CASE NO.: Appeal (civil) 5925 of 1999 PETITIONER: RAGHUNATH G. PANHALE (DEAD) BY LRS. RESPONDENT: CHAGANLAL SUNDARJI AND CO. DATE OF JUDGMENT: 13/10/1999 BENCH: M. JAGANNADHA RAO & A.P. MISRA JUDGMENT:
JUDGMENT
1999 Supp(3) SCR 629
The Judgment of the Court was delivered by
M. JAGANNADHA RAO, J. Leave granted.
This is an appeal by the landlords for possession of a non- residential
premises from the respondent tenant. The suit No. 37 of 1986 was filed
before the Civil Judge, Junior Division, Panvel by the original landlord
for his own use pleading bonafide and reasonable requirement. The
respondent – tenant resisted the suit contending that the plea of bonafide
requirement was not acceptable. During the pendency of the case in the
first Court, the original plaintiff died and his heirs, the appellants were
brought on record. They filed an application for amendment under Order 6
rule 17 of the Code of Civil Procedure and the same was allowed. The third
legal representative pleaded that the same premises was required for
himself for starting a grocery business. He stated that he was working in
Metal box. Co., that there was a lock-out in that company, that he was
finding it difficult to maintain the family and wanted to improve his
livelihood by starling grocery business. On the amended pleadings, both
parties led evidence. The trial Court held that on the death of the
original landlord, the suit abated becuase the original landlord’s
requirement was for himself and his requirement differed from that of his
heirs. On merits, the trial Court held that there was no proof of lock-out,
no proof of capital available for investment, no proof of preparations for
business and that the appellant had no experience in grocery business. The
lock out did not put the appellant out of his job permanently. The
appellant had not resigned his job. Therefore, the requirement was not
bonafide. The suit was dismissed. The lower appellate Court confirmed the
finding on the question on bona fide requirement but reversed the finding
as to abatement stating that the plaint was amended, and thereafter parties
had adduced evidence on the question of the need of the legal
representatives. The appellate Court gave a finding that the tenant had got
three other shops. The appeal was dismissed. The landlord has come up in
appeal.
We have heard elaborate arguments of the learned counsel on both sides.
After hearing counsel, we are of the view, for reasons given below, that
this is a fit case for interference under Article 136 inasmuch as the
Courts were wrong in thinking that the plaintiff must prove not his need
but his `dire or absolute necessity’. The above approach on the facts has
appeared to us to be based on irrelevant circumstances.
Now, it is well-settled that this Court under Article 136 will not
ordinarily interfere with the findings of fact arrived at by the Courts
below except in rare situations. It was held in Variety Emporium v. V.R.M.
Mohd. Ibrahim Naina, [1985] 1 SCC 251 which arose under a Rent Control
statute, that though this Court would not ordinarily interfere, this Court
could go into the correctness of findings of fact where “the concurrent
decision of two or more courts or tribunals is manifestly unjust”. This
burden is no doubt to be discharged by the appellant. “But once that burden
is discharged, it is not only the right but the duty of Supreme Court to
remedy injustice”. Similarly in Bega Begum and Ors. v. Abdul Ahad Khan and
Ors., [1979] 1 SCC 273, which also arose under the Rent Control law, it was
again held that where the “High Court” and the trial Court have made a
legally wrong approach and have committed substantial and patent error of
law in interpreting the scope and ambit of the words “reasonable
requirement” and “own possession” in the section and “have thus misapplied
the law and overlooked some of the essential features of the evidence, the
Supreme Court has to enter into the merits of the case in order to prevent
grave and substantial injustice”.
We shall initially refer to the legal principles applicable to the case.
Section 13(l)(g) of the Bombay Rents, Hotel and Lodging House Rates
(Control) Act, 1947 uses the word “the premises are reasonably and bona
fide required by the landlord for his own occupation etc”. The requirement
must, therefore, be both reasonable and bona fide.
The word `reasonable’, in our view, connotes that the requirement or need
is not fanciful or unreasonable. It cannot be a mere desire. The Word
`requirement’ coupled with the word reasonable means that it must be
something more than a mere desire but need not certainly be a compelling or
absolute or dire necessity. Aitken v. Shaw, (1933) S.L.T, 21; Novile v.
Hordy, 90 L.J. Ch, 158. A reasonable and bona fide requirement is something
in between a mere desire or wish on one hand and a compelling or dire or
absolute necessity at the other end. It may be a need in presenti or within
reasonable proximity in the future. The use of the word `bonafide’ is an
additional requirement under Section 13(l)(g) and it means that the
requirement must also be honest and not be tainted with any oblique motive.
The above principles have been laid down in various decisions of this Court
and we shall refer to a few of them which are relevant to the issue before
us. It was stated in Bega Begum & Others v. Abdul Ahad Khan & Others,
[1979] 1 SCC 273 that the reasonable requirement postulates an element of
need” as opposed to a mere “desire or wish”. It was also pointed out that
if it was indeed a case of a reasonable need, the same could not be diluted
by characterising it as only a mere desire. It was stated:
“The distinction between desire and need should doubtless be kept in mind
but not so as to make even a genuine need as nothing but a desire”.
It was also held that the language of the provision cannot be unduly
stretched or strained as to make it impossible or extremely difficult for
the landlord to get possession. If more limitations are imposed upon the
landlord holding property, it would expose itself to the vice of
unconstitutionality. Yudhishtir v. Ashok Kumar, [1987] 1 SCC 204. The
construction of the relevant statutory provision must strike a just balance
between the right of the landlord and the right of the tenant. In Bega
Begum’s case the landlords adduced evidence to show that they wanted to
augment their present income by starting hotel business. This was treated
as a genuine need and it was held that it could not be equated with a mere
desire. This Court observed that “the Act does not completely overlook the
interest of the landlord” In Mattulal v. Radhelal, [1974] 2 SCC 365, a like
principle was laid down stating that the test was not subjective but an
objective one and that the Court was to judge whether the need of the
landlord was reasonable and bona fide. This Court held that the Additional
District Judge in that case was wrong in thinking that the landlord who
wanted to start iron and steel business, had to produce proof of
preparations for starting his new business, such as making arrangements for
capital investment, approaching the Iron and Steel Controller for the
required permits etc. This court held that the above circumstances were
“wholly irrelevant” and observed :
“It is difficult to imagine how the respondent could be expected to make
preparations for starting the new business unless there was reasonable
prospect of his being able to obtain possession of the Lohia Bazar Shop in
the near future”. This Court took judicial notice of long delays in Courts
and observed :
“It is common but unfortunate failing of our judicial system that a
litigation takes an inordinately long time in reaching final conclusion and
then also it is uncertain as to how it will end and with what result” and
that, therefore,
“it would be too much to expect from him (landlord) that he should make
preparations for starting the new business. Indeed, from a commercial and
practical point of view, it would be foolish on his part to make
arrangements for investment of capital, obtaining of permits and receipt of
stocks of iron and steel materials when he would not know whether he would
at all be able to gel possession of the Lohia Bazar Shop, and if so, when
and after how many years”.
Next comes the decision of this Court in A.K. Veeraraghava Iyengar v. N.V.
Prasad, AIR (1994) SC 2357. In that case, this Court observed that the need
was bonafide and that the tenant failed to adduce any evidence against the
“experience of landlord, his financial capacity and his readiness and
willingness to start jewellery shop”. In Vinay Kumar and Ors. v. District
Judge, Ghazipur and Ors., [1995] Suppl. 2 SCC 586, it was contended for the
tenant that the son of the landlord whose requirement was pleaded, was in
government service and, therefore, he could not have any bona fide need to
start private practice as a doctor. This contention was rejected. In Rena
Drego (Mrs.) v. Lalchand Soni and Ors., [1998] 3 SCC 341 it was observed
that in the light of the factual position in that case, “where the
(landlady) says that she needs more accommodation for her family, there is
no scope for doubting the reasonableness of the requirement” It was held
that the circumstances of the case raised a presumption that the
requirement was bonafide and that “tenant has failed to show that the
demand for eviction was made within any oblique motive”. It was held that
in the absence of such evidence by the tenant, the presumption of the bona
fide need stood unrebutted. In Sarla Ahuja v. United India Insurance Co.,
[1998] 8 SCC 119 it was again observed that the Court should not proceed on
the assumption that the requirement of the landlord was not bona fide and
that the tenant could not dictate to the landlord as to how he should
adjust himself without getting possession of the tenanted premises. It was
stated in Prativa Devi (Smt.) v. T.V. Krishnan, [1996] 5 SCC 353 and in
Meenal Eknath Kshirsagar v. Traders and Agencies & Another, [1996] 5 SCC
344, that the landlord was the best judge of his requirement. In Smt.
Sheela Chadha and Ors. v. Dr. Accharaj Ram Sehgal, [1990] Suppl. SCC 736,
it was held that the landlord had the discretion to determine his need. See
also in this connection the judgment of this Court in Shiv Sarup Gupta v.
Dr. Mahesh Chand Gupta, [1999] 6 SCC 222. In Raj Kumar Khaitan and Ors. v.
Bibi Zubaida Khatun and Anr., [1997] 11 SCC 411, this Court had even stated
that it was not necessary for the landlord to state in the pleadings, the
nature of the business he proposed to start.
In the light of the above principles, we shall now examine the decision of
the courts below. In this case, the plaintiff No. 1/3 (one of the legal
representative of the deceased plaintiff) came forward with the plea that
he was in service of Metal Box Co. and since January 1988, due to lock-out,
the company was closed down and he was not having any source of income and
therefore, he wanted to earn his livelihood by opening a grocery-shop The
trial Court and the first appellate Court observed that it was necessary
that plaintiff should prove that he had lost his job and was unable to
maintain his family. This, according to the said courts, was belied by the
fact that in the amendment application and affidavit, the plaintiff No. 1/3
described his occupation as `service’ and that, therefore his evidence was
not acceptable. It was further held that his evidence that he lost his job
on 15.1.1958 must also be rejected. The envelope containing notice of lock-
out from the company and news item in newspaper would not, it was observed,
prove the lock out. The notice showed only an intention to lock-out from
5.2.1988. It was stated that no documentary evidence, was produced to prove
that the said plaintiff lost his job. The trial Court in fact went into the
definition of `lock-out’ in the Industrial Disputes Act, 1947 and held that
by a lock-out, the plaintiff would not lose his job permanently and that he
would get his wages when the lock-out was lifted. As the plaintiff also
admitted that there was a sign board at his house, with the words `Ganesh
Water Supply’, the plaintiff must be deemed to have started some other
business. The plaintiff’s evidence that he was maintaining himself by
taking loans from friends was not proved by adducing other evidence. He had
not taken steps to purchase furniture to furnish the proposed grocery shop
and never thought of the capital required for the business. On this
material, it was held that no case was made out that he was not able lo
maintain his family. Yet another reason was that during his father’s life
time, he, the plaintiff never thought of running a grocery shop. The
plaintiff admitted that he did not resign his job. He thus had no intention
of permanently running a grocery shop. It was not proved he had knowledge
of grocery business. These are the reasons given by the trial court and the
first appellate court for rejecting the appellant’s case. The High Court
rejected the application under Article 227 on the ground that concurrent
findings of fact could not be interfered with.
It will be seen that the trial Court and the appellate Court had clearly
erred in law. They practically equated the test of “need or requirement” to
be equivalent to “dire or absolute or compelling necessity”. According to
them, if the plaintiff had not permanently lost his job on account of the
lock-out or if he had not resigned his job, he could not be treated as a
person without any means of livelihood, as contended by him and hence not
entitled lo an order for possession of the shop. This lest, in our view, is
not the proper test. A landlord need not lose his existing job nor resign
it nor reach a level of starvation to contemplate that he must get
possession of his premises for establishing a business. The manner in which
the courts have gone into the meaning of “lock-out” in the Industrial
Disputes Act, 1947 appears to us to be nothing but a perverse approach to
the problem. One cannot imagine that a landlord who is in service should
first resign his job and wait for the unknown and uncertain result of a
long drawn litigation. If he resigned his job, he might indeed end up in
utter proverty. Joblessness is not a condition precedent for seeking to get
back one’s premises. For that matter assuming the landlord was in a job and
had not resigned it or assuming that pending the long drawn litigation he
started some other temporary water business to sustain himself, that would
not be an indication that the need for establishing a grocery shop was not
a bona fide or a reasonable requirement or that it was motivated or was a
mere design to evict the tenant. It is not necessary for the landlord to
adduce evidence that he had money in deposit in a Bank nor produce proof of
funds to prove his readiness and willingness as in a suit for specific
performance of an agreement of sale of immovable property. So far as
experience is concerned, one would not think that a grocery business was
one which required extraordinary expertise. It is, therefore, clear that
the entire approach of both the Courts was absolutely wrong in law, and
perverse on fact. Unfortunately the High Court simply dismissed the writ
petition filed under Article 227 stating that the findings were one of
fact.
That is why we think that this is an exceptional case calling for
interference under Article 136 of the Constitution of India.
Learned counsel for the respondent, however, raised another point regarding
abatement and relied upon Phool Rani and Ors. v. Naubat Rai Ahluwalia,
[1973] 1 SCC 688 to contend that while the matter was in the Trial Court,
the original plaintiff died, that the cause of action based on his bona
fide requirement ceased to exist and the suit could not have been continued
by his heirs. This was because the original plaintiff’s requirement would
not be the same as that of his heirs. It is true, the above judgment does
support the above contention. On the main point, the above decision was
overruled in Shantilal Thakordas and Ors. v. C.M. Telwala, [1976] 4 SCC 417
where it was held that if the original plaintiff pleaded that it was his
own need and that of family members, the cause of action would survive on
his death, to his heirs. In Shantilal’s case, it was pointed out that if
the landlord claimed possession on the ground of bona fide requirement for
himself and his family members, his family members could continue the same
eviction case, after the landlord’s death, without amendment since the
cause of action would survive to them.
Now, it is true that in Phool Rani there was no amendment application by
the heirs of the deceased landlord while in the case before us, an
amendment application was filed by the heirs and was allowed, putting in
issue, their own requirement. It is also true that in Phool Rani no
amendment application was filed and allowed, but there are still
observations that, the plaint cannot be amended for putting in issue the
requirement of the heirs inasmuch as the cause of action will be different.
Be t hat as it may, now the question before us is whether when relief for
eviction was retained in the amendment and the plaint was amended at the
instance of the heirs to put in issue their own requirement and when
voluminous evidence was led on both sides and findings given on merits, the
question is whether we should at this distance of time hold on basis of
Phool Rani that the Amendment was wrongly allowed and drive the heirs to a
fresh suit after thirteen years. The eviction case was filed in 1986 and we
note the tenant had full opportunity to meet the case of the heirs as per
the amended pleading. In our view, they suffered no prejudice whatsoever
because of the amendment. We, therefore, think that in our discre-tion, we
should not drive the heirs to file a fresh suit on the plea that the
amendment was wrongly allowed. We, therefore, in our discretion under
Article 136, do not permit this point to be raised by the respondent.
In the result, the appeal is allowed and the judgment and decision of all
the three courts are set aside, and eviction is ordered. We, however, grant
six months time for vacation subject to the tenant’s filing usual
undertaking within 4 weeks and continuing to pay occupation charges at the
same rate during this period of six months. In case of breach of this order
or the undertaking, the execution case can proceed straightway, Appeal is
allowed. There will be no order as to costs.