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 APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4771 OF 1997 WRIT PETITION NO. 4771 OF 1997 WRIT PETITION NO. 4771 OF 1997 1. SMT. LILABAI DATTATRAY NIKUMBH ) R/o H.No. 2173, Pinzar Lane, Yeola ) Tal. Yeola, Dist. Nashik ) 2. SHANKAR BABURAO NIKUMBH, SONAR ) R/o. H.No. 2173, Pinzar Lane, ) Yeola, Tal. Yeola, Dist. Nashik ) 3. YUVRAJ SHANKAR NIKUMBH, SONAR ) Rachana Vidyalaya, Sharanpur Road, ) Nashik. ) PETITIONERS Versus 1. BABURAO SHANKAR KANADE (Deceased) ) through his Legal Heirs & Represen- ) tatives. ) 1A.INDIRABAI BABURAO KANADE ) All R/o R.No. 29, Gandhi Bhuvan, ) Punam Lane, Lamington Road, Bombay ) 2. RAMLING SHANKAR KANADE ) R/o Bombay Gas Lane, Saraswati Bldg.) Sane Guruji Road, Lalbag, Bombay-12 ) RESPONDENTS Mr. P.N. Joshi for petitioners Mr. M. M. Sathaye for respondents 1A & 2 2 CORAM:-SMT. RANJANA DESAI,J. DATED:-5/9/2005. ORAL JUDGMENT: . The petitioners are original defendants-tenants. Respondent 1A to 1C are heirs of one Baburao Shankar Kanade, deceased-plaintiff 1-landlord. Respondent 2 is original plaintiff 2. For the sake of convenience the parties will be referred to in this judgment as per their status in the suit. 2. Admittedly the plaintiffs are owners of suit house bearing survey No. 2173 consisting of two floors situate in Pinzar Galli, Yeola. There are three rooms on each floor. The plaintiffs rented the suit house to the husband of defendant 1 Dattatray on monthly rent of Rs.12/-per month. After the death of Dattatraya Nikumbh, defendants 1 to 3 being his heirs have stepped in his shoes. The plaintiffs filed R.C.S. No. 213 of 1988 against the defendants for recovery of suit house inter alia under Section 12 and 13 (1) (g) of The Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, ("the Rent Act" for short). 3 3. As on the date of filing of the suit, shortly stated the plaintiffs’ case as averred in the plaint was as follows: . Plaintiff 1 is an advocate. He is residing at Lamington Road, Bombay in rented premises. There are six members in his family. He has now retired. Two rooms which are in his possession are not sufficient for his family and, therefore, he wants to go to Yeola and reside their. Plaintiff 2 is a freedom fighter. He was working in Famous Cine Laboratory and Studio Ltd. at Mahalaxmi, Mumbai. He has now retired. He is staying in premises owned by someone as a licensee. The said premises admeasures 8’ x 8’. His son is staying with him. The premises in his occupation are not sufficient for them and, therefore, the suit house is bonafide and reasonably required by him. According to the plaintiffs the defendants own two houses at Yeola and hence they would not be inconvenienced, if the decree of eviction is passed. 4. The defendants refuted the plaintiffs’ case. According to the defendants plaintiff 1 is a well-known lawyer who is earning substantial money 4 in Bombay. He is a rich person having an independent office in Bombay. Plaintiff 2 has a big business in Bombay and he also gets pension. All members of his family are earning. The plaintiffs have settled in Bombay and hence they do not require the suit house. The defendants further contended that apart from the suit house they are not in possession of any other premises. Other premises owned by them are occupied by tenants and litigation is pending in respect of the said premises in courts. The defendants have not been able to get back possession of the said premises. According to the defendants there are 8 to 10 members in their family and it is not possible for them to get any alternative premises in Yeola and if they are asked to vacate the suit premises greater hardship would be caused to them. 5. In support of their case, the plaintiffs and the defendants led their evidences. The parties relied on certain documentary evidence also. 6. The trial court partly decreed the suit. The trial court held that the plaintiffs have proved that the defendants are in arrears of rent. It further held that the plaintiffs had proved their 5 reasonable and bonafide requirement and the defendants have failed to prove that greater hardship would be caused to them if the decree of eviction is passed. The trial court observed that there are only 5 members in the defendants’ family. Except the suit house the plaintiffs do not have any other house in Yeola. There is no documentary evidence to show that the plaintiffs have other houses in Bombay. The trial court further observed that the defendants have not been able to secure possession of the premises owned by them and, therefore, taking into consideration all these aspects and the aspect of hardship it is just and proper that the defendants should be asked to hand over possession of three rooms situated on the first floor to the plaintiffs. Thus the defendants were allowed to retain three rooms on the ground floor with them and they were directed to hand over possession of the first floor to the plaintiffs. 7. Being aggrieved by the said partial decree to the extent to which it directed the defendants to retain three rooms on the ground floor with them, the plaintiffs preferred Civil Appeal No. 302/94 in the court of III Addl. District Judge, Nashik. The learned counsel for the plaintiffs did not 6 press the ground of default in payment of rent. The lower appellate court held that the plaintiffs had proved that they bonafide and reasonably require the suit house for their use and occupation and that greater hardship would be caused to them if the decree of eviction is not passed. The lower appellate court directed the defendants to hand over possession of the suit house to the plaintiffs. Being aggrieved by the said judgment and order, the defendants have preferred this petition. 8. It must be noted that the defendants did not challenge the partial decree under which they were directed to hand over three rooms situate on the first floor of the suit house to the plaintiffs. Therefore, that part of the trial court’s decree is confirmed. The defendants are now challenging the judgment and decree passed by the lower appellate court which holds that the plaintiffs’ reasonably and bonafide require the remaining three rooms situated on the ground floor also. In short the defendants now want to retain possession of the three rooms. They want this court to restore the trial court’s decree. Since this court is now concerned only with reasonable and bonafide 7 requirement of the landlord, it is necessary to concentrate only on facts which are relevant to that aspect of the matter. 9. I have heard at considerable length Mr. Joshi, the learned counsel appearing for the petitioners. He strenuously contended that the plaintiffs’ suit must fail because there are no proper pleadings about the reasonable and bonafide requirement of the plaintiffs. Mr. Joshi pointed out that the plaintiffs have pleaded that they require the suit house for themselves. However, there are no averments making it explicitly clear that they require the suit house for the family. Mr. Joshi contended that Section 13(1)(g) of the Rent Act permits the landlord to pray for a decree of eviction if the premises are reasonably and bonafide required by him for occupation by himself or by any person for whose benefit the premises are held. Mr. Joshi contended that to get a decree of eviction under Section 13(1)(g) of the Rent Act, the plaintiffs ought to have properly pleaded their case. Considering the advanced age of the plaintiffs, their case that they desire to stay in the suit house at Yeola does not appear to be genuine. It was necessary for the plaintiffs to 8 plead the requirement of their family which they have not done. 10. In this connection, the learned counsel relied on Koyilerian Janaki & Ors. v. Rent Controller (Munsiff) Cannanore & Ors., (2000) 9 SCC 406. In that case the Supreme Court was dealing with Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, "the Kerala Rent Act"). Under that section, a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bonafide needs the building for his own occupation or for the occupation by any member of his family dependent on him. In that case, the landlady had pleaded that the building was needed for her married daughter. However, there was no pleading that the married daughter and son-in-law are dependent on the landlady. The Supreme Court observed that unless it is pleaded that the married daughter and son-in-law are dependent on the landlady, the petition under Section 11(3) of the Kerala Rent Act cannot succeed on the mere allegation that the building is needed for the occupation of the married daughter and the son-in-law and, therefore, 9 the appellate court was not justified in allowing the petition of the landlady on the ground that the landlady bonafide requires the building for occupation of her married daughter and son-in-law. Mr. Joshi contended that the ratio of this judgment is squarely attracted to the facts of the present case and inasmuch as in this case also there are no pleadings as regards requirement of the plaintiff’s family no decree of eviction can be passed against the defendants. 11. Mr. Joshi then referred to the judgment of the Supreme Court in Raj Gopal (Dead) By LRs. v. Kishan Gopal & Anr., (2003) 10 S C C 653 where the Supreme Court has reiterated the principles laid down by it in its earlier judgments that in absence of the specific pleadings no lis exists between the parties and the courts are precluded from taking cognizance of pleas on mere evidence. Mr. Joshi contended that if the plaintiffs had taken up a definite stand that the premises are needed for the family, the defendants would have met that contention and pleaded that the need of the family was not bonafide. He submitted that faulty pleadings have deprived the defendants of an opportunity to take appropriate defence. The 10 defendants are prejudiced by the plaintiffs’ faulty pleadings. 12. The learned counsel then urged that the fact that defendant 1’s son has acquired premises which are very near the suit house, is not relevant. In this connection, he relied on Anandi D. Jadhav (dead) by LRs. v. Nirmala Ramchandra Kore & Ors., (2000) 3 SCC 703, where the Supreme Court has held that the moral duty of sons towards their parents cannot be enlarged to a right to provide them residence as would affect their right as tenants in their pre-existing tenanted premises. Mr. Joshi then drew my attention to the affidavit filed by defendant 1 in this writ petition. It is stated in the affidavit that at the admission stage of this petition, the defendants had handed over vacant and peaceful possession of the three rooms on the ground floor of the suit house to the plaintiffs. However, in spite of having obtained possession, none of the respondents-plaintiffs have been residing in the said premises and the said premises are always kept locked. Reliance is placed on certain photographs. It is further stated that in the voter’s list the plaintiff’s name is not found. Mr. Joshi further pointed out that during the 11 pendency of the suit plaintiff 1 has expired and all these events must be taken into consideration while dealing with the requirement of the plaintiffs. 13. Mr. Joshi then drew my attention to the judgment of the Supreme Court in Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada (2003)2 S C C 320 where while dealing with the aspect of partial eviction, the Supreme Court observed as follows: "The provisions of the Rent Act do not bar a partial eviction being ordered rather contemplate a partial eviction specifically which would of course depend on the answer to the question whether it would be enough to dislodge the tenant from only a part of the premises in his possession, and to what extent, to satisfy the proved requirement of the landlord associated with consideration of comparative hardship. If the court is satisfied that the ends of justice would be met if the tenant is not called upon to vacate the entire tenancy premises but only a part of it, then the 12 court may order partial eviction so that the requirement of the landlord is satisfied and the tenant is also not deprived of his running business activity. In as much as Section 13(2) entails the consequence of the landlord being denied decree of of eviction, wholly or partly, in spite of his having proved reasonable and bona fide requirement within the meaning of Section 13(1)(g), the burden of proving availability of grounds under Section 13(2) of the Act is on the tenant. It is expected of the parties to raise necessary pleadings and the Court to frame an issue based on the pleadings so as to enable parties to adduce evidence and bring on record such relevant material as would enable the court forming an opinion on the issue as to comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the court may discharge its duty by taking into consideration such material as may be available on record." 13 14. Mr. Joshi contended that in the present case the trial court has, after marshalling the evidence and considering the question of comparative hardship, passed a decree of partial eviction and held that it would meet the ends of justice. He submitted that from the pleadings as well as from the evidence it is very clear that the plaintiffs have led stress only on their own requirement. One of the plaintiffs is dead. The members of the plaintiffs family have settled in Bombay and, therefore, it can, by no stretch of imagination, be said that the entire suit house is needed by the plaintiffs. The defendants have yet not got possession of the premises owned by them. The defendants cannot be forced to reside in the premises which are in the name of the son of defendant 1. In such circumstances, the trial court has rightly passed a partial decree of eviction. It is covered by the Supreme Court judgment in Badrinarayan Chunilal Bhutada’s case (supra) and, therefore, the lower appellate court was wrong in setting it aside. 15. Mr. Sathe, the learned counsel appearing for the respondents-plaintiffs, on the other hand, submitted that no interference is necessary with 14 the impugned judgment. He submitted that it is well settled that the landlord is the best judge of his requirement and reasonable and bonafide requirement means something more than desire but not dire necessity. In this connection Mr. Sathe relied on the judgment of this court in Meenal Eknath Kshirsagar v. Traders & Agencies & Anr., 1997 (1) M.L.J. 121 and the judgment of the Supreme Court in Raghunath G. Panhale (decd.) by LRs. v. M/s. Chaganlal Sunderji & Co., AIR 1999 SC 3864. Mr. Sathe then contended that what is pleaded in the plaint is not merely the requirement of the plaintiffs but also requirement of the plaintiffs’ family. In any case, he submitted that the word "himself" occurring in clause (g) of section 13(1) has to be read to mean the landlord and the members of his family, who are dependent on him. In this connection, he relied on the judgment of the Supreme Court in Dwarkaprasad v. Niranjan and Anr., AIR 2003 SC 2024. The learned counsel further contended that it is true that plaintiff 1 has expired but when a suit is filed by the landlord on the ground of his personal need on the death of the landlord, his bonafide requirement does not come to an end. The legal representatives or the sons of the landlord, who attain majority 15 during the pendency of the suit are entitled to defend the estate. Bonafide need of the landlord is to be examined on the date of commencement of the proceedings. Subsequent events, such as, death of the landlord are not relevant. For this proposition, he relied on the judgment of the Supreme Court in Shakuntala Bai and Ors. v. Narayan Das & Ors. AIR 2004 SC 3484. The learned counsel then referred to the judgment of the Supreme Court in Gaya Prasad v. Pradeep Shrivastava, 2001 SC 803 and contended that the crucial date for deciding bonafides of the need is date of application. Subsequent developments occurred pendente lite can be taken into account only when need of the landlord is completely eclipsed by such subsequent events. He submitted that such is not the case here and, therefore, the decree of eviction has rightly been passed. 16. While dealing with the submission of the learned counsel for the petitioners that the plaintiffs are residing in Bombay and, therefore, their desire is to settle in their house at Yeola cannot be called bonafide or reasonable Mr. Sathe relied on judgment of the Supreme Court in Atma S. Berar v. Mukhtiar Singh, AIR 2003 SC 624. where 16 the Supreme Court has held that the landlord’s desire to settle in suit house cannot be described as whimsical because during the pendency of the suit he had lived abroad. 17. The learned counsel then referred to the judgment of this court in Anandrao Ganpatrao Sable v. Madhavrao Ramrao Kanase & Anr., 1989 (1) B.C.R. 256, where while considering the aspect of partial decree this court has held that partial decree should not be passed when partition is not feasible and it materially affects enjoyment of the property by both the parties. He submitted that in the facts of this case also partition is not feasible and if the plaintiff’s requirement is considered a partial decree would materially affect the enjoyment of the property by the plaintiffs. The portion of the property retained by the defendants would also not fully serve their purpose. In such a situation partial decree could not have been passed. 18. The learned counsel also referred to the judgment of this court in Tukaram Khushaba Chorge since deceased by his LRS. v. Malam Janardhan Jagtap & Anr., 2000 Vol. 102(2) Bom. L.R. 461, 17 where this court has held that it is for the tenant to plead that a part of the premises shall meet the landlord’s need. He submitted that inasmuch as there is complete absence of such pleadings a partial decree could not have been passed in this case. 19. Lastly the learned counsel relied on Gajanan Krishnaji Wakankar v. Madhukar Rajaram Padhye, 1990 B.C.R. 116, where this court has held that when hardship is equal to the landlord and the tenant decree of eviction is the right course. He, therefore, urged that even if this court comes to a conclusion that equal hardship is caused to the plaintiff and the defendant, the right course would be to pass a decree of eviction. 20. In Raghunath Panhale’s case & Meenal’s case (supra), the Supreme Court has crystalised the principles which the court should keep before it while dealing with the case of bonafide and reasonable requirement of the landlord. In Panhale’s case the Supreme Court has observed as follows:- "The word ’reasonable’ connotes that the 18 requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word ’requirement’ coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in present or within reasonable proximity in the future. The use of the word ’bonafide’ is an additional requirement under S. 13(1)(g) and it means that the requirement must also be honest and not be tainted with any oblique motive." 21. In Meenal’s case (supra) the Supreme Court further clarified this aspect as under:- "It is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other 19 property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the Courts to dictate to him to continue to occupy such premises. The fact that the plaintiff was the owner of the suit premises and that she did not own any other premises in the city of Bombay was not in dispute. Though she would have been entitled to stay in the premises in which her husband was a tenant, if for any reason her husband had parted with possession of such premises and the same were occupied by her husband’s brother, it could not be said that the said premises were available to her and by not referring to those facts she had come to the Court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction". 22. It is clear, therefore, that the landlord is the best judge of his requirement and that his requirement has to be more than desire but not dire necessity. Keeping these principles in mind I will approach this case. 20 23. I have carefully perused the plaint. It is true that it is stated in the plaint at some places that the plaintiffs have desire to go and stay in their house at Yeola but if the pleadings are read in proper perspective one finds that it is not merely the requirement of plaintiffs which is pleaded. While referring to the requirement of plaintiff 1 it is stated that there are six persons in his family and the two rooms in their occupation are small and therefore, they are inconvenienced. While dealing with the requirement of plaintiff 2 it is stated that he is staying as a gratutious licensee in someone else’s house. The said place admeasures 8’ x 8’. He has a son who stays with him and the said place is not adequate for their residential requirement. Therefore, in my opinion, it cannot be said that the requirement pleaded is only that of the plaintiffs. The judgment of the Supreme Court in Koyilerian’s case (supra) is not applicable to this case. 24. In this connection the reliance placed by Mr. Sathe on the judgment of the Supreme Court in Dwarkaprasad’s case (supra) is apt. The Supreme Court was dealing with a suit filed by the landlord for eviction of the tenant under Section 13 (1)(g) 21 of the Rent Act. The Supreme Court referred to Section 13(1)(g) and observed that the key words which are required to be interpreted are: "For occupation by himself" occurring in Section 13(1)(g) of Rent Act. The Supreme Court further observed that such a provision cannot be construed strictly so as to confine it to the requirement of the landlord alone and it can be extended to include the requirement of members of landlord’s family. In the facts of that case the plaintiff had pleaded that he constituted a joint family with his mother, brothers and sisters. The Supreme Court held that it was obligation of the landlord to settle his brothers in business. Therefore, he can legitimately seek eviction of a tenant by pleading that he needs demised premises to settle his son and his younger brothers in business. 25. In the instant case though in the plaint there is