioner’s wife was related to deceased tenant. The legal representative of the 1st defendant deposed as witness of the plaintiffs. However, her evidence has been discarded by the trial Court on the ground that written statement was signed by the 1st defendant in which she admitted that the petitioner’s 12 wife was relative of the deceased tenant. 12. Thereafter, the trial Court referred to letter at Exhibit 9 dated 1st March 1970 allegedly written by the deceased tenant to the petitioner and his wife. In the said letter deceased tenant has described petitioner’s wife as her cousin. By the said letter, she requested the petitioner’s wife to come and stay with her along with her children. The deceased requested the petitioner and his wife to stay with her in the suit premises and to take her care in her old age. The trial Court considered the case made out by the plaintiffs that the said letter was forged and bogus. The trial Court considered the evidence of the petitioner’s wife in which she stated that she received the letter by post but she has misplaced the envelope in which the letter was posted. The learned trial Judge referred to evidence of Shirin in which she stated that she was unable to say that the signature appearing on the said letter was of the deceased tenant. The learned Judge observed that the petitioner’s wife proved the signature of the deceased tenant on the said letter and though Shirin did not admit that the signature was of the deceased tenant she did not deny that the signature was of the deceased tenant. The trial Court accepted the said letter as genuine though it was noted that the letter was produced after lapse of 11 years. 13. The trial Court also considered the writing dated 17th May 1969 allegedly addressed by the deceased tenant to the plaintiffs. The said letter 13 records statement of the deceased tenant that she had no other legal heir or representative. After noting that the defendants have not denied the signature of the deceased tenant on the said letter, the learned Judge held that said letter has no significance as the plaintiffs themselves have come out with a case that 1st to 4th defendants are the legal representatives and heirs of the deceased tenant. 14. The learned trial Judge has made a reference to genealogy at Exhibit 23 produced by the petitioner. In the examination-in-chief, petitioner’s wife stated that the deceased was a cousin of her mother and the deceased was related to her through her father. The learned Judge discarded the evidence of Shirin on the ground that the 1st defendant who was her Mother had accepted in written statement that the petitioner’s wife was a relative of the deceased tenant. 15. While dealing with the contention of the plaintiffs that the petitioner was accommodated as paying guest by deceased tenant, the learned Judge has made a reference to evidence of one Maharu examined by the plaintiffs. The said witness claimed that she had arranged for temporary accommodation for the petitioner and his wife with the deceased tenant as paying guests. The trial Court observed that there was evidence on record to show that earlier there were some persons staying in the suit premises as paying guests. On this aspect, the learned Judge observed thus: 14 “.... It is true that the circumstances that there were some persons staying in the suit premises as paying guest and defendant No.5 was staying as paying guest and defendant No.5 was staying as paying guest are in favour of the plaintiffs but these circumstances lose their evidentiary value in the light of the fact that F.Davar the tenant was a relative of the wife of the defendant No.5 that she was an old and in her advanced age and she was in need of a person who would take proper care of her and so she should ask the wife of the defendant No.5 to come and stay with her. In my opinion are more important to be considered to examine the probabilities of the case defendant No. 5, that F.Davar tenant herself invited his wife to stay with her and to look after her and to cook food for her. It will be seen that there was a common mess of F.Davar and the family of defendant No.5. ......” 16. Thereafter, the learned Judge referred to ration card showing that name of the deceased tenant was deleted from the ration card. The learned Judge noted that ration card was standing in the name of the petitioner. Thereafter, the trial Court recorded a finding that the petitioner has established that he and his family members were residing with the deceased tenant as one family unit and that the petitioner’s wife was entitled for tenancy in view of section 5(11)(c). The trial Court held that they were occupying the suit premises as members of the family of the deceased on 15 14th April 1971 when the deceased tenant expired. At this stage, a reference will have to be made to the findings of the Appellate Court. The Appellate Court referred to writing dated 17th May 1969 signed by the deceased tenant. The Appellate Court noted that the signature on the said writing was duly proved by a witness examined by the plaintiffs. A letter dated 23rd June 1968 was written by the deceased tenant informing the plaintiffs that one Mrs.M.A.Sabowala was residing in the suit premises as her paying guest since 1965. The Appellate Court observed that the said Mrs. Sabowala was paying guest of the deceased tenant and thereafter Mr and Mrs Bariya were residing in the suit premises as paying guests of the deceased tenant. After the said paying guests left, the petitioner and his family members came to reside in the suit premises. The Appellate Court noted that none of the 1st to 4th defendants examined any witness. None of the said defendants came forward to explain the alleged relationship between the deceased tenant and petitioner’s wife. 17. The Appellate Court has considered the evidence in detail. The Appellate Court also noted the fact that the alleged letter at Exhibit 9 was written by the deceased tenant on 1st March 1970 and she died on 14th April 1971. The Appellate Court has dealt with evidence of Shirin. The said Shirin is daughter of deceased defendant No.1 who stated that the statement in the written statement that the petitioner’s wife was related to