Full Judgment Text
2019:BHC-AS:26920
Vina khadpe sr.2.wp.6877.2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6877 OF 2016
1.Shri.Udayan Vinayak Modak
2.Miss Gargi Udayan Modak
Both residing at CTS No.759/63
Ganesh Sadan, Prabhat Road,
Deccan Gymkhana, Pune 411 004
…Petitioners
Versus
1. Miss Madhavi Chandrashekhar Kale
rd
R/at. Flat No.6, 3 floor, 525, Narayan
Peth,
Vishwakumud, Near Modi Ganpati,
Pune 411 030
…Respondents
2. Mr.Anil Chandrashekhar Kale
At Sungauri Society, C-11,
Kumbre Township, Kothrud,
Pune 411 029
3. Mrs.Neha Chakradev
Sangameshwar College, Sat Rasta,
Chowk, Solapur.
4. Miss Nivedita Chandrashekhar Kale
rd
R/at. Flat No.6, 3 Floor,
525, Narayan Peth, Vishwakumud,
Near Modi Ganpati, Pune 411 030.
----------
Mr.A. V. Anturkar, Senior Advocate i/b. Mr.Prathamesh Bhargude
and Mr.Ajinkya Udane for the for the petitioners.
Mr.S.M. Gorwadkar, Senior Advocate i/b. Mr.Mankirat Singh
Chhabra for respondent nos.1, 2 and 4.
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CORAM : DAMA SESHADRI NAIDU, J.
th
RESERVED ON : 15 JULY 2019.
th
PRONOUNCED ON: 6 September 2019.
JUDGMENT :
Introduction:
The landlord seeks eviction of his tenants; they resist. The
matter goes to Court. The trial Court and the Appellate Court
concurrently hold that the landlord has failed to establish his bona
fide requirements. Aggrieved, the landlord invokes Article 227 of
the Constitution of India and files a writ petition. The question is,
what is the High Court’s adjudicatory ambit under Article 227 to
upset the concurrent rulings of the fact-finding courts?
Facts:
2. The pleadings, as set out by the landlord, present a
poignant picture; so too are the arguments, as advanced by the
learned Senior Counsel for him: argumentum ad hominem. That
said, I am afraid emotional elements may not affect the cold letter
of law, nor do they alter the facts—as concurrently approved.
3. Let us refer to the facts only as required for our
adjudicating this writ petition under this Court's supervisory
powers. Mrs. Vrushali, alias Yogini Udayan Modak, was the
landlady; she had that property bequeathed to her by her father.
During her lifetime, she filed Civil Suit No.396 of 2007. She
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wanted to evict four tenants on the grounds of arrears of rent and
st th
bona fide requirement. The 1 and 4 tenants are sisters; they
alone contested the suit. The second and the third defendants,
said to be the other tenants, filed written statement but did not
contest the case. They seemed uninterested. In fact, they are not
living in the leased property.
4. In the suit, late Vrushali pleaded that she wanted the
property now under lease—that is, three rooms out of six and the
ground floor—for her bona fide requirement. In that context, she
pleaded that she had been suffering from epilepsy, that her
daughter has been mentally disabled, and that her daughter
needed personal care. Pending the suit, she died and her husband,
Udayan, succeeded to the estate and continued the suit
proceedings.
5. After suffering concurrent adverse findings as mentioned
already, Shri Udayan has taken the matter to this Court in revision.
Submissions:
Petitioner:
6. In the above factual context, Shri Anil Anturkar, the
learned Senior Counsel, has submitted that Udayan's wife, the
original plaintiff-landlady died of epilepsy. So Udayan no longer
pleads about the bona fide requirement on her part. Fair is the
submission.
7. Shri Anturkar has also submitted that Udayan, a widower,
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could not, by himself, care for his grown-up daughter. She was in
the teens when her mother filed the suit and, now, is in her mid-
twenties when her father is continuing the case. Shri Antukar has
elaborately described the disability Udayan's daughter has been
suffering from: her state of mind, her inability to take care of
herself, and her dependence on others round the clock. Then, he
has submitted that under those critical circumstances, Udayan has
engaged a full-time maid to take care of his daughter. Because the
maid must take care of his daughter, Udayan has allowed her to
stay in the house. Thus, she has been provided with board and
lodging, too. And this has required additional accommodation,
besides an exclusive place of privacy for his disabled daughter.
8. Taking me through the record, Shri Anturkar has
described the property in detail. According to the learned Senior
Counsel, on the ground floor, three rooms are in Udayan's
possession and three in the tenants’ possession. The leased
property does not have any attached bathrooms. According to
him, as the property in question is a bungalow, it has an outhouse
comprising 4 rooms. And that outhouse has bathroom and WC,
which are commonly used by the respondents-tenants and also by
the tenants living in two of those four rooms in the outhouse.
9. To elaborate, Shri Anturkar has submitted that now
Udayan lives in one room and his grown-up daughter in another.
And the remaining room is converted into a drawing room.
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Though the maid, who has now become a de facto mother, could
not have proper accommodation. According to Shri Anturkar, the
maid cannot share the room allotted to Udayan’s daughter. For
given her mental condition, she needs privacy. And that compels
Udayan to arrange separate accommodation for the maid.
10. The learned Senior Counsel has also submitted that
despite the tenants’ disentitlement to continue in possession,
Udayan has never intended to throw them out summarily. Instead,
as an alternative, Udayan has submitted both before the courts
below and, now, here that they could be given alternative
accommodation, that is the remaining two rooms in the outhouse.
To justify this proposal, Shri Anturkar underlines the fact that
both the tenants are living single (unmarried) and one of them has
already retired from service.
11. Eventually, Shri Anturkar has taken me through the
judgment of the trial Court as well as that of the Appellate Court.
In that context, he has submitted that both the courts have failed
to consider vital aspects of the case. They have entirely ignored,
Shri Anturkar stresses, the relevant hardship the landlord has been
put to.
12. He has also submitted that though the maid not well
st
converse in legal intrinsic, deposed that the 1 floor has been in
Udayan's possession, referred, in fact, to falsify that deposition to
that extend Shri Anturkar has submitted that Udayan's father-in-
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st
law, the original owner, in fact, bequeathed the 1 floor to his close
relative through Will, which is already a part of the record and
which stands admitted even by defendants. Thus, once, the third
party has title and possession of the property the question of Shri
Udayan's being in possession of the floor is ex facie false.
13. Faced with the problem of inviting a fresh adjudication
on facts in a revision, Shri Anturkar has relied on Raghunath G.
1
Panhale (dead) by Lrs v. Chaganlala Sundarji and Co. According
to him, even into concurrent findings of facts there can be a relook
if the findings are absolutely wrong in law and perverse on facts.
st
14. Shri Anturkar has submitted that the 1 defendant has
her own flat, so she would not be rendered homeless if the Court
were to believe in Udayan's bona fide requirements. It has also
nd
come in evidence that the 2 respondent is using the leased
property as a lawyer for her profession.
Respondents:
15. In response, Shri Gorwadkar, the learned Senior
Counsel for the respondents, has submitted, at the outset, that
indeed the outhouse has a separate room or two, but they are
unlivable as per the evidence placed on record through one of
Udayan’s witnesses. In that context, he has submitted that a bona
fide requirement must be viewed in the backdrop of reasonable
need.
16. The Courts below, according to Shri Gorwadkar, on the
1
(1999) 8 SCC 1
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appreciation of facts found that Udayan has sufficient
accommodation to comfortably accommodate his entire family—
that is, he himself, his daughter, and his domestic assistant. About
the first floor, said to be in possession of the legatee under the
Will, Shri Gorwardkar has drawn my attention to the maid's
deposition in which she has, according to him, categorically
admitted that it has been in Udayan’s exclusive possession. About
the veracity of the maid’s statement, Shri Gorwadkar has
submitted that on the one hand Udayan maintains that the maid is
the de facto mother and needs separate room for herself. But on
the other hand, he wants the courts to treat her only as a maid who
knows nothing.
17. About the alternative accommodation, Shri Gorwadkar
has submitted that in response to the offer made by Shri Udayan,
the tenants have filed a detailed reply in which they have stated
about the physical condition of that particular outhouse, especially
two rooms, now, offered, he has, then elaborated the actual state of
the rooms. In that context, once again, Shri Gorwadkar has drawn
my attention to the deposition of Doctor who is said to have using
the said rooms once in a week as his clinic.
st
18. In the end, Shri Gorwadkar has submitted that 1
defendant has a flat, which he does not use for residential purpose,
nd
but for the professional purpose by the other defendant i.e. the 2
defendant.
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19. Heard Shri Anil Anturkar, the learned Senior Counsel
for the petitioner, and Shri Gorwadkar, the learned counsel for the
respondents.
Discussion:
Bona Fide and Reasonable Requirement:
20. The question is that of bona fide requirement. And it
takes into its fold the comparative convenience or inconvenience.
And it is essentially a question of facts and the factual evaluation.
When the trial Court decided the case, Vrushali, the original
owner was alive; pending appeal, she died. Udayan, her husband
came into picture. Udayan fairly concedes that one facet of the
personal need has disappeared with his wife’s death, but the other
facet remains: his daughter’s growing needs, which include his
providing board and lodging to Shobha, the maid or personal
assistant who takes care of Udayan’s daughter.
21. In the suit, too, it is Udayan, who deposed as PW1. He
has deposed that his wife, being the only daughter, had the suit
rd
property bequeathed to her through a Will, dated 3 March 2001.
But her father willed away the first floor to someone else: his
nephew. That nephew is said to be in possession of the first floor.
So the bone of contention is the ground floor. The outhouse is
only a collateral issue in this episode. He has deposed in his
evidence that he is “in possession of three rooms, kitchen and
veranda, along with toilet bathroom. [He is] also in possession of
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Kotha/store room admeasuring 5x10 ft.”
22. Indeed, the plaintiff examined her full-time attendant
Sulabha Malore as P.W.5. She has admitted in her cross
examination that no tenant resides on the first floor of the
property. The entire first floor is in Udayan’s possession. Based on
the evidence, the trial Court has held that “there is no doubt about
bona fide need of plaintiff, but the evidence on record shows that
there is more than sufficient premises available with the plaintiff.”
23. About the evidence of P.W.5, Shri Anturker contends
that the Will executed by Udayan’s father-in-law stands admitted.
For the first floor, there is a lawful legatee and, now, owner.
Therefore, the inarticulate maid’s testimony contrary to the record
is of no consequence. Attractive is the submission, but it fails
judicial muster. P.W.5, the maid may not know anything about the
bequeathment. But she does know who is in possession of the
property. Title is an aspect of law and one may need to be
articulate to know about it; possession is an aspect of fact and one
may be inarticulate and still know about it. May be the witness’s
inarticulate attitude made her a more credible witness of all.
24. On appeal, the District Court has noted that Udayan has
another residential property and that he has not spelt out how it is
inconvenient for him to live there. But it also accepts that it is for
the landlord to decide which property he must live in. So it does
not pursue that issue further. It nevertheless notes that there reside
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only three persons in Udayan’s house: he himself, his daughter,
and the assistant. And he has three rooms and veranda, besides
W.C. The Appellate Bench finds that a portion of the outhouse in
which earlier a tenant, Sabnis, was living, is now vacant. That can
be used for the domestic assistant. That said, Udayan contends
that the domestic assistant must live close by, for his daughter
needs her any time.
25. For the plaintiffs, Dr. Rangnekar got himself examined
as PW-3. The doctor deposed that he has been treating Udayan’s
daughter. She is said to be a slow learner, and “some person is
constantly required to keep a watch and take care of her
particularly being a female child aged 17 years (then)” He says
Udayan is running an ayurvedic massage centre in the outhouse,
where he is permitted to run his clinic once in a week. The
Appellate Bench concludes that Udayan could use this outhouse to
accommodate his domestic assistant. The Appellate Bench
disbelieves Udayan and concludes that “there lies the falsity in the
contention of plaintiffs that they require the suit premises bona
fide and reasonably.”
26. In the outhouse, there are four rooms. In two rooms,
one tenant resides. The remaining two rooms are vacant. So the
District Court in appeal has concluded that Udayan is not only in
possession of three rooms and veranda on the grounds floor but
also in possession of two more rooms in the outhouse. The District
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Court, it seems, has mistaken the outhouse as the ground floor.
27. The District Court, the final court of fact, has held that
the plaintiff’s need “is certainly not bona fide and reasonable. In
the event of the decree of eviction in favour of plaintiffs,
defendants nos. 1 and 4 will be certainly put to greater hardship
because they are not having any residential accommodation in the
locality or elsewhere.”
Alternative Accommodation:
28. Udayan maintains that he has never intended to throw
the two tenants out. He wants to provide them an alternative
accommodation, that is the remaining two rooms in the outhouse.
According to Udayan, both the tenants have been living single
(unmarried) and one of them has already retired from service.
29. The tenants, on the other hand, maintain that the
outhouse is used as a makeshift Ayurveda massage center, and a
doctor has his clinic, too. Besides, they stress it is entirely unfit as
living accommodation, more particularly for women.
30. The contesting tenants, the sisters, have filed an
additional affidavit to counter Udayan’s offer of alternative
accommodation to them. They first contend that what Udayan
calls a verandah is a full-fledged room. They then contend that
they have no access to bathroom and toilet in the main building.
So they were using the one attached to the outhouse. It was used
along with the other tenants in the two of the four rooms. Once
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Udayan lost the case in the trial Court, he allowed Apte, the tenant
in the outhouse, to convert the bathroom into an extra room. So
he demolished the wall on one side, fixed a door, and made it a
part of his tenement. So now only the toilet remains. The two
women are taking their bath in the “tiny mori in the kitchen.”
They also state that the outhouse has no mezzanine floor. That
apart, it has a loft having just less than three feet height slanting
roof from one side.
31. At any rate, P.W. 3 has deposed in his evidence-in-chief
that “the outhouse is an old structure have tiled roof and is in
dilapidated condition, which is not suitable for residence.”
32. All is said and done, dispute is entirely factual and has
been concurrently decided against the landlord. But before
parting, we must address one more issue. Can this Court, under
Article 227 of the Constitution of India, interfere with concurrent
findings of fact in a tenancy dispute? Shri Anturkar maintains the
answer as an “yes.” So he cites Raghunath G. Panhale. Let us
examine it.
33. The original landlord filed a suit for eviction on the
grounds of bona fide and reasonable requirement. The
respondent-tenant resisted it. Pending the suit, the original
plaintiff died; his heirs were brought on record. They amended the
pleadings. The third legal representative pleaded that he wanted
the leased property to start grocery business. In that context, he
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stated that he was working in Metal box. Co., that there was a lock-
out in that company, that he was finding it difficult to maintain his
family, and that he wanted to improve his livelihood by starting
grocery business.
34. The trial Court held that on the original landlord’s
death, the suit abated. On merits, the trial Court held that there
was no proof of lock-out, no proof of capital available for
investment, no proof of preparations for business, and no proof of
the third appellant’s having experience in grocery business. It
further held that the lockout did not put the appellant out of his
job permanently; the appellant had not resigned his job. therefore,
the requirement was not bona fide. The lower appellate Court
confirmed the finding on the question of bona fide requirement
but reversed the finding as to abatement. The appellate Court gave
a finding that the tenant had got three other shops. The appeal was
dismissed. The High Court, too, seems to have accepted the
verdict of the courts below. The landlords came up in appeal to the
Supreme Court.
35. Raghunath G. Panhale has held that the word
'reasonable' connotes that the requirement or need is not fanciful
or unreasonable. It cannot be a mere desire. The word
'requirement' coupled with the word ‘reasonable’ means that it
must be something more than a mere desire but need not certainly
be a compelling or absolute or dire necessity. The language of the
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provision, it is held, cannot be unduly stretched or strained as to
make it impossible or extremely difficult for the landlord to get
possession. Raghunath G. Panhale warns that if more limitations
are imposed upon the landlord holding property, it would expose
itself to the vice of unconstitutionality.
36. In the end, Raghunath G. Panhale has observed that
“unfortunately the High Court simply dismissed the writ petition
filed under Article 227 stating that the findings were one of fact.
That is why we think that this is an exceptional case calling for
interference under Article 136 of the Constitution of India.”
37. Indeed, resounding is the judicial assertion, but here the
courts below have evaluated the comparative hardship. And this
Court, too, has gone an extra mile in reappreciating the facts. Yet
the outcome remained the same. So I cannot but hold that this
Writ Petition has failed.
Accordingly, I dismiss the writ petition. No order on costs.
[DAMA SESHADRI NAIDU, J.]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6877 OF 2016
1.Shri.Udayan Vinayak Modak
2.Miss Gargi Udayan Modak
Both residing at CTS No.759/63
Ganesh Sadan, Prabhat Road,
Deccan Gymkhana, Pune 411 004
…Petitioners
Versus
1. Miss Madhavi Chandrashekhar Kale
rd
R/at. Flat No.6, 3 floor, 525, Narayan
Peth,
Vishwakumud, Near Modi Ganpati,
Pune 411 030
…Respondents
2. Mr.Anil Chandrashekhar Kale
At Sungauri Society, C-11,
Kumbre Township, Kothrud,
Pune 411 029
3. Mrs.Neha Chakradev
Sangameshwar College, Sat Rasta,
Chowk, Solapur.
4. Miss Nivedita Chandrashekhar Kale
rd
R/at. Flat No.6, 3 Floor,
525, Narayan Peth, Vishwakumud,
Near Modi Ganpati, Pune 411 030.
----------
Mr.A. V. Anturkar, Senior Advocate i/b. Mr.Prathamesh Bhargude
and Mr.Ajinkya Udane for the for the petitioners.
Mr.S.M. Gorwadkar, Senior Advocate i/b. Mr.Mankirat Singh
Chhabra for respondent nos.1, 2 and 4.
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CORAM : DAMA SESHADRI NAIDU, J.
th
RESERVED ON : 15 JULY 2019.
th
PRONOUNCED ON: 6 September 2019.
JUDGMENT :
Introduction:
The landlord seeks eviction of his tenants; they resist. The
matter goes to Court. The trial Court and the Appellate Court
concurrently hold that the landlord has failed to establish his bona
fide requirements. Aggrieved, the landlord invokes Article 227 of
the Constitution of India and files a writ petition. The question is,
what is the High Court’s adjudicatory ambit under Article 227 to
upset the concurrent rulings of the fact-finding courts?
Facts:
2. The pleadings, as set out by the landlord, present a
poignant picture; so too are the arguments, as advanced by the
learned Senior Counsel for him: argumentum ad hominem. That
said, I am afraid emotional elements may not affect the cold letter
of law, nor do they alter the facts—as concurrently approved.
3. Let us refer to the facts only as required for our
adjudicating this writ petition under this Court's supervisory
powers. Mrs. Vrushali, alias Yogini Udayan Modak, was the
landlady; she had that property bequeathed to her by her father.
During her lifetime, she filed Civil Suit No.396 of 2007. She
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wanted to evict four tenants on the grounds of arrears of rent and
st th
bona fide requirement. The 1 and 4 tenants are sisters; they
alone contested the suit. The second and the third defendants,
said to be the other tenants, filed written statement but did not
contest the case. They seemed uninterested. In fact, they are not
living in the leased property.
4. In the suit, late Vrushali pleaded that she wanted the
property now under lease—that is, three rooms out of six and the
ground floor—for her bona fide requirement. In that context, she
pleaded that she had been suffering from epilepsy, that her
daughter has been mentally disabled, and that her daughter
needed personal care. Pending the suit, she died and her husband,
Udayan, succeeded to the estate and continued the suit
proceedings.
5. After suffering concurrent adverse findings as mentioned
already, Shri Udayan has taken the matter to this Court in revision.
Submissions:
Petitioner:
6. In the above factual context, Shri Anil Anturkar, the
learned Senior Counsel, has submitted that Udayan's wife, the
original plaintiff-landlady died of epilepsy. So Udayan no longer
pleads about the bona fide requirement on her part. Fair is the
submission.
7. Shri Anturkar has also submitted that Udayan, a widower,
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could not, by himself, care for his grown-up daughter. She was in
the teens when her mother filed the suit and, now, is in her mid-
twenties when her father is continuing the case. Shri Antukar has
elaborately described the disability Udayan's daughter has been
suffering from: her state of mind, her inability to take care of
herself, and her dependence on others round the clock. Then, he
has submitted that under those critical circumstances, Udayan has
engaged a full-time maid to take care of his daughter. Because the
maid must take care of his daughter, Udayan has allowed her to
stay in the house. Thus, she has been provided with board and
lodging, too. And this has required additional accommodation,
besides an exclusive place of privacy for his disabled daughter.
8. Taking me through the record, Shri Anturkar has
described the property in detail. According to the learned Senior
Counsel, on the ground floor, three rooms are in Udayan's
possession and three in the tenants’ possession. The leased
property does not have any attached bathrooms. According to
him, as the property in question is a bungalow, it has an outhouse
comprising 4 rooms. And that outhouse has bathroom and WC,
which are commonly used by the respondents-tenants and also by
the tenants living in two of those four rooms in the outhouse.
9. To elaborate, Shri Anturkar has submitted that now
Udayan lives in one room and his grown-up daughter in another.
And the remaining room is converted into a drawing room.
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Though the maid, who has now become a de facto mother, could
not have proper accommodation. According to Shri Anturkar, the
maid cannot share the room allotted to Udayan’s daughter. For
given her mental condition, she needs privacy. And that compels
Udayan to arrange separate accommodation for the maid.
10. The learned Senior Counsel has also submitted that
despite the tenants’ disentitlement to continue in possession,
Udayan has never intended to throw them out summarily. Instead,
as an alternative, Udayan has submitted both before the courts
below and, now, here that they could be given alternative
accommodation, that is the remaining two rooms in the outhouse.
To justify this proposal, Shri Anturkar underlines the fact that
both the tenants are living single (unmarried) and one of them has
already retired from service.
11. Eventually, Shri Anturkar has taken me through the
judgment of the trial Court as well as that of the Appellate Court.
In that context, he has submitted that both the courts have failed
to consider vital aspects of the case. They have entirely ignored,
Shri Anturkar stresses, the relevant hardship the landlord has been
put to.
12. He has also submitted that though the maid not well
st
converse in legal intrinsic, deposed that the 1 floor has been in
Udayan's possession, referred, in fact, to falsify that deposition to
that extend Shri Anturkar has submitted that Udayan's father-in-
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st
law, the original owner, in fact, bequeathed the 1 floor to his close
relative through Will, which is already a part of the record and
which stands admitted even by defendants. Thus, once, the third
party has title and possession of the property the question of Shri
Udayan's being in possession of the floor is ex facie false.
13. Faced with the problem of inviting a fresh adjudication
on facts in a revision, Shri Anturkar has relied on Raghunath G.
1
Panhale (dead) by Lrs v. Chaganlala Sundarji and Co. According
to him, even into concurrent findings of facts there can be a relook
if the findings are absolutely wrong in law and perverse on facts.
st
14. Shri Anturkar has submitted that the 1 defendant has
her own flat, so she would not be rendered homeless if the Court
were to believe in Udayan's bona fide requirements. It has also
nd
come in evidence that the 2 respondent is using the leased
property as a lawyer for her profession.
Respondents:
15. In response, Shri Gorwadkar, the learned Senior
Counsel for the respondents, has submitted, at the outset, that
indeed the outhouse has a separate room or two, but they are
unlivable as per the evidence placed on record through one of
Udayan’s witnesses. In that context, he has submitted that a bona
fide requirement must be viewed in the backdrop of reasonable
need.
16. The Courts below, according to Shri Gorwadkar, on the
1
(1999) 8 SCC 1
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appreciation of facts found that Udayan has sufficient
accommodation to comfortably accommodate his entire family—
that is, he himself, his daughter, and his domestic assistant. About
the first floor, said to be in possession of the legatee under the
Will, Shri Gorwardkar has drawn my attention to the maid's
deposition in which she has, according to him, categorically
admitted that it has been in Udayan’s exclusive possession. About
the veracity of the maid’s statement, Shri Gorwadkar has
submitted that on the one hand Udayan maintains that the maid is
the de facto mother and needs separate room for herself. But on
the other hand, he wants the courts to treat her only as a maid who
knows nothing.
17. About the alternative accommodation, Shri Gorwadkar
has submitted that in response to the offer made by Shri Udayan,
the tenants have filed a detailed reply in which they have stated
about the physical condition of that particular outhouse, especially
two rooms, now, offered, he has, then elaborated the actual state of
the rooms. In that context, once again, Shri Gorwadkar has drawn
my attention to the deposition of Doctor who is said to have using
the said rooms once in a week as his clinic.
st
18. In the end, Shri Gorwadkar has submitted that 1
defendant has a flat, which he does not use for residential purpose,
nd
but for the professional purpose by the other defendant i.e. the 2
defendant.
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19. Heard Shri Anil Anturkar, the learned Senior Counsel
for the petitioner, and Shri Gorwadkar, the learned counsel for the
respondents.
Discussion:
Bona Fide and Reasonable Requirement:
20. The question is that of bona fide requirement. And it
takes into its fold the comparative convenience or inconvenience.
And it is essentially a question of facts and the factual evaluation.
When the trial Court decided the case, Vrushali, the original
owner was alive; pending appeal, she died. Udayan, her husband
came into picture. Udayan fairly concedes that one facet of the
personal need has disappeared with his wife’s death, but the other
facet remains: his daughter’s growing needs, which include his
providing board and lodging to Shobha, the maid or personal
assistant who takes care of Udayan’s daughter.
21. In the suit, too, it is Udayan, who deposed as PW1. He
has deposed that his wife, being the only daughter, had the suit
rd
property bequeathed to her through a Will, dated 3 March 2001.
But her father willed away the first floor to someone else: his
nephew. That nephew is said to be in possession of the first floor.
So the bone of contention is the ground floor. The outhouse is
only a collateral issue in this episode. He has deposed in his
evidence that he is “in possession of three rooms, kitchen and
veranda, along with toilet bathroom. [He is] also in possession of
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Kotha/store room admeasuring 5x10 ft.”
22. Indeed, the plaintiff examined her full-time attendant
Sulabha Malore as P.W.5. She has admitted in her cross
examination that no tenant resides on the first floor of the
property. The entire first floor is in Udayan’s possession. Based on
the evidence, the trial Court has held that “there is no doubt about
bona fide need of plaintiff, but the evidence on record shows that
there is more than sufficient premises available with the plaintiff.”
23. About the evidence of P.W.5, Shri Anturker contends
that the Will executed by Udayan’s father-in-law stands admitted.
For the first floor, there is a lawful legatee and, now, owner.
Therefore, the inarticulate maid’s testimony contrary to the record
is of no consequence. Attractive is the submission, but it fails
judicial muster. P.W.5, the maid may not know anything about the
bequeathment. But she does know who is in possession of the
property. Title is an aspect of law and one may need to be
articulate to know about it; possession is an aspect of fact and one
may be inarticulate and still know about it. May be the witness’s
inarticulate attitude made her a more credible witness of all.
24. On appeal, the District Court has noted that Udayan has
another residential property and that he has not spelt out how it is
inconvenient for him to live there. But it also accepts that it is for
the landlord to decide which property he must live in. So it does
not pursue that issue further. It nevertheless notes that there reside
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only three persons in Udayan’s house: he himself, his daughter,
and the assistant. And he has three rooms and veranda, besides
W.C. The Appellate Bench finds that a portion of the outhouse in
which earlier a tenant, Sabnis, was living, is now vacant. That can
be used for the domestic assistant. That said, Udayan contends
that the domestic assistant must live close by, for his daughter
needs her any time.
25. For the plaintiffs, Dr. Rangnekar got himself examined
as PW-3. The doctor deposed that he has been treating Udayan’s
daughter. She is said to be a slow learner, and “some person is
constantly required to keep a watch and take care of her
particularly being a female child aged 17 years (then)” He says
Udayan is running an ayurvedic massage centre in the outhouse,
where he is permitted to run his clinic once in a week. The
Appellate Bench concludes that Udayan could use this outhouse to
accommodate his domestic assistant. The Appellate Bench
disbelieves Udayan and concludes that “there lies the falsity in the
contention of plaintiffs that they require the suit premises bona
fide and reasonably.”
26. In the outhouse, there are four rooms. In two rooms,
one tenant resides. The remaining two rooms are vacant. So the
District Court in appeal has concluded that Udayan is not only in
possession of three rooms and veranda on the grounds floor but
also in possession of two more rooms in the outhouse. The District
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Court, it seems, has mistaken the outhouse as the ground floor.
27. The District Court, the final court of fact, has held that
the plaintiff’s need “is certainly not bona fide and reasonable. In
the event of the decree of eviction in favour of plaintiffs,
defendants nos. 1 and 4 will be certainly put to greater hardship
because they are not having any residential accommodation in the
locality or elsewhere.”
Alternative Accommodation:
28. Udayan maintains that he has never intended to throw
the two tenants out. He wants to provide them an alternative
accommodation, that is the remaining two rooms in the outhouse.
According to Udayan, both the tenants have been living single
(unmarried) and one of them has already retired from service.
29. The tenants, on the other hand, maintain that the
outhouse is used as a makeshift Ayurveda massage center, and a
doctor has his clinic, too. Besides, they stress it is entirely unfit as
living accommodation, more particularly for women.
30. The contesting tenants, the sisters, have filed an
additional affidavit to counter Udayan’s offer of alternative
accommodation to them. They first contend that what Udayan
calls a verandah is a full-fledged room. They then contend that
they have no access to bathroom and toilet in the main building.
So they were using the one attached to the outhouse. It was used
along with the other tenants in the two of the four rooms. Once
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Udayan lost the case in the trial Court, he allowed Apte, the tenant
in the outhouse, to convert the bathroom into an extra room. So
he demolished the wall on one side, fixed a door, and made it a
part of his tenement. So now only the toilet remains. The two
women are taking their bath in the “tiny mori in the kitchen.”
They also state that the outhouse has no mezzanine floor. That
apart, it has a loft having just less than three feet height slanting
roof from one side.
31. At any rate, P.W. 3 has deposed in his evidence-in-chief
that “the outhouse is an old structure have tiled roof and is in
dilapidated condition, which is not suitable for residence.”
32. All is said and done, dispute is entirely factual and has
been concurrently decided against the landlord. But before
parting, we must address one more issue. Can this Court, under
Article 227 of the Constitution of India, interfere with concurrent
findings of fact in a tenancy dispute? Shri Anturkar maintains the
answer as an “yes.” So he cites Raghunath G. Panhale. Let us
examine it.
33. The original landlord filed a suit for eviction on the
grounds of bona fide and reasonable requirement. The
respondent-tenant resisted it. Pending the suit, the original
plaintiff died; his heirs were brought on record. They amended the
pleadings. The third legal representative pleaded that he wanted
the leased property to start grocery business. In that context, he
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stated that he was working in Metal box. Co., that there was a lock-
out in that company, that he was finding it difficult to maintain his
family, and that he wanted to improve his livelihood by starting
grocery business.
34. The trial Court held that on the original landlord’s
death, the suit abated. On merits, the trial Court held that there
was no proof of lock-out, no proof of capital available for
investment, no proof of preparations for business, and no proof of
the third appellant’s having experience in grocery business. It
further held that the lockout did not put the appellant out of his
job permanently; the appellant had not resigned his job. therefore,
the requirement was not bona fide. The lower appellate Court
confirmed the finding on the question of bona fide requirement
but reversed the finding as to abatement. The appellate Court gave
a finding that the tenant had got three other shops. The appeal was
dismissed. The High Court, too, seems to have accepted the
verdict of the courts below. The landlords came up in appeal to the
Supreme Court.
35. Raghunath G. Panhale has held that the word
'reasonable' connotes that the requirement or need is not fanciful
or unreasonable. It cannot be a mere desire. The word
'requirement' coupled with the word ‘reasonable’ means that it
must be something more than a mere desire but need not certainly
be a compelling or absolute or dire necessity. The language of the
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provision, it is held, cannot be unduly stretched or strained as to
make it impossible or extremely difficult for the landlord to get
possession. Raghunath G. Panhale warns that if more limitations
are imposed upon the landlord holding property, it would expose
itself to the vice of unconstitutionality.
36. In the end, Raghunath G. Panhale has observed that
“unfortunately the High Court simply dismissed the writ petition
filed under Article 227 stating that the findings were one of fact.
That is why we think that this is an exceptional case calling for
interference under Article 136 of the Constitution of India.”
37. Indeed, resounding is the judicial assertion, but here the
courts below have evaluated the comparative hardship. And this
Court, too, has gone an extra mile in reappreciating the facts. Yet
the outcome remained the same. So I cannot but hold that this
Writ Petition has failed.
Accordingly, I dismiss the writ petition. No order on costs.
[DAMA SESHADRI NAIDU, J.]
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