1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.114 OF 2007 Baban Vitthal Mahale Through GPA – Prakash Baban Mahale Age:44 Yrs., r/o Lalaji Chowk, Sangamner, Dist.Ahmednagar. - PETITIONER (orig.Deft.) VERSUS 1) Dattaraj Mahadeo Kolapkar Age:Major. 2) Dharamaraj Mahadeo Kolapkar, Age: Major. 3) Shrikant Mahadeo Kolapkar, Age: major. 4) Madan Mahadeo Kolapkar (dismissed as against Resp.No.4, vide order dt. 5.12.2009) 5) Vivek Mahadeo Kolapkar Age: major. 6) Kishor Mahadeo Kolapkar 2 Age:major. All occu. Business, All r/o Bazar Peth, Sangamner, Dist.Sangamner. - RESPONDENTS (orig.Pltffs) ***** Mr.ST Shelke,Advocate for Petitioner; Mr.SK Shinde,Advocate for Respondents. ----- CORAM : K.U.CHANDIWAL, J. DATE : 9th March, 2010. JUDGMENT: 1) Heard learned Counsel for the respective parties extensively. 2) The decree of eviction in Judgment and Order dated 20th July, 2005 recorded by learned Ad hoc Additional District Judge, Sangamner in Regular Civil Appeal No.535 of 2000 in terms of Section 13(1)(g) of the Bombay Rent Act, is questioned by the tenant. 3 3) Respondent – Dattaraj filed a suit for possession in respect of the suit premises on three grounds. viz. a) default in rent; b) bona fide requirement; and c) the premises have been kept closed for more than six months preceding the date of suit in terms of Section 13(1)(k) of the Bombay Rent Act as alternate premise has been acquired by the Tenant (petitioner) in terms of Section 13(1)(l) of the Bombay Rent Act. The learned Trial Judge recorded the findings against the landlord/plaintiff so far as willful default; bonafide and personal requirement as well on the ground of acquisition of another premise by the tenant/petitioner, however, granted a decree of eviction under Section 13(1)(k) of the Act as the premises were not used for a period of six months preceding the suit. 4) It was canvassed, the landlord/original plaintiff did not file any Cross-objection challenging findings on the issues, answered against him. However, the Appellate Court 4 allowed the Respondent/landlord to argue on the issues decided against them without there being any Cross-Objections. The learned First Appellate Court, as stated above, reversed the decree under Section 13(1)(k), however granted decree in favour of the landlord/respondent under Section 13(1)(g) for bonafide and personal requirement. 5) Order XLI, Rules 22 and 33 CPC thereof read as under - “22. Upon hearing respondent may object to decree as if he had preferred a separate appeal- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 1[but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to 5 allow. [Explanation—A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto—Such cross- objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. 2[(3)Omitted] (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule. 6 33. Power of Court of Appeal- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection 1[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]: 2[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order.] 6) Order XLI Rule 22 CPC indeed provides, if there is any observation against a plaintiff and any issue is decided against him by the trial court, even if there is a decree in his favour, the plaintiff in appeal as a respondent can 7 agitate said issue before the Appellate Court without filing cross-objection. But the condition precedent is, he has to support the decree of the trial Court. In this case, the decree of the trial court for eviction is not assailed by the landlord/plaintiff before the first appellate court. Consequently, since the plaintiff/landlord is supporting the decree of eviction, he has a right to challenge the findings of the learned Court of first instance without filing the cross-objection. 7) The effect of these two provisions makes it abundantly clear, the Appellate court has the power to pass a decree or make any order even if the respondent has not filed any appeal or cross- objection. The objection by the revision petitioner to this effect is consequently uncalled for and warrant discounting. 8) It was canvassed by the landlord/plaintiff that the tenant has acquired a suitable accommodation and consequently the 8 landlord is entitled for a decree of eviction in terms of Section 13(1)(l) of the Bombay Rent Act. However, it was observed that said provision will not be applicable to the premises let out for commercial purposes. 9) The plaintiffs are since brothers, they have keen desire to expand their business activities. Plaintiff no. 3 -Shrikant stated, the suit premise is required for starting business of plaintiff no.6 – Kishor. It has come in the evidence, the plaintiff no. 6 - Kishor has no other suitable place for his business activities at Sangamner. The suit premise is situate in market area. A plot of 900 sq.ft. purchased by the plaintiff in Khandoba Galli could not be stated to meet the requirement of the plaintiffs to start the business. It was not expected from the plaintiffs to indicate as to what business the plaintiff desires to commence in the suit premises. Indeed, the Court ordinarily should not doubt about the bonafide 9 need of the landlord. It is not expected of the court to dictate the landlord as to which of the premise will be suitable to him for his business activities. 10) On the point of hardship in terms of Section 13(2) of the Bombay Rent Act, the learned first Appellate Court found that the defendant has adjoining property, where he has carried construction activities and running a shop of goldsmith for selling ornaments. It was contended, said plot was purchased by son of the defendant, i.e. Prakash and defendant has no concern. However, Prakash in his evidence has accepted that said plot was purchased on 28.10.1994 by him with his parents and brother. This follows that the defendant is co-owner of the said open plot. There is no partition about the said plot or family partition or the business. There is a shop under the name and style as “Mahale Jewellers”. The learned Judge, on evaluating the evidence, found that it was the 10 hardship faced exclusively by the landlord/plaintiff than the tenant, which effectively required the suit premises for the plaintiff/landlord. 11) Reliance was placed to the Judgment in the matter of Goverdhandas Mulchand Agrawal and Ors. Vs. Bherulal Uderam Bagade and Anr. - 2005 (3) Mh.L.J. 196, wherein this Court observed in paragraph 29 as under - “29.It is also necessary to note that while setting out the need for business premises and testing the reasonableness thereof, it is not necessary for the landlord to plead and prove that he has the necessary knowhow or expertise as well as financial capability to conduct the business. It is ultimately the aspect of need which is relevant. It should not be a mere wish or desire. Similarly, it is well settled that merely because a litigation is pending for considerable length of time, it should not necessary be considered 11 that the need and requirement pleaded has either been lost or rendered redundant and unnecessary. It has to be judicially accepted that litigation in Indian Courts takes considerable length of time. Merely because it consumes lot of time, it does not mean that the suits filed by landlords for possession on the ground of reasonable and bona fide requirement ought to be thrown out straight way at the stage where the present matter has reached . It will not be proper if I refuse to scrutinize judgments rendered by the Courts below in my jurisdiction under Article 227 of the Constitution of India merely on the ground that more than 17 years have elapsed after the date of delivery of appellate judgment. It would not be just and fair to deprive the petitioners of adjudication on merits because, the petition is pending in this Court for no fault on their part.” 12) In the matter of M/s Sait Nagjee Purushottam and Co.Ltd. Vs. Vimalabai Prabhulal 12 and Ors. - AIR 2006 SC 770, the Apex Court observed, the tenant cannot dictate terms to landlord and advise him what he should do and what he should not. It is always the prerogative of landlord to choose the nature of business and place of business. It cannot be said, that a person who is already having business at one place cannot expand his business at any other place. It is pointed that, between the parties there was earlier litigation in CRA No. 96/2007 in respect of another room and by order dated 30th October, 2007, the CRA came to be dismissed and consequently the landlord has received the possession of said shop. However, the decree or possession of other shop is of insignificant nature, this by itself will not dilute the fruits of the eviction decree in respect of the shop, which is shut by the tenant to be used by the landlord for business purposes. 13) The observations of both the Courts do not require any interference. There was indeed 13 bonafide requirement of the landlord to set up business of plaintiff no.6. The revisional jurisdiction of this Court being limited, no error of law being surfaced, Civil Revision Application lacks merit, it is dismissed. Interim relief granted on 6.9.2007 vacated. sd/- (K.U.CHANDIWAL) JUDGE bdv/cra114.07 fldr.4.3.2010 Authentic copy (BD VADNERE,PS)