Case: Gulabbai Vs. Nalin Narsi Vohra And Ors

2. The matrix of the case as appears from the pleadings of the parties is as followsThe plaintiff-appellant, Gulabbai instituted Regular Civil Suit No. 19 of 1979 in the court of Shri S. S. Patil, III Jt. Civil Judge, J. D., Ahmednagar at Ahmednagar for vacant possession of the suit property consisting of part of Survey No. 3576 in the city of Ahmednagar and also for the arrears of rent and the costs of the suit. Originally the said property belonged to the Imarat Company Private Limited. The plaintiff purchased the said property from Imarat Company Private Limited bearing numbers on the front side on the eastern as 81 to 83 and rear part on the west 89 to 91, for a consideration of Rs. 34, 000 on August 12, 1976. At the time of purchase of the premises the said building had ground floor and first floor. The purchase was made by Amritlal Mutha in the name of his wife, Gulabbai, the plaintiff. The defendants were in possession of a part of the said premises bearing Nos. 81 to 83 on the eastern side whereas the western part on the ground floor bearing Nos. 89 to 91 as possessed by the brother of Amritlal Mutha i.e. Kanhyalal Mutha who has been running a provision store under the name and style of Mutha Provision Store for the last 15 years. Defendants 1 & 4 i.e. Nalin Narsi Vohra and Mulji Narsi Vohra are the brothers whereas defendants 2 & 3 are the wife and the son of dependent 1 respectively. According to the plaintiff, the defendants are in possession of the suit Shop Nos. 81 to 83 admeasuring 21 ft. x 15 ft. on the monthly rent of Rs. 21.28 plus education cess Rs. 2.55. The tenancy commences from the first day of every month and ends on the last day of the said month according to the English calendar. Prior to the purchase of the suit premises, the defendants were tenants of Imarat Company Private limited and the tenancy is in the name of defendant 1 i.e. Nalin Narsi Vohra and the rest receipts too were in the name of defendant 1 only. According to the plaintiff, the original agreement of defendant with Imarat Company Pvt. Ltd. is to pay rent from month to month. After purchase of the said property, Imarat Company intimated to the tenant-defendant 1 about the said purchase by the plaintiff. It has been pleaded by the plaintiff that defendant 1 assured the plaintiff after purchase of the suit house, that he would vacate the said premises. However, the defendants demanded pagadi amounting to Rs. 25, 000 in order to vacate the suit premises. It was alleged by the plaintiff that the defendants were in arrears of rent since August 12, 1975 till December 15, 1977. The plaintiff, therefore, issued a notice dated December 15, 1977 of ejectment and thereby demanded the rent of the suit premises till November 30, 1977. Defendant 1 after receipt of the notice sent Rs. 571.92 by money order. But it was refused by the plaintiff as the rent was not correctly calculated. The defendants again sent Rs. 960 by demand draft which was also refused by the plaintiff as miscalculated. The defendants sent thereafter Rs. 658.55 by money order which was accepted by the plaintiff. According to the plaintiff the defendants are monthly tenants and so according to her, defendants are defaulter for non-paying the rent of the suit premises for more than six months3. The plaintiff also stated that her husband, Amritlal Mutha is a Taxation Consultants and suit premises are required for the purpose of office for her husband as her husband has no other suitable accommodation except the suit premises to open his office. It has also been pleaded in the plaint that the defendants no longer require that the suit premises for the purpose of business because defendants 1 to 3 are at present residing at Pune and doing the business at Pune under the name and style of Ashok and Company which deals with the sale and purchase of machine tools. It has been further pleaded by the plaintiff that the defendants are in possession of three other businesses at Nagar which are situated near the suit premises. The defendants have purchased one shop in front of Kohinoor Cloth Store in the year 1964 and defendants 1 to 4 are partners in the shop Liberty Dresses which deals with readymade garments and hosiery. Defendants 1 to 4 have also purchased the premises for Rs. 13, 000 in the year 1972 from Imarat Company Private Ltd. which is also situated in front of the suit premises. The defendants have also purchased one premises from Imarat Company Private Ltd. in the year 1974 for Rs. 12, 000. The defendants have removed the middle wall in between the two properties mentioned above and opened a big shop and are carrying on the business of readymade garments and woollen hosiery called as Madura Stores. It is the case of the plaintiff that the defendants no more require the suit premises for business purposes and prayed for an order of eviction of the defendants from the suit premises on the ground of bona fide requirement. It has also been pleaded that greater hardship would be caused to the plaintiff if the possession of the suit premises be not handed over to her. The defendants did not hand over the suit premises to the plaintiff after the receipt of the notice and the instant suit was filed on January 8, 19794. Defendant-respondents 1 to 4 filed a written statement Ex. 10 denying all the material allegations made by the plaintiff. According to the defendants, the description of the suit house was not made properly in the plaint and hence on that ground the suit is liable to be dismissed. The defendants have stated that the suit property is in their possession since the last 20 years at the annual rent of Rs. 255.36. They have further stated that the rent of the suit premises is to be given after every one year which the defendants had been regularly paying to the Imarat Company Pvt. Ltd. The defendants admit that the suit premises has been purchased by the plaintiff in the year 1975 and the defendants offered the rent to the plaintiff on several occasions but the plaintiff refused to accept the same. Ultimately, they sent the rent by the money order which was also refused by the plaintiff. Again, in order to show their willingness the defendants sent an amount of Rs. 960 by demand draft but it was also refused by the plaintiff. The defendants thereafter have sent Rs. 658.58 which was accepted by the plaintiff on December 27, 1977. Thus, the rent was paid up to November 30, 1977 and again from December 1, 1977, to September 30, 1978, the defendants paid the rent of the suit premises of the plaintiff and husband of the plaintiff accepted the same, but he did not give the receipt of the same. The defendants further remitted an amount of Rs. 238.35 by money order to the plaintiff and it was accepted by the plaintiff. The defendants submit that they were always ready and willing to pay the rent to the plaintiff but the plaintiff was not accepting the same. The defendants also replied to the said notice. According to the defendants the requirement of the plaintiff is neither bona fide nor reasonable. The defendants further pleaded that the husband of the plaintiff is Income tax and Sales tax Practitioner and working with S. B. Gandhi as one of his partners and also having his own office which is situated in Ghas Galli, now called as Shahaji Road on the first floor and the said premises is suitable for plaintiffs husband to open his office there. The plaintiff is in possession of area 15 ft. x 25 ft. on the ground floor facing towards west, adjacent to the suit premises and also complete first floor 45 ft. x 15 ft. The said area is suitable for plaintiffs husband for his office if he so desires. It has been pleaded by defendant 1 that greater hardship would be caused to him if premises are vacated and handed over to the plaintiff. The defendants submit that they are residing at Ahmednagar and carrying on the business of readymade garments in the suit shop. It has been further pleaded that accommodation is not easily available in the Ahmednagar city for the purpose of business and Kapad Bazar area where the suit premises exist is the only good market of hosiery and so prayed for dismissal of the plaintiffs suit5. On the above pleadings ten issues were framed of which the relevant issues areIssue No. 2 : Whether the plaintiff proves thatdefendant 1 is lawful defaulterin payment of monthly rent ?Issue No. 3 : Whether the plaintiff proves that she bonafide requires possession of the suit premisesfor the office of her husband Amritlal ?Issue No. 4 : To whom the greater hardship would be causedby passing the decree for eviction than byrefusing to pass it ?Issue No. 7 : Whether defendant 1 proves that suitpremises were leased to him at annual rentof Rs. 255.36 ?6. The trial court held with regard to Issue No. 3 that at the time of purchase there was ground floor and first floor to the suit premises. The defendants were in possession of Shop Nos. 81 to 83 on the eastern side and on the western side of the ground floor shops bearing Nos. 89 to 91 were in possession of the brother of the plaintiffs husband, Kanhyalal Mutha where he had been running a provision store since the last 13 years. The family of Amritlal Mutha, i.e. husband of the plaintiff consisted of his wife, his 3 children, the eldest son aged about 16 years was studying in the 12th standard in the year 1981. His second son aged about 13 years was in 7th standard and 3rd son in 3rd standard in the year 1981. The plaintiff had been residing on the first floor of the suit premises, which consisted of 4 rooms, first one bedroom towards west admeasuring 7 ft. x 12 ft. and next room kitchen admeasuring 7 ft. x 11 ft. and 3rd room admeasuring 7 ft. x 11 ft. which is used for the studies of the children. One other room admeasuring 15 ft. x 15 ft. was used as a bedroom. It has been found that first floor premises is not sufficient for his office purposes because he requires at least 25 ft. x 30 ft. area for the purpose of office in order to keep the records and for the sitting arrangement for his clients and also for his cabin. It has further been found that the ground floor Shop Nos. 89 to 91 adjacent to the suit premises is not available for the plaintiffs husband for opening his office as Kanhyalal Mutha, brother of the plaintiffs husband, has been running there Mutha Provision Store for the last about 15 years, the evidence of Amritlal is also consistent with the evidence of Kanhyalal Mutha on this point. The trial court therefore, found that as the plaintiff has no other accommodation at Ahmednagar except the suit premises and the partnership of the plaintiffs husband with S.B. Gandhi has been dissolved, the plaintiff reasonably requires the suit premises for the purpose of opening of office of her husband as Tax Consultant. The demand of the plaintiff is, therefore, reasonable and bona fide. It was also found that defendant 1 was in possession of a number of premises which are near the suit premises and defendants were carrying on the hosiery business in those premises under the name and style of Liberty Dresses and Madura Stores. It has been further held that defendant 1 was shown as partner in the firm M/s. Vohra and Company, 94/97 Budhwar Peth, Pune 2, and the residence of defendant 1 is known as Krishnakrupa, Mukund Nagar, Pune 9 where the suit summons were served on defendant 1. It was also found that it was evident from Ex. 105 that the son of defendant 1 and wife of son of defendant 1 are the partners in M/s. Ashok and Company and both are residing at 7/3-C-Vanshree Apartment, Rambag Colony, Sadashiv Peth, Pune. It has also been found that defendant 1 has admitted in his cross-examination that he has vacated his residential premises at Ahmednagar and he is in search of other residential accommodation. It was, therefore, held that the plaintiff has proved his bona fide requirement of the suit premises and thus Issue No. 3 had been decided in the affirmative7. As regards Issue No. 4, the trial court held that except the suit premises and first floor on it, no other premises was available to the plaintiff at Ahmednagar. The trial court held further that the first floor premises is not suitable for the plaintiffs husband to open his office and greater hardship will be caused to the plaintiff if the suit premises be not handed over to the plaintiff than by denying him the vacant possession of the suit premises. Issue No. 4 was thus held in favour of the plaintiff. It was further held that the suit premises were properly described in the plaint8. As regard Issue Nos. 2 and 7 it was held that defendant 1 is a monthly tenant and the monthly rent in respect of such premises is Rs. 21.28 plus education cess Rs. 2.55 i.e. Rs. 23.83. It was also held that the tenancy commenced from the first day of every month and ended on last day of the same month as per the English calendar. The trial court held that the defendants failed to prove that the suit premises were leased to them at annual rent of Rs. 255.36 and hence that issue was decided against the defendants. The defendants were also to be held as defaulters as the deposits of rent were not made within the meaning of Section 12(3)(a) and 12(3)(b) of the Rent Act. The trial court thus decreed the suit and directed the defendants to hand over vacant possession of the suit premises within one month of the date of order9. Against the said judgment and decree, defendant 1, Nalin Narsi Vohra filed an appeal being Regular Civil Appeal No. 430 of 1985 in the court of Additional District Judge, Ahmednagar. The learned Additional District Judge held that the trial court was right in holding that defendant 1 was paying the rent monthly and he was a monthly tenant. It was further held that there are no arrears for the statutory period in order to hold that the defendants are defaulters for which their tenancy is liable to determined. As such the Additional District Judge found against the plaintiff holding that the defendants had not defaulted in payment of rent and there could not be any decree of ejectment on this ground. The learned Additional District Judge further held that there was nothing which shattered the evidence of Amritlal when he speaks about the bona fide requirement of the plaintiff for having the suit property to open his office and the argument that plaintiff can acquire the premises of Kanhyalal could not be accepted as it was neither possible nor feasible in the near future to expect that Kanhyalal would surrender the premises to the plaintiff. The construction on the second floor of the suit premises was a temporary one and as such the same could not be used for residential purposes. The Additional District Judge also considered the application for additional evidence which disclosed that the plaintiffs husband had purchased a plot at Chahurana Bk. at the T.P. Scheme No. 3 within the municipal limit of Ahmednagar and constructed a big bungalow covering about 2000 sq. ft. The Additional District Judge held that it was not known whether the Municipality has given permission for habitation and furthermore the requirement of the plaintiff was especially for conducting her husbands profession of Tax Practitioner at the required suit premises, which is not for residential purposes. The suit premises are situated in Kapad Bazar area where the trading communities have their shops and business establishments, and is fit for the opening of Tax Consultants office. The bungalow constructed by the plaintiffs husband was not suitable for starting the office of Tax Practitioner as it is at a remote place. It was, therefore, held that the subsequent circumstances have not much relevance and the requirement of the plaintiff was a bona fide and genuine one. As such, the Additional District Judge affirmed the judgment and decree passed by the trial court. It was further held by the learned Additional District Judge that there was no possibility of any hardship being caused to the defendants in case the possession of the suit premises was granted to the plaintiff. The Additional District Judge therefore, dismissed the appeal and affirmed the judgment and decree of the trial court10. Feeling aggrieved the respondent-tenant, Nalin Narsi Vohra filed a writ petition under Article 227 of the Constitution being registered as Writ Petition No. 1689 of 1987 in the High Court of Judicature at Bombay11. The High Court issued a rule on the said writ petition and after hearing the parties and considering the facts and circumstances including the evidences on record, the High Court held that in a petition under Article 227 of the Constitution of India the High Court does not generally interfere with regard to the concurrent findings of facts arrived at by the courts below but in appropriate cases High Court has jurisdiction under Article 227 of the Constitution to consider facts subsequent to the filling of an application for eviction which have a great bearing on the question of bona fide and reasonable requirement of the landlord for a decree for eviction of the suit premises. The High Court has referred to some decisions rendered by this Court in this respect. It has been held by the High Court that the subsequent facts which are relevant and admissible can be taken into consideration by the High Court in order to come to a finding as to the reasonable and bona fide requirement of the landlord for passing a decree of eviction from the suit premises. The High Court has held on a consideration of the additional evidences which have been expressly mentioned in the application for additional evidence stating in detail that plaintiffs husband, Amritlal Mutha after passing of the decree for eviction under Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has acquired a plot being No. 47/1 situated in T.P. Scheme No. III at Ahmednagar. The total area of the plot is 3025 sq. ft. and after getting the permission from the Municipal Council of Ahmednagar, the plaintiffs husband constructed a big bungalow thereon during the pendency of the appeal and has been residing there. The said premises consists of a covered area of 2000 sq. ft. and the plaintiff is using the same for residence and office purpose also. These facts were not properly considered by the lower appellate court while finding about the reasonable and bona fide requirement of the plaintiff in passing a decree of eviction of the defendants from the suit premises. The High Court held that the said bungalow can be conveniently used for the residence of the plaintiff and her family members as well as for the purpose of opening of office of Tax Consultant by her husband. That apart, the entire first floor of the suit premises can be conveniently utilised for opening the office of Tax Consultant by the plaintiffs husband, Amritlal Mutha. The lower appellate court totally failed to consider this aspect of the case. It has, therefore, been held that"... Even otherwise the finding is manifestly so unjust and unsupported by the evidence that its validity cannot be sustained even in this limited field, more so, since there is utter misreading of the evidence and non-application of mind on material features and there is also an error apparent on the face of the record." *12. The High Court, therefore, allowed the writ petition and made the rule absolute and set aside the judgments and decrees made by the courts below13. It is against this judgment and order, the instant appeal on special leave has been filed at the instance of the plaintiff in this court

Reasoning: 15. On this point, both the trial court as well the lower appellate court have concurrently found that the suit premises being part of Survey No. 3576 which was previously owned by one Imarat Company Private Limited from whom the plaintiffs husband Amritlal Mutha purchased for a sum of Rs. 34, 000 was properly described in the plaint and the respondents-defendants have been occupying an area admittedly 20 ft. x 15 ft. being Shop Nos. 81 to 83 on the eastern side of the said premises. This finding of the courts below has neither been challenged before the High Court nor before this Court in the instantIn the instant appeal it has been rightly held by the High Court after considering the subsequent facts and materials brought out by the application for additional evidence that the plaintiff failed to prove reasonable and bona fide need for her occupation of the suit premises for the purpose of opening the Tax Consultancy office of her husband, Amritlal Mutha. Considering the facts and circumstances as well as the subsequent materials brought out by the application for additional evidence, we have no hesitation in our mind to hold that the aforesaid findings arrived at by the High Court is totally unexceptionable and so the same cannot be interfered with in this appeal. It will not be out of place to mention in this connection that Amritlal Mutha, husband of the appellant has stated in the additional affidavit filed in this Court that Dr. Abhey A. Mutha, son of the appellant had purchased a flat on ownership basis in Co-partnership Society, named Amrita Kunj Cooperative Housing Society Ltd. situated at 324/5 Shivaji Nagar, Pune 410 005. This, if taken notice of, will affirm the finding of the High Court that the appellant failed to prove her bona fide and reasonable need for the suit premises for opening the Tax Consultancy office for her husband