JAHANGIR ABDUL SAHEB ZARI Vs. BALWANT RAMCHANDRA BHOKARE

JUDGEMENT

(1.) THESE two writ petitions can be disposed of together by common Judgment. For, Writ Petition No. 2005 of 1992 is filed by the landlord, whereas Writ Petition No. 447 of 1992 is filed by the successor in interest of the original tenant Shri. Balwant Ramchandra Bhokare. The parties will be preferred to as landlord and tenant respectively for the sake of convenience. Both these writ petitions challenge the Judgment and Decree passed by the Second Additional District Judge, Sangli in Regular Civil Appeal No. 213 of 1988 dated September 13, 1991. The premises in question is a shop on the ground floor of house property bearing C. T. S. No. 3798 in Shaniwar Peth locality of Miraj Town. The landlord instituted the suit against the original tenant before the court of Civil Judge, J. D. , Miraj being R. C. S. No. 369 of 1981 on the ground of bonafide and reasonable requirement and default. The Trial Court by Judgment and order dated 22nd Feb. 1988 dismissed the suit on both the grounds. The landlord carried the matter in appeal before the District Court, Sangli, bearing Civil Appeal No. 213 of 1988. The ground of default was not pressed before the Appellate Court and the appeal was confined to the ground of bonafide and reasonable requirement. The Appellate Court by the impugned Judgment and order dated 13. 9. 1991 was pleased to partly allow the appeal. The Appellate Court has held that the landlord has established the bonafide and reasonable requirement in respect of the suit premises and, that, the landlord will suffer greater hardship. None of less, the Appellate Court passed a conditional decree in favour of the landlord. The Appellate Court ordered that if the road widening to the extent of 50ft. or more was to be implemented by the authorities and the plaintiff's present premises of Survarna Cloth Stores are demolished and set back from front side, in that case, the landlord would execute the decree against the tenant. Such a conditional decree came to be passed by the Appellate Court which is the subject matter of challenge in the present writ petitions. The original tenant filed writ petition No. 447 of 1992 challenging the finding with regard to the issue of bonafide requirement as well as hardship, whereas the landlord has filed Writ Petition No. 2005 of 1992 challenging the conditional decree passed by the Appellate Court on the ground that once the Appellate Court was satisfied about the issue of bonafide requirement and the issue of comparative hardship in favour of the landlord, in that case, it had no option but to grant decree in entirety and not conditional decree as has been granted in the present case. It is relevant to note that during the pendency of the writ petitions, the original tenant has died and his heirs have been brought on record in both the matters.

(2.) IN so far as the issue of bonafide and reasonable requirement is concerned, the Trial Court was of the view that the need set up by the landlord was not bonafide because the possibility of road widening was not imminent as it is founded on the plan issue as Master Plan by the local authority in the year 1955 which was more than 25 to 30 years back and no steps have been taken on that basis so far. The Trial Court has also taken into account the fact that during the pendency of the suit, the landlord entered into transaction with another tenant against whom suit was filed for similar reliefs i. e. Mr. K. B. Sawant. The landlord settled the dispute with the said tenant Shri K. B. Sawant and withdrew the suit filed against him and instead transferred the said property in favour of Mr. K. B. Sawant. According to the Trial Court therefore, the need pressed in the present suit was not bonafide and reasonable. On the other hand, the Appellate Court after analyzing the materials on record took the view that the fact that the property was earmarked for road widening and was to be acquired was established from the documentary as well as oral evidence, including independent evidence of the concerned Municipal Council. The Appellate Court has recorded a finding of fact that final acquisition notice has been given in respect of the said acquisition of the premises presently occupied by the landlord and, that, 1/3rd frontal portion of his premises would be demolished if project of the road widening was to be implemented in practice. In so far as the transaction between the landlord and the another tenant Shri. Sawant is concerned. The Appellate Court has taken the view that the said transaction cannot be the basis to doubt the bonafide need set up by the landlord which was based on genuine apprehension, pursuant to the proceedings for acquisition in respect of the premises presently in possession of the landing. The Appellate Court has observed that the said transaction with Mr. Sawant was entered by the landlord under peculiar circumstances. Taking this view of the mater, the Appellate Court held that the need pressed by the landlord cannot be said to be malafide but was obviously bonafide one and, that, the same was reasonable. The Appellate Court has even adverted to the fact that the tenant was in occupation of other premises besides the suit premises and for which reason no hardship would be caused to the tenant, if the decree was to be passed. Nevertheless, the Appellate Court has passed a conditional decree as referred to above.

(3.) DURING the pendency of these petitions, an affidavit has been filed on record to point out that acquisition was already completed and the landlord has received compensation amount in respect of the said acquisition. The affidavit also indicates that portion which is affected by the said acquisition has already been earmarked by the authorities. The tenant has also filed affidavit on record to contend that, so far, no acquisition has taken place nor the landlord has received any compensation in that behalf and the plea taken in the affidavit filed before this court is false. More than one affidavit has been filed by the respective parties. However, for the purpose of deciding this matter, I shall advert only to the plea taken and the evidence adduced before the courts below. I am persuaded to take this view because, there is no formal application for amendment of pleadings, filed by any of the parties before this Court. Whereas, the questions posed in the affidavits filed by the parties are obviously questions of facts; and if they intended to bring those facts on record, it was essential for them to amend the pleadings. The Apex Court in Trojan and Company v. R. M. N. N. Nagappa Chettiar reported in A. I. R. 1953 S. C. 235 has observed that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without amendment of the pleadings the court would not be entitled to modify or alter the relief. The Privy Council in the case of Sri. Mahant Govind Rao v. Sita Ram Kesho and Ors. reported in 1898 (25) Indian Appeals Page 195 (PC) has observed that, as a rule, relief not founded on the pleadings should not be granted. The above decisions have been relied upon by the Apex Court in a recent decision in the case of Om Prakash Gupta reported in 2002 (2) SCC 256 (see Para 12 ). Applying the said principles, merely because more than one affidavit has been placed or record by the respectively parties that per se would not compel this court to enter into the controversy on facts raised therein, since the original pleadings have remained unamended. The attempt of both the sides is obviously to march over the other side by taking some plea on affidavit, which has the inevitable effect of raising disputed questions of facts. That cannot be permitted at the stage of proceeding under Article 227 of the Constitution of India, that too for the first time and only when the matter becomes ripe for hearing. Be that as it may, as observed earlier, I would prefer to confine the decision of this matter on the basis of pleadings and the evidence that has already come on record before the courts below.