Dismissed

Mrs. Benvemitta Lam and Ors. v. Mr. Clemant Vincent Saldanha (Since Decd) Smt. Lilian Clemant Saldanha and Ors.

Bombay HC18 Mar 2024CRA/827/2011

Case brief

AI extract

What is this about?

Landlord's eviction suit on bona fide requirement and non-user grounds was decreed by both courts below. The tenant's claimed heir challenged maintainability and bona fide requirement in revision. The High Court found no infirmity in the concurrent findings and dismissed the revision.

What the court decided

AI extract

Mrs. Benvemitta Lam and Ors. Vs Mr. Clemant Vincent… — Landlord and Tenant | Bombay HC (2024)

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KANCHAN Digitally signedby KANCHAN VINOD VINOD MAYEKAR MAYEKAR Date: 2024.04.0316:45:39 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO.827 of 2011

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Benvemitta Lam & Anr.

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….. Applicants

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VERSUS

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Clemant Vincent Saldanha (Since Decd.)
Smt.Lilian Clemant Saldanha (deleted)
Sheryl D’Souza & Ors.….. Respondents

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Mr.Surel Shah a/w. Ms.Meenakshi Dhanuka-Rungta, Mr.Nihar
Chitre, Mr.Amol K. i/b. Dhanuka & Partners for the Applicants.

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Ms.Evanta A.Gonsalves a/w. Mr.Reyden L. Gonsalves for the
Respondents.

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CORAM: RAJESH S. PATIL, J.

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DATE : 18 MARCH, 2024

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P.C. :-

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This civil revision application is filed under section 115 of

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the Code of Civil Procedure, 1908 by the tenant/original

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defendant challenging the concurrent findings recorded by the
Trial Court and the Appellate Court on the ground of ‘bona fide
requirement’, under the Rent Act.

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2. The suit premises is a flat admeasuring 675 sq.ft. situated

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at 1st Floor, Sal House, Pitamber Lane, Mahim, Mumbai – 400
016 (for short ‘the suit premises’).

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3. The respondents are the landlords of the suit premises. For

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convenience, the parties are hereinafter referred to as per their
nomenclature in the Trial Court.

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4.The suit was filed on 11 November, 1997 on the grounds of
‘bona fide requirement’ and ‘non-user’ as according to the
plaintiff, the original tenant one Mr.Ferdinand A.D’Souza died on
7 May, 1997, leaving behind him no legal heirs. The suit
originally filed was against unknown legal heirs of the original
tenant. At the time of the filing of the suit, the plaintiff as per the
cause title is shown as 75 years old. As far as the ground of bona
fide requirement is concerned, in paragraph no.8 of the plaint, it
has been stated that the requirement of the suit premises is for
the plaintiff and his family members. It has been further stated
in paragraph no.8 of the plaint that the plaintiff himself is

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residing in a rental premises being Flat No.1, Joseph House,
Marol Maroshi Road, Marol, Andheri (E), Mumbai – 59 and
paying monthly rent of Rs.158/- per month. The said premises is
admeasuring 420 sq.ft. It is further stated in the said paragraph
that the plaintiff is residing with his wife and they have three
grown up children, all of them are married.

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5.The eldest son has also two minor children and the
youngest (Derrick) has one child. It is further stated in the plaint
that Derrick has no accommodation of his own in Bombay and
has no financial means to acquire another the suitable
accommodation.

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6.After the suit was filed in the year 1997, suit summons
were issued in the name of unknown legal heirs of the deceased
tenant, at the address of the suit premises. The said suit
summons was received by the applicant herein and she filed her
written statement on 17 November, 1998 as an heir and next of

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kin of the original tenant.

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7. Thereafter issues were framed, the plaintiff’s wife entered

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the witness box as PW No.1 to lead evidence on behalf of the
plaintiff. During the cross examination of the plaintiff, an
application was preferred by the applicant herein dated 12 April,
2002 under the provisions of section 5(11)(c) of the Rent Act.
The said application of the applicant herein was allowed and the
applicant herein was joined in the suit as defendant no.2.
Thereafter the second written statement was filed by the
applicant herein on 4 March, 2003. Pursuant to which an
additional issue was framed before the Trial Court.

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8.Thereafter the cross examination of the plaintiff’s witness

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i.e. the wife of the plaintiff who was the power of attorney holder
of the plaintiff continued and after her evidence was closed. On
behalf of the defendants, defendant no.2 entered the witness box
and she was cross examined by the plaintiff’s advocate.

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9.The Trial Court thereafter heard both the parties and by its
judgment and order dated 2 December, 2003, decreed the suit
and directed the defendants to deliver the vacant and peaceful
possession of the suit premises.

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10.Being dissatisfied with the judgment and decree passed by
the Trial Court, the defendant no.2 and defendant no.1 both filed
an appeal before the Division Bench of the Court of Small Causes.
During the pendency of the appeal before the Appellate Bench of
the Court of Small Causes, the original plaintiff i.e. the landlord
Mr.Clemant Saldanha died at the age of 82 years, hence his legal
heirs i.e. his wife and three children were brought on record.
Thereafter an appeal was heard by the Appellate Bench of the
Court of Small Causes and by its judgment and order dated 22
September, 2011, the appeal of the original defendant was
dismissed.

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11.Being dissatisfied with the concurrent findings recorded by
the Trial Court and the Appellate Bench of the Court of Small
Causes, Bombay, the original defendant nos. 1 and 2 have filed
the present civil revision application under section 115 of the
Code of Civil Procedure, 1908.

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12.By an order dated 13 March, 2012, the present civil
revision application was admitted and there was a stay to the
execution of the impugned judgment and order passed by the
Trial Court dated 6 December, 2003 and as confirmed by the
Appellate Bench by its judgment and decree dated 22 September,
2011.

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13.During the pendency of the present civil revision
application in this Court, the wife of the original landlord also
died. It is submitted before me by the advocate for the landlord
that the wife of the original landlord was residing in an old age
home at Raigad, Maharashtra during her last days of her life.

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14.Mr.Surel Shah, learned counsel made his submissions on
behalf of the original defendant, the present applicant :-

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15.Mr.Shah submitted that the suit for eviction itself was not
maintainable since the suit was filed against the unknown legal
heirs of the deceased tenant.

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16.Mr.Shah submits that at a later stage in the suit, the
landlord admitted that the niece of the original tenant is the only
surviving legal heirs. He submitted that various documents were
produced before the Trial Court to show that at the date when

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the original tenant died in the suit premises, his niece i.e. the
present applicant was residing in the suit premises with him.

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17.Mr.Shah submitted that apart from various documents to
show that at the time of the death of the original tenant, the
present applicant who is niece of the original tenant, there was

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also a Will dated 15 July, 1985 which bequeathed the entire
estate of the original tenant including the present suit premises in
favour of the niece i.e. the present applicant.

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18.Mr.Shah submitted that even if for the sake of argument, it
is presumed that the suit was maintainable, the original plaintiff
did not enter the witness box and the evidence was led only by
the power of attorney holder.

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19.Mr.Shah further submitted that the requirement pressed is
that of the second son (Derrick). He submitted that even in the
evidence requirement pressed is of the second son Derrick who
admittedly after going to Canada has never come back.
Therefore, according to Mr.Shah, there is no bona fide
requirement. Therefore, according to him the present civil
revision application should be allowed.

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20.Mr.Shah further submitted that both the Courts have held
that the defendant no.2 is not able to prove that she is the blood
relative of the original tenant. He submitted that there is no such
requirement under the Rent Act that the person should be blood
relative in order to claim tenancy under section 5(11)(c) of the
Rent Act.

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21.Ms.Gonsalves, learned counsel appearing for the
respondents landlord submits that in paragraph no.8 of the
plaint, the requirement is specifically mentioned about the
plaintiff himself and his children. She submitted that even in the
evidence, the plaintiff has mentioned that the requirement is for
the plaintiff and his family. She submitted that by picking of one
or two sentences in the evidence, it cannot be said that the
requirement pressed is only for the son Derrick.

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22.Ms. Gonsalves further submitted that in paragraph no.8 of
the plaint, it has been specifically stated that the requirements is

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of all family members, so also in the evidence, the requirement is
of the entire family. She submitted that the second son of the
original plaintiff was residing with the plaintiff in a tenanted
premises at Andheri. She submitted that the landlord himself
was residing in a tenanted premises and the tenant was enjoying
the property when the claim of the defendant no.2 as tenant is in
doubt. She submitted that the defendant no.2 claimed to be the
legal heir and a person who was staying with the original tenant
at the time of his death. She submitted that the latest electricity
bill showed that from the month of January 2023, there is no
electricity connection in the suit premises.

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23.Ms. Gonsalves further submitted that after the suit
summons was served on the unknown legal heirs at the address
of the suit premises, the present applicant volunteered herself to
appear in the suit proceedings and filed her written statement
dated 17 November, 1998 (first written statement).

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24.Ms. Gonsalves further submitted that thereafter when the
plaintiff’s witness no.1 was in the witness box, purportedly under
the provisions of section 5(11)(c) of the Rent Act, an application
was preferred for adding the present applicant as a party
defendant. As the application was allowed, the present applicant
was added as defendant no.2, who again filed a written
statement (second written statement). Therefore, according to
Ms. Gonsalves the estate of the deceased tenant was fully
represented. She further submits that a Will of the deceased
tenant was also produced, which shows that various properties
including the suit premises were bequeathed to the defendant
no.2 (the present applicant).

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25.She submitted that as far as the hardship is concerned, the
defendant no.2 by way of a Will got various moveable and
immoveable properties of the original tenant, being bequeathed
to her. So also, it has come on record that the husband of the
defendant no.2 owned a flat in the building Brety Apartment at

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Colaba, Mumbai. She submitted that it has also come on record
that the defendant no.2 worked in five star hotel ‘Taj Mahal’ in
Mumbai and at the time of marriage of the defendant no.2 she
stayed in a flat at Breach Candy locality in Mumbai. She
submitted that the two children of the defendant no.2 were born
in the Breach Candy Hospital. She submitted that therefore, in a
case where the plaintiff resided in his whole life in a tenanted
premises because of the defendants not vacating the suit
premises, and the wife of the original landlord in last few years
of life stayed in an old age home, the eviction decree should be
confirmed by this Court.

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26.She, therefore, submitted that the concurrent findings
recorded by both the Courts should not be interferred with by
this Court.

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ANALYSIS AND CONCLUSION :

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27. The original suit for eviction was filed by the landlord when

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he was aged 75 years old. The said suit was filed on the ground
of ‘bona fide requirement’ and ‘non-user’. Paragraph no.8 of the
plaint specifically pleads about the requirement of the landlord
and his family members. It has also been pleaded that the
landlord was residing with his family members at a rented house
in Andheri admeasuring about 420 sq.ft.

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28.It is also come on record that the suit premises was situated
at Mahim, Mumbai admeasuring about 675 sq.ft. being a
residential premises in the City of Mumbai. The suit premises was
covered by the then Bombay Rent Act, 1947. Hence, as far as the
rent of the suit premises is concerned, the same was frozen.
Therefore, the rent payable of the present suit premises is Rs.50/-
per month.

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29.It is also come on record that the defendant no.2 inherited
various properties of the original tenant by way of a Will, which
was probated. So also, the husband of the defendant no.2 owned

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a flat at Mistry Park, Breach Candy and also had purchased a flat
at Colaba, Mumbai in the building Brety Apartment. Today,
before this Court advocate appearing for the landlord also
produced a photo-print of the electricity meter of the suit
premises to show that from January 2023, the electricity
connection of the suit premises has been disconnected. However,
the same has been disputed by the advocate appearing for the
applicants/original tenant on the ground that such photo-print
cannot be taken up by this Court when there is no evidence to
that effect.

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30.It is a matter of record that after the original tenant died,
the suit was filed against the unknown legal heirs. However,
when the suit summons was issued, the same was received by the
present applicant, who volunteered herself and appeared in the
suit proceedings and filed her written statement dated 17
November, 1998 as heir and next of kin of the original tenant.
After the issues were framed and the plaintiff entered the witness

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box through the power of attorney holder while the cross
examination of the plaintiff’s witness was in process, the present
applicant filed an application under the provisions of section
5(11)(c) of the Rent Act for adding her as a party defendant
no.2. After she was added as a party defendant no.2, she filed
another written statement on 4 March, 2003 (second written
statement). Therefore, according to me, the estate of the
deceased tenant was fully represented.

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31.That leaves me to take into consideration the concurrent
findings recorded by both the Courts on the ground of ‘bona fide
requirement’. It is a matter of record that in paragraph no.8 of
the plaint, the plaintiff had specifically stated that the
requirement is for himself and his family members. It is also a
matter of record that the plaintiff and his family stayed in a
rented house at Andheri, Mumbai admeasuring 420 sq.ft. While
the suit premises was 675 sq.ft. in Mahim, Mumbai. It is also the
case of the landlord that during her last days of life, the wife of

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the original landlord stayed in old age home. Though this fact is
disputed by Mr.Shah. The applicant claimed that she was a legal
heir under the provisions of section 5(11)(c) of the Rent Act. It

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has come on record that the electricity connection of the suit
premises was disconnected, so also it has come on record that as
per the Will of the original claimant, she inherited various
properties of the original tenant. Apart from that, it has come on
record that her husband also owned two flats in the prime area
of the City of Mumbai, one at Breach Candy and another at
Colaba. Applicant, did not give genealogy before the Trial Court
to prove how she is niece of original tenant. She admitted in
cross examination that her husband and children were not
staying in the suit premises. The address of her children in school
records is not of suit premises.

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32.Both the Courts have come to the findings that the bona
fide requirement has been proved by the landlord by examining
his power of attorney holder i.e. his wife. Mr.Shah also made

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submission that the plaintiff himself should have enter the
witness box to prove his case. It has been specifically stated in
the evidence of the PW-1 that she is the wife of the original
landlord who was around 80 years old when the evidence was
led and was not keeping good health. According to me, PW No.1
who is the wife of the original landlord and is residing with the
plaintiff in a tenanted house and had full knowledge about the
present proceedings, she can lead evidence on behalf of the
original landlord.

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33.I have found no infirmity in the concurrent findings
recorded on the ground of bona fide requirement by both the
Courts. Hence, no case is made out in the civil revision
application.

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34.Civil revision application is hence dismissed. No costs.

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[RAJESH S. PATIL, J.]

Mrs. Benvemitta Lam and Ors. v. Mr. Clemant Vincent Saldanha (Since Decd) Smt. Lilian Clemant Saldanha and Ors.

Case brief

What is this about?

What the court decided

Mrs. Benvemitta Lam and Ors. v. Mr. Clemant Vincent Saldanha (Since Decd) Smt. Lilian Clemant Saldanha and Ors.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

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Case details

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