2008(6) ALL MR 237
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. VAZIFDAR, J.
Shri. Bhagwan Vithal Deokar Vs. Shri. Narendra Padmakar Yavalekar & Ors.
Civil Revision Application No.251 of 2008
11th April, 2008
Petitioner Counsel: Mr. A. V. ANTURKAR,Mr. S. B. DESHMUKH
Respondent Counsel: Mr. S. R. PAGE
Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.13(1)(g) - Suit for eviction - Bonafide requirement - Commercial premises - Premises in occupation of landlord only 40 sq. feet, not sufficient to carry on business while premises in possession of tenant 365 sq. feet - Tenant also having two more shops adjacent to suit premises - Need of landlord greater than that of tenant - Held, greater hardship would be caused to landlord if relief claimed was denied - Plea of tenant that landlord can use his residential premises on upper floors for commercial purpose, held, not tenable - Tenant liable to be evicted. AIR 1987 SC 1345 - Ref. to. (Paras 4 to 7)
Bir Bajrang Kumar Vs. State of Bihar, AIR 1987 Supreme Court 1345 [Para 9]
JUDGMENT :- This Civil Revision Application is filed by the tenant against the order of the District Judge at Pune dismissing the Petitioners Appeal and confirming the judgment of the Additional Judge, Small Causes Court, Pune, and directing the Respondents to hand over possession of the suit premises to the Respondents.
2. I see no reason to interfere with the concurrent findings of fact. Indeed, I find the conclusions reached by both the Courts below on these questions, to be well founded in law, on facts and even in equity.
3. Respondent No.1, the landlord had filed a civil suit against the tenants viz. the Petitioner and the other Respondents for possession, arrears of rent and mesne profits. The suit premises were given on lease to the Petitioner's father who carried on business as a gold smith therein. The suit was based on various grounds. Respondent No.1 succeeded on the ground that he required the suit premises bona-fide and reasonably for his own use and occupation. Both the Courts below after considering and analyzing the evidence in detail, have come to the conclusion that Respondent No.1 reasonably and bona-fide required the suit premises for his own use and occupation and that it is Respondent No.1 who would face greater hardship than the Petitioner if the reliefs sought were not granted.
4. It is admitted that Respondent No.1, the landlord, also carries on business on the ground floor of the building in which the suit premises are situated. The building is in a busy commercial locality. However, admittedly, the room in his occupation admeasures only 40 sq. ft. (4 x 10 ft.). The Petitioner on the other hand occupies the suit premises which admeasure 365 sq. ft. What is even more important to note is that the Petitioner has two more shops bearing Nos.821 and 822 close to, in fact adjacent to the suit premises.
5. Weighed in the balance, there can be no doubt that the need of Respondent No.1 is greater than that of the Applicant and that the hardship that is likely to be faced by Respondent No.1 by the denial of the reliefs claimed by him is bound to be greater than the hardship faced by the Applicant if the reliefs claimed are granted.
6. Mr. Anturkar submitted that Respondent can as well carry on his business on the upper floors which are in his possession. He submitted that in law the premises can be used for business of this nature.
7. I am unable to accept this submission. Both the Courts have found that the premises occupied by Respondent No.1 on the upper floors are used for residential purposes and not for business purposes. I am not inclined to accept the tenants suggestion that the landlord should convert the residential user, even if it is for his family to commercial user to accommodate his tenant. This is more so when the tenant has additional premises adjoining the suit premises. It could with equal force be argued by Respondent No.1 that the Petitioner should use his residential home for his commercial activity.
8. There can be little doubt that the premises presently in the occupation of Respondent No.1 are not adequate to run his business. No fault can be found with this finding. Nor can any fault be found with the finding that considering the nature of the business, the ground floor premises are suitable for the needs of Respondent No.1. Indeed, there is absolutely nothing on record which even remotely indicates that the said premises are not reasonably and bona-fide required by Respondent No.1.
9. Faced with this, Mr. Anturkar submitted that similar proceedings have been adopted by Respondent No.1 against another tenant in adjoining premises admeasuring 185 sq. ft. and both the Courts below have passed a decree for eviction against the tenant therein. He submitted that a Writ Petition against the said order being Writ Petition No.5257 of 2000 has been admitted by a learned Single Judge by an order dated 4.1.2000. He submitted therefore that this petition also ought to be admitted. Mr. Anturkar invited my attention to the fact that the issue as to whether the Plaintiff/Respondent No.1 herein had proved that the premises were required for their bona-fide use and occupation, is common to both the suits. He therefore submitted that I ought to admit this petition as well.
Mr. Anturkar relied upon a judgment of the Supreme Court in the case of Bir Bajrang Kumar Vs. State of Bihar & Ors., AIR 1987 Supreme Court 1345. Paragraph 2 of the judgment reads as under :-
"2. Heard counsel for the parties. After going through the record of the case it appears that one of the cases involving an identical point has already been admitted by the High Court but another identical petition was dismissed by the same High Court. This, therefore, creates a very anomalous position and there is a clear possibility of two contradictory judgments being rendered in the same case by the High Court. In these circumstances, we allow this appeal and set aside the order dismissing C.W.J.C. No.163 of 1985. This appeal is remanded to the High Court to be heard along with C.W.J.C. No.5728 of 1984 which is pending hearing." (emphasis supplied)
10. The above judgment has no application to the facts of the present case. A decision in the other suit even if against the Plaintiff on the question of bona-fide requirement, would not necessarily result in the dismissal of this suit. The two matters in this case do not involve identical questions as was the case in the judgment of the Supreme Court. It is only when a decision in one matter is bound to affect the decision in another that the judgment would apply. This is not the case here.
11. In the present suit, the bona-fide requirement involves questions of fact and, in any event, mixed questions of law and fact. It is possible that a Court may decide the question of bona-fide requirement against the landlord in one case but not in another. This would depend on the facts and circumstances of each case. This would be so even if the properties are located in the same building.
12. Therefore, significantly, in the present case, neither party sought to tender the evidence in the other suit as evidence in this suit. The evidence in that matter was not read as evidence in this matter.
From the evidence on record in the present case, there is nothing that militates against the case of Respondent No.1 on the question of bona-fide requirement.
13. It is also pertinent to note that in the said Writ Petition the issue of bona-fide requirement was not the only issue. Issue No.1 was whether the presentation of the suit by the Plaintiff was maintainable after the death of one Parkhi. Issue No.2 was whether the Court has jurisdiction to entertain the suit. Both these issues were dealt with exhaustively in the said suit and in the Appeals filed by both the parties therein. Both these issues were also answered in favour of the landlord. The order dated 4.10.2000 is a non-speaking order and it is not possible to state the ground on which the same was admitted.
14. In the circumstances, the Civil Revision Application is dismissed. The time to vacate is however extended upto 31.8.2008 subject to the Petitioner and the other Respondents filing in Court the usual undertaking including to vacate and hand over vacant and peaceful possession of the suit premises thereafter subject of course to any orders of the Supreme Court.