R E FANIBUNDA Vs. NICHOLAS OF INDIA LTD

JUDGEMENT

(1.) THIS Writ Petition under Article 227 of the Constitution of India takes exception to the judgment and Decree dated 16th July, 1996 passed by the Small Causes Court at Bombay in Appeal no. 438 of 1990 in R. A. E. Suit No. 555/2438 of 1977. The premises in question is situated on the ground floor being Flat No. 1 and the Garage No. 1 in the basement in the building known as 'sorrento at mount Pleasant Road, Mumbai. The Respondent No. 1 was Inducted as tenant in the said premises, pursuant to Lease Agreement dated 1st November, 1966 by the erstwhile landlord of the suit premises. The suit premises were purchased by the petitioner in the year 1974, At that time, the petitioner was unmarried. It is not in dispute that tenancy was attorned in favour of the petitioner after she purchased the suit property. The Petitioner got married to Dr. Fanibunda in the year 1975. After marriage, the Petitioner started living with her husband in Amarchand Mansion, 16, madam Cama Road, Mumbai 400 039. The Petitioner instituted the subject suit on 9th June, 1977 for possession of the suit premises from the respondent No. 1. The ground on which possession is sought can be oulled out from paragraph A and subsequently inserted paragraph 4a of the Plaint, which read thus:-PARA 4 :

(2.) IT is relevant to note that during the course of adducing evidence, the Petitioner examined herself as well as other witnesses and brought on record several details and particulars to justify the ground for possession of the suit premises i. e. bonafide and reasonable requirement of the Petitioner and her family members. It is not in dispute that the Respondents allowed the said evidence to be let in without any demur. At this stage, it is relevant to note that the petitioner moved an application for amendment of plaint, so as to implead Defendant Nos. 2 and 3, respondent Nos. 2 and 3 herein, sometime on 16th january, 1980, which application was allowed on 5th June, 1980. Subsequently, the Petitioner took out another application for adding Defendant no. 4/respondent No. 4 herein, which was allowed on 26th August, 1988. By this amendment, the petitioner asserted that Defendant No. 1, who was the original tenant, had become statutory tenant after expiry of the lease period in November, 1976. It is further asserted that Defendants 2, 3 and 4 were unlawful occupants and were joined as defendants in order to get effective relief of possession on the ground of requirement. Be that as it may, as observed earlier, the Petitioner adduced evidence in support of her case of her requirement being bonafide and reasonable. The trial Court, on analysing the evidence on record. however, negatived the plea taken by the Plaintiff in so far as her personal requirement. Undisputedly, the Petitioner is suffering from polio since 11 years of age and because of that, her leg muscles and stomach muscles are partially paralysed. According to the Petitioner, the lift in the building where the Petitioner was presently staying along with her husband in Amarchand mansion situated at Madam Cama Road was not working properly on account of which, she was finding it difficult to climb up or climb down from her flat in the building which was on the first floor. The second reason given by the petitioner was that in Amarchand Mansion Building, which was her matrimonial home, prostitution business was rampantly going on and on account of which, she wanted to shift her residence in the suit premises. The next reason given by the petitioner was that the condition of Amarchand mansion including the flat in which she was residing was not good. Besides, it was contended that nuisance was caused on account of air conditioner which was fitted in the office and/or outside the office of T. W. A. (now Jet Airlines)in the Amarchand Mansion. The next reason given by the Petitioner was that she was unable to bring her car upto the steps of the portico in Amarchand mansion, because there is a taxi stand in front of the portico. Moreover, there is a restaurant in the said building known as Golden Gate restaurant and the visitors in that Hotel, park their cars near the pavement. Besides, the petitioner is required to walk on the said pavement, which was always wet and oily because of the cars parked nearby. It was also alleged that garbage was dumped below the window of her mother-in-law's bed room in Amarchand Mansion. All these factors were pressed into service on behalf of the Petitioner, but the same have been negatived by the Trial Court. However, the Trial court accepted the plea of reasonable and bonafide requirement of the suit oremises, canvassed on behalf of the Petitioner, holding that the present premises in her occupation in Amarchand Mansion, tnough admeasuring about 2900 square feet, was insufficient for her family. The Trial Court found that besides the Petitioner and her husband, the mother-in-law of the Petitioner and her two daughters (twins) were staying in the Amarchand mansion. The said premises though admeasuring 2900 square feet, essentially consisted of four rooms plus one makeshift bedroom, one kitchen and one servant s room with attached lavatory. Out of the said rooms, one room was used as dental clinic, another room was used as dark room, the third room was used as hall-cum-dining room and the fourth room was used as bed room of petitioner, her husband, two daughters (twins)which had attached bath and lavatory. The makeshift bed room which was carved out from the drawing and dining room was used by the petitioner's mother-in-law, who was around 90 years of age. The Trial Court accepted the petitioner's version that on account of the growing business of Petitioner s husband, he required additional space for his clinic. The trial Court also accepted the Petitioners version that her two daughters (twins) would require separate bed room, as they were already about 12 years of age when the Trial Court decided the case. The Trial Court also accepted the petitioner's version that the present bedroom arrangement of her mother-in-law was not proper, as because of her advanced age, she was unable to walk upto the bath and lavatory as there was no attached bath and lavatory in her makeshift bed room. Accordingly, the Trial Court held that the requirement of the Petitioner was bonafide and reasonable. The Trial Court then proceedec to examine the issue of comparative hardship and found that the Petitioner would suffer greater hardship in the event decree is refused: whereas, the Defendants would not suffer any hardship as it was possible for them to take another premises in the same locality. Accordingly, by the Judgment and Decree dated July 12, 1990, the Trial Court decreed the Suit filed by the petitioner and directed the Defendants to quit, vacate and hand over vacant and peaceful possession of the suit flat by the end of October, 1990.

(3.) AGAINST this decision, Respondent Nos. 1,2 and 3 preferred appeal being Appeal No. 438 of 1990 before the Appellate Bench of the small causes Court. The Appellate Court affirmed the view taken by the Trial Court that the Petitioner cannot be non-suited on the ground of vagueness or inadequacy in the pleadings, especially when the petitioner was allowed to adduce evidence in support of her case of reasonable and bonafide requirement and which evidence was allowed to be let-in by the Respondents, without any demur. In so far as merits of the contention are concernec, the Appellate Court also affirmed the view taken by the Trial Court with regard to the various reasons pressed into service on behalf of the Petitioner that the same were devoid of any merits. In that sense, that reasoning is concurrent view recorded by two Courts below. At this stage itself I may record that there is no question of interfering with the said concurrent opinion recorded by the two Courts below in exercise of writ jurisdictin. That view cannot be labelled as perverse or manifestly wrong This court shall, therefore, be bound by the finding of fact recorded by the two Courts below on those aspects. in other words, even the Appellate Court rejected the Petitioner s case with regard to lift in Amarchand Mansion was not working properly or that her car cannot be brought up to the portico and that, prostitution business was going on in amarchand Mansion or that garbage was dumped in the compound of Amarchand Mansion causing nuisance to the Petitioner or her family members or that the air conditioner unit of T. W. A. was causing any nuisance to the Petitioner and her family members. The Appellate Court has also negatived the Petitioner s case that proper repairs are not carried out in Amarchand Mansion and the building was dangerous. The Appellate Court has also found that it is not a case that the Plaintiff has no other place for residence for which reason she requires the suit premises. Further, it is neither the case of the Plaintiff that as the premises in amarchand Mansion were tenented premises, she wanted to reside in her own premises being the suit premises. These findings are based on evidence on record. In other words, the Appellate court rejected the Petitioner s plea of bonafide and reasonable requirement, which was founded on the aforesaid reasons. In so far as the last aspect which weighed with the Trial Court that the present accommodation in Amarchand Mansion was insufficient, the Appellate Court reversed even the said finding of fact recorded by the Trial court. It needs to be mentioned that the Trial court was essentially impressed on the ground that the Petitioner's husband required additional space for his growing business, and that, the petitioners two daughters (twins) required separate bedrooms. In so far as the finding with regard to the requirement on account of growing business of dental clinic of the Petitioners husband, the Appellate Court has discussed the said aspect in paragraph 25 at page 418 and again at pages 421 to 425. The Appellate Court has essentially found that the Petitioner has improved her case from time to time. The Appellate Court has taken into account the fact that the petitioner's husband in his cross-examination has conceded that the requirement of additional space for dental clinic business was not in the mind of the Plaintiff when the Suit was filed. He has further deposed that he was not aware of institution of the suit. It is further noticed by the Appellate Court that the Petitioner has not stated anything about the expansion of dental clinic of the Petitiones husband in her evidence. However, ofter the evidence of the petitioner was over and she was cross-examined at length, the Petitioners husband was examined and for the first time, he has come out with the case that he intends to expand his dental clinic. However, he has not given the particulars of expansion of his dental clinic, nor he has anything to show such intention prior to the date on which he gave his evidence. Moreover, the court has found as a fact that the Petitioners husband was entertaining his patients in Amarchand mansion only on prior appointment. Besides this. Appellate Court has adverted to the fact that from the income-tax returns of Petitioners husband. it would be seen that there is no significant increase in his dental clinic business, which was the case sought to be made out by the Petitioner. Inasmuch as it is noted that for the year 1975-76, the total professional income of the Petitioner s husband is only Rs. 42,387/-, whereas, the rest of the income was by way of dividend and interest derived by him. Whereas, almost after ten years thereafter i. e. in the year 1985-86, the professional income derived by the Petitioners husband was only Rs. 56,833/- and the rest was income from dividend and interest. Similarly in the year 1996-87, though the total income is shown as Rs1,67,535/ but his professional income during that period is only Rs. 74,233/- and the rest is on account of dividend and interest earned by him which was the other source of income. The appellate Court has also recorded that there is no positive statement by the Petitioner s husband in the evidence that because of his growing practice in dental clinic, the present accommodation in his possession was inadequate. The Appellate Court on taking the totality of the evidence has not accepted the plea of the Petitioner regarding the additional requirement for her husband s clinic. Accordingly, the Appellate Court reversed that finding of fact recorded by the Trial Court. In so far as requirement of the two daughters (twins)for a separate bed room, even that finding of fact has been reversed by the Appellate Court. The appellate Court has noted that the premises at amarchand Mansion is sufficiently big, as it admeasures 2900 square feet. The Appellate Court has further found oh appreciating the evidence on record that having regard to the size of the living room which was admeasuring 27. 6" x 16. 6", the same could be used during night time. The appellate Court further found that in any case the petitioner's daughters could also be adjusted in the makeshift bed room which was equally big and admeasuring about 14. 6" x 17. 6", which was used by her mother-in-law. The Appellate Court found that if the twin daughters of the Petitioner used the said bed room of the mother-in-law, it will be helpful for the mother-in-law who was 96 years old and has also sight problem. Besides, the appellate Court has doubted the fact that the mother-in-law was staying along with the petitioner. The Appellate Court accordingly held that the Petitioner failed to establish element of necessity with regard to the suit premises, amd therefore, the plea of requirement being reasonable and bonafide, could not be accepted. In paragraph No. 38 of the Judgment, the Appellate court has also considered the fact that only three and half years prior to the institution of the suit, the Plaintiff had purchased the suit premises. The Petitioner never asked for possession of the suit premises from the defendants prior to the marriage or even after the marriage before the institution of this Suit in the year 1977. There is no mention about the fact that she intended to occupy the premises after her marriage, and therefore, she had purchased the suit premises - nor she has stated that the suit premises is convenient to her because of her handicap nor such fact is brought on record in the pleadings. The Appellate Court after taking the totality of the circumstances, and evidence on record, found that the Petitioner has improved her case from time to time, for which reason, it was not possible to hold that she had proved her requirement as reasonable and bonafide. Accordingly, the Appellate Court was pleased to set-aside the said finding. In so far as the finding regarding comparative hardship is concerned, the Appellate Court has affirmed that finding of the Trial Court. However, since appellate Court reversed the finding of fact recorded by the Trial Court in so far as reasonable and bonafide requirement of the petitioner is concerned, the Appellate Court was pleased to allow the Appeal and set aside the judgment and Decree passed by the Trial Court by the impugned Judgment and Order dated 16th July, 1996.