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PETITIONER: MRS. MEENAL EKNATH KSHIRSAGAR

       Vs.

RESPONDENT: M/S TRADERS & AGENCIES & ANR.

DATE OF JUDGMENT:       11/07/1996

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) AGRAWAL, S.C. (J)

CITATION:  JT 1996 (6)   468        1996 SCALE  (5)302

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI. J.      Leave granted.      This appeal arises out of the judgment and order of the High Court  of Bombay in Writ Petition No. 3600 of 1990. The appellant had  filed that writ petition against the judgment and order  passed by the Appellate Bench of the Small Causes Court whereby  the  judgment  of  the  Small  Causes  Court, Bombay, was reversed and the appellant’s suit was dismissed. The appellant  is an  owner of  a flat  and a  garage in the building known  as ’Tarangini’ in Bombay. This suit premises belonged to her father and were gifted to her in 1972. By an agreement dated  29.3.1972 the  said premises  were given by the appellant  to Respondent  No.1 firm on leave and licence basis  for   the  purpose  of  its  use  and  occupation  by Respondent No.2  who is  a partner  of that  firm. She filed Suit No.  R.A.E. 372/1276/83 in of the Court of Small Causes at Bombay  seeking eviction  of he respondents on the ground that she requires the suit premises reasonably and bona fide for her person occupation. In the plaint she stated that she and her  husband do  not have any other residential premises of their  own in  Bombay. Her husband is a paid Assistant in M/s. A.F.  Ferguson &  Co. a  firm of Chartered Accountants. That firm  has taken  on lease  one flat in a building named ’Park View’.  It had  then given  the same  to  one  of  its partners Mr.  Kalra for  his occupation.  As Mr.  Kalra  was transferred from  Bombay  to  Delhi,  the  flat  had  become available temporarily  and therefore  it was  allowed to  be used by  the  appellant’s  husband  purely  on  a  temporary caretaker basis.  As the said partner is likely to return to Bombay her husband will be required to vacate that flat and, therefore, they  will be  without any accommodation whatever in Bombay.  She further  stated that she had called upon the respondents to  vacate the  suit premises  in  1974  and  in response to  one of  her letters the respondents had in 1976 and again  in 1978  assured the  appellant that  they  would

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vacate the  suit premises  as soon  as the  flat  booked  by Respondent No.2  in a  building called ’Rambha’ would become ready for  occupation. Even  though the said flat has become available to  Respondent No.2  he is  not vacating  the suit premises. She also stated that it is not possible for her to acquire any  other premises  in Bombay  and, therefore, if a decree for  possession is not passed she will suffer greater hardship. The suit was opposed on the ground that possession of the  premises then  in occupation  of her husband was not insecure or  temporary and that the suit premises are really not required  by the  appellant reasonably and bona fide for her occupation. Later on in 1987, during the pendency of the suit, the  appellant, took  out a notice of motion for early hearing of  the suit. Therein she stated that she is serving as a  lecturer in  the Education  Department of  the  Bombay University. As  the respondents  did  not  vacate  the  suit premises in spite of her request and the assurances given by the respondents  and as there was a problem of accommodation in Bombay  her husband  had to  get himself  transferred  to Madras in  1984. She  also obtained  study leave and went to Madras to  stay with  him. As  her application  for  further leave was  rejected she  had to  return to Bombay and report for duty in July 1987. Since then she has been residing with her parents  as she  does  not  have  any  accommodation  in Bombay.      In support  of her  case the appellant examined herself and led  evidence of P.W.3 Mr.Eknath Kshirsagar her husband, P.W.5 Mr.  Maluste her  father, P.W.2, Dr. Momin Mohinuddin, Head  of   the  Department   of  Foreign  Languages  in  the University of  Bombay, P.W.4  Mr. Shohrab  Burjoriji  Vakil, Secretary of  the Royal  Bombay Yatch Club. On behalf of the respondents, Respondent  No.2 was  examined  as  a  witness. During her  cross-examination the  appellant stated that her husband was  a  tenant  of  a  bed  room  flat  in  ’Olympus Apartments’ and  that after  her  marriage  with  Eknath  on 24.10.1971 she  stayed with  her husband  in that  flat till October 1972.  Appellant’s husband  Eknath in  his  evidence stated that  neither he  nor his  younger  brother  had  any accommodation in Bombay, after his father left for Zambia in early 1968. After returning from England in November 1968 he took on  lease a  flat in  ’Olympus Apartments’  and started living therein along with his brother from December 1968. As his brother had disclosed his intention to marry in May 1972 and as  his wife  was expecting  a baby  he decided  to have another accommodation.  His employer,  M/s. A.F.  Ferguson & Co. had  taken on  lease from  Mrs.  Kalra  one  flat  in  a building named  ’Park View’  and it was given by the firm to Mr. Kalra  for his  occupation as  he was  a partner of that firm. As  Mr. Kalra  was then  transferred to Delhi the said flat had  become vacant and so his employer permitted him to use that flat temporarily on caretaker basis. He, therefore, shifted  to  that  flat  in  October  1972  whereas  Sridhar continued to stay in the ’Olympus’ flat.      As the  fact that  the appellant’s husband was a tenant of the  ’Olympus’ flat  was neither  disclosed in her plaint nor in  her examination-in-chief  a  contention  was  raised before the  trial court  that omission  to state  that  fact amounted to  suppression of  a material  fact  and  on  that ground her  claim that  she requires  the suit premises bona fide for  her personal  occupation should  be rejected. This contention was rejected by the trial court by observing that the appellant  herself did not have any personal interest in the ’Olympus’  flat and  it was  not necessary  for  her  to mention that  fact in the plaint as they had already shifted from that  flat in October 1972 and since then the said flat

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was occupied  by Sridhar. The trial court also observed that the omission  to state  the said  fact did  not disclose any mala fide intention on her part.      On merits,  the trial  court held  that  though  Eknath alone is  the tenant  of the  ’Olympus’ flat, right from the date it  was taken  on lease,  the same was occupied both by Eknath and  Sridhar and  that since October 1972 Sridhar and his family  consisting of his wife and two sons are residing therein. It  further held that in view of the partial decree passed in  favour of  the landlady  in respect  of that flat which consists of two bed rooms only, it would be impossible for the  two families of Eknath and Sridhar to stay therein. The trial  court also  held that  Eknath was required by his employer, M/s. A.F. Ferguson & Co. to vacate the ’Park Vies’ flat in  1984 and it was not available to him for occupation thereafter. The  trial court  also held that the appellant’s husband had  to get himself transferred to Madras because of lack of  accommodation in  Bombay and the appellant also had to stay  at Madras till July 1987 by remaining on leave. The trial court believed that after their return from Madras the appellant with her sons has been staying with her father and her husband  has to  stay alone  in one room in the premises belonging to  Royal Bombay  Yatch Club  of  which  he  is  a member, on  short-term basis.  It, therefore,  held that the ’Olympus’ flat is not really available for occupation by the appellant and her husband because Sridhar is staying in that flat and  the accommodation in ’Park View’ flat is insecure, even if  it is  believed that the same is still available to the appellant’s  husband, and  thus the appellant has proved that she  require the suit premises reasonably and bona fide for occupation  by herself  and her  family. The trial court also held that Respondent No.1 being a firm does not require the suit  premises for  any  other  purpose  and  as  it  is financially well  off no  hardship will be caused to it if a decree for  eviction is  passed. The  trial court  also held that Respondent No.2 has no independent interest in the suit premises and,  therefore, the question as to whether greater hardship would  be caused  to him  or not does not arise for consideration. In  the alternative,  it held  that as he has already acquired  a flat in ’Rambha’ having a larger area no hardship will be caused to him also if a decree for eviction is passed.  The trial  court,  therefore,  passed  a  decree against the respondents for eviction.      The respondents  preferred an  appeal to  the Appellate Bench of  the Small  Causes Court.  The Appellate Bench held that the appellant ought to have disclosed the fact that her husband is  a tenant  of the  ’Olympus’ flat  at  the  first available opportunity  and the  said  omission  amounted  to suppression of  a material fact. After considering the stand taken by Eknath and the findings recorded in the proceedings for eviction  filed by the landlady of the ’Olympus’ flat it held that   Eknath  alone is the tenant of the said flat and occupation of  that flat  by Sridhar is totally at the mercy of Eknath  and, therefore,  it cannot  be said that the said flat is  not available  to the  husband of the appellant. It further held  that  in  spite  of  the  decree  for  partial eviction it  is still  possible for  Eknath and  Sridhar  to occupy the  said flat. Moreover, in view of the death of the landlady  during   the  pendency   of  the  appeal  and  the contention raised  by Eknath  that the landlady has not left behind  any   legal  heir   or  representative  there  is  a possibility of  the said  flat, in  its  entirety,  becoming available to Eknath. As regards the ’Park View’ flat it held that there was no evidence on record to show that Eknath was required by M/s. A.F. Ferguson & Co. to vacate the said flat

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and that  the correspondence  which  was  produced  in  that behalf by  the appellant  could not be relied upon as it was "the internal  correspondence of  the company".  It  further held that  it was-necessary  for the  appellant to  prove be examining Mrs. Kalra or some other person from the firm that Eknath was  really called  upon to  vacate the said flat and that Eknath  had vacated  it for  that reason. In absence of such evidence  the Appellate Bench held that Eknath had left that flat  voluntarily in order support the appellant’s case for bona  fide requirement  and in fact there was no real or imminent threat  to vacate  the said flat. It also held that the act of vacating the ’Park View’ flat was an artificially created circumstance  to support  the case of the appellant. Thus, according  to the Appellate Bench both the flats being available to  the appellant’s  husband, the appellant cannot be said to have proved her case of bona fide requirement. On the question  of comparative  hardship the  Appellate  Bench held that there would really be no hardship to the appellant if a  decree for  eviction is  not passed  in her favour. So also it  held that  "no hardship  whatever will be caused to the appellant-tenant  if a  decree for  eviction were passed against  them."  It  further  held  that  "the  hardship  of appellant No.2  cannot be considered as he has been allotted the suit premises by the appellant No.1 partnership firm and he  has   no  independent   right  to  that  premises."  It, therefore, allowed  the appeal and dismissed the appellant’s suit.      The appellant,  therefore, preferred a writ petition in the High  Court of Bombay challenging the judgment and order passed by  the Appellate  Bench. The  High Court  held  that suppression  of  the  material  fact  that  the  appellant’s husband is  a tenant  of the ’Olympus’ flat is sufficient to disentitle her  from getting  a decree of eviction. The High Court also agreed with the findings and reasons given by the Appellate Bench and dismissed the writ petition.      It was  contended by  Mr. Atul Setelwad, learned senior counsel appearing  for  the  appellant  that  while  testing reasonable requirement  of the  landlord what is required to be considered  is the  reality of  the situation and not the possibility of the landlord being able to continue to reside in rented  premises. He  submitted that  as a wrong test has been applied  by the  Appellate Bench and the High Court in- this case, that has led to miscarriage of Justice.      Mr. Shanti  Bhushan, learned  senior counsel  appearing for  the   respondents  on  the  other  hand  supported  the judgments of  the Appellate  Bench and the High Court on the ground that  the findings  recorded by  both the  courts are quite reasonable, and the view taken cannot be said to be so erroneous as to call for interference by this Court.      In Prativa Devi vs T.V. Krishnan JT 1987 (1) SC 764, to which our  attention has  been drawn  by the learned counsel for the  appellant, this  Court has  pointed out the correct test which  has to  be applied  in finding  out whether  the requirement of the landlord is bona fide or not. It has held that:      "The landlord  is the best judge of      his residential requirement. He has      a complete  freedom in  the matter.      It is  no concern  of the Courts to      dictate to the landlord how, and in      what manner,  he should  live or to      prescribe  for  him  a  residential      standard of  their own.... There is      no law  which deprives the landlord      of the  beneficial enjoyment of his

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    property."       It  is  further  held  therein  that  what  is  to  be considered is  not merely  the availability  of  alternative accommodation but  also whether  the landlord  has  a  legal right to such accommodation.      The following decisions of the Bombay and Calcutta High Courts relied  upon by the learned counsel for the appellant are also  helpful in  deciding the  question  of  bona  fide requirement of  the  landlord.  In  Dinshaw  Billimoria  vs. Rustomji Master  23 Bombay Law Reporter 850, the Bombay High Court has held that:      "Ordinarily speaking,  an owner  of      premises, if  he says  he wishes to      use them  for his  own purposes, is      entitled to  do so.  What the  Rent      Act endeavors to provide for is the      case of  a landlord  who evicts the      existing tenants  in order  that he      may let them to another tenant at a      higher rent, or exact a higher rent      from the  tenant  on  a  threat  of      eviction. It  seems to  me that the      question in  that case  whether the      plaintiff      was       reasonably      dissatisfied  with   the   premises      which  he   rented  in  Girgaum  is      irrelevant, because  in  any  event      the plaintiff  was entitled to live      in his  own premises.  He  was  not      bound   to   continue   to   rented      premises with all the uncertainties      of that tenure." The  Calcutta  High  Court  in  Basant  Lal  Saha  vs.  P.C. Chakravarty 54 C.W.N 20 has observed as under:      "Where a  landlord seeks to eject a      tenant on  the ground  of bona fide      requirement within  the meaning  of      Proviso (f)  of Sec.  11(1) of  the      Rent Control  Act, 1948,  he has to      satisfy three tests:      (i)   That    he   "requires"   the           premises:      (ii) That  such requirement  is for           his "own occupation":      and (iii)  That his  requirement is           "bona fide-".           The word  "require" means more      than mere  wish or  convenience  or      fancy of the landlord. The landlord      must show some need or necessity.           But  it   does  not   mean  an      absolute  need   or   an   absolute      requirement in  the sense  that the      landlord   will    not   have   any      accommodation  of  any  description      and that  he must  actually  be  in      street before he can demand his own      house for his own occupation."      The High  Court has  also observed  therein that  while considering the question of bona fide requirement the nature and character  of the  landlord’s temporary accommodation at the time  when he is asking for a decree for possession, the insecurity or  otherwise of  the tenure  that  he  might  be holding at  the time,  the fact  that he  himself is under a notice to  quit,  the  scope,  size  and  character  of  his

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requirement are  all relevant  factors that the Court has to consider.      In Ramendra  Mohan Guha  Sarkar vs.  Smt. Bedana  Paul, 1987(2) All  India Rent  Control Journal  154, the  Calcutta High Court has observed that if a person is in occupation of other premises  on leave and licence, they are obviously not available to the landlord for occupation and cannot be taken into account  for negativing  the claim  of the landlord for the premises in question. After referring to the decision of this Court in Phiroze Bamanji Desai vs. Chandrakant M.Patel, AIR 1974  SC 1059  it further  observed that possession of a licensee is  precarious and  cannot be  considered  suitable alternative accommodation.      In view  of the  rival submissions,  what  we  have  to consider is  whether the  Appellate Bench and the High Court applied the  correct test  while  determining  the  question whether the  appellant requires  the suit premises bona fide and  reasonably  for  her  occupation.  The  fact  that  the appellant is  the owner  of the  suit premises  and that she does not own any other premises in the City of Bombay is not in dispute.  She does  not poses,  even  as  a  tenant,  any premises in  Bombay. No doubt, she would be entitled to stay in the  premises of which her husband is a tenant but if for any reason  her husband  had parted  with possession of such premises and he same were occupied by her husband’s brother, 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 by itself was sufficient to disentitle  her from getting a decree of eviction. If the appellant believed  that the  ’Olympus’ flat  of  which  her husband was a tenant was not available for occupation as the same was  vacated by  her husband  many years  back and  was occupied by  Sridhar and  his family  and that  it  was  not possible or convenient for her and her family to go and stay there, it  was not  absolutely necessary for her to refer to those facts  in her plaint. 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,  if otherwise she  is able to prove that she requires reasonably the suit  premises for her occupation. We are, therefore, of the opinion  that the  Appellate Bench  and the  High  Court clearly went  wrong in  holding that  the said  omission was sufficient to  disentitle  her  from  getting  a  decree  of eviction and  it also disclosed that her claim was mala fide and not bona fide as required by law.      The finding  recorded by both the courts that the ’Park View’  flat  was  available  to  her  and  her  husband  for occupation is the result of not applying the correct test to the facts  of the case. Eknath was undisputedly not a tenant of the  said flat.  The tenant of the said flat is M/s. A.F. Ferguson &  Co. of  which Eknath  is only  a Director.  Mrs. Kalra is  the owner  of that  flat and after it was taken on lease by  the firm  it  was  given  to  Mr.  Kalra,  another Director of  the firm  for his  occupation and use. The firm allowed Eknath to use the said flat temporarily on leave and licence  basis  in  October  1972  as  Mr.  Kalra  was  then temporarily transferred  to Delhi.  The evidence produced by the appellant did disclose that the firm had required Eknath to vacate  the same  and it  was not right for the Appellate Bench and the High Court to brush aside that evidence on the ground that it was "internal correspondence of the company". Eknath could  not have occupied the said flat as a matter of right and  in view  of the  arrangement between the firm and Mr. Kalra  as used  by the  evidence on  record it cannot be

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said, in the context of judging the bona fide requirement of the appellant,  that the  said flat was available to her and her husband  for occupation  even after  1984, Even if it is believed that Eknath had not really vacated the said flat in 1984 and  continued to  be in  possession, it cannot be said that the  possession of  the said  flat was  such  as  would disentitle the  appellant to get a decree of eviction. Being a licensee  Eknath’s possession  of that flat was precarious and therefore,  could not  have been  considered as suitable alternative accommodation.      As regards  the ’Olympus’  flat the evidence discloses, and it  is not  in dispute,  that Eknath  left that  flat in October 1972  and since  then only  Sridhar and  his  family members have been staying in that flat. It is a two bed room flat having  an area  of 1100 sq. ft. Sridhar has a wife and two children  and the  family of  appellant also consists of four persons. In the suit for eviction filed by the landlady of that flat a partial decree has been passed and Eknath has been ordered  to hand  over half  the portion  of that flat. Both Eknath  and landlady  have challenged  the said partial decree and  their respective  appeals are pending before the Appellate Court.  In this context the courts had to consider whether it  can be  said that  the appellant  and Eknath are having suitable  alternative accommodation  and,  therefore, the appellant’s  claim that  she requires  the suit premises for her  occupation is  not reasonable  and bona  fide.  The Appellate  Bench   and  the   High  Court   considered   the possibility of  Eknath going back to that flat and occupying it along  with Sridhar and also the possibility that in case the landlady’s  appeal is  dismissed and  Eknath’s appeal is allowed the  flat in  its entirety, will become available to Eknath and  on that  basis held  that the  appellant’s claim that she requires the suit premises reasonably and bona fide is not  true. As  pointed out  by this  Court it  is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. If the landlord  desires to beneficially enjoy his own property when the  other property  occupied by  his as a tenant or on any other basis is either insecure or inconvenient it is not for the  courts to  dictate. him  to continue to occupy such premises. Though  Eknath continues  to be  the tenant of the ’Olympus’ flat,  as a  matter of  fact, it is being occupied exclusively by  Sridhar and  his family  since October 1972. For this  reason and also for the reason that because of the partial decree  passed against him Eknath is now entitled to occupy the  area of  550 sq.  ft. only,  it is  difficult to appreciate how  the Appellate Bench and the High Court could record  a   finding  that  the  ’Olympus’  flat  is  readily available to  the appellant’s  husband  and  that  the  said accommodation will  be quite sufficient and suitable for the appellant and her family.      In view  of the  facts and circumstances of the case we are of  the view  that the  appellant has proved her case of bona fide requirement and, therefore, the Small Causes Court was right in passing the decree in her favour. The Appellate Bench committed  a grave error in reversing the same and the High  Court  also  committed  an  error  in  confirming  the judgment and  order  passed  by  the  Appellate  Bench.  We, therefore, allow  this appeal,  set aside  the judgment  and order passed  by the  High Court  and also  by the Appellate Bench and  restore the  judgment and  decree passed  by  the Small Causes  Court. The  respondents shall  pay the cost of this appeal to the appellant.

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