MEENAL EKNATH KSHIRSAGAR Vs. MESSRS TRADERS AND AGENCIES

JUDGEMENT

(1.) THIS Writ Petition is filed by the original plaintiff Mrs. Meenal Eknath Kshirsagar against Judgment and Order passed by the Appellate Bench of the Small Causes Court at Bombay dated 21st April 1990 in Appeal No. 360 of 1988. By the impugned Judgment, the Lower Appellate Court, reversing the Judgment of the Trial Court, dismissed the Suit instituted by the petitioner being R. A. E. Suit No. 372/1276 of 1993 to stand dismissed.

(2.) THE facts giving rise to this Writ Petition, briefly, are as follows : (a) The Suit premises in the present case is a residential flat situate at Cadell Road, Mahim in Greater Bombay. It is in a Society known as Bank Officers' Co-operative Housing Society situate at Final Plot No. 6-A, Town Planning Scheme No. 4, Cadell Road, Mahim, Bombay-400016. The area of the suit flat is 1500 sq. ft. This fiat stands in the name of the petitioner whose husband is a protected licensee and a deemed tenant in respect of flat admeasuring 1100 sq. ft. situated in a building known as Olympus Altamount Road, in Bombay in which the petitioner's brother-in-law Sridhar is residing with his family. (b) The above R. A. E. Suit No. 372/1276/83 was instituted by the petitioner Mrs. Meenal Eknath Kshirsagar for possession under Section 13 (1) (g) of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947 on the ground of reasonable and bona fidc requirement. According to the petitioner, respondent No. i is a firm of which respondent No. 2 is a partner. On 29th March 1972, an Agreement of leave and licence was entered into between Meenal on the one hand and respondent No. 1 herein Traders and Agencies-a firm registered under the Partnership Act. The said Agreement was in operation when the 1973 amendment to the Bombay Rent Act came into force by virtue of which respondent No. 1 became protected licensee under the Bombay Rent Act, 1947. According to the petitioner herein at the time of the filing of the above R. A. E. Suit No. 372/1276/83, she and her husband were occupying certain premises at 8, Park View, Little Gibbs' Road, Malabar Hill, Bombay-400006. According to the petitioner, the Park View fiat which was admeasuring about 2400 sq. ft. was owned by the wife of the partner Mrs. Kalra: that Mr. Kalra was a partner in the firm of M/s. Ferguson and Associates; that the petitioner's husband Eknath was also a partner in Ferguson and Associates and by way of inter-se arrangement in 1971-72 the Park View premises came to be given to Eknath, husband of the petitioner. According to the petitioner, it was a temprary arrangement pursuant to which the Park View premises came to be let out to Eknath, the husband of the petitioner. According to the petioner, in the present Suit at the relevant time when the partner-flat was permitted to be occupied by the petitioner and her husband Mr. and Mrs. Kalra were in Calcutta. However, in June 1983 Mr. Kalra was to return to Bombay and reside in the Park View premises and in the above circumstances, sometime in 1983-1984 Eknath, the husband of the present petitioner, had to vacate the premises at 8, Park View, Malabar Hill, Bombay. Consequently, the petitioner had to institute R. A. E. Suit No. 372/1276/83 which is the present Suit under Section 13 (1) (g) of the Bombay Rent Act, 1947. According to the petitioner herein, the Suit premises were let out to respondent No. 1-firm. According to her although the licence stands in the name of the firm, it was meant to be used exclusively and solely by respondent No. 2 who was the partner of the firm. The petitioner rely upon Ex-A which is the Licence Agreement dated 29th March 1972 in that regard. It is the case of the petitioner in the present Suit that the licence Agreement was entered into with respondent No. 1-firm on the assurance given by respondent No. 2 that his flat at Napeansea Road in the building known as Rambha was not ready for occupation and as aid by way of temporary accommodation the Suit premises were let out to respondent No. 2 although according to the petitioner, the Licence Agreement stood in the name of respondent No, 1-Firm. It is not in dispute that the deemed tenant is respondent No. 1-firm and not respondent No. 2. In the above circumstances, the petitioner in the present case has pleaded that she required the premises reasonably and bona fidr and in the circumstances, she was entitled to occupy the Suit premises. (c) At this stage, it is relevan: to note that prior to the present Suit being filed by the petitioner Mrs. Meenal Eknath Kshirsagar in 1983. one Mrs. Kaushalya Sahni instituted R. A. E. Suit No. 1393/4887/80 in the Court of Small Causes at Bombay against Eknath Kshirsagar (the husband of the present petitioner ). The said Suit was instituted in 1980 on the basis that Mrs. Kaushalya Sahani was an aged lady; that she used to reside at Calcutta where her husband died ; that she was suffering from cancer when the Suit was instituted in 1980; that Mrs. Sahani had let out the above flat in Olympus to Eknath, the husband of the present petitioner, and the area of which was 1100 sq. ft. That Suit was also instituted under Section (13) (1) (g) of the Bombay Rent Act by Mrs Kaushalya Sahani. That Suit was instituted only against Eknath because Eknath had entered into a leave and licence Agreement and he was fully protected in view of the amendment to the Bombay Rent Act. In that Suit, Bknath's brother Sridhar was not a party-defendant. In that Suit detailed evidence was recorded, both of Eknath and his brother Sridhar. I do not wish to comment about the judgment in the said Suit of 1980 filed by Mrs. Sahani. However, the evidence on record in that Suit indicates that Eknath was not only a deemed tenant in respect of Olympus, but he was also recognised by the Society in which the flat was situated, as a nominal member. In that case, a Written Statement has been filed by Eknath alleging that although he was a deemed tenant of Mrs. Sahani in respect of Olympus, the said flat was infact secured by him on behalf of his brother Sridhar. In that case, as in the present case, it was submitted that the flat in Olympus was meant for both Eknath as well as for his brother Sridhar and his family and in the circumstances, it was submitted that the requirement qua the present Suit premises at Mahim still subsisted and he was entitled to claim possession of the Suit premises herein. One more thing may be mentioned that even in the Suit of 1980 it was contended by Eknath, as could be seen from the Written Statement and his evidence on record, that the Park View premises were let out by way of temporary arrangement between the partners of Ferguson and Company which he was required to hand back to Mr. Kalra on his return from Calcutta and in the circumstances in that case, the same argument was advanced, as in the present case, that the premises at Olympus were required because the Park View fiat was a temporary arrangement. Even in that Suit of 1980, it was alleged and admitted that Ekhath alone was a deemed tenant and that he was a sole nominal member of the Society which owned the building Olympus and because he did not occupy the Suit premises which were let out to Sridhar, the Society had cancelled his nominal membership. At this stage it may be mentioned that in the present proceedings although the petitioner succeeded before the Trial Court, there is no finding of fact recorded by the Trial Court that Eknath had secured the premises in Olympus on behalf of his brother Sridhar. On the contrary, the Lower Court has found that there was nothing to indicate that Sridhar was a tenant of the premises at Olympus. In the above circumstances, I have to proceed on the basis that Sridhar was not a tenant of the premises at Olympus. I have to proceed on the basis that, Eknath, the husband of the present petitioner herein, had the right to occupy the premises at Olympus. At this stage it may be mentioned that in the entire Suit of 1980, Eknath, who had filed his Written Statement, suppressed the most material fact from the Trial Court viz. that his Wife Meenal, who is the petitioner herein, had a fiat at Mahim ; that the flat was let out to respondent; that the present Suit was instituted in 1983 by his wife Meenal. Even in his evidence in the 1980 Suit, Eknath did not disclose the above material facts to the Trial Court. Infact, the evidence on record indicates that Eknath produced the relevant records to indicate that the present petitioner i. e. his wife was a Lecturer and that her income was not sufficient alongwith his income to purchase another flat in Bombay. However, even at that stage in 1985 when he gave the evidence, he did not disclose that his wife had income by way of rent,. amounting to Rs. 1500/- in respect of the Mahim flat which is the Suit premises in the present case. In the above circumstances, the Trial Court in the Suit of 1980 instituted by Mrs. Sahani regarding Olympus, proceeded on the basis that the Park View premises were temporary accomodation and that Eknath needed the flat at Olympus and accordingly passed partial Decree in favour of Eknath. The partial Decree was passed because the Trial Court in the Suit instituted by Mrs. Sahani found that Eknath had no other accomodation in Bombay as he had vacated Park View premises in 1983. The above Decree was passed in the 1980 Suit because the Trial Court was completely kept in the dark by Eknath regarding his wife's ownership of the Suit premises and the pendency of the present Suit. At this stage I may mention that both Eknath and Mrs. Sahani went'in Appeal to the Appellate Bench of the Small Causes Court at Bombay. In the meantime, Mrs. Sahani expired. Her Appeal stands abated. However, Eknath's Appeal is pending before the Appellate Bench of the Court of Small Causes even today. One more fact may be mentioned that sometime in 1992, the heirs of Mrs. Sahani have a!so instituted one more Suit being R. A. E. Suit No. 513/1139/92 against Eknath regarding the flat at Olympus. As stated herein-above, I do not wish to comment about the judgment in the matter pertaining to Olympus. The only thing which I would like to point out is that in the entire Suit of 1980, Eknath suppressed the material fact that his wife was the owner of the Suit premises at Mahim and that she received rent from respondent No. 1-firm in respect of the Suit premises. Had that fact been disclosed to the Trial Court in the 1980 Suit, the course of events could have been different. These observations are relevant also because the Lower Appellate Court herein in the present case has found by the impugned judgment that the petitioner has come to the Court with unclean hands. The petitioner, i. e. the wife Meenal was not entitled to the Decree of eviction for the above reasons and in the circumstances, one of the grounds for dismissing her Suit was that she and her husband had come to the Court with unclean hands and by suppressing material facts. In the light of the evidence in the 1980 Suit and in the light of the Written Statement filed by Eknath,. I fully agree with the reasoning of the Lower Appellate Court in the present case. Secondly, I also agree with the decision of the Lower Appellate Court herein for one more reason. In the present Suit, the petitioner herein has suppressed that her husband was a deemed tenant of flat in Olympus. On the contrary in the Plaint she has alleged that she has no other residence in Bombay because she and her husband had to vacate the Park View premises. In view of the above, the Lower Appellate Court herein was also right in coming to the conclusion that even the present Suit of 1983 has been filed by suppressing the material facts and the petitioner herein has come to the Court with unclean hands. (d) As stated hereinabove, the 1983 Suit came to be decreed by the Trial Court. The Trial Court found that the Park View premises were a temporary arrangement and since Eknath had to vacate the premisss, the petitioner was entitled to claim under Section 13 (1) (g), Decree of eviction of respondent No. 1. The Trial Court also found that the petitioner and her husband Eknath were virtually separated because Eknath had to stay on his return from Madras at Bombay Yacht Club in Bombay and the petitioner herein had to stay with her mother and since they were totally dishoused, the Trial Court in the above circumstances, decreed the Suit in favour of the petitioner herein. However, the most material and pertinent fact is that the Trial Court in 1983 Suit has held that Sridhar was not a tenant of Olympus. Even the Trial Court in the 1983 suit has referred to the judgment of the Trial Court in the 1980 Suit of Mrs. Sahani and has held that Sridhar was not a tenant. This fact assumes great importance for two reasons. Firstly, that there is nothing on record to indicate that Sridhar was constitutent member of Eknath's family. The evidence on record indicates that only Eknath was a tenant of Mrs. Sahani ; that infact Eknath was a nominal member of the Society which owns the building Olympus ; that Sridher was not the tenant and that there was nothing to indicate that Eknath had secured the premises in Olympus on behalf of his brother Sridhar. In the circumstances Eknath and the petitioner only had right to occupy the premises at Olympus. Consequently, the Suit filed by the petitioner in 1983, claiming decree for possession has to fail because she has failed to prove her reasonable and bona fide requirement qua the Suit premises as she has a flat at Olympus. In the above circumstances, the Lower Appellate Court herein was right in reversing the judgment and Order of the Trial Court.

(3.) MR. Abhyankar, the learned counsel appearing on behalf of the petitioner vehemently submitted that in the present case, the material facts indicate that Park View premises were let out as a temporary arrangement to the petitioner's husband Eknath ; that the said premises belong to another partner Mr. Kalra ; that both Kalra and Eknath were the partners of Ferguson and Co. and by way of temporary arrangement the flat at Park View premises was given and when Kalra returned to Bombay, Eknath and the present petitioner were dishoused ; that as found by the Trial Court, Eknath had to stay at the Bombay Yacht Club and the petitioner had to stay with her mother at Malabar Hill and in the circumstances, the Trial Court was right in allowing the Suit under Section 13 (1) (g) of the Bombay Rent Act. He further submitted that in the present case, the Lower Appellate Court erred in coming to the conclusion that Eknath as well as the petitioner had suppressed the material facts so as to disentitle the petitioner from filing the Suit in 1983 and dismissing the Suit on that ground. Mr. Abhyankar argued that in the above case, the Lower Appellate Court had erred in coming to the conclusion that the petitioner herein had not come with clean hands. He submitted that in any event, the facts on record cannot disentitle the petitioner from claiming occupation of her premises at Mahim. He further submitted that the Lower Appellate Court erred in coming to the conclusion that there was no evidence on record to show that Eknath had secured the premises at Olympus on behalf of his brother Sridhar. In the circumstances, he submitted that since Sridhar was occupying the premises at Olympus and since the said premises were secured by Eknath, both for himself and for his brother and since a partial Decree has been passed in the Suit of 1980, the present Suit of the petitioner claiming Decree under Section 13 (1) (g) was maintainable and the Trial Court was right in granting Decree in favour of the petitioner,