{"id":170571,"date":"2009-06-23T00:00:00","date_gmt":"2009-06-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/business-vs-smt-rajashree-on-23-june-2009"},"modified":"2019-02-25T06:07:39","modified_gmt":"2019-02-25T00:37:39","slug":"business-vs-smt-rajashree-on-23-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/business-vs-smt-rajashree-on-23-june-2009","title":{"rendered":"Business vs Smt. Rajashree on 23 June, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Business vs Smt. Rajashree on 23 June, 2009<\/div>\n
Bench: R. C. Chavan<\/div>\n
                                                               1\n\n                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                               NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                                                                               \n                                                                                   \n                                  WRIT PETITION  NO.2436 OF 1997.\n\n\n    Shri Ramchandra S\/o. Balkisan Wagh,\n    aged about 45 years, Occupation :\n\n\n\n\n                                                                                  \n    Business, R\/o. Tekdi Road, Sitabuldi,\n    Nagpur. \n\n                                                                                                    .... PETITIONER.\n\n\n\n\n                                                                \n                                                      \/\/ VERSUS \/\/\n                                         \n    1. Smt. Rajashree W\/o. Ramesh Bhoosereddy, \n       aged about 55 years, Occu.: Household,\n       R\/o. C\/o. Dr. Ramesh Bhoosereddy,\n                                        \n       Main Road, Sitabuldi, Nagpur. \n\n    2. The Additinal Collector, \n       Nagpur.\n         \n\n\n    3. The Rent Controller, Nagpur. \n      \n\n\n\n                                                                                                .... RESPONDENTS.\n    --------------------------------------------------------------------------------------------------------------------------\n    Shri N.S.Khubalkar, Advocate for Petitioner.\n    Shri P.V.Vaidya, Advocate for Respondent No. 1. \n    --------------------------------------------------------------------------------------------------------------------------\n\n\n\n\n\n                                        CORAM : R.C.CHAVAN, J.\n                                        Judgment Reserved on             \n                                                                         : 12.06.2009.\n                                                                                      \n                                        Judgment Pronounced on        \n                                                                         :  23.06.2009\n                                                                                      \n\n\n\n\n\n    JUDGMENT :\n<\/pre>\n
         1. This   petition   by   tenant   is   directed   against   orders   passed   by   the   Rent <\/p>\n
              Controller and Additional Collector, holding that the landlady was entitled <\/p>\n
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\n                                               2<\/span>
\n       to issue quit notice to the applicant under Clause 13(3)(vi) of the C.P. & <\/p>\n
       Berar Rent Control Order.\n<\/p>\n
    2. The facts, which are material for deciding this petition, are as under :\n<\/p>\n
        Respondent Rajashree is owner of the premises comprising of a shop block <\/p>\n
       situated at Sitabuldi, Nagpur, occupied by the petitioner on monthly rent <\/p>\n
       of Rs.60\/-.   The respondent sought possession of the said block on the <\/p>\n
       ground that one of her sons was in fourth year of LL.B. and wanted to start <\/p>\n
       his office after completion of his studies.  She had also sought possession <\/p>\n
       on the ground that her daughter Sushma was doing Post Graduation at <\/p>\n
       Medical  College at Nagpur   and  intended to  start  her  clinic  in  the  shop <\/p>\n
       block in the same building which had been vacated by another tenant. This <\/p>\n
       application   was   filed   on   7th  July,   1987.     During   pendency   of   the <\/p>\n
       application landlady’s son, who was reading for LL.B. Degree, completed <\/p>\n
       his studies and was selected in IAS and was posted as Additional District <\/p>\n
       Magistrate   at   Agra.   In   the   meantime   her   daughter   Sushma   also   got <\/p>\n
       married   to   a   doctor   at   Hyderabad.     Her   another   son   passed   Master   of <\/p>\n
       Dental Surgery (MDS) examination.   According to the landlady her son, <\/p>\n
       son-in-law and daughter wanted to start a clinic and a nursing home at the <\/p>\n
       building   where   the   suit   block   was   situated   and   therefore,   wanted <\/p>\n
       possession of the said block.  It was stated that need of landlady’s son-in-\n<\/p>\n
       law and daughter was quite pressing and genuine.\n<\/p>\n
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\n                                                3<\/span><\/p>\n
    3. This application before the Rent Controller was contested by the present <\/p>\n
       petitioner who stated that the entire house in which the petitioner had his <\/p>\n
       shop was vacant for the previous 2-3 years, having about four rooms each <\/p>\n
       on the ground floor and the first floor.   Two rooms on the second floor <\/p>\n
       were also vacant.   It was further stated that the landlady’s family had a <\/p>\n
       house on the same Mahatma Gandhi Road i.e. Main Road, Sitabuldi at <\/p>\n
       Nagpur having wine shop on the ground floor, licence whereof was in the <\/p>\n
       name of landlady’s husband.   It was also pointed out that the landlady’s <\/p>\n
       mother-in-law   owned   a   house   in   New   Colony,   which   was   in   business <\/p>\n
       locality   and   business   of   lodging   house   was   run   therein.     Therefore,   he <\/p>\n
       contested the claim that the landlady bonafide or reasonably require the <\/p>\n
       premises for the needs pleaded by her.\n<\/p>\n
    4. In   support   of   her   claim   the   landlady   examined   her   husband   Ramesh <\/p>\n
       Somrao Burureddy and the petitioner examined himself in support of his <\/p>\n
       case.  After considering the evidence tendered the Rent Controller held in <\/p>\n
       favour of the landlady and granted permission under Clause 13(3)(vi) of <\/p>\n
       the C.P. & Berar Letting of Houses and Rent Control Order to issue quit <\/p>\n
       notice. The appeal by the petitioner before the Additional Collector was <\/p>\n
       rejected and hence, the petitioner-tenant is before this Court.\n<\/p>\n
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\n                                                 4<\/span><\/p>\n
    5. I have heard learned counsel for the petitioner and learned counsel for <\/p>\n
       respondents No.1.\n<\/p>\n
    6. The   learned   counsel   for   the   petitioner   first   submitted   that   the   Rent <\/p>\n
       Controller as well as Additional Collector should have held that there was, <\/p>\n
       in fact no evidence given on behalf of the landlady to prove her bonafide <\/p>\n
       need, since she had not entered the witness box.  The learned counsel for <\/p>\n
       the petitioner relied on judgments of   the Supreme Court in  Vidhyadhar  <\/p>\n
       Vs. Manikrao, reported at AIR 1999 SC 1441 and Janki Vashdeo Bhojwani <\/p>\n
       Vs. Indusind Bank Ltd., reported at AIR 2005 SC 439.  He submitted that <\/p>\n
       in view of the observations in these two judgments, if the plaintiff does not <\/p>\n
       enter the witness box, presumption would arise that the case set-up by him <\/p>\n
       is not correct.  A holder of Power of Attorney cannot depose in place of the <\/p>\n
       plaintiff.  Therefore, according to him, the evidence of landlady’s husband, <\/p>\n
       Ramesh, ought to have been rejected by the Rent Controller as well as the <\/p>\n
       Additional   Collector.     He   pointed   out   that   in   this   case,   even   Power   of <\/p>\n
       Attorney had not been filed on record.\n<\/p>\n
    7. The learned counsel for the respondent landlady submitted that it would <\/p>\n
       not be proper to conclude that unless the landlady herself stepped into the <\/p>\n
       witness box her need could not be proved.  He submitted that the witness <\/p>\n
       examined on behalf of the landlady was her own husband i.e. head of her <\/p>\n
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\n                                               5<\/span>
\n       family and therefore, he too was personally in the know of the needs of the <\/p>\n
       family. Therefore, his evidence was rightly relied on by the Rent Controller <\/p>\n
       as   well   as   the   Additional   Collector.     The   learned   counsel   for   the <\/p>\n
       respondent submitted that a judgment has to be read in the context of <\/p>\n
       facts in the said case.  He pointed out that in Vidhyadhar Vs. Manikrao the <\/p>\n
       suit   was   for   redemption   of   mortgage   by   conditional   sale   or   in   the <\/p>\n
       alternative for decree for specific performance.  This suit was contested by <\/p>\n
       defendant  No.1, who  pleaded  that the  document in his favour  was  not <\/p>\n
       mortgage by conditional sale but was out and out sale.   Defendant No.1 <\/p>\n
       did not enter the witness box.  In this context the Supreme Court observed <\/p>\n
       that when a party to the suit does not appear in to the witness box to state <\/p>\n
       his own case on oath and does not offer himself to be cross-examined, a <\/p>\n
       presumption would arise that the case set up by him is not correct.\n<\/p>\n
    8. In Janki Vs. Indusind Bank a suit had been filed for recovery of loan before <\/p>\n
       the Debts Recovery Tribunal by the Bank.   It was decreed and recovery <\/p>\n
       certificate   was   also   issued,   pursuant   whereto,   the   property   came   to   be <\/p>\n
       attached.  Wives of the borrowers filed a suit feigning ignorance of the fact <\/p>\n
       that the proceedings had been filed by the Bank and the properties had <\/p>\n
       been attached after recovery certificate.   Before the Tribunal, in place of <\/p>\n
       the wife, her husband appeared in the witness box as holder of Power of <\/p>\n
       Attorney.     Thus,   the   party   who   had   knocked   the   doors   of   the   Court <\/p>\n
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\n                                              6<\/span>
\n       abstained from stepping into the witness box.  In the context of these facts <\/p>\n
       it was obvious that it was for the wives to step into the witness box to <\/p>\n
       prove  the  foundation of their suit.   In this  context,  the  Supreme  Court <\/p>\n
       observed  in paragraph  13  that holder  of  Power  of  Attorney  can  act  on <\/p>\n
       behalf of the principal and perform certain acts but this would not include <\/p>\n
       deposing in place of and instead of the principal.\n<\/p>\n
    9. Considering the peculiar facts of the above cases, on which the learned <\/p>\n
       counsel for the petitioner has placed reliance, it has to be held that the <\/p>\n
       learned   counsel   for   the   respondent   is   right   in   submitting   that   these <\/p>\n
       judgments do not lay down any law of universal application that the facts <\/p>\n
       of the case would have to be proved by the party itself stepping into the <\/p>\n
       witness box.\n<\/p>\n
    10. The   learned   counsel   for   the   respondent   landlady   submitted   that   this <\/p>\n
       question had come up before a Division Bench of this Court in  Nathulal  <\/p>\n
       Gangabaks   Khandelwal   vs.     Nandubai   Bansidhak   Khandelwal,<\/a>   in  Special <\/p>\n
       Civil Application No.1669 of 1975, decided on 16.11.1983.  In that case, <\/p>\n
       in place of landlady her son had stepped into the witness box to prove that <\/p>\n
       she   wanted   possession   of   the   tenements   for   personal   occupation.\n<\/p>\n
       Judgment   of   the   learned   single   Judge   of   this   Court   in  Nanalal   Vs. <\/p>\n
       Samratbai, holding in the context of Section 13(1)(g) of the Bombay Rent <\/p>\n
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\n                                               7<\/span>
\n     Act that if the landlord did not step into the witness box, then it could not <\/p>\n
     be said that she reasonably and boanfide requires the premises was cited <\/p>\n
     before   the   Division   Bench.   Section   13(1)(g)   of   the   Bombay   Rent   Act <\/p>\n
     corresponds to Clause 13(3) (vi) of the C.P. & Berar Rent Control Order.\n<\/p>\n
     The Division Bench  observed that it did  not agree  with the proposition <\/p>\n
     which had been adumbrated by the learned single Judge in  Nanalal Vs. <\/p>\n
     Samratbai.  The Bench observed that it may be that certain facts which are <\/p>\n
     needed to establish bonafide requirement are in personal knowledge of the <\/p>\n
     landlord alone.   But if these factors can be established by evidence other <\/p>\n
     than that of landlord, which would sufficiently indicate that the landlady <\/p>\n
     requires the premises bonafide,   it was not clear as to why it would be <\/p>\n
     necessary,  as a  matter   of  law,  that the  landlord  must  examine  himself, <\/p>\n
     with fatal consequence if he omitted to do so. The question, in view of the <\/p>\n
     Division   Bench,   was   whether   the   evidence   with   regard   to   the   bonafide <\/p>\n
     requirement   should   or   should   not   be   accepted   in     a   given   case   in   the <\/p>\n
     absence of evidence of the landlord himself.  I am in respectful agreement <\/p>\n
     with the observations that it cannot be laid down as a proposition of law <\/p>\n
     that   bonafide   need   cannot   be   proved   without   examining   the   landlord <\/p>\n
     himself.  In this case, the evidence of landlady’s husband about the need <\/p>\n
     for her children was as good as evidence which the landlady could herself <\/p>\n
     have given and therefore, her non-examination could not have been fatal <\/p>\n
     to the case.\n<\/p>\n
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\n                                                 8<\/span><\/p>\n
    11. The leaned counsel for the petitioner-tenant next submitted that there was <\/p>\n
       in   fact   no   need   for   the   landlord   to   secure   possession   of   the   premises <\/p>\n
       occupied by the petitioner.   He pointed out that the landlady’s husband <\/p>\n
       had accepted that the son, for whose needs possession of the premises was <\/p>\n
       sought,   had   joined   Indian   Administrative   Services   (IAS)   and   was   away <\/p>\n
       from   Nagpur.     His   another   son   Ajay   had   completed   BDS   in   1989   and <\/p>\n
       wanted to practice by opening a Dental Clinic with modern equipments.\n<\/p>\n
       The learned counsel pointed out that the landlady’s husband admitted that <\/p>\n
       he himself was a Dentist and having a clinic in his own house at Sitabuldi <\/p>\n
       Main Road. Therefore, according to the learned counsel for the petitioner, <\/p>\n
       landlady’s son Ajay could even set up his practice in his father’s clinic.  The <\/p>\n
       learned   counsel   for   the   respondent   countered   by   pointing   out   that   the <\/p>\n
       landlady’s husband had stated that his son did not want to start practice <\/p>\n
       with him as his instruments were old.  It would not be appropriate to force <\/p>\n
       a father and son to share a small dental clinic merely in order to ensure <\/p>\n
       the convenience of a tenant.   It is common knowledge that generational <\/p>\n
       gap   would   make   it   impossible   for   a   modern   dentist   to   practice   with <\/p>\n
       antiquated equipments just as it would be impossible for a dentist of the <\/p>\n
       old school to adapt himself to modern gadgetry.   Therefore, it cannot be <\/p>\n
       said that the need of the premises for setting up another son Ajay in dental <\/p>\n
       practice is fanciful.\n<\/p>\n
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\n                                                  9<\/span><\/p>\n
    12. The learned counsel  for the petitioner submitted that landlady’s husband <\/p>\n
       had   admitted   that   there   are   ample   premises   available   in   the   house   of <\/p>\n
       landlady’s mother-in-law.   However, there is no reason to disbelieve the <\/p>\n
       word of landlady’s husband Ramesh that their terms with his mother are <\/p>\n
       not good.  As for the other rooms available in the same building where the <\/p>\n
       petitioner’s shop is situated, even the petitioner has admitted in his cross-\n<\/p>\n
       examination that the rear portion of the house is in  dilapidated condition <\/p>\n
       and   that   there   is   no   room   in   the   house   in   which   clinic   can   be   started <\/p>\n
       without   making   repairs.   Thus,   the   learned   counsel   for   the   respondent <\/p>\n
       rightly submitted that the premises in possession of the petitioner was the <\/p>\n
       only ones which were readily available to set up landlady’s son in dental <\/p>\n
       practice.\n<\/p>\n
    13. The learned counsel for the petitioner submitted that claim by the landlady <\/p>\n
       that she wanted the premises for setting up her son in dental practice was, <\/p>\n
       in   fact   not   pleaded.   He   pointed   out   that   in   paragraph   2-A   of   the <\/p>\n
       application, which was added by amendment, the need pleaded was in the <\/p>\n
       following words :\n<\/p>\n
           “….   The   applicant   shall   make   the   necessary   additions   and
\n           alterations to the suit house to suit the need of the applicant’s son-
\n           in-law   and   daughter   which   is   quite   pressing   and   genuine.   The
\n           applicant is in urgent need of the premises and the said need is
\n           genuine and bonafide…..”\n<\/p><\/blockquote>\n
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\n                                               10<\/span><\/p>\n
       Therefore, according to him, need of son has to be totally excluded.  This <\/p>\n
       is improper way of reading the pleadings.  It may be seen that in the same <\/p>\n
       paragraph the landlady has specifically set up the need of the premises for <\/p>\n
       starting dental clinic of her son.  Even the sentence which precedes the one <\/p>\n
       quoted distinctly mentions the Clinic, Nursing Home and Maternity Home.\n<\/p>\n
       Nursing Home and Maternity Home were to be started by the landlady’s <\/p>\n
       daughter   and   son-in-law   and   clinic   was   to   be   started   by   her   son.   The <\/p>\n
       sentence which the learned counsel for the petitioner pinpoints,  refers to <\/p>\n
       making additions and alterations to suit the needs of applicant’s son-in-law <\/p>\n
       and daughter.  This obviously refers to the remaining part of the building <\/p>\n
       which is dilapidated, even according to the petitioner.\n<\/p>\n
    14. The learned counsel for the petitioner submitted that need must be actual <\/p>\n
       and pressing need and not mere whim or fanciful desire.  For this purpose, <\/p>\n
       he relied on the judgment of the Supreme Court in Deena Nath Vs. Pooran  <\/p>\n
       Lal, reported at (2001) 5 SCC 705.  The learned counsel for the petitioner <\/p>\n
       submitted that landlady’s daughter and son-in-law are at Hyderabad  and <\/p>\n
       in   normal   circumstances   the   daughter   would   live   at   the   house   of   her <\/p>\n
       husband   and   would   practice   there.     Therefore,   according   to   him,   need <\/p>\n
       pleaded is fanciful.  The learned counsel for the respondent countered by <\/p>\n
       submitting that it would not be appropriate to stick to a stereotype in the <\/p>\n
       present days, when whole population is migrating and changing the family <\/p>\n
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\n                                                11<\/span>
\n       culture.     According   to   him,   if   landlady’s     daughter   and   son-in-law   find <\/p>\n
       practice at Nagpur more lucrative than at Hyderabad,  there is no reason <\/p>\n
       why   they   should   not   have   a   desire   to   set   themselves   up   in   practice   at <\/p>\n
       Nagpur. He relied on a judgment of the Division Bench of Nagpur High <\/p>\n
       Court in  Balbhadra Vs. Premchand, reported at  1953 N.L.J. 233,  where <\/p>\n
       even daughter’s need had been taken into consideration.   In  Kanhaiyalal  <\/p>\n
       Babulal   Srivastava   Vs.   Bapurao   Ganpatrao   Nandanwar,   reported   at <\/p>\n
       1988(3) Bom. C.R. 89 the Division Bench of this Court had considered the <\/p>\n
       need   set   up   by   the   landlord   for   his   married   daughters   because   the <\/p>\n
       daughters   wanted   to   reside   with   the   parents.     There   cannot   be   any <\/p>\n
       stereotype in the matter of ascertaining family needs and in changing time <\/p>\n
       it would not be improper to a Hindu father or mother to accommodate a <\/p>\n
       daughter   and   son-in-law   just   as   he   would   accommodate   a   son   and <\/p>\n
       daughter in law.\n<\/p>\n
    15. The learned counsel for the respondent submitted that in such matters a <\/p>\n
       pragmatic approach is necessary and for this purpose relied on a judgment <\/p>\n
       of   the   Supreme   Court   in  Maganlal   Kishanlal   Godha   Vs.   Nanasaheb  <\/p>\n
       Udhaorao Gadewar, reported at  2008  (11) JT 405  =  2008  (13) Scale <\/p>\n
       636.   In   that   case,   the   Court   had   noted   that   landlord-tenant   litigation <\/p>\n
       prolongs for a long time and it would not be possible to imagine that a <\/p>\n
       person for whose need possession was sought would sit idle throughout <\/p>\n
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\n                                                12<\/span>
\n             the period of litigation.   Considering this it cannot be said that the Rent <\/p>\n
             Controller or the Additional Collector in appeal erred in holding that the <\/p>\n
             landlady was entitled to issue a notice to quit under Clause 13(3)(vi) of <\/p>\n
             the C.P. & Berar Rent Control Order in the proceedings which were started <\/p>\n
             twenty-two years ago.\n<\/p>\n
          16. The petition is, therefore, dismissed.\n<\/p>\n
          17. In the circumstances, there shall be no order as to costs.\n<\/p>\n
                                                              JUDGE<\/p>\n
    RR.\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:42:37 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Business vs Smt. Rajashree on 23 June, 2009 Bench: R. C. Chavan 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO.2436 OF 1997. Shri Ramchandra S\/o. Balkisan Wagh, aged about 45 years, Occupation : Business, R\/o. Tekdi Road, Sitabuldi, Nagpur. …. PETITIONER. \/\/ VERSUS \/\/ 1. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-170571","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nBusiness vs Smt. 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