W.P. No.440 of 1994,W.P. No.3271 of 1994

6th March, 2009

Petitioner Counsel: M. M. SATHAYE
Respondent Counsel: V. A. THORAT

Cases Cited:
Tarachand Hassaram Shamdasani Vs. Durgashankar G. Shroff, 2004 (Supp.) Bom.C.R. 333 [Para 8,9]
Mrs. Minal Eknath Kshirsagar Vs. M/s. Traders and Agencies, AIR 1997 SC 59 [Para 10]
Gaya Prasad Vs. Pradeep Shrivastava, AIR 2001 SC 803 [Para 11,21]
Ashok Babanrao Viskhande Vs. Murlidhar Ramratan Bhandari, 2003 (Supp.) Bom.C.R. 392 [Para 12,13]
C. Karunakaran (dead) by LRs. Vs. T. Meenakshi, (2005)13 SCC 99 [Para 12,13]
Rajkumar Khaitan Vs. Bibi Zubaida Khatun, (1997)11 SCC 411 [Para 14]
Ramniklal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, AIR 1964 SC 1676 [Para 15]
Suhasini A. Parab Vs. B. H. Khatu, 2002(4) ALL MR 770=2003(1) BCR 733 [Para 19]
Bega Begum Vs. Abdulahad Khan, AIR 1979 SC 272 [Para 19]

JUDGMENT

JUDGMENT :- This Judgment will dispose of both the Writ Petitions, which are directed against the self-same Judgment and Decree passed by the 5th Additional District Judge, Nasik dated 12th October, 1993 in Civil Appeal No.333 of 1989, allowing the Appeal preferred by the landlord and setting aside the order passed by the trial Court dismissing the suit and instead ordering delivery of vacant possession of Eastern portion of the suit property admeasuring 6 ft. x 10 ft. to the landlord within three months from the date of the order with further consequential directions.

2. The former Writ Petition is filed by the tenant, whereas the later by the landlord. The tenant has questioned the correctness of the finding recorded on the issue of bona fide and reasonable requirement of the landlord and also on the issue of comparative hardship and of ordering partial eviction from the suit premises. On the other hand, the landlord has challenged the finding on the issue of comparative hardship and the decree for possession limited to partial eviction and not for the whole of the suit premises.

3. The landlord filed suit for possession before the Civil Judge, Junior Division, Nasik being RCS No.110 of 1981 in respect of the Municipal House No.1414B situated on Bhadrakali Road, Nasik upon CTS No.2028B, which is a shop premises consisting of three Khans. The relief of possession was claimed on diverse grounds. However, in the present Petitions, filed by the landlord as well as the tenant, the only ground for possession that needs to be addressed is bona fide and reasonable requirement of the landlord and that of comparative hardship and partial eviction. In the context of these issues, in paragraph-6 of the plaint, the landlord has asserted that he was engaged in goldsmith business. He has four sons who have become major. The eldest son is Dattatraya aged 32 years, who is in service. Second son Jaywant, about 30 years. Third son Yashwant is of 26 years. Both these sons were unemployed and were extending help to the landlord in his goldsmith business. He has stated that his first three sons have been married. It is then stated that the plaintiff has only one shop in his possession, which can be used by him for his business. It is then stated that in the western side of the said shop, there is one staircase for going upstairs and beneath that staircase there is very little space, which is not useful for the shop. It is further stated that his youngest son was doing business in the shop which was in his possession. His son uses the space below the staircase for putting up Bhatti and also stores his business items. The landlord has asserted that the area available with the landlord was not sufficient for his business and he was also using gallery attached to his residence on the second floor for his business activities. He has then stated that now the business of goldsmith does not yield good returns and also because his sons Jaywant and Yashwant have no interest in the goldsmith business, it has become necessary for him to think of increasing his income. Moreover, keeping in mind the future of his two sons and to give them sufficient independence and also keeping in mind the arrangement in the family so that no disputes would arise between the family members after they are independent, it has therefore, become necessary to provide them means of income. It is then stated that his third son Yashwant was also married and has children. It is further stated that as there is no independent sufficient income from his business, there is quarrel between the female family members. For that reason, the second son of landlord intends to start his independent stationery business for which he would require the shop premises. It is then stated that the third son has qualified up to B.A., but is without any job and the degree has no value so as to secure good employment. Moreover, the said son has no desire to take up any employment. Besides, keeping in view his age, it may not be possible to get employment. For all these reasons, he intends to start independent cloth business. It is then stated that for the needs of both the sons to start their independent business, the plaintiff has enough capital arrangement and is willing to take loan from the bank if required. For all these reasons, the plaintiffs asserted that the suit premises are bona fide and reasonably required urgently by the plaintiff for his use and occupation as well as for the use and occupation of the members of his family. It is further stated that if the possession of the suit premises in not given to the plaintiff, he and his family members would suffer irreparable hardship. Indeed, the tenant by filing Written Statement disputed the correctness of the stand taken by the plaintiff. During the trial, the plaintiff entered the witness box and deposed about the need of the suit shop being bona fide and reasonable. As can be discerned from paragraph-4 of the examination-in-chief, he has reiterated the case made out in the plaint regarding bona fide and reasonable requirement. In his evidence, he has disclosed the area in possession of his son under the staircase from where he was conducting his business, which is only 3 ft. x 8 ft. He has deposed that the space available under the staircase is not sufficient for even doing his business. He has stated that income from his business was not sufficient to meet his house expenditure for which he intends to allow Yashwant to start cloth business and Jaywant cutlery business independently to have their own income and expenses separately. He has stated that his sons do not have space for starting their separate business. Therefore, they are in bona fide need of the suit shop.

4. Relying on the evidence of the plaintiff that he has stated that Jaywant intends to start cutlery shop, whereas in the plaint it is stated that Jaywant would start independent stationary business, the argument canvassed on behalf of the defendant/tenant that the requirement of the landlord was not bona fide and reasonable, this contention has been dealt with by the Appellate Court and rejected. I shall refer to that aspect a little later.

5. Reverting back to the evidence of the plaintiff in the cross-examination with regard to the issue of bona fide and reasonable requirement, questions were put, in response to which the plaintiff has answered the same. The suit premises consisted of three galas of house. The suit house was ground plus one. That the whole first floor of the suit house was in his possession. He has stated that he has shifted his business from Pagadbandha lane, Nashik to suit house after giving possession of the rented premises to his landlord but he has continued to do his business from the suit building. He has stated that facing to Bhadrakali Road there are four shops. One is of temporary in the suit house. Whereas facing to the Tanksal lane there are two temporary shops in the suit house. He has stated that when he had purchased the suit property three temporary shops were existing there right from that time. The said temporary shops are in the same condition even now. He has stated that one of the temporary shop was in dilapidated condition. The questions put to plaintiff during cross-examination of some relevance can be seen from paragraph-10 of his evidence. The plaintiff has stated that he was not maintaining any account of his business. He has stated that one shop facing to Bhadrakali Road was in his possession. Mukunda was doing business of goldsmith in the suit shop. The business conducted in the said shop is run in the name and style as "V. B. Mohadkar and Sons". He has stated that he and Mukunda were doing separate business. Mukunda started his business 10 years back. Witness was then asked about the business of Mukunda and other details, which are of no relevance to decide the point in issue. The plaintiff was then asked about the details of the building constructed by his son Dattatraya. In response to which he has stated that there are residential blocks on the two storied of the suit building. Suggestion put to him that on the ground floor of the said building five shops are constructed and have been sanctioned by the Nashik Corporation has been denied by the plaintiff. The other evidence in the cross-examination which has bearing in the point in issue reads thus :

"When I purchased suit house deft. Shri. Gore, Ghatendas one barbar, one tailor Thakur were the tenant on the ground floor. One Dashrath used to seat near hotel and was running his pan-bidi shop. Not true that apart from the above mentioned tenants there was another washerman, as a tenant in the suit house. Ghatandas was running his hotel in the premises admeasuring 10 x 10ft. Dashrath were occupying the space admeasuring 3 x 3 for his pan bidi shop. Barbar was in 6 x 8 ft while tailor 10 x 10 ft. After Ghatendas one Pesumal was started running hotel business. In the year near about 1970 I got possession from Pesumal through Court, together with speace occupied by Dashrath. 2 yrs. back possession of Barbar's got. Not true that tailor handed over possession his premises to me. The barbars shop is not being used by me, Witness volunters answer that because it is dilapidated condition. Not true that apart from the shop premises in my possession in which my business is going on there are other 2 shops in my possession in the suit house."

6. The trial Court on analysing the evidence proceeded to answer the point in issue primarily on the reasoning that the plaintiff had full details about the new building constructed by his son Dattatraya named as "Guruprasad", but was unwilling to disclose the details thereof. No plans of the said building were produced. The trial Court then proceeded to observe that it is possible for the plaintiff to have separate premises in the said building for the business of his two sons. On this reasoning, the trial Court answered the issue of bona fide and reasonable requirement against the landlord. Even the other grounds for eviction of tenant came to be answered against the landlord. Resultantly, the suit for possession filed by the landlord was dismissed by Judgment and Decree dated 6th July, 1989. Against the said decision, the landlord carried the matter in appeal, namely, Appeal No.333 of 1989. The Appellate Court in the first place found that the approach of the trial Court in answering the point in issue solely on the basis of construction of one new building by Dattatraya, son of the plaintiff/landlord, was inappropriate and manifestly wrong. The conclusion reached in the context of the said fact by the trial Court were based on surmises and conjuncture. In fact, there was no pleading of the defendant in respect of the said building being available to the plaintiff in his own right for his own business or for that matter for offering it to his two sons to whom he intended to settle by starting separate business for each of them other than the business of goldsmith, in which he was engaged. It has further noted that the plaintiff had denied the existence of any shop on the ground floor of the new building. Moreover, the photograph of the said new building constructed by the plaintiff's son Dattatraya showed that it was only a stilt portion. Obviously it was an open space. Besides the Appellate Court then proceeded to analyse the pleadings and evidence of the plaintiff. The argument regarding discrepancy in the pleadings and the evidence of plaintiff as to what purpose the suit shop was intended to be offered to Jaywant-whether for stationery shop or cutlery shop-has been dealt with and rejected on the finding that it is not material so as to have any impact on the factum of bona fide and reasonable requirement of the landlord. The Appeal Court has taken note of the fact that the plaintiff has only one shop premises which was already in his occupation where he was doing his present business. Along with him even Mukunda was engaged in same business and using a small space available beneath the staircase. It has accepted the claim of the plaintiff that neither the plaintiff nor his sons Jaywant and Yashwant have any other premises to start their business. It has also noted that the plaintiff was using even first floor of his gallery (attached to his residential premises) for doing his business. It has also noted that the plaintiff was not interested in involving his two sons Jaywant and Yashwant along with in the same business, as he was keen to settle them separately and also with a view to generate independent income from different type of business. On that reasoning, the Appellate Court proceeded to conclude that the need pressed into service by the plaintiff to settle his two sons in separate business was bona fide. The question whether the requirement was reasonable is also separately addressed by the Appellate Court. The Appellate Court has taken into account that the plaintiff has three shops in Tanksal lane, out of which only two shops are in his possession. One out of that is in dilapidated condition. The efficacy of the cross-examination of the plaintiff, extracted in the earlier part of this Judgment, has been considered by the Appellate Court in paragraph-13 of the impugned Judgment. It has found that presently, the plaintiff was in possession of three shops which were in Tanksal Lane and form part of the suit building. It has also noted that the shop in the Tanksal Lane was offered to the defendant in exchange, but the defendant refused to accept the said offer. It has opined that obviously the shop in Tanksal lane could not have fetched good business and profit, whereas the suit premises were facing the main road. It then proceeded to hold that the plaintiff would be justified in insisting for the suit shop which is on the main road so that the business to be conducted therefrom would result in good business. Taking over all view of the matter, the Appellate Court therefore, proceeded to answer the issue of bona fide and reasonable requirement in favour of the plaintiff/landlord. However, insofar as the issue of comparative hardship is concerned, the Appellate Court was of the view that no hardship would be caused to the plaintiff, if only partial eviction decree was to be passed. That opinion is founded on the basis that the plaintiffs son could be accommodated in that part of the premises, who can start his cloth business. His need would be satisfied. Accordingly, the Appellate Court proceed to pass decree for partial eviction only to the extent of area admeasuring 6 ft. x 10 ft. out of the suit premises.

7. As aforesaid, aggrieved by this decision of the Appellate Court, both the landlord as well as the tenant have approached this Court by way of Writ Petition under Article 227 of the Constitution of India. The first question that needs to be addressed is whether the finding of fact reached by the Appellate Court on the issue of bona fide and reasonable requirement can be said to be manifestly wrong or error apparent on the face of the record or perverse. After having waded through the pleadings and evidence of the parties, in my opinion, the conclusion reached by the Appellate Court on the said issue is unimpeachable. If so, the finding of fact recorded by the Appellate Court on the issue of bona fide and reasonable requirement of the plaintiff/landlord will have to be upheld being binding even on this Court. To get over this position, only two arguments were canvassed before me on behalf of the tenant.

8. The first argument is that the fact that the plaintiff was in possession of three shop was not disclosed in the plaint, though a material and relevant fact. According to the tenant, this fact has come on record only during the evidence of the plaintiff. That too, when confronted in cross-examination by the tenant. It is argued that the landlord will have to be non-suited for having failed to disclose the material and relevant facts, which had bearing on the outcome of the ground of bona fide and reasonable requirement. To buttress this submission, reliance is placed on the decision of our High Court in the case of Tarachand Hassaram Shamdasani Vs. Durgashankar G. Shroff and ors., 2004 (Supp.) Bom.C.R. 333. On the other hand, Counsel for the respondent submits that this argument is the outcome of distorted reading of the pleadings. In that, the plaintiff had already disclosed in the plaint that he was in possession of one shop premises which is used for his business in the suit building, as can be discerned from paragraph-6 of the plaint. Besides him, his son Mukunda was using small space beneath the staircase for his independent business. Even in the examination, the plaintiff has reiterated this position. However, the argument of the tenant was on account of the facts in the cross-examination which portion is already extracted herein before. According to the landlord, however, the premises which are now in possession o the landlord were originally occupied by one Ghatandas and later on by Pesumal who started his hotel business. Possession thereof was eventually received by the plaintiff through Court in the year 1970. The plaintiff has already made reference to the said premises in paragraph-6 of the plaint, albeit without giving specific details thereof. Besides this premises, the premises which were used by one Dashrath, who used to sit near the hotel and conduct panbidi shop also became available. Significantly, the premises in possession of the Ghatandas later on with Pesumal, which has now come in possession of the plaintiff admeasure only 10 ft. x 10 ft., in which the plaintiff was already conducting his business. His son Mukunda was also occupying portion of the space beneath the staircase for his business. The premisses which were received from Dashrath were only 3 ft. and 3 ft. used by him for his panbidi shop. It is not a case of non-disclosure of those premises, as such. It is further contended on behalf of the landlord that the premises referred to as received from Barbar two years back admeasured only 6 ft. x 8 ft.. Obviously, possession of the said premises received two years before the recording of evidence in the year 1988, whereas the suit was filed in the year 1981. If so, the question of disclosure of availability of those premises in the plaint does not arise. At best, this new development may be relevant to examine whether the requirement pressed into service by the plaintiff had completely eclipsed. It with argued on behalf of the plaintiff that by no standard it can be said that it is a case of non-disclosure of material and relevant facts by the plaintiff. It is then contended that the reported decision relied by the Counsel for the tenant will be of no avail. Inasmuch as, in that case, the facts were gross and it was a clear case of non-disclosure of material and relevant facts which would have bearing on the point in issue.

9. After having perused the plaint and the oral evidence of the plaintiff, I have no hesitation in accepting the stand taken by the plaintiff which is reproduced hereinbefore. I am in agreement with the submission of the plaintiff that it is not a case of non-disclosure of the material and relevant facts by the plaintiff. The plaintiff has already disclosed the fact that he was in occupation of one shop, which was used for doing his business. He has categorically stated that he has no other shop in his possession except one mentioned by him. The premises in possession of the Mukunda were only a small space below the staircase in the shop possessed by the plaintiff, used by him for his independent business. Possession of the premises received during the pendency of the suit from Barbar two years before giving evidence and much after institution of the suit cannot be the basis to non-suit the plaintiff. On this finding, the exposition in the case of Tarachand (supra) is of no avail.

10. My attention is also invited to the decision in the case of Mrs. Minal Eknath Kshirsagar Vs. M/s. Traders and Agencies and anr., AIR 1997 SC 59. In paragraph-18 of this decision, the Apex Court has noted that the landlady did not own any other premises in the city of Mumbai was indisputable. Insofar as the premises in which her husband was a tenant who had parted with possession of such premises and the same were occupied by the landlady's husband's brother the Court went on to observe that it cannot be said that the said premises were available to her and by not referring to those facts she had come to the Court with unclean hands and that itself was sufficient to disentitled her from getting decree of eviction. The Apex Court no doubt has observed that it would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as sufficient for disentitling her from claiming a decree for eviction. Applying the same analogy to the facts of the present case, the grievance made on behalf of the tenant about non-disclosure will have to be overturned. In fact, the said argument, as aforesaid is devoid of any substance.

11. Reliance was also placed on the decision of the Apex Court in the case of Gaya Prasad Vs. Pradeep Shrivastava reported in AIR 2001 SC 803 to contend that the acquisition of the premises during the pendency of the suit would be of no consequence in the present case. In that, the suit premises were only 6 ft. x 8 ft. of area whereas the requirement of the plaintiff, as has been found by the Appellant Court is for two sons to start their independent business. Besides, similar premises received from Dashrath of Panbidi shop were only 3 ft. 3 ft. of area. Disclosure of the said premises would have been of some consequence, if it could be held that on getting possession of the said premises, the entire requirement of the landlord for which suit for possession has been filed against the tenant had completely eclipsed. Suffice it to observe that the argument regarding non-disclosure of material facts is completely devoid of merits.

12. The next argument of the tenant is that the plaintiff has failed to establish the bona fide and reasonable requirement. In any case, having failed to examine his two sons, for whose requirement the claim for possession has been set up in the present suit, the landlord should fail in his claim. In support of this argument, reliance is placed on the decision of our High Court in the case of Ashok Babanrao Viskhande and anr. Vs. Murlidhar Ramratan Bhandari and anr., 2003 (Supp.) Bom.C.R. 392. On the other hand, Counsel for the landlord submits that the plaintiff has already entered the witness box and has deposed about the requirement, which has found favour with the lower Court. That was more than sufficient to proceed against the tenant. It is submitted that in fact, the case set up by the plaintiff is that the premises in his occupation were not sufficient for his business, for which reason, he required the suit premises not only for his business but also to start separate business for his two sons Jaywant and Yashwant. Counsel for the landlord relied on the decision of the Apex Court in the case of C. Karunakaran (dead) by LRs. Vs. T. Meenakshi, (2005)13 SCC 99, wherein the Apex Court has held that mere non-examination of person for whose need building was required by itself was no ground to non-suit the landlord. It went on to observe that in a number of decisions it has been held that it is not necessary to examine the person for whose need the premises are required. It depends on the facts and circumstances of each case.

13. The question is whether the non-examination of two sons Jaywant and Yashwant is so fatal that the plaintiff should fail in his claim for possession on the ground of bona fide and reasonable requirement. Indeed, the Counsel for the plaintiff may be right in pointing out that in the suit as filed in paragraph-6 clear assertion is that the plaintiff requires suit premises for his business as well as to start separate business for his sons Jaywant and Yashwant. Even in the evidence, the plaintiff has maintained this position. As a matter of fact, the said claim of the plaintiff was not challenged at all in the cross-examination. However, as the Appellate Court has accepted the claim of the plaintiff only in the context of the requirement of his two sons Jaywant and Yashwant, it would be necessary to consider the argument of the tenant as to whether it was imperative to examine the said two sons to establish that their requirement was bona fide and reasonable. This argument is canvassed essentially on the basis of observations in the case of Ashok Baburao Viskhande (supra). What is however, observations in that the observations are in the context of the facts of that case. In that case the petitioner No.1 had entered witness box, but he had not deposed about what is the need of the petitioner No.2, except vaguely stating that the petitioner No.2 was unemployed and would start some convenient business in the suit premises. It is in that context the Court observed that in such a situation it was necessary that person for whose need premises are claimed should have been examined as he was the best person to establish his need. This decision therefore, will be of no avail to the tenant. Counsel for the landlord however, rightly placed reliance on the legal position flowing from the dictum of the Apex Court in the case of C. Karunakaran (supra), which has held that mere non-examination of person for whose need, building was required by itself was no ground to non-suit the landlord. Indeed, the Apex Court went on to observe that it depends on the facts and circumstances of each case. In the present case, it is noticed that the plaintiff has clearly asserted that his two sons had no independent source of income and were associated with him in his business. The plaintiff wanted his two sons to be settled in life and also to ensure that they would earn additional income by way of separate business and not continuing in the same business, in which he was engaged, which of late was not yielding good returns, In other words, two sons were fully dependent on the plaintiff and it is the plaintiff who was keen to make provision for their separate business. This fact could have been spoken only by the plaintiff himself being the best person to depose on those facts. It is not the case of the tenant in the present case that those two sons had no interest in doing business at all. As a matter of fact, the requirement as stated by the plaintiff in the plaint as well as deposed in the examination-in-chief has only been generally denied and the case made out by the plaintiff has not been challenged so as to doubt the version of the plaintiff which would warrant corroboration from his two sons. The argument of the tenant that the Judgment in the case of C. Karunakaran (supra) was on the facts of that case, therefore will have to be rejected.

14. Counsel for the plaintiff/landlord has invited my attention to the dictum of the Apex Court in the case of Rajkumar Khaitan and ors. Vs. Bibi Zubaida Khatun and anr., (1997)11 SCC 411. In that case, the plaintiffs had stated that they have got no other means of livelihood and want to start their business in the scheduled premises, which were fit and suitable site for their own business and had no building other than the same for the said business. The High Court in that case had held that apart from the pleadings in paragraphs-11 and 12 of the plaint which is reproduced in the reported Judgment, it was necessary for the plaintiffs to plead the nature of the business which the plaintiffs wanted to start in the premises. The Apex Court has held that said view of the High Court was patently wrong. The Apex Court has observed that it was not necessary for the landlord to indicate the precise nature of business, which they intend to start in the premises. It is further observed that even if the nature of business would have been indicated nobody could bind the landlord to start the same business after the premises was vacated.

15. It may not be out of place to recall the opinion of the Apex Court in the case of Ramniklal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, reported in AIR 1964 SC 1676. Indeed, the question in the said case was a different one, as to whether the respondent's case came within the provision of section 13(1)(g) of the Act or section 13(1)(hh) of the Act. However, the dictum in the said decision may be useful for answering the question of bona fide and reasonable requirement. In paragraph-12 of this decision, the Apex Court has observed that mere fact that he intends to make alterations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not affect the question of requiring the house bona fide and reasonably for his occupation, when he has proved his need for occupying the house. It went on to observe that there is no such prohibition either in the language of clause (g) or in any other provision of the Act to the effect that the landlord must occupy the house for residence without making any alterations in it. There could not be any logical reason for such a prohibition. The Court therefore opined that there is no reason why restrictions not mentioned in the grounds be read into them. Notably, in paragraph-14 of the decision, the Apex Court has considered that there are provisions in the Act which ensure that the provisions of clause (g) are not abused. Section 17 provides that if the premises are not occupied within a period of one month from the date the landlord recovers possession or the premises are re-let within a period of one year of the said date to any person other than the original tenant, the Court may order the landlord, on the application of the original tenant, within the time prescribed, to place him in occupation of the premises on the original terms and conditions. The Court observed that this stipulation tends to ensure that the landlord does not eject a tenant unless he really requires the premises for occupation by himself. Once again in paragraph-15, the Apex Court has restated that the provisions of section 13(1)(g) nowhere stipulates that after recovery of possession of the premises, the landlord should be expected to use the same without making any alteration to them or after making the necessary alterations.

16. Besides these two arguments, no other argument has been advanced on behalf of the tenant to question the correctness of the findings reached by the Appellate Court on the issue of bona fide and reasonable requirement of the landlord. Accordingly, the finding so reached by the Appellate Court will have to be upheld.

17. That takes me to the question of comparative hardship. The trial Court did not deal with the said issue having found that no case for bona fide and reasonable requirement was established. The Appellate Court on the other hand, proceeded on the reasoning that it is not necessary to evict tenant from the suit premises as he was in the evening of his life and had established himself in the utensil business. The Appellate Court has then noted that if portion of the suit property admeasuring 6ft x 10 ft is given to the plaintiff, no hardship would be caused to the tenant and at the same time, the plaintiff's desire to see that his son is established in cloth business will also be satisfied. The Appellate Court proceeded to hold that if such decree is passed no hardship is likely to be caused to the defendant or the plaintiff, as he could still accommodate in the remaining area, which would be around 14ft. x 10 ft.. The question is whether the approach of the Appellate Court is correct. Indeed, merely because, the landlord succeeds in establishing the factum of bona fide and reasonable requirement, does not necessarily mean that the decree for possession should follow. Instead the Court is required to examine the issue of comparative hardship and also the possibility of partial eviction.

18. The fact that the suit premises can be divided by itself cannot be the basis to answer the point in issue. The Appellate Court has completely glossed over the fact that the requirement pressed into service by the plaintiff and which was accepted by it, was for starting separate business for two sons. Naturally, the question that ought to have been examined by the Appellate Court itself is whether the premises admeasuring 6 ft. x 10 ft. can satisfy the requirement, so pressed by the plaintiff. The answer would obviously be in the negative. If so, the question of partial decree and that too, the manner in which it has been ordered by the Appellate Court is manifestly wrong. Moreover, it has been rightly argued on behalf of the plaintiff/landlord that what the Appellate Court has failed to notice is the fact asserted by the plaintiff that the tenant was no more interested in his business and because of old age was not in a position to continue with his business conducted from the suit premises. He had no male issue and no other dependent in his family. Whereas, the tenant was permitting his brother's sons to conduct the business. In other words, tenant did not require the suit premises for himself any more. There is absolutely no consideration of this factual case propounded by the plaintiff. If this fact was to be answered against the tenant, it would necessarily follow that the issue of comparative hardship will have to be answered in favour of the plaintiff/landlord and against the tenant.

19. Significantly, the Appellate Court though has adverted to the fact of offer made by the landlord of exchanging premises in Tanksal lane with the suit premises facing main road, which offer was refused by the defendant while considering the issue of bona fide and reasonable requirement. However, that fact would assume significance to answer the issue of comparative hardship as well. In that, if the tenant were to accept the said offer, no hardship would be caused to the tenant. In any case, the tenant has not asserted and proved the fact that it was impossible to get alternative accommodation in the same locality. Plea taken in the Written Statement is one of general denial and assertion of the fact that there is acute shortage of business premises in Nasik city. Indeed, the tenant has stated that securing alternative accommodation elsewhere would be difficult and for which the defendant and his family members would suffer greater hardship. In the evidence, the tenant has merely stated that besides the suit premises, he does not have any other premises of his ownership or on rent. There is no case made out in the examination-in-chief, not even remote statement that it would be impossible to get another premises in the same locality. During cross-examination, offer was given to the tenant, whether he would like to shift in the shop available with the landlord towards Tanksal lane in the suit building, to which he flatly refused. It is well established position that if the tenant fails to plead and prove the fact that it is impossible to get another alternative accommodation in the same locality, the issue of comparative hardship should necessarily be answered against the tenant, as has been observed in the decision reported in 2003(1) BCR 733 : [2002(4) ALL MR 770], Suhasini A. Parab and ors. Vs. B. H. Khatu and ors. which is following the dictum of the Apex Court in the case of Bega Begum Vs. Abdulahad Khan, AIR 1979 SC 272. Suffice it to observe that the reasons recorded by the Appellate Court for answering the issue could not have been made the basis to dispose of the said issue. The Appellate Court in the first place ought to have noticed that the tenant failed to prove the fact that it was impossible to get suitable alternative accommodation in the same locality Significantly, the original tenant has died during the pendency of the proceedings. It has come on record that the tenant has no male issue. In any case, the issue of comparative hardship in the fact situation of the present case ought to have been answered in favour of the plaintiff and against the defendant.

20. As aforesaid, true it is that the Court has to still examine whether there is possibility of partial eviction before decreeing the suit in entirety in favour of the landlord. In this connection, the Appellate Court firstly observed that it was not necessary to evict the defendant wholly from the suit premises, as he was in the evening of the life and has established in the utensil business. Neither the fact that the tenant was in the evening of his life or that he has established business is germane to answer the point in issue. What the Appellate Court ought to have examined is whether the suit premises, which are three khans, can be suitably partitioned, so as to accommodate the plaintiff's requirement substantially, if not in its entirety. In this connection, it is relevant to note that the requirement of the plaintiff as has been accepted by the Appellate Court is for starting separate business for two sons Jaywant and Yashwant. The suit premises are only three khans. Even if the Court were to call upon the tenant to vacate the two khans and allow the tenant to retain one khan, the area of two khans would be hardly 140 sq.ft being 14 ft x 10 ft. The owner of the property cannot be told that he should be content with such a small space so as to accommodate his two sons to settle in life. It is well established position that it is neither open to the tenant nor to the Court to dictate its terms as to how the requirement of the landlord should be modulated. The landlord is the best judge in that behalf. Suffice it to observe that neither the delivery of possession of only two khans to landlord would result in satisfying the requirement of the landlord for his two sons. It is rightly criticized by the for the plaintiff/landlord that the Appellate Court committed manifest error in assuming that by giving one khan to landlord admeasuring 10 ft. x 6 ft.. that would satisfy the desire of the landlord to see his son's cloth business. The Appellate Court has made no reference to the requirement of another son Jaywant for whom the plaintiff intended to start cutlery business, as stated in the evidence. In my opinion, therefore, in the peculiar facts of the present case, the question of ordering partial eviction would result in serious miscarriage of justice to the landlord who has approached the Court for possession of the suit premises with a hope that he would be able to help his two sons to set up their independent business.

21. While parting, it may be appropriate to place on record the fact that when the matter reached for argument, Counsel for the tenant requested the Court that he may be permitted to file additional affidavit indicating that the requirement of the landlord has been completely eclipsed. That request was turned down for the simple reason that the Writ Petition pertains to year 1994. It is not in dispute that these Writ Petitions have been notified for hearing on board and are appearing on board for quite some time. No attempt was made on behalf of the tenant to move a formal application well in time, so that the facts which the tenant now intends to urge could be dealt with appropriately. It is not the case of the tenant that the facts are developments of recent past only. If the facts which the tenant intends to rely had taken place way back, albeit during the pendency of this Petition, the tenant was expected to move the Court to bring the same on record. At this eleventh hour, if the tenant is permitted to file the affidavit, the only consequence is of protracting the hearing of these Petitions which as aforesaid are pending since 1994 arising out the suit for possession filed in 1981. Counsel for the tenant submits that the decision of the Apex Court in the case of Gaya Prasad Vs. Pradeep Shrivastava, AIR 2001 SC 803 relied by the landlord also recognises that the landlord is entitled to urge additional facts and grounds. There is no difficulty that subsequent events ought to be considered by the Court but that will happen only if the litigant is diligent and takes out appropriate proceedings in that behalf well in time and not in the manner which is sought to be done now by tendering affidavit across the bar.

22. Accordingly, the Petition preferred by the tenant being Writ Petition No.440 of 1994 deserves to be dismissed being devoid of merits; whereas Petition being Writ Petition No.3271 of 1994 preferred by the landlord is allowed. As a result, the impugned Judgment and Decree passed by the Appellate Court stands modified to the effect that the suit fir possession is decreed in respect of the whole of the suit premises with costs.

Petition allowed.