1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION No. 145 OF 2009 1] Rajaram Keshav Dhobi, age 66 years, Occu. Pensioner, R/o Kunde Road, Pawan Chauk, Opp. Wani Mangal Karyalaya, Amalner, Dist. Jalgaon. 2] Nago Keshav Dhobi (dead) ...APPLICANT VERSUS Narayan Jairam Marathe, Ae 75 years, Occu. Pensioner, R/o Kunte Road, Pawan Chauk, Opp. Wani Mangal Karyalaya, Amalner, Dist. Jalgaon. ..RESPONDENT. ... Mr. B.N. Patil, Advocate for applicant. Mr. S.P. Shah, Advocate for Sole respondent WITH CIVIL REVISION APPLICATION No. 190 OF 2009 Narayan Jairam Marathe, Ae 82 years, Occu. Pensioner, R/o Kunte Road, Pawan Chauk, Opp. Wani Mangal Karyalaya, Amalner, Dist. Jalgaon. ...APPLICANT VERSUS 1] Rajaram Keshav Dhobi, age 70 years, Occu. Pensioner, R/o Kunde Road, Pawan Chauk, Opp. Wani Mangal Karyalaya, 2 Amalner, Dist. Jalgaon. 2] Nago Keshav Dhobi dead (Died uring pendency of the suit, no L.Rs. Are brought on record) ...RESPONDENTS ... Mr. S.P. Shah, Advocate for applicant Mr. B.N. Patil, Advocate for respondents CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 25th August, 2010 JUDGMENT PRONOUNCED ON : 30th September, 2010 JUDGMENT: Rule, Rule made returnable forthwith. Heard finally with the consent of parties. 2. Both the Civil Revision Applications are filed, challenging the Judgment and decree dated 11th August, 2009 passed by the Adhoc District Judge-1, Amalner, Dist. Jalgaon, in Regular Civil Appeal No. 15 of 2004. This Court vide order dated 17th February, 2010 in Civil Revision Application No. 190 of 2009 observed that the revision is to be finally heard, at the stage of admission. Further this Court was pleased to call record and proceedings and accordingly record and proceedings are received from the concerned Court. 3 The applicant in Civil Revision Application No. 145 of 2009 i.e. Rajaram Keshav Dhobi is original plaintiff and the applicant Shri Narayan Jairam Marathe in Civil Revision Application No. 190 of 2009 is original defendant in Regular Civil Suit No. 159 of 1994. The said suit was filed for possession by the land-lord/Plaintiffs on the ground of personal occupation, business and construction for their residence against the defendants, by claiming a decree for eviction as provided under Section 13 of the Bombay rents, Hotel and Lodging House Rates Control Act, 1947 (here-in-after called as “the Act”). 3. Brief facts as disclosed in the plaint are as under : The plaintiffs claimed to be land-lord of the house property T.P. No. 133 within area of boundaries mentioned in para No. 1 of the plaint. The western site of premises as described in para No. 1 let to the defendant’s father by their uncle at monthly rent of Rs. 5.25/- as per English Calender. The tiled hut on area 16 x 10 erected by the land-lord’s ancestor at the suit premises. (here-in-after called it as “suit premises”). 4 The father of defendant died on 14th October, 1993 in house owned by defendant in Gurukul Co- operative Housing Society at Amalner. The defendant is a member of said housing society. He has constructed three rooms house and residing along with his family there. It was contended in the plaint that the defendant unnecessary retained possession over the suit premises. The plaintiff further contended that, suit premises are required for residence and business and for further construction of entire area of T.P. No. 133. They have prepared a map and sanctioned it by Municipal Council, Amalner. According to plaintiff, they have constructed area which was possessed by them. The remaining proposed construction area is in possession of the defendant, where they want to construct kitchen, latrine etc. But could not construct it. Since the plaintiffs required the suit premises for residence they issued notice dated 15th June, 1994 for termination of tenancy to the defendant. Since defendant failed to handover possession, the plaintiffs filed Suit bearing Regular Civil Suit No. 159 of 1994. 5 4. The defendant resisted the claim by filing written statement (Exh. 14). The plaintiffs bonafide requirement of suit premises was disputed by the defendants. It was also stated in the written statement that the suit is bad for non-joinder of necessary/certain parties. It was also stated in the written statement, that plaintiffs did file Regular Civil Suit No. 104 of 1974 against the father of the defendant and said suit came to be dismissed. Therefore, principle of res-judicata squarely applies to the case, and therefore, Regular Civil Suit No. 159 of 1994 being barred by principle of res-judicata, should not be heard at all by the Trial Court. The written statement also includes other contentions of the defendant. 5. The Trial Court after closing of the evidence adduced by the parties, written notes of arguments (at Exh. 256 and Exh. 258) respectively, framed necessary issues for determination. The Trial Court has framed as many as seven issues for its determination and consideration. So far personal and bonafide requirement of the plaintiff is concerned, the issue No. 2 was framed by the Trial Court and said 6 issue has been answered in negative. The issue No. 4 i.e. “Whether defendant prove that suit of the plaintiff is false?” is answered in the negative. The another issue i.e. Issue No. 5-A “ whether suit is barred by principle of res-judicata?” the said issue is also answered in negative. However, the Trial Court held against the plaintiffs on the point of bonafide requirement of the suit premises, and further held that the plaintiff is not entitled for possession. It appears that the Original plaintiff has filed application for amendment of the plaint. By way of said amendment, the plaintiffs pleaded that the defendant has built and acquired suitable residential house in Gurukul Co-operative Housing Society at Amalner, and the defendant is residing therein with his family members. It appears that by way of said amendment the ground was taken in the plaint, that defendant possessed his own house, he is residing in the said house and on that ground, the Court can pass the necessary decree in respect of suit premises. The original defendants filed reply to the amended plaint. It further appears that at the time of final hearing of the suit, the Trial Court, was aware about the 7 amendment brought by the plaintiff. However, it appears that, no separate issue was framed in respect of plaintiff’s assertion that the original defendant has constructed and acquired his own house in Gurukul Co-operative Housing Society at Amalner, and he is residing there with his family members. 6. The Trial Court, dismisseded the suit with costs, and decree was drawn accordingly. 7. Though the Trial Court, dismissed the suit, the issue No. 4 i.e. “ whether defendant prove that the suit of the plaintiff is false? and issue No. 5(A) Whether suit is barred by principle of res-judicata?” have been answered in the negative. Being aggrieved by the findings of the Trial Court on issues No. 4 & 5(A) in Regular Civil Suit No. 154 of 1994, the original defendant i.e. Narayan Jairam Marathe filed Civil Appeal No. 14/2004 before the Adhoc District Judge-1, Amalner, Dist. Jalgaon. The original plaintiff i.e. Rajaram Keshav Dhobi also filed Civil Appeal No. 15 of 2004, challenging the judgment and decree in Regular Civil Suit No. 159 of 1994. The specific contention was raised in the said appeal that the issue regarding 8 assertion of the plaintiff that the defendant has constructed and acquired his own house in Gurukul Co- operative Housing Society at Amalner, and he is residing with his other family members has not been framed by the Trial Court. 8. It appears that Adhoc District Judge-1, Amalner, passed order below (Exh. 1) in Civil Appeal NO. 15 of 2004, thereby framed the issue i.e. “Whether plaintiffs prove that defendant has acquired residential house in Gurukul Kripa Cooperative Housing Society at Amalner and thus built/acquired vacant possession of a suitable residence?. The said issue, was referred to lower Court for Trial. The lower Court was permitted to record additional evidence, if required. The lower court was directed to try the issue referred and shall return the evidence, if any to Appellate Court together with its findings thereon and reasons therefor, within a period of three months. The parties were directed to remain present on 16th August, 2008. the record and proceedings were sent to lower Court. On perusal of the records, it appears that 9 said order dated 24th July, 2008 attained finality and same was not challenged by the defendant before Higher Court. The Joint Civil Judge, Junior Division, Amalner, after hearing the plaintiff as well as defendant, and after taking into consideration evidence brought on record answered additional issue in the affirmative, and Record and proceedings of the suit were sent back to Adhoc District Judge-1, Amalner along with original record in respect of the Judgment and Order dated 9th January, 2009 on additional issue to the Adhoc District Judge-1, Amalner. 9. It appears that the original defendant filed cross objection Under Order 41 Rule 26 of Civil Procedure Code, aggrieved by the Judgment and Order dated 9th January, 2009 passed by the Joint Civil Judge, Junior Division, Amalner on additional issue in Regular Civil Suit No. 159 of 1994. 10. The Adhoc District Judge-1, Amalner delivered the final Judgment and Order dated 11th August, 2009, by which Civil Appeal No. 14 of 2004 filed by the 10 original defendant i.e. Revision applicant in Civil Revision Application No. 190 of 2009 came to be dismissed, and Civil Revision Application No. 15 of 2004 filed by the plaintiff came to be allowed. The Judgment and Order passed by the Joint Civil Judge, Junior Division, Amalner, in Regular Civil Suit No. 159 of 1994 was set aside and following order was passed :- “ The suit is hereby decreed. The defendant is hereby directed to deliver the vacant possession of the suit premises as described in plaint para NO. 1 to the plaintiff within the period of two[2] months from the date of order. The plaintiff is entitled for the mense profits from the date of the suit till handing over of the possession. The cross objection filed by the defendant is hereby dismissed.” 11. The Counsel appearing for the revision applicant i.e. Original defendant in Civil Revision Application No. 190 of 2009 submitted that the premise in Gurukul Sahakari Gruh Nirman Sanstha, Amalner cannot be said to be suitable alternate accommodation 11 of the defendant. The said premise is insufficient for all the members who were and are residing in the suit premises as a tenant. Further, the Son of Narayan by name Prakash is residing separately in the premise in Gurukul Housing Cooperative Society, at Amalner. Thus, premises at Gurukul Co-operative Housing Society is not available to the defendant for his residence. It is further submitted that after earlier suit instituted by the plaintiff for eviction on the ground of bonafide requirement, the present suit, was not maintainable on the ground of bonafide requirement, in absence of any fresh cause of action. It is further submitted that admittedly, Jairam Marathe was the original tenant. On his death his heir i.e. Narayan as well as Anil both have inherited the tenancy rights of Jairam. Therefore, Anil was also a necessary party to the suit for eviction, when he was earlier and presently residing in the suit premises. The suit was instituted without adding him party, is suffers from non-joinder of necessary parties. The second suit instituted by the plaintiff on the ground of, bonafide requirement was also barred. The learned Counsel invited my attention to the grounds taken in appeal memo and also written statement which was filed before 12 the Courts below, and submitted that the Civil Revision Application deserves to be allowed. 12. The learned Counsel appearing for Revision applicant i.e. Ori. Plaintiff in Civil Revision Application No. 145 of 2009 invited my attention, to the grounds taken in the application and submitted that as per Section 13(1)(g) of the Act, the land-lord can recover possession of the premises for reasonable and bonafide requirement for occupation for himself or by any person for whose benefit the premises are held. The Learned Counsel, submitted that the applicant is retired from the service, and the present construction is not sufficient for him and his family members for residence as well as for occupation. The Courts below have failed to consider the reasonable and bonafide requirement, inspite of applicant pleaded details of his family members and has also, in evidence given details of the same. It is further submitted that the reasonable and bonafide requirement of the land-lord’s family members, who are dependent on the land-lord for the purpose of residence or economic consideration can be considered. As the requirement of, land-lord and for the sake of setting the family members in business 13 land-lord can seek eviction of tenant. The plaintiff has successfully led evidence, detailing the need and also how present premises in his possession is inadequate for his whole family which is ever increasing. Therefore, according to the Counsel appearing for the Ori. Plaintiff, eviction on reasonable and bonafide requirement, the Courts below should have allowed the suit of the plaintiff. 13. I have given due consideration to the arguments advanced by the learned counsels appearing for the respective parties. I have also perused the Civil Revision Application along with its annexures and record and proceedings which are received from the lower Appellate Court. 14. The revision can be entertained by this Court, in a case no appeal lies from the decision of the subordinate Court, and if such subordinate Court appears to have exercise his jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. Under Section 115 of the Civil 14 Procedure Code, this Court cannot re-appreciate evidence and cannot, set aside the concurrent findings of the Courts below, by taking different view of the evidence. This Court, empowered to interfere with the findings of fact, if the findings are perverse or there has been a non appreciation or non consideration of the material evidence on record by the Courts below. 15. The principle grievance in Civil Revision Application No. 145 of 2009 filed by the original plaintiff appears to be that the reasonable and bonafide requirement of the plaintiff has not been properly appreciated, by the Courts below. It was the contention of the plaintiff that the suit premises is reasonable and bonafide requirement of the plaintiff, in view of the number of family members dependant upon the plaintiff and also the plaintiff is retired from the service and the present construction /residence is not sufficient for him and his family members for residence, as well as occupation. In this respect Joint Civil Judge, Senior Division, Amalner, had framed the issue No. 2 and said issue, had been answered in the negative. The Trial Court, has 15 considered the oral evidence adduce on behalf of the plaintiff. In para No. 12 of the Judgment, the Trial Court has referred evidence of plaintiff and his witness. The Court, has also referred to the documentary evidence at (Exh. 65 to Exh. 89). The Court has also considered, the other witness examined on behalf of the plaintiff. The Court has also referred to the evidence of defendant in same paragraph. In para No. 13 of the Judgment, the Court has also referred to Section 13(1)(g) of the Act. The Court has dealt with the contention of the plaintiff about his bonafide requirement of the suit premises in para No. 15. It was recorded in the said paragraph that the plaintiff's case is that he is residing along with his wife,two sons, a daughter-in-law and two grand sons since the year 1998. Thus, the constructed rooms are insufficient for their residence. The Court has further referred to the contentions of the plaintiff that the photo studio is in one room and customary washer business working is in another room and only in one room, all members of the family are residing. The Trial Court in para No. 21 has referred to the submissions of the defendant on the aspect of bonafide requirement of the suit premises of the 16 plaintiff. The Court has referred to the relevant documentary proof and also to the Commissioner’s report along with maps at (Exh. 139 and 203) and held, that this evidence is found in corroboration of defendant’s submission. The Court has given detail findings about the Commissioner’s report in said paragraph. The Court has also recorded the finding that the Studio business has not been running in suit premises, and both the sons of Plaintiff Nos. 1 & 2 are shifted at Pune. The Court has also referred to the cross-examination of the plaintiff in which he admits that one room out of constructed rooms was let out to the others by them. The Court, has also recorded in para No. 22 that 2/3rd portion which is in possession of the plaintiff is containing four rooms at suit premises as well as another property No. 81/2 available to them nearby the side of the suit premises. In para No. 28, 29 & 30 of the Judgment, the Court taking into consideration another property T.P. No. 81/2 at short distance as well as open space site available to plaintiff to meet their requirement of alleged construction of latrine etc. The Trial Court, held that the plaintiff failed to prove their reasonable bonafide requirement. 17 16. The plaintiff aggrieved by the findings of the Trial Court, preferred appeal. In appeal also in para No. 61 the Appellate Court held that the plaintiff has failed to prove that the suit premises are required for reasonable and bonafide requirement by the plaintiff for their occupation. In substance the Appellate Court, has confirmed the findings of the Trial Court, on the point of bonafide requirement of the suit premises. Therefore, there are concurrent findings of facts recorded by the Courts below, that the land-lord/plaintiff failed to prove that the suit premises are reasonably and bonafide requirement of the plaintiff for their occupation. Both the Court have taken into consideration the adjoining property of the plaintiff, and also the house owned by his son at Pune. The Court, has also recorded the finding that the 2/3rd portion contains four rooms. Therefore, there are concurrent findings of facts in consonance with the evidence brought on record by the parties. I do not find, that the concurrent findings recorded by the Courts below are perverse. Therefore, Civil Revision Application No. 145 of 2009 filed by the original plaintiff’s is devoid of any merits. 18 17. The Civil Revision application NO. 19o of 2009 is filed by the Original defendant. The principle grievance which is raised, in this Civil Revision Application is about maintainability of Regular civil Suit No. 159 of 1994. According to the revision applicant, the original plaintiff did file Regular Civil Suit No. 104/1974 on the ground of bonafide requirement, and since the said suit was dismissed, the Regular Civil Suit No. 159/2004 being barred by the principle of res-judicata was not maintainable. In this respect, both the courts, have held against the Revision applicant / Ori. defendant. The Trial Court, has frame specific issue on this aspect i.e. issue No. 5(A) “Whether suit is barred by principle of res- judicata? same is answered in the negative. While answering the said issue. The Trial Court, has discussed this issue from para No. 35 onwards. The Trial Court, has referred to the Judgment of the Apex Court in a case of “Surajmal V/s. Radheshyam, reported in AIR, 1988 SC” and more particularly para No. 8 of the Judgment, and also placed reliance on reported Judgment in the case of “ Mangharam Chuharmal V/s. B.C. Patel and others, reported in AIR, 1972 Bombay 19 46”, and held ratio laid down in the said Judgments is squarely applicable in the facts of this case. Hon’ble Supreme Court in case of “Surajmal V/s. Radheshyam” cited supra has held thus :- “ Where a suit for eviction from premises comprising of shop on ground of bonafide need was dismissed, the second suit on the same ground would be competent. The bonafide need must be considered with reference to the time when a suit for eviction is filed and it can not be assumed that once the question of necessity is decided against the land-lord it has to be assumed that he will not have a bonafide and genuine necessity ever in future.” 18. Therefore, in my opinion,looking to the facts of this case and more particularly, pleadings in the plaint that the defendant has constructed his own house and he is residing along with his family members, appears to be new pleading taken in Regular Suit No. 159 of 1994 by way of amending the plaint in the year 2004, and therefore, the suit was maintainable. The Appellate Court, has also held that the suit was not hit by principal of res-judicata. 20 Therefore, there is no substance, in the contention raised by the Counsel for the original defendant that the Regular Civil Suit No. 159 of 1994 was hit by principles of res-judicata. 19. So far as framing of additional issue by the Appellate Court, and referring it to the Trial Court, for recording the finding on additional issue i.e. “Whether the plaintiff proves that the defendant has acquired residential house in Gurukul Kripa Co- operative Housing Society at Amalner and thus build/acquired vacant possession of a suitable residence?” is concerned, the order dated 24th July, 2008 passed by the Adhoc District Judge-1, Amalner, referring this issue to the Trial Court, attained finality and same was not challenged by the defendant. Therefore, the Trial Court, after taking into consideration, the rival submissions answered the said issue in the affirmative. Therefore, there is no substance, in the contention of the Counsel appearing for the revision applicant / Ori. Defendant, that the Appellate Court, was not justified in referring additional issue to the Trial Court, for giving the findings and for recording additional evidence, if 21 felt necessary. It is true, that after the additional issue was answered by the Trial Court, the Original defendants filed cross-objections before the Appellate Court, however, said cross-objections are negatived by the lower Appellate Court. 20. Both the Courts have held that the defendant failed to prove that the suit of the plaintiff is false. The specific issue was framed in that respect and contention of the defendant, that the suit of the plaintiff is false has been negatived by the Courts below. 21. The main ground, on which the Appellate Court set aside the decree passed by the Trial Court, is that the defendant is built/acquired house having necessary facilities and same is suitable for the residence, and further defendant has failed to produce positive evidence to show that the house has built/acquired by him is not suitable for his residence. The Trial Court, as well as Appellate Court held that the defendant has acquired/built vacant possession of suitable residence for himself and his family members at Gurukul Co-operative Housing Society 22 at Amalner, and further held that plaintiff entitled for the relief of recovery of possession of suit premises. 22. The Trial Court while considering the additional issue referred by the Adhoc District Judge-1, Amalner, had given hearing to the parties, had also allowed them to led their evidence. The Trial Court, in para No. 10 has referred to the provisions of Section 13(1) (l) of the said Act. The said provision reads thus : “ Section 13 – When landlord may recover possession :- (1) Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied- (a) ............................. (L) That the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence.” The