1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.775 OF 1989 1.Sara Rauf aged 69 years, Occupation Housewife .. 2.Joe Shera Rauf age about 30 years, Occupation Business, Both residing at No.6, Church Road, Pune 411 001 .. Petitioners. Vs. 1.Durgashankar Ganeshlal Shroff since deceased represented by LRs. 1(a) Smt.Shantabai Durgashankar Shroff, residing at No.6, Church Road, Pune 411 001. .. 1(b) Shri Kanakraj Durgashankar Shroff, res.597, Sachapir Street, Bungalow A, Pune Camp - 411 001 .. 1(c) Shri Dilip Durgashankar Shroff, res.597, Sachapir Street, Bungalow B, Pune Camp -411 001 .. 1(c) Shri Umesh Durgashankar Shroff, res.1420, Bhimpura Lane, Pune Camp - 411 001. .. Respondents. Mr.J.C.Satpute for the petitioners. Mr.A.K.Abhyankar, senior counsel with Mr.Rajesh Patil and Mr.N.V.Mhatre i/b M/s.Divekar & Co. for the respondents. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. CORAM : D.B.BHOSALE, J. DATED : 13TH MARCH, 2007 DATED : 13TH MARCH, 2007 DATED : 13TH MARCH, 2007 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. This writ petition under Article 227 of the Constitution of India is by the tenant against whom a 2 2 2 decree of ejectment has been passed on the ground available under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short "the Rent Act"). Both the courts below have concurrently held that the requirement of the premises by the respondent-landlord is reasonable and bonafide. 2. The respondent-landlord is the owner of a bungalow consisting of ground floor and first floor bearing CTS No.9 situate at Church Road, Pune. Both the floors consist of four rooms each (for short "the suit bunglow"). The petitioner-tenant is in possession of the first floor alongwith an attached balcony (for short "the suit premises"), whereas the respondent-landlord is in possession of the ground floor. The status of the petitioner as a protected tenant under the provisions of the Rent Act is not in dispute in the present petition. The monthly rent of the suit premises is Rs.55/-. It appears, initially, even the ground floor of the suit bungalow was also in possession of the tenant and the respondent-landlord has secured possession thereof by contesting a litigation in the court. Though, initially a suit was instituted by the respondent-landlord against the petitioner-tenant for eviction on the ground under section 13(1)(l) and 13(1)(g) of the Rent Act, the suit was decreed only on the ground under section 3 3 3 13(1)(g) holding that the requirement of the respondent-landlord is bonafide and reasonable. In the present writ petition we are, therefore, concerned only with this ground. 3. The suit was resisted by the tenant mainly on the ground that the requirement of the landlord is not reasonable and bonafide since he has several other properties which could be used for their residence. The reference to few such premises was also made in the written statement. It was also denied that the family of the respondent-landlord consisting of three or four couples with children, was living in a cramped manner on the ground floor of the suit bungalow. It was further stated that the respondent-landlord who owns several house properties suppressed the fact that he has been in possession of various other premises and, therefore, his requirement is not bonafide and reasonable. 4. I heard learned counsel for the parties for quite sometime and went through the impugned judgments and the records with their assistance. Mr.Satpute, learned counsel for the petitioner at the outset invited my attention to the judgment of the learned Single Judge of this Court in Tarachand Hassaram Tarachand Hassaram Tarachand Hassaram Shamdasani Vs. Durgashankar Shroff and Others 2004 Shamdasani Vs. Durgashankar Shroff and Others 2004 Shamdasani Vs. Durgashankar Shroff and Others 2004 4 4 4 (Supp.) Bombay C.R. 333 (Supp.) Bombay C.R. 333 (Supp.) Bombay C.R. 333 and submitted that the factual position of the landlord in this case and in the present writ petition as also the ground of eviction are in para materia. In Shamdasani’s case the learned Single Judge has exposed the landlord nullifying his need of a residential premise. A reference to several premises in the possession of the landlord was made in the judgment holding that the respondent-landlord is not entitled for a decree in view of suppression of the facts that he is in possession of other premises capable of being utilised for residential purpose. Relying upon this judgment, Mr.Satpute submitted that it is clear, the landlord in the present case, has played the fraud on the court as well as the opposite party and such landlord should be non suited at any stage of the litigation. He submitted that the findings recorded by the learned Single Judge in Shamdasani’s case are equally applicable to the present petitioner and on that ground alone this writ petition also deserves to be allowed. In support of this contention he placed heavy reliance upon the judgment of the Supreme Court in S.P.Chenga Naidu Vs. Jagannath and others (1994) 1 S.P.Chenga Naidu Vs. Jagannath and others (1994) 1 S.P.Chenga Naidu Vs. Jagannath and others (1994) 1 SCC SCC SCC. He further submitted that the findings recorded by the learned Single Judge in Shamdasani’s case operate as a constructive res-judicata since the ground in both the petitions seeking decree of 5 5 5 eviction against the tenant, is one and the same though the tenants are different. In support of this contention he placed reliance upon the judgment of the Supreme Court in The Workmen of Cochin Port Trust Vs. The Workmen of Cochin Port Trust Vs. The Workmen of Cochin Port Trust Vs. The Board of Trustees of Cochin Port Trust and Anr. The Board of Trustees of Cochin Port Trust and Anr. The Board of Trustees of Cochin Port Trust and Anr. AIR 1978 SC 1283 AIR 1978 SC 1283 AIR 1978 SC 1283 and in Satyadhyan Ghosal and Others Satyadhyan Ghosal and Others Satyadhyan Ghosal and Others Vs. Smt.Deorjim Debi & Anr. AIR 1960 SC 941. Vs. Smt.Deorjim Debi & Anr. AIR 1960 SC 941. Vs. Smt.Deorjim Debi & Anr. AIR 1960 SC 941. He further submitted that if I do not agree with the view expressed and observations made in Shamdasani’s case the matter may be referred to the Division Bench. In support of this proposition he placed reliance upon the judgment of the Apex Court in Bajranglal Agrawal & Bajranglal Agrawal & Bajranglal Agrawal & Others Vs. State of Bihar & Anr. 2000(10) SCC 518 Others Vs. State of Bihar & Anr. 2000(10) SCC 518 Others Vs. State of Bihar & Anr. 2000(10) SCC 518. He then submitted that the subsequent events, brought on record by way of affidavits, may be taken into consideration, in view of the law laid down by the Supreme Court in several judgments and more particularly in Badami Devi and Anr. Vs. Ambaja Badami Devi and Anr. Vs. Ambaja Badami Devi and Anr. Vs. Ambaja Raghavan (2001) 9 SCC 245, M/s.Variety Emporium Vs. Raghavan (2001) 9 SCC 245, M/s.Variety Emporium Vs. Raghavan (2001) 9 SCC 245, M/s.Variety Emporium Vs. V.R.M.Mohd. Ibrahim Naina AIR 1985 SC 207, Gulabbai V.R.M.Mohd. Ibrahim Naina AIR 1985 SC 207, Gulabbai V.R.M.Mohd. Ibrahim Naina AIR 1985 SC 207, Gulabbai Vs. Nalin Narsi Vora & Ors. AIR 1991 SC 1760 and Vs. Nalin Narsi Vora & Ors. AIR 1991 SC 1760 and Vs. Nalin Narsi Vora & Ors. AIR 1991 SC 1760 and Pasupuleti Venkateshwarlu Vs. The Motor & General Pasupuleti Venkateshwarlu Vs. The Motor & General Pasupuleti Venkateshwarlu Vs. The Motor & General Traders (1975) 1 SCC 770 Traders (1975) 1 SCC 770 Traders (1975) 1 SCC 770. He submitted that the landlord has obtained possession of three more premises, other than the ground floor of the suit bungalow of almost equal area, during pendency of these proceedings and in view thereof the need of the 6 6 6 landlord does not survive. 5. Mr.Abhyankar, learned senior counsel for the respondents, to cut short the controversy, insofar as subsequent events to be taken into consideration are concerned, fairly stated that he has no objection for taking all the subsequent events, reflected in various affidavits including the affidavits filed by the landlord, into consideration for examining whether the need of the landlord still survives. Mr.Abhyankar submitted that it is impermissible for this court to look into the judgment of the learned Single Judge in Shamdasani’s case though it could be looked at as precedent. He submitted that unless and until all the proceedings referred to by the learned Single Judge in Shamdasani’s case are produced on record and/or tendered in the evidence in this proceedings it cannot be taken recourse to for any purpose whatsoever. The judgment of the learned Single Judge in Shamdasani’s case is the judgment in personem and not judgment in rem and as such it is irrelevant in the present matter. In support of this proposition he placed reliance upon Gulabrao M.Bhagat Vs. Bhagwan N.Bhagat. Gulabrao M.Bhagat Vs. Bhagwan N.Bhagat. Gulabrao M.Bhagat Vs. Bhagwan N.Bhagat. 2001 (3) BCR 484 and in Hanumant G.Shinde Vs. Vasant 2001 (3) BCR 484 and in Hanumant G.Shinde Vs. Vasant 2001 (3) BCR 484 and in Hanumant G.Shinde Vs. Vasant S.Bartakke 2005(2) BCR 404 S.Bartakke 2005(2) BCR 404 S.Bartakke 2005(2) BCR 404. He submitted that combined reading of the provisions contained in section 40 to 44 of the Indian Evidence Act make it 7 7 7 impermissible to look into the judgment of the learned Single Judge. In the alternative he submitted that even if it is assumed that the said judgment can be looked into, it is of no avail to the petitioner in the instant writ petition since there is no suppression of facts in the present case. All the premises referred to in that judgment being available for the residential purpose were referred to and considered in the present case either by way of amendment and in the affidavits filed by the parties from time to time. In short, Mr.Abhyankar submitted that the respondent-landlord has not suppressed anything from this court which could have had an effect on the decision of this case. He then submitted that the requirement pleaded in the plaint is that of the plaintiff and his family members and considering the large number of members of the family and the passage of time, the need of the suit premises still survive. Lastly, he submitted that the concurrent findings recorded by the courts below in any case cannot be termed as perverse and, therefore, cannot be interfered with in the present writ petition under Article 227 of the Constitution of India. In support of this proposition he placed reliance on the judgment of the Supreme Court in Chandavarkar Sita Chandavarkar Sita Chandavarkar Sita Ratna Rao AIR 1987 SC 117, India Pipe Fitting Co. Vs. Ratna Rao AIR 1987 SC 117, India Pipe Fitting Co. Vs. Ratna Rao AIR 1987 SC 117, India Pipe Fitting Co. Vs. Fakruddin M.A.Baker & Anr. (1977) 4 SCC 587 Fakruddin M.A.Baker & Anr. (1977) 4 SCC 587 Fakruddin M.A.Baker & Anr. (1977) 4 SCC 587. 8 8 8 6. I would like to consider the first submission of Mr.Satpute based on the judgment of this court in Shamdasani’s case. In that case the requirement of the very same landlord was under consideration before the learned Single Judge. In that case it was revealed that some material facts which were necessary for full, complete and effectual adjudication of the issue of bonafide and reasonable requirement were suppressed by the landlord with the purpose to gain advantage over the other side, namely, tenant and thereby he indulged in playing fraud on the court as well as on the opposite party. The learned Single Judge in paragraph 6 of the judgment has made reference to other premises which were capable of being utilised for the requirement pressed into service in the suit filed against the tenant. It appears from the observations made in paragraphs 8 and 9 that other premises which were allegedly suppressed, were capable of being utilised for the residential purpose. The learned Single Judge then proceeded to observe in paragraph 9 that the plaintiff (present landlord) failed to plead and also depose in his evidence about the ownership of other premises and they are not sufficient to satisfy his requirement and only when he pleads and proves all these material facts the courts would be able to adjudicate fully and 9 9 9 effectively as to whether the requirement pressed into service is bonafide and reasonable. The learned Single Judge has also made a categoric observation in paragraph 9, which is relevant for our purpose, that no substantive evidence was brought on record by the landlord that those premises were not in his possession. It was further observed that the landlord is owner of the other premises which could be used both for business as well as residence and since it was not disclosed either in pleadings or in evidence (examination-in-chief) the ground under section 13(1)(g) for eviction is unavailable to the landlord. Considering the suppression of material facts the learned Single Judge further held that the landlord who has not approached the court with clean hands, it will be a duty of the court to non suit such landlord with regard to the ground available under section 13(1)(g). 7. At the outset, in my opinion, this judgment is of no avail to the petitioner for simple reason that the suppression alleged in Shamdasani’s case cannot be treated as suppression in the present case. As a matter of fact in the present case all the premises which were allegedly suppressed in Shamdasani’s case were before the courts below and they were taken into consideration while decreeing the suit on the ground 10 10 10 available under section 13(1)(g). In my opinion, merely because in other proceeding, there was suppression by the very same landlord does not mean the observations made in those proceedings would apply with equal force in the present proceedings unless it is established that the landlord suppressed the material facts, which were necessary for full, complete and effectual adjudication of the issue of bonafide and reasonable requirement, in the present case also. I repeatedly asked Mr.Abhyankar, learned senior counsel for the respondent-landlord as to whether the landlord has obtained possession of the premises other than the following four premises referred to in paragraph 11 of the landlords affidavit dated 30.11.2002. His reply to my query was in negative and he submitted that even if one more premises, irrespective of its size, is proved to be in possession of the respondent-landlord he would not have any objection for allowing this petition. The four premises in possession of the landlord mentioned in paragraph 11 are as follows: (a) House No.1420, Bimpura, Pune admeasuring 520 sq. ft. which was acquired from Mr.Nanwani. (b) Bungalow bearing house no.597, Sachapir Street, Pune admeasuring 1098 acquired from Smt.Kerawala. (c) Bungalow admeasuring 1098 sq. ft. acquired from Shri Ranade. (d) The premises on the ground floor of the suit 11 11 11 bungalow. 8. Mr.Satpute, learned counsel for the petitioner in all fairness stated that to the tenant’s knowledge the information furnished by the landlord in the affidavit dated 30th November, 2002 disclosing four premises in possession of the landlord seems to be correct. In other words, the landlord is not in possession of any more premises than what has been disclosed in the said affidavit. It is also not disputed that all the aforesaid premises, except the ground floor of the suit bungalow, though the decree was passed by the courts in the proceedings against the respective tenants, the landlord could not obtain physical possession thereof in view of the pendency of further proceedings. The tenant has not disputed that on the date of filing of the suit and recording of the evidence of the landlord all the aforesaid premises, except the ground floor of the suit bungalow, were not in possession of the landlord and hence were capable of being utilised for the requirement pressed into service in the instant proceedings. It is now well settled that it is a duty of the landlord to disclose in the pleadings or in his evidence the fact that he owns other premises which are capable of being utilised for the requirement pressed into service in suit filed against tenant and to further disclose and 12 12 12 explain that inspite of this acquisition and ownership of other premises, the requirement which is pressed into service against the tenant would still survive. It is only then the landlord would be entitled to invoke the ground available under section 13(1)(g) and would succeed in establishing the need as bonafide and reasonable. 9. Looking at the overall facts, it is not even the case of the petitioner-tenant, that all four premises mentioned in the affidavit dated 30th November, 2002 were in fact capable of being utilised for the residential purpose when the suit was filed and until the first appeal was, finally decided. In fact, it is clear from the observations made by the courts below that these premises were not available for occupation and were involved in the litigation. It is true, that the duty of the court is to see whether, in the facts and circumstances of the case, landlord has obtained the decree by playing fraud on the court. Similarly, to see whether a litigant who comes to the court, must come with clean hands and if his case is based on falsehood, he has no right to seek any relief from the court or even to approach the court as observed by the Supreme Court in S.P.Chengal S.P.Chengal S.P.Chengal Varaya Naidu’s Varaya Naidu’s Varaya Naidu’s (supra). In the facts and circumstances of the case in hand, it cannot be said 13 13 13 that the decree was obtained by fraud on the court. 10. For the purpose of determining whether the requirement of the landlord of the premises in question is reasonable and bonafide what is necessary to be considered is not whether the landlord has juridically in possession of other premises, but, whether they were available to him for occupation so that he cannot be said to be in need of the premises in question. Merely because the landlord is the owner of other premises in possession of other tenants and are not capable of being utilised for the requirement pressed into service such premises cannot be taken into account for negativing the need of the landlord for the premises in question. 11. Admittedly, except the aforesaid premises, mentioned in the affidavit dated 30th November, 2002, the landlord is not in possession of any other premises though he may be owner of several other premises. The other premises, if are not capable of being utilised for the requirement pressed into service cannot be taken into account while considering the need of landlord. It is against this backdrop it cannot be said, atleast in the present proceedings, that there was any suppression as observed by the learned Single Judge in Shamdasani’s case against the 14 14 14 very same landlord against the backdrop of the facts of that case. 12. Mr.Satpute, learned counsel for the petitioner then placed reliance upon the judgment of the Supreme Court in S.P.Chengal Varaya Naidu’s S.P.Chengal Varaya Naidu’s S.P.Chengal Varaya Naidu’s (supra) and further submitted that the findings recorded by the learned Single Judge in Shamdasani’s case operate as res-judicata since the ground pressed into service for ejectment in both the petitions is one and the same though the tenants are different. 13. The principle of res-judicata by now is well settled in a catena of decisions of the Supreme Court and High Courts. It is based on the need of giving finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. The principle of res-judicata is based on three maxims (a) nemo debet lis uexari pro una et eaden causa (no man should be vexed twice for the same cause); (b) interest republicae ut sit finis litium (it is in the state’s interest that there should be an end to a litigation); and (c) res judicata pro veritate occipitur (a judicial decision must be accepted as correct). 15 15 15 14. For application of the principle of res judicata the following conditions are required to be satisfied (i) the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit, (ii) the former suit must have been a suit between the same parties or between parties under whom they or any of them claim, (iii) such parties must have been litigating under the same title in the former suit, (iv) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit. The Supreme Court in The Workmen of Cochin Port Trust The Workmen of Cochin Port Trust The Workmen of Cochin Port Trust (supra) has reiterated the aforesaid well settled principle of res judicata. Similarly, in Satyadhyan Ghosal and Others Satyadhyan Ghosal and Others Satyadhyan Ghosal and Others (supra) the Supreme Court held that When a matter whether on a question of fact or a question of law has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. The Supreme Court further observed that the principle of res judicata could be applied by the courts for the purpose of achieving finality in the litigation. 16 16 16 15. In the present case a very basic condition that the former suit must have been a suit between the same parties or between parties under whom they or any of them claim, does not stand satisfied, besides such parties must have been litigating under the same title in the former suit. It is not the case that the tenant in the present suit has been vexed twice for the same cause or there was end to litigation earlier in respect of the subject matter and against the tenant merely because the former suit of the landlord for ejectment on the very same ground against the other tenant and in respect of some other premises attain finality. 16. The finding of facts arrived at on the evidence in Shamdasani’s case cannot be the evidence of those facts in the present case. Such judgment may be used in evidence in certain circumstances, as a fact in issue or as a relevant fact, or possibly as a transaction, however, recitals in the judgment cannot be used as evidence in another case unless the parties are same. When and to what extent such judgment could be used was made clear by the Division Bench of this court in Ramaji Vs. Manohar AIR 1961 Bombay 169 Ramaji Vs. Manohar AIR 1961 Bombay 169 Ramaji Vs. Manohar AIR 1961 Bombay 169. The observations of the Division Bench in paragraph 11 are relevant. Paragraph 11 reads thus : 17 17 17 "11. A judgment in another suit which is not inter partes may be evidence under section 13 of the Evidence Act for certain purposes, namely to prove the fact of the judgment; to show who the parties to the suit were; to show what was the subject matter of the suit; to show what was decided or declared by the judgment; to show what documents had been filed