Skip to content


Gajaraben Prakashchand Mehta Vs. Ratilal Phulchand Mehta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 673 of 1980
Judge
Reported in1983(1)BomCR151
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)
AppellantGajaraben Prakashchand Mehta
RespondentRatilal Phulchand Mehta
Appellant AdvocateAjit P. Shah, Adv.
Respondent AdvocateV.M. Limaye, Adv.
Excerpt:
.....rates control act, 1947 - appellant challenged dismissal of suit for recovery of possession of suit premises on ground of her bona fide and reasonable personal requirements - respondent had with him quite enough space of about 76 khans which could be utilised by him for godown purposes - no hardship caused to respondent tenant by decree of eviction against him - at time when premises were purchased appellant was residing along with her family which consisted of two rooms - family of appellant was large - there was no water tap of their own - premises were situated in 'chawl' consisting of 80 tenements and one common water tap and one common sanitary block existed - immense hardship caused to family of appellant by virtue of absence of elementary necessities in life - claim of..........a writ petition filed by the original plaintiff-landlady whose suit for recovery of possession of suit premises on the ground of her bona fide and reasonable personal requirements which was decreed by the trial court has been dismissed by the appellate court. there were a few other questions raised by the plaintiff in the trial court. but none of them is urged before me in this petition. the only question that falls for determination is as to whether the view taken by the learned joint judge in appeal holding that the plaintiff's requirement of the premises was not bona fide or reasonable is supportable or not.2. the few relevant facts are as follows :the suit premises consist of municipal house no. 363 at baramati. it is a one storied building and the entire building is in possession.....
Judgment:

Sharad Manohar, J.

1. This is a writ petition filed by the original plaintiff-landlady whose suit for recovery of possession of suit premises on the ground of her bona fide and reasonable personal requirements which was decreed by the trial Court has been dismissed by the Appellate Court. There were a few other questions raised by the plaintiff in the trial Court. But none of them is urged before me in this petition. The only question that falls for determination is as to whether the view taken by the learned Joint Judge in appeal holding that the plaintiff's requirement of the premises was not bona fide or reasonable is supportable or not.

2. The few relevant facts are as follows :

The suit premises consist of Municipal House No. 363 at Baramati. It is a one storied building and the entire building is in possession of the respondent as a tenant and he is using the same as a godown. There was some controversy on the question as to whether the suit house was let out initially to the respondent for the purpose of residence and whether the controverted it subsequently for the use as godown. But it was common ground before be now that the contention of the respondent in that behalf was correct and the suit property was let out to the respondent right from its inception for the purpose of godown only. The suit house originally belonged to one Smt. Tarabai Hirematt who had let out the same to the father of the respondent about 35 years before the date of the suit. After his father's death, the respondent became the tenant in respect of the same house and he continued to use the same as godown.

The said house was purchased by the present petitioner on 18-2-1975. At the time when the house was purchased by the petitioner she was residing along with her family in the premises which consist just of two rooms; the bigger room admeasures 7 1/2' x 7 1/2' whereas the smaller room admeasures 3' x 4'. The family of the petitioner consisted and continues to consist of her husband, her two major sons and an unmarried daughter. It has come on record, and there is no serious dispute about this fact, that the premises occupied by the petitioner at present have no water tap of their own. The premises are situated in a chawl consisting of 80 tenements and one common water tap and one common sanitary block exist for all those 80 tenements. There is evidence led by the petitioner describing immense hardship caused to her family by virtue of the absence of such elementary necessities in life. It was in these circumstances that the suit house was purchased by the petitioner so as to avail of a decent accommodation for her family and it was with this end in view that, according to the petitioner, she filed instant suit in the Court at Baramati for recovery of possession of the suit premise from the respondent inter alia, on the ground of her bona fide and reasonable personal requirements.

3. The suit was stoutly contested by the respondent. He denied that the petitioner's need was either bona fide or reasonable. His contention further was that he had been using the premises as godown for his business and hence contended that greater hardship would be caused to him by a decree of eviction against him than would be caused by refusing any such decree in favour of the plaintiff.

The case relating to the other question urged by the parties need not be referred to here at all because no argument has been advanced in that connection before me at the time of hearing of this petition.

4. On the above question evidence was led by the parties. It came in petitioner's evidence that the petitioner's husband has a brother and also a mother who were staying in other premises consisting of two rooms situated at some distance from the place of their residence. It was brought out in evidence that though premises were standing in the name of petitioner's husband, they were occupied exclusively by his brother who was living in those premises along with his mother. If further came on record that the landlord of those premises which was a trust had, in fact, given a notice to the brother of the petitioner's husband for eviction of the said premise and it had come on record that the eviction proceedings were imminent.

5. On the backdrop of this evidence, the trial Court to the conclusion that the need of the present petitioner for personal occupation of the suit premises could not be said to be either bona fide or reasonable. The learned Judge further found that the respondent had enough accommodation of his own which could be reasonably used for godown and hence it could not be said that greater hardship would be caused to the tenant by passing a decree of eviction against him. He held that greater hardship would be caused to the petitioner by refusing decree of eviction in her favour. He, therefore, decreed the petitioner's suit for possession with incidential decree relating to costs etc.

6. In appeal, the learned Joint Judge has taken the view that the suit premises consisted of a godown and as such were not suitable for residence at all. He seems to have taken the view that there was no water tap or latrine in the suit premises and, therefore, it would be impossible for the petitioner to use the suit premises for residential purposes. He nextly seems to have been impressed by the fact that the petitioner's husband was having some premises standing in his name at some distance. The learned Judge did not find it possible to hold that these premises were in actual occupation of the petitioners' husband. He does not appear to have disbelieved the petitioner's evidence that those premises were in fact in the occupation of the brother of the petitioner's husband. The learned Judge further appears to have been inclined to take the view that the petitioner and her husband could easily move in those premises and hence the learned Judge has held if that was so the petitioner's requirement in respect of the suit premises could not be said to be either bona fide or reasonable.

Taking this view relating to the bona fide character of the petitioner's requirement, the learned Judge further held that having regard to this aspect of the matter, it would follow that greater hardship would be caused to the tenant by passing a decree for his eviction than would be caused to the petitioner by not passing any such decree in her favour. On these two findings, the learned Judge proceeded to allow the appeal filed by the respondent-tenant and dismissed the petitioner's suit for possession with costs.

7. At the time when this petition came for hearing before this Court, an affidavit was filed on behalf of the petitioner to bring on record the facts that after this litigation was initiated the respondent had in fact purchased one house numbered as 228 and 229 consisting of as many as 76 khans. Measurements show that the part which is numbered as 228 admeasures 81.9 sq.mts. whereas the other part of the house numbered as 229 admeasures 112 sq.mts. It is brought on record that a substantial portion of the said house could be used as godown.

I may, however, mention here that this is not an additional occupation made available to the respondent-tenant. It is admitted in the Lower Court that the above house numbered as 228 and 229 was already in possession of the respondent as tenant. The only difference that was made was that sometime before the filing of the petition, the said house was purchased by the respondent himself and the sale deed in question has been registered on 26-5-1978. I may state further that the said sale deed taken by the respondent does not affect the legal position to any appreciable extent. If it is found that petitioner landlady's requirement was bona fide and reasonable, the fact that the respondent was having at his disposal such a spacious accommodation for his godown will have relevance to the question as to whether greater hardship would be caused to the respondent by virtue of a decree of eviction against him.

8. The main question that arises for consideration is as to whether the requirements of the petitioner-landlady can be condemned to be devoid of bona fides. The petitioner was and has been residing with her family consisting of her husband, two major sons and an unmarried daughter. The premises are manifestly filthy and unsanitary if they are having just one common tap and one sanitary block for all those 80 residents of those tenements. Normally speaking if a person whose family is huddled up and crammed into such an inadequate accommodation with such filthy surroundings and if such person purchases a house with a view to accommodating her family, it is impossible to find anything mala fide in such action or even to hold that a desire on the part of the purchaser to get actual possession of the house in question stems from any want of bona fides. Further it is impossible to hold in such circumstance that the desire of such a person to get possession of the house of her own ownership is in any way unreasonable and this would be particularly so when the tenant in occupation of such building is in possession of other premise where he can shift his warehouse without much of inconvenience. In fact, such a desire could not be said to be unreasonable even if by decree of eviction in such cases the tenant is required to suffer certain amount of inconvenience. This is so because after all it cannot be said to be an unreasonable demand if the decree in favour of the landlady is not going to leave the tenant on the streets. If it was a case where the landlady wanted possession of the premises only with a view to adding to her luxury and only with that end in view wished to drive the tenant on the street, it could probably be said with certain justification that the landlady's demand for possession of the premises was not reasonable. But, in the absence of any such extreme case, it cannot be held that in the context of the facts such as those obtaining in the instant case, the plaintiff's demand is devoid either of bona fides or reasonableness. To my mind, this position hardly calls for any authority as such, but if at all any authority was necessary in that behalf, a reference could be legitimately made to the judgment of a Single Judge of the Mysore High Court in Fitter Peera Saheb v. Balchandra Rao, reported in A.I.R. 1972 Mys 15 where it was held as follows :

'Moreover, as pointed out by this Court in Wadhva v. Chandrashekhariah 1969(2) Mys.L.J. 564 in ordinary circumstances when the owner says that he requires his premises for his own use and occupation, the Court must start with a presumption that the claim of the requirement of premises by the landlord for his personal use and occupation is true and the mere statement of the tenant that the case of the landlord is false is not sufficient'.

To my mind, by and large, it should be presumed in the context of the facts such as those obtaining in the instant case, that the landlady's requirement is bona fide and reasonable. In this view of the matter, it is impossible to uphold the reasoning adopted by the learned Joint Judge to non-suit the plaintiff.

9. The learned Judge has further sought to place reliance on two circumstances to question the credibility of the plaintiff's requirement. In the first place, he observed that the suit premises do not have any water tap or sanitary block and hence he wondered as to how the same could be utilised for residential purposes by the petitioner-landlady. To my mind, the reasoning is not a very happy reasoning at all and indicates certain amount of naive ness on the part of the Court. When the petitioner has spent monies for purchase of the house and has approached the Court for possession of the house so as to use the same for residential purposes, it is hardly necessary to stretch imagination to conclude that before installing herself and her family into the premises and start residing into the same, she will put the same in a habitable condition by obtaining a water tap and by constructing a sanitary block in the same. In this connection, it is to be noted that under section 25 of the Bombay Rent Act, there is no embargo upon the godown being constructed in the residential premises although there existed an embargo the other way. The landlady cannot convert residential premises into non-residential one. But there is no prohibition against her to convert the godown premises into residential premises. No doubt, that could be done by the landlady by getting suitable permission in that behalf from the municipal authorities. But my attention was not invited to any provisions of law which would incapacitate the landlady from obtaining the requisite permission from the Municipal and other appropriate authorities. This reasoning of the learned Judge, therefore, is wholly unacceptable.

The other reason that seemed to have prevailed upon the learned Judged in non suiting the plaintiff is that the plaintiff's husband has premises standing in his name at some distance. The learned Judge expects the petitioner to go and occupy those premises. To my mind, this reasoning is equally unacceptable. The learned Judge has not found it possible to hold positively that those premises are not in occupation of his brother and that brother's family is not staying in those premises with his mother. If that was so, it is wholly unreasonable for the petitioner to except her husband to dislodge his own brother even though the suit premises of her own ownership exist, possession of which could be legitimately expected by the petitioner herself.

10. The reasoning of the learned Judge relating to relative hardship is even less unacceptable and it is to my mind quite an irrational piece of reasoning. The learned Judge seems to have taken the view that the moment the landlord's requirement is condemned to be stemming from want of bona fides the issues relating to hardship must be decided in favour of the tenant. I fail to any justification for such reasoning. In the instant case, the trial Court has discussed at length the various circumstances showing that practically no hardship would be caused to the respondent tenant by a decree of eviction against him. As pointed above, he had with him quite enough space of about 76 khans which could be utilised by him for godown purposes. The learned Judge has not found it possible to find any fault with the reasoning of the trial Judge in this behalf. The ultimate conclusion arrived at by him is, therefore, wholly unsupportable.

11. In this view of the matter, I am of the opinion that the view taken by the Joint Judge cannot be sustained. The decree passed by the learned Joint Judge is, therefore, hereby set aside and the one passed by the trial Court is restored.

The respondent shall pay the costs of this petition as well as those in the lower Appellate Court. Rule is made absolute with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //