{"id":2815,"date":"1999-10-13T00:00:00","date_gmt":"1999-10-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raghunath-g-panhale-dead-by-lrs-vs-chaganlal-sundarji-and-co-on-13-october-1999"},"modified":"2016-11-11T14:16:35","modified_gmt":"2016-11-11T08:46:35","slug":"raghunath-g-panhale-dead-by-lrs-vs-chaganlal-sundarji-and-co-on-13-october-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raghunath-g-panhale-dead-by-lrs-vs-chaganlal-sundarji-and-co-on-13-october-1999","title":{"rendered":"Raghunath G. Panhale (Dead) By Lrs vs Chaganlal Sundarji And Co on 13 October, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Raghunath G. Panhale (Dead) By Lrs vs Chaganlal Sundarji And Co on 13 October, 1999<\/div>\n
Bench: M. Jagannadha Rao, A.P. Misra<\/div>\n
           CASE NO.:\nAppeal (civil)  5925 of 1999\n\nPETITIONER:\nRAGHUNATH G. PANHALE (DEAD) BY LRS.\n\nRESPONDENT:\nCHAGANLAL SUNDARJI AND CO.\n\nDATE OF JUDGMENT: 13\/10\/1999\n\nBENCH:\nM. JAGANNADHA RAO & A.P. MISRA\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1999 Supp(3) SCR 629<\/p>\n
The Judgment of the Court was delivered by<\/p>\n
M. JAGANNADHA RAO, J. Leave granted.\n<\/p>\n
This is an appeal by the landlords for possession of a non- residential
\npremises from the respondent tenant. The suit No. 37 of 1986 was filed
\nbefore the Civil Judge, Junior Division, Panvel by the original landlord
\nfor his own use pleading bonafide and reasonable requirement. The
\nrespondent – tenant resisted the suit contending that the plea of bonafide
\nrequirement was not acceptable. During the pendency of the case in the
\nfirst Court, the original plaintiff died and his heirs, the appellants were
\nbrought on record. They filed an application for amendment under Order 6
\nrule 17 of the Code of Civil Procedure and the same was allowed. The third
\nlegal representative pleaded that the same premises was required for
\nhimself for starting a grocery business. He stated that he was working in
\nMetal box. Co., that there was a lock-out in that company, that he was
\nfinding it difficult to maintain the family and wanted to improve his
\nlivelihood by starling grocery business. On the amended pleadings, both
\nparties led evidence. The trial Court held that on the death of the
\noriginal landlord, the suit abated becuase the original landlord’s
\nrequirement was for himself and his requirement differed from that of his
\nheirs. On merits, the trial Court held that there was no proof of lock-out,
\nno proof of capital available for investment, no proof of preparations for
\nbusiness and that the appellant had no experience in grocery business. The
\nlock out did not put the appellant out of his job permanently. The
\nappellant had not resigned his job. Therefore, the requirement was not
\nbonafide. The suit was dismissed. The lower appellate Court confirmed the
\nfinding on the question on bona fide requirement but reversed the finding
\nas to abatement stating that the plaint was amended, and thereafter parties
\nhad adduced evidence on the question of the need of the legal
\nrepresentatives. The appellate Court gave a finding that the tenant had got
\nthree other shops. The appeal was dismissed. The landlord has come up in
\nappeal.\n<\/p>\n
We have heard elaborate arguments of the learned counsel on both sides.
\nAfter hearing counsel, we are of the view, for reasons given below, that
\nthis is a fit case for interference under Article 136 inasmuch as the
\nCourts were wrong in thinking that the plaintiff must prove not his need
\nbut his `dire or absolute necessity’. The above approach on the facts has
\nappeared to us to be based on irrelevant circumstances.\n<\/p>\n
Now, it is well-settled that this Court under Article 136 will not
\nordinarily interfere with the findings of fact arrived at by the Courts
\nbelow except in rare situations. It was held in Variety Emporium v. V.R.M.
\nMohd. Ibrahim Naina,<\/a> [1985] 1 SCC 251 which arose under a Rent Control
\nstatute, that though this Court would not ordinarily interfere, this Court
\ncould go into the correctness of findings of fact where “the concurrent
\ndecision of two or more courts or tribunals is manifestly unjust”. This
\nburden is no doubt to be discharged by the appellant. “But once that burden
\nis discharged, it is not only the right but the duty of Supreme Court to
\nremedy injustice”. Similarly in Bega Begum and Ors. v. Abdul Ahad Khan and
\nOrs.,<\/a> [1979] 1 SCC 273, which also arose under the Rent Control law, it was
\nagain held that where the “High Court” and the trial Court have made a
\nlegally wrong approach and have committed substantial and patent error of
\nlaw in interpreting the scope and ambit of the words “reasonable
\nrequirement” and “own possession” in the section and “have thus misapplied
\nthe law and overlooked some of the essential features of the evidence, the
\nSupreme Court has to enter into the merits of the case in order to prevent
\ngrave and substantial injustice”.\n<\/p>\n
We shall initially refer to the legal principles applicable to the case.
\nSection 13(l)(g) of the Bombay Rents, Hotel and Lodging House Rates
\n(Control) Act, 1947 uses the word “the premises are reasonably and bona
\nfide required by the landlord for his own occupation etc”. The requirement
\nmust, therefore, be both reasonable and bona fide.\n<\/p>\n
The word `reasonable’, in our view, connotes that the requirement or need
\nis not fanciful or unreasonable. It cannot be a mere desire. The Word
\n`requirement’ coupled with the word reasonable means that it must be
\nsomething more than a mere desire but need not certainly be a compelling or
\nabsolute or dire necessity. Aitken v. Shaw, (1933) S.L.T, 21; Novile v.
\nHordy, 90 L.J. Ch, 158. A reasonable and bona fide requirement is something
\nin between a mere desire or wish on one hand and a compelling or dire or
\nabsolute necessity at the other end. It may be a need in presenti or within
\nreasonable proximity in the future. The use of the word `bonafide’ is an
\nadditional requirement under Section 13(l)(g) and it means that the
\nrequirement must also be honest and not be tainted with any oblique motive.
\nThe above principles have been laid down in various decisions of this Court
\nand we shall refer to a few of them which are relevant to the issue before
\nus. It was stated in Bega Begum & Others v. Abdul Ahad Khan & Others,<\/a>
\n[1979] 1 SCC 273 that the reasonable requirement postulates an element of
\nneed” as opposed to a mere “desire or wish”. It was also pointed out that
\nif it was indeed a case of a reasonable need, the same could not be diluted
\nby characterising it as only a mere desire. It was stated:\n<\/p>\n
“The distinction between desire and need should doubtless be kept in mind
\nbut not so as to make even a genuine need as nothing but a desire”.\n<\/p>\n
It was also held that the language of the provision cannot be unduly
\nstretched or strained as to make it impossible or extremely difficult for
\nthe landlord to get possession. If more limitations are imposed upon the
\nlandlord holding property, it would expose itself to the vice of
\nunconstitutionality. Yudhishtir v. Ashok Kumar, [1987] 1 SCC 204. The
\nconstruction of the relevant statutory provision must strike a just balance
\nbetween the right of the landlord and the right of the tenant. In Bega
\nBegum’s case the landlords adduced evidence to show that they wanted to
\naugment their present income by starting hotel business. This was treated
\nas a genuine need and it was held that it could not be equated with a mere
\ndesire. This Court observed that “the Act does not completely overlook the
\ninterest of the landlord” In Mattulal v. Radhelal, [1974] 2 SCC 365, a like
\nprinciple was laid down stating that the test was not subjective but an
\nobjective one and that the Court was to judge whether the need of the
\nlandlord was reasonable and bona fide. This Court held that the Additional
\nDistrict Judge in that case was wrong in thinking that the landlord who
\nwanted to start iron and steel business, had to produce proof of
\npreparations for starting his new business, such as making arrangements for
\ncapital investment, approaching the Iron and Steel Controller for the
\nrequired permits etc. This court held that the above circumstances were
\n“wholly irrelevant” and observed :\n<\/p>\n
“It is difficult to imagine how the respondent could be expected to make
\npreparations for starting the new business unless there was reasonable
\nprospect of his being able to obtain possession of the Lohia Bazar Shop in
\nthe near future”. This Court took judicial  notice of long delays in Courts
\nand observed :\n<\/p>\n
“It is common but unfortunate failing of our judicial system that a
\nlitigation takes an inordinately long time in reaching final conclusion and
\nthen also it is uncertain as to how it will end and with what result” and
\nthat, therefore,<\/p>\n
“it would be too much to expect from him (landlord) that he should make
\npreparations for starting the new business. Indeed, from a commercial and
\npractical point of view, it would be foolish on his part to make
\narrangements for investment of capital, obtaining of permits and receipt of
\nstocks of iron and steel materials when he would not know whether he would
\nat all be able to gel possession of the Lohia Bazar Shop, and if so, when
\nand after how many years”.\n<\/p>\n
Next comes the decision of this Court in A.K. Veeraraghava Iyengar v. N.V.
\nPrasad, AIR<\/a> (1994) SC 2357. In that case, this Court observed that the need
\nwas bonafide and that the tenant failed to adduce any evidence against the
\n“experience of landlord, his financial capacity and his readiness and
\nwillingness to start jewellery shop”. In Vinay Kumar and Ors. v. District
\nJudge, Ghazipur and Ors., [1995] Suppl. 2 SCC 586, it was contended for the
\ntenant that the son of the landlord whose requirement was pleaded, was in
\ngovernment service and, therefore, he could not have any bona fide need to
\nstart private practice as a doctor. This contention was rejected. In Rena
\nDrego (Mrs.) v. Lalchand Soni and Ors.,<\/a> [1998] 3 SCC 341 it was observed
\nthat in the light of the factual position in that case, “where the
\n(landlady) says that she needs more accommodation for her family, there is
\nno scope for doubting the reasonableness of the requirement” It was held
\nthat the circumstances of the case raised a presumption that the
\nrequirement was bonafide and that “tenant has failed to show that the
\ndemand for eviction was made within any oblique motive”. It was held that
\nin the absence of such evidence by the tenant, the presumption of the bona
\nfide need stood unrebutted. In Sarla Ahuja v. United India Insurance Co.,<\/a>
\n[1998] 8 SCC 119 it was again observed that the Court should not proceed on
\nthe assumption that the requirement of the landlord was not bona fide and
\nthat the tenant could not dictate to the landlord as to how he should
\nadjust himself without getting possession of the tenanted premises. It was
\nstated in Prativa Devi (Smt.) v. T.V. Krishnan, [1996] 5 SCC 353 and in
\nMeenal Eknath Kshirsagar v. Traders and Agencies & Another,<\/a> [1996] 5 SCC
\n344, that the landlord was the best judge of his requirement. In Smt.
\nSheela Chadha and Ors. v. Dr. Accharaj Ram Sehgal, [1990] Suppl. SCC 736,
\nit was held that the landlord had the discretion to determine his need. See
\nalso in this connection the judgment of this Court in Shiv Sarup Gupta v.
\nDr. Mahesh Chand Gupta,<\/a> [1999] 6 SCC 222. In Raj Kumar Khaitan and Ors. v.
\nBibi Zubaida Khatun and Anr.,<\/a> [1997] 11 SCC 411, this Court had even stated
\nthat it was not necessary for the landlord to state in the pleadings, the
\nnature of the business he proposed to start.\n<\/p>\n
In the light of the above principles, we shall now examine the decision of
\nthe courts below. In this case, the plaintiff No. 1\/3 (one of the legal
\nrepresentative of the deceased plaintiff) came forward with the plea that
\nhe was in service of Metal Box Co. and since January 1988, due to lock-out,
\nthe company was closed down and he was not having any source of income and
\ntherefore, he wanted to earn his livelihood by opening a grocery-shop The
\ntrial Court and the first appellate Court observed that it was necessary
\nthat plaintiff should prove that he had lost his job and was unable to
\nmaintain his family. This, according to the said courts, was belied by the
\nfact that in the amendment application and affidavit, the plaintiff No. 1\/3
\ndescribed his occupation as `service’ and that, therefore his evidence was
\nnot acceptable. It was further held that his evidence that he lost his job
\non 15.1.1958 must also be rejected. The envelope containing notice of lock-
\nout from the company and news item in newspaper would not, it was observed,
\nprove the lock out. The notice showed only an intention to lock-out from
\n5.2.1988. It was stated that no documentary evidence, was produced to prove
\nthat the said plaintiff lost his job. The trial Court in fact went into the
\ndefinition of `lock-out’ in the Industrial Disputes Act, 1947 and held that
\nby a lock-out, the plaintiff would not lose his job permanently and that he
\nwould get his wages when the lock-out was lifted. As the plaintiff also
\nadmitted that there was a sign board at his house, with the words `Ganesh
\nWater Supply’, the plaintiff must be deemed to have started some other
\nbusiness. The plaintiff’s evidence that he was maintaining himself by
\ntaking loans from friends was not proved by adducing other evidence. He had
\nnot taken steps to purchase furniture to furnish the proposed grocery shop
\nand never thought of the capital required for the business. On this
\nmaterial, it was held that no case was made out that he was not able lo
\nmaintain his family. Yet another reason was that during his father’s life
\ntime, he, the plaintiff never thought of running a grocery shop. The
\nplaintiff admitted that he did not resign his job. He thus had no intention
\nof permanently running a grocery shop. It was not proved he had knowledge
\nof grocery business. These are the reasons given by the trial court and the
\nfirst appellate court for rejecting the appellant’s case. The High Court
\nrejected the application under Article 227 on the ground that concurrent
\nfindings of fact could not be interfered with.\n<\/p>\n
It will be seen that the trial Court and the appellate Court had clearly
\nerred in law. They practically equated the test of “need or requirement” to
\nbe equivalent to “dire or absolute or compelling necessity”. According to
\nthem, if the plaintiff had not permanently lost his job on account of the
\nlock-out or if he had not resigned his job, he could not be treated as a
\nperson without any means of livelihood, as contended by him and hence not
\nentitled lo an order for possession of the shop. This lest, in our view, is
\nnot the proper test. A landlord need not lose his existing job nor resign
\nit nor reach a level of starvation to contemplate that he must get
\npossession of his premises for establishing a business. The manner in which
\nthe courts have gone into the meaning of “lock-out” in the Industrial
\nDisputes Act, 1947 appears to us to be nothing but a perverse approach to
\nthe problem. One cannot imagine that a landlord who is in service should
\nfirst resign his job and wait for the unknown and uncertain result of a
\nlong drawn litigation. If he resigned his job, he might indeed end up in
\nutter proverty. Joblessness is not a condition precedent for seeking to get
\nback one’s premises. For that matter assuming the landlord was in a job and
\nhad not resigned it or assuming that pending the long drawn litigation he
\nstarted some other temporary water business to sustain himself, that would
\nnot be an indication that the need for establishing a grocery shop was not
\na bona fide or a reasonable requirement or that it was motivated or was a
\nmere design to evict the tenant. It is not necessary for the landlord to
\nadduce evidence that he had money in deposit in a Bank nor produce proof of
\nfunds to prove his readiness and willingness as in a suit for specific
\nperformance of an agreement of sale of immovable property. So far as
\nexperience is concerned, one would not think that a grocery business was
\none which required extraordinary expertise. It is, therefore, clear that
\nthe entire approach of both the Courts was absolutely wrong in law, and
\nperverse on fact. Unfortunately the High Court simply dismissed the writ
\npetition filed under Article 227 stating that the findings were one of
\nfact.\n<\/p>\n
That is why we think that this is an exceptional case calling for
\ninterference under Article 136 of the Constitution of India.\n<\/p>\n
Learned counsel for the respondent, however, raised another point regarding
\nabatement and relied upon Phool Rani and Ors. v. Naubat Rai Ahluwalia,<\/a>
\n[1973] 1 SCC 688 to contend that while the matter was in the Trial Court,
\nthe original plaintiff died, that the cause of action based on his bona
\nfide requirement ceased to exist and the suit could not have been continued
\nby his heirs. This was because the original plaintiff’s requirement would
\nnot be the same as that of his heirs. It is true, the above judgment does
\nsupport the above contention. On the main point, the above decision was
\noverruled in Shantilal Thakordas and Ors. v. C.M. Telwala,<\/a> [1976] 4 SCC 417
\nwhere it was held that if the original plaintiff pleaded that it was his
\nown need and that of family members, the cause of action would survive on
\nhis death, to his heirs. In Shantilal’s case, it was pointed out that if
\nthe landlord claimed possession on the ground of bona fide requirement for
\nhimself and his family members, his family members could continue the same
\neviction case, after the landlord’s death, without amendment since the
\ncause of action would survive to them.\n<\/p>\n
Now, it is true that in Phool Rani there was no amendment application by
\nthe heirs of the deceased landlord while in the case before us, an
\namendment application was filed by the heirs and was allowed, putting in
\nissue, their own requirement. It is also true that in Phool Rani no
\namendment application was filed and allowed, but there are still
\nobservations that, the plaint cannot be amended for putting in issue the
\nrequirement of the heirs inasmuch as the cause of action will be different.\n<\/p>\n
Be t hat as it may, now the question before us is whether when relief for
\neviction was retained in the amendment and the plaint was amended at the
\ninstance of the heirs to put in issue their own requirement and when
\nvoluminous evidence was led on both sides and findings given on merits, the
\nquestion is whether we should at this distance of time hold on basis of
\nPhool Rani that the Amendment was wrongly allowed and drive the heirs to a
\nfresh suit after thirteen years. The eviction case was filed in 1986 and we
\nnote the tenant had full opportunity to meet the case of the heirs as per
\nthe amended pleading. In our view, they suffered no prejudice whatsoever
\nbecause of the amendment. We, therefore, think that in our discre-tion, we
\nshould not drive the heirs to file a fresh suit on the plea that the
\namendment was wrongly allowed. We, therefore, in our discretion under
\nArticle 136, do not permit this point to be raised by the respondent.\n<\/p>\n
In the result, the appeal is allowed and the judgment and decision of all
\nthe three courts are set aside, and eviction is ordered. We, however, grant
\nsix months time for vacation subject to the tenant’s filing usual
\nundertaking within 4 weeks and continuing to pay occupation charges at the
\nsame rate during this period of six months. In case of breach of this order
\nor the undertaking, the execution case can proceed straightway, Appeal is
\nallowed. There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Raghunath G. Panhale (Dead) By Lrs vs Chaganlal Sundarji And Co on 13 October, 1999 Bench: M. Jagannadha Rao, A.P. Misra CASE NO.: Appeal (civil) 5925 of 1999 PETITIONER: RAGHUNATH G. PANHALE (DEAD) BY LRS. RESPONDENT: CHAGANLAL SUNDARJI AND CO. DATE OF JUDGMENT: 13\/10\/1999 BENCH: M. JAGANNADHA RAO & A.P. MISRA […]<\/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":[30],"tags":[],"class_list":["post-2815","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRaghunath G. 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