1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4492 OF 1992
1. Sidharam Ganpati Mulage, )
Age 36 yrs., Occ.Business, )
)
2. Sulochana Mallinath Desai, )
Age 31 yrs., Occ.Household, )
)
3. Sujata Ganpati Mulage, )
Age 25 yrs., Occ.Household, )
)
Nos.1 to 3 residing at 261/26, )
A, North Kasba Jahagirdar Wada, )
Solapur. )
)
4. Jagadevi Ganpatrao Mulage, )
Age 37 yrs., Occ.Household
5. Vijayalaxmi Ashok Karjol,
)
)
)
Age 39 yrs., Occ.Household, )
)
Nos.4 and 5 residing at Chinchwad )
Station infront of Jayshri Talkies, )
Pune. )..Petitioners.
V/s.
1. Bashir Elahibaksh Tamboli, )
Age 51 yrs. Occ. Business, )
)
2. Mahmadhusen Elahibaksh Tamboli )
since deceased through his legal )
heirs and representatives:- )
)
2A. Mumtaj Mahmadhusen Tamboli )
wife, Adult, Occ.Household. )
)
2B. Irfan Mahmadhusen Tamboli. )
son, Adult, Occ.: Business. )
)
2C. Arif Mahmadhusen Tamboli, )
son, Age 16. Occ.Student, )
)
2D. Sharif Mahmadhusen Tamboli, )
son, Age 11, Occ. Student, )
)
2E. Arifa Mahmadhusen Tamboli, )
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daughter, Adult, Occ.Household. )
)
Nos.2A to 2E residing at 179 )
West Mangalwar Peth, Solapur 413. )..Respondents.
Mr.G.S.Godbole for Petitioners.
Mr.P. M. Mengane for Respondents.
CORAM: A.M.KHANWILKAR,J
DATE : FEBRUARY 13, 2009.
JUDGMENT :
1. This Writ Petition under Article 227 of the
Constitution of India takes exception to the Judgment
and Decree
passed by the District Court of Solapur
dated 28th August, 1992 in Civil Appeal No.224 of
1986 allowing the Appeal preferred by the
Respondents/landlords and decreeing the suit for
possession with direction to the Petitioners to
deliver possession of the suit premises to the
Respondents on or before 31st October, 1992.
2. Briefly stated, the Respondents filed Suit
being Regular Civil Suit No.412 of 1980 in the Court
of Solapur against the predecessor of the Petitioners
Shri Ganpati Andappa Mulage, the original
tenant-defendant for recovery of rent and possession
of the suit property being one shop premises
admeasuring 5′ x 9′ situated in Saraf Bazar in
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Solapur city on the ground of bonafide and reasonable
requirement of the Plaintiffs for their personal use
and occupation. The said suit however, was dismissed
by the Trial Court on the finding that the Plaintiffs
failed to establish that the suit premises were
required by them for their own use and occupation and
that greater hardship would be caused to the
Petitioners/tenants, in the event of decree of
conviction being passed.
3. As
aforesaid, against the said decision, the
Respondents/landlords carried the matter in appeal,
which however, succeeded and decree of possession has
been passed against the Petitioners/tenants in
relation to the suit premises. The Appellate Court
has reversed the finding recorded by the Trial Court
on both the counts for the reasons recorded in the
impugned Judgment.
4. Before I proceed to consider the main issue
involved in the suit for possession, it would be
apposite to deal with the issue which arises on
account of subsequent development during the pendency
of the present writ petition. It is common ground
that on account of riot in the city, the suit
premises were completely gutted due to fire on 11th
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October, 2002. In other words, the suit premises
which were let out to the predecessor of the
Petitioners are no more in existence. In this
context, the preliminary point raised on behalf of
the Respondents is that the right of the
Petitioners/tenants to pursue the present remedy does
not survive and the Petition should be dismissed on
that count alone.
5. To buttress this argument, reliance has been
placed
of Vannattankandy
on the decision of the Apex Court in the case
Ibrayi v/s. Kunhabdulla
Hajee[(2001) 1 Supreme Court Cases 564. My attention
is also invited to the another reported decision of
our High Court in the case of Shivram Ladu Nitardekar
v/s. Alex Fernandes & Ors.[2006(1) Bom.C.R.846] and
unreported decision dated 17th December, 2008 in W.P.
No.376 of 1994. However, according to the
Petitioners/tenants, the fact that the suit premises
have been completely destroyed due to fire does not
extinguish tenancy as the lease of the suit premises-
(which is a shop), was not only lease of the
superstructure but also of the site. In such a case,
the exposition of the Apex Court in the case of
T.Lakshmipathi & ors. v/s. P. Nithyananda Reddy &
ors. reported in [(2003) 5 SCC 150 will have to be
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invoked to hold that the Petitioners’ right to pursue
the present remedy would still survive.
6. Before examining the above argument we shall
advert to the stand of the respective party in the
pleading. The Plaintiffs instituted suit for
recovery of possession of the suit premises on the
assertion that what was let out to the
Defendant/tenant was “a shop premises” admeasuring 5′
x 9′ on monthly tenancy basis. In reply the
Petitioner/tenant
premises along
ig did
with
not
the
claim
site
that
beneath
the
the
shop
shop
premises was also let out to him. Now, it is common
ground that the suit premises is fully destroyed due
to fire on 11th October, 2002. The Plaintiffs had no
role in the said development.
7. Be that as it may, the Petitioners/tenants
moved a formal application before this Court being
Civil Application No.356 of 2005 praying for liberty
to repair/restore the suit premises which was gutted
in fire. That prayer was granted by this Court on
22nd August, 2005. However, admittedly, the
Petitioners have not availed of the said option
sofar. The photograph produced by the Respondents
alongwith affidavit dated 2nd February, 2009 Exh.X
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collectively clearly reveals that whole of the suit
premises is destroyed due to fire. The portion on
which suit premises was standing and the structure
has been razed to the ground, thereby becoming
permanently unfit for the purpose for which it was
let. As aforesaid, it is not the case of the
Petitioners that the landlord was directly or
indirectly responsible for the violence committed by
the mob resulting in fire on 11th October, 2002. It
is also not the case of the Petitioners/tenants that
there
that
was
in such
any express agreement with
eventuality, the tenants
the landlord
would be
entitled to reconstruct and restore the suit premises
and whereupon the tenancy would enure on same terms
or otherwise in respect of the reconstructed
structure.
8. Indeed, the Petitioners have placed reliance
on the decision of the Apex Court in
T.Lakshmipathi(Supra).
T.Lakshmipathi(Supra) In this case, the Apex Court
while considering the provisions of “Transfer of
Property Act” took the view that the tenancy cannot
be said to have been determined by attracting
applicability of the doctrine of frustration,
consequent upon demolishing of the tenanted premises.
Instead, it went on to observe that a lease of a
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house or of a shop is a lease not only of the
superstructure but also of its site. It is observed
that it would be different if not only the structure
but also the land beneath ceases to exist by an act
of nature. It proceeded to hold on that basis that
it is only where the entire tenancy
premises(structure and site) are lost and destroyed
the tenancy would cease to subsist. In paragraph-24,
it is observed thus:
“24.
We are, therefore, of the opinion that
in the event of the tenancy having been
created in respect of a building standing on
the land, it is the building and the landwhich are both components of the
subject-matter of demise and the destruction
of the building alone does not determine the
tenancy when the land which was the site of
the building continues to exist; more so
when the building has been destroyed ordemolished neither by the landlord nor by an
act of nature but solely by the act of thetenant or the person claiming under him.”
I am conscious of the fact that this opinion is
rendered by the Apex Court in a matter where the
decree for eviction was passed under the provisions
of Andhra Pradesh Buildings (Lease, Rent and
Eviction) Control Act, 1960. In other words, the
rights and obligations of the parties were controlled
by the provisions of State Rent Act. Nevertheless,
as rightly argued by the Respondents, the Court has
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proceeded to examine the matter only in the context
of the provisions of the “Transfer of Property Act”
and not in the context of the efficacy of the
provisions of the State Rent Act. That aspect
however, has been dealt with specifically in the
decision of the Apex Court in Vannattankandy Ibrayi’s
case(supra) in the context of provisions of Kerala
Buildings(Lease and Rent Control) Act, 1965. In this
case also, the shop was completely destroyed due to
natural calamity(fire) and it was not pulled down by
the
reduced
landlord.
igHowever, the superstructure
to a vacant land after the said calamity, as
was
in the present case. Even in that case, it was not
the case of the tenant that the shop alongwith the
land beneath the shop was let out to the tenant. In
this decision, in paragraph 20, the Apex Court after
analysing the divergent views expressed by the
different High Courts on the subject authoritatively
held that there can be no doubt that if a building is
governed by the State Rent Act, the tenant cannot
claim benefit of the provisions of Sections 106, 108
and 114 of the Transfer of Property Act. It went on
to observe that due to destruction of the tenanted
premises there is automatic determination of the
tenancy. The Court in the same paragraph, went to
examine the efficacy of section 108(B)(e) and has
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held that it cannot be interpreted to mean that the
tenant is entitled to squat on the open land in the
hope that in future if any shop is constructed on the
site where the old shop existed he would have right
to occupy the newly-constructed premises on the
strength of original contract of tenancy. It has
held that the lease of a shop is the transfer of
property for its enjoyment and on destruction of
shop, the tenancy cannot continue. Inasmuch as, the
tenancy of shop presupposes a property in existence
and there
property is
cannot be subsisting tenancy
not in existence. It has plainly
where the
held
that when the shop is completely destroyed the
tenancy right stands extinguished as the demise must
have a subject-matter and if the same is no longer in
existence, there is an end of tenancy for which
reason Section 108(B)(e) of the Transfer of Property
would have no application in relation to premises
governed by the State Rent Act when it is completely
destroyed by natural calamities. In paragraph-22 the
Court analysed the provisions of the Kerala Rent Act.
Notably, the scheme of that enactment is more or less
comparable to the provisions of the Bombay Rent Act.
In paragraph 23, the Court noted that the provisions
of the State Rent Act clearly show that the State
Rent Act is a self-contained Act and the rights and
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liabilities of the landlord and tenant are determined
by the provisions contained therein and not by the
provisions of the Transfer of Property Act or any
other law. That the rights of a landlord under the
general law are substantially curtailed by the State
Rent Act as the Act is designed to confer benefit on
tenants by providing accommodation and to protect
them from unreasonable eviction. It has found that
the protection given to the tenant in terms of the
provisions in the State Rent Act is only in respect
of the
superstructure
superstructure and upon destruction
the tenants right therein is
of the
also
extinguished. The Court has also added a word of
caution that the situation would be different where a
landlord himself pulls down a building governed by
the State Rent Act. On careful analysis of this
decision, it is noticed that the point in issue has
been directly answered by the Apex Court on the
premiss that if a building is governed by the State
Rent Act, the tenant cannot claim benefit of
provisions of Section 106, 108 and 114 of the
Transfer of Property Act. That is the statement of
law, which is binding on this Court.
9. Counsel for the Petitioners was at pains to
persuade me that in Vannattankandy Ibrayi’s case,
case the
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Apex Court has amongst other overruled the decision
of our High Court in the case of Hind Rubber
Industries (P) Ltd. Vs. Tayebhai Mohammedbhai
Bagasarwalla[AIR 1996 Bom.389];
Bom.389] Whereas, in
T.Lakshmipathi's case which is a decision subsequent
in point of time, the Apex Court has followed the
very same decision of our High Court as can be
discerned from the observations in paragraph-24 of
that Judgment. Significantly, the attention of Apex
Court which was considering T. Lakshmipathi's
case(supra)
Vannattankandy
was not
Ibrayi's
invited
case,
to the
case which was in
opinion
earlier
in
point of time. However, this argument need not
detain us for answering the point in issue. The
question whether the benefit of provisions of
Transfer of Property Act can be extended to premises
governed by the State Rent Act is concerned, that is
directly dealt with in the decision of the Apex Court
in Vannattankandy Ibrayi’s case.
case That is not the
issue addressed in the subsequent decision in T.
Lakkshmipathi's case, which is pressed into service
by the Petitioners. However, the subsequent decision
generally deals with the legal position emerging from
the provisions of the Transfer of Property Act.
Accordingly, I would proceed to answer the issue
applying the principle stated by the Apex Court in
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the case of Vannattankandy Ibrayi and hold that since
the suit premises were governed by the State Rent Act
and since the same are no longer in existence having
been destroyed in fire, tenancy of the Defendant in
the suit premises stood extinguished. For that
reason, the Petitioners are not entitled to pursue
the present remedy. I am conscious of the fact that
by way of interim direction this Court permitted the
Petitioners to repair/restore the suit premises.
However, admittedly, the Petitioners have not availed
of the
interim
said
direction.
arrangement
In any case, that
to be observed by the
was
parties
an
subject to the outcome of the present Writ Petition.
Accordingly, this Writ Petition should fail on the
above reasoning.
10. Assuming that the tenancy of the defendant is
continued even so the question is whether the finding
of fact recorded by the Appellate Court on the issue
of bonafide and reasonable requirement of the
Plaintiffs and on comparative hardship can be said to
be manifestly wrong, perverse and untenable. I shall
now proceed to examine that aspect.
11. In the Suit for possession, the
Respondents/Plaintiffs have averred that the suit
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premises have been purchased by the Plaintiffs so
that it can be used by them for business purpose.
The tenant challenged this claim of the Plaintiffs
being malafide. The parties went for trial. In the
examination-in-chief the Plaintiffs’ witness
Mohamadhusen Plaintiff No.2 deposed that he had
purchased the suit premises for doing business. He
has stated that there are 14 members in his family
and are doing pan business. They had no other source
of income. They were unable to meet the expenses of
their
They
family
from the existing pan
require the suit premises for business.
business only.
He has
stated that all his brothers were unemployed and his
son is also 12 years old. He has given the details
of 14 members in his family consisting of himself,
his wife, brothers, brothers' wife, his three sons
and one daughter, five sons' of his brother and one
daughter. The Trial Court however, proceeded to
non-suit the Plaintiffs essentially on the finding
that the pleadings with regard to the ground of
bonafide and reasonable requirement were not enough.
The Trial Court found that in absence of specific
pleadings no amount of evidence produced by the
Plaintiffs would be of any avail. It has found that
in the plaint the Plaintiffs have merely asserted
that they required the suit premises reasonably and
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bonafide for their business. Such pleadings caused
prejudice to the Defendant as he had no opportunity
to know and meet the case of the Plaintiffs about
their need being bonafide and reasonable. The Trial
Court also non-suited the Plaintiffs on the finding
that from the evidence on record it would appear that
it was mere desire of the Plaintiffs to have the suit
premises and element of necessity was lacking.
Significantly, except this observation, the Trial
Court has not adverted to any part of the evidence
adduced
which
by
the Plaintiffs to support
would support that finding.
their
The later opinion
claim,
of the Trial Court was without due consideration of
all the materials on record and thus manifestly
wrong. Indeed, the finding recorded by the Trial
Court that in the plaint except stating that the
Plaintiffs require the suit premises reasonably and
bonafide for their business no other fact has been
mentioned- will have to be accepted. The question
is: whether the Plaintiffs could have been
non-suited on the ground of lack of pleadings due to
such averment. The Appellate Court has dealt with
that aspect. The Appellate Court instead, found the
pleadings were adequate to proceed especially keeping
in mind the evidence adduced by the Plaintiffs and
admissions of the defendants. On that basis the
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matter was examined by the Appellate Court to hold
that the requirement of the Plaintiffs was bonafide
and reasonable. The Appellate Court has appreciated
the evidence of the Plaintiffs to arrive at the said
conclusion. The Appellate Court has first noted that
the Plaintiffs purchased the suit premises to support
the pan business. Indeed, the specific business is
not mentioned in paragraph-4 of the plaint, but
generally the Plaintiffs have asserted that they
wanted the suit premises to start their business.
Besides,
business
it
has come in evidence that
in which the Plaintiffs’ family was engaged
the only
was of pan business. That fact has been spoken about
by the Plaintiffs’ witness, which has gone
unchallenged. No doubt, the Appellate Court has
proceeded on the premiss that the requirement of the
premises for pan business was specifically mentioned
in paragraph-4 of the plaint. However, some error
here or there in the Judgment of the Appellate Court
cannot be the basis to overturn the entire Judgment
especially when there is enough material to support
the ultimate conclusion, in exercise of writ
jurisdiction under Article 227 of the Constitution of
India. The fact remains that the Plaintiffs had
asserted that the suit premises were purchased by
them so that they can start their own business in
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that premises. The questions whether it is mere
desire of the Plaintiffs without any element of need.
As observed earlier, the Trial Court without
adverting to the evidence proceeded to hold that the
evidence on record reveals that it was a mere desire
of the Plaintiffs and there was no element of
necessity. This view of the Trial court is
overturned by the Appellate Court on analysing the
Plaintiffs’ evidence. The view so taken is not only
a possible view but the only view that ought to be
taken
Court has
on the basis of such evidence.
rightly noted the
The
relevant
Appellate
oral and
documentary evidence to hold that it would go to show
that no shop in the name of Mohamad or his sons was
available to start a pan shop. Further, the
Plaintiffs have asserted and established the fact
that they had purchased the suit premises for running
pan-supari business therein. Indeed, in the
cross-examination the Defendants have suggested that
the existing pan shop in City Survey No.3317. But
the witness has stated that the said premises were
insufficient as both brothers were residing jointly
and running business of pan jointly. The Plaintiffs’
witness has clearly stated that it is not true that
shop opposite to his shop belongs to him. On
analysis of the oral and documentary evidence on
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record, the finding reached by the Appellate Court is
that no other shop was standing in the name of
Mohamad Ilahibaksh Tamboli or his sons where they
could run a pan shop. Sofar as that finding of fact
is concerned, that is unexceptionable. On that
finding it would necessarily follow that the claim of
the Plaintiffs for possession of the suit premises
was not only bonafide but also reasonable having
regard to the size of the family of the Plaintiffs
and their case that they were unable to meet the
expenses
of their family from the present income for
which reason wanted to start the business in the suit
premises, obviously to generate additional income.
The Appellate Court has noted that the premises in
possession of the landlord is admeasuring 5′ x 9′.
Taking overall view of the matter, it is not a case
of manifest error or any perverse view taken by the
Appellate Court.
12. As aforesaid the view taken on analysis of
the evidence and material on record is a possible
view. The argument of the Petitioners that certain
material facts have not been taken into account such
as admission of the Plaintiffs that the Plaintiffs
had CS No.3317 in occupation and doing joint business
with his brother and the premises on the first floor
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over the shop Mutkeri and the shop next to the suit
premises which also admeasured 20ft/15ft. In my
opinion, there is no substance in this grievance.
The Appellate Court has found that the Plaintiffs
have no other shop where Mohamed Ilahibaksh Tamboli
and his sons could start a pan business. The
evidence regarding availability of City Survey
No.3317 makes no difference as the Plaintiffs’ case
is that the said premises were insufficient for their
family business of pan-supari and therefore, required
the
over
suit premises.
the
ig The premises on the first
shop of Mutkeri can be no substitute to
floor
a
pan shop on the ground floor. Having regard to the
nature of business of pan shop, it is inconceivable
that the pan-supari shop on the first floor would
fetch the same business as in the shop if it were to
be on the ground floor. In any case, it is well
established position that neither the Court nor the
tenant can dictate to the landlord as to how he
should tailor his requirement.
13. Taking over all view of the matter, as
aforesaid no interference in exercise of writ
jurisdiction against the finding of fact recorded by
the Appellate Court which is the final fact finding
Court, is warranted in the fact situation of the
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present case.
14. The next question is whether the Plaintiffs
or the Defendants would suffer greater hardship.
Even this aspect of the matter has been answered by
the Appellate Court, keeping in mind the well
established legal position and applying the same to
the fact situation of the present case. In the suit
as filed in paragraph-4(a), the Plaintiffs have
asserted that the Defendants have another premises
where
No.3015.
they
can carry on their business
The Trial Court has answered the said issue
bearing CS
on the finding that the Defendant has no other
premises in his occupation. The fact that the
Defendant has no other premises in his occupation
cannot be the sole basis to answer the issue under
consideration. The tenant has not only to plead but
also to prove that inspite of his best efforts it was
not possible for him to get any other premises in the
same locality. No such case has been made out by the
Defendant. The Trial Court proceeded on the basis
that the Plaintiffs nowhere in the plaint assert that
greater hardship will be caused to them in case of
refusal of the decree. Whereas, the Appellate Court
analysed not only pleadings, but also evidence on
record and instead has taken the view that the
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original tenant Ganpati Mulage, after his death has
left behind Sidharam Ganpati Mulage as his only son
who is residing separately from him. The Appellate
Court has then proceeded to hold that no hardship
will be caused to the legal heirs of the deceased
tenant who was residing separately from him. Even if
the said reason by itself may not be enough, the
question is whether the Defendant has pleaded and
proved the fact that inspite of best efforts he was
unable to find out another premises in the nearby
locality.
Defendant,
In absence of such a case made out by the
question of answering the issue of
comparative hardship in favour of the Defendant does
not arise.
15. Insofar as the opinion recorded by the Trial
Court that there is no averment in the plaint that
the Plaintiffs would suffer greater hardship, is
misreading of the amended plaint. Reading the plaint
as a whole it is obvious that the issue of
comparative hardship ought to be examined in the
context of the finding reached that the Plaintiffs
have no other shop premises in the name of Mohamad
Ilahibaksh Tamboli or his son to start a pan shop.
It would necessarily follow that the comparative
hardship would be caused to the Plaintiffs. The
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Plaintiffs cannot be told to acquire alternative
premises available in the locality. It was for the
tenant to take steps to find out alternative premises
atleast immediately after institution of the suit,
which relates back to year 1980. In the
circumstances, the issue of comparative hardship
though answered by the Appellate Court for different
reasons will have to be upheld.
16. Accordingly, this Petition deserves to be
dismissed being devoid of merits. Hence dismissed.
17. At this stage, Counsel for the Petitioners
submits that the Petitioners may carry the matter in
appeal before the Apex Court, for which reason the
Respondents ought to maintain status quo as of today
with regard to the site on which the suit premises
was standing. Counsel for the Respondents submits
that the Respondents have no intention to immediately
start any construction on the said site.
Nevertheless, the Respondents shall maintain status
quo as of today of the said site, on which the suit
premises were standing for a period of 12 weeks from
today.
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(A.M.KHANWILKAR,J)
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