Oral Judgment:
1. This writ petition at the instance of the tenant takes exception to the decree for eviction passed by the appellate Court in an appeal filed by the landlords under Section 34 of the Maharashtra Rent Control Act, 1999 (for short the said Act).
2. The respondents are owners of House No.54 situated at Itwari, Nagpur. Two shop blocks on the ground floor of aforesaid house were let out to the predecessor of the petitioners in the year 1970. The rent payable was Rs.215/- per month. As the landlords were in need of the tenanted premises for carrying on their business, eviction of the tenant was sought on the ground of bonafide need. According to the landlords who were two brothers, they were carrying on their business in a shop having area of 3 ft. x 9 ft. owned by one Rajendrakumar Parmar. Both the brothers were doing separate business in half portion of said premises. As they wanted to expand their business and as they also desired to settle their sons, on 26-3-2002 notice came to be issued to the tenant for vacating the suit premises. Thereafter the landlords filed Regular Civil Suit No.261/2002 under provisions of Section 16(1) (g) of the said Act.
The claim as made was opposed by the tenant on the ground that the need of the landlords was not bonafide. It was stated that two sons of the plaintiff were employed elsewhere and further the tenant was wholly dependent on the income that was received by doing business in the suit premises. The trial Court by its judgment dated 1-12-2005 held in favour of the landlords and decreed the suit. In appeal preferred by the tenant, the first appellate Court upheld the finding of the trial Court regarding bonafide need of the landlords. It, however, held that greater hardship would be caused to the tenant if he was evicted from the suit premises. It was observed that as the landlords themselves were not in a position to get alternate accommodation, greater hardship would be caused to the tenant.
3. The landlords being aggrieved by aforesaid judgment filed Writ Petition No.4926/2006, while the tenant being aggrieved by the finding recorded by the Court as regards bonafide need of the landlords filed Writ Petition No.3303/2008. Learned Single Judge by judgment dated 10-8-2010 held that the aspect as to whether the need of the landlords would be satisfied by directing partial eviction of the tenant from a portion of the suit premises had not been considered by the first appellate Court. Hence, the proceedings were remanded to the Small Causes Court for recording a finding on the aspect of comparative hardship and as to whether partial eviction of the tenant would satisfy the need of the landlords. After remand, the parties did not lead any further evidence. The trial Court held that the need of the landlords would be satisfied if half portion on the front side could be made available to the landlords for carrying on their business. Hence, by order dated 28-2-2011 the landlords were held entitled for possession of half portion of the suit blocks. The landlords, therefore, challenged the said order before the appellate Court, while the tenant filed cross objections challenging the decree in respect of half portion of the suit premises. By impugned judgment dated 20-12-2013, the appellate Court allowed the appeal and dismissed the cross objections filed by the tenant. A decree for eviction in respect of the entire premises was passed in favour of the landlords.
4. Shri S. P. Bhandarkar, learned Counsel appearing for the petitioners, at the outset, submitted that the question as to whether a judgment passed under Section 34 of the said Act could be challenged by the unsuccessful party by filing revision application under Section 115 of the Code of Civil Procedure or whether the same could be assailed under Article 226 and/or 227 of the Constitution of India had been referred for consideration by learned Single Judge to a larger bench. He, therefore, submitted that in view of the order or reference dated 27-6-2014 passed in Writ Petition No.5552/2013, this Court should await decision of the larger bench and till such period, the hearing of the present writ petition should be deferred. He submitted that the scope of remedy available for challenging an order passed under Section 34 of the said Act had different contours and, therefore, it was necessary to await such adjudication. In support of his submissions, he relied upon the observations made in paras 34 and 35 of the Full Bench decision of this Court in SubhangiTukaram Sawant vs. R. H. Mendonca and others, 2001(3) Mh.L.J., 580.
He then submitted that the appellate Court erred in directing eviction of the tenant from the suit premises. The evidence on record was clear that the greater hardship would be caused to the tenant if he was evicted from the suit premises. The business that was being conducted from the suit premises was the only source of income of the tenant and, therefore, greater hardship would be caused to him if he was evicted from the suit premises. In support of said submissions, the learned Counsel relied upon BadrinarayanChunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 Supreme Court 2713, YogeshDattaram Pathak vs. Shrikrishna Shriram Joshi 2003(3) Mh.L.J., 684 and BismillaBee w/o SK. Chand and another vs. Mohd. Anwar S/o Mohd. Akhtar, 2010(2) Mh.L.J. 829. It was, therefore, submitted that the tenant was not liable to be evicted from the suit premises and therefore, the claim of the landlords was liable to be rejected.
5. Countering aforesaid submissions, Shri R. L. Khapre, the learned Counsel appearing for the landlords submitted that merely because the issue regarding nature of remedy available to a party to challenge an order passed under Section 34 of the said Act was pending, the same would be no reason to defer hearing of the present writ petition. He submitted that the view holding a writ petition to be tenable had not been stayed and hence, the present writ petition could be heard on merits. He then submitted that the proceedings arose out of suit for eviction filed by the landlords in the year 2002 seeking possession on the ground of their bonafide need. The proceedings had once come up to this Court and had been thereafter remanded and the present orders arise after adjudication pursuant to the order of remand. He, therefore, submitted that there was no justification whatsoever to defer hearing of the writ petition nor was there any bar to proceed with its hearing. In this regard, he relied upon Ashok Sadarangani and Anr. v. Union of India and Ors. AIR 2012 Supreme Court 1563, Manager, National Insurance Co. Ltd. v. Saju P. Paul and Anr. AIR 2013 Supreme Court 1064, Harbhajan Singh and Anr. v. State of Punjab and Anr. AIR 2009 SC (Supp) 1977, and AristoPharmaceuticals Pvt. Ltd. v. Innova Cap Tab and Anr. 2014(7) ALL MR 198.
As regards comparative hardship to the landlords, it was submitted that the premises was needed for bonafide need to carry on business by the landlords and also for settling their sons in life. The premises in question were of a small dimension and hence, partial eviction of the tenant would not satisfy the need of the landlords. Considering the fact that the landlords were two brothers having eight sons in all, it was clear that there was need of both the shop blocks and, therefore, the appellate Court was justified in holding in favour of the landlords. He placed reliance upon decision of the Supreme Court in ShamshadAhmad and Ors. V. Tilak Raj Bajaj (D) by L.Rs., and Ors. AIR 2008 SC (Supp) 526 and Mohd. Ayub and Anr. v. Mukesh Chand AIR 2012 SC 881 in that regard. He, therefore, submitted that there was no reason to interfere with the decree for eviction.
6. I have carefully considered aforesaid submissions and I have also gone through the material placed on record. As the learned Counsel for the petitioners had prayed for deferring hearing of the writ petition till the reference was decided by the larger bench, it is necessary to first consider said aspect. By order dated 27-6-2014 in Writ Petition No.5552/2013, the issue regarding nature of remedy available to an aggrieved party has been referred for consideration by a larger bench. The question is whether in the facts of the present case, hearing of the writ petition should be deferred till such adjudication. In Ashok Sadarangani (supra), the Supreme Court in para 19 has observed that pendency of a reference to a larger bench would not mean that all other proceedings involving a similar issue should remain stayed till a decision was rendered in the reference. It was further observed that till the decisions rendered earlier were not modified or altered in any way, they continued to hold the field. Similarly, in Manager, National Insurance Company Ltd. (supra), the Supreme Court held that mere pendency of certain questions before a larger bench would not mean that the particular course that was followed in earlier judgments could not be followed. After noting the peculiar facts of said case arising under provisions of Motor Vehicles Act, 1988 wherein the accident had occurred in the year 1993, the Supreme Court adjudicated the proceedings on merits. Similar course was followed by the Supreme Court in Harbhajansinghand another (supra). In P. Sudhakar Rao Vs. V. Govinda Rao (2013) 8 SCC 693, the Supreme Court in para 55 observed thus:
â55. Be that as it may, the pendency of a similar matter before a larger Bench has not prevented this Court from dealing with the issue on merits. Even on earlier occasions, the pendency of the matter before the larger Bench did not prevent this Court from dealing with the issue on merits. Indeed, a few cases including PawanPratap Singh were decided even after the issue raised in AsisKumar Samanta was referred to a larger Bench. WE, therefore, do not feel constrained or precluded from taking a view in the matter.
Similarly, in State of Maharashtra Vs. Sarva Shramik Sangh, Sangli AIR 2014 SC 61 a prayer for postponing consideration of the proceedings was made due to pendency of reference before a larger bench. The Supreme Court in para 20 observed thus:
â20.............................................................................
.................................................................................
As noted earlier, the reconsideration of the wide interpretation of the concept of âindustryâ in Bangalore Water Supply and Sewerage Board (supra) is pending before a larger bench of this Court. However, as of now we will have to follow the interpretation of law presently holding the field as per the approach taken by this Court in State of Orissa v. Dandasi Sahu (supra), referred to above. The determination of the present pending industrial dispute cannot be kept undecided until the judgment of the larger bench is received.â
In the Full Bench decision relied on behalf of the petitioners in ShubhangiTukaram Sawant (supra), the Full Bench had noted that it was not appropriate for a coordinate Bench to disagree with earlier views without referring the matter for being resolved by a larger Bench.
In para 35, it was observed that it was inappropriate on the part of the Court to decide the matter after being informed of the constitution of a larger Bench.
7. The facts of the present case indicate that the landlords are seeking eviction of the tenant on the ground of bonafide need in proceedings that were initiated in the year 2002. The proceedings had reached this Court in the year 2008 after which they were remanded to the trial Court for considering the aspect of comparative hardship to the parties. At this stage, it would be necessary to refer to the judgment of the Division Bench in PrabhulalChhogalal Mandore vs. Bastiram Himatram Bhutada and another, 1990(1) Bom. C. R. 529. The Division Bench therein was considering the question as to whether proceedings initiated by way of a writ petition under Article 227 of the Constitution of India would fall within the term âproceedingâ as appearing in Section 25 of the Maharashtra Act No.XVIII of 1987. In that context, the Division Bench also considered the issue as regards the remedy available to an aggrieved party against an order passed under Section 29 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947. In para 11 of the judgment, the Division Bench observed as under:
â11.............................................................................
..................................................................................
..................................................................................
It is an admitted position that against the order of District Court in appeal under Section 29 of the Bombay Rent Act, no appeal lies to the High Court. Therefore obviously powers of the High Court under Section 115 of the code of Civil Procedure could be invoked. As held by the Supreme Court in Shankar R. Abhyankar's case, there are two modes of invoking jurisdiction of the High Court. i.e. either under section 115 of the Code of Civil Procedure and/or under Article 227 of the Constitution of India. The law laid down therein has been further clarified by the Supreme Court in A.I.R. 1986 S.C. 1780 (Indian Oil Corporation Ltd. v. State of Bihar), which reads as under:
â11.The doctrine of election referred to by the High Court has no application at all to the present situation and the decision in Shankar Abhyankar v. Krishnaji Dattatraya Bapat. (1970) 1 S.C.R. 322: A.I.R. 1970 S.C. 1 is clearly distinguishable. The question that arose in that case was whether a party who had a choice of resorting to one of two remedies before the same Court namely, the High Court, could successively move the High Court under Section 115 of the Civil Procedure Code and again under Arts. 226 and 227 of the Constitution. The question was answered in the negative for the simple reason that the order passed by High Court under the first proceeding would conclude the matter inter-parties.
In such a situation the party had to exercise his choice and elect which remedy he would resort to in the High Court.â
Therefore, obviously two modes are available for approaching the High Court against the order passed in appeal by the District Court under section 29 of the Bombay Rent Act. A revision under Section 115 of the Code of Civil Procedure is a normal remedy provided by the Code of Civil Procedure itself. A writ petition under Article 227 of the Constitution of India is the second mode available to an aggrieved party.â (Emphasis supplied by me)
After considering the various other decisions holding the field, it was then observed in para 14 as under:
â14.............................................................................
..................................................................................
..................................................................................
The proceedings commenced by a suit for eviction of a tenant do not come to an end on the decision of the appeal or revision filed under the Bombay Rent Act. These decisions are liable to be challenged in the High Court either under Section 115 of the Code of Civil Procedure or under supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, and therefore, if the said proceedings were actually pending, on the date of commencement of the Bombay Rent Act, then it cannot be said that the case has been finally disposed of before the commencement of the
Amending Act.....................................................â
It is to be noted that provisions of Section 29 of the Act of 1947 are similarly worded with provisions of Section 34 of the said Act. From the aforesaid, therefore, it is obvious that the Division Bench in clear terms has held that the order of the appellate Court could be challenged either by preferring a revision application under Section 115 of the Code of Civil Procedure or by filing a writ petition under Article 227 of the Constitution of India. In the light of this decision of the Division Bench which continues to hold the field and in view of the fact that the present proceedings arise out of a claim for eviction on the ground of bonafide need of the landlords instituted in the year 2002, I have proceeded to consider the challenge to the impugned order on merits. Even otherwise, it is to be noted that learned Single Judge in AristoPharmaceuticals Pvt. Ltd. (supra) has observed that pending a reference, prevailing judgments would continue to operate as binding precedent.
8. The issue can be viewed from another angle. Though the issue regarding nature of remedy available to an unsuccessful party to challenge an order passed under Section 34 of the said Act has been referred by learned Single Judge for consideration by a larger Bench, the law as laid down by the Division Bench in PrabhulalChogalal (supra) continues to operate as a binding precedent on this Court. Following the law laid down by the Division Bench that continues to hold the field wherein remedy of preferring a writ petition under Article 227 of the Constitution of India has been recognized, the respective Counsel have been heard on merits.
The observations of the Full Bench in ShubhangiTukaram Sawant would come into play if it were to be held that the writ petition was not tenable and the only remedy available to the petitioners was under Section 115 of the Code of Civil Procedure. As the writ petition is being entertained on merits in view of the observations of the Division Bench in Prabhulal(supra), aforesaid observations of the Full Bench would not be applicable to the facts of the present case.
9. Considering the purpose for which the proceedings were remanded by this Court, the only issue that requires adjudication is in respect of comparative hardship of the respective parties. It is to be noted that the shop block that is occupied by the petitioners consists of two rooms admeasuring 10 ft. x 12 ft. and 12 ft.x 16 ft. While one brother is doing the business of ready-made garments, the other brother is doing the business of bags. Both the brothers were doing their respective business in a tenanted premises admeasuring 3 ft. x 9 ft. The ready-made garment business was being done in an area of 3 ft. x 4½ ft. while the business of bags was being done in an area of 3 ft. x 4½ ft. On the other hand, the tenant was doing his tailoring business in the suit premises. The trial Court held that the landlords could carry on their business by vertically dividing both the shop blocks and by granting half portion to them. This arrangement was not found acceptable by the first appellate Court and it held the landlords entitled for both the shop blocks.
10. It is to be noted that the landlords are two brothers having their respective families. The respective business being conducted by them are separate and independent. If the arrangement as directed by the trial Court is taken into consideration, the landlords would be getting possession of 5 ft. x 12 ft. and 6 ft. 12 ft. in both the shops. Considering the nature of the business proposed to be carried out and the need being in respect of the sons also, it is clear that grant of half portion would clearly result in shortage of space and inconvenience to the landlords. There would be no scope whatsoever for expanding the business from the half portion. The appellate Court has, therefore, rightly found that the decree for partial eviction as passed by the trial Court was not just and proper. It is also to be noted that the finding regarding hardship is a question of fact as held by the Supreme Court in Dr. Ranbir Singh vs. Asharfilal (1995) 6 SCC 580.
11. As regards the decision of the Supreme Court in BadrinarayanBhutada (supra), the proceedings had been remanded for considering the aspect of hardship and in said exercise, the appellate Court has held in favour of the landlords. In para 9 thereof, it was observed by the Supreme Court that the present need for eviction and the fact that the landlords were doing business in a tenanted premises were relevant facts. Similarly, the fact that the tenant could have shifted to other premises was also held to be a relevant fact. The necessary enquiry as contemplated by provisions of Section 16(2) of the said Act has now been conducted by both the Courts and the course as indicated in Bismillah(supra) stands complied with. For very same reasons, the ratio of the decision in YogeshPathak (supra) cannot be made applicable to the facts of the present case. As held by the Supreme Court in ShamshadAhmad (supra), absence of any attempt by the tenant to get alternate accommodation is a factor against the tenant. Similarly, as held in MohamadAyub (supra), length of tenancy by itself is not sufficient to outweigh hardship of the landlord especially when no attempt was made by the tenant to find any other accommodation.
12. Hence, from the aforesaid, it is clear that the finding recorded by the first appellate Court regarding greater hardship being caused to the landlords in case the decree for eviction in respect of entire premises was not passed does not suffer from any jurisdictional error whatsoever. The finding as recorded is a pure finding of fact. There is, therefore, no reason whatsoever to interfere with the impugned judgment passed by the first appellate Court. The writ petition is, therefore, dismissed with no order as to costs.