Full Judgment Text
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PETITIONER:
GULABBAI
Vs.
RESPONDENT:
NALIN NARSI VOHRA AND ORS.
DATE OF JUDGMENT15/07/1991
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
FATHIMA BEEVI, M. (J)
CITATION:
1991 AIR 1760 1991 SCR (2) 941
1991 SCC (3) 483 JT 1991 (3) 112
1991 SCALE (2)60
ACT:
Bombay Rents, Hotel and Lodging House Rates Control
Act. 1947-Section 12(2) read with Section 12(3)(a) and
Section 13(1)(a)-Eviction of tenants on ground of bona fide
need-Additional evidence brought on record subsequent to
filing of Suit to determine the question of bona fide need-
Held admissible "reasonable requirement"-Element of need-
Necessity for.
HEADNOTE:
The appellant-plaintiff instituted a Regular Civil Suit
in the court of Joint Civil Judge, J.D., Ahmednagar for
vacant possession of the suit property and also for arrears
of rent. It was pleaded by the appellant that the
defendants were in possession of the suit shop on the
monthly rent and the tenancy commenced from the first day of
every month and ended on the last day of the said month
according to English calender. The plaintiff based his suit
primarily on two grounds viz., that the defendants had
committed default in the payment of statutory rent and were
thus defaulters and secondly the appellant required the
premises for bona fide need for setting up an office for her
husband, who is tax consultant. It was asserted by the
plaintiff that the defendants had acquired alternative
business placed both in the vicinity of the suit premises,
being partners of the firms named in the plaint and also
elsewhere and they no longer required the premises. It was
also added that the suit premises remained mostly locked and
no business was carried on there; defendants 1 to 3 having
shifted from Ahmednagar to Pune were doing business there.
The defendants denied the allegations contained in the
plaint, stating that the suit property was in their
possession since last 20 years at the annual rent of
Rs.255.36 ps; that an receipt of the notice they had sent
the rent amounting to Rs.517-92 ps. by Money Order which the
appellant refused being not correctly calculated; then again
the defendants sent Rs.960 by Demand Draft which was also
refused by the appellant as miscalculated. Thereafter the
defendants sent Rs.658.55 ps. by Money Order which was
accepted by the appellant. According to the tenants they
are always to pay the rent and in fact the appellant’s
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husband had been accepting the rent without issuing any
receipt therefore. According to the defendants, the
requirement of the plaintiff was neither bona fide nor
reasonable; her husband, an
942
Income-Tax and Sales/Tax Practitioner was working with Mr.
Gandhi as one of his partners and also having his own
office. Further the plaintiff was in possession of an area
15ft. x 25ft. on the ground floor facing towards west,
adjacent to the suit premises and also complete first
floor 45ft. x 15ft.
The Trial Court held that the defendants failed to prove
that the suit premises were leased to them at annual rent
and as such they were held to be 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
further found that as the plaintiff has no other
accomodation at Ahmednagar except the suit premises and the
partnership of the plaintiff’s husband with with S.B. Gandhi
had been dissolved, the plaintiff reasonably required the
suit premises for the purpose of opening office of her
husband as Tax Consultant. Accordingly the Trial Court
decreed the suit and directed the defendants to hand over
the vacant possession of the suit premises within one month
of the date of order. Being aggrieved, the defendants filed
an appeal before the Additional District Judge, Ahmednagar.
The Additional District Judge, held that the trial court was
right in holding that the defendant No. 1 was paying the
rent monthly and he was a monthly tenant but there were no
arrears for the statutory period in order to hold that the
defendants were defaulters for which their tenancy was
liable to be determined. On the question of bona fide
requirement of the appellant, the Additional District Judge
also considered the application for additional evidence
which disclosed that the plaintiff’s husband had purchased a
plot and constructed a big bungalow covering about 2000 sq.
ft. and held that it was not known whether the Municipality
had given permission for habitation and furthermore the
requirement of the plaintiff was especially for conducting
her husband’s profession of Tax Practitioner at the required
suit premises, which is not for residential purposes. On
this reasoning the Additional District Judge held that the
subsequent circumstances have not much relevance and the
requirement of the plaintiff-appellant was a bona fide and
genuine one. Accordingly he affirmed the decree passed by
the Trial Court.
The Respondent tenant being aggrieved filed a writ
petition under Article 227 of the Constitution praying for
setting aside the decree of ejectment passed against him.
The High Court, on a consideration of the additional
evidences which have been expressly mentioned in the
application for additional evidence, held that the husband
of the appellant had required a plot in T.P. Scheme No. III,
Ahmednagar and constructed a big bungalow thereon during the
pendency of the appeal
943
and has been residing there. The said premises consisted of
a 2000 sq. ft. covered area and the appellant was using the
same for residence and office purpose also. 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 plaintiff’s husband. The High Court
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therefore on that reasoning allowed the writ petition and
set aside the judgments and decrees passed by the Courts
below.
Hence this appeal by the appellant-landlord by special
leave.
Dismissing the appeal, this Court
HELD: The lower Appellate Court, after considering the
evidences held that the defendant are not defaulters as
there were no arrears for the statutory period. Thus, the
question of the default on the part of the defendants in the
payment of rent was not at all raised nor agitated before
the Court of Appeal below by the plaintiff. [952F-G]
It is now beyond the pale of any doubt that in
appropriate cases events subsequent to the filing of the
suit can be taken notice of and can be duly considered
provided the same is relevant in determining the question of
bona fide requirement. The High Court was right in duly
considering the new facts and circumstances that have been
brought to the notice of the Court by the application for
additional evidence filed under Order 41 Rule 27 of the Code
of Civil Procedure. [957H-958A]
In the 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. [958F-G]
The words ‘‘reasonable requirement’’ undoubtedly
postulatethat there must be an element of need desire or
wish.The distinction between desire and need should
doubtless be kept in
944
mind but not so as to make even the genuine need as nothing
that a desire.
M/s. Variety Emporium v.V. R.M. Mohd. Ibrahim Naina, [1985]
2 SCR 102; Chandavarkar Sita Ratna Rao v. Ashalata S. Guram,
[1986] 3 SCR 866; Pasupuleti Venkateswarlu v. The Motor &
General Traders, [1975] 3 SCR 958; Hasmat Rai & Anr. v.
Raghunath Prasad, [1981] 3 SCR 685; Amarjit Singh v. Smt.
Khatoon Quamarain, [1987] 1 SCR 275; and Begum and Ors. v.
Abdul Ahad Khan and Ors., [1979] 2 SCR 1;
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4236 of
1988.
From the Judgment and Order dated 13.4.1988 of the
Bombay High Court in W.P. No. 1689 of 1987.
V.M. Tarkunde, Mrs. Nandini Gore, Ms. Aditi Chaudhary
and Mrs. M. Karanjawala (NP) for the appellant.
Dr. Y.S. Chitale, Shishir Sharma and P.H. Parekh for
the Respondents.
The Judgment of the Court was delivered by
RAY, J. This appeal leave is directed against the
judgment and order passed by the High Court at Bombay in
Writ Petition No. 1689 of 1987 allowing the writ petition,
setting aside the judgment and decree passed by the Trial
Court and affirmed by the lower appellate court and thereby
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dismissing the suit by filed by the plaintiff (appellant in
this appeal) for eviction of the tenant-respondents.
The matrix of the case as appears from the pleadings of
the parties is as follows:
The 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
945
Limited bearing numbers on the front 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 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 eastern side whereas the western part on the
ground floor bearing Nos. 89 to 91 was 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. The defendant Nos. 1
and 4 i.e. Nalin Narsi Vohra and Mulji Narsi Vohra are the
brothers whereas defendant Nos. 2 and 3 are the wife and son
of the defendant No. 1 respectively. According to the
plaintiff, the defendants are in possession of the suit shop
Nos. 81 to 83 and measuring 21ft. x 15ft. on the monthly rent
of Rs. 21.28 ps. plus education cess Rs. 2.55 ps. 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
tenancy is in the name of defendant No. 1 i.e. Nalin Narsi
Vohra and the rent receipts too were in the name of the
defendant No. 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 No. 1 about the said purchase by the plaintiff. It
has been pleaded by the plaintiff that the defendant No. 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. 25000 in order to vacate
the suit premises. It was alleged by the plaintiff that the
defendants were in arrears of rent since 12.8.1975 till
15.12.1977. The plaintiff, therefore, issued a notice dated
15.12.1977 of ejectment and thereby demanded No. 1 after
receipt of the notice sent Rs. 571.92 ps. 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 ps.
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 months.
The plaintiff also stated that her husband, Amritlal
Mutha is a
946
Taxation Consultant and the 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
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open his office. It has also been pleaded in the plaint that
the defendants no longer require the suit premises for the
purpose of business because the defendant Nos. 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 further
pleaded by the plaintiff that the defendants are in
possession of three other business 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 defendant Nos. 1 to 4 are partners in the
shop ‘Liberty Dresses’ which deals with Reddy made garments
and Hosiery. The defendant Nos. 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 12,000. The defendants have removed the middle wall in
between the two properties mentioned above and opened a big
shop and are carrying the business of readymade garments and
woolen 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 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, 1979.
The defendant-respondent Nos. 1 to 4 filed a written
statement exhibit 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 has stated that the suit property
is in their possession since the last 20 years at the annual
rent of Rs. 255.36 ps. They have further stated that the
rent of the suit premises is to be given after every 1 year
which the defendants had been regularly paying to 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 Money Order
which was also refused by the plaintiff. Again, in order to
show their willingness the defendants sent an amount of
947
Rs. 960 by Demand Draft but it was also refused by the
plaintiff. The defendants thereafter have sent Rs. 658.58
ps. which was accepted by the plaintiff on December 27,
1977. Thus, the rent was paid upto 30.11.1977 and again
from 1.12.1977 to 30.9.1978, the defendants paid the rent of
the suit premises to 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 ps. 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 State
tax Practitioner and working with S.B. Gandhi as one of his
partners and also having his own office which is situated in
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Ghas Gali, now called as Shahaji Road on the first floor
and the said premises is suitable for plaintiff’s husband to
open to his office there. The plaintiff is in possession of
area 15 fts. x 25 fts. on the ground floor facing towards
west, adjacent to the suit premises and also complete first
floor 15 fts. x 15 fts. The said area is suitable for
plaintiff’s husband for his office if he so desires. It has
been pleaded by the defendant No. 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 the business of Ready-
made 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 plaintiff’s suit.
On the above pleadings ten issues were framed of which
the relevant issues are:
Issue No. 2 : Whether the plaintiff proves that the
is lawful defaulter in payment of monthly
rent?
Issue No. 3 : Whether the plaintiff proves that she
bona fide requires possession of the
suit premises for the office of her
husband Amritlal?
Issue No. 4 : To whom the greater hardship would be
caused by passing the decree for eviction
than by refusing to pass it?
948
Issue No. 7 : Whether the defendant No. 1 proves that
suit premises were leased to him at
annual rent of Rs. 255.36 ps.?
The Trial Court held with regard to Issue No. that at
the time of purchases there was ground floor and first floor
to the suit premises. The defendant 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 plaintiff’s husband,
Kanhyalal Mutha were he had been running a provision store
since the last 13 years. The family of Amritlal Mutha, i.e.
husband of the plaintiff considered 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 bed room towards west admeasuring 7 fts.
x 12 fts. and next room kitchen admeasuring 7 fts. x 11 fts.
and 3rd room admeasuring 7 fts. x 11 fts. which is used for
the studies of the children. One other room admeasuring 15
fts. x 15 fts. was used as a bed room. It has been found
that first floor premises is not sufficient for his office
purposes because he requires at least 25 fts. x 30 fts. 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 plaintiff’s husband for opening his office as
Kanhyalal Mutha, brother of the plaintiff’s 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 Kanyalal 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 plaintiff’s husband with S.B. Gnadhi has
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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 the
defendant No. 1 was in possession of a number of premises
which are near the suit premises and the 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 the defendant No. 1 was shown as
partner in the firm M/s Vohra and Company, 94/97 Budhwar
Peth, Pune 2, and the residence of defendant No. 1 is known
as Krishnakripa, Mukund Nagar, Pune-9 where the suit summons
were served on the defendant No. 1. It was
949
also found that it was evident from exhibit 105 that the son
of defendant No. 1 and wife of son of defendant No. 1 are
the partners in M/s Ashok and Company and both are residing
at 7/3-C-Vanshree Apartment, Rambag Colony, Sadashiv peth.
It has also been found that the defendant No. 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
affirmative.
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 plaintiff’s 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
plaint.
As regards Issue Nos. 2 and 7 it was held that the
defendant No. 1 is a monthly tenant and the monthly rent in
respect of such premises is Rs. 21.28 ps. plus education
cess Rs. 2.55 ps. i.e. Rs. 23.83 ps. 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 order.
Against the said Judgment and decree, the defendant No.
1 Nalin Narsi Vohra filed an appeal being Regular Civil
Appeal No. 430 of 1985 in the court of Addl. Distt. Judge,
Ahmednagar, The learned Additional District Judge held that
the Trial Court was right in holding that the defendant No.
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 be
determined. As such the Addl. District Judge found against
the plaintiff holding that the defendants
950
had not defaulted in payment of rent and there could not be
any decree of ejectment on this ground. The learned Addl.
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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
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 Addled. District Judge
also considered the application for additional evidence
which disclosed that the plaintiff’s 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 Addl. 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 husband’s
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 Consultant’s office. The
bungalow constructed by the plaintiff’s 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 Addl. District Judge
therefore, dismissed the appeal and affirmed the judgment
and decree of the Trial Court.
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 Bombay.
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
951
arrived at by the courts below but in appropriate cases the
High Court has jurisdiction under Article 227 of the
Constitution to consider facts subsequent to the filing 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 of the subsequent facts which are relevant and
admissible can be taken into considerations 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 the plaintiff’s husband,
Amritlal Mutha after passing of the decree for eviction
under section 13(1)(a) of the Bombay Rents. Hotel and
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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 plaintiff’s husband constructed a big
bungalow thereon during the pendency of the appeal and had
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 plaintiff’s 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 mis-reading of
the evidence and non-application of mind on
material features and there is also an error
apparent on the face of the record.’’
The High Court, therefore, allowed the writ petition and
made the rule absolute and set aside the judgments and
decrees made by the courts below.
952
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.
Three question were raised before the courts below. The
first question was whether the suit property was properly
described in the plaint or not.
On this point, both the Trial Court as well as 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
plaintiff’s 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 20fts. x 15fts. 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 instant appeal.
The next point that was urged by the plaintiff in the
courts below was that on the ground of default in payment of
arrears of rent the defendant No. 1 was liable to be ejected
from the suit premises in accordance with the provisions
of Section 12(2) read with Section 12(3)(a) of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947
hereinafter to be referred in short as the said Act. On this
point, the Trial Court held that:
‘‘...... the defendant by depositing rent for the
first time on 8.6.80, for the period 1.10.78 to
31.12.80 committed breach of above mentioned ruling
and is defaulter within the meaning of Section
12(3)(a) and 12(3)(b) of the Rent Act.’’
The lower Appellate Court, however, after considering
the evidences held that the defendant are not defaulters as
there were no arrears for the statutory period. Thus, the
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question of default on the part of the defendants in the
payment of rent was not at all raised nor agitated before
the Court of Appeal below by the plaintiff.
The only question that was agitated with great
vehemence by the learned counsel on behalf of the appellant
is about the finding arrived at by the High Court to the
effect that there was no reasonable bona fide requirement
for the plaintiff-appellant to obtain a decree for eviction
of the defendants-respondents from the suit premises for the
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purpose of opening of office of Tax Consultant by the
appellant’s husband, Amritlal Mutha on the ground floor of
the said premises. Mr. Tarkunde, learned counsel appearing
in support of the case of the appellant has with great
vehemence urged before us that the bungalow that has been
constructed by the appellant’s husband within Ahmednagar
Municipal area is at a distance of about 1-2 Kms. from the
suit premises whereas the suit premises is situated in the
Kapad Bazar area where the traders have their shops and
establishments and as such the ejectment of the respondents
from the suit premises was necessary for opening the office
of Tax Consultancy in the suit premises by the husband of
the appellant. It has been further urged in this connection
by Mr. Tarkunde that the bungalow that has been constructed
and comprises of a covered area of 2000 sq. ft. is entirely
necessary for occupation of the appellant’s eldest son,
Abhey Amritlal Mutha who passed MBBS in 1988 and obtained
certificate of registration. It has also been submitted in
this connection that permission to start dispensary and
consulting clinic/residence in the said premises has been
obtained from the Town Planner and Chief Officer, Ahmednagar
Municipal Council. It has also been urged with great
vehemence by Shri Tarkunde that the respondent has not been
residing at all in Ahmednagar but has shifted to Pune as
will be evident from the fact that the summons of the suit
were served on the respondent No. 1 at his residence at
Krishnakripa, Galli No. 3, 3rd Floor, Mukund Nagar, Pune-
411009. It has been further stated that the respondent No.
1, Nalin Narsi Vohra has started a business under the name
and style of M/s Vohra and Company since February, 94/97,
Budhwar Peth, Pune-2. It is a partnership firm business and
the partners, are Nalin Narsi Vohra, Krishnakripa, Mukand
Nagar, Pune-9 and Mrs. Bhanu Ashok Vora, 41/166, Lokamanya
Nagar, Pune-30. This business has been started since July,
1979 as per the partnership deed and the copy of the
register of firms. It has also been stated that the
respondent No. 1, Ashok Nalin also started a business of
machine tools known as M/s Ashok & Company at 94/97, Budhwar
Peth, Pune-2 vide partnership deed dated 12.2.1982. It has
further been urged on behalf of the appellant tha the suit
premises remained under lock and key for about ten years and
no business was transacted in the said premises. It has
also been urged in this connection that besides the suit
premises the respondents purchased the Municipal Premises
No. 2733/6 and has been running ‘Madura Stores’ for selling
ready-made garments. In 1972, the respondent No. 1 Nalin
Narsi Vohra and his brother, respondent No. 4, Mulji Narsi
Vohra jointly purchased the ownership rights from Imarat
Company Pvt. ltd. the premises No. 733/9 and open ‘Liberty
Dresses’ therein for sale of
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hosiery goods. Similarly the respondent No. 1 also
purchased another premises opposite to Kohinoor Cloth Store
and after removing the wall in between two shops, has been
running the business of ready made garments known as ‘Madura
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Stores’. It has, therefore, been contended that the suit
premises being closed for a period of ten years and no
business being carried on there, the appellant is entitled
to get decree of ejectment of the respondents from the suit
premises under the provisions of the said Act.
The contention that the respondents kept the suit
premises under lock and key for about ten years
without opening the shop, running the business of
ready-made garments therein, has not at all been
proved by any evidence whatsoever as has been held
by the High Court. Therefore, this contention is
wholly untenable. Moreover the ground of ejectment
of the ground of non-payment of rent for over six
months under Section 12(2) and 12(3)(a) of the
Bombay Rent Act has not been mentioned in the
eviction suit nor any issue was framed on this
score.
It has been on the other hand contended by the learned
counsel appearing on behalf of the respondents that the
submissions made in the application for additional evidence
bring further materials before the lower appellate court on
the question that the appellant has alternative
accommodation and as such she did not reasonably and bona
fide require the suit premises for the opening of the office
of Tax Consultant for her husband, Amritalal Mutha therein.
It is convenient to note in this connection that the
statements as well as the subsequent facts that have been
brought to the notice of the court by the application for
additional evidence under Order 41, Rule 27 of the Code of
Civil Procedure and filed before the lower appellate court
have not been controverted at all. As such, the appellant
or her husband, Amritlal Mutha did not deny those subsequent
facts brought before the court by the said application. The
lower appellate court that admitted the application for
additional evidence failed to consider at all the fact that
a very specious bungalow comprising of about 2000 sq. ft.
covered area had already been built within the Ahmednagar
Municipal Area by the plaintiff’s husband, Amritlal Mutha.
After purchasing the plot and constructing the bungalow
during the pendency of the appeal before the lower appellate
court, the appellant with the members of her family had been
residing there and the husband of the appellant had started
the office of Tax Consultancy in that bungalow. The lower
appellate court merely by-passed this relevant fact on the
plea that that bungalow is at a distance from the Kapad
Bazar area where the shops
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of the traders are situated. The lower appellate court also
did not at all consider whether the first floor of the suit
premises as well as the second floor which though claimed to
be a shed, could be conveniently utilised for the purpose of
the said Tax Consultancy Office. The lower appellate Court
simply considered that the second floor being a
temporary shed could not properly be used for
opening the Tax Consultancy Office and the first
floor which consisted of 4 rooms of which 2 are
used as bed rooms and 1 is used as a kitchen and 1
as study room of the sons of the appellant, cannot
be conveniently utilised for the said office as
there was no space for the same without considering
at all that the appellant with members of his
family had been residing already in the spacious
bungalow referred to hereinbefore. It has been
urged with great vehemence on behalf of the
appellant that both the Trial Court as well as the
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Lower Appellate Court having found that the
appellant reasonably and bona fide required the
suit premises for the opening of the office of Tax
Consultant of the appellant’s husband, Amritlal
Mutha, the decree of eviction of the suit premises
should not have been set aside by the High Court
under Article 227 of the Constitution by taking
into consideration subsequent facts and evidences.
This submission, in our considered opinion, is
without any substance and same is to be rejected.
Reference may be made in this connection to the
decision in the case of M/s Variety Emporium v.
V.R.M. Mohd. Ibrahim Naina, [1985] 2 SCR 102
wherein it has been observed that:
"No authority is needed for the proposition that,
in appropriate cases, the Court must have regard to
events as they present themselves at the time when
it is hearing the proceeding before it and mould
the relief in the list of those events. We may,
however, draw attention to a decision of this Court
in Hasmat Rai v. Raghunath Prasad, [1981] 3 SCR 605
the ratio of which may be stated thus:
When an action is brought by a landlord for the
eviction of a tenant on the ground of personal
requirements, the landlord’s need must not only be
shown to exist at the date of the suit, but it must
exist on the date of the appellate decree, or the
date when a higher Court deals with the matter.
During the progress and passage of proceedings from
court to court, if subsequent events occur which,
if noticed, would non-suit the landlord, the court
has to examine and evaluate those events and mould
the decree accordingly. The tenant is entitled to
show that the need or requirement of the landlord
no more exists by pointing out such subse-
956
quent events, to the court, including the appellate
court. In such a situation, it would be incorrect
to say that as a decree or order for eviction is
passed against the tenant, he cannot invite the
Court to take into consideration subsequent events.
The tenant can be precluded from so contending only
when 3 decree or order for eviction has become
final. (Pages 606-607).
Justice R.S. Pathak, who concurree with Justice
D.A. Desai and Justice Venkataramiah, expressed the
same view thus:
It is well settled now that in a proceeding for the
ejectment of a tenant on the ground of personal
requirement under a statute controlling the
eviction of tenants, unless the statute prescribes
to the contrary, the requirement must continue to
exist on the date when the proceeding is finally
disposed of either in appeal or revision, by the
relevant authority. That position is indisputable.
(Page 624).
In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram,
[1986] 3 SCR 866 it has been observed that:
"In exercise of jurisdiction under Article 227 of
the Constitution, the High Court can go into the
question of facts or look into the evidence if
justice so requires it. But it should decline to
exercise that jurisdiction in the absence of clear
cut down reasons where the question depends upon
the appreciation of evidence. It also should not
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interfere with a finding within the jurisdiction of
the inferior tribunal or court except where the
finding is perverse in law in the sense that no
reasonable person properly instructed in law could
have come to such a finding or there is any
misdirection in law or a view of fact has been
taken in the teeth of preponderance of evidence or
the finding is not based on any material evidence
or it has resulted in manifest injustice. Except
to that limited extent the High Court has no
jurisdiction."
In Pasupuleti Venkateswarlu v. The Motor & General
Traders, [1975] 3 SCR 958 it has been observed by this Court
that:
"For making the right or remedy, claimed by the
party just
957
and meaningful as also legally and factually in
accord with the current realities, the court can,
and in many cases must, take cautious cognizance of
events and development subsequent tot he
institution of the proceeding provided the rules of
fairness to both sides are scrupulously obeyed. On
both occasions the High Court, in revision,
correctly took this view. The later recovery of
another accommodation by the landlord, during the
pendency of the case, has as the High Court twice
pointed out, a material bearing on the right to
evict, in view of the inhibition written into s.
10(3)(iii) itself. The High Court was right in
taking into consideration the facts which came into
being subsequent to the commencement of the
proceedings."
Similar observation has been made in Hasmat Rai & Anr.
v. Raghunath Prasad, [1981] 3 SCR 685.
"It is immaterial that the amendment was sought
more than three years after possession of the
portion had passed to the respondent. The High
Court was bound to take the fact into consideration
because, as is well settled now, in a proceeding
for the ejectment of a tenant on the ground of
personal requirement under a statute controlling
the eviction of tenants, unless the statute
prescribes to the contrary the requirement must
continue to exist on the date when the proceeding
is finally disposed of either in appeal or
revision, by the relevant authority. The position,
to my mind, is indisputable. The High Court should
have allowed the amendment."
In Amarjit Singh v. Smt. Khatoon Quamarain, [1987] 1
SCR 275 it has been observed by this Court that:
"Administration of justice demands that any changes
either in fact or in law must be taken cognizance
of by the Court but that must be done in a cautious
manner of relevant facts. Therefore, subsequent
events can be taken cognizance of if they are
relevant and materiel."
On a conspectus of all these decisions rendered by this
Court, it is now beyond the pale of any doubt that in
appropriate cases events subsequent to the filing of the
suit can be taken notice of and can be duly considered
provided the same is relevant in determining the sues-
958
tion of bona fide requirement. Therefore, the High Court
was right in duly considering the new facts and
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circumstances that have been brought to the notice of the
Court by the application for additional evidence filed under
Order 41 Rule 27 of the Code of Civil Procedure and in
coming to a firm finding that the plaintiff-appellant having
constructed a spacious bungalow where she with the members
of her family had been residing, there is no reasonable and
bona fide requirement for the plaintiff to get a decree of
ejectment of the defendants from the suit premises in as
much as the first floor of the suit premises as well as the
second floor could be conveniently used for opening the
office of Tax Consultancy of plaintiff’s husband who
previously worked with one Mr. Gandhi in a partnership firm
which partnership had been dissolved after Mr. Gandhi’s son
came to practice with his father.
It is also relevant to consider in this connection the
observations of this Court in Bega Begum and Ors. v. Abdul
Ahad Khan and Ors., [1979] 2 SCR 1 as regards the meaning of
the words ‘reasonable requirement and own occupation’ as
used in Section 11(h) of the Jammu and Kashmir Houses and
Shops Rent Control Act, 1966. It has been held that the
words ‘reasonable requirement undoubtedly postulate that
there must be an element of need as opposed to a mere desire
or wish. The distinction between desire and need should
doubtless be kept in mind but not so as to make even the
genuine need as nothing but a desire.
In 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 opining 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-410005. This, if taken notice of, will affirm
the finding of the High Court that the appellant failed to
prove her bona fide and reason-
959
able need for the suit premises for opening the Tax
Consultancy Office for her husband.
Besides the contentions referred to hereinbefore, no
other contention has been advanced before this Court.
Therefore, this appeal fails and is hereby dismissed. The
judgment and order of the High Court is upheld. In the
facts and circumstances of the case, the parties will bear
their own costs.
Y.Llal Appeal failed.
960