Case: Meenal Eknath Kshirsagar Vs. Traders And Agencies

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. If the appellant believed that the Olympus flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. We are, therefore, of the opinion that the Appellate Bench and the High Court clearly went wrong in holding that the said omission was sufficient to disentitle her from getting a decree of eviction and it also disclosed that her claim was mala fide and not bona fide as required by law.20. The finding recorded by both the Courts that the "Park View flat was available to her and her husband for occupation is the result of not applying the correct test to the facts of the case. Eknath was undisputedly not a tenant of the said flat. The tenant of the said flat is M/s. A. F. Ferguson & Co. of which Eknath is only a Director. Mrs. Kalra is the owner of that flat and after it was taken on lease by the firm it was given to Mr. Kalra, another Director of the firm for his occupation and use. The firm allowed Eknath to use the said flat temporarily on leave and licence basis in October 1972, as Mr. Kalra was then temporarily transferred to Delhi. The evidence produced by the appellant did disclose that the firm had required Eknath to vacate the same and it was not right for the appellate Bench and the High Court to brush aside that evidence on the ground that it was "internal correspondence of the company." Eknath could not have occupied the said flat as a matter of right and in view of the arrangement between the firm and Mr. Kalra as disclosed by the evidence on record it cannot be said, in the context of judging the bona fide requirement of the appellant, that the said flat was available to her and her husband for occupation even after 1984. Even if it is believed that Eknath had not really vacated the said flat in 1984, and continued to be in possession, it cannot be said that the possession of the said flat was such as would disentitle the appellant to get a decree of eviction. Being a licensee Eknaths possession of that flat was precarious and, therefore, could not have been considered as suitable alternative accommodation.21. As regards the Olympus flat the evidence discloses, and it is not in dispute, that Eknath left that flat in October, 1972, and since then only Sridhar and his family members have been staying in that flat. It is a two bed room flat having an area of 1100 sq. ft. Sridhar has a wife and two children and the family of the appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered to hand over half the portion of that flat. Both Eknath and landlady have challenged the said partial decree and their respective appeals are pending before the Appellate Court. In this context the Courts had to consider whether it can be said that the appellant and Eknath are having suitable alternative accommodation and, therefore, the appellants claim that she requires the suit premises for her occupation is not reasonable and bona fide. The Appellate Bench and the High Court considered the possibility of Eknath going back to that flat and occupying it along with Sridhar and also the possibility that in case the landladys appeal is dismissed and Eknaths appeal is allowed the flat, in its entirely, will become available to Eknath and on that basis held that the appellants claim that she requires the suit premises reasonably and bona fide is not true. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by his as a tenant or on any other basis either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the Olympus flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the Olympus flat is readily available to the appellants husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family.22. In view of the facts and circumstances of the case we are of the view that the appellant has proved her case of bona fide requirement and, therefore, the Small Cause Court was right in passing the decree in her favour. The Appellate Bench committed a grave error in reversing the same and the High Court also committed an error in confirming the judgment and order passed by the Appellate Bench.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The fact that the appellant is the owner of the suit premises and that she does not own any other premises in the City of Bombay is not in dispute. She does not possess, even as a tenant, any premises in Bombay. No doubt, she would be entitled to stay in the premises of which her husband is a tenant but if for any reason her husband had parted with possession of such premises and the same were occupied by her husbands brother, it cannot 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. If the appellant believed that the Olympus flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. We are, therefore, of the opinion that the Appellate Bench and the High Court clearly went wrong in holding that the said omission was sufficient to disentitle her from getting a decree of eviction and it also disclosed that her claim was mala fide and not bona fide as required by law.20. The finding recorded by both the Courts that the "Park View flat was available to her and her husband for occupation is the result of not applying the correct test to the facts of the case. Eknath was undisputedly not a tenant of the said flat. The tenant of the said flat is M/s. A. F. Ferguson & Co. of which Eknath is only a Director. Mrs. Kalra is the owner of that flat and after it was taken on lease by the firm it was given to Mr. Kalra, another Director of the firm for his occupation and use. The firm allowed Eknath to use the said flat temporarily on leave and licence basis in October 1972, as Mr. Kalra was then temporarily transferred to Delhi. The evidence produced by the appellant did disclose that the firm had required Eknath to vacate the same and it was not right for the appellate Bench and the High Court to brush aside that evidence on the ground that it was "internal correspondence of the company." Eknath could not have occupied the said flat as a matter of right and in view of the arrangement between the firm and Mr. Kalra as disclosed by the evidence on record it cannot be said, in the context of judging the bona fide requirement of the appellant, that the said flat was available to her and her husband for occupation even after 1984. Even if it is believed that Eknath had not really vacated the said flat in 1984, and continued to be in possession, it cannot be said that the possession of the said flat was such as would disentitle the appellant to get a decree of eviction. Being a licensee Eknaths possession of that flat was precarious and, therefore, could not have been considered as suitable alternative accommodation.21. As regards the Olympus flat the evidence discloses, and it is not in dispute, that Eknath left that flat in October, 1972, and since then only Sridhar and his family members have been staying in that flat. It is a two bed room flat having an area of 1100 sq. ft. Sridhar has a wife and two children and the family of the appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered to hand over half the portion of that flat. Both Eknath and landlady have challenged the said partial decree and their respective appeals are pending before the Appellate Court. In this context the Courts had to consider whether it can be said that the appellant and Eknath are having suitable alternative accommodation and, therefore, the appellants claim that she requires the suit premises for her occupation is not reasonable and bona fide. The Appellate Bench and the High Court considered the possibility of Eknath going back to that flat and occupying it along with Sridhar and also the possibility that in case the landladys appeal is dismissed and Eknaths appeal is allowed the flat, in its entirely, will become available to Eknath and on that basis held that the appellants claim that she requires the suit premises reasonably and bona fide is not true. As pointed out by this Court it is for the landlord to decide how and in what manner he should live and that he is the best judge of residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by his as a tenant or on any other basis either insecure or inconvenient it is not for the Courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the Olympus flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the Olympus flat is readily available to the appellants husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family.22. In view of the facts and circumstances of the case we are of the view that the appellant has proved her case of bona fide requirement and, therefore, the Small Cause Court was right in passing the decree in her favour. The Appellate Bench committed a grave error in reversing the same and the High Court also committed an error in confirming the judgment and order passed by the Appellate Bench.