ORDER
1. The petitioner by filing this petition under Arts. 226 and 227 of the Constitution of India has challenged the order dated 9-1-1989 passed by the Additional District Magistrate, Nagpur, having appellate powers under clause 21 of the C.P. and Berar Letting of Houses and Rent Control Order, 1949.
2. By the order dated 9-1-1989 the Additional District Magistrate, Nagpur (for short “the Appellate Authority”) reversed the order passed by the Rent Controller, Nagpur, on 12-12-1977 to the extent he refused to grant the permission to the respondents (for short “the Landlords”) to determine the tenancy of the petitioners (for short “the Tenant”) on the ground of bona fide need under clause 13(3)(vi) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short “the Rent Control Order”).
3. More than two decade be.fore i.e. in the month of Nov. 1974 the landlords filed an application before the Rent Controller, Nagpur, seeking his permission to terminate the tenancy of the tenant under clauses 13(3)(vi) and 13(3)(viii) of the Rent Control Order. According to the case set up by the landlords in the application, the tenant was in occupation of the house situated on plot No. 3, Old Ward No. 18, Khojakhana Road, Gandhibag, Nagpur details of which were given in para 1 of the application. The premises were let out to the tenant on monthly rent of Rs. 350/- under the agreement of lease dated 2-4-1965, and at that time the premises let out to the tenant comprised of three tasmas on the ground floor with loft measuring 24’x 15′ and one room on first floor towards North, near the stair-case with right to use latrine and bath room on the ground floor. Subsequently on 1-1-1967 the tenant took additional accommodation i.e. the archade and one more room on the ground floor and the rent was increased to Rs. 425/- per month. The original landlord Mohammad Ibrahim died on 15-2-1970 leaving behind the applicants as heirs inheriting the house in question. The tenant after the death of Mohammad
Ibrahim started paying the rent to one of the applicants and the rent receipts were given to the tenant. The landlords averred in the application that the tenant has started damaging the rented house. The details of the damage to the property were given by the landlords in the application. As regards the ground under clause 13(3)(vi), the landlords averred that they were living in a very small house in Satranjipura, Nagpur, which has only two rooms, one kitchen and one verhanda and cannot accommodate the entire family of the landlords. The members of the family were growing in age and were shortly going to be married. The premises were also required to start the business of transport by the applicants Nos. 3 and 4. The applicant No. 2 Mohammad Ghous was engaged and was going to be married shortly and he has decided that he would live with his wife in Satranjipura where presently the landlords with their family were residing.
4. The tenant filed the reply to the said application on 31-3-1975 arid admitted the tenancy. It was denied by the tenant that any damage was caused to the rented premises. As regards the ground set up by the landlords relating to the bona fide occupation, the tenant denied that the premises available at Satranjipura were small and the suit premises were required for the purpose of business of the applicants Nos. 3 and 4. The tenant further submitted that the intention of the landlords was to increase the rent.
5. In support of their case the landlords examined the applicant No. 3 Mohammad Ayaz, while the tenant examined Yeshwant Madhavrao Kurade.
6. The Rent Controller after holding the inquiry by his order dated 12-12-1977 found that the landlords have been able to establish the ground under clause 13(3)(viii) of the Rent Control Order and accordingly granted the permission to the landlords to terminate the tenancy of the tenant on that ground. However, the Rent Controller held that the landlords have not been able to establish that the premises are required by them for their bona fide occupation and consequently the finding under clause 13(3)(vi) was
recorded against the landlords.
7. The landlords as well as the tenant, both aggrieved by the order passed by the Rent Controller on 12-12-1977, filed separate appeals before the appellate authority. The landlords were aggrieved by the order of the. Rent Controller, whereby the permission to terminate the tenancy on the ground of bona fide occupation under clause 13(3)(vi) was refused whereas the tenant was dissatisfied with the order whereby the permission was granted to the landlords to terminate the tenancy under clause 13(3)(viii). The landlord’s appeal was heard and decided ex parte by the appellate authority on 5-1-1978 and the appeal was allowed. The tenant made an application for setting aside the ex parte order allowing the appeal. The said application was rejected by the appellate authority on 15-1-1979. The tenant preferred the writ petition before this Court, but the writ petition was dismissed and the tenant took up the matter to the Supreme Court and the Supreme Court vide its order dated 31-8-1981 remanded the matter back to the appellate authority to hear and decide the appeal afresh, which was filed by the landlords before the appellate authority against the order of the Rent Controller, whereby the permission under clause 13(3)(vi) was refused to the landlords by the Rent Controller. It may be observed here that so far as the appeal filed by the tenant challegning the order of the Rent Controller dated 12-12-1977 granting the permission to the landlords to terminate the tenancy under clause 13(3)(viii) was concerned, the said appeal was allowed by the appellate authority and the landlords filed the writ petition before this Court, which was registered as Writ Petition No. 2240 of 1980 and by the judgment dated 7-12-1983 this Court affirmed the order of the appellate authority, whereby he set aside the order of the Rent Controller granting the permission to the landlords to terminate the tenancy of the tenant under clause 13(3)(viii) and, therefore, no controversy survives so far as the ground under clause 13(3)(viii) is concerned.
8. After remand by the Supreme Court as observed above, the appellate authority heard
the appeal filed by the landlords against the order passed by the Rent Controller on 12-12-1977, whereby he refused to grant the permission to the landlords to issue quit notice to the tenant under clause 13(3)(vi), and the appellate authority after hearing the learned counsel for the parties vide his order dated 9-1-1989 allowed the appeal filed by the landlords and set aside the order of the Rent Controller so far as it related to clause 13(3)(vi) and granted the permission to the landlords to terminate the tenancy of the tenant under clause 13(3)(vi) of the Rent Control Order, and the said order has been challenged by the tenant in the present writ petition.
9. Mr. Dcopujari, learned counsel for the tenant has raised three-fold submissions. The learned counsel for the tenant contended that the landlords have not pleaded the requisite facts for showing bona fide requirement of the premises by them. According to the learned counsel for the tenant, comparative data and material about the need of individual member of the family was required to be pleaded and necessary pleadings about the business need, namely, area, experience and capacity to start the business were required to be made and since the application suffered from want of necessary pleadings, the appellate authority erred in granting the permission to the landlords to determine the tenancy of the tenant under clause 13(3)(vi). In this connection the learned counsel for the petitioner placed reliance on the decisions in Sukhdeo v. Laxmibai 1987 Mah LJ 545 and Dwarkadevi v. Narsingdas 1987 Mah LJ 332. Secondly, it was contended by the learned counsel for the petitioner that the applicants Nos. 3 and 4 for whom bona fide need of business was pleaded were not examined, and in the absence of their deposition about their need, the bona fide requirement of the landlords could not have been held to be proved. The learned counsel also placed reliance on Premabhai v. Jagatram 1979 Man LJ Note 3 and Nathulal v. Nandubai, 1984 Bom 340). The third contention advanced by the learned counsel for the petitioner tenant was that the appellate authority did not take into consideration the subsequent events and the need of the landlords on the date of
passing of order, and the tact that the rent was increased by the landlords and, therefore, the application was mala fide. In support of this contention, the learned counsel relied on the decisions in Hashmatrai v. Raghunath, and Ramdas v. Ishwar Changder, .
10. On the other hand, the learned counsel appearing on behalf of the landlords submitted
that the application seeking permission by the Rent Controller to determine the tenancy of the tenant was filed by the landlords way back in the month of Nov. 1974 and the premises in question were required by them for residential as well as business purposes. The landlords, according to the learned counsel, were residing in the two rooms house at Satranjipura, Nagpur, and for the family of ten members they required the rented premises which comprised of four rooms on the ground floor and one room on the first floor with other facilities and also the requirement was for business purposes of the applicants Nos. 3 and 4 where they wanted to start the business of transport. According to the learned counsel, not only that the premises in question are required bona fide by the landlords, as a matter of fact on the face of large family and small accommodation available to them the need of the disputed premises by the landlords is presssing. The learned counsel for the landlords submitted that the tenant has failed to show by leading positive evidence that the landlords are having the accommodation of more than two rooms available with them at Satranjipura or that the family does not comprise of ten members, who all were applicants in the application before the Rent Controller. Mr. Shabbir Husssain, learned counsel for the landlords, submitted that the finding arrived at by the appellate authority that the premises are required by the landlords for their bona fide occupation is based on evidence on record and, therefore, the pure finding of fact arrived at by the appellate authority does not require interference by this Court. The learned counsel for the petitioner also submitted that the need of the premises by the landlords subsists and the tenant has failed to establish that the need pleaded by the land-
lords has ceased to exist on the date of passing of the order by the Rent Controller.
11. I have considered the submissions of the learned counsel for the parties and perused the material and relevant portions of the record.
12. The landlords have come out with the positive case in their application that the premises in question are required by them for residential purpose and also for non-residential purpose. The facts have been pleaded by the landlords to make out the case for bona fide requirement in as much as it is clearly pleaded by the landlords in their application that presently they were residing in the house situated at Satranjipura, Nagpur, which has only two rooms one kitchen and one varandah and this house was very small and cannot accommodate the applicants, who were ten in number, in that house. It is also pleaded that the applicant No. 2 Mohammad Ghous is already engaged and was going to be married shortly and he has decided that he would live with his wife in the house at Satranjipura. It is also pleaded that the applicants are growing in age. On the face of such pleadings about the residential requirement of the premises by the landlords, it cannot be said that the landlords have not furnished the requisite and necessary pleadings. The applicants were ten in number, the family was big, the accommodation with them was small, the details of the present accommodation and further fact that one of the applicants i.e. the applicant No. 2 was already engaged and was going shortly to be married and he had decided to stay in the present small house and all facts which may make out the requirement of bona fide need, were pleaded. The pleading of residential requirement is therefore more than sufficient. As regards the pleading about the business requirement, the landlords have pleaded that the applicants Nos. 3 and 4 wanted to start the business of transport in the premises in question. Thus the landlords have averred that so far as the business requirement is concerned i.e. for applicants Nos. 3 and 4, nature of business is also mentioned that the applicants Nos, 3 and 4 would start the
transport business. Thus it would be seen that the landlords have pleaded the basic arid necessary facts so far as the bona fide requirement of the premises for business pur-pose was concerned. It is true that to test the bona fide requirement, the landlord is required to plead specifically the need for which the premises are required, but that does not mean that minute details of the need should be given in the pleading. The basic and necessary facts which may constitute the ground for bona fide requirement would be sufficient and not elaborate evidence is required to be stated in the pleading. There is no requirement in the law that while pleading the ground of bona fide requirement, the landlord should also plead the evidence rather, if the landlord is required to give the details of evidence in the pleading itself, the very purpose of having the precise and material pleading would be lost. The material fact and facts which are only material to make out the ground for bona fide requirement need to be pleaded and not unnecessary details by which the landlord would prove such facts. The landlord is required to mention the basic and material facts constituting the ground of bona fide requirement in his pleading mainly for two purposes, namely, (1) so that the tenant is not put to prejudice in meeting the case of the landlord and the tenant knows the purpose for which the premises are required by the landlord and extent of the need of the landlord, and (2) that the landlord may not improve upon his case during the course of evidence. Applying the said principles, it is apparent from the averments made by the landlords in para 6 of their application that all requisite and necessary facts about the bona fide requirement have been given by the landlords both for residential purpose as well as non-residential purpose. For residential purpose it is pleaded that the available accommodation of two rooms is too small for the large family of the applicants, who are ten in number, growing age of the applicants, proposed marriage of one of the applicants and the fact that after marriage one of the applicants shall stay in the present accommodation of two rooms are all facts which
arc enough and sufficient for the tenant to know the case of the landlords about their residential requirement, and the tenant was able to meet the case of the landlords. As regards the requirement for business purpose also, it was pleaded clearly that the business would be started by the respondents Nos. 3 and 4 and that the business of transport would be started by them. Thus the persons who would start the business and the nature of business were clearly mentioned enabling the tenant to know the business need of the landlords. Thus there is no merit in the contention of the learned counsel for the petitioner that the landlords have not made the requisite and necessary pleading about the bona fide requirement.
13. In Dwarkadevi’s case (1987 Mah LJ 332) (cited supra) on which strong reliance has been placed by the learned counsel for the petitioner, what has been held is that mere desire of the landlord was not enough to prove the bona fide need as contemplated under Clause 13(3)(vi) of the Rent Control Order. This Court held that certain elements of necessity must be there and the bona fide need under Clause 13(3)(vi) would mean bona fide requirement of premises by the landlord and in regard to business need, it was not enough to state that the landlord wants to do the business. It must be also proved as to which business he wants to start, the area and space needed for it. Adverting to the facts which were available in that case, this Court in Dwarkadevi’s case observed that except the bare statement that the petitioner wanted to start the business, there was no pleading as to which business the petitioner wanted to start. This Court in Dwarkadevi’s case (1987 Mah. LJ 332) held as under :
“….. It is well established that mere desire
of the landlord is not enough to prove bona fide need as contemplated under Clause 13(3)(vi). Certain element of necessity must be there and the bona fide need under Clause 13(3)(iv) would mean the bona fide requirement of the suit premises by the landlord. In regard to business, it must be proved also which business he wants to start and the area or space needed for it. He must further prove that he had knowledge and experience and
capacity to start the business. If there are
vacant premises in possession of the landlord,
it must be shown how the said premises are
not useful for the business of the landlord,
which he wants to start…..
Examining the case of the petitioner under Clause 13(3)(vi) in the instant case, it is clear that except the bare statement that the petitioner wants to start business, there is no pleading in the instant case which business the petitioner wants to start, thus giving an opportunity to the respondent/tenant to show how she has no capacity to carry on such a business. Moreover, such a pleading in the application would go to show the bona fides of the petitioner also. Apart from the inadequate pleadings, the evidence led on behalf of the petitioner is also very scanty and of a casual nature…..”
The facts in Dwarkadevi’s case (1987 Mah LJ 332) (cited supra) were entirely different in as much as that case related to bona fide requirement of the landlord for non-residential purpose only and there was no pleading in that case as to which business the landlord wanted to start and the evidence led by the landlord was also scanty and was of causal nature. However, in the present case, the premises are required by the landiords for their bona fide occupation for residential purpose as well as for non-residential purpose. Necessary facts showing bona fide requirement for residential purpose have been given fully by the landlords since they have pleaded that the premises available with them was very small having two rooms only for the family of ten members, some applicants were growing in age and that one of the applicants was already engaged and was going to be married soon, who had decided to stay in the house at Satranjipura where they were residing. Thus necessary pleadings about the bona fide requirement of the rented house for residential purpose were given by the landlords. As regards the non-residential requirement, the nature of the business is clearly pleaded by landlords and so also the persons who would start the business. According to the pleading, the applicants Nos. 3 and 4 also required the premises to start the
business of transport in the premises in question. The nature of the business having been mentioned and the persons who were to do that business having been also mentioned, it cannot be said that the pleading about non-residential purpose was not sufficient.
14. For the aforesaid reasons, the decision of this Court in Sukhdeo’s case (1979 Mah LJ 545) (cited supra) also does not help the learned counsel for the petitioner inasmuch as in the present case on the basis of the pleading given by the landlords about their bona fide requirement, it cannot be said that the tenant has been prejudiced in any manner in meeting the case of the landlords. As a matter of fact, in the reply except the bare denial that the residential house available with the landlord was small one or that the premises were required for the purpose of business by the applicants Nos. 3 and 4, the only defence set out by the tenant was that the false plea has been set up by the landlords because the tenant refused to increase the rent as demanded by the landlords.
15. Adverting to the second submission made by the learned counsel for the petitioner that all the persons for whom the premises were required having not entered the witness box and not deposed, it cannot be said that the landlords have proved their bona fide requirement, it may be observed that the applicant No. 3 Mohammed Ayaz has examined himself. He has clearly deposed that they reside in Satranjipura and the said house has two rooms of 8′ x 10′. He has deposed that the applicant No. 4 was taking educatioin in S.A. College, applicant No. 5 was studying in Bhartiya Tailoring and Cutting College, applicants Nos. 6 and 7 were studying in S.T.S. College and the applicants Nos. 8 and 8 (sic) were taking education in High School. He has further deposed that his elder brother applicant No. 2 was not married, but his engagement has been settled and he has been postponing the marriage only because of lack of accommodation. He has also deposed that the accommodation available with them was short and most inconvenient. He has also deposed that after the marriage of his brother, all of them would shift to the suit premises,
and his brother (applicant No. 2) with his family would stay in the present accommoda-tion. He has also deposed that a!l the brothers are unemployed and they intend to open a transport company in the disputed premises. In cross-examination his evidence has not been at all shaken. Since one of the applicants Mohammad Ayaz has already entered the witness box and has deposed about the bona fide requirement of the premises both for the purposes of residence and for business, it was not required that all the applicants were required to enter the witness box and give their depositions because that would have simply meant multiplicity of evidence.
16. In Nathulal’s case (cited supra) this Court has held that if the bona fide requirement of the landlord could be established by putting on record the circumstances sufficiently indicating the requirement of the landlord, the landlord need not enter the witness box to depose to his need. This Court held that the question whether the evidence with regard to the bona fide requirement of the landlord should or should not be accepted in a given case in the absence of evidence of the landlord himself would depend upon the facts and evidence in that particular case and no absolute proposition that the landlord has to enter the witness box to establish such facts can be laid down. In the present case, one of the landlords has already entered the witness box and he has deposed before the Court to prove their need and, therefore, it cannot be said that in the absence of other landlords having entered the witness box, the bona fide need has not been established. All the necessary facts which were pleaded by the landlords in their application constituting the bona fide requirement were in the knowledge of the applicant No. 3 and he has entered the witness box. The decision in Nathulal’s case (cited supra) therefore does not support the argument of the learned counsel for the petitioner rather it holds that if the bona fide requirement of the landlord could be established by putting on record the circumstances sufficiently indicating the requirement of the landlord, the landlord need not enter the witness box to depose his need.
17. As regards 1979 Mah. L.J. Note 3, Premabhai v. Jagatram, it may be observed that a sketchy note cannot be considered in the absence of availability of facts and context in which such observations were made. Placing reliance on Notes of Cases may often lead to misunderstanding of the case and many a time may result in misleading the Court. Recently a Division Bench of this Court in Shantabai v. Gautam. 1994 Mah LJ 1879 dcprecated the practice of placing reliance on the notes of cases and observed thus :
“….. How we wish that Courts get rid of this habit of relying on these sketchy, skeletal and cryptic notes of cases as, far from leading us to correct decision, they are very often likely to mislead….”
Besides that, since one of the landlords has already examined himself, it cannot be said that a competent person to prove the bona fide necessity has not been examined.
18. Coming to the last submission made by the learned counsel for the petitioner that the Rent Controller has not considered the subsequent events and the fact whether the need of the landlords was subsisting on the date of passing of the order, it may be observed that neither before the appellate Court nor before this Court the tenant moved any application bringing to the notice of the Court the events which, according to the tenant, may have taken place subsequently to show that the need pleaded by the landlords was not existing on the date of passing of the order by the appellate authority or at the time of hearing of this writ petition.
I pointedly asked the learned counsel for the petitioner as to whether the tenant has moved any application before the appellate authority or before this Court bringing io the notice of the court the subsequent facts. The learned counsel answered in the negative and frankly conceded that no such application has been filed before the appellate authority or before this Court. The contention of the learned counsel for the petitioner was that since many of the applicants were girls, many of them must have married during the intervening period. No such inference can be drawn unless
the facts about the marriage of those girl applicants were brought to the notice of the Court. If the tenant had alleged by moving the application that the girl applicants had married, it would have given an opportunity to the landlords to contest or explain those facts and bring necessary details. Moreover if it is presumed that the girl applicants had married during the intervening period, then the male applicants Nos. 2, 3 and 4 must have also married and their family must have increase. In any case merely on surmises and conjectures, it cannot be held that the bona fide requirement which has been pleaded and proved by the landlords has ceased to exist, more particularly when the tenant has not chosen to file any application for bringing the subsequent events on record. The appellate authority rightly held that in the absence of the said subsequent events having been brought by the tenant, the argument advanced by the learned counsel for the petitioner could not be considered on surmises and conjectures.
19. It is true that if during the pendency of the proceedings events have cropped up, which would show that the requirement of the landlord is wholly satisfied or the requirement has ceased to exist, then such events could be considered, but then such events have to be brought to the notice of the Court by way of moving a proper application on proper affidavit so that the other side may have an opportunity to have his say on such events. The need pleaded and proved by the landlords and held to have been proved is presumed to exist unless shown to the contrary by bringing to the notice of the Court subsequent events which have cropped up in the meantime. In the present case no such events have been shown by the tenant which may persuade the Court to hold that the bona fide requirement of the landlords has ceased to exist.
20. In Hasmatrai’s case (cited supra) during the pendency of the second appeal the tenant brought to the notice of the court the fact that the landlord has acquired possession of the premises, which was sufficient to satisfy the need of the landlord and in that background the Apex
Court held as under (at p. 1717 of AIR) :
“……. Therefore, it is now incontrovertible
that where possession is sought for personal requirement it would be correct to say that the requirement pleaded by the landlord must not only exist on the date of the action but must subsist till the final decree or an order for eviction is made. If in the meantime events have cropped up which would show that the landlord’s requirement is wholly satisfied then in that case his action must fail and in such a. situation it is correct to say that as decree or order for eviction is passed against the tenant he cannot invite the Court to take into consideration subsequent events…..”
In the present case it is not the case of the petitioner tenant that the landlords have acquired the alternative accommodation during the pendency of the writ petition, which would satisfy the need of the landlords, nor the tenant has moved any application showing that the need of the premises has ceased to exist. Thus the decision in Hasmatrai’s case (cited supra) does not apply in the facts and circumstances of the present case.
21. The contention is raised by the
learned counsel for the petitioner that the application has been filed mala fide by landlords only when the tenant refused to enhance the rent. It would be seen that initially the premises were let out to the tenant on monthly rent of Rs. 350/-. Thereafter additional accommodation was provided to the tenant and the rent was enhanced to Rs. 425/- per month. It is not disputed by the learned counsel for the petitioner that till filing of the application by the landlords, the tenant continued to pay the rent at the rate of Rs. 425/- per month. According to the learned counsel for the petitioner, the rent was increased to Rs. 700/- per month during the pendency of the rent control proceedings. If during the pendency of the rent control proceedings the tenant agreed to enhance the rent to Rs. 700/-, it cannot be said that the bona fide requirement pleaded by the landlords in the application was mala fide and actuated with ulterior motive to have the rent enhanced. If the sole purpose of the landlords
in making the application before the Rent Controller was for enhancing of rent as alleged by the landlord, then the fact that the tenant agreed to enhance the rent during the pendency of the proceedings and in fact he enhanced the rent, the landlords would have withdrawn the proceedings. That being not the position, increment of rent by the tenant on his own and the fact that the landlords continued to prosecute the rent control proceedings seeking the permission of the Rent Controller to terminate the tenancy on the ground of their bona fide requirement, by no strecth of imagination can it be inferred or held that the plea of bona fide requirement set out by the landlords was mala fide with the sole intention to have to rent increased. There is no merit in this contention of the learned counsel for the petitioner as well.
22. The connotation of the words “bona-fide occupation “under Clause 13(3)(vi) of the Rent Control Order does not warrant that the landlord has to set up a case of dire necessity. By ‘bona fide occupation’ it is not meant that the landlord has to establish pressing or compelling necessity. What is meant by ‘bona fide occupation’ is that it has to be something more than the mere desire of the landlord to occupy the premises. The need should be honest conceived in good faith and not actuated with ulterior motive, but at the same time it should not be so artificially extended to make it impossible for the landlords to have the premises vacated even though he requires the premises reasonably. In Baga Begum v. Abdul Ahad Khan, the Appex Court held as under (at pp. 276-77 of AIR):–
“…….. The distinction between desire and
need should doubtless be kept in mind but not so as to make even the genuine need as nothing but a desire as the High Court has done in this case. It seems to us that the connotation of the term ‘need’ or ‘requirement’ should not be artificially extended nor its language so unduly stretched or strained so as to make it impossible or extremely difficult for the landlord to get a decree for eviction. Such a course would defeat the very purpose of the Act which affords the facility of
eviction of the tenant to the landlord on certain specified grounds. This appears to us to be the general scheme of all the Rent Control Acts, prevalent in other States in the country. This Court has considered the import of the word ‘requirement’ and pointed out that it merely connotes that there should be an element of need.”
23. In Ram Dass’s case (cited supra) the Apex Court held as under (at p. 1424 of AIR) :
“…… But essential idea basic to all such
cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the Court must also consider it reasonable to gratify that need. Landlord’s desire for possession, however honest it might otherwise be, has inevitably a subjective element in it and that, that desire to become a “requirement” in law must have the objective element of a need.”
24. The legal position undisputedly and now settled is that on consideration of relevant facts and circumstances available on record the Court should come to the conclusion that the landlord needs the premises for his occupation. That need must not be over stretched to make it pressing or dire necessity, nor it would give unnecessary importance to the desire of the landlord to make it a ground of bona fide occupation. Each case has to be decided on its own facts and circumstances to find out whether the premises are required bona fide by the landlord for his occupation or for occupation of his family. No hard and fast rule can be applied as to on what facts the landlord can be said to have established his bona fide need. The finding on question of bona fide requirement is always a pure finding of fact based on available pleading and proof, and if that finding of fact has been arrived at by the competent authority on proper appreciation of evidence on record, it cannot be interfered with by the High Court in its writ jurisdiction.
25. In India Fitting Co. v. Fakrud-din Apex Court held as under (at pp. 46 & 47 of AIR) :
“5. The limitation of the High Court while
exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusion of facts however erroneous those may be. It is well settled and perhaps too late in the day to refer to the decision of the Constitution Bench of this Court in Waryam Singh v. Amarnath where the principles have been clearly laid down as follows (at p. 217 of AIR):
“The power of superintendence conferred by Article 227 is as pointed out by Harries C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, (SB) to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not to correcting mere errors.”
Same view was reiterated by another Constitution Bench of the Court in Maagendra_ Nath Bora v. The Commissioner of Hills Division and_ Appeals, __Assam, . Even recently in Babhutmal “Ramchand Oswal v. Laxmibai R. Tarte, dealing with a litigation between a landlord and tenant under Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 this Court relying on its earlier decisions observed as follows (at pp. 1301, 1302 of AIR) :
“If an error of fact, even though apparent
on the face of the record, cannot be corrected
by means of a writ of certiorari it should
follow fortiori that it is not subject to cor
rection by the High Court in exercise of its
jurisdiction under Art. 227. The power of
superintendence under Art. 227 cannot be
invoked to correct an error of fact which only
a superior court can do in exercise of its
statutory power as a court of appeal. The
High Court cannot in guise of exercising its
jurisdiction under Art. 227 convert itself into
a court of appeal when the Legislature has not
conferred a right of appeal, and made the
decision of the subordinate court or tribunal
final on facts.”
6. Whether the landlord’s requirement is bona fide and reasonable has been concur-
rently found by the two courts below against the landlord by appreciating the entire evidence. After examining the reasons given by both the Courts it is not possible to hold that the conclusions are “perverse” or even that these are against the weight of evidence on record. It is a case of reasonably possible factual appreciation of the entire evidence and circumstances brought on the record.”
26. Perusal of the order passed by the appellate authority impugned in the present writ petition would reveal that the appellate authority has considered the entire evidence on record in accordance with the settled principles and with proper approach. The appellate authority found that the Rent Controller has not at all discussed the aspect of residential need of the landlords while rejecting the application of the landlord under Clause 13(3)(vi). The appellate authority referred to the pleadings and evidence and has discussed the ground of bona fide requirement for residential purpose in the following manner.
“It has been mentioned in the main application that the another house in which they are living consists of only 2 rooms. One of the rooms is used as kitchen and other room is as varandah. All the 9 members of the family were impleaded as applicants and it was further stated that marriage of the applicant No. 2 was settled and it was decided amongst the family members that after marriage he will continue to live in the present house occupied by them and other members will shift to the suit premises. The learned Rent Controller has not discussed this aspect of residential need of the appellants while passing the order impugned. The learned Rent Controller also failed to take into consideration the evidence of the witness of the appellants i.e. Mohd. Ayas s/o Mohd. Ibrahim. This witness has deposed that there are only two rooms admeasuring 8′ x 10′ in their present house situated in Satranjipura. The witness further stated that 4 out of these 9 members are taking college education. The witness has given the names of the members of the family and the educational institutions where they are taking education. It has also been stated by the
witness that his brother Mohd. Gaus i.e. applicant No. 2 was already engaged and likely to be married soon. The witness has further stated that the present accommodation with them is short and most inconvenient. It has also been stated by the witness that after the marriage of his brother he will live in the present house occupied by them and other members will shift to the suit premises.”
On the basis of the aforesaid discussion, the appellate authority found that the bona fide requirement for residential purpose is well established and the said finding, in my view, is based on proper evaluation and appreciation of the evidence on record and cannot be said to be suffering from any infirmity warranting interference by this Court. As regards the business need, the appellate authority, though observed that sufficient details have not been given, found that since all the brothers were unemployed, it cannot be said that they do not need the premises for business purpose. As discussed by me above, the landlords have pleaded that the applicants Nos. 3 and 4 would also need the premises for their business and they would start the transport business and the said facts have been duly proved in evidence by the applicant No. 3. The applicant No. 3 has not at all been cross-examined by the tenant that they do not have the linancial capacity or experience to run that business. No evidence has been led by the tenant to demolish the case of the landlord that the need of the landlords for carrying on the business of transport was mala fide. The ultimate conclusion arrived at by the appellate authority that the male applicants who are unemployed and need the premises also for business purpose cannot be said to be based on no evidence or against the weight of evidence or perverse. Therefore, the finding recorded by the appellate authority that the premises are required by the landlords for their residence and also for business purpose does not call for any inference by this Court. Even if business need is excluded, the landlords have amply proved that for their large family of ten persons and accommodation of two rooms only presently available with them, they are in pressing need of the entire
disputed premises for their residence and, therefore, no interference is called for in just and imminent order of appellate authority.
27. No argument has been advanced by the learned counsel for the petitioner — tenant that in case the permission for determining the tenancy on the ground of bonafide need is granted to the landlord, greater hardship would be caused to the tenant. No such facts pointing out greater hardship were pointed out by the tenant before the appellate authority, nor any material was placed before it. Before this Court also no material has been placed by the tenant relating to greater hardship and in my view, in view of the facts found and discussion made by me herein-above, in fact it is the landlords, who would suffer greater hardship in case they are not permitted to issue the quit notice to the tenant or they do not get possession of the premises in question on the ground of bona fide requirement.
28. The landlords’ need and bona fide requirement of the premises has been hanging fire for last more than two decades and if the cases based on bona fide requirement take decades and decades in its decision, the very ground available to the landlord under Clause 13(3)(vi) seeking permission of the Rent Controller to issue the quit notice to the tenant on that ground would be frustrated. It is high time that top priority is given by all concerned in courts and authorities to quickly and speedily dispose of the cases relating to bona fide requirement and such matters are given topmost priority so that if the landlord is able to prove his bona fide requirement, he is able to get possession and not remain possessed with orders and decrees on papers only.
29. In the result, this writ petition is devoid of any merits and there is no force and is dismissed accordingly with no order as to costs. Rule is discharged.
30. Petition dismissed.