1 CRA NO.162/2005. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.162/2005 with CA NOS.3807/2006; 12833/2010; 16211/2010. Prabhuappa Trimbakappa Munale Age: 50 yrs. occu. Business Priprietor of Kala Printing Press Saraf Lane, Latur. Tq. and District Latur. - PETITIONER (orig.Respondent/ tenant) VERSUS Baswanappa Sambappa Ankalkote since deceased through His L.Rs.- 1) Saraswatibai w/o Baswanappa Ankalkote, Age: 77 Yrs. occu. Household, r/o Latur. 2) Mahadeo s/o Baswanappa Ankalkote, Age: 53 Yrs., occ. Service, r/o Latur. 3) Gaunshankar s/o Baswanappa Ankalkote, Age: 44 Yrs. occu. Service, r/o Latur. 4) Mahananda w/o Vaijinath Randale, Age: 57 Yrs. occu.household, r/o Latur. 5) Suvarna w/o Trimbakappa Ambulge, Age: 48 Yrs., occu. household, r/o Latur. 6) Geeta w/o Gurunathappa Khuabba, Age: 47 Yrs., occ. Household, 2 CRA NO.162/2005. r/o Latur. 7) Sau Subhangi w/o Sunil Warad (CRA dismissed as against Resp.No.7, vide order dated 15.2.2007) 8) Shrishail s/o Revansidha Ankalkote, Age: 45 Yrs. occu. Business, r/o Vaidyanath Times, Station Road, Parli Vaijanath, Dist.Beed. 9) Sau. Madhuri w/o Atul Menkudale, Age: 35 Yrs. occu. Household, r/o C/o Amol Kirana, Behind Hotel Nagland, Wakari, Pandharpur, Dist.Solapur. 10) Sushma d/o Revansigha Ankalkote (CRA dismissed against R.No.10 vide order der. 15.2.2007) - RESPONDENTS (orig.petitioners/ landlords) ***** Mr.RN Dhorde,Advocate for Petitioner; Mr.PV Mandlik, Sr.Counsel h/for Mr.Dhananjay Deshpande, Adv. for Resp.Nos. 1 to 6, 8 & 9. CRA is dismissed as against Resp.Nos. 7 and 10 as per Court’s order dtd. 15/2/2007. ----- CORAM : K.U.CHANDIWAL,J. DATE : 3rd DECEMBER,2010. 3 CRA NO.162/2005. ORAL JUDGMENT: 1) CA No.16211/2010 is moved by the revision petitioner, directing the respondents to produce the partition-deed on record so as to enable the petitioner to take appropriate steps. 2) Mr.Deshpande, on instructions, informs that there is no partition-deed, as is referred in the application. Consequently, CA, seeking such production is disposed of. 3) By CA No.12833/2010, the respondent has requested to hear the CRA out of turn and keep it for final hearing. Since the matter is ready to be heard finally, CA for early hearing disposed of. 4) By CA No.3807/2006, the status quo order dated 27.10.2005 sought to be vacated. However, since the controversy revolves to possession of the property with the petitioner as a tenant, till the decision of CRA, the status quo shall remain in force. Consequently, CA lacks merits, dismissed. 5) Heard learned Counsel for the parties extensively on merits of the CRA. 4 CRA NO.162/2005. 6) Concurrent eviction decrees of a commercial premises in a densely populated area of Latur against the tenant/petitioner are questioned in the CRA. 7) The landlord initiated the eviction proceedings mainly on three grounds., viz. i) willful default;, ii) bonafide requirement, and iii) re-construction. 8) The learned Rent Controller passed eviction decree on all three counts. However, the appellate court found that the plea of default and personal bonafide requirement was proved. He negated the plea of requiring the premises for re-construction. 9) Mr.Dhorde, learned Counsel for the revision applicant/tenant, by his rostrum criticized the finding, - a) branding it to be disclosing non-application of mind; b) appellate court failed to take into consideration that the landlord expired and his sons are in employment, whose bonafide requirement, the learned Court has considered; and c) the learned District Judge, being a fact finding court, should have applied his own mind for appreciation of evidence and should have reached at a proper conclusion; d) even if there are money decrees, that by itself 5 CRA NO.162/2005. will not culminate into branding or castigating the tenant/revision applicant as a wilful defaulter. Such finding, according to him, must be recorded by the learned Rent Controller in terms of proviso to Section 15 of the Hyderabad Houses (Rent, Lease & Eviction) Control Act, 1954 (hereinafter to be referred as Rent Control Act). 10) The learned Counsel took recourse to the judgment of this Court, reported in 1984, M.L.R. Page 86; 2001 (1) MLR page 881, and particularly paragraph 21 thereof, dealing with the point of bonafide requirement. He lastly submitted, there are 40 workers with the tenant and the tenant is willing to purchase the property, if the landlord so desires. 11) Mr.Mandlik, learned Sr. Counsel submits that though the landlord, while deposing the evidence was 86 years old, carrying commission agency shop, having expired, he has two sons and one of the sons had retired, his son (grandson of original landlord) are unemployed, needs the premises for bonafide use and occupation. Passingly, Mr. Mandlik informs, need of the tenant/petitioner projected herein to retain the premises is ill-founded as the tenant/petitioner has a palatial bungalow in the are of Latur, where he should have spared the ground floor for 6 CRA NO.162/2005. on-going printing press. He also points, the plea of sending the rentals by money orders or demand draft even if accepted, it is only one occasion in the year 1996 while the decree of arrears of rent against the tenant/petitioner were in force for the period 1990 onwards. He criticized conduct of the tenant to be a chronic defaulter and submits that no leniency to be showered on the tenant. 12) On the proposal, passingly given by Mr. Dhorde about purchase of the property, the counsel for the landlord had dialog with the representative, who did not accede to such request/proposal, informing through the counsel that the premises are genuinely required for business of the grown-up children and even the commission agency shop is run by the children of another brother. 13) The scope of revision has its limitation. It is mandatory and expected of the revision applicant to illustrate as to how the perversity has occurred or how illegality is surfacing, divorced from the record or adding spices to the record. 14) Having analyzed the evidence, as it was read by Mr.Dhorde, and appreciating the evidence 7 CRA NO.162/2005. recorded by both the courts, I find that the learned Rent Controller, though was in a condensed manner pronounced the judgment, however, it cannot be said that there was no application of mind or proper discussion of evidence. With the capabilities, the Rent Controller, a revenue officer, had communicated the defaults, the bonafide requirement of the landlord and the requiring the premises for construction. 15) The learned District Judge has indeed evaluated the evidence as could be seen. However, his not criticizing the approach of the Rent Controller by itself would not mean that the learned District Judge has erred in his conclusion. The observations at one level by the learned District Judge that he does not find any error with the finding recorded by the Rent Controller that by itself will not invite to criticism as he had audience to verify the record and analyze the same. 16) The Judgment referred above needs no contest to be criticized. It was observed in paragraph 5 of the judgment of this Court in the matter of Shivram Gajulal and Anr. L.Rs. of deceased Gajulal Kuldiram Vs. Ugrasen Bhadrasen Rathod, reported in 1996 (1) Mh..J. 352, “ 8 CRA NO.162/2005. existence of the grounds of eviction is a sine qua non for the exercise of the jurisdiction vested in the Rent Controller to grant an application under Section 15 of the Rent Control Act and this will have to be decided by the Rent Controller by applying his own mind to the facts of the case. He cannot delegate his authority to the civil court or any other court. Since the Rent Controller has to satisfy himself, whether the default is willful or not, to consider whether he should exercise his discretion under the proviso to Section 15(2)(i) of the Rent Control Act, it is necessary that the Rent Controller himself should apply his mind to the question whether the default is willful or not.” 17) There were at least nine decrees against the tenant/petitioner. It was expected of the tenant, while adducing the evidence before the Rent Controller, to have discharged his onus that it was not a willful default, he did not carry this exercise. Having carried this exercise, the learned Rent Controller could not put in generation the effect of the proviso referred above. The learned Rent Controller should not be criticized for his omission. 18) In the said judgment of Shivram (cited supra), elaborate reference was given to the 9 CRA NO.162/2005. judgment in matter of K.K.Chari Vs. R.M.Seshadri, (AIR 1973 SC 1311), to which, incidentally, Mr. Dhorde also desired to place reliance. However,the observations of the Apex Court in the said judgment of KK Chari are not approved of in the subsequent judgment reported in Shantilal Thakordas and Ors. Vs. Chimanlal Maganlal Telwala - (AIR 1976 SC 2358) on the above principles. 19) In the matter of Patel Gosaliya, the legal position was considered, as was flowing in the three Lordships Judgment of the Apex Court in the matter of JK Iron and Steel Co. Ltd. Kanpur Vs. The Iron and Steel Mazdoor Union, Kanpur, , reported in (AIR 1956 SC 231), wherein the Apex Court has observed as under, - “...Very broadly, it follows the pattern of the Civil Courts. Once the reference is made by Government, the tribunal has to take the Pleadings of the parties in writing and to draw up issues. Then it takes evidence, hears arguments and finally, pronounces its “jugment” “in open Court”. It is evident from this that though these tribunals are not bound by all the technicalities of Civil Courts, they must nevertheless follow the same general pattern. Now the only point of requiring pleadings and issues to ascertain the real disputes between the parties, to narrow the area of conflict and to see where the two 10 CRA NO.162/2005. sides differ. It is not open to the Tribunals to fly off at a tangent and disregarding the pleadings, to have reach any conclusion that they think are just and proper.” (Emphasis supplied)” 20) In another judgment of three Judges bench of the Hon’ble Apex Court in the case of Shankar Chakravarti Vs. Britannia biscuits Co.Ltd. and Anr., reported in AIR 1979 SC 1652, the Hon’ble Lordships have observed, as under, - “If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and it entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such tribunals have not to be read strictly, but it is equally true that the pleadings must be such as to give sufficient notice to the other party of the case it is called upon to meet.” 21) The observations of the Apex Court would not be accelerating the grievance tried to be enunciated as no such eventuality has emerged in the present case. 11 CRA NO.162/2005. 22) The several pronouncements of the Apex court and of this Court, considering the need of the landlord or bonafide requirement, even user of the term “in occupation”, have been illustrated. Those terms can be crystallized as under, - (a) The expression `his own occupation’ as occurring in sub-clause (i) of clause (a) of section (3) is not to be assigned a narrow meaning. It has to be read liberally and given a practical meaning. `His own occupation’ does not mean occupation by the landlord alone and as an individual. The expressions “for his own use” and “for occupation by himself” as occurring in two other Rent Control Acts, have come up for the consideration of this Court in Joginder Pal Vs. Naval Kishore Behal - 2002 (5) SCC 397 and Dwarkaprasad Vs. Niranjan and Another, (2003) 4 SCC 549. It was held that the requirement of members of family of the landlord or of the one who is dependent on the landlord is the landlord’s own requirement. Regard will be had to the social or socio-religious milieu and practices prevalent in a particular section or society or a particular region to which the landlord belongs, while interpreting such expressions. The requirement of the family members for residence is certainly the 12 CRA NO.162/2005. requirement by the landlord for `his own occupation’. (b) Thus, occupation of self does not mean occupation of landlord alone as an individual, but such requirement is of the family members also. Death of the landlord by itself will not mitigate effect of the requirement of his sons or the grandsons, who are virtually wandering. (c) The landlord has a right to use the premises to the best of his requirement and the tenant has no say in such matter; (d) The landlord has to decide as to how and in what manner he should live and make use of the premises; (e) The Courts cannot ordinarily doubt bonafide need of the landlord, nor the courts can dictate to the landlord as to how the premises owned by him should be used; (f) It is sufficient for the landlord to express his desire to occupy the premises, which ware owned by him. It is not necessary for the landlord to establish his dire necessity/need, it is enough to show that some need exists. 23) The appreciation of evidence by the learned District Judge also illustrate that tenant himself has admitted that original petitioner was doing business of commission agency at Latur and the grandsons of the original 13 CRA NO.162/2005. petitioner is carrying the said business. It is though brought on record that the sons are in employment, however, since one of them has retired, his son (grandson of the landlord)is also requiring to user of premises. 24) The details of nine suits between the parties are referred by the learned District Judge in paragraph 14 of his judgment. 25) The findings recorded by both the courts do not call for any interference. Hence, CRA lacks merit, dismissed, with costs. 26) Heard. 27) Considering the alternate and intermittent arrangement to be made by the petitioner/tenant to search for the new premises and to revamp his activities, the petitioner/tenant is granted time to vacate the premises in question up to 31st March, 2012. The petitioner/tenant shall give an undertaking within two weeks from today to remit regular rent without any demur, not to part with possession; not to create third party interest by any sort of indenture. (K.U.CHANDIWAL) JUDGE bdv/