RUKMINIBAI RAMVILAS LABOTI Vs. DHANPAL BABURAO HAVALE

JUDGEMENT

(1.) This is a petition by the heirs of the tenant challenging a decree for eviction passed by the trial Court and confirmed by the Appeal Court in respect of an open plot of land which was admittedly let out to the original tenant Ramvilas who is now represented by his legal representatives.

(2.) The site in question is an open site which was leased out to the original tenant Ramvilas by one Pandurang, Ramvilas had executed a rent note dated 9th February 1950 agreeing to pay Rs. 30/-per month. The rent note itself has not been exhibited though it is on record This site was purchasd by the plaintiff from the original owner Shripad who was a minor and represented by his father Narayan. Shripad had pot this property from his grand father Pandurang bv a gift deed dated 31st May 1951. When the property was purchased by the plaintiff from shripad. a suit filed by Shripad, being civil suit No. 125 of 1963. for recovery of arrears of rent was already pending. The purchaser was added as a co plaintiff in that suit and a compromise decree came to he passed by which the defendant-tenant was treated as a tenant of the present plaintiff and the standard rent was fixed at Rs. 10/-per month. The plaintiff then filed a suit on 1st February 1968 for possession of the suit plot alleging that the tenant was in arrears for a period of six months and that the plaintiff was in need of an open space for the purpose of constructing a male ward in a hospital which was already constructed by him, An additional ground on which possession was claimed was that the defendant tenant had put up a permanent construction without the permission of the landlord. The tenant denied the claim of the landlord. He took a stand that there was sufficient open space in which the plaintiff could raise the construction for the male ward. With regard to the arrears of rent, he pleaded that he had sent money orders, but the plaintiff had refused to accept the same and with regard to the alleged unauthorised construction, ne stated that he had carried out some repairs to the cattle shed and that he had done so in pursuance of the agreement between him and the original lessor. The trial Court held that the plaintiff had proved that he bona fide & leasonably required the possession of the suit property for erection of a new building. It may be stated at this stage that the claim of the plaintiff was treated as it was under section 13(1) (i) of the Bombay Rents. Hotel and Lodging House Retes Control Act, 1947 (hereinafter referred to as the "Rent Act" ) and at the instance of the plaintiff, an issue which way framed under section 31 (1) (g) came to be deleted. With regard to the alleged unauthorised construction, it was held that the plaintiff had failed to prove his claim on the ground of unauthorised construction. The claim on the ground of arrears of rent was also negatived. Having found that the plaintiff's requirement was bona fide and reasonable for erection of the new hospital ward, a decree for possession came to be passed.

(3.) During the pendency of the suit, the original tenant had died and his legal representatives who were brought on record in the suit filed an appeal. The main question which was argued before the Appeal Court was whether the plaintiff had proved that he reasonably and bona fide required possession of the suit plot for the purpose of erection of a male ward in his hospital as alleged by him. The other question which was argued before the Appeal Court was whether the plaintiff was entitled to get possession of the suit site from the legal representatives of the original defendant on that ground. Before the Appeal court it was Contended that the need of the plaintiff was not genuine because if the need was really genuine, he would not have waited for four years after he purchased the property. This contention was negatived and the evidence of the plaintiff was accepted that time was spent in removing the tenants of certain premises de from the property purchased by him from Shripad where he had constructed the hospital. The Appeal Court negatived the challenge to the bona fides of the plaintiff. When it was contended before the Appeal Court that the hospital which was being conducted by the plaintiff & his wife was only a maternity home and therefore, they cannot be said to need a male ward, the Appeal Court referred to the oral evidence of Dr. Hardikar who was a reputed Orthopaedic Surgeon. According to the learned Judge, a number of orthopaedic patients get them selves examined and operated, if required, in the hospital of the plaintiff through Dr. Hardikar. This evidence showed that what was styled as a maternity home was really a hospital building which was being used as a general hospital or a nursing home. It was found that the plaintiff had also purchased an x-ray machine and with the help of other doctors he was carrying out operations. The Appeal Court found that the plaintiff was thinking of starting a male ward in his hospital in order to keep the operated patients therein for post-operation treatment and if such ward was to be started, it would be necessary for the plaintiff to see that the said ward is detached from the female ward in the maternity home. The claim made by the plaintiff was, therefore, found to be bone fide. It appears that the Appeal Court also inspected the spot where It was found that there were nurses' quarters and the learned Judge found that the plot in question was necessary. It appears to have been conceded before the learned Judge that the practice of the plaintiff was flourishing day by day and, therefore, according to the learned Judge, a part of the open space was required for the purpose of parking of the cars and that if, as contended by the defendant, the male ward was constructed in the front courtyard of the main building of the hospital the show of the main building would be spoiled. Its vantilation was also likely to suffer, according to the learned Judge the dearnal Judge took the view that the demand of the plaintiff for getting possession of the back side courtyard, namely, the suit open site was not in any way unreasonable It was argued on behalf of the plaintiff before the Appeal Court that it was not necessary to consider the issue of comparative hardship as the claim was not one under section 13 (1) (g) of the Rent Act. But it was further argued that the defendant was interested in retaining possession of the open site because he had originally wanted to purchase the suit property. Reference was made to the evidence which showed that the defendants owned about 10 to 1 2 buildings at Karad, that they had sold two open sites and that they are in possession of open site of 3 acres near Karad Oil Mill. Evidence also showed that the defendants owned a residential bungalow with an open site of 4 to 5 acres surrounding it at a distance of 4 miles from Karad. It appears that It was argued before the Appeal Court that the suit was not governed by the provisions of the Rent Act because the suit premises were not let out for any of the purposes specified in section 6. This contention seems to have been accepted by the Appeal Court. A contention was also raised that the legal representatives of the original defendant, who was a statutory tenant, were not entitled to file an appeal. Having treated the claim as one governed by the Transfer of Property Act and having further held that the suit premises cannot be styled as residential premises, with the result that the legal representatives could not invoke the provisions of section 5 (11) (c) of the Rent Act, the learned Judge held that the appeal itself was not maintainable at the instance of the legal representatives. Conseauently the appeal came to be dismissed. The legal representatives have now filed this petition challenging the decree for eviction. 8th March. 1978