TARACHAND HASSARAM SHAMDASANI Vs. DURGASHANKAR G SHROFF

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree dated 30. 3. 1991 passed by the 8th Additional District Judge Pune in Civil Appeal No. 60 of 1987.

(2.) THE original Respondent No. 1 is the owner in respect of the premises situated at House No. 76, Mahatma Gandhi Road, Pune, which consists of ground plus two floors. The said house was let out to the Petitioner's predecessor Shri Hasaram Shamdasani sometime in 1939. The rent note Exh. 117 dated 11. 6. 1939 indicates that the said suit property was let out to the Petitioner's father for business cum residence purpose. After the premises were let out, the Petitioner's father started using the ground floor for business and upper floor for the residence. It is not in dispute that the original Respondent No. 1 purchased the suit property sometime in 1946 and the tenancy in respect of the demised premises was attorned in his favour. The Petitioner's father died on 21. 7. 1978. It is the case of the Petitioner that during the life time of his father, business on the ground floor was conducted as partnership firm of which the Petitioner was also one of the partner. Further, after the death of his father the Petitioner continued to occupy the demised premised and the business of partnership in the name of M/s. A. Hassaram and Company is continued. It is however, on 30. 12. 1978, the Respondent No. 1 issued demand notice purported to be under Section 12 of the Bombay Rent Act which was received by the Petitioner. On receipt of the said notice the Petitioner immediately sent reply on 12. 1. 1979 denying the material allegations therein. Later on, the original Respondent No. 1 instituted suit in the Court of Small Causes Court, Pune bearing Civil Suit No. 925/1980 claiming possession of the suit property initially on the ground of default under Section 12; tenant having acquired suitable accommodation under Section 13 (1) (l); and bonafide and personal requirement for his own business under Section 13 (1) (g ). However, the plaint as filed on 14. 4. 1980 was sought to be amended by the original Respondent No. 1 on 4. 4. 1985 by introducing one more ground for eviction, namely, that the tenants have constructed a bathroom of a permanent nature on the south east corner of the ground floor of the premises admeasuring 6ft. x3ft. x8ft. unauthorizedly, illegally and without the consent of the landlord, thereby contravening Section 13 (1) (b) of the Act. After this amendment was carried out, the suit proceeded for trial. The original Respondent No. 1 entered the witness box on 3. 2. 1983. Later on, the Respondent No. 1 came out with an amendment application on 15. 2. 1986 asserting that the suit premises were also required for his residence having regard to the growing requirement of his family which already consisted of 3 married couples and one son was likely to be married very soon. The suit was resisted only by the Petitioner/defendant No. 2. The Petitioner, inter alia, contended that none of the grounds pressed into service were available to the landlord. In so far as the ground of bonafide requirement for his own business was concerned, the Petitioner specifically asserted that the same was false claim set up by the Plaintiff. In the written statement, the Petitioner specifically asserted the fact that the landlord did not disclose that he was owner and in possession of three other properties. Be that as it may, after the abovesaid proposed amendment at the instance of the landlord was allowed, the Trial Court proceeded further. The original Respondent No. 1 entered the witness box as P. W. 1. In his examination in Chief he made no mention about the other properties owned and possessed by him either residential or commercial. This was inspite of the objection taken by the Petitioner in the written statement. It is only because of the said written statement, the landlord perhaps was advised to amend the plaint by incorporating the personal requirement also for residence of himself and his family members. None the less, even in the examination-in-chief no disclosure has been made about the relevant fact that the landlord has secured and in possession or otherwise of any other property. In the cross-examination, however, the landlord was confronted with various properties owned by him, which fact is admitted. No doubt, in the cross examination he has made an attempt to offer explanation in respect of House No. 525 Centre Street and House No. 521 Vallabhai Patel Street. However, in respect of most of the other properties, there is no explanation offered whatsoever. None the less, the Trial Court proceeded to decree the suit in favour of the Respondent No. 1 on the ground of bonafide requirement and also on the ground that the tenant has constructed permanent structure, namely, bathroom unauthorizedly and that the tenant has acquired alternate suitable premises for residence. It is relevant to note that, before the Trial Court the ground of default was given up. The Trial Court accordingly decreed the suit by its Judgment and decree dated 19. 12. 1986. Against this decree the Petitioner-tenant preferred appeal before the District Court at Pune bearing Civil Appeal No. 60 of 1987. The Appellate Court affirmed the findings and conclusions reached by the Trial Court and maintained the decree for possession on the self same grounds as held by the Trial Court. In the result, the appeal preferred by the Petitioner was dismissed by the impugned Judgment and decree dated 30. 3. 1991. It is against this concurrent decisions the present writ petition under Article 227 of the Constitution of India has been filed.

(3.) MR. Dalvi for the petitioner mainly contends that in so far as the ground that the tenant has acquired alternate suitable residence within the meaning of Section 13 (1) (l) of the Act is concerned, the same is in applicable to the fact situation of this case. Inasmuch as, it is established on record that the suit premises were let out to the tenant for composite use of business cum residence and in such a case Section 13 (1) (l) cannot be pressed into service. In so far as the ground of tenant having constructed bathroom in the suit premises unauthorizedly, Mr. Dalvi contends that the conclusion reached by the Courts below on this issue is unsustainable both in fact and in law. He submits that there is no legal evidence to establish the basic fact that the tenant had in fact made any construction and that the conclusion reached by the Courts below on this issue is very casual and manifestly wrong as can be demonstrated from the materials on record. In so far as the ground of bonafide and reasonable requirement is concerned, he submits that, in the present case, the Courts below have completely over looked the fact that the landlord did not disclose the necessary particulars which were relevant and crucial for deciding that issue. He submits that, in the first place, the landlord approached the Court with vague pleadings and that too only for bonafide and reasonable requirement for his own business but when he was confronted with the ownership and possession of other commercial properties, he amended the plaint by setting up a new plea of bonafide and reasonable requirement also for his residence and for his family members in view of the growing need. Once again while doing so, the landlord did not furnish any details nor disclosed the relevant facts about the ownership and possession of other premises which fat was material and relevant to examine the question whether the need set up by the landlord was bonafide and reasonable. He submits that under the scheme of the provisions of Bombay Rent Act, requirement of the landlord should not only be established to be bonafide but also reasonable one. For that purpose disclosure of acquisition and ownership of all the properties by the landlord in the pleading and in any case in his examination-in-chief was imperative. It was also necessary for the landlord to specifically assert that inspite of the fact that he owns and possesses other properties, the requirement of the suit premises was bonafide and reasonable, only then the issue can be answered in favour of the landlord. He submits that it is well settled that the landlord is required to give all the necessary particulars relevant for deciding the issue of bonafide and reasonable requirement. To buttress this submission he has relied on the decision of this Court reported in 1979 Mah. L. J. 545 in Sukhdeo Krishnarao Gathode v. Laxmibai Dattatraya Mohoril and 1982 Mah. L. J. 647 in Abdul Samad Makhadum Baksh Shaikh v. Sudha Akant Parakhe. Besides he has placed reliance on the decision of the Apex Court in the case of S. P. Chengal Varaya Naidu (dead) by L. R. s v. Jagannath reported in (1994) I Supreme Court Cases 1 to contend that the material facts which were necessary for full, complete and effectual adjudication of the issue of bonafide and reasonable requirement were suppressed by the landlord, obviously with the purpose to gain advantage on the other side, namely, the Petitioner/tenant, and, having done so, the Respondent-landlord has indulged in playing fraud on the Court as well as on the opposite party. He submits that non disclosure of all the relevant and material facts was obviously an act of deliberate deception with the design of securing something by taking unfair advantage of another. According to him, non disclosure of material fact is an act of abuse of process of the court. He, therefore,submits that in such situation, the court is duty bound to throw the landlord out of court even at this stage in exercise of writ jurisdiction under Article 227 of the Constitution of India. 3a. On the other hand, the learned counsel for the Respondent No. 1 landlord submits that the two courts below have returned concurrent findings of fact on the relevant issues and it is not open for this court to reappreciate the evidence on record and over turn the concurrent findings of fact. Mr. Gokhale submits that the jurisdiction of this Court is limited to see that the inferior court or the Tribunal functions within the limits of its authority and to correct an error apparent on the face of the record much less an error of law. In support of this contention he has placed reliance on the decision of the Apex Court in the case of Mohd. Yunus v. Mohd. Mustaqim and Ors. reported in A. I. R. 1984 S. C. 38 as well as in the case of Mrs. Labhkumar B. Shaha and Ors. v. Janardhan Mahadeo Kalan and Anr. reported in A. I. R. 1983 S. C. 535. The learned counsel further submits that, in any case, the finding relating to the ground under Section 13 (1) (l) that the tenant has acquired alternate suitable residence, the same is unexceptionable; and, even that ground alone was good enough to reject this writ petition. He further submits that even in a case of tenancy created for composite user, namely, business and residence, the ground under Section 13 (1) (l) is available to the landlord. In so far as ground of tenant having constructed bathroom is concerned, the learned counsel submits that even that issue will have to be answered against the Petitioner tenant and no fault can be found with the concurrent finding of fact recorded by two courts below. He submits that even assuming that there is some error here or there in the decision of the courts below, that is not enough for this court to invoke jurisdiction under Article 227 of the Constitution of India. In so far as the ground of bonafide and reasonable requirement is concerned, the learned counsel submits that the landlord has approached the Court with a clear plea that the suit premises were required for his personal use for business. He submits that in fact the landlord was under a mistaken belief that the pleading was sufficient even to press the personal requirement for the residence for himself and himself and his family in view of the growing need. He submits that in that backdrop permission to amend the pleadings was granted by the Court below. According to him the order allowing amendment has not been challenged, therefore, it will not be open to the Petitioner-tenant to now challenge that position and particularly when the tenant has allowed the evidence to be let in on all material aspects. He further submits that the tenant having permitted to let in evidence, it is not open for him to challenge the correctness of the proceeding and that too on the ground that it is a case of abuse of process. According to him, the plea of abuse of process has not been raised either before the Trial Court nor before the Appellate Court and much less in the memo of the writ petition. Therefore, this court ought not to consider as to whether the proceeding resorted to by the Respondent landlord are in the nature of fraud either on the court or on the Petitioner tenant. He further submits that in the present case assuming that it is possible to contend that the pleadings in respect of ground of bonafide and reasonable requirement is vague, however, vagueness in pleading cannot be a ground to defeat the claim or non suit the landlord for the first time before this court in writ jurisdiction. He submits that the parties have adduced evidence before the court having understood each other's case very well and in such situation vagueness in pleading cannot be a ground to non suit the landlord. Reliance is placed on the ruling reported in 1990 B. C. R. 326 in Waman Pingale v. Sitaram Nathu Shimpi. According to the learned counsel there is no substance in this writ petition and the same deserves to be dismissed.