JUDGMENT
A.M. Khanwilkar, J.
1. These Writ Petitions under Article 227 take exception to the Judgment and decree dated 3-4-1989 of the 5th Addl. District Judge, Solapur in Civil Appeal No. 259 of 1987. The premises in question consists of one verandah and two rooms admeasuring 10′ x 10′ and 15′ x 12′ which forms portion of CTS No. 6995, House No. 96 at Siddheshwar Peth, Solapur. The suit structure consists of total 14 rooms out of which the suit premises referred to above were in possession of tenant Shrirang Dharmaraj Kale. The petitioners in Writ Petition No. 3917/89 and Respondents in the companion Writ Petition 3439 of 1990 are the successors of the said tenant, (hereinafter referred to as ‘tenant’). The said tenant was inducted in the suit premises by the predecessor of the respondents in Writ Petition No. 3917/89 and petitioners in Writ Petition No. 3439/90 (hereinafter referred to as ‘the landlord’).
2. The respondents instituted suit for possession of the suit premises against the tenant before the Court of Civil Judge, Junior Division, Solapur being regular Civil Suit No. 1123/80, essentially on the grounds of reasonable and bona fide requirement under Section 13(1)(g) of the Bombay Rent Act, 1947 and tenant having acquired alternative suitable residence under Section 13(1)(1) of the Act. The trial court was pleased to decree the suit in favour of the landlords on both the aforesaid grounds. In the circumstances, tenant filed appeal before the Appellate Court being Civil Appeal No. 259 of 1987. The Appellate Court however, by the impugned judgment and decree was pleased to confirm the decree for possession only on the ground of reasonable and bona fide requirement but reversed the finding and conclusion of the trial Court insofar as the ground of tenant having secured alternate premises under Section 13(1)(1) of * the Act. In the circumstances, the tenant has filed Writ Petition No. 3917 of 1989
challenging the finding and conclusion with regard to the ground of reasonable and bona fide requirement, whereas the landlords have filed Writ Petition No. 3439 of 1990 challenging the finding and conclusion recorded by the Appellate Court with regard to the ground of tenant having secured alternative residential accommodation. Both these Writ Petitions are filed under Article 227 of the Constitution of India against the self same judgment and decree and have been heard and decided together.
3. Mr. Kumbhakoni appearing for the tenants contends that the finding and conclusion recorded by the appellate court on the issue of reasonable and bona fide requirement is manifestly wrong and perverse since the appellate court even after adverting to the fact that the landlords had inducted one Narkhedkar in the suit structure and parted possession of two rooms therein in his favour just before the institution of the suit, could not have returned finding that the landlords have established reasonable and bona fide requirement as such. He contends that this will have to be examined in the context of the fact that the landlords had filed earlier suit for the same ground of reasonable and bona fide requirement and that issue was answered against the landlords by the trial Court. The learned counsel contends that undoubtedly, the earlier suit was decreed in favour of the landlords on the ground that the tenant has secured alternative premises but even that decree was reversed by the appellate court on 20-4-1978. It is around that time that the landlords have inducted said Shri Narkhedkar in the two rooms out of 11 rooms in their occupation at the relevant time. It is contended that since the said Narkhedkar was inducted just before the institution of the suit, it is incomprehensible as to how the Court would accept the plea that the landlords have established reasonable and bona fide requirement. It is further contended that in any case, admittedly, the landlords have obtained possession of the said two rooms from said Narkhedkar during the pendency of the present suit and if that be so, the requirement of the landlords will have to be held to have been eclipsed by that event. In such a case also, no decree on the ground of reasonable and bona fide requirement could be passed in favour of the landlords. He has also criticized the conclusion and findings recorded by the appellate court with regard to the issue of comparative hardship being inappropriate.
4. On the other hand, Ms. Dandekar for the landlords contends that the appellate court has recorded finding of fact on the issue of reasonable and bona fide requirement and therefore, this court in exercise of writ jurisdiction cannot reappreciate the evidence or overturn that finding of fact. It is contended that said Narkhedkar was not inducted as tenant in two rooms accommodation but was allowed to occupy the same for temporary period as he was the friend of Rafioddin plaintiff No. 2. It is submitted that no fault can be found with the reasoning of the appellate court that even if it was to be held that Narkhedkar was inducted as tenant in two rooms even then, having regard to the prevailing circumstances, the Court was obliged to answer the issue of reasonable and bona fide requirement in favour of the landlords particularly having regard to the increased requirement of the landlords as the family had grown at the relevant time upto 24 persons. If that be so, the conclusion reached by the appellate court would not merit any interference. It is therefore, submitted that the decree as passed by the appellate court on the issue of reasonable and bona fide
requirement will have to be maintained by this Court. The learned counsel further submits that in fact the appellate court has committed error in refusing decree on the ground under Section 13(1)(1) of the Act inasmuch as the appellate court has found that the tenant, his wife and son and other members of the family were registered as voters at Bhogewadi which would presuppose that they were ordinarily residing at that place. Having found that fact against the tenant, the appellate court ought to have decreed the suit also on the ground under Section 13(1)(1) of the Act.
5. On the other hand, Mr. Kumbhakoni for the tenants contends that there would be no occasion to grant decree under Section 13(1)(1) of the Act because there is neither any pleading nor any proof regarding the factum of tenant having actually acquired alternative residential premises in the same locality or the same city. He therefore, contends that no fault can be found with the conclusion reached by the appellate court on this ground.
6. Having considered the rival submissions, I shall first advert to the ground of reasonable and bona fide requirement. It is not in dispute that the landlords had instituted suit on the earlier occasion against the tenant in which one of the ground was reasonable and bona fide requirement. The trial Court rejected the case made out by the landlords with regard to the said ground. That finding recorded by the trial Court was allowed to become final by the landlords. No doubt the previous suit was decreed in favour of the landlords, but on the ground that the tenant had secured alternative residential premises. However, that decree was subsequently set aside by the appellate court having found that the premises referred to by the landlords were not acquired by the tenant as such. In other words, the earlier suit was dismissed against the landlords. What is relevant to note is that although the appeal in respect of the earlier suit was pending before the appellate court and was eventually disposed of on 20-4-1978, however, in or around that time, landlords inducted one Mr. Narkhedkar in two rooms in the suit property out of the 11 rooms which were in their occupation. If the landlords were genuinely pursuing their previous action against the tenant especially on the ground of reasonable and bona fide requirement then surely, they would not have parted with possession of those two rooms to said Narkhedkar in 1978. Besides, the present suit has been filed immediately thereafter in the year 1980 against the tenant and one of the ground set up is reasonable and bona fide requirement. In this suit, the fact that the landlords have parted possession of two rooms in favour of Mr. Narkhedkar just before the institution of the suit has not been disclosed. Nor it is their case that the purported additional need was more than two rooms. Be that as it may, when the matter went for trial, the landlords were confronted with that position. Even the appellate court has adverted to that aspect in para-24 of its judgment and has accepted the tenants’ plea that the said Narkhedkar was inducted in two rooms accommodation as tenant. What is relevant to note for our purpose is that when the present suit was instituted just few months prior to that, said Narkhedkar was inducted as tenant in two rooms out of the eleven rooms in possession of the landlords in the suit property. If that be so, it is incomprehensible as to how the landlords would still successfully plead that there was a subsisting reasonable and bona fide requirement, as is sought to be contended in the present
proceedings. Besides, what is further relevant to note is that during the pendency of the present suit, the said Narkhedkar admittedly vacated the two rooms which were given to him and has made over possession thereof to the landlord in the year 1981. Assuming that when the landlords filed the present suit for recovery of possession of the suit premises consisting of two rooms in 1980 there was a subsisting reasonable and bona fide requirement however, with the event of landlords getting back possession of two rooms from said Narkhedkar in 1981, that need or requirement got eclipsed. A priori, the event of Narkhedkar handing over possession of two rooms to the landlords is very pertinent, for by that the need which was pressed into service by the landlords at the time of institution of the suit on 20-10-1980, was satisfied in the year 1981. As observed earlier, even the present suit premises consists of two rooms and a verandah. If that be so, then surely, there would be no question of answering the issue of reasonable and bona fide requirement in favour of the landlords. The appellate Court although adverted to the fact of induction of Narkhedkar and subsequent vacating of the premises by Narkhedkar and delivery of possession to the landlords, has glossed over the crucial tests atleast relating to the theory of eclipsing of the requirement which ought to have been considered and applied to the fact situation of the present case, Mr. Kumbhakoni for the tenants has rightly relied on the decision of the Apex Court in G. C. Kapoor v. Nand Kumar Bhasin and Ors. to contend that bona fide requirement means that requirement must be honest and not tainted with any oblique motive and is not a mere wish or desire. No doubt it was contended on behalf of landlords that the conclusion of the Appellate Court ought not to be faulted because during the pendency of the proceedings the requirement of the landlords has increased and in that context the need of the landlords would be reasonable and bona fide. However, it is not possible to countenance this stand. Firstly, there is no corresponding amendment of the pleadings in this regard. Moreover, it is settled law that the parties will have to be relegated to the date of institution of the suit and as in this case the landlords had let out two rooms in their possession to the said Narkhedkar, it is unfathomable that there would be any cause of action available to the landlords to institute the present suit on the ground of reasonable and bona fide need. Regarding the landlords plea of subsequent events. I shall deal with that further a little later. Having analysed the admitted facts on record in the above perspective, I have no hesitation in taking the view that there would be no occasion to answer the issue of reasonable and bona fide requirement in favour of the landlords.
7. Since the issue of reasonable and bona fide requirement has been answered against the landlords, it will not be necessary for me to burden this judgment with the question of comparative hardship. Instead, I will straight way advert to the ground that tenants have secured alternative suitable residential premises within the meaning of Section 13(1)(1) of the Act. The law with regard to the requirement of pleading and proof and in particular to the ingredients to be established for the ground under Section 13(1)(1) of the Act is enunciated by the Apex Court in Anandi D. Jadhav’s case . The Apex Court has observed that a plain reading of the said provision [section 13(1)(1)] would show that the landlord is entitled to recover possession of a premises from any tenant provided the Court is satisfied that after coming into
operation of the Act, the tenant has acquired vacant possession of or has been allotted a suitable residence. The Apex Court has further observed that from me scheme of the provision it is discernible that it is only when the tenant gets a right to reside in a house other than demised premises on the happening of any one of the three alternatives mentioned therein, namely, either by building or acquiring vacant possession of or by allotment of a house, that the landlord can seek recovery of possession of the demised premises from the tenant. In the present case, as rightly pointed out by Mr. Kumbhakoni, in para 4{e) of the plaint, all that the landlords have averred is that the defendant has his “agricultural land” at Bhogewadi, which is owned by him. There is absolutely no averment to the effect that besides the agricultural land, the tenant had any “residential house” of his own at Bhogewadi. Be that as it may, it is not in dispute that Bhogewadi is not a part of the city of Solapur, but is at a distance of more than 60 kms from the Solapur city. If that be so, even assuming that the Court was to proceed on the premise, as contended by the Counsel for the landlords, that since the voters list of Bhogewadi would indicate the names of the tenants and his family, it presupposes that he was ordinarily residing at Bhogewadi, however, even that would be of no consequence to answer the ground under Section 13(1)(1) of the Act against the tenants. What is required to be pleaded by the landlords is that the tenant has acquired or has built, or has been allotted suitable residence. That pleading as well as evidence is completely lacking in this case. To my mind, the onus of establishing the fact that the premises at Bhogewadi were not suitable would shift on the tenants only if the landlords had established the abovesaid fact necessary to consider the ground under Section 13(1)(1) of the Act. In the circumstances, no fault can be found with the conclusion reached by the appellate court for having answered the ground under Section 13(1)(1) against the landlords for reasons recorded in paras 18 and 19 of its judgment.
8. That takes me to the other contention raised by Ms. Dandekar for the landlords. She has relied on certain events which according to her are subsequent events and have been so stated in Civil Application No. 4741/97. The tenants have opposed this application and have filed affidavit inter alia to contend that as a matter of fact certain subsequent events have taken place on account of which the requirement of the landlords has been reduced. It will not be necessary for this Court to go into any of those aspects having regard to the law stated by the Apex Court in 2000 (2) SCC 256 in Omprakash Gupta’s case. The Apex Court in that case has referred to its decision in Torjan and Co. in and of the Privy Council reported in (1898) 25 LA. 195 (Privy Council) in Shri Mahant Govindrao’s case and has observed that the Court may permit subsequent events to be introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining the real question in controversy between the parties. The Apex Court has further observed that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court, would not be entitled to modify or alter the relief. The Apex Court has observed that as a rule, relief not founded on the pleadings should not be granted. In the present case, pleadings have not been amended nor there is any prayer for amendment of the pleadings as such. In such a situation, although both the sides
claim that there are subsequent events which would be relevant for full complete and effectual adjudication of the matter but, that would be of no avail.
9. In the circumstances. Writ Petition preferred by the tenants being Writ Petition 3917 of 1989 would succeed and the conclusion reached by the trial court as well as the Appellate Court on the issue of reasonable and bona fide requirement will have to be reversed. On the other hand, Writ Petition filed by the landlords being Writ Petition No. 3439/90 will have to be dismissed and the conclusion reached by the appellate court on the ground under Section 13(1)(1) in favour of the tenants will have to be confirmed. As a consequence of this order, the suit instituted by the landlords is dismissed with no order as to costs.
10. Civil Application filed on behalf of the landlords being Civil Application 4741/97 in Writ Petition 3439 of 1990 is also accordingly dismissed.
Certified copy expedited.