Dismissed

Waibhaw Nilkanth Gokhale and Another v. Sharad Sadashiv Risbud and Others

Bombay HC3 Feb 2014CAC/37/2014

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a revision application challenging eviction decrees under the Maharashtra Rent Control Act. The court held the lower courts correctly found bona fide requirements and no comparative hardship, and clarified that Small Causes Courts retain jurisdiction over suits against statutory tenants/heirs.

What did the court decide?

Civil Revision Application 115/2014 dismissed with a 12-week stay on eviction decree conditional upon filing of specific undertakings by applicants.

Waibhaw Nilkanth Gokhale and Another Vs Sharad… — Civil Procedure and Limitation | Bombay HC (2014)

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(1) (5) CRA 115/14 (2)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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Amk

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CIVIL REVISION APPLICATION NO. 115 OF 2014 WITH

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CIVIL APPLICATION NO. 37 OF 2014

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Waibhaw Nilkanth Gokhale & Anr. Vs.

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Sharad Sadashiv Risbud & Anr.

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.. Applicants .. Respondents

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Mr. S. D. Mulye for the Applicants. Respondent No.2 present in person.

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CORAM : MR. R. G. KETKAR, J. DATE : 3 rd FEBRUARY, 2014.

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P.C.

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Heard Mr. S. D. Mulye, learned Counsel for the applicants and respondent No.2 in person at length.

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By this application under Section 115 of the Code of Civil Procedure, 1908 (C. P. C.) original defendant Nos.2 & 3 have challenged the judgment and decree dated 12.01.2012 passed by the learned Additional Small Cause Judge, Small Causes Court, Pune in Civil Suit No. 343 of 2007 as also the judgment and decree dated 24.09.2013 passed by the learned District Judge-8, Pune in Civil Appeal No. 126 of 2012. By these orders the Courts below decreed the suit instituted by the respondents for recovery of possession of residential premises admeasuring 66 sq. mtrs. (708 sq. ft.) built up area consisting of one bedroom, one hall, one kitchen, one bathroom, one toilet in an outhouse situate at the

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(2) (5) CRA 115/14 (2)

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northern side of “Suyash” bungalow at 882/A, Bhandarkar Road, Lane No.8, Pune-411 004 (for short “suit premises”) on the ground of bonafide requirement as contemplated under Section 16(1)(g) of the Maharashtra Rent Control Act, 1999 (for short “the Act”).

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In support of this application Mr. Mulye invited my attention to (i) issues framed by the learned trial Judge and in particular issue Nos.2 & 6, (ii) findings recorded by the learned trial Judge from para Nos. 23 to 25 dealing with the ground under Section 16(1)(g) and on the question of comparative hardship. He submitted that the respondents/plaintiffs are in possession of 7 rooms in Suyash bungalow comprising of ground+1^st floor. The plaintiffs are in possession of 3 rooms on the ground floor and 4 rooms on the first floor. As against this the applicants (defendant Nos.2 & 3) are in possession of premises admeasuring 708 sq. ft. situated in an outhouse. Mr. Mulye submitted that having regard to the need pleaded by the plaintiffs as also having regard to the area of Suyash bungalow in their possession, their need is neither reasonable nor bonafide. He submitted that the plaintiffs have claimed possession on the ground that they required the suit premises for residential purpose as also to establish professional office. Having regard to the area of Suyash bungalow in their possession as also the fact that the plaintiffs have flat in Erandwane, their need is neither reasonable nor bonafide. As against this defendant Nos.2 & 3 are residing in the suit premises for several years and if at this stage eviction

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(3) (5) CRA 115/14 (2)

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decree is passed against them, it would cause tremendous hardship to them. Defendant Nos.2 & 3 are issueless and all their acquaintances are residing in Pune. Having regard to the medical facilities available in Pune as also having regard to the fact that defendants are in possession of the suit premises for several years, the Courts below committed error in decreeing the suit under Section 16 (1) (g) of the Act as also while answering the question of comparative hardship in their favour. Mr. Mulye further submitted that the plaintiffs have claimed possession also on the ground that their mother requires one room and one room on the ground for the day and night nurse. The kitchen is also necessary for preparing special meals during odd hours during day and night for their mother. However during the pendency of the suit, the plaintiffs' mother unfortunately expired. He, therefore, submitted that so far as the need of the mother is concerned, the said need no longer subsists.

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Mr. Mulye further invited my attention to para 29 of the plainit and submitted that the plaintiffs asserted that defendant Nos.2 & 3 are residing at the suit premises exclusively and have paid monetary compensation to defendant No.1 for their stay. There is no landlord and tenant relationship between the plaintiffs and defendant Nos.2 & 3. He, therefore, submitted that since the plaintiffs themselves asserted that there is no relationship of landlord and tenant between them and defendant Nos.2 & 3 even otherwise the Small Causes Court will have no jurisdiction

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(4) (5) CRA 115/14 (2)

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to entertain and try the suit. He invited my attention to para 9 of the written statement wherein defendant Nos.2 & 3 contended that defendant Nos.2 & 3 are family members of defendant No.1 and consequently the question of subletting does not arise. During the pendency of the suit defendant No.1 expired on 21.07.2007. Defendant Nos.2 & 3 were residing in the suit premises at the time of her death and, therefore, defendant No.2 became tenant of the plaintiff under the provisions of the Act. Since defendant Nos.2 & 3 are the heirs and legal representatives of defendant No.1, they became tenant of the plaintiffs after the death of defendant No.1. While replying assertion made in para 29 denying that they are residing in the suit premises exclusively and are paying monetary compensation for defendant No.1 for such stay, defendant Nos.2 & 3 categorically denied defendant No.1 has unlawfully sublet the premises to them. They contended that defendant Nos.2 & 3 are residing with defendant No.1 being the family members of defendant No.1. He, therefore, submitted that the application requires consideration.

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On the other hand respondent No.2 supported the impugned orders. He invited my attention to para 24 & 25 of the plaint. He submitted that on the ground floor there are 4 rooms and on the first floor there are 4 rooms. Out of the 4 rooms on the ground floor, one room is in possession of other tenant “Prestige”. He submitted that the accommodation available on the first floor is for residential use of both the

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(5) (5) CRA 115/14 (2)

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plaintiffs and their family as also for their professional use as also for the use of their married daughters. The first floor consists only of two bedrooms, a kitchen and a living room. The first floor is so designed that being a compact and homogeneous unit, only one family can stay therein conveniently. Since the suit premises is in possession of defendant Nos.2 & 3, that has compelled two families to stay together which is causing inconvenience to them. Even in case the entire ground floor becomes available for use of the plaintiffs, still it would be inadequate and insufficient to meet their residential, professional and family requirements.

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Respondent No.2 also invited my attention to para 13 of the District Court's judgment and submitted that the learned District Judge recorded that defendant Nos.2 & 3 did not establish that plaintiffs have claimed possession of the suit premises on the ground of bonafide requirements with any oblique intention. In para 9 it was observed that the substantial statements made in the examination-in-chief about the requirements had gone unchallenged by not asking questions in the crossexamination. The learned District Judge observed that the testimony of the witness examined by the plaintiffs had gone unchallenged and, therefore, it is deemed to be admitted. He also invited my attention to para 11 of the Appellate Court's judgment and submitted that after the death of their mother, defendants ought to have amended the written statement and brought subsequent development on record. Since no such step was taken,

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(6) (5) CRA 115/14 (2)

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the Court cannot take into account the subsequent development. In support of this proposition he relied upon the judgments of the Apex Court in the case of Om Prakash Gupta Vs. Ranbir B. Goyal AIR 2002 SC 665 and of this Court in R. E. Fanibunda Vs. Nicholas of India Ltd. & Ors. 2004 (Supp.) Bom. C.R. 255 and in particular para 15 thereof. He therefore submitted no case is made out for invocation of the order under Section 115 of the C.P.C.

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I have considered the rival submissions. I have also perused the material on record. As noted earlier the plaintiffs have instituted the suit against the defendants for recovery of possession of the suit premises on the grounds of (i) default as contemplated under Section 15, (ii) non user of the suit premises for the continuous period of 6 months prior to filing of the suit (iii) Unlawfully subletting as contemplated under Section 16 (1) (e) and lastly (iv) bonafide requirement as contemplated under Section 16(1)(g). It is the case of the plaintiffs that defendant No.1 Smt. Leelatai Nilkanth Gokhale was a tenant of the suit premises. Defendant Nos.2 & 4 are her sons and defendant No.5 is her daughter. Defendant No.3 is wife of defendant No.2. The plaintiffs instituted the suit alleging unlawfully subletting of the suit premises by defendant No.1 in favour of defendant Nos.2 & 3 on the ground that they are in exclusive possession of the suit premises and are paying monetary compensation to defendant No.1. The Courts below decreed the suit only under Section 16(1)(g) of

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(7) (5) CRA 115/14 (2) the Act. On the question of comparative hardship, the Courts below also held that greater hardship will be caused to the plaintiffs in case the eviction decree is not passed.

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It is the case of the plaintiffs that plaintiff No.1 is Civil Engineer and plaintiff No.2 is a practicing Advocate. They have pleaded their requirements in paras 24 & 25 of the plaint. I have already indicated the assertions made in that behalf. In particular perusal of para 25 of the plaint shows that the plaintiffs have claimed possession on the ground of bonafide requirement for residential, professional and family arrangement. Having regard to the assertions made in para 25 as also the fact that the substantial part of the evidence of plaintiffs' witness has gone unchallenged, I am of the opinion that the Courts below rightly came to conclusion that the plaintiffs have established their requirement. Even accepting the case of defendant Nos. 2 & 3 that in view of death of plaintiffs' mother, the need pleaded in para 24 does not subsist, having regard to the need pleaded in para 25 as also evidence adduced by them, I am satisfied that the Courts below rightly came to conclusion that they have established their bonafide requirement. The learned District Judge has considered this aspect in paras 9, 11 & 13. These findings recorded by the Courts below are based upon an appreciation of evidence on record.

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So far as the question of comparative hardship is concerned, the Courts below noted that defendant Nos. 2 & 3 are having bunglow at

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(8) (5) CRA 115/14 (2)

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Nashik. The learned District Judge in particular also considered the consumption of electricity in the suit premises and also found that though defendant Nos.2 & 3 are having bank account at Pune, they are operating the same from Nashik. As defendant Nos.2 & 3 have bungalow at Nashik, they will not be put greater hardship as compared to plaintiffs. The learned District Judge further observed that while considering the question of comparative hardship between the two parties where it is shown there was minimum use of the suit premises and maximum use of the premises at Nashik by them, the said aspect is relevant. The learned District Judge also observed that during the pendency of the suit, defendants did not search for any alternate accommodation. Thus the Courts below also held that the greater hardship would be caused to the plaintiffs in the event refusal to pass eviction decree. Though the defendant Nos. 2 & 3 pleaded that the plaintiffs have flat at Erandwane, no material is brought on record to substantiate that plea. I do not find the Courts below committed any error on this aspect.

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Mr. Mulye submitted that the Small Causes Court will have no jurisdiction to entertain and try the suit as there is no relationship as landlord and tenant between the plaintiffs and defendant Nos.2 & 3. It has also come on record that during the pendency of the suit defendant No.1, who is tenant of plaintiff, has expired. As noted earlier defendant No.2 is son of defendant No.1 and who is residing along with her at the time of her

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(9) (5) CRA 115/14 (2)

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death. It has been brought on record that the LRs of defendant No.1 had agreed and decided that defendant No.2 alone should be tenant in respect of the suit premises. In view thereof, I do not find any merit in the submission of Mr. Mulye that the plaintiffs have instituted the suit against defendant No.1 who admittedly a tenant on the ground that he had unlawfully sublet the suit premises to defendant Nos.2 & 3. That apart Section 33 of the Act provides that notwithstanding anything contained in any law for the time being in force, but subject to provision of Chapter VIII, and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction on Courts of Small Causes which is established under the Provincial Small Causes Courts Act, 1887 (in the present case) which shall have jurisdiction to entertain and try any suit or proceeding between the landlord and tenant relating to the recovery of rent and possession of any premises and to decide any application made under the Act. In the case of Importers and manufacturers Ltd. Vs. Pheroze Framroze Taraporewala & Ors. AIR 1953 SC 73 the Apex Court while hearing the scope of Section 28 of the Act has observed thus:

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Section 28 confers jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of the premises but also "to deal with any claim or question arising out of this Act or any of its provisions." There is no reason to hold that "any claim or question" must necessarily be one between the landlord and the tenant. In any case, once there is a suit between a

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(10) (5) CRA 115/14 (2)

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landlord and a tenant relating to the recovery of rent or possession of the premises the Small Causes Court acquires the jurisdiction not only to entertain that suit but also "to deal with any claim or question arising out of the Act or any of its provisions" which may properly be raised in such a suit. The plaintiffs in this suit claimed that the purported subletting by the first defendant to the second defendant was unlawful both because it was a breach of the terms of the tenancy and also because as the statutory tenant after the determination of the contractual tenancy the first defendant was not entitled to create a sub-tenancy and they questioned the validity of the second defendant's claim to any protection under the Act. The claim or question as to the respective rights of the plaintiffs and the second defendant thus raised in the plaint certainly arises out of the Act and the language of section 28 appears to be wide enough to cover the same. Apart from that section, under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The non-joinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not a necessary party to an ejectment suit against the tenant. It is, however, recognised that such a person is, nevertheless, a proper party to the suit in order that the question whether the lease has been properly determined and the landlord plaintiff is entitled to recover possession of the premises may be decided in his presence so that he may have the opportunity to see that there is no collusion between the landlord and the tenant under or through whom he claims and to seek protection under the Act, if he is entitled to any. Such a person may be joined as a party to the suit from the beginning of the suit or at any later stage of the suit if the Court thinks fit to do so. The joinder of such a proper party cannot alter the character of the suit and does not make the suit any the less a suit between the landlord and the tenant or take it out of section 28 of the Act. To hold otherwise will be to encourage multiplicity of suits which will result in no end of inconvenience and confusion.

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Having regard to the aforesaid position of law I am of the opinion that defendant No.2 & 3 would nevertheless the proper party to the suit. As noted earlier after the death of defendant No.1, defendant

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(11) (5) CRA 115/14 (2)

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No.2 being her son has become tenant. Even on this ground I do not find any merit in the submissions of Mr. Mulye that Small Causes Court has no jurisdiction to entertain and try the suit. Hence, Civil Revision Application fails and in the result, the same is dismissed.

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In view of the dismissal of the main application, Civil Application No.37 of 2014 does not survive and same is disposed of accordingly.

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At this stage Mr. Mulye orally prays for stay of the eviction decree for a period of 12 weeks from today. He assures that within 4 weeks from today the applicants and all the adult family members residing with them will give usual undertaking after giving advance copy to the other side incorporating therein that (i) that they are in possession of the suit premises and nobody else is in possession; (ii) that they have neither created any third party interests nor parted with possession; (iii) that they will hereafter neither create third party interests nor part with possession (iv) that they will clear arrears of rent, if any, within 4 weeks from today; (v) that they will not apply for further extension of time; (vi) that in case they are unable to obtain suitable orders from the higher Court within 12 weeks from today, they will hand over vacant and peaceful possession to the respondents on or before 04.03.2014.

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Subject to applicants and all the adult family members residing with them filing usual undertaking in the aforesaid terms within a period

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(12) (5) CRA 115/14 (2)

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of 12 weeks from today, the decree of eviction shall remain stayed for a period of 12 weeks from today.

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It is made clear that in case the applicants and all the adult family members do not file undertaking in the aforesaid terms within stipulated period, respondent Nos.1 & 2 would be at liberty to proceed with the matter in accordance with law.

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It is also made clear that in case, the applicants do not vacate the suit premises within 12 weeks from today, the respondents would be at liberty to proceed with the matter in accordance with law. Order accordingly.

Waibhaw Nilkanth Gokhale and Another v. Sharad Sadashiv Risbud and Others

Case brief

What is this about?

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Waibhaw Nilkanth Gokhale and Another v. Sharad Sadashiv Risbud and Others

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