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Mukundlal Nanalal Chanawala Vs. Bhagvatsing Dhansing Gadaria - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1993)1GLR423
AppellantMukundlal Nanalal Chanawala
RespondentBhagvatsing Dhansing Gadaria
Cases ReferredP. A. Machiah v. ChampakJal
Excerpt:
.....requirement was bona fide as well as reasonable and greater hardship will be caused to him if the decree for possession will be refused than to the defendant, if the decree for eviction will be passed against him. 9. the question then remains regarding reasonable and bona fide requirement of the landlord as well as hardship likely to be caused to the parties. section 13 of the act is material for the said purpose and the relevant part thereof reads as under ;13. (1) notwithstanding anything contained in this act, a landlord shall be entitled to recover possession of any premises if the court is satisfied: or (2) no decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) if the court is satisfied that, having regard to all the circumstances of the.....c.k. thakker, j.1. this revision application is filed by the petitioner-tenant against the decree for possession passed by the trial court in favour of the opponent-landlord and confirmed by the appellate court.2. to appreciate the controversy in question, few relevant facts may now be stated. the opponent is the original plaintiff, who is the landlord and the petitioner is the original defendant, who is the tenant of the suit premises. the suit premises consists of one room admeasuring 10' x 7' on the ground floor and another room having the same measurement on the first floor situated in bharuch. the plaintiff filed regular civil suit no. 481 of 1975 in the court of civil judge (j. d.), bharuch against the defendant to recover possession of the suit premises, inter alia on the ground.....
Judgment:

C.K. Thakker, J.

1. This Revision Application is filed by the petitioner-tenant against the decree for possession passed by the trial Court in favour of the opponent-landlord and confirmed by the appellate Court.

2. To appreciate the controversy in question, few relevant facts may now be stated. The opponent is the original plaintiff, who is the landlord and the petitioner is the original defendant, who is the tenant of the suit premises. The suit premises consists of one room admeasuring 10' X 7' on the ground floor and another room having the same measurement on the first floor situated in Bharuch. The plaintiff filed Regular Civil Suit No. 481 of 1975 in the Court of Civil Judge (J. D.), Bharuch against the defendant to recover possession of the suit premises, inter alia on the ground that the defendant had acquired suitable residence; the suit premises had not been used by him for a period of more than six months from the date prior to the filing of the suit; there was change of user by the defendant; the defendant had committed acts contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882 and the plaintiff required the suit premises for reasonable and bona fide use and occupation and was entitled to a decree for possession under the provisions of Section 13(i)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act').

3. The defendant resisted the suit by filing written statement at Exhibit 12. It was contended that the suit filed by the plaintiff was not maintainable; the notice was not legal and valid, it was not true that the suit premises were let for residential purpose, the defendant was using the suit premises for business purposes, there was neither change of user nor non-user of the premises by the defendant, he had not committed any act of waste as contended by the plaintiff and the plaintiff did not require the premises for bona fide and reasonable use and occupation. It was also contended by the defendant that greater hardship will be caused to him if the decree for eviction will be passed than to the plaintiff, if the decree for possession will be refused. For all these reasons, the defendant prayed for dismissal of the suit.

4. From the pleadings of the parties, the trial Court framed necessary issues at Exhibit 14. It decided the issue regarding waste against the plaintiff but decided the remaining issues in his favour. The Court held that it was proved by the plaintiff that the suit premises was let to the defendant for residence but the defendant used it for business purpose and for storing goods. Thus, there was change of user and also non-user, taking into account the purpose for which the premises was let. The Court also held that the defendant had acquired alternative suitable residence and, therefore, he was liable to be evicted under Section 13(1)(i) of the Act. Regarding the requirement of the plaintiff, the Court held that the plaintiff had established that his requirement was bona fide as well as reasonable and greater hardship will be caused to him if the decree for possession will be refused than to the defendant, if the decree for eviction will be passed against him. In view of those findings, the Court decreed the suit filed by the plaintiff.

5. Being aggrieved by the decree passed by the trial Court, the defendant preferred Regular Civil Appeal No. 71 of 1979. The appellate Court reversed the findings of the trial Court about the change of user, non-user and acquisition of alternative suitable accommodation by the defendant. Regarding the requirement of the landlord as also regarding hardship, the appellate Court upheld the findings recorded by the trial Court and confirmed the decree passed in favour of the plaintiff. It is this decree which is challenged by the defendant in the present Revision Application.

6. Ms. Davawala, learned Counsel for the petitioner contended that the Courts below have committed an error of law in holding that it was proved by the plaintiff-landlord that the requirement was bona fide and reasonable. The said finding is contrary to law and requires to be set aside. She further submitted that the Courts below have also erred in holding that greater hardship will be caused to the landlord if the decree for possession will be refused than to the tenant if the decree for eviction will be passed against him. Finally, the Counsel contended that the Court's below have committed grave error in not considering the second part of Sub-section (2) of Section 13 and in not applying their minds to passing or refusing to pass partial decree for possession.

7. Mr. D. J. Bhatt, for Mr. V.J. Desai, on the other hand, supported the decree passed by the trial Court and confirmed by the appellate Court on the ground of reasonable bona fide requirement of the landlord. He, however, submitted that the appellate Court was wrong in reversing the decree on the ground of a change of user, non-user and acquisition of suitable residence by the tenant. Relying on the provision of Order 41 Rule 33 of the Civil Procedure Code, 1908, Mr. Bhatt submitted that it is open to the plaintiff to support the decree passed by the trial Court even on the grounds decided against him by the appellate Court. He further submitted that it was not necessary for the Courts below to consider second part of Section 13(2) of the Act when a specific finding was recorded by them that greater hardship will be caused to the landlord if the decree for possession will be refused than to the tenant if the decree for eviction will be passed against him. He submitted that neither in the pleadings nor in the evidence nor before the trial Court nor even before the appellate Court, the contention about decree for partial possession was taken by the petitioner and, therefore, the Court may not allow the said contention to be taken for the first time at the revisional stage which requires investigation of the facts.

8. Having heard the learned Counsel for the parties, I am of the opinion that the decree for possession passed in favour of the plaintiff-landlord requires to be confirmed and the revision application filed by the petitioner-tenant requires to be dismissed. So far as the finding regarding change of user, non-user and acquisition of alternative suitable residence by the petitioner is concerned, I am of the opinion that it cannot be said that the appellate Court has committed any error of law. There is no documentary evidence to show that the property was let for residence only. In none of the two rent notes (Exhibit 29 and 64), the purpose of lease was mentioned. In notice Exhibit 25 also, no such ground was put forward by the landlord. From the oral evidence, it appears that the petitioner-tenant was also using the premises for business. If in the light of these circumstances, the appellate Court has recorded a finding that the premises was used for business purpose, it cannot be held that the said finding is without any evidence on record. That finding, therefore, cannot be disturbed in the exercise of revisional jurisdiction by this Court. The plaintiff is, thus, not entitled to get a decree for possession against the defendant on the ground of change of user or non-user or acquisition of suitable residence by him.

9. The question then remains regarding reasonable and bona fide requirement of the landlord as well as hardship likely to be caused to the parties. After appreciating the evidence on record, the Courts below recorded a finding that it was proved by the plaintiff-landlord that he required the premises for reasonable and bona fide use and occupation. From the evidence it was established that the plaintiff was having 4 sons at the time when his deposition was recorded, the eldest being 23 years of age, second of 21 years, third of 14 years and youngest of 9 years of age. The premises in which the plaintiff was staying consisted of only two rooms. In the evidence he had stated that he could not get his eldest son married since there was no sufficient accommodation with him. If after considering that evidence, the Courts below have come to a conclusion that the requirement of the plaintiff was bona fide and reasonable, it cannot be said that any error of law was committed or the finding was contrary to law. The said finding, therefore, cannot be upset by this Court.

10. After the landlord satisfies the Court that he requires the premises for reasonable and bona fide use and occupation, it is the duty of the Court to consider the question of relative hardship of the respective parties. Section 13 of the Act is material for the said purpose and the relevant part thereof reads as under ;

13. (1) Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied:.

(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held; or

(2) No decree for eviction shall be passed on the ground specified in Clause (g) of Sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant greater hardship would be caused by passing the decree than by refusing to pass it

Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.

11. It was contended by Ms. Davawala that the Courts below ought to have considered and recorded a finding whether passing of a partial decree would have served the purpose and whether to hardship would have been caused either to the tenant or to the landlord by passing partial decree for possession. She submitted that in the instant case, neither an issue was framed nor a finding was recorded to that effect, and therefore, the decree requires to be set aside and the suit of the plaintiff-landlord deserves to be dismissed. In the alternative, the matter requires to be remanded by directing the trial Court to record a finding regarding passing of a partial decree for eviction. A number of decisions have been cited by the learned Counsel for the petitioner in support of the above argument.

12. In Shankeria! v. Ranchhodlal's case, reported in (1966) VII GLR 1039 it was proved by the plaintiff-landlord that his requirement was bona fide and reasonable. After recording a finding to that effect without deciding the question regarding greater hardship likely to be caused to the landlord by refusing to pass a decree for possession than to the tenant by passing a decree for eviction, the Small Causes Court, Ahmedabad granted partial decree in favour of the landlord, which was set aside by this Court.

13. In my opinion, the ratio laid down in Shankerlal's case (supra) has no application in the instant case. Reading the provisions of Section 13(2) of the Act, it is clear that after the Court records a finding about reasonable and bona fide requirement of the landlord, it has to decide an issue of greater hardship. Ira Shankerlal's case (supra), the trial Court did not act according to law. Instead, it directly passed decree for partial possession in favour of the landlord. The decree was, therefore, illegal and contrary to law and was rightly set aside by this Court. In Shankerlal's case (supra), this Court specifically observed that the approach of the lower Court was erroneous. 'It was obligatory on him to consider whether greater hardship was going to be caused by passing the decree for eviction than by refusing to pass it and unless he came to a specific conclusion on that issue, he could not have passed any decree for eviction.'

14. Again, a similar question arose in Kasturbhai Ramchand v. Mohanlal Nathubhai, reported in (1968) IX GLR 729, In that case, the trial Court held the requirement of the plaintiff bona fide and reasonable. On the question of hardship, it recorded a finding that greater hardship will be caused to the landlord if the decree for possession would be refused than to the tenant if the decree for eviction would be passed. It, therefore, decreed the suit of the plaintiff. The appellate Court allowing additional evidence held that no hardship will be caused to either party if partial decree would be passed and accordingly granted partial decree for possession. Both the parties approached this Court by filing revision applications.

Following Shankerlal's case (supra) and decreeing the suit for possession in its entirely, a single Judge made the following pertinent observations:

In such cases, the lower Court must first arrive at the finding on the issue as to whom, the landlord or the tenant, greater hardship would be caused. It is only when the Court arrives at a finding on that specific issue against the tenant or against the landlord that there would be some resultant hardships on either side, which would require the Court either to pass the decree or to refuse it. It is only thereafter that the Court must consider the further question whether the partial decree would strike a just balance without causing any resultant hardship to either side. The second question can be taken up by the Court only after reaching a conclusion on the first question.

(Emphasis supplied)

15. Looking to the provisions of Section 13(2) of the Act and the observations of this Court in Kasturbhai's case (supra), it is clear that three contingencies may arise after the landlord proves that his requirement is bona fide and reasonable. If the Court is of the opinion that greater hardship will be caused to the landlord by refusing to pass decree in his favour than to the tenant by passing the decree against him, the Court has to pass decree for possession in its entirety in favour of the landlord. If, on the other hand, the Court is of the view that greater hardship will be caused to the tenant by passing the decree in favour of the landlord than to the landlord by refusing to pass decree, the Court should not pass a decree for possession. It is only when the Court is satisfied that no hardship will be caused either to the tenant or to the landlord by passing a partial decree for possession, the Court shall pass the decree in respect of such part only.

16. It also seems to me clear that the Court must first arrive at the finding as to whom greater hardship would be caused and would pass or refuse to pass decree for possession on the basis of the said finding. It is only thereafter that the Court should consider further question whether the partial decree would strike a just balance without causing any resultant hardship to either side. The second question should not be decided first. When that question was decided first in Shankerlal's case (supra), this Court set aside the decision of the trial Court. The said view was reiterated by this Court in Kasturbhai's case (supra). I am in respectful agreement with the above view and hold accordingly. The argument of the learned Counsel for the petitioner that after recording the finding regarding greater hardship in favour of the landlord, the Court should have proceeded farther to consider about passing of partial decree is indeed contrary to the scheme of Section 13(2) of the Act and also inconsistent with the law laid down by this Court.

17. In the instant case, both the Courts have recorded a finding that greater hardship will be caused to the landlord if the decree for possession will be refused than to the tenant if the decree for eviction will be passed against him. In view of that finding, in my opinion, there was no occasion for the Courts below to consider the second part of Section 13(2) of the Act and the decree cannot be said to be illegal or contrary to law on that ground.

18. Ms. Davawala submitted that even in absence of pleadings, evidence or contention before the Courts below, the Court was bound to consider whether passing of partial decree would meet the ends of justice. In support of that argument, she relied on the decision of the Hon'ble Supreme Court in Rehman v. Ram Chand reported in : [1978]2SCR380 and a decision of the High Court of Calcutta in Krishnadas v. Bidhan Chandra reported in : AIR1959Cal181 and contended that even at the revisional stage, such a point can be taken. On the other hand, Mr. Bhatt, relying upon a decision of the High Court of Bombay in P. A. Machiah v. ChampakJal reported in 1975 (77) BLR 99, contended that no such plea can be taken for the first time before the appellate or revisional Court, in absence of pleadings and evidence on record. It is, however, not necessary for me to consider those cases in detail, in view of the fact that in the instant case, the Courts below have recorded a positive finding that greater hardship will be caused to the landlord, if the decree for possession will be refused than to the tenant if the decree for eviction will be passed. Both the Courts were, therefore, right in passing decree for possession of the suit premises in favour of the plaintiff. The decree for possession is thus in confirmity with law and. does not require interference by this Court.

19. In the result, I do not find substance in any of the contentions raised by the learned Counsel for the petitioner and the Revision Application requires to be dismissed. Accordingly this Civil Revision Application is dismissed. Rule is discharged. Interim stay is vacated. In the facts and circumstances of the case, however, there will be no order as to costs.


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