R.M. Doshit, J.
1. This Revision Application arises from the judgment and order dated 26th December, 1994 passed by the Appellate Bench of Small Causes Court, Ahmedabad in Civil Appeal No. 130 of 1991. The petitioners before this Court are the Appellants-Plaintiffs.
2. The plaintiffs instituted H.R.P Suit No. 920 of 1983 in the Court of Small Causes, Ahmedabad for decree for recovery of possession of the suit premises. The suit premises is a room in a residential house named as 'Sahajanand Bhuvan' situated at Maninagar, Ahmedabad. The plaintiffs claimed recovery of possession of the suit premises on the ground, inter alia, of reasonable and bona fide requirement of the suit premises by the plaintiffs. The plaintiffs claimed that they had a large family of themselves and two grown-up sons; one of them was a married son with a family of his own. The plaintiffs and all their family members were residing in the same building in two rooms; that having regard to the number of members of their family, the plaintiffs required the suit premises reasonably and bona fide for their personal use. It was also alleged that the tenant and his wife alone were residing in the suit premises. All their sons had a separate residence of their own and that the daughter was married and was residing in her matrimonial home.
3. The suit was contested by the defendant by filing written statement [Exh. 11]. It was denied, inter alia, that the plaintiffs did not have place sufficient to accommodate their family members. It was stated that the defendant was residing in just one room and that he had a large family of his own. In the event, decree for eviction were passed, the defendant shall suffer greater hardship. Pending the suit, the defendant died. His widow, the sons and the daughter were substituted as the heirs and legal representatives of the deceased defendant. The learned trial Judge was, under the judgment and order dated 16th September, 1991, pleased to hold that the plaintiffs occupied two rooms in the said building. The plaintiffs were also in possession of three verandahs. The plaintiffs can easily close the said verandahs to convert them into the rooms which can conveniently be used by the plaintiffs and their family members. Thus, the learned trial judge did not believe reasonable and bona fide requirement urged by the plaintiffs. The question of comparative hardship, therefore, would not arise. Nevertheless, the learned trial Judge discussed this question also and held that in the event, the reasonable and bona fide requirement of the suit premises by the plaintiffs were believed, the greater hardship would be suffered by the plaintiffs compared to the hardship that may be suffered by the defendant in the event the decree for eviction were passed. The suit was hence dismissed.
4. Feeling aggrieved, the plaintiffs filed Civil Appeal No. 130 of 1991 before the Appellate Bench, Small Causes Court, Ahmedabad. The Appellate Bench not only confirmed the finding of the learned trial judge with respect to reasonable and bona fide requirement of the suit premises by the plaintiffs but also reversed the finding of the learned trial Judge with respect to the comparative hardship. The Appellate Bench observed that admittedly the widow of the defendant was residing in the suit premises. She was of an advanced age of nearly 70 years. She should not be asked to vacate the suit premises to go and reside with one of her sons. The Appellate Bench, under the impugned judgment and order dated 26th December, 1994 dismissed the appeal. Feeling aggrieved, the plaintiffs have preferred the present Revision Application under section 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 [hereinafter referred to as, 'the Rent Act'].
5. At the outset, Mr. Marshall has stated that he presses this Revision Application on the ground of reasonable and bona fide requirement of the suit premises only. He has submitted that pending this Revision Application, even the widow of the deceased tenant who was residing in the suit premises has died on 9th September, 1995. One of the sons of the plaintiffs has filed affidavit in the present proceedings. It is stated that Jashodaben, widow of the deceased tenant, the respondent No. 1 herein has died on 9th September,1995. He has stated that since the demise of the said Jashodaben, her son Nandkishore, the respondent No. 2 has illegally entered into the suit premises. He has also produced copy of the death certificate of the said Jashodaben.
6. Mr. Marshall has submitted that since the death of the defendant-tenant, his widow Jashodaben was residing alone in the suit premises. During her life time, all her sons had separated and had their own separate residence. On death of the said Jashodaben, the suit premises should revert back to the landlord plaintiffs. Mr. Marshall has also assailed the findings of both the Courts below in respect of the reasonable and bona fide requirement of the suit premises by the plaintiffs. Mr. Marshall has submitted that admittedly, the plaintiffs have a large family with two grown-up sons, one of the sons is married and also has children. The two rooms which are in occupation of the plaintiffs cannot be said to be sufficient to accommodate the entire family of the plaintiffs. He has submitted that while considering the requirement of the landlord of the rented premises, the Court is required to take into consideration not only the need of the landlord alone but of all the members of his family who are naturally residing with him. He has submitted that the Courts below have wrongly assumed that the Verandahs in occupation of the plaintiffs can be closed and converted into rooms for the occupation by the plaintiffs' family. He has submitted that reasonable requirement has to be judged from the number of the family members and their normal ordinary requirements. A landlord cannot be asked either to squeeze into a smaller place or add to the place under his occupation by covering verandahs, as has been done in the present case. He has submitted that from the evidence on record, it cannot be said that the accommodation in occupation of the plaintiffs is sufficient for the plaintiffs and their family. Besides, admittedly, the defendant-tenant was living in the suit premises alone with his wife. Now that both the tenant and his wife have died, the plaintiffs should be held to be entitled to recover the possession of the suit premises. In support of his arguments Mr. Marshall has relied upon the judgments of the Hon'ble Supreme Court in the matter of Thakker Keshavalal Mohanlal v. Parekh Amrutlal Harilal & Ors. [AIR 1973 SC 1099] and of this Court in the matters of Chakubhai Ranchhod & Anr.v. BaiPuspa Kanaiyalal & Ors. [(1973) All India Rent Control Journal p-267]; of Nafisaben W/o. Badrudin Tofafarosh v. John Alias Zenub Abdulkadar Babuji & Ors. [1981 GLR p-674]. Mr. Marshal has also relied upon the judgments of the Hon'ble Supreme Court in the matters of Siddalingamma & Anr. v. Mamtha Shenoy [(2001) 8 SCC 561]; of Joginder Palv. Naval Kishore Behal [2002 (4) SCALE 560] and of Gaya Prasad v. Pradeep Srivastava [2001 (2) SCC 604].
7. To start with, Mr. Nagarkar sought adjournment. He has stated that his clients have taken away the papers from him as they wish to engage another advocate. He, therefore, should be granted time. I am unable to agree with this request. The matter has been posted for hearing for a long time. If at all the respondents wished to engage another advocate, they should have done it long before. Seeking adjournment under the guise of changing advocate at the time when the matter is taken up for hearing is hardly a practice which should be encouraged by the Court. I have, therefore, refused the adjournment.
8. Mr. Nagarkar has contested the Revision Application. He has submitted that both the Courts below have recorded a concurrent finding in favour of the defendant with respect to the reasonable and bona fide requirement of the suit premises by the plaintiffs. The same does not call for interference by this Court in exercise of its revisional jurisdiction.
9. He has also submitted that the building in which one of the sons viz., Nandkishore was residing has collapsed and for one year and a half, the said Nandkishore has been residing in the suit premises. He has submitted that the said Nandkishore had been residing with the widow of the deceased tenant for more than six months prior to her death. The said Nandkishore is thus 'a tenant' within the meaning of section 5(11)(c) of the Rent Act. If at all there is a need, the question of comparative hardship shall have to be re-examined keeping in view the need of the said Nandkishore and his family. In the alternative, he has submitted that admittedly, one Jaikishan, the son of the said Nandkishore had been residing with the deceased tenant and thereafter with his widow Jashodaben. In any view of the matter, the said Jaikishan is the tenant within the meaning of section 5(11)(c) of the Rent Act. If at all the plaintiffs have a right to recover the possession of the suit premises, they should claim the same against the said Jaikishan afresh. Mr. Nagarkar has relied upon the judgment of the Hon'ble Supreme Court in the matter of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis [JT 1994 (3) SC 267].
10. In the matter of Thakker Keshavalal Mohanlal [Supra], in an appeal arising from the suit for eviction on the ground of sub-letting and assignment, the Hon'ble Supreme Court rejected the contention that, 'the suit in regard to the sub-tenent was one against a trespasser, and therefore, the Rent-Act Court had no jurisdiction to entertain it.' The Hon'ble Court held that, 'the joinder of a sub-tenant whose sub-tenancy was invalid cannot alter the nature of the suit and make it any the less a suit between a landlord and tenant or take it out of the scope of the Rent Act.' In the matter of Chakubhai Ranchhod & Anr. [Supra], in a suit for eviction filed against the heirs and legal representatives of the deceased tenant, this Court observed that, '..
Therefore, in substance the petitioners claimed a statutory right conferred upon the persons falling within Section 5(11)(c) of the Act. The plaintiff was denying this right from the beginning. But apart from this right, even if it was vested in the present petitioners, plaintiff wanted possession on the grounds mentioned in Sections 12 and 13 of the Act. To recapitulate these grounds were non-payment of rent, subletting contrary to the provisions of the Act and bona fide and reasonable requirement for personal occupation. In these circumstances, only course left open to the plaintiff was to approach the Rent Court under section 28 of the Act. In order to enable the plaintiff to obtain the relief of possession on the grounds mentioned in Sections 12 and 13 of the Act, it would have been necessary to determine the claim made by the present petitioners as statutory tenants. Therefore, this is clearly a case in which a claim or question arising out of the Act, was required to be answered in order to enable the plaintiff to get a relief of possession on the grounds mentioned in Sections 12 and 13 of the Act.'
11. In a similar question of jurisdiction of the Rent Court, in the matter of Nafisaben w/o. Babrudin Tofafarosh [Supra], it is held that, '...it is only the Court of Small Causes which had the exclusive jurisdiction to decide whether the defendants who were the daughter and other heirs of the deceased were within the definition of 'tenant' as set out in sec. 5(11)(c) of the Act. No other Court had jurisdiction to decide this question under sec. 5(11)(c) of the Act.' In the matter of Siddalingamma & Anr. [Supra], the question was that of reasonable and bona fide requirement of the suit premises by the landlord. While examining the claim of the landlady of reasonable and bona fide requirement, in paragraph 9 of the judgment, the Hon'ble Court has held that, 'the question to be asked by a judge of facts, by placing himself in the place of the landlord, is, whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive the need is bona fide. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against. If the landlord wishes to live with comfort in a house of his own, the law does not command or compel him to squeeze himself and dwell in lesser premises so as to protect the tenant's continued occupation in tenancy premises.' Similar was the issue in the matter of Joginder Pal [Supra]. The Hon'ble Supreme has in paragraph No. 24 held that, 'we are of the opinion that the expression 'for his own use' as occurring in Section 13(3)(a)(iii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or of a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove we have found the pari materia provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as 'his' or 'his own' requirement and user. Keeping in view the social or socio-religious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and/or the landlord. To discharge such obligation, the landlord may require the tenancy premises and such requirement would be the requirement of the landlord. '
12. In the matter of Gaya Prasad [Supra], the Hon'ble Supreme Court was faced with a request of the tenant who had lost in all Courts below that a decree for eviction passed on the ground of reasonable and bona fide requirement of the landlord be reconsidered on the basis of subsequent development that took place during the pendency of the litigation at various levels. The Hon'ble Supreme Court in paragraph 11 of the judgment has observed that, '..We cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of petition. In Ramesh Kumar v. Kesho Ram a two-Judge Bench of this Court [M.N Venkatachaliah, J., as he then was, and N.M Kasliwal, J.] pointed out that the normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations..' The Hon'ble Court in paragraph-13 of the judgment further stated that, '..In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A three-Judge Bench of this Court in Pasupuleti Venkateshwarlu v. Motor and General Traders [3 (1975) 1 SCC 770] which pointed to the need for remoulding the reliefs on the strength of subsequent events affecting the cause of action in the filed of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously.'
13. In the matter of Vasant Pratap Pandit [Supra], the Hon'ble Court was examining whether the right to tenancy under section 5(11)(c) of the Rent Act can be devised by a Will Keeping in view the scope of section 5(11)(c)(ii) of the Rent Act, the Hon'ble Court held that, 'the word 'heir' does not include 'Legatee'. This judgment is not germane to the matter at issue. I do not consider it necessary to consider the same in details.
14. Before I proceed further, let it be recorded that there is no substance in the argument of Mr. Nagarkar that Jaikishan, the son of Nandkishore, the respondent No. 2 had been residing with the deceased defendant and his widow all along. It was not the case of the defendant that he was residing in the suit premises with his wife and the grandson-Jaikishan. Even Nandkishore in his evidence did not state that his son Jaikishan was residing with the deceased defendant. On the contrary, he had stated that he and his family [7 persons] were residing in the suit premises alongwith the deceased tenant and his wife. His statement has been proved to be false. It has been established, inter alia, by Voters' List [Exh. 53]; Ration Card [Exh. 58] that Nandkishore and his family were residing in a property known as Mahadev Bhaiya's Meda. Hence, to say that the said Jaikishan was residing with the deceased at the time of his death or with the widow of the deceased at the time of her death is far from truth. The courts below have also not believed that anybody but the deceased tenant and his wife was residing in the suit premises.
15. The question is whether the reasonable and bona fide requirement of the suit premises urged by the plaintiffs is genuine or not. There is no dispute that at the relevant time there were seven members in the family of the plaintiffs and that they were in occupation of two rooms. The Courts below have reasoned that apart from the two rooms there are verandahs in possession of the plaintiffs. The plaintiffs can easily cover the said Verandahs to convert them into rooms so as to accommodate his family. Whether this approach of the Courts below can be said to be correct or not. As set out by the Hon'ble Supreme Court in the matter of Siddalingamma & Anr. [Supra], the Court is required to examine whether the necessity to occupy the tenanted premises is natural and genuine or whether it is a mere whimsical or fanciful desire. As stated by the Hon'ble Supreme Court in the matter of Joginder Pal [Supra], while considering the landlord's requirement of the suit premises what is to be examined is not the requirement of the landlord alone or himself but the requirement of his family or of a person on whom the landlord is dependent or who is dependant upon the landlord. As noted hereinabove, in the present case, there is no dispute that the landlord-plaintiffs are residing with their sons, one of whom is married and has children also. Thus, the requirement of all the seven members of the family of the landlord has to be kept in view while examining the question. Undoubtedly, the Court below also believed that premises in occupation of the plaintiffs i.e., two rooms would certainly be not sufficient to accommodate the family of the plaintiffs. What the Court below has done is that the landlord should cover the Verandahs in his occupation so as to augment the accommodation in his possession. The approach of the Court below is clearly unsustainable. The Court has not taken into consideration the size of the verandahs and the feasibility whether the same can be covered. Besides, verandahs are included in the residential house to provide free passage of air and light to the occupants of such house. No landlord can be compelled to cover the verandahs so as to obstruct the free passage of air and light with a view to protecting the tenancy rights of the tenant. In my view the plaintiffs have established the reasonable and bona fide requirement of the suit premises. As to the comparative hardship, the trial Court held that it is the plaintiffs who should suffer a greater hardship in the event the decree for eviction were refused. However, the Court below held that the widow of the deceased-tenant was residing in the suit premises alone and she should not be inconvenienced by asking her to go and reside with one of her sons. Now when the widow of the deceased tenant has also died pending this Revision Application, the question of hardship to the said widow also should not arise. The decree for eviction can safely be passed without causing any hardship to the defendant as it is established that the defendant and his widow who were residing in the suit premises have died.
16. There is no substance in the submission of Mr. Nagarkar that Nandkishore, the respondent No. 2 and his family have been residing in the suit premises for last one and half year and that they were residing with the widow of the deceased-tenant at the time of her death. The widow of the deceased tenant has died as far back as on 9th September, 1995. Till date, no affidavit has been made by the said Nandkishore stating that he was residing in the suit premises nor has he filed counter to the affidavit made by the petitioner herein.
17. In the result, the revisional petitioners succeed. The Revision Application is allowed. The impugned judgment and order dated 26th December, 1994 passed by the Appellate Bench, Small Causes Court, Ahmedabad in Civil Appeal No. 130 of 1991 and the judgment and order dated 16th September, 1991 passed by the learned Small Causes Judge in H.R.P Suit No. 920 of 1983 in so far as it has refused the decree for possession are quashed and set-aside. The decree for arrears of rent passed by the learned Small Causes Judge in above H.R.P Suit No. 920 of 1983 stands confirmed. The suit for the recovery of possession of the suit premises is allowed. Rule is made absolute with costs.