Bombay High Court High Court

Business vs Smt. Rajashree on 23 June, 2009

Bombay High Court
Business vs Smt. Rajashree on 23 June, 2009
Bench: R. C. Chavan
                                                               1

                     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.
    --------------------------------------------------------------------------------------------------------------------------
    Shri N.S.Khubalkar, Advocate for Petitioner.
    Shri P.V.Vaidya, Advocate for Respondent No. 1. 
    --------------------------------------------------------------------------------------------------------------------------





                                        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

::: Downloaded on – 09/06/2013 14:42:37 :::
2
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.

::: Downloaded on – 09/06/2013 14:42:37 :::
3

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.

::: Downloaded on – 09/06/2013 14:42:37 :::
4

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

::: Downloaded on – 09/06/2013 14:42:37 :::
5
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

::: Downloaded on – 09/06/2013 14:42:37 :::
6
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

::: Downloaded on – 09/06/2013 14:42:37 :::
7
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.

::: Downloaded on – 09/06/2013 14:42:37 :::
8

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.

::: Downloaded on – 09/06/2013 14:42:37 :::
9

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…..”

::: Downloaded on – 09/06/2013 14:42:37 :::
10

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

::: Downloaded on – 09/06/2013 14:42:37 :::
11
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

::: Downloaded on – 09/06/2013 14:42:37 :::
12
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.

::: Downloaded on – 09/06/2013 14:42:37 :::