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PETITIONER: SMT. RAMKUBAI SINCE DECEASED BY LRS. & ORS.

       Vs.

RESPONDENT: HAJARIMAL DHOKALCHAND CHANDAK & ORS.

DATE OF JUDGMENT:       13/08/1999

BENCH: V.N.Khare, Syed Shah Mohammed Quadri

JUDGMENT:

SYED SHAH MOHAMMED QUADRI,J.

     This appeal, by special leave, is directed against the judgment and order of the High Court of Judicature at Bombay in  W.P.No.362 of 1984 dated March 27, 1997.  The appellants are   the  legal  representatives   of  deceased   landlady, Smt.Ramkubai,  and  the respondents are  original  defendant No.1,   Hajarimal   Dhokalchand  Chandak   and   the   legal representatives of the second defendant Lalchand Dhokalchand Chandak  (hereinafter they are referred to as ’landlady’ and ’tenants’).

     The  landlady  filed  civil suit, bearing  Civil  Suit No.12  of  1975 in the Court of Civil Judge J.D.   Igatpuri, against  the  respondent No.1 herein and the  said  Lalchand Dhokalchand  Chandak  who  died during the pendency  of  the proceedings,  respondent  Nos.’2A’  to ’2F’  are  his  legal representatives, for recovery of possession of house bearing Municipal No.138 and one of the rooms in house No.150 within the  Municipal limits of Igatpuri town (for short ’the  suit premises’)  under  Sections 12 and 13(1)(e) and (g)  of  the Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947  (for  short  ’the Act’).  Recovery of  possession  was sought on the following three grounds :

     (1)  the  tenant committed default in payment of  rent for  the  period, June 1973 to November 10, 1974;   (2)  the first defendant sublet the premises to the second defendant; (3)  bona  fide  requirement of the  landlady  for  personal occupation of her family.

     The first defendant did not oppose the suit.

     The second defendant contested the suit and denied all the  grounds.   It was pleaded that the first defendant  and the  second  defendant were brothers and they  constitute  a joint family and that the premises was obtained by the first defendant  for  the family.  The learned trial  court  found that  all  the grounds were established by the landlady  and granted  a decree for eviction of tenants.  The tenants went in  appeal  before the Court of Assistant Judge of Nasik  in Civil Appeal No.138 of 1981.  The Appellate Court found that there  was no wilful default in payment of rent;  there  was no  subletting of the premises and that there was no case of personal  requirement of the landlady.  However, it has held that  there would not be any real hardship to the tenants if

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decree  of  eviction  is  passed  on  the  ground  that  the landlady’s requirement is bona fide and reasonable.  In this view,  the Appellate Court set aside the order of the  trial court  and  allowed the appeal on September 28,  1983.   The correctness  of  that  judgment of the Appellate  Court  was assailed  by  the appellants in the High Court of Bombay  in Writ  Petition No.362 of 1984.  The High Court confirmed the findings  of  the  Appellate Court on all  the  grounds  and dismissed  the writ petition on March 27, 1997.  It is  from that  judgment and order of the High Court that this  appeal arises.

     The  only  point canvassed before us relates  to  bona fide personal requirement of the landlady.

     Mr.   V.N.   Ganpule, learned senior counsel  for  the appellants,  contended that the landlady sought eviction  of the  tenants for personal requirement to establish a  Kirana shop  for  her  son - Bhikchand Jasraj Chordiya  (for  short ’Bhikchand’) - which was her family business and that merely on  the  ground  that her other son is  carrying  on  Kirana business  in one shop and she is a partner in the firm which is carrying on the business in the second shop, the plea for bona  fide  personal requirement was negatived by  both  the Appellate Court as well as the High Court.

     Mr.  V.A.  Mohta, learned senior counsel appearing for the  respondents,  submitted that the reasons given  by  the Appellate  Court  and confirmed by the High Court  are  very cogent and the order under appeal is a just order which does not warrant any interference.

     Since,  the  only  ground urged for  consideration  is under  Section  13(1)(g), it may be useful to  extract  that provision here :-

     "13(1)(g).  When landlord may recover possession -

     (1)  Notwithstanding  anything contained in  this  Act [but  subject  to  the [the provisions of  Sections  15  and 15A]], a landlord shall be entitled to recover possession of any premises if the Court is satisfied-

     (g).   That the premises are reasonably and bona  fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held [or where the landlord  is  a trustee of public charitable trust that  the premises are required for occupation for the purposes of the trust;"

     A  plain  reading of Section 13(1)(g) shows  that  the landlord  is entitled to recover possession of any  premises if he satisfies the court, inter alia, that the premises are reasonably  and bona fide required by him for occupation  by himself  or by any person for whose benefit the premises are held.   It is not disputed before us that the requirement of the  landlady to set up her son Bhikchand in business  falls under  clause  (g).  What is contended is that the  landlady does  not  bona fide require the premises to set  up  Kirana business  for  Bhikchand and that ground is a mere  ruse  to seek recovery of possession of the premises.

     We  have  already noted above that the ground of  bona fide  requirement of the landlady was accepted by the  trial

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court  but  it was negatived by the Appellate Court and  the same  was confirmed by the High Court.  The Appellate  Court was  swayed  away by the fact that the landlady herself  did not come into the witness box to support her claim.  What is not  appreciated  by  the Appellate Court is  that  her  son Bhikchand  who  was  also her G.P.A.  holder and  for  whose benefit  the  business  is to be set up, did come  into  the witness  box  to support the case of  personal  requirement. The  Appellate  Court  was of the view that  the  bona  fide requirement  is in the first place a state of mind and might be  something more and that could be established only by the landlady.   In all fairness to Mr.Mohta, we must note,  that he conceded that that reasoning of the Appellate Court could not  be supported.  The second reason given by the Appellate Court  is that at the time of filing of petition the son  of the  landlady  was unemployed but later on he started  doing work  as  a contractor in construction field, so he did  not really  want to run a Kirana shop in the suit premises.  The Appellate  Court was of the view that had he really intended to  take  up  Kirana business he would not  have  started  a business  like that of a contractor.  The third reason given by  him is that the landlady was a partner, after the  death of  her husband, in the Kirana business run by her husband’s brother.  It was also noted that another son of the landlady is  in possession of another shop and doing Kirana  business and  thus the family is engaged in doing Kirana business  in two  shops and if Bhikchand wanted to do Kirana business  he could   have  joined  existing   business.   From  this  the Appellate  Court concluded that the landlady did not require the  suit  premises  for establishing  Bhikchand  in  Kirana business.   The learned counsel for the respondents strongly supported  these reasons.  It is correct that Bhikchand  was unemployed  on  the date of filing of the suit but he  could not  be  expected  to  idle   away  the  time  by  remaining unemployed till the case is finally decided.  It has already taken  about  25  years.  Therefore, we do  not  think  that taking  up contractor work, in the meanwhile, will  militate against  his carrying on the business of Kirana which is his family  business, which was carried on by his father and  is being  carried  on by his brother independently.  The  facts that  the landlady during her life time was a partner in the firm  carrying  on  Kirana  business and her  elder  son  is carrying  on Kirana business do not disentitle Bhikchand  to establish  his  own business.  We are not impressed  by  the other  reasoning and conclusion of the Appellate Court which are  confirmed by the High Court.  In our view, none of  the reasons leads to the inference that Bhikchand did not intend to  start family Kirana business, so relief cannot be denied to  the  landlady to recover the suit premises for  personal requirement  of  Bhikchand  to   establish  Kirana  business independently.

     The  only other aspect which is required to be noticed is  requirement of sub-section (2) of Section 13 of the Act. It  enjoins the court not to pass decree for eviction  under clause  (g) of sub-section (1) if, having regard to all  the circumstances  of  the case including the  question  whether other reasonable accommodation is available for the landlord or  the tenant, it is satisfied that greater hardship  would be  caused by passing the decree than by refusing to pass it and  if  the  court is satisfied that no hardship  would  be caused  either  to the tenant or to the landlord by  passing the  decree in respect of a part of the premises, the  Court has to pass the decree in respect of such part only.

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     In this case, the Appellate Court recorded the finding that  the  landlady  will suffer greater hardship  than  the tenants if decree is not passed in her favour.  This finding has become final and thus the requirement of sub-section (2) is also satisfied.

     In  this connection, it is apt to notice that  Section 17  of  the Act provides for recovery of possession  of  the premises by the original tenant in the event of the landlord not  occupying  the premises or re- letting the premises  to any other person than the original tenant.  Further, it also provides  penal action against the landlord who violates the provision  of  clause (g) of sub-section (1) of Section  13. These  provisions amply safeguard the interest and rights of tenants and prevent misuse of clause (g).

     We  are  satisfied  that the present  appellants  have established  bona fide requirement to recover the possession of the suit premises from the respondents.

     For  all these reasons, we set aside the judgment  and order  of the High Court, under appeal, confirming the order of  the  Appellate Court and restore the order of the  trial court  in  so far as it relates to the ground under  Section 13(1)(g)  of the Act.  The appeal is, accordingly,  allowed. There shall be no order as to costs.