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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2436 OF 1997.
Shri Ramchandra S/o. Balkisan Wagh,
aged about 45 years, Occupation :
Business, R/o. Tekdi Road, Sitabuldi,
Nagpur.
.... PETITIONER.
// VERSUS //
1. Smt. Rajashree W/o. Ramesh Bhoosereddy,
aged about 55 years, Occu.: Household,
R/o. C/o. Dr. Ramesh Bhoosereddy,
Main Road, Sitabuldi, Nagpur.
2. The Additinal Collector,
Nagpur.
3. The Rent Controller, Nagpur.
.... RESPONDENTS.
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Shri N.S.Khubalkar, Advocate for Petitioner.
Shri P.V.Vaidya, Advocate for Respondent No. 1.
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CORAM : R.C.CHAVAN, J.
Judgment Reserved on
: 12.06.2009.
Judgment Pronounced on
: 23.06.2009
JUDGMENT :
1. This petition by tenant is directed against orders passed by the Rent
Controller and Additional Collector, holding that the landlady was entitled
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to issue quit notice to the applicant under Clause 13(3)(vi) of the C.P. &
Berar Rent Control Order.
2. The facts, which are material for deciding this petition, are as under :
Respondent Rajashree is owner of the premises comprising of a shop block
situated at Sitabuldi, Nagpur, occupied by the petitioner on monthly rent
of Rs.60/-. The respondent sought possession of the said block on the
ground that one of her sons was in fourth year of LL.B. and wanted to start
his office after completion of his studies. She had also sought possession
on the ground that her daughter Sushma was doing Post Graduation at
Medical College at Nagpur and intended to start her clinic in the shop
block in the same building which had been vacated by another tenant. This
application was filed on 7th July, 1987. During pendency of the
application landlady’s son, who was reading for LL.B. Degree, completed
his studies and was selected in IAS and was posted as Additional District
Magistrate at Agra. In the meantime her daughter Sushma also got
married to a doctor at Hyderabad. Her another son passed Master of
Dental Surgery (MDS) examination. According to the landlady her son,
son-in-law and daughter wanted to start a clinic and a nursing home at the
building where the suit block was situated and therefore, wanted
possession of the said block. It was stated that need of landlady’s son-in-
law and daughter was quite pressing and genuine.
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3. This application before the Rent Controller was contested by the present
petitioner who stated that the entire house in which the petitioner had his
shop was vacant for the previous 2-3 years, having about four rooms each
on the ground floor and the first floor. Two rooms on the second floor
were also vacant. It was further stated that the landlady’s family had a
house on the same Mahatma Gandhi Road i.e. Main Road, Sitabuldi at
Nagpur having wine shop on the ground floor, licence whereof was in the
name of landlady’s husband. It was also pointed out that the landlady’s
mother-in-law owned a house in New Colony, which was in business
locality and business of lodging house was run therein. Therefore, he
contested the claim that the landlady bonafide or reasonably require the
premises for the needs pleaded by her.
4. In support of her claim the landlady examined her husband Ramesh
Somrao Burureddy and the petitioner examined himself in support of his
case. After considering the evidence tendered the Rent Controller held in
favour of the landlady and granted permission under Clause 13(3)(vi) of
the C.P. & Berar Letting of Houses and Rent Control Order to issue quit
notice. The appeal by the petitioner before the Additional Collector was
rejected and hence, the petitioner-tenant is before this Court.
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5. I have heard learned counsel for the petitioner and learned counsel for
respondents No.1.
6. The learned counsel for the petitioner first submitted that the Rent
Controller as well as Additional Collector should have held that there was,
in fact no evidence given on behalf of the landlady to prove her bonafide
need, since she had not entered the witness box. The learned counsel for
the petitioner relied on judgments of the Supreme Court in Vidhyadhar
Vs. Manikrao, reported at AIR 1999 SC 1441 and Janki Vashdeo Bhojwani
Vs. Indusind Bank Ltd., reported at AIR 2005 SC 439. He submitted that
in view of the observations in these two judgments, if the plaintiff does not
enter the witness box, presumption would arise that the case set-up by him
is not correct. A holder of Power of Attorney cannot depose in place of the
plaintiff. Therefore, according to him, the evidence of landlady’s husband,
Ramesh, ought to have been rejected by the Rent Controller as well as the
Additional Collector. He pointed out that in this case, even Power of
Attorney had not been filed on record.
7. The learned counsel for the respondent landlady submitted that it would
not be proper to conclude that unless the landlady herself stepped into the
witness box her need could not be proved. He submitted that the witness
examined on behalf of the landlady was her own husband i.e. head of her
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family and therefore, he too was personally in the know of the needs of the
family. Therefore, his evidence was rightly relied on by the Rent Controller
as well as the Additional Collector. The learned counsel for the
respondent submitted that a judgment has to be read in the context of
facts in the said case. He pointed out that in Vidhyadhar Vs. Manikrao the
suit was for redemption of mortgage by conditional sale or in the
alternative for decree for specific performance. This suit was contested by
defendant No.1, who pleaded that the document in his favour was not
mortgage by conditional sale but was out and out sale. Defendant No.1
did not enter the witness box. In this context the Supreme Court observed
that when a party to the suit does not appear in to the witness box to state
his own case on oath and does not offer himself to be cross-examined, a
presumption would arise that the case set up by him is not correct.
8. In Janki Vs. Indusind Bank a suit had been filed for recovery of loan before
the Debts Recovery Tribunal by the Bank. It was decreed and recovery
certificate was also issued, pursuant whereto, the property came to be
attached. Wives of the borrowers filed a suit feigning ignorance of the fact
that the proceedings had been filed by the Bank and the properties had
been attached after recovery certificate. Before the Tribunal, in place of
the wife, her husband appeared in the witness box as holder of Power of
Attorney. Thus, the party who had knocked the doors of the Court
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abstained from stepping into the witness box. In the context of these facts
it was obvious that it was for the wives to step into the witness box to
prove the foundation of their suit. In this context, the Supreme Court
observed in paragraph 13 that holder of Power of Attorney can act on
behalf of the principal and perform certain acts but this would not include
deposing in place of and instead of the principal.
9. Considering the peculiar facts of the above cases, on which the learned
counsel for the petitioner has placed reliance, it has to be held that the
learned counsel for the respondent is right in submitting that these
judgments do not lay down any law of universal application that the facts
of the case would have to be proved by the party itself stepping into the
witness box.
10. The learned counsel for the respondent landlady submitted that this
question had come up before a Division Bench of this Court in Nathulal
Gangabaks Khandelwal vs. Nandubai Bansidhak Khandelwal, in Special
Civil Application No.1669 of 1975, decided on 16.11.1983. In that case,
in place of landlady her son had stepped into the witness box to prove that
she wanted possession of the tenements for personal occupation.
Judgment of the learned single Judge of this Court in Nanalal Vs.
Samratbai, holding in the context of Section 13(1)(g) of the Bombay Rent
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Act that if the landlord did not step into the witness box, then it could not
be said that she reasonably and boanfide requires the premises was cited
before the Division Bench. Section 13(1)(g) of the Bombay Rent Act
corresponds to Clause 13(3) (vi) of the C.P. & Berar Rent Control Order.
The Division Bench observed that it did not agree with the proposition
which had been adumbrated by the learned single Judge in Nanalal Vs.
Samratbai. The Bench observed that it may be that certain facts which are
needed to establish bonafide requirement are in personal knowledge of the
landlord alone. But if these factors can be established by evidence other
than that of landlord, which would sufficiently indicate that the landlady
requires the premises bonafide, it was not clear as to why it would be
necessary, as a matter of law, that the landlord must examine himself,
with fatal consequence if he omitted to do so. The question, in view of the
Division Bench, was whether the evidence with regard to the bonafide
requirement should or should not be accepted in a given case in the
absence of evidence of the landlord himself. I am in respectful agreement
with the observations that it cannot be laid down as a proposition of law
that bonafide need cannot be proved without examining the landlord
himself. In this case, the evidence of landlady’s husband about the need
for her children was as good as evidence which the landlady could herself
have given and therefore, her non-examination could not have been fatal
to the case.
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11. The leaned counsel for the petitioner-tenant next submitted that there was
in fact no need for the landlord to secure possession of the premises
occupied by the petitioner. He pointed out that the landlady’s husband
had accepted that the son, for whose needs possession of the premises was
sought, had joined Indian Administrative Services (IAS) and was away
from Nagpur. His another son Ajay had completed BDS in 1989 and
wanted to practice by opening a Dental Clinic with modern equipments.
The learned counsel pointed out that the landlady’s husband admitted that
he himself was a Dentist and having a clinic in his own house at Sitabuldi
Main Road. Therefore, according to the learned counsel for the petitioner,
landlady’s son Ajay could even set up his practice in his father’s clinic. The
learned counsel for the respondent countered by pointing out that the
landlady’s husband had stated that his son did not want to start practice
with him as his instruments were old. It would not be appropriate to force
a father and son to share a small dental clinic merely in order to ensure
the convenience of a tenant. It is common knowledge that generational
gap would make it impossible for a modern dentist to practice with
antiquated equipments just as it would be impossible for a dentist of the
old school to adapt himself to modern gadgetry. Therefore, it cannot be
said that the need of the premises for setting up another son Ajay in dental
practice is fanciful.
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12. The learned counsel for the petitioner submitted that landlady’s husband
had admitted that there are ample premises available in the house of
landlady’s mother-in-law. However, there is no reason to disbelieve the
word of landlady’s husband Ramesh that their terms with his mother are
not good. As for the other rooms available in the same building where the
petitioner’s shop is situated, even the petitioner has admitted in his cross-
examination that the rear portion of the house is in dilapidated condition
and that there is no room in the house in which clinic can be started
without making repairs. Thus, the learned counsel for the respondent
rightly submitted that the premises in possession of the petitioner was the
only ones which were readily available to set up landlady’s son in dental
practice.
13. The learned counsel for the petitioner submitted that claim by the landlady
that she wanted the premises for setting up her son in dental practice was,
in fact not pleaded. He pointed out that in paragraph 2-A of the
application, which was added by amendment, the need pleaded was in the
following words :
“…. The applicant shall make the necessary additions and
alterations to the suit house to suit the need of the applicant’s son-
in-law and daughter which is quite pressing and genuine. The
applicant is in urgent need of the premises and the said need is
genuine and bonafide…..”
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Therefore, according to him, need of son has to be totally excluded. This
is improper way of reading the pleadings. It may be seen that in the same
paragraph the landlady has specifically set up the need of the premises for
starting dental clinic of her son. Even the sentence which precedes the one
quoted distinctly mentions the Clinic, Nursing Home and Maternity Home.
Nursing Home and Maternity Home were to be started by the landlady’s
daughter and son-in-law and clinic was to be started by her son. The
sentence which the learned counsel for the petitioner pinpoints, refers to
making additions and alterations to suit the needs of applicant’s son-in-law
and daughter. This obviously refers to the remaining part of the building
which is dilapidated, even according to the petitioner.
14. The learned counsel for the petitioner submitted that need must be actual
and pressing need and not mere whim or fanciful desire. For this purpose,
he relied on the judgment of the Supreme Court in Deena Nath Vs. Pooran
Lal, reported at (2001) 5 SCC 705. The learned counsel for the petitioner
submitted that landlady’s daughter and son-in-law are at Hyderabad and
in normal circumstances the daughter would live at the house of her
husband and would practice there. Therefore, according to him, need
pleaded is fanciful. The learned counsel for the respondent countered by
submitting that it would not be appropriate to stick to a stereotype in the
present days, when whole population is migrating and changing the family
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culture. According to him, if landlady’s daughter and son-in-law find
practice at Nagpur more lucrative than at Hyderabad, there is no reason
why they should not have a desire to set themselves up in practice at
Nagpur. He relied on a judgment of the Division Bench of Nagpur High
Court in Balbhadra Vs. Premchand, reported at 1953 N.L.J. 233, where
even daughter’s need had been taken into consideration. In Kanhaiyalal
Babulal Srivastava Vs. Bapurao Ganpatrao Nandanwar, reported at
1988(3) Bom. C.R. 89 the Division Bench of this Court had considered the
need set up by the landlord for his married daughters because the
daughters wanted to reside with the parents. There cannot be any
stereotype in the matter of ascertaining family needs and in changing time
it would not be improper to a Hindu father or mother to accommodate a
daughter and son-in-law just as he would accommodate a son and
daughter in law.
15. The learned counsel for the respondent submitted that in such matters a
pragmatic approach is necessary and for this purpose relied on a judgment
of the Supreme Court in Maganlal Kishanlal Godha Vs. Nanasaheb
Udhaorao Gadewar, reported at 2008 (11) JT 405 = 2008 (13) Scale
636. In that case, the Court had noted that landlord-tenant litigation
prolongs for a long time and it would not be possible to imagine that a
person for whose need possession was sought would sit idle throughout
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the period of litigation. Considering this it cannot be said that the Rent
Controller or the Additional Collector in appeal erred in holding that the
landlady was entitled to issue a notice to quit under Clause 13(3)(vi) of
the C.P. & Berar Rent Control Order in the proceedings which were started
twenty-two years ago.
16. The petition is, therefore, dismissed.
17. In the circumstances, there shall be no order as to costs.
JUDGE
RR.
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