GAUR CHANDRA BASU Vs. RUCHIRA ASHOK SONDE

JUDGEMENT

(1.) THIS petition under Article 227 of Constitution of India takes exception to the judgment and decree passed by the VIIIth Additional District Judge, Thane dated 17th August, 1991, in Civil Appeal No. 236 of 1988. The premises in question is flat No. 4 consisting of 3 rooms and kitchen in Vasant Bahar Co-operative Housing Society Ltd. at Maharshi Karve Road, Thane. This flat was purchased in the joint names of the respondent No. 1 (hereinafter referred to as the respondent) and her mother. The petitioners were inducted in the said premises as tenants on monthly basis. The respondent gave demand notice to the petitioners on 6th May, 1981 claiming arrears of rent and also terminating the tenancy. Thereafter, respondent filed suit in the Court of Joint Civil Judge, Junior Division, Thane being R. C. S. No. 1213/1981 for possession of the suit premises on the ground of arrears of rent, reasonable and bona fide requirement, acquisition of suitable alternative residential accommodation by the tenants, nuisance and annoyance. The trial Court by judgment and decree dated January 7th 1988, dismissed the suit and negativated all the grounds pressed into service by the respondent plaintiff. Against that decision, respondent-plaintiff carried the matter in appeal before the District Court, being Civil Appeal No. 236 of 1988. The Appellate Court has allowed the appeal and directed the petitioners to hand over the possession to the respondent, but only on the ground of reasonable and bona fide requirement. It is this decision which is the subject matter of the challenge in the present writ petition under Article 227 of the Constitution of India.

(2.) ACCORDING to Mr. Oak, the learned Counsel for the petitioners the Appellate Court has clearly exceeded its jurisdiction in decreeing the suit in favour of the respondent. He submits that there is no pleading whatsoever in the plaint making out a cause for reasonable and bona fide requirement. Whereas, the averments in plaint would only suggest that the respondent had merely expressed her desire to occupy the suit premises. Learned Counsel further contends that however, during the course of evidence the respondent brought on record certain new materials which were not pleaded in the plaint and the Appellate Court accepted the same grounds to hold that the respondent has established her requirement was reasonable and bona fide. Learned Counsel, therefore, contends that what is proved during the evidence is not pleaded and, if that be so, the said evidence will have to be ignored and no decree can be passed in favour of the respondent on the said ground. In support of this contention he has placed reliance on the decisions of this Court reported in 1974 Mh. L. J. 774 (Ganpat v. Rameshwar and another) 1979 Mh. L. J. 545 (Sukhadeo K. Ghatode v. Laxmibai D. Mohoril) and on the decision of the Apex Court in the case of (T. Sivasubramaniam and others v. Kashinath Pujari and others) reported in 1999 (7) Supreme Court Cases 275. He submits that the plaintiff-landlady was expected to not only set out her need in the plaint but was also obliged to establish the same during the trial. According to him, in the present case there is absolutely no pleading with regard to the matter which found favour of the Appellate Court to decree the suit against the petitioners. Learned Counsel further contends that both the pleadings as well as evidence adduced by the respondent would only indicate that the plaintiff had mere desire and there is no sincere need to occupy the suit premises. Therefore, he submits that, in such a situation, no decree for possession can be made on the ground of bona fide requirement, having regard to the law enunciated by the Apex Court in (Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon) 1998 (4) Supreme Court Cases 49 and (Raghunath G. Panhale (Dead) by L. Rs. v. Changanlal Sundarji and Co.) 2000 (2) Bom. C. R. (S. C.)9 : 1999 (8) S. C. C. 1. Learned Counsel further contends that the Appellate Court, in any case has completely gone overboard in reversing the findings returned by the trial Court, for it has not considered the entire evidence in its proper perspective nor analysed the same before overturning the finding of fact returned by the trial Court. On the other hand, decision of the Appellate Court is utterly confused as the Appellate Court has answered both the issues of reasonable and bona fide requirement as well as comparative hardship together. He submits that the evidence on record would not permit the Court to take the view that has been taken by the Appellate Court. According to the learned Counsel, the findings of fact recorded by the Appellate Court on the issue of reasonable and bona fide requirement cannot be sustained in law. He further submits that even the finding of fact returned by the Appellate Court on the issue of the comparative hardship suffers from the same error and it will have to be obliterated from the record. He contends that the Appellate Court has not considered the crucial fact that the respondent was in possession of premises at Khar, Mumbai and, it has come in evidence that the respondent had another premises at Bandra and her husband was having premises at Dadar. If that be so, it would be preposterous to evict the tenant as the issue of comparative hardship will have to be answered against the respondent.

(3.) ON the other hand, Mr. Apte, the learned Counsel for the respondent contends that it is not a case of no pleading relating to the ground of reasonable and bona fide requirement as contended, but at best the averments in the plaint can be described as vague. He contends that the entire plaint will have to be read as a whole. Moreover, in paragraph No. 4, it is clearly averred that the respondent required the suit premises for her personal use, occupation as well as for the family. He submits that, no doubt, the expression used in the plaint is desires , however, the Court would not give literal meaning to that word. Whereas, considering the pleadings as a whole, contends Mr. Apte, the respondent has set out the reasonable and bona fide requirement on the basis of which possession of the suit premises was pressed into service. Learned Counsel further contends that, the petitioners in their written statement have not made any grievance either about the lack of pleadings in the plaint relating to this ground nor relating to the vagueness of the pleadings or that there was no cause of action for instituting the suit on the ground of reasonable and bona fide requirement in the present case. He has relied on paragraph No. 7 of the written statement to contend that the petitioners had clearly understood the case set out by the respondent-plaintiff with regard to this ground and also contested the case of the respondent, therefore, it would be inappropriate to non suit the respondent particularly when the trial Court had framed issue and the petitioners also allowed the evidence adduced by the respondent to be let in during the trial without any demur and that the matter was tried and decided by the Court below on the basis of such materials which came on record. To buttress this contention he has placed reliance on the decision of the Apex Court reported in A. I. R. 1987 S. C. 1242 (Ram S. Gupta (dead) by L. Rs. v. Bishun Narain Inter College and others) and 1994 Supplement (3) S. C. C. 698 (Baba K. Bhinge v. Samast L. Gavali and others) as well as (2001 (2) S. C. C. 355) and of this Court reported in (2001 (4) All. M. R. 601) He submits that there was sufficient pleading as well as evidence brought on record during the trial so as to decisively answer the subject issue in favour of the respondent. He has further pointed out that what is relevant to note is that the case made out by the plaintiff during the evidence, in particular in paragraph Nos. 3, 4, 7 and 8 of the examination in chief, has not been challenged by the petitioners during the cross-examination. If that be so, there is no reason to doubt the bona fide and reasonable requirement of the respondent-plaintiff and no fault can be found with the conclusion reached by the Court below to answer the issue against the petitioners tenants. He submits that even if there are some errors here and there in the reasoning or the discussion of the Appellate Court that should not be a reason to interfere with the decision of the Appellate Court in exercise of the powers under Article 227 of the Constitution of India. To support this contention he has placed reliance on the decision of the Apex Court reported in (M. M. Amonkar v. Dr. S. A. Johar) 1984 (2) Bom. C. R. (S. C.)441 : 1984 (2) S. C. C. 354 and (Jagdish Prasad v. Angoori Devi) 1984 (2) S. C. C. 590. He therefore, submits that this is not a case where the Appellate Court has returned finding of fact in the absence of any material on record in support of such a finding. According to him, the conclusion reached by the Appellate Court if can be supported on the basis of material on record, the Court should be loath to interfere with the same, in exercise of writ jurisdiction under Article 227. Learned Counsel, further contends that in so far as the issue of hardship is concerned, the Appellate Court has dealt with the relevant factors that are required to be taken into account for considering this issue in paragraph No. 33 of the judgment. He submits that it has come on record that the respondent has no other premises of her own, particularly in the locality of Thane. He submits that the respondent was staying at Khar in a rented premises and she had no other premises of her own except the suit premises. He further submits that it has come on record that alternative premises could be secured by the petitioners within the locality as well as city of Thane. Learned Counsel further contends that the Appellate Court even rightly adverted to the financial position of the petitioners and if that is taken into account, it is not possible to suggest that any hardship will be caused to the petitioners if the decree for possession was passed. In the circumstances, learned Counsel contends that the conclusion reached by the Appellate Court on the issue of reasonable and bona fide requirement as well as the issue of comparative hardship needs no interference.