Baba Kashinath Bhinge Vs. Samast Lingayat Gavali and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/670419
CourtSupreme Court of India
Decided OnSep-30-1993
Judge K. Ramaswamy and; N.P. Singh, JJ.
Reported in1994Supp(3)SCC698
AppellantBaba Kashinath Bhinge
RespondentSamast Lingayat Gavali and ors.
Excerpt:
- order  1. the appellant-tenant had leave of this court against the judgment of the bombay high court in writ petition no. 1064 of 1980 dated june 27, 1983. the respondent-landlord filed an application under section 13(1)(g) of the bombay rents, hotel & lodging house rates control act, 1947 (for short ‘the act’) for ejectment, on the ground that the respondent-landlord requires the premises bona fide for accommodation of pilgrims etc. the trial court dismissed but on appeal the district judge granted decree of eviction. the high court in the writ petition affirmed it. shri tarkunde, for the appellant, pressed for consideration threefold contentions. firstly, that the respondent had not pleaded specific requirement to show its bona fides and the courts below ought to have non-suited the landlord for lack of proper pleading. secondly, he contended that before the decree of eviction was passed in 1980, the respondent-trust had let out in 1979 two shops of the upper portion of the building to new tenants which would show that the need is not bona fide. thirdly, he contended that for over 60 years the appellant has been carrying on the sale of sweetmeats business in the demised premises. if a partial eviction is ordered, no undue hardship would be caused either to the respondent or to the appellant and the courts below have not considered this aspect in proper perspective. we find no force in any of the contentions. it is true that the pleading of the respondents' case is not precise and no specific requirement was pleaded but once the parties properly understood the case of each other, issues were framed and evidence was adduced, technicalities of pleadings recede to the background. admittedly, the respondent is a public trust and its accommodation is meant for pilgrims in pandharpur which is one of the well-known pilgrim centres in maharashtra. therefore, in the nature of the service being rendered to the pilgrims, it is not practicable to plead in specific terms the nature of the need of the respondent-landlord except to say that it is a bona fide requirement for pilgrims. on that ground the respondent cannot be non-suited when he succeeded in two courts.  2. equally it is settled by this court in series of judgments and a reference in this behalf would be sufficient by citing hasmat rai v. raghu nath prasad1 that in a case of bona fide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bona fide and the need subsists. in a case where the need is available at the time of filing the petition, but at the time of granting decree it may not continue to subsist, in that event, the decree for eviction could not be made. similarly pending appeal or revision or writ petition, the need may become more acute. the court should take into account all the subsequent events to mould the relief. the high court may not be justified in omitting to consider this aspect of the matter but that does not render the judgment illegal for the subsequent discussion we are going to make.  3. in this case admittedly pursuant to an application made by the respondent, the learned district judge made personal inspection and has also drawn a plan and report ex. 17 which became part of the record. while considering the matter the learned district judge in paragraph 27 has stated that the need of the respondent is: “the plaintiff has stated that the trust wants to construct an auditorium (sabhamandap) for the purpose of public reading of the old religious books (pothi & puran) and for holding other functions like gokul ashtmi, ramnavami, rampunyatithi who had established the above monastery and gudi padwa festival. the plaintiff has stated that there is regular public reading of the religious books for four months in a year and they serve the meals (known as bhandara) at the time of gokul ashtmi and rampunyatithi. the plaintiff further states that the plaintiff-trust does not want to enhance any rent of any tenant. he states that the rental income of the four tenants on southern side and the defendant 1 is inadequate to meet the expenses of the religious functions and to carry out the objects of the trust. he states that at the time of festivals, many outsiders come to the suit premises and adequate space and facilities are required to be provided to them. even the defendant 1 admits in para 7 of his deposition ex. 67 that out of the two storeyed building of the plaintiff-trust, premises on the first floor has the roof of tin-sheets which is open to leakage in the rainy season, and thus it cannot be used by the pilgrims. he further admits that pilgrims from all communities are allowed to occupy the suit premises without charging any rent. he admits that nowadays, the number of pilgrims has been increasing and even at the time of fairs, big number of pilgrims come to suit monastery. he clearly admits that the present suit property is insufficient to accommodate the pilgrims. thus, the income of the suit property as well as accommodation is not sufficient for the plaintiff-trust to carry out its objects. under such circumstances, if the plaintiff wants the suit premises for construction of a sabhamandap and to carry out permanent construction on the first floor for accommodation of the pilgrims, then it is a compelling necessity which would entitle the plaintiff to get a decree for possession of the suit premises.” this finding conclusively establishes that there is a bona fide need on the part of the landlord-trust for seeking the eviction of the appellant.  4. the next question is whether partial eviction could be ordered on the facts and circumstances of the case. section 13(1)(g) postulates that the premises, notwithstanding anything contained in this act but subject to the provisions of sections 15 and 15(a), the landlord shall be entitled to recover the possession of any premises, if the court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust. “13. (2) no decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only.”  5. a reading thereof would establish that the landlord including the public trust have to satisfy the court that the landlord reasonably and bona fide requires for occupation by himself or any person for whose benefit the premises held is a public charitable trust, it requires the premises for the purpose of the trust. burden is always on the landlord/public trust to prove its bona fides. sub-section (2) gives discretion to the court and directs that no decree for eviction should be passed under clause (g) of sub-section (1), if the court is satisfied that having regard to the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused to the tenant by passing the decree then it may refuse to pass a decree for eviction. in exercising the discretion in the facts and circumstances in a given case, the court is enjoined to consider whether reasonable accommodation is available either to the landlord or to the tenant and in the event that a decree for eviction is passed, who would suffer greater hardship is also to be kept in view. it is one of relative hardship to either landlord or tenant. if hardship is greater to the tenant, the court may decline to pass a decree for eviction. second part of sub-section (2) visualises that where the court is satisfied that no hardship would be caused either to the landlord or to the tenant by passing a decree for partial eviction, then court may pass such a partial decree. here the court is enjoined to consider only relative hardship and if the court is satisfied that no hardship would be caused either to the landlord or the tenant in passing a decree for partial eviction then the court should suitably modulate and pass an appropriate partial decree in that behalf. in this behalf the learned district judge also has pointed out in paragraphs 27 and 28 thus : “i have personally inspected the suit premises and pointed out in the map and report ex. 17 in this appeal that there is not much accommodation for the half of the pilgrims during the days of fairs and festivals which are celebrated as per the object of the plaintiff-trust. i found the first floor with old tin-sheet roof, dilapidated and useless for the purpose of accommodation of pilgrims. even the construction of the sabhamandap is necessary, because the space covered with roof in front of yashoda mandir is too small to accommodate the listeners and readers of the religious books (pothi-puran) in the evening. the open space just in front of the main door is also in a dilapidated condition and is too small for any purpose. 28. on the other hand the well constructed house of defendant 1 is at a distance of only 40 feet from the suit premises and is situated in the same market area. just to the northern side of that premises, there is a main road of pandharpur town known as pandharpur road. in the premises of the defendant 1, one shop was let out to a person running the fair price shop. the defendant 1 admits in para 2 of his deposition ex. 67 that he has let out three khans shop premises to one ligade for running a fair price shop. besides this he admits that there are some more shops, but according to him, the remaining shop premises is of only three khans, which statement does not appear to be true, in view of my inspection notes and map at ex. 17. there are as many as three more shops with front raised platform facing to the same road, to which the suit premises is facing. the defendant 1 can very well run his sweetmeats shop in one of the above shop premises and i find that his own shop premises is suitable in all respects to run the sweetmeats shop.”  6. thus the plan drawn by the district judge and also the report ex. 17 and above findings would clearly establish that the appellant is having three shops at a distance of 40 feet from the demised premises therein. they are on the main road. he had also inducted one of the tenants to sell essential commodities as fair price shop. on the other hand the influx of pilgrims is so acute that the trust needs the shops and the area for their accommodation. thus it would be seen that the appellant is having alternative accommodation. the need to pass partial decree is obviated. the appellant court, therefore, was right in its conclusion that there is no hardship caused to the appellant in passing a decree of eviction. considered from this perspective we find that the decree of eviction is not vitiated by any illegality. therefore, we do not find it a fit case for interference. the appeal is accordingly dismissed. however, three months' time is given to the appellant to vacate the premises subject to his filing an usual undertaking within four weeks from today. no costs. 1 (1981) 3 scc 103 : (1981) 3 scr 605
Judgment:

ORDER

 1. The appellant-tenant had leave of this Court against the judgment of the Bombay High Court in Writ Petition No. 1064 of 1980 dated June 27, 1983. The respondent-landlord filed an application under Section 13(1)(g) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (for short ‘the Act’) for ejectment, on the ground that the respondent-landlord requires the premises bona fide for accommodation of pilgrims etc. The trial court dismissed but on appeal the District Judge granted decree of eviction. The High Court in the writ petition affirmed it. Shri Tarkunde, for the appellant, pressed for consideration threefold contentions. Firstly, that the respondent had not pleaded specific requirement to show its bona fides and the courts below ought to have non-suited the landlord for lack of proper pleading. Secondly, he contended that before the decree of eviction was passed in 1980, the respondent-trust had let out in 1979 two shops of the upper portion of the building to new tenants which would show that the need is not bona fide. Thirdly, he contended that for over 60 years the appellant has been carrying on the sale of sweetmeats business in the demised premises. If a partial eviction is ordered, no undue hardship would be caused either to the respondent or to the appellant and the courts below have not considered this aspect in proper perspective. We find no force in any of the contentions. It is true that the pleading of the respondents' case is not precise and no specific requirement was pleaded but once the parties properly understood the case of each other, issues were framed and evidence was adduced, technicalities of pleadings recede to the background. Admittedly, the respondent is a public trust and its accommodation is meant for pilgrims in Pandharpur which is one of the well-known pilgrim centres in Maharashtra. Therefore, in the nature of the service being rendered to the pilgrims, it is not practicable to plead in specific terms the nature of the need of the respondent-landlord except to say that it is a bona fide requirement for pilgrims. On that ground the respondent cannot be non-suited when he succeeded in two courts.

 2. Equally it is settled by this Court in series of judgments and a reference in this behalf would be sufficient by citing Hasmat Rai v. Raghu Nath Prasad1 that in a case of bona fide requirement, it is always necessary, till the decree of eviction is passed that the landlord should satisfy that the need is bona fide and the need subsists. In a case where the need is available at the time of filing the petition, but at the time of granting decree it may not continue to subsist, in that event, the decree for eviction could not be made. Similarly pending appeal or revision or writ petition, the need may become more acute. The court should take into account all the subsequent events to mould the relief. The High Court may not be justified in omitting to consider this aspect of the matter but that does not render the judgment illegal for the subsequent discussion we are going to make.

 3. In this case admittedly pursuant to an application made by the respondent, the learned District Judge made personal inspection and has also drawn a plan and report Ex. 17 which became part of the record. While considering the matter the learned District Judge in paragraph 27 has stated that the need of the respondent is:

“The plaintiff has stated that the trust wants to construct an auditorium (Sabhamandap) for the purpose of public reading of the old religious books (Pothi & Puran) and for holding other functions like Gokul Ashtmi, Ramnavami, Rampunyatithi who had established the above monastery and Gudi Padwa festival. The plaintiff has stated that there is regular public reading of the religious books for four months in a year and they serve the meals (known as Bhandara) at the time of Gokul Ashtmi and Rampunyatithi. The plaintiff further states that the plaintiff-trust does not want to enhance any rent of any tenant. He states that the rental income of the four tenants on southern side and the defendant 1 is inadequate to meet the expenses of the religious functions and to carry out the objects of the trust. He states that at the time of festivals, many outsiders come to the suit premises and adequate space and facilities are required to be provided to them. Even the defendant 1 admits in para 7 of his deposition Ex. 67 that out of the two storeyed building of the plaintiff-trust, premises on the first floor has the roof of tin-sheets which is open to leakage in the rainy season, and thus it cannot be used by the pilgrims. He further admits that pilgrims from all communities are allowed to occupy the suit premises without charging any rent. He admits that nowadays, the number of pilgrims has been increasing and even at the time of fairs, big number of pilgrims come to suit monastery. He clearly admits that the present suit property is insufficient to accommodate the pilgrims. Thus, the income of the suit property as well as accommodation is not sufficient for the plaintiff-trust to carry out its objects. Under such circumstances, if the plaintiff wants the suit premises for construction of a Sabhamandap and to carry out permanent construction on the first floor for accommodation of the pilgrims, then it is a compelling necessity which would entitle the plaintiff to get a decree for possession of the suit premises.”

This finding conclusively establishes that there is a bona fide need on the part of the landlord-trust for seeking the eviction of the appellant.

 4. The next question is whether partial eviction could be ordered on the facts and circumstances of the case. Section 13(1)(g) postulates that the premises, notwithstanding anything contained in this Act but subject to the provisions of Sections 15 and 15(a), the landlord shall be entitled to recover the possession of any premises, if the court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust.

“13. (2) No decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.

Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.”

 5. A reading thereof would establish that the landlord including the public trust have to satisfy the court that the landlord reasonably and bona fide requires for occupation by himself or any person for whose benefit the premises held is a public charitable trust, it requires the premises for the purpose of the trust. Burden is always on the landlord/public trust to prove its bona fides. Sub-section (2) gives discretion to the court and directs that no decree for eviction should be passed under clause (g) of sub-section (1), if the court is satisfied that having regard to the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused to the tenant by passing the decree then it may refuse to pass a decree for eviction. In exercising the discretion in the facts and circumstances in a given case, the court is enjoined to consider whether reasonable accommodation is available either to the landlord or to the tenant and in the event that a decree for eviction is passed, who would suffer greater hardship is also to be kept in view. It is one of relative hardship to either landlord or tenant. If hardship is greater to the tenant, the court may decline to pass a decree for eviction. Second part of sub-section (2) visualises that where the court is satisfied that no hardship would be caused either to the landlord or to the tenant by passing a decree for partial eviction, then court may pass such a partial decree. Here the court is enjoined to consider only relative hardship and if the court is satisfied that no hardship would be caused either to the landlord or the tenant in passing a decree for partial eviction then the court should suitably modulate and pass an appropriate partial decree in that behalf. In this behalf the learned District Judge also has pointed out in paragraphs 27 and 28 thus :

“I have personally inspected the suit premises and pointed out in the map and report Ex. 17 in this appeal that there is not much accommodation for the half of the pilgrims during the days of fairs and festivals which are celebrated as per the object of the plaintiff-trust. I found the first floor with old tin-sheet roof, dilapidated and useless for the purpose of accommodation of pilgrims. Even the construction of the Sabhamandap is necessary, because the space covered with roof in front of Yashoda Mandir is too small to accommodate the listeners and readers of the religious books (Pothi-Puran) in the evening. The open space just in front of the main door is also in a dilapidated condition and is too small for any purpose.

28. On the other hand the well constructed house of defendant 1 is at a distance of only 40 feet from the suit premises and is situated in the same market area. Just to the northern side of that premises, there is a main road of Pandharpur town known as Pandharpur Road. In the premises of the defendant 1, one shop was let out to a person running the fair price shop. The defendant 1 admits in para 2 of his deposition Ex. 67 that he has let out three khans shop premises to one Ligade for running a fair price shop. Besides this he admits that there are some more shops, but according to him, the remaining shop premises is of only three khans, which statement does not appear to be true, in view of my inspection notes and map at Ex. 17. There are as many as three more shops with front raised platform facing to the same road, to which the suit premises is facing. The defendant 1 can very well run his sweetmeats shop in one of the above shop premises and I find that his own shop premises is suitable in all respects to run the sweetmeats shop.”

 6. Thus the plan drawn by the District Judge and also the report Ex. 17 and above findings would clearly establish that the appellant is having three shops at a distance of 40 feet from the demised premises therein. They are on the main road. He had also inducted one of the tenants to sell essential commodities as fair price shop. On the other hand the influx of pilgrims is so acute that the trust needs the shops and the area for their accommodation. Thus it would be seen that the appellant is having alternative accommodation. The need to pass partial decree is obviated. The appellant court, therefore, was right in its conclusion that there is no hardship caused to the appellant in passing a decree of eviction. Considered from this perspective we find that the decree of eviction is not vitiated by any illegality. Therefore, we do not find it a fit case for interference. The appeal is accordingly dismissed. However, three months' time is given to the appellant to vacate the premises subject to his filing an usual undertaking within four weeks from today. No costs.

1 (1981) 3 SCC 103 : (1981) 3 SCR 605