Musaji Mohamadali Master And Sons … vs Mr. Gulamali Dadabhai Amreliwala … on 26 October, 2004

JUDGMENT

A.B. Naik. J.

1. One Gulamali Dadabhal, the original plaintiff, instituted Regular Civil Suit No. 438/1 978 against the petitioner/original defendant for possession of the shop premises situated at 1817, Polan Peth, Jalgaon, having an area of 13/ 1/2×20 1/2, The parties to the proceedings will be referred to as “the plaintiff” and “defendant” and the premises would be referred to as “shop premises”. The plaintiff Gulamali Dadabhai died during the pendency of the suit and his heirs and legal representatives were brought on record and they are representing the estate and prosecuting the proceedings. It is not disputed that the suit premises are in possession of the defendant who is a partnership firm carrying on business in the name and Style as “M/s. Musaji Mohammed Master and Sons. The plaintiff filed suit for recovery of possession of the shop premises under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as “the Act”), mainly on two grounds, i.e. default and bona fide requirement. In order to appreciate the controversy involved in the matter, resume of facts will be necessary.

2. The litigation between the plaintiff and the defendant entered into Court three and half decades back. Earlier, the plaintiff sought possession of shop premises for bona fide requirement for his son’s personal occupation and after long drawn litigation, the plaintiff could not secure the possession as yet though there is decree in favour of the plaintiff now.

3. Initially, the plaintiff filed Regular Civil Suit No. 214/1971 for bona fide requirement of the shop premises on the ground that his son Abdul Hussain requires the same for carrying on the business. He is married therefore, he is residing separately and the shop premises which is in possession of the defendant is being required for him to carry on the business. In that suit, it was contended that the shop premises is in possession of the defendant as a monthly tenant, at the rate of Rs. 50/- per month. It is contended that the plaintiff had purchased the suit premises from its erstwhile owner vide registered sale deed dated 29th September, 1967 and from that date, he became the owner of the shop premises. The defendant is in possession of the premises as a tenant of erstwhile owner. As the defendant has not paid the rent after the plaintiff purchased the premises, the plaintiff issued notice on 25th March, 1971. On receipt of the notice, the defendant tendered rent, on 31st March, 1971. As the suit shop is required for use and occupation of the plaintiffs son Abdul Hussain who is also assisting the plaintiff in the business of Shoe Mart. It is stated that the premises are required for carrying on business of Abdul Hussain and after possession is received, new premises will be constructed and the ground floor will be used as a shop premises and first floor will be used for the purpose of residence. However, the plaintiff could not succeed to establish the bonafide need. Therefore, the Civil Court dismissed the said suit by the judgment and decree dated 10th September, 1976. Unsuccessful plaintiff carried the appeal to the District Court being Regular Civil Appeal No. 251/1973. The said appeal came to be dismissed by the Appellate Court on 7th August, 1976. Thus, ended the first round of litigation.

4. After the aforementioned suit was dismissed, the defendant continued to be in possession. However, as the defendant did not pay the rent, on 3rd December, 1977 the plaintiff issued notice to the defendant under Section 12 of the Act, contending, inter alia, that the defendant has not paid the rent from 1st May, 1976 to 31st December, 1977. As such, he is a defaulter and the possession was sought. The plaintiff also demanded the possession on the ground that the suit premises is required for another son of the plaintiff, namely, Asgarali who wants to start a business in the said premises. As notice is not complied with by the defendant, the plaintiff then filed Regular Civil Suit No. 438/1978 for recovery and possession of the shop premises. In the said suit, the defendant No. 1 who is a partnership firm, is made a party. (It is not disputed before me that the firm is the tenant.) Other two defendants who were arrayed as defendants are the partners of the said firm. In the plaint, the plaintiff has disclosed the fact of the dismissal of the first suit. It is contended that the defendant is in arrears of rent for more than six months and, as such, the plaintiff is entitled to seek possession on the ground of default. As the defendant was in default, notice was issued by the registered post on 3rd December, 1977, calling upon the defendant to pay the arrears of rent from 1st May, 1976 to 31st December, 1977 at the rate of Rs. 50/- per month, and terminated the tenancy and was called upon to handover the possession of the shop premises on 31st December, 1977. It is contended by the plaintiff that the defendant refused to accept the said notice. Thereafter another notice was sent on 8th December, 1977 under certificate of posting. As the defendant did not pay the rent of the shop premises, the possession was sought on the ground of default.

5. The plaintiff also claimed possession of the shop premises on the ground of bona fide requirement for his son Asgarali. It is contended that the plaintiff had two sons but due to family differences the plaintiff and his sons are not carrying well. As such, his son Asgarali is required to stay in the rented premises and for him the shop premises is required for both the purposes i.e. for carrying on independent business and for residence. The plaintiff contended that they are in dire need for accommodation and possession of shop premies. He further contended that on receipt of the possession, the plaintiff intended to construct a new building and, according to plaintiff, the new building will have a shop premises on the ground floor and on first floor residential premises, which will be occupied by his son Asgarali and his family. It is contended that the shop premises is not constructed by stone and bricks; but it is a tinshed. The plaintiff has also secured construction permission from the Municipal Council. On this ground, the plaintiff demanded possession of the premises by filing the present suit.

6. On receipt of the summons, the defendants appeared and by filing the written statement they resisted the claim of the plaintiff, raising all contentions available. It is contended that the defendant No. 1 is not a defaulter. No notice is served on them i.e. all partners of the firm. It is contended that whatever the arrears of rent was there, has been promptly deposited in the earlier suit upto the period 30th April, 1976. It is contended that there arc five partners of the firm but notice is served on Kakruddin Mulla Musaji, who was not a partner of the firm when the notice was served, as such, suit is bad on that count. They have denied service of alleged notice. It is contended that the present suit is barred by the principle of “res judicata”. In view of the dismissal of Regular Civil Suit No. 214/1971 and that of Civil Appeal No. 251/1976. !t is further contended that the suit is bad for non-joinder of necessary parties as all partners of the firm were not made parties to the suit. It is contended that the subject of requirement (i.e. personal bona fide requirement) in both the suit was the same, the only difference being that in first suit the need was shown to that of Abdul Hussain and in the second suit the requirement is sought on behalf of his son Asgarali. It is therefore, contended that the claim of possession by the plaintiff is not bona fide. It is also contended that the plaintiff was constructed three storied building in MIDC area, Jalgaon, and as such, the need of the plaintiff has come to an end. The son of the plaintiff Asgarali can now occupy that premises and use it for both purposes. With these contentions the defendant prayed for dismissal of the suit.

7. On the basis of the contentions advanced by the parties, the learned Civil Judge framed necessary issues. The plaintiff and defendant adduced evidence – oral as well as documentary in support, of their respective cases. On the basis of the evidence, the learned Trial Judge held that the plaintiff has proved that the defendant is in arrears of rent for more than six months and, as such, he is a “defaulter” within the meaning of Section 12(3) of the Act. The learned Civil Judge, also held that the plaintiff has proved that the shop premises are required by the plaintiff bonafidely, reasonably for his use and occupation for his son Asgar Ali. On recording this finding, the learned Civil Judge proceeded to consider the question of hardship and held that if the decree is refused then greater hardship will be caused to the plaintiff. After recording this finding, the learned Civil Judge considered the question of misjoinder of necessary parties. The learned Judge recorded the finding that the suit is bad for misjoinder of necessary parties. The learned Trial Judge also considered the question of res judicata and held that the present suit is not hit or barred by the principle of “resjudicata” and, accordingly, the learned Trial Judge by the judgment and decree dated 25th February, 1983 dismissed the suit and directed the defendant to pay to the plaintiff a sum of Rs. 1,868.50 paise which are due and payable to the plaintiff by the defendant.

8. The appeal being Civil Appeal No. 342/1983 came to be filed against the said judgment and decree before the learned District Judge, by the plaintiff. When the appeal was pending, an application for amendment of the plaint was filed and the plaintiff sought an amendment, seeking possession from the tenant i.e. defendant, on the additional ground. The additional ground which is stated in the amended plaint is that or 24th October, 1984 the shop premises were damaged due to fire and hence it has become necessary to reconstruct the said shop premises. It is contended that the need of the premises has become acute due to increase in the needs of the family of the plaintiff. It is stated that one of the plaintiffs daughter, by name, Zuleikhabee, who was married at the time of filing of the suit, was divorced by her husband and, as such, she has returned back to the family of the plaintiff and she is residing with the family and was trying to earn her livelihood by conducting tuitions and embroidery classes and that classes are being conducted in a small room situated on the ground Door: however, that room is inadequate and inconvenient for her to conduct the classes. In addition to that, it is stated that another daughter of the plaintiff, by name, Shirin who is unmarried, has become an Advocate and, therefore, started her profession as a lawyer and she required independent premises for having her office/chamber for consultation with her clients. It is contended that at present, she is occupying a small portion in the corner of the first floor which is not only inconvenient but insufficient for her profession and, therefore, in view of this additional aspect there arose occasion for family bickering and petty quarrels. The plaintiff also, in the meanwhile, developed illness and it is not possible for him to have any movement. It is contended that the building is constructed in MIDC area for purpose of factory and in order to have facility to run factory and for its protection to have some residential block and it is not possible for the family members to occupy that premises in MIDC area. It was also contended that it is not possible for the members of the family of the plaintiff to occupy that premises as it is far away from Bohra Masjid. Similarly, Asgarali and his two daughters are required to be in the city and. as such, it is not possible for then) to occupy the premises. Asgarali is carrying on retail business which cannot be carried out in the MIDC area as there is no market in the MIDC area.

9. It was also contended in the amended plaint that after filing the suit, the partners of the defendant firm have secured vacant premises, in as much as, one of the partners of the firm, namely, Kayumali has purchased the premises on 30th June, 1983. He has purchased the premises in the name of his wife which is two storied building and on acquiring that property, he has started the business in the said premises. Another partner of the defendant’s firm Juar Ali has also purchased the premises in Ward No. 35 of Zilla Peth Jalgaon in the name of his wife and he is carrying on the business in that shop. Another partners namely, Mohammed/Ali and Noorddin are residing at Bhusawal and they have their own business there. The other partner Kayumali has started an independent business which is adjacent to the shop premises which is on the western side. Therefore, it was contended that even if the decree is passed, no hardship or prejudice will be caused to the defendant. On the other hand, inconvenience and prejudice will be caused to the plaintiff. The Appellate Court allowed the amendment. In view of the amendment, the Appellate Court sent back the suit for trial.

10. After the suit was remanded to the Trial Court. The defendant has filed written statement to the amended plaint and denied the contentions raised. The Trial Court framed two additional issues which reads thus :

2A : Does the defendant prove that in view of the acquisition of another house in MIDC area he (plff.) does not reasonably and honajidely requires the suit premises for his own use and occupation?

3A: Does the plaintiff prove that, in view of the acquisition of alternate accommodation no hardship will be caused to him (deft.) if asked to vacate the suit premises?

11. The parties again led evidence in support of the additional issues. The learned Civil Judge, after hearing the parties, recorded a finding that defendant has failed to prove that in view of the acquisition of another house in MIDC area the plaintiff does not reasonably and bona fidely requires the shop premises for his own occupation. The learned Trial Judge recorded the finding on issue No. 3A and held that the plaintiff has proved that in view of acquisition of alternate accommodation by the defendant: no hardship will be caused if the decree for eviction is passed. On recording the finding, the learned Trial Judge certified the said finding to the District Court. Before the District Court, the defendant filed cross objections to the adverse finding that has been recorded by the Trial Court. To the said finding the plaintiff also objected by filing the say. Similarly the defendant also filed cross objections challenging the finding that has been certified by the Trial Court on additional issue Nos. 2A and 3A. Needless to mention here that after issues were referred, additional evidence as adduced which consists of oral evidence: also the Commissioner was appointed to inspect the newly constructed building at MIDC area. The Trial Court considered that evidence arid certified the finding. After receipt of the finding on additional issues, the appeal was heard by the learned District Judge, Jalgaon. On the basis of submissions advanced before the learned IIIrd Additional District Judge, Jalgaon, the learned Judge framed the points for determination :-

1. Whether the cross objections filed by the defendants respondent s in this appeal are maintainable?

2. Does plaintiff prove that the defendants are in arrears of rent for six months and more and as such they are defaulters under Section 12(3)(a) of the Bombay Rent Act?

3. Does plaintiff prove that the suit, premises are reasonably and bona fide required for his own occupation and for running a business for his sons or for erection a new building?

4. To whom greater hardship would be caused either to the plaintiff if the decree of eviction is refused or to the defendants if the decree of eviction is passed?

5. Is the suit of the plaintiff is bad for non-joinder of necessary parties?

6. Does plaintiff prove that the suit notice is legal and valid and it was properly served on the defendants?

7. Whether the plaintiff is entitled to get relief of eviction against the defendants?

12. On the points so framed, the learned Additional District Judge, heard the learned Advocates for the parties and appreciated the evidence produced by the parties. The learned Judge held that the cross objections that are filed by the defendants are maintainable. The learned A.D.J. on point No. 2 held that the defendants are in arrears, but he refused to pass a decree on the ground that the suit notice is not legal and is invalid as it was not served properly on the defendant. On the point of bona fide requirement, the learned A.D.J. recorded finding in favour of the plaintiff and concurred with the finding recorded by the Trial Court on the point of hardship. The learned District Judge recorded the finding that, the greater hardship will be caused to the plaintiff in case the decree is refused. The learned A.D.J. recorded the finding that the suit is bad for non-joinder of necessary parties as defendant No. 2 Fakruddin who was not a partner is not necessary party to the suit. The learned A.D.J. held that the notice is bad in law and invalid. On recording these findings, the learned A.D.J. granted decree for possession in favour of the plaintiff and directed the defendant to vacate the premises as a case is made out under Section 13(1 Kg) of the Act. With this finding, the learned A.D.J. by the judgment and order dated 8th December, 1988 allowed the cross objection (Exh, 10) to the extent of default but rejected the cross objection Exh. 32 and. accordingly, the appeal came to be partly allowed by decreeing the suit of the plaintiff.

13. Being aggrieved by the judgment and decree passed by the learned IIIrd Additional District Judge, Jalgaon, in Civil Appeal No. 342/1980, the original defendant approached this Court by filing the petition under Article 227 of the Constitution of India.

14. Heard Shri V.J. Dixit, learned Counsel for the defendants/ petitioners; Shri P.R. Katneshwarkar instructed by Shri R.G. Karmarkar, learned Advocate for respondent Nos. 1A to ID and Shri R.N. Dhorde learned Advocate, for other respondent.

15. Shri Dixit, learned Advocate for petitioners made elaborate submissions by reading the entire evidence. I permitted Mr. Dixit to read the evidence, but not to reappreeiate the evidence as such, but as it is contended by Shri Dixit that the finding recorded by the learned A.D.J. are perverse and the learned A.D.J. while passing the decree in favour of the plaintiff Under Section 13(1)(g) of the Act, has committed an error appearing on the face of the record and to demonstrate this aspect. Shri Dixit, read entire evidence. As this petition is filed under Article 227 of the Constitution, this Court cannot act as an Appellate Court and reappreeiate the entire evidence and then record a different finding than that has been recorded by the learned A.D.J. I am aware of the fact that this Court cannot convert itself as an Appellate Court under the guise of finding an error apparent on the face of the record. An error apparent on the face of the record must be an apparent error which does not require detail long drawn process of arguments and appreciation of evidence. The parameters of the exercise of jurisdiction of the High Court in petition under Article 226 or 227 of the Constitution, is clearly demarcated by catena of judgments of the Apex Court since last five decades or so. The first such judgment of the Apex Court is the landmark judgment ; ; . Then came the judgment of the Apex Court in the case of Babhutmal Oswal v. Laxmibai ; ; ; and finally .

16. Bearing in mind the parameters set forth by the Apex Court in the above cited judgments, I have to appreciate the contentions that are advanced by the respective Counsel appearing for the parties. The basic contentions that are advanced by Shri Dixit are that the need of the plaintiff is not bonafide. He contended that an artificial need is created only to seek eviction of the defendant from the shop premises. He submitted that even prior to purchase of the shop premises by the plaintiff, the defendant was carrying on the business in the premises from 1937 and by passage of time the defendant has acquired a goodwill and if defendant is asked to vacate the premises, the result will be that firm has to go to some other premises and then there will be no benefit of goodwill. He submitted that in order to assess the question of hardship, the question of goodwill has to be judged. He submitted that it is an admitted fact that, the plaintiff has constructed three storied building in MIDC area of Jalgaon, which is hardly 3 kms. away from the present shop premises. He submitted that the Commissioner was appointed to have inspection of the building in the MIDC area and the glaring facts which are reflected in the report shows that in addition to the factory in that building, there are residential premises being occupied by the members of plaintiffs family and the Commissioner has found that all domestic appliances were present, which do indicate that the premises are being used by the members of the plaintiff family. He made an allegation that the family members of the plaintiff have left the premises when the Commissioner paid the visit to that building. He, therefore, submitted that this aspect if considered in proper perspective would show that the landlord’s family is, infact, residing in the newly constructed building in MIDC area which fact has not been considered by the Courts below. Shri Dixit, further, submitted that question of bona fide requirement as tried to be projected in the pleadings and evidence is only imaginary. He submitted in the suit which was filed as back as in 1971. the demand for the premises was made out as premises is required for one son Abdul Hussain. However, when the plaintiff lost the battle in that suit, another ground was invented by changing name of the son. Not only this, he submitted that during pendency of the appeal, an application for amendment of the plaint was sought and, again, an additional need was created and brought on record. These three undisputed aspects which are brought on record did establish that the need is not bona fide. He submitted that the rent Legislature being a social legislation passed with an intention to protect the tenants of the premises and to avoid unreasonable eviction of the tenant from the rented premises; the protection is given by the Statute. Therefore, the need of the landlord must be real, genuine and pressing as against fanciful and illusory. He submitted that the Court dealing with the claim of the landlord and tenant must have a pragmatic approach and should consider the realities of life. He pointed out that since 1971 the plaintiff is after the defendant to seek eviction from the shop premises. This shows that the plaintiff is bent upon to seek eviction of the defendant from the premises. He, therefore, submitted that looking to the totality of the circumstances, no case is made out seeking eviction of the tenant/defendant from the shop premises under the provisions of Section 13(l)(g) of the Act.

17. Shri Dixit. further, submitted that the present suit must be dismissed on the point of res judicata. He pointed out that in 1971, the landlord filed a suit against the tenant seeking possession on the ground that the suit premises is required for the need of his son Abdul Hussain. He submitted that bare perusal of the contents of the plaint in R.C.S. No. 214/1971 and present suit, namely R.C.S. No. 438/1978 show that contents of both the plaints are identically worded, save and except the change in the name of the son. Shri Dixit, heavily relied 011 the plaint in both suits and tried to impress that the present suit is barred by the principle of resjudicata as the present suit is also based on the same cause of action. He submitted that the Lower Appellate Court has not considered the aspect of resjudicata, properly.

18. Mr. Dixit, further, submitted that the additional need which was claimed in the suit is also illusory and fanciful. He submitted even assuming that one of the daughters of the plaintiff was divorced by her husband and she has come back to the family, the fact which is brought by adding the additional need is that she conducted tuition and embroidery classes in the residential house of the plaintiff. He submitted that such type of work can even be done in the newly constructed premises situated at MIDC area and for that purpose it is not at all necessary that the tenant should be evicted from the suit premises. The plaintiff can occupy the newly constructed premises in MIDC area for use and occupation of both the daughters and for that purpose, tenant may not be evicted.

19. Shri Dixit, then, submitted that the suit should have been dismissed by the Appellate Court as all the partners were not made parties. He submitted that no doubt the defendant No. 1 is a firm and was a party. The defendant No. 2 Fakruddin who was added as such, was not partner of the firm but he was the servant of the firm; the defendant No. 3 has been added as defendant. He submitted that the registration of firm discloses that there are five partners in the firm and, as such, all partners must be made parties to the suit for eviction of tenant who is a firm. As such, the suit is bad for non-joinder of necessary parties and hence the decree for eviction cannot be passed, Shri Dixit, submitted that the new building which is constructed by the plaintiff in the MIDC area the plaintiff or his family member can occupy the same but for non-occupying the newly constructed premises, the plaintiff have given reason which cannot be accepted. The reason so assigned for non-occupying the premises in MIDC area are (i) the new building is away from Bohra Masjid; (ii) Drinking water in MIDC area is contaminated. These cannot be a ground for the plaintiff landlord not to occupy the said premises. Shri Dixit pointed out that the plaintiffs family owns vehicle and there is hardly any distance between the present premises and MIDC area and is less than 3 kms. He submitted that such a distance cannot be called a long distance which will cause inconvenience to the plaintiff’s family members to occupy that premises. He, therefore, submitted that by raising unacceptable contentions, the plaintiff is refusing to occupy the premises in MIDC area. Shri Dixit submitted that the Commissioner’s report clearly establishes that the premises is being used for residential purpose also. The report indicates that all household articles were found present and used as such. This indicate that the premises being used by members of plaintiffs family and when the Commissioner wont there to have the inspection they quietly left the premises, He submitted that a show is created by the plaintiff by pasting the slips on the doors of the rooms so as to indicate that the premises are being used for the commercial purpose i.e. as office block of factory. He. therefore, submitted that in totality of circumstances which are brought on record, the finding so recorded are perverse and have been recorded ignoring several undisputed facts which emerged on record. Shri Dixit submitted that the findings are perverse, and not supported by any evidence. The need spelt out and proved is not bona fide, the plaintiff admittedly constructed three storied building at MIDC area, admission of Gulamali regarding purchase of shop just adjacent to suit shop has not been considered. Gulamali admitted that one premises is in occupation which is adjacent to the present, premises, He submitted that, the plaintiff has not described and disclosed the area of shop in possession and area which is In possession of the tenant defendant. He submitted that the change of situation after death of original plaintiff Gulamali has also bearing on the present controversy. He submitted that, after death of Gulamali, the shop which was purchased by deceased Gulamali has now gone to the share of Asgarali, his son. Therefore, the need to that effect has either diminished or vanished. He submitted that the theory put up by the plaintiff that the MIDC premises are not being occupied as the water in that area is contaminated cannot be accepted. He said that there are habitat residing in the MIDC area and drinking the same water and nothing untoward incident has happened and. therefore, the reasons for non-occupying the premises, thus, imaginary and fanciful and far from the truth. He submitted that the plaintiff has given another reason for not: occupying the premises in MIDC area is that it is far away from Bohara Masjid. Shri Dixit pointed out that the distance between MIDC area at Bohra Masjid is hardly 1 or 2 km. and that cannot be considered as far away distance which will cause inconvenience to the defendant. He submitted that the question of hardship is also not considered in proper perspective. He submitted that in the facts of this case, the learned A.D.J. should have passed partial decree in favour of the landlord. It is stated that the premises in occupation of tenant is about 700 sq. ft. which could have been easily bifurcated or divided so that partial possession can he handed over. He submitted that the additional demand or need projected by the plaintiff cannot be considered as admittedly the MIDC area building is available where the two daughters can have their professional activities. Shri Dixit submitted that the entire approach of the learned District Judge is thus not proper. He submitted that Asgarali for whom the possession is sought, is actually not doing the business of retailer, in fact, he is involved in manufacturing activity which he is admittedly carrying on in the MIDC area. Therefore, he submitted that the decree cannot be granted on that ground. He submitted that the need must be in existence till the end of the litigation and the landlord or defendant should carry on the business. In order to substantiate these contentions Shri Dixit, placed heavy reliance on the judgment of this Court Jainuddin v. Sitaram Varuadkar and Ors. 1981 Mh. L.J. 498 : 1981 Bom. C.R. 271. He submitted that the circumstances which are brought on record do indicate that the building in MIDC area, infact, is occupied by the family of the plaintiff and it can be used for their bona fide need and this aspect has not been considered by the Courts below.

20. Shri Dixit. submitted that the suit must be dismissed for nonjoinder of necessary parties as all partners are not made parties. He submitted that the defendant No. 1 is registered partnership firm, having four partners. Initially there were five partners when the firm was registered. No doubt, the defendant No. 2 Fakruddin was a partner of the firm, but subsequently he ceases to be a partner of the firm. He submitted that in R.C.S. No. 214/1971 there were six defendants. The defendant No. 1 was the firm and defendant Nos. 2 to 5 were shown as defendants but, according to plaintiff, were the partners. That suit was dismissed and the appeal decree was confirmed. In the present suit, the plaintiff made the firm as defendant No. 1, No. 2 was Fakruddin. who was not a partner and defendant No. 3 was only partner shown as defendant; but other two partners Juar Mohammad Ali and Nuruddin existing partners were not made parties and, therefore, he submitted that the suit must be dismissed as all the partners were not made parties. Shri Dixit submitted that in view of this aspect, the suit must be dismissed. He submitted that the defendant is carrying on the business since 1935 in the shop premises and last so many years the business is being carried out. the defendant has acquired a goodwill in that area and if the eviction of the decree is passed, the defendant not only will lose possession but also goodwill. He also submitted that this aspect was required to be considered in passing the decree by the Lower Court. He, therefore, submitted that the learned A.D.J. should have allowed the appeal and should have dismissed the suit of the plaintiff. He, therefore, submitted that this is a case where this Court should interfere by exercising its jurisdiction conferred on it under Article 227 of the Constitution.

21. Per contra, S/Shri P.R. Katneshwarkar and R.N. Dhorde, learned Counsel appearing for respective respondents, supported the impugned judgment. It is contended by the respondents that whether the need of the landlord is a bona fide or not, has to be determined on the basis of the evidence that is brought on record and on the basis of evidence so brought if the Courts below records a finding that the premises are required by the plaintiff reasonably and bonafidely, then, that finding becomes essentially a finding of fact which cannot be disturbed by this Court as the said finding is binding on this Court. The learned Counsel submitted that finding on bona fide requirement has been arrived at by the Courts below after appreciation of oral evidence of Gulamali and Asgarali (after remand). On the basis of this evidence, the finding of bona fide requirement, has been recorded. On the other hand, the defendants tried to establish their case by examining two witnesses, namely, Fakruddin Musaji Master and Kayum Musaji Master. Kayum is undisputedly the partner of the firm. Fakruddin who is initially a partner of the firm, but subsequently he was removed from the partnership firm, in the year 1974. It is, therefore, contended by the Advocates for the respondents that the oral evidence of these four witnesses have been appreciated by both the Courts below who, infact. have accepted the evidence and recorded the finding in favour of the plaintiff. Therefore that finding being essentially a finding of fact and while recording the finding on bona fides both the Courts below have not committed any error, much the less, an error apparent, on the face of the record and, therefore, they submitted that the finding of bona fide requirement cannot be assailed by the defendants in this petition. They submitted that this Court cannot, reappreciate the evidence in extenso as the Appellate Court, only can do it. They submitted that, this Court having superintending powers over the Courts below, this Court has only to find out whether the Courts below have acted within their jurisdiction and bounds. They submitted that every error or wrong cannot be corrected by issuing a writ of certioran unless the finding so recorded are perverse and the Court has committed an error apparent on the lace of the record. They submitted that error apparent on the face of the record must be so apparent, that at the first glance the error must be located. They submitted that this Court cannot find an error by a long drawn process of submission and the reasonings. Therefore, they submitted that the finding on bona fide requirement and ultimately passing of the decree being just and proper, there is no scope for this Court to reverse or interfere in the said finding.

22. It was next submitted that it is for the landlord how to use his premises, and the tenant cannot dictate the landlord to use the premises as per the tenant’s wish. They submitted that much capital is being made by the defendant/tenant that the plaintiff has constructed a three storied building in MIDC area and. now, the plaintiff must occupy that premises. They submitted that the tenant cannot dictate the landlord as to how the landlord should use his premises. They contended that ultimately the landlord being the owner of the premises, it is his own wish and will to use the premises. It is submitted by the learned Counsel for the respondents that, as a matter of fact, all the parties and firms have their own independent business, just in the vicinity of the present premises and they are doing business independently and even if the decree is passed in favour of the plaintiff, no harm or hardship whatsoever would be caused to any of the partners. It is submitted that the landlord has choice to select the premises and to get himself the better premises. It is submitted that the defendant has not disputed the fact that the Asgarali is residing in rented premises. Therefore, if the landlord desires to provide business as well as residential premises to one of the members of the family, it cannot be called as unreasonable. They submitted that since 1971 the landlord is claiming possession but due to judicial tardiness and long drawn process of law, he could not get premises. The original plaintiff Gulamali has died and in his lifetime he could not see that, his son resides and carry on business in his own premises. Both the learned Counsel submitted that even assuming that the premises in MIDC area can be used for residence; but the fact remains that there is no habitation of the families whatever arrangements are made in the said building is only to have the security personnel to protect the factory and for that purpose some provision is made where someone can stay, such as watchman or security guard. Therefore, by that itself, it cannot be said that the plaintiffs family members can shift their premises in the MIDC area. It is contended that two daughters of the plaintiffs have their own vocation. As stated above, one daughter is a divorcee and she has to stand on her own and it is duty of the plaintiffs family to re-establish her in the life and, therefore, the premises are being sought by pointing out the additional need. It is submitted that the defendants have not denied the fact that the daughter of the plaintiff is conducting private coaching classes and running embroidery classes and that has to be done only in a locality where she can get students or trainee. If she has to require to occupy the premises in MFDC area, there is remote possibility that any student or trainee will join her tuition or embroidery classes. They, therefore, submitted that looking into the future of the daughters and the situation of the shop premises, the shop premises are not ideally situated so as to divorcee daughter can occupy the premises and start her business. Similar is the case with the other daughter who has become lawyer and she must have her own office in the area having habitation and easy access to her clients. Therefore they submitted that when the additional need arose, an application for amendment was filed and the same was allowed and the additional need has been considerably the learned A.D.J. who passed the decree. In support, of these contentions, the learned Advocates for the respondents relied on the following judgments of the Apex Court :

(1) 2001 (2) SCC 604.

(2) .

(3) 2001 (2) SCC 762.

(4) 1996 (5) SCC 355.

(5) .

(6) .

23. The learned Counsel for respondents submitted that so far as the question of personal bona fide requirement and need of the landlord finding of fact, the same has been recorded by the Courts below. Therefore, they said that the finding so recorded need not be interfered with. It is submitted that the Trial Court, infact, recorded the finding of bona fide requirement but refused to pass a decree on the ground of misjoinder of the parties So far as the Lower Appellate Court is concerned, it did record a finding that the premises are required bonafidely and the suit is not bad for non-joinder of necessary parties. Therefore, so far as the question of bona fide requirement is concerned, there is concurrent finding of fact and that finding has been arrived at by both the Courts below on appreciation of evidence and, as such, the said finding cannot be branded as perverse finding and the same being just and proper, requires no interference at the hands of this Court.

24. In reply the contentions raised by Shri Dixit on the point of res judicata, the learned Counsel for respective respondents, contended that in rent proceeding the question of res judicata has no role to play as it is recurring cause of action. They submitted that when in 1971 suit was filed a note was shown that the property was required for carrying on business by one of the sons of the plaintiff i.e. Abdul Hussain; but the Court did not accept the contention and rejected the plea. When second suit was filed the need so far as Abdul Hussain was concerned, was not in existence. The premises was required for the another son Asgarali because, by that time, Asgarali was married and the family bickering escalated between ladies of the family and that compelled Asgarali to occupy the rented premises, Asgarali is carrying on business on open, in front of the suit premises. On this ground, new need was projected in the suit. Apart from this by amending the plaint, the additional need for two daughters was also incorporated and, therefore, both the suits i.e. 1971 suit and the present suit are not based on same cause of action. Though the premises may be the same; the plaintiff and defendant may be the same, but the need for which the possession is sought is altogether different and, therefore, the suit cannot be disposed of as barred by principle of res judicata. In order to substantiate this contention, learned Advocates for the respondents relied on the judgments of the Apex Court in the case of N.R. Narayan Swamy v. B. Francis Jagan . On the basis of the judgment of the Apex Court, the learned Counsel contended that under the rent legislation there is recurring cause of action and it cannot be considered that the findings recorded in the earlier suit can be used in second suit and dismiss the suit as barred by the principles of res judicata. Therefore they submitted that the Trial Court rightly held that the suit is not barred by the principle of res judicata. Though the Appellate Court has not framed a specific point of res judicata, still the learned Judge has considered the question of res judicata in the body of the judgment and held that the subsequent suit is not barred by the principle of res judicata. The learned Counsel for respondents submitted that the question of res judicata is not a pure question of law, but it is mixed question of facts and law. Therefore, both the Courts below on the backdrop of the pleadings and the findings in both the suits have rejected the contention of the defendant. As such, the learned Counsel contended that it is not open for the defendant to contend that the suit is barred by the principle of res judicata.

25. The learned Counsel for the respondents assailed the finding recorded by the Lower Appellate Court on the point of default and the notice. They submitted that both the Courts below have recorded the finding that the defendant is in arrears of rent but refused to grant decree on the ground that notice under Section 12(2) of the Act was not legal.

26. Shri Dixit, learned Counsel for the petitioners took strong exception to the contention of the learned Counsel when they tried to assail the finding on the point of default and notice. Shri Dixit submitted that respondents have not filed any cross objection or cross appeal to challenge that adverse finding. Shri Dixit pointed out that the Trial Court has recorded the finding on the point of default and to challenge that adverse finding recorded by the Appellate Court against the plaintiff, the defendant has filed cross objection as contemplated under Order 41, Rule 22 of the Code and the learned A.D.J. on merit allowed the cross objection and reversed the said finding. Therefore, in such a situation, Shri Dixit submitted that unless and until the respondent (plaintiff) files a cross objection to the adverse finding then only they are permitted to challenge the adverse finding by advancing oral submissions and the final hearing of the writ petition. He submitted that this Court may not, allow the respondents to challenge the said finding.

27. I have already considered the submissions of the parties so far the finding on the part of the bona fide requirement. I have gone through the finding that has been recorded by the Trial Court and by the Lower Appellate Court. The Trial Court has recorded the finding of bona fide requirement on issue No. 2 and on the point of additional issue after remand. The Trial Court appreciated the evidence and recorded the finding that the plaintiff has proved that the premises are reasonably and bona fidely required for use arid occupation. The Appellate Court also confirmed the said finding. Taking into consideration the additional fact and additional finding that has been recorded on the basis of construction of building at MIDC area. Having considered the said finding and having gone through the evidence, of Gulamali and Asgar Ali, I am of the view that while recording the finding of bona fide requirement, both the Courts below have properly appreciated the evidence and recorded the finding. It is well-established that it is for the landlord to prove the need and it is not for the Courts to substantiate its own view and to find out whether the need of the landlord is bona fide or not. The Court has to consider the question whether the demand of the premises is reasonable and bona fide. The question of bona fide and reasonableness is essentially to be determined on the basis of the evidence that is led by the parties. In the present case, both the parties have adduced the evidence of Gulamali and Asgar Ali, who were examined to prove the bona Jules. In addition to that, there is evidence in the nature of Commissioner’s report on the situation of the new building constructed in MIDC area. On the other hand, the defendants have examined the defendant Nos. 2 and 3. Both the Courts below have appreciated the evidence and they have accepted the evidence of the plaintiff and recorded the finding. In such a situation, therefore, it would not be proper for me to reappreciate the evidence and to record a finding afresh. I will not burden my judgment by reproducing the observations that, are made by the Apex Court. Suffice it to say that the judgment of the Apex Court in Babhutmal (supra) and Suryadev Rai v. Ramchandar ; State v. Navjyot Sidhu 2003 SCC (Cri.) 1545 : 2003 (4) SCC 614 and Ranjeetsingh v. Ravi Prakash the consistent view of the Apex Court is that the jurisdiction under Article 227 cannot be exercised in the clock of an appeal under disguise. Therefore, even though Shri Dixit has taken pains to read the entire evidence and which is mainly considered on oral evidence though I have permitted the learned Counsel read the evidence only with a view to find out whether there is an error apparent on the face of the record or any perversity has been committed. Even on considering the evidence to the limited extent, I am of the view that this Court cannot re-appreciate the evidence as that of the Court of appeal. This is not a case for this Court to sit over the such judgment as an Appellate Court and to record an altogether different finding. Having considered the evidence as read by Shri Dixit. I am not all impressed with the contention of Dixit that the findings are perverse and there is error on the face of the record. It is to be noted that the case is mainly based on oral evidence of the parties and once the Trial Court and the Appellate Court appreciated the same and records a particular finding then, in my judgment, it is impermissible for this Court to reappreciate the evidence and record a different finding. If that, is done then it will tantamount to exercising the appellate jurisdiction rather than supervisory jurisdiction conferred on this Court by Article 227 of the Constitution. Therefore, having considered the finding on the point of bona fide requirement, I see no error whatsoever committed by the Courts below in decreeing the suit on the point of personal bona fide requirement. As such, the finding so recorded has to be confirmed. Accordingly, I confirm the said finding.

28. Coming to the question of hardship which this Court has to consider: The contention which is advanced by Shri Dixit regarding hardship has to be considered in the light, of the fact that the partners have already acquired the business premises in the vicinity of the present premises. One of the partners have acquired commercial premises in the adjacent lane called in the area of Polan Peth, It has also come on record that the partners of the firm have purchased the property in the name of their wives and they are carrying on the business there. Two of the partners admittedly carrying on their own independent business at Bhusawal. Coupled with this aspect and the fact that, the plaintiff has proved his bona fides and in particular when the plaintiff has successfully established that the premises are required for his sons and daughters that aspect definitely will have to be considered and will have an edge while considering hardship. Considering this aspect, arid the fact that the partners of the firm have already established their shops, in my judgment, if the decree is refused then greater hardship will be caused to the plaintiff and, therefore, in my judgment, the decree in possession on the ground mentioned under Section 13(1)(g) of the Act as passed by the Courts below has to be confirmed.

29. Coming to the most debated question on the point of default as I have already stated earlier that the Trial Court, has recorded a finding that defendant is defaulter but did not pass a decree on the point of notice that finding was challenged by the defendant by filing cross objection. The cross objections were upheld and allowed and the plaintiffs suit for possession on the ground of default was rejected. The learned Counsel appearing for the plaintiff has challenged the finding recorded by the Lower Appellate Court on the point of default and the refusal of Appellate Court to pass a decree on that ground. Shri Dixit learned Advocate for the defendants, objected the raising of the contention by the Advocates for respondents to challenge the finding without, filing cross objections as envisaged under Order 41, Rule 22 of the Civil Procedure Code (for short “C.P.C.”). Therefore, before challenge to the merit of the finding could be considered I have to find out whether the respondents without filing the cross objections or cross appeal can challenge the said finding.

30. This petition is filed under Article 227 of the Constitution. Obviously, under the rules framed by the High Court for filing writ petition there is no provision for filing cross objection or cross appeal. In absence of such rules, whether the provisions contained in C.P.C. can be pressed into service and whether the cross objections are required to be filed. Useful purpose will be served if reference is made to Section 141 of the C.P.C. Section 141 reads thus:

141. Miscellaneous Proceedings.- The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

(Explanation : In this section, the expression “proceedings” includes proceedings under o. IX, but does not include any proceeding under Article 226 of the Constitution.)

By reading the provisions quoted above and considering the explanation to that section, it is clear that this petition is not filed under Article 226 of the Constitution. Therefore, the explanation is no bar from application of the C.P.C. The procedure provided by the C.P.C. is required to be followed in filing and prosecuting petition filed under Article 227 of the Constitution; as these are the proceedings in the Court having civil jurisdiction. Therefore, in my opinion, by considering Section 141 of the C.P.C., the Code is applicable to the petition filed under Article 227 of the Constitution.

31. Having reached this conclusion, now, I have to address myself to the provisions of Order 41, Rule 22 which enables the party to file cross objection. No doubt Order 41, Rule 22 deals with filing of cross objections to the adverse finding. The form arid procedure is also provided in the said rule. Order 41, Rule 22 reads thus :

Order XLI, Rule 22 :

Upon hearing respondent may object to decree as if he had preferred a separate appeal :

(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (It may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross objection) to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

(Explanation : A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court or any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.)

(2) Form of objection and provision applicable thereto: such cross objection shall be in the form of a memorandum, and the provision of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(….)

(4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.

32. On reading Order 41, Rule 22 one gets an impression that while respondents in an appeal (present case writ petition) has to file written objection to the adverse finding. Prima facie reading the rules it does indicate that filing of writ petition in the shape of memorandum of appeal is required to be filed. Shri Katneshwarkar invited my attention to the judgment of the Apex Court in the case of Banarsi and Ors. v. Ram Phal . The Apex Court has considered the scope of Order 41, Rule 22(1) explanation and (4) and Rule 33. The Apex Court has held that it is not necessary to file written objections to the adverse finding; the respondent in a given case can challenge or support a decree or adverse finding without lodging or filing memorandum of cross objection as envisaged under Order 41, Rule 22. The facts before the Apex Court were that suit for specific performance of an agreement of sale was filed by Banarsi against Ram Phal. The agreement of sale was for consideration of Rs. 2.90.000/- out of which an amount of Rs. 2,40,000/- was acknowledged by the vendor to have been received, leaving a balance of Rs. 50.000/- to be received at the time of execution and registration of the sale deed. The vendor also filed suit cancelling the agreement of sale on the ground that the nature of transaction between the parties was of loan and that the amount of loan taken by Banarsi the appellant before the Apex Court was only Rs. 60.000/- but the respondents therein have added advanced interest and capitalised the same at that day the amount of loan with interest was returned yet the respondents have failed to deliver back as fully discharged agreement. The suit were consolidated and tried together by the learned Civil Judge who, by the judgment and decree dated 20th May, 1994 disposed of both the suits. The Trial Court held that at looking to the real nature of transaction entered between the parties and the evidence adduced shows that actual amount which passed from respondent to the appellant which was just and proper that the appellant returned the amount of Rs. 2,40.000/- with interest calculated at the rate of 1 per month with effect from 30th November, 1988 and on Rs. 1,80,000/- with effect from 15th July, 1991 on Rs. 60.000/-. During course of the judgment, the Trial Court recorded a finding that the appellants were cultivating the land that the land in dispute was very necessary for maintenance of their family and if the execution of sale was directed, they would suffer too much hardship, accordingly, the suit came to be disposed of. Aggrieved party filed two appeals before the High Court. The High Court noticing that during pendency of the appeal, the pecuniary jurisdiction of District Court was enhanced, the appeals came to be transferred to the District Court and decided accordingly by the learned District Judge who by his judgment dated 21st September, 1999 dismissed the appeal. The respondents did not prefer any appeal on his own nor filed any cross objection while holding the appeals preferred by the appellant liable to be dismissed. The Appellate Court modified the decree passed by the Trial Court and while modifying the decree the suit for specific performance. Feeling aggrieved by the orders passed by the District Court, the two second appeals were filed before the High Court. During pendency of the High Court some interim orders were passed. The High Court dismissed both the appeals raising no substantial question of law 011 the plea of advanced on behalf of the appeals before the High Court that the first Appellate Court could not have in purported exercise of the powers Rule 41, Rule 33 reversed the decree in respect of refund and directed the suit for specific performance to be decreed in favour of the respondents without there being any appeal or cross objection preferred by the respondents. The High Court opined that it was open for the respondents not to file any appeal against the Trial Court’s decree on the belief that he would either get his money back with the short time provided under the decree or whatever contracts specifically performance. However, on account of stay order obtained by the appellant the payment of decretal amount was not made by the appellant to the respondents as per the terms of decree and the High Court then held that in such circumstances, the first Appellate Court committed error of law in exercising the powers under Order 41, Rule 22 of the C.P.C. in passing decree for specific performance. That gave the party a cause to approach the Apex Court. Before the Apex Court, the question raised whether the appeals without any absence of cross appeal or cross objection by the respondents under Order 41, Rule 22 of the C.P.C. and the scope of powers conferred by the Appellate Court under Rule 33 of Order 41 of the C.P.C. the Appellate Court can interfere with the Trial Court. The Apex Court therein noticed the changes made in Order 41, Rule 22 as amended by Act No. 104 of 1976 with effect from Ist Feb., 1977 with pre-amendment. After noticing the change the Apex Court ruled as follows :

9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it, is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, inspite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the Appellate Court to form an opinion that inspite of the finding on ground (A) being reversed to the benefit of the defendant appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff respondent has neither preferred an appeal of his own nor taken any cross objection. A right to file cross objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Dy. Collector, Ahmednagar that the right given to a respondent in an appeal to file cross objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross objection is the exercise of the right of appeal arid takes the place of cross appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross objection though certain finding may be against him. Appeal and cross objection both are filed against the decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended C.P.C.

10. The C.P.C. amendment of 1976 has not materially or substantially altered the law except, for a marginal difference. Even under the amended Order 4 1, Rule 22 Sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of Sub-rule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations :

(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.

(ii) The decree is entirely in favour of the respondent though an issue has been decided against, the respondent.

(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.

11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment C.P.C. did not entitle nor permit, the respondent, to take any cross objection as he was not the person aggrieved by the decree. Under the amended C.P.C., read In the light of the explanation, though it is still not necessary for the respondent to take any cross-objection paying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of Sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by Sub-rule (4). Inspite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended C.P.C. In the pre-amendment era. the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.

33. Applying the above said principle in the case at hand, the net result is that the Lower Appellate Court has confirmed the decree of eviction passed by the Trial Court but reversed the finding on the point of default and notice in cross objection filed by the defendant. The plaintiff has sought a decree against the defendant, on two grounds provided under the Rent Act i.e. default Under Section 12 and personal bona fide requirement Under Section 13. As a decree of eviction was passed Under Section 13(l)(g), the defendant preferred this writ petition but as the decree was in favour of the plaintiffs there was no occasion for the plaintiff to file an independent proceeding for the finding which has been recorded on the point of default. Applying the law declared by the Apex Court, in Banarsi’s case (supra), I am of the view that the plaintiff can certainly attack the adverse finding without filing the cross objection. Therefore, in my judgment, the objection raised by Shri Dixit that without filing cross objection, the respondent cannot assail the adverse finding has to be rejected and, in my judgment, it is permissible for the respondent to challenge the adverse finding without filing an objection strictly in compliance with Order 41, Rule 22. It is to be noted that the right to file appeal or cross-objection is a creation of the Statute and the right has to be exercised in the manner provided under the Statute. No doubt, Order 41, Rule 22 gives a right to the party to file cross objections to the adverse finding in the manner as provided under that rule but considering the law declared by the Apex Court in Banarsi’s case (supra), the aggrieved party has right to object or assail the adverse finding without filing written objection. At the cost of repetition. I may say that this petition is filed under Article 227. That being the special jurisdiction conferred on this Court by the Constitution even otherwise this Court can permit either side to assail the adverse finding making oral submission. Therefore, in my judgment, the learned Counsel for the respondents were right in challenging the finding recorded by both the Courts below on the point, of default and the notice Under Section 12(2).

34. I am aware of the scope of jurisdiction of this Court under Article 227 of the Constitution and the tests those are to be applied for hearing a petition and to consider the finding of the Courts below the same test has to be applied in considering the challenges to the validity of the adverse finding recorded by both the Courts below. Though both the Courts below have held that one notice was addressed to the defendant firm who is admittedly the tenant. Thus, sending the notice addressed to the defendant is accepted by both the Courts below but they have not accepted the validity of the notice on the ground that it was not served on the defendant properly.

35. It will be appropriate to reproduce the findings that is recorded by the learned Appellate Court :

…But his contention cannot be accepted in the light of the documentary evidence of Exhs. 59 and 60 and in the light of the oral evidence of Fakruddin and defendant No. 3. From the documents on record, it can very well said that when the plaintiff issued suit notices, Fakruddin was not at all the partner. The evidence on record does not allow me to hold that the defendant No. 1 firm had authorised Fakruddin to accept or to refuse the suit notices on behalf of the defendant No. 1 firm. Both the notices are addressed to the firm and the plaintiff tried to get them served on Fakruddin who was not at all partner of the defendant No. 1 firm.

Thus, the fact finding Court has positively recorded the findings (supra). Then the learned Appellate Court proceeded to consider the scope of Section 12(2) vis-a-vis notice served on Fakruddin. The learned Judge proceeded to observe that notice Under Section 12(2) ought to have been served on each partner. The learned Judge then recorded the finding, which reads thus :

In the present case, admittedly no notice was issued to either defendant No. 3 or any other existing partners of the defendant No. 1 firm, before commencement of these proceedings. Once it is held that the suit notices Exhs. 37 and 38 were not sent to the proper person who was expected to receive them, then question of their service does not arise. It is needless to consider whether service of notice to Fakruddin is sufficient or not. Assuming without admitting that Fakruddin was competent person to accept the notices, then I hold that the service is quite proper because the envelope goes to show that, the addressee refused to accept it.

After recording the above findings, (which is supported by the evidence on record), the learned Appellate Court proceeded to consider whether to draw a presumption Under Section 114 of the Evidence Act. The Appellate Court on the basis of the evidence on record, arrived at the following findings :

The evidence on record goes to show that Fakruddin is not the partner of the firm but the defendant No. 3 and two more others are the partners of the defendant No. 1 firm. The possibility that two other partners apart from the defendant No. 2 refused to accept the notice has not been ruled out by the defendants. Therefore, it can be said that presumption under Section 114 of the Evidence Act is not at all properly and satisfactorily rebutted by the defendants.

36. This part of the finding has to be considered by me. In order to appreciate this aspect let, me see first the finding that has been recorded by the Trial Court on the point of notice. The Trial Court has framed the issue No. 1 which deals with the arrears of rent and on default as defined Under Section 12(3) of the Act. The learned Trial Judge also recorded the finding that the defendant is in arrears of Rs. 1,868/- as rent. Then an issue was added which reads thus :

Does the plaintiff prove legal notice as per the provisions of Section 12 of the Act?

The learned Trial Judge in para Nos. 13 to 16 of his Judgment held that the notice was served on the defendant but held that the notice is not issued as per the provisions of Section 12(2) of the Act. The case that was advanced by the defendants, according to the plaintiff, the notice Exh. 37 was sent to the defendants under registered post and second notice Exh. 39 under certificate of posting. The said notice was not delivered to the addressee, but it was returned to; the plaintiff, Exh. 38 is the packet which is received back by the plaintiff with endorsement of the postman that it was refused by the addressee. The fact of refusal by the addressee was denied by the defendants by placing reliance on the evidence of Fakruddin and Kayumali who were defendant Nos. 2 and 3 respectively. The learned Trial Judge answered this in the following manner :

I hold that there was service of the notice to the defendant and there are no reasons for not holding that the notice was not as per the provisions of Section 12 of the Bombay Rent Act. The defendants neglected to pay within a month service of notice. For these reasons I answer issue No. 1 and additional issue in the affirmative.

37. Thus, the learned Trial Judge has answered issue No. 1 and answered issue in the affirmative. The learned Judge while considering the service of notice on the defendants that the notice was addressed t0 defendant No. 2 who was not at the relevant time the partner but the fact remains that the notice was addressed to the firm i.e. defendant No. 1 and it was served on the defendant No. 2. The learned Trial Judge did consider the evidence of Fakruddin wherein he has stated that he was servant of the firm and he was only an Accountant. The learned Judge proceeded to consider this aspect and observed thus :

He had also not. informed this fact in 1976 when the appeal was pending. It may be said to be a fault on his part only, but for his fault, the defendant No. 1 cannot suffer as the defaulter. When defendant No. 2 has not remained a partner of the shop then, even if it is presumed that he was served with a notice, it is not sufficient to pass the decree of ejectment, against the firm itself.

38. Ultimately, the suit came to be dismissed as notice Under Section 12(2) was not served properly, directing the defendants to pay arrears of rent. In appeal that findings were assailed by the defendant, by filing cross objection. The learned Judge of the Appellate Court, framed Point No. 2 in respect of default, point No. 5 in respect of non-joinder of necessary parties. Point Nos. 2 and 6 which deals with the validity of the notice and the point of default. These two points were framed on the basis of cross objections filed by the defendants. The learned Judge of the Lower Appellate Court, in respect of these two points has recorded the finding which are reproduced in earlier part of the judgment.

39. These findings have been assailed by the learned Counsel appearing on behalf of the respondents. They contended that both the Courts have recorded a finding of fact that the notices were addressed to the firm but they are tried to be served through the defendant No. 2. They contended that though the defendant No. 2 ceased to be a partner but nonetheless it is admitted that defendant No. 2 was the servant of the firm. The learned Counsel contended that Fakruddin refused to accept the said notice. Therefore, they contended that refusal to accept notice by Fakruddin has been accepted by both the Courts below. Hence the two findings of facts are emerged from record :

(i) Notices Exhs. 37 and 39 were addressed to the firm, (ii) Fakruddin, expartner, who was then serving as an Accountant with the firm has refused to accept the notice.

40. With these findings of fact, which are recorded by both the Courts on the basis of evidence has to be accepted. I have now to consider the statutory provision to find out whether notice Under Section 12(2) was proper or not. In this context, let me refer to the scope and ambit of Section 12 of the Act. Section 12 imposes restriction on the landlord to recover possession of the premises, unless notice as contemplated under it is issued. Sub-section (2) lays clown a condition precedent to landlord’s filing an ejectment suit on the ground of arrears of rent by serving notice before one month, and to demand arrears of rent.

41. Section 12(1) restricts, the right of, the landlord to recover possession of the demised premises from his tenant, on the determination of his tenancy (which right he was entitled to exercise unfettered under the general law), so long as the tenant satisfies two conditions, viz. (1) he pays or is ready and willing to pay the standard rent and the permitted increases due and payable by him and also (2) observes and performs the other terms and conditions of his tenancy, in so far as these terms and conditions are not inconsistent with the provisions of the Act.

Sub-section (2) provides for the service of notice in the manner provided Under Section 106 of the Transfer of Property Act. (for short T.P. Act). Now let me note down the manner of service of notice Under Section 106 of the T.P. Act. Section 106 of the T.P. Act: reads thus :

106. Duration, of certain leases in absence of written contract or local usage.-In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing, signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party), or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

42. By reading the provisions of Section 106 of the T.P. Act it is clear that it permits the tender or delivery of the notice on the servant of the tenant also. It is not disputed that Fakruddin was the servant of the firm, working as an Accountant. Fakruddin has been examined as a witness and without any hesitation has accepted the fact that initially he was a partner and in 1976 he ceased to be; partner and thereafter he was serving as an Accountant. It has also come on record that he refused to accept the notice as Section 106 of the T.P. Act permits service of notice on the servant of the tenant and Section 12 Sub-section (2) in clear terms says that the notice as contemplated under this section shall be served on the tenant in the manner stated in Section 106 of the T.P. Act. Under Section V of the T.P. Act the notice can be served either on the tenant or on the servant: or if both it is not possible then by affixing the said notice on the conspicuous place of the premises. Considering these statutory provision coupled with the finding of fact recorded by both the Courts below which goes to establish that the notice as required Under Section 12(2) was, infact, was sent to the firm and Fakruddin refused to accept the same, the learned Appellate Court drew an inference that notices are served on the firm. In my judgment, the observation of the Appellate Court that Fakruddin was not authorised by the firm to accept, or refused the notice on behalf of the firm thus legal and in recording that finding the Courts below committed an error, appearing on the face of the record. As the said observation of learned Appellate Court is contrary to the specific statutory provision contained Under Section V of the T.P. Act. In my judgments finding on the point of service of notice which are recorded by the Courts below cannot be accepted as both the Courts below have committed an error apparent on the face of the record in holding that the notice was not legally served. Therefore, considering the finding of fact recorded by both the Courts below and considering the statutory provisions contained in Section 12(2) of the Act read with Section 106 of the T.P. Act, in my judgment, there is proper service of notice Under Section 12(2), as such, the plaintiff is entitled to decree on the count of default also. It is no! disputed that the defendant has not deposited the rent and both the Courts below have recorded the finding that the defendant is in arrears of rent for more than six moths. Therefore, the finding recorded by the Lower Appellate Court on the point of notice is required to be interfered with and I hold that the notice was, Infact, issued in the name of defendant No. 1. The defendant No. 2 who was Accountant (servant of the firm) has refused to accept the said notice. Therefore, the refusal of notice by the defendant’s servant is referred by defendant No. 1. Admittedly, no rent has been deposited or paid within one month from the date of refusal of the notice. The plaintiff is entitled for decree of eviction as envisaged Under Section 12 Sub-section (2) of the Act.

43. In my judgment, the plaintiff also entitled for decree for possession on the ground of default also. Therefore, in my judgment, the judgment and decree passed by both the Courts below on the point of eviction of the tenant under Section 13(l)(g) is upheld. In addition to that I hold that the plaintiff is entitled for decree of possession on the ground of default as envisaged Under Section 12 of the Act. Accordingly, that finding recorded by both the Courts below to that extent are required to be interfered with and accordingly, the finding is so interfered and I reserve those findings.

44. Now, remains the question as to whether all partners are necessary to be made defendants in the suit. The Appellate Court has held that all partners are not necessary as two partners admittedly are residing at Bhusawal and they are carrying on their business at Bhusawal and that finding is also assailed by Shri Dixit contending that all the partners are necessary parties and they are not added parties, and hence, the suit is not maintainable. It is contended that all the partners must be made party in a suit. Shri Dixit therefore, submitted that the finding that has been recorded by the Appellate Court in para Nos. 50. 51, 52 being perverse, requires to be set aside. The provision of the C.P.C. are made applicable to the proceedings under the Rent Act by virtue of provisions of the Bombay Rent Act and Rules. As per Rule 16 the provisions of the C.P.C. are made applicable to proceedings in the Civil Court. It is to be noted that the civil suit was filed in a Civil Court having jurisdiction to entertain the suit filed under the Rent Act. As the C.P.C. is made applicable automatically the provision of Order 30 of the C.P.C. are attracted. Order 30, Rule 1 deals with the suit by or against the firm, Sub-rule (1) deals with the suits where the firm is a defendant. This provision has been considered by the Lower Appellate Court and Lower Appellate Court has held that the suit was properly instituted but defendant No. 2 Fakruddin who was an Accountant and the ex-partner was made defendant and to that extent the learned Judge has held that defendant No. 2 was not necessary party. It is not disputed that defendant No. 3 is the partner when the suit was filed. The defendant No. 1 is the firm; defendant Nos. 1 and 3 were duly served and they appeared in the suit. In my judgment, the institution of suit against the defendant No. 1 is proper. In this aspect, the provision of Rule 3 of Order 30 is the pointer. Rule 3 of Order 30 deals with service of summons. Service of summons can be effected upon any one or more of the partners and that summons has to be served at the particular place at which the partnership business is carried. Though defendant No. 2 was party he was served with summons nonetheless the defendant No. 3 was the partner the summons is served on him. Thus, the defendant No. 1 the firm is served with the summons and defendant No. 3 is the partner was also served in this aspect. Therefore, in my view the learned District Judge was right in holding that the suit was properly instituted against, the firm. I find no substance in the contention of Shri Dixit that the suit was not properly filed against the defendants. In my judgment, all partners are not necessary, more particularly when the learned District Judge has passed a decree of eviction against the defendant Nos. 1 and 3 and not against those partners who were admittedly and undisputedly doing their business at Bhusawal. Therefore, in my judgment, the finding in that behalf recorded by the Appellate Court cannot be interferred with.

45. Before parting, I may appreciate the efforts made by the learned Counsel appearing in the matter; they took me through the several judgments of this Court as well as the Apex Court in support of their respective contentions. I have noted those judgments but have not made a detailed reference to the ratios laid down as it would have been burdened my judgment. Therefore, I have not referred those judgments in extenso.

46. In the result, the writ petition stands dismissed. The finding recorded by the Lower Appellate Court and the Trial Court on the point of service of notice is set aside. The plaintiff is entitled for decree on the ground of default. To that extent the decrees passed by both the Courts below has been modified. Accordingly, I hold that the plaintiff has successfully proved that the defendant is in default within the meaning of Section 12(2) of the Act and the plaintiff is entitled to a decree on account of default as well as on personal bona fide requirement as contemplated Under Section 13(l)(g) of the Act.

47. It has come on record that the defendant No. 1 is carrying on business in the said premises for quite long time. It has also come on record that the partners of the defendant firm had their own independent separate premises and they are carrying on the business in Jalgaon looking to this aspect of the matter and more particularly the plaintiff have established their need and the plaintiff is seeking possession of the suit premises from 1971. Taking into consideration all these aspects of the matter, it will be appropriate to give three months time to the defendants to vacate the premises and handover the peaceful and vacant possession of the shop premises to the plaintiff within three months from today. The defendant No. 1 is given three months time to vacate the shop premises on condition that the defendant shall file an undertaking in the Trial Court within two weeks from today, indicating that it shall handover the vacant peaceful possession to the plaintiff on or before expiry of three months from today and that it will pay all arrears upto the end of three months. If there are any arrears, the said shall be deposited alongwith the undertaking that will be filed. If the rent is already paid or deposited then it is not necessary to pay the rent. If the defendant fails to file undertaking as indicated, the plaintiff will be at liberty to seek execution of the decree.

48. Rule discharged. Interim relief stands vacated. On the facts of this case I leave the parties to bear their own costs.