Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.8648 OF 2015
(Arising out of SLP(C)No.22973 of 2010)
FARUK ILAHI TAMBOLI & ANR .......APPELLANTS
VERSUS
B.S.SHANKARRAO KOKATE(D) BY LRS.& ORS. .......RESPONDENTS
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. The petitioners-plaintiffs purchased the suit property
JUDGMENT
bearing CTS No.2640/C in Barshi town, Barshi Taluka, District
Sholapur, measuring 9.7 square meters, on 06.09.1980. At the time
of purchase of the property, the ancestor of the respondent-
defendant (who has since expired, and is now represented by his
legal heirs) was occupying the suit property as a tenant. The
contractual rent thereof was Rs.36/- per month. Having purchased
the aforesaid property, the petitioners issued a notice to the
respondent, intimating him about the change in title. In spite of
receipt of the attornment notice, the respondent did not tender any
Page 1
2
rent to the petitioners for the period from 1980 to 1982. The
petitioners then issued a notice dated 01.05.1982, demanding
arrears of rent at the rate of Rs.36/- per month. Despite of the
receipt of aforesaid notice, the respondent did not tender any rent
to the petitioners. In fact, through a communication dated
10.09.1982, the respondent took a stand, that he had filed an
application for fixation of “standard rent”, and as such, till the
aforesaid application was disposed of, no rent was payable by him
to the petitioners. Insofar as the issue of non-payment of rent,
and the prayer made by the petitioners in the aforesaid notice for
eviction from the premises are concerned, the stand adopted by the
respondent was that he was not a defaulter for a period of more
than six months, and as such, the notice issued by the petitioners
was invalid under the provisions of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (hereinafter referred to as
`the Rent Act'). The assertion that the respondent was not a
defaulter for more than six months, was based on yet another
JUDGMENT
factual assertion, that the respondent had paid a sum of Rs.180/-
by cash to the uncle of the petitioners, whereafter the respondent
was not in default for a period of more than six months.
2. Consequent upon the denial by the respondent to tender
any rent, the petitioners filed Regular Civil Suit No.420 of 1982.
In the aforesaid Suit, besides the plea of eviction based on non-
payment of rent, the petitioners also claimed the premises for
their reasonable and bona fide need.
Page 2
3
3. The respondent contested the aforesaid Suit by preferring
a written statement wherein he reiterated, that the rent was not
payable by him to the petitioners till the fixation of “standard
rent”. It was also his claim, that an application for determination
of “standard rent” was pending. He also undertook to pay all
arrears of rent, as and when the aforesaid application was disposed
of. It is not a matter of dispute that the respondent had impleaded
the petitioners, in the aforesaid application (for fixation of
“standard rent”) and for all intents and purposes, the petitioners
participated in the proceedings pertaining to the fixation of
“standard rent”. On the issue of eviction based on non-payment of
rent, the stand adopted by the respondent was that he had paid a
sum of Rs.180/- by cash to the uncle of the petitioners, and on
account of the said payment, the notice issued by the petitioners
seeking eviction of the respondent on the ground of non-payment of
rent, was defective.
4. The Standard Rent Application No.80/1979 was finally
JUDGMENT
decided on 16.10.1984. The Court fixed the “standard rent” at
Rs.36/- per month, which admittedly was the same as the contractual
rent payable by the respondent on account of the tenancy of the
suit property.
5. The trial Court disposed of Regular Civil Suit No.420 of
1982, on 15.03.1989. The pleas raised by the petitioner were
accepted. Dissatisfied with the order passed by the trial Court,
the respondent preferred Civil Appeal No.187 of 1989 before the IV
Additional District Judge, Sholapur. The IV Additional District
Judge, Sholapur, disposed of the above appeal on 21.04.1993 by
Page 3
4
reversing the decision rendered by the trial Court. It is,
therefore, that the petitioners-landlords approached the High Court
by filing Writ Petition No.2254 of 1993. The said Writ Petition
was dismissed on 26.02.2010, which has led to the filing of the
present special leave petition.
6. Leave granted.
7. We have heard learned counsel for the rival parties.
8. Having given our thoughtful consideration to the
submissions advanced at the hands of the learned counsel for the
rival parties, we are satisfied that no interference whatsoever is
called for, on the claim of the appellants for the eviction of the
respondents, on the ground of non-payment of rent. We, therefore,
hereby affirmed the findings recorded by the IV Additional District
Judge, Sholapur, as also by the High Court, on the issue of non-
payment of rent.
9. The question that has engaged us while hearing the
present controversy, pertains only to the bona fide need of the
JUDGMENT
appellants, of property bearing CTS No.2640/C, which was purchased
by the appellants on 06.09.1980. The aforesaid premises admittedly
measures 9.7 square meters. The claim of the appellants was, that
they needed the premises to run their own business. It was the
assertion of the appellants, that at the relevant time, they were
selling betel-nuts and betel-leaves, in the open on the street, and
that, they needed the shop in question, which was most suited for
the aforestated business. The claim of the appellants was disputed
by the respondents,by asserting that the appellants were joint with
their father and uncle, in residence as well as in business. It was
Page 4
5
the case of the respondents, that the father and uncle of the
appellants, were running their business in CTS No.2640/A and
2640/B. It was pointed out, that they were also dealing in the
business of betel-leaves, betel-nuts, bidys (Indian hand-rolled
cigarettes) and tobacco etc. It was, therefore, the assertion at
the behest of the respondents, that the plea of bona fide necessity
was merely a trumped up plea, and was wholly unacceptable.
10. The repudiation at the hands of the respondents, was
sought to be controverted by the appellants by asserting, that they
were not joint and that, there was no system of joint family
amongst Mohammedans. The case set up was that amongst Muslims,
there was no presumption of passing of joint family property to
descendants. It was submitted, that even the ration cards of the
appellants were separated from other members of the family in 1985
(even though admittedly the suit for eviction was filed in 1982).
It was the contention of the respondents, that the father and uncle
of the appellants were unwell, and in fact, the business of the
JUDGMENT
father and uncle was being taken care of by the appellants.
Besides the aforesaid, learned counsel for the respondents invited
our attention to the fact, that an affidavit was filed by one of
the legal heirs of the original tenant before the High Court,
during the course of proceedings in Writ Petition No.2254 of 1993,
wherein the following stand was adopted by the respondents:
“7. I state that the Petitioners have also
purchased the property bearing CTS No.3569/A after
admission of the present Writ Petition. I state
that the property bearing CTS No.3569/A is
admeasuring 114-2 Sq.mtrs. and the Petitioners are
running a flour mill in the said property. Hereto
marked and annexed as Exhibit-`4’ is the copy of
Page 5
6
the property extract of the property bearing CTS
No.3569/A.
8. I state that the Petitioners after admission
of the abovementioned Writ Petition on 29.4.1994
have purchased property bearing CTS No.3568/A,
which is admeasuring 105-7 Sq.mts. I state that
the said property bearing CTS No.3568/A is
situated at less than 100 mtrs. from the suit
property. I state that the Petitioners are
carrying wholesale business of various goods
including beetle leaves, cigarette and fire work
items. Hereto marked and annexed as Exhibit-`5’ is
the copy of the property extract of the property
bearing CTS No.3568A.”
(emphasis is ours)
11. In view of the factual position indicated in the
affidavit extracted above, it was submitted by the learned counsel
for the respondents, that the need of the appellants could not be
considered to be bona fide . Additionally, it was pointed out, that
on account of purchase of business premises during the pendency of
the proceedings, it was not possible to assume, that the bona fide
necessity of the appellants was subsisting. In order to support his
contention, learned counsel for the respondents placed reliance on
JUDGMENT
Mattulal vs. Radhe Lal, (1974) 2 SCC 365, and placed reliance on
the following observations:
“12. The question would still remain whether there
were proper grounds on which this finding of fact
could be interferred with by the High Court. It is
now well settled by several decisions of this Court
including the decision in Sarvate T.B.'s case(supra)
and Smt. Kamla Soni's case(supra) that mere assertion
on the part of the landlord that he requires the non-
residential accommodation in the occupation of
the tenant for the purpose of starting or
continuing his own business is not decisive. It is
for the court to determine the truth of the assertion
and also whether it is bona fide. The test which has
to be applied is an objective test and not a
subjective one and merely because a landlord asserts
Page 6
7
that he wants the non-residential accommodation for
the purpose of starting or continuing his own
business, that would not be enough to establish that
he requires it for that purpose and that his
requirement is bona fide. The word 'required'
signifies that mere desire on the part of the
landlord is not enough but there should be an element
of need and the landlord must show - the burden being
upon him - that he genuinely requires the non-
residential accommodation for the purpose of starting
or continuing his own business. The Additional
District Judge did not misdirect himself in regard
to these matters, as for example, by
misconstruing the word 'required' or by erroneously
placing the burden of proof on the appellant and no
error of law was committed by him in arriving at the
finding of fact in regard to the question of bona
fide requirement of the respondent, which would
entitle the High Court in second appeal to interfere
with that finding of fact.”
12. In addition to the above, learned counsel placed reliance on
Hasmat Rai and another vs. Raghunath Prasad (1981) 3 SCC 103, so
as to contend, that the events which transpired during the
pendency of the proceedings, were liable to be taken into
consideration for arriving at a final determination, whether the
bona fide need of the tenant subsists, and it is only thereafter,
JUDGMENT
that the eviction of a tenant can be ordered (based on the ground
of bona fide necessity, raised by a landlord).
13. Insofar as the submissions advanced by the learned
counsel for the rival parties are concerned, the first question
that draws our attention is, whether or not the need of the
appellants was bona fide, when the civil suit was preferred by the
appellants on 10.09.1982. Having given our thoughtful
consideration to the aforesaid issue, we are satisfied, that the
fact, that the instant premises was purchased by the appellants on
06.09.1980 for a total consideration of Rs.10,000/- even though
Page 7
8
the same was earning a meager rent of Rs.36/- per month, is
indicative of the fact, that the appellants had not purchased the
premises for earning rent therefrom, but for the purpose of
running a business therein. The assertion made by the appellants
that they wished to sell betel-leaves and related articles in the
premises, has not been seriously contested at the hands of the
respondents. But then, were the appellants engaged in some other
alternative business, at the time when the civil suit was filed?
It was not the case of the respondents, that any business
activities were being carried out by the appellants independently,
from their father and uncle, when the civil suit was filed. It
certainly cannot be the claim at the behest of a tenant, that the
owner of a premises must continue in business with his parents or
relations, assuming there was a joint business activity, to start
with. That is usual, and happens all the time when children come
of age. And thereafter, they must have the choice to run their
own life, by earning their own livelihood. The property owner has
JUDGMENT
the right to use his property as he chooses, and if the appellants
in the instant case had purchased the suit property, for running
their own business, we find no irregularity therein, nor can there
be any doubt about their bona fide desire to run the proposed
business in the premises, independent of the other family members.
The premises measuring a mere 9.7 square meters, we are satisfied
would be most suitable for the business proposed by the
appellants, namely, for selling betel-nuts and betel-leaves. This
is the usual size of the shops engaged in such business.
14. The aforesaid determination, however, would not render a
Page 8
9
final decision in favour of the appellants, for the reason, that
we would still have to determine whether the bona fide need of the
appellants was subsisting? It is therefore, that we will venture
to deal with the affidavit placed on our record, by the learned
counsel for the respondents, relevant extracts of which have been
reproduced hereinabove. A perusal of the same reveals, that
reference therein has been made to a property bearing CTS
No.3569/A admeasuring 114-2 square meters. This property was
purchased during the pendency of the proceedings arising out of
Regular Civil Suit No.420 of 1982. The affidavit itself indicates,
that the aforesaid premises is being used by the appellants to run
a flour mill. Even if the aforesaid factual position is accepted,
it cannot be the case of the respondents, that the appellants can
run their betel-nuts and betel-leaves business, from the premises
which has a running flour mill. Thus viewed, the purchase of
property bearing CTS No.3569/A is inconsequential insofar as the
present controversy is concerned. The above affidavit further
JUDGMENT
indicates, the purchase of property bearing CTS No.3568/A
admeasuring 105-7 square meters by the appellants. This property
was also purchased during the pendency of the proceedings arising
out of Regular Civil Suit No.420 of 1982. It was also submitted,
that the instant property bearing CTS No.3568/A, is at a distance
of merely 100 meters from the suit property. It is also the
assertion of the learned counsel for the respondents, that the
appellants are running wholesale business of various goods
including betel-leaves, cigarettes and fire-work items, and as
such, the instant premises could be put to use for the additional
Page 9
10
purpose, for which the suit premises is being claimed by the
appellants. Even though the instant contention appears to be
attractive, it is not possible for us to accept the same, because
a retail business of selling betel-nuts, bidi and tobacco etc.
cannot be run from a premises as large as the one in CTS No.3568/A
which admittedly measures 105-7 square meters. It is unlikely for
customers to visit such a large premises for buying betel-leaves,
betel-nuts and bidis etc. In our view, the suit premises which
measures 9.7 square meters would attract retailers of the trade
under reference, as shops selling betel-leaves and betel-nuts are
usually of the size of the suit property. We therefore decline the
submissions advanced by the learned counsel for the respondents in
this regard.
15. Having arrived at the above conclusion, it is imperative
for us also to determine the question of comparative hardship
between the parties. It was the submission of the learned counsel
for the respondents, that they have no business premises other
JUDGMENT
than the one in question to earn their livelihood, and that, if
the respondents were to be vacated from the premises, they would
be deprived of their entire livelihood. The submissions advanced
by the learned counsel for the respondents, in our view, does not
lie in his mouth specially on account of the factual position
depicted in the findings recorded by the trial Court in paragraph
13 of the order dated 15.03.1989, which is being extracted
hereunder:
“13. Now it has to be seen as to whom greater
hardship will cause in case of eviction. The fact is
on record that adjacent to suit property, there is
Page 10
11
property bearing C.T.S.No.2641 wherein the defendant
is running grocery shop. So in case of eviction of
defendant from the suit premises, there will not be
much loss to the defendant as already he is in
possession of some premises adjacent to the suit
premises. No fact was brought on record that this
premises C.T.S.No.2641 is not sufficient for him to
run both business of grocery shop and paint. It was
contended on behalf of the defendant that he will
have to remain without food in case of his eviction
from the suit premises. But this contention of the
defendant appears to be baseless, because, the record
shows that, the defendant has got agricultural lands,
bicycle shop in the name of his son and also grocery
shop being run in C.T.S.No.2641 adjacent to the suit
property. Further the fact is on record that, the
defendant is running wine shop in partnership. So all
these circumstances are sufficient to infer that, the
defendant will not be put to greater hardship in case
he is evicted from the suit property, because there
is alternative accommodation available for the
defendant which is adjacent to the suit premises and
there are other sources from which the defendant can
earn and is earning. Much efforts were made on
behalf of the defendants to show how the plaintiffs
are economically sound. It was shown on behalf of
the defendant that the plaintiffs are dealing the
business of matador and for that he has examined
witnesss Devdhar and Dhale. The witness Devdhar has
stated that he was driver on the matador of the
plaintiffs and the plaintiffs used to pay his
remuneration. The witness Dhale has stated that at
one occasion he had obtained the vehicle of the
plaintiffs on hire to proceed on journey. The sum and
substance of the defendants contention appears that
the plaintiffs are well to do. But even if for the
sake of time being it is presumed that, the
plaintiffs are dealing in business of matador, that
cannot be linked with the need of plaintiff’s suit
premises, because in the matador the plaintiffs
cannot run their business of betel leaves, bidy,
cigarettes and other in which they desire to step.
For this business only property like suit premises
(is) required and matador will not fulfill that
purpose. Therefore I am not inclined to rely upon
the contentions of the defendant that he will suffer
more loss in case of his eviction and that loss will
be comparatively more the suit premises.
Consequently, I am of the opinion that, more hardship
will be caused to the plaintiffs if they are not put
in possession of the suit premises because it will be
as like to deprive plaintiffs from their right and
enjoy their own property for their bonafide
JUDGMENT
Page 11
12
requirement. Fact has been admitted by the defendant
that, the plaintiffs are well vertical in business of
pan, bidy etc. It is for all the time contention of
the defendant that, the suit property has been
purchased by the plaintiffs, that the rent has been
paid by him to plaintiffs, so all these callings by
defendant to plaintiffs in relation to suit property
shows that, suit property has been presumed by
defendant as belong to the plaintiffs and in
existence of these facts contention of the defendant
cannot be accepted that there is alternative
accommodation for plaintiffs to run their business in
the premises of their father or uncle when it is not
basic contention of the defendant that, the suit
property has been purchased by the plaintiffs, their
father and uncle jointly. In the result, I answer
issue no.7A in the affirmative and issue no.7B
accordingly.”
(emphasis is ours)
16. The reason for us to rely on the averments recorded in
paragraph 13 extracted hereinabove, emerges from the fact, that
the factual position depicted therein, was not disputed by the
respondents, in the affidavit filed before the High Court.
Although, in the affidavit filed before the High Court, respondent
No.1 made a reference to some of the properties which were used
JUDGMENT
for business by his wife Kusum Kokate, he did not dispute the fact
that he was running a grocery shop in CTS No.2641, and besides the
aforesaid, he had a separate business premises wherein he was
having a bicycle-shop and, in addition thereto, he had
agricultural lands. It is also not disputed that the respondent
was running a wine shop in partnership with his wife. Thus viewed,
we are satisfied, that the comparative hardship would be that of
the appellants, as against the respondents.
17. In view of the above, we are of the view that the
impugned orders passed by the IV Additional District Judge,
Page 12
13
Sholapur dated 21.04.1993, and by the High Court dated 26.02.2010,
while disposing of Writ Petition No.2254 of 1993 deserve to be set
aside. The same are accordingly hereby set aside. The instant
appeal is allowed. The respondents are directed to vacate the
premises on or before 31.12.2015.
..........................J.
(JAGDISH SINGH KHEHAR)
..........................J.
(R. BANUMATHI)
NEW DELHI;
OCTOBER 14, 2015.
JUDGMENT
Page 13
14
JUDGMENT
Page 14