ANIL P BANSAL Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the judgment and decree passed by the Small Causes Court on 29th April, 1992 in Appeal No. 220 of 1991. The premises in question are block Nos. 7-A and 7-B on the 7th floor of the suit building Chandramukhi on plot No. 316, Block No. IIP Backbay Reclamation, Nariman Point, Bombay 400021. The petitioners were the joint owners of the suit flats alongwith their aunt. The suit flats were subsequently transferred in favour of the petitioners after they became major. The respondents were inducted in the suit flats on leave and licence basis. But, since licence was subsisting on 1st February 1973, they became protected tenants by virtue of section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The present suit was filed by the petitioners for possession of the suit flats before the Court of Small Causes, Bombay being R. A. E. Suit No. 1496/4851 of 1983 on the ground of bona fide and reasonable requirement. The trial Court by judgment and decree dated July 12, 1991 decreed the suit and directed the respondents to deliver the vacant and peaceful possession of the suit premises accepting the need set up by the petitioners for their business as bona fide and reasonable requirement. Even the issue of comparative hardship has been answered in favour of the petitioners by the trial Court. Against the said judgment and decree the respondents carried the matter in appeal before the Appellate Court being Appeal No. 220 of 1991. The Appellate Court on the other hand has reversed the decree and dismissed the suit by the impugned judgment and decree. According to the Appellate Court, the suit was required to be dismissed because pleading with regard to need set up by the petitioners was not in respect of computer business for plaintiff No. 1 and diamond business for plaintiff No. 2, which however, has been asserted only during the evidence. The Appellate Court has, therefore, found that the case as proved has not been pleaded; and, for which reason, was of the view that the suit was required to be dismissed. Before the Appellate Court, it was argued on behalf of the respondents that, in any case, the requirement of the petitioners was not reasonable. That argument also found favour of the Appellate Court and the Appellate Court in para 17 has held that the petitioners could carry on their intended import export business in the premises situated in Maker Chambers which was admeasuring about 1300 sq. ft. In so far as, the question of comparative hardship is concerned, even that issue has been answered in favour of the respondents as the respondents would suffer inconvenience and hardship. It is this decision which is the subject matter of challenge in the writ petition under Article 227 of the Constitution of India.

(2.) THE learned Counsel for the petitioners contends that the tests applied by the Appellate Court are wholly improper and opposed to the settled legal position. In so far as the view expressed by the Appellate Court that the petitioners have not pleaded the case regarding the requirement for computer business, and diamond business the learned Counsel contends that in fact the pleading as filed before the trial Court was sufficient to answer the issue in favour of the petitioners. He further contends that it was not obligatory on the part of the petitioners to plead about the nature of business and if that be so, the reasons recorded by the Appellate Court cannot be sustained. Reliance has been placed on the decision of the Apex Court in the case of (Raj Kumar Khaitan and others v. Bibi Zubaida Khatun and another) reported in 1997 (11) S. C. C. 411 to support the above contention. The learned Counsel has also placed reliance on the decision of this Court in the case of (Commander Anand V. Badve v. G. M. Amphray Laboratories) reported in 1986 Maharashtra Rent Control Journal page 284 in particular para 6 thereof. The learned Counsel has also relied on the decision of the Apex Court in the case of (Ram Sarup Gupta (dead) by L. Rs. v. Bishun Narain Inter College and others) reported in A. I. R. 1987 S. C. 1242 to contend that, undisputedly, in spite of vague pleadings filed before the trial Court, no grievance was made by the respondents-defendants with regard to vagueness of pleadings. Moreover, it is argued that, in any case, issue regarding reasonable and bona fide requirement was framed and the parties having understood each others case thoroughly well proceeded with the trial. Further, the respondents/defendants allowed the petitioners to lead evidence on that issue without any demur; and, if that be so, such evidence cannot be over looked and the Court will be obliged to consider the requirement as pressed into service not only on the basis of the pleadings but also in the context of the legal evidence which has come on record. It is further contended that in any case, the trial Court has not confined the finding with regard to the business of computer and diamond business, as is found by the Appellate Court, but has accepted the case of the plaintiffs that the suit premises were required for business of import and export business for various commodities. It is argued that, so far as the need set up by the petitioners being bona fide and genuine has not been doubted by the respondents or for that matter by the Appellate Court. It is, therefore, contended that the petitioners had established their need to be genuine and bona fide. It is further contended that, in so far as, the reasonableness of their need was concerned, the trial Court has analyzed the evidence on record and has answered the same in favour of the petitioners, whereas the Appellate Court has dealt with the same only in para 17 to hold that the petitioners would carry on their business in the premiss at 127 Maker Chamber even though it has adverted to the fact that he had no concern with the said premises. It is, therefore, contended that the approach adopted by the Appellate Court was manifestly wrong and cannot be sustained. In so far as the issue of comparative hardship is concerned, the learned Counsel contends the even that has been improperly decided by the Appellate Court. On the other hand, contends the learned Counsel that the trial Court has rightly considered the relevant factors and applied the correct test. The learned Counsel has placed reliance in A. I. R. 1979 S. C. 272 (Mst. Bega Begaum v. Abdul Ahad Khan) case to contend that the Appellate Court has not applied the tests enunciated in that decision to the present case. In as much as, the petitioners have not only pleaded but also proved in the evidence that they have no other premises of their own in possession for establishing their business coupled with the fact that no case has been made out by the respondents-defendants that it was impossible to get another accommodation in the same city. It is therefore, contended that in view of the materials on record, the issue of comparative hardship can be answered only in favour of the petitioners and against the respondents.

(3.) ON the other hand, the learned Counsel for the respondents contends that the pleadings as filed before the trial Court with regard to the ground of reasonable and bona fide requirement are absolutely vague and therefore, no fault can be found with the conclusion reached by the Appellate Court that on such pleadings no amount of evidence would be of any consequence. The learned Counsel contends that the pleadings as filed are mere reproduction of the statutory provision with regard to the ground of reasonable and bona fide requirement and nothing more. In as much as, the petitioners have not specified the nature of requirement at all. The learned Counsel further contends that in any case, if this Court was to take the view other than the one taken by the Appellate Court, then the proper course was to remand the matter to the Appellate Court for reconsidering the issue of reasonable and bona fide requirement. As, in his submission the Appellate Court has mainly decided the matter on the basis of lack of pleadings against the petitioners. He further contends that the issue of comparative hardship has been recorded by the Appellate Court and the Appellate Court has recorded finding of fact in that behalf which cannot be interfered in writ jurisdiction under Article 227 of the Constitution of India. The learned Counsel further contends that the petitioners have also instituted another suit for the relief of possession after coming into force of Maharashtra Rent Control Act, 1999 and in such a situation, the present proceeding cannot be continued.