Hanumant Ganapati Shinde Vs. Vasant Shivram Bartakke and ors. - Court Judgment

Excerpt:
[a] bombay rents, hotel and lodging house rates control act, 1947 - section 13(h) - suit for possession - reasonably and bona fide requirement of the landlord - landlord suffered decree for possession in respect of his business premises - he purchased the suit property for his own business - he could not obtain possession of the suit property due to delay in deciding his suit - he tried to do some business from his residence - that is no ground for holding that his requirement is met and he no longer needs the suit premises for his business - his need cannot be said to be mala fide or unreasonable.;the appellate court overlooked that the petitioner who had suffered the decree for possession in respect of his business premises had purchased the suit property which is in the business locality so that he can carry on his business therein. he was running against the time. he was required to vacate his premises before 31st december, 1987. he has purchased the suit property only in january, 1987 and was not able to obtain possession there of for no fault of his and purely on account of judicial delay in deciding his suit for possession on the ground of bona fide requirement. in such circumstances, he was not expected to sit idle and do nothing. he tried to do some business from his residence. that certainly cannot be a ground for holding that his requirement is met and he no longer needs the suit premises for his business.;the petitioner, who is a businessman and was carrying on business, lost the business premises and therefore, his need for getting possession of a business premises which he owns cannot be said to be mala fide or unreasonable.;[b] bombay rents, hotel and lodging house rates control act, 1947 - section 13(2) - suit for possession - reasonably and bona fide requirement of the landlord - tenant has alternative premises in his possession - landlord dispossessed of his business premises - landlord forced to do the business in his residential house for his survival - hardship caused to the landlord greater than the hardship that would be caused to the tenant.;the respondent had sufficient alternative premises in his own possession, which he could conveniently use for the purpose of his business. thus, the hardship that would be caused to the respondent tenant by passing a decree for possession could easily be mitigated by him by bringing to use the unused portion of his own property, as against this, the petitioner has been dispossessed of his only business premises in a suit filed by his landlord. he is forced to do the business for his survival, in his residential house. hence, the hardship that would be caused to the petitioner landlord would clearly be greater than the hardship that would be caused to the respondent tenant. - - the trial court decreed the suit on the ground of bona fide requirement, subletting as well as erection of a permanent structure. sitaram had not sold his share in the property and therefore, petitioner at best could be said to have only half share in the suit property. 6) it is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. the phrase used is not 'exclusive residential area' or 'residential area' simplicitor' meaning thereby that the area in which the respondent tenant had his own house property was the mixed area, residential as well as business. thus, 9 khan of premises was clearly available for business to the respondent no. hence, the hardship that would be caused to the petitioner landlord would clearly be greater than the hardship that would be caused to the respondent tenant.d.g. karnik, j.1. by this petition, the petitioner challenges the judgment and order passed by the additional district judge, satara in regular civil appeal no. 165 of 1989 reversing the judgment passed by the learned civil judge, jr. division in regular civil suit no. 469 of 1987.2. the petitioner is a landlord and claims to be the full owner of northern half part of the property bearing city survey no. 198, bhavani peth, satara. the total property originally belonged to gangadhar phadke and was inherited by his two sons anant and sitaram. anant phadke died in 1998 and sitaram phadke died in the year 1978. gangadhar also owned some other properties including 82, venkatpura. by a sale deed dated 8th january, 1987, anant phadke acting through his power of attorney and daughter chitra phadke @ suhaslni deshpande sold northern half share in the property 198, bhavani peth to the petitioner. the northern half share in the said property was sold on the basis that there was a partition between anant and sitaram and northern half part of the property was allotted to the share of anant. there is however, some dispute as to whether there was a partition between anant and sitaram and son of sitaram who was examined as d. w. no. 3 denied that there was a partition. it is however, not necessary to dwell further on the issue of the partition because even assuming that there was no partition there is no dispute between the parties that anant had a half share in the entire property and he had sold his share through power of attorney to the petitioner. thus, assuming that there was no partition, the petitioner would atleast be a co-owner to the extent of half share in the northern part of the property. being a co-owner, he was entitled to file a suit for possession.3. the father of the respondent nos. 1 to 3 i.e. shivram bartakke was a tenant occupying one shop admeasuring about 7.5 sq.m situated on the northern side of the ground floor of house no. 198, bhavani peth which shop is hereinafter referred to as the 'suit shop'. respondent no. 4 is the son of respondent no. 2 and is alleged to be a sub-tenant. the petitioner after having purchased the property on 8th january, 1987 filed a suit for possession against the respondents on 7th september, 1987 in the court of civil judge, jr. division, satara on the ground of bona fide requirement, subletting, erection of a permanent construction and non-user. the trial court decreed the suit on the ground of bona fide requirement, subletting as well as erection of a permanent structure. the first appellate court reversed the judgment on all the counts and dismissed the suit. the judgment of the appellate court is impugned in this writ petition.4. shri anturkar does not press the ground of non-user. shri anturkar learned counsel for the petitioner, however, contends that the suit premises have been illegally and unlawfully sublet by the respondent no. 1 to the respondent no. 4. there is no appropriate pleading regarding the subletting. it is stated in the plaint that the father of the respondent nos. 1 to 3 was the original tenant and after his death, respondent no. 1 was carrying out business in the name and style of 'laxmi cloth stores' in the suit premises. it is further stated that respondent nos. 2 to 4 are joined as parties to the suit to prevent any obstruction to a decree that may be passed possession for recovery of the possession. there is not even a whisper in the plaint that respondent no. 1 parted with the possession to respondent no. 4 nor is it alleged that respondent no. 4 was paying any rent to the respondent no. 1, in the absence of proper pleading regarding subletting it cannot be held that the respondent no. 4 is an illegal sub-tenant.5. as regards permanent construction and damage, it is alleged in the plaint that on or about 3rd april, 1987, despite the objection by the petitioner, the respondent no. 1 removed part of the eastern side wall to the extent of 9' and thereby caused damage to the suit property. no evidence was adduced regarding the removal of the wall of 9'. the finding recorded by the trial court is that the respondent no. 1 has made cupboards and had fixed them permanently in the eastern side wall and therefore, there was a permanent construction. thus pleading and the finding of the trial court are at variance. the first appellate court has therefore, rightly reversed the finding regarding permanent alterations.6. so far as bona fide requirement is concerned, the petitioner pleaded that he was a tenant occupying 201, bhavani peth, satara wherein he was running a business of making button holes for garments. the landlord of that premises had filed a suit bearing regular civil suit no. 100 of 1976 against the petitioner for possession which was decreed in april, 1982. civil appeal no. 176/82 filed by the petitioner was dismissed. writ petition no. 714 of 1985 filed by the petitioner challenging the decree of eviction passed against him was also dismissed but this court had granted him time to vacate his rented premises till 31st december, 1987. as the petitioner was required to vacate his rented business premises he purchased suit property which is situated in a business locality by a sale deed dated 8th january, 1987 from anant phadke as mentioned earlier, and filed the present suit for eviction the respondents on 7th september, 1987. the trial court upheld the contention of the petitioner that he required the suit premises reasonably and bona fide for the purpose of his own business of making button holes for the garments. the first appellate court appears to have reversed that finding on two grounds. firstly it was held that the plaintiff was not the sole owner of the suit property. the petitioner had not proved that there was a partition between anant his vendor and his brother sitaram. sitaram had not sold his share in the property and therefore, petitioner at best could be said to have only half share in the suit property. therefore, it was held that the suit was not maintainable as petitioner was only co-owner of the property, there being no partition between anant and sitaram. in india umbrella manufacturing co. v. bhagabandei agarwalla reported in : air2004sc1321 , the apex court observed : (at paragraph no. 6)'it is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (see ram pasricha v. jagannath reported in : [1977]1scr395 and dhannalal v. kalawatibai reported in : [2002]supp1scr19 . 'therefore, the finding of the first appellate court that the suit was not maintainable as the petitioner was only co-owner of the property there being no partition, is required to be set aside.7. secondly, the appellate court held that after the suit for possession by his landlord was decreed, the petitioner had shifted his machine to his residential house and therefore, his requirement was not reasonably and bona fide. the first appellate court also noted that in the suit by the petitioner landlord, it was held that the petitioner's business of making button holes to the garments had no goodwill. the first appellate court also held that the suit premises were very small consisting of about 1 khand as against the petitioner residential house consisted of 11 khands and therefore, he could easily accommodate his business of making of button holes to the garments in his residential house as the business had no goodwill. the appellate court overlooked that the petitioner who had suffered the decree for possession in respect of his business premises had purchased the suit property which is in the business locality so that he can carry on his business therein. he was running against the time. he was required to vacate his premises before 31st december, 1987. he has purchased the suit property only in january, 1987 and was not able to obtain possession thereof for no fault of his and purely on account of judicial delay in deciding his suit for possession on the ground of bona fide requirement. in such circumstances, he was not expected to sit idle and do nothing. he tried to do some business from his residence. that certainly cannot be a ground for holding that his requirement is met and he no longer needs the suit premises for his business.8. the finding rendered in the judgment in civil appeal no. 176 of 1982 arising out of the suit filed by the petitioner's landlord against him that petitioner's business had no goodwill is not per se relevant. section 43 of the evidence act lays down that judgments, orders or decrees others those mentioned in sections 40, 41 and 42 are irrelevant unless the existence of such judgment order or decree is a fact in issue or is relevant under some other provision of the evidence act. the judgment in civil appeal no. 176 of 1982 is not shown to fall under sections 40, 41 or 42 of the evidence act and hence, the said judgment and the finding therein that petitioner's business of making button holes to the garments had no goodwill is not admissible in evidence. no independent evidence was adduced by the respondents to show that the petitioner's business of making of button holes to the garments using button hole machines had no goodwill. customers of a business for making of a button holes of the garments are usually tailors and manufacturers of readymade garments. they would prefer to go to a buttonhole maker having a regular shop and not to a person carrying on business in a far away residential locality. in the absence of any positive evidence it cannot be said that the petitioner's business had no goodwill on the basis of a finding rendered in an unrelated proceedings especially when the judgment in that proceedings is not relevant under section 43 of the evidence act. the petitioner, who is a businessman and was carrying on business, lost the business premises and therefore, his need for getting possession of a business premises which he owns cannot be said to be mala fide or unreasonable. the finding of the first appellate court is based upon inadmissible evidence and that the petitioner's business had no goodwill and is therefore, vitiated.9. the first appellate court held that the hardship caused to the respondent tenant by passing a decree for eviction would be greater than the hardship that would be caused to the petitioner landlord by refusing to pass a decree for possession on two grounds. firstly, the appellate court has relied upon the finding given in civil appeal no. 176 of 1982 to the effect that petitioner's business of making of button holes to the garments had no goodwill. as stated earlier, the said judgment is not relevant under section 43 of the evidence act. there was no independent evidence that the petitioners business of making of button holes had no goodwill. secondly, the appellate court held that though the respondent defendant owned another house bearing no. 339, somwar peth, it was situated 'in predominantly residential area' and hence the respondent tenant could not use it for business. i have borrowed the phrase 'in predominantly residential area' as used by the first appellate court. the phrase used is not 'exclusive residential area' or 'residential area' 'simplicitor' meaning thereby that the area in which the respondent tenant had his own house property was the mixed area, residential as well as business. there was nothing on record to show that the house no. 339, somwar peth owned by the respondent was in exclusive residential area. on the other hand, the admissible evidence showing the location of the house of the respondent was ignored by the first appellate court. in his deposition, the respondent tenant has stated that his house no. 339, somwar peth is at a distance of 1000 feet from the suit premises i.e. less than l/3rd of a kilometer from the suit premises. he did not state the limits of the business area and the residential area. this aspect was completely overlooked by the appellate court. the respondent further admitted that his house no. 339, somwar peth consisted of 27 khan out of which only 18 khan were in use and 9 khan premises were used for dumping articles not in use. thus, 9 khan of premises was clearly available for business to the respondent no. 1 as against the suit premises which are only 1 khan. the respondent therefore, had sufficient alternative premises in his own possession, which he could conveniently use for the purpose of his business. thus, the hardship that would be caused to the respondent tenant by passing a decree for possession could easily be mitigated by him by bringing to use the unused portion of his own property. as against this, the petitioner has been dispossessed of his only business premises in a suit filed by his landlord. he is forced to do the business for his survival, in his residential house. hence, the hardship that would be caused to the petitioner landlord would clearly be greater than the hardship that would be caused to the respondent tenant. the findings of the appellate court is vitiated by reason of its taking into consideration the evidence that was not admissible in evidence and ignoring the admissible evidence and therefore, required to be set aside.10. taking an overall view, if time of six months is granted to the respondent he would be able to make alternative arrangements and no hardship would be caused to him.11. for these reasons, the petition is allowed. rule is made absolute. decree for possession passed by the trial court is restored. the respondent tenant is granted six months time to vacate the suit premises on his furnishing an undertaking to this court on usual terms within a period of four weeks.