Govindram Ramgopal Mundada vs Badrinarayan Chunnilal Bhutada

A.V. Savant, J.—These two petitions can be disposed off together since they are between the same parties and relate to the same premises. Writ Petition No. 5022 of 1989 has been filed by the tenant, Govindram Mundada, against the judgment and decree dated 11th October, 1989, passed by the District Court, Pune in Civil Appeal No. 1040 of 1986 whereby the respondent-landlord''s suit has been partly decreed. Under the said decree, the petitioner tenant has been directed to handover the possession of the residential portion in his premises i.e. to say the first and second floor in his occupation to the respondent landlord, Badrinarayan Bhutada. Since the tenant has been ordered to be evicted from the residential premises he has filed this writ petition challenging that part of the decree.

Writ Petition No. 1672 of 1990 has been filed by the landlord, Badrinarayan Bhutada against the same judgment and decree dated 11th October, 1989 in Civil Appeal No. 1040 of 1986. The grievance of the landlord Badrinarayan Bhutada in his petition is that the Appeal Court having recorded a finding in his favour on the ground of reasonable and bona fide requirement u/s 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, the Bombay Rent Act), the decree for eviction of the business premises viz., the shop on the ground floor ought not to have been refused only on the ground of hardship by relying upon the provisions of Sub-section (2) of Section 13 of the said Rent Act. In short, what the landlord, Badrinarayan Bhutada is challenging in his petition is the finding on the ground of greater hardship being caused to the tenant on account of which the decree for eviction of the tenant from the shop premises has been denied to him. I have heard both the learned Counsel at length. The brief facts, need to be stated are as under.

The suit premises bear City Survey No. 573, Raviwar Peth, Pune. Badrinarayan Bhutada is the landlord of the said premises and Govindram Mundada is the tenant thereof. The suit for eviction was filed in September, 1982 alleging three grounds.

(i) Arrears of rent,

(ii) Damage and nuisance, and

(iii) Reasonable and bona fide requirement within the meaning of Section 13(1)(g) of the Rent Act.

It is not necessary to deal with the first two grounds any longer because there is a concurrent finding of fact against the landlord, on those issues and there is no argument before me advanced by the landlord on those issues.

The Trial Court by its judgment and decree dated 27th June, 1986 held that the landlord had not proved his title to the suit premises in the sense that the premises earlier belonged to a partnership firm of which the landlord was a partner and it was not established that on dissolution of the firm, the premises were allotted to his share. Independently of the finding, even on merits, the Trial Court came to the conclusion that the landlord had failed to make out any of the three grounds alleged by him. In the result, the suit was dismissed on 27th June, 1986.

The landlord filed Civil Appeal No. ''1040 of 1986 in the District Court, Pune. The Appeal Court found that on dissolution, the suit premises were allotted to the share of the landlord and the tenant had himself paid the rent to him, and had, at all relevant times, acknowledged him to be the landlord of the premises. It was, therefore held that Badrinarayan Bhutada was competent to sue as a landlord of the premises. On merits, however, it was held that the landlord had failed to prove the first two grounds of arrears of rent and damage or nuisance caused by the tenant. But the landlord had succeeded in proving that he reasonably and bona fide required the premises for the occupation of himself and the members of his family. It was also held that the landlord had proved his case both regarding the shop premises on the ground floor as also the residential premises on the upper two floors. However, on the question of hardship it was held that having regard to evidence on record in respect of the factors enumerated in Sub-section (2) of Section 13 of the Rent Act, the hardship that would be caused to the tenant would be greater in the event of his being dispossessed from the shop premises. In this view of the matter, while decreeing the suit of the landlord in respect of residential premises, decree for eviction from the shop premises has been refused.

Mr. Abhyankar who appears for the tenant has invited my attention to the fact that the premises consisted of ground plus two upper floors; the building had two wings, each wing having ground plus two upper floors. One wing is in the possession of the landlord whereas the other was in the possession of the tenant. The ground floor consists of the shop premises which have a shop in the front, a small passage and bath behind that followed by a workshop and a cabin. The measurements have been given in the map prepared by the Commissioner who was appointed for the said purpose. We need not go into the details thereof since the landlord''s requirement has been held proved.

The upper floors consist of residential premises both on the first floor as also on the second floor. The landlord''s family consists of himself, his wife and his four sons all of whom are married now and some of whom are having children. It is true that there are two bedrooms; one each on the first and second floor and two rooms behind the bedrooms on each floor but a staircase is coming from the ground-floor and going to the second floor. Because of the staircase in the middle room the said room cannot conveniently be used as a bedroom in the sense that there will be no privacy. This is important because the landlord''s family consists of 5 couples. In this view of the matter it is difficult to find fault with the finding recorded by the Appeal Court that the landlord requires the premises reasonably and bona fide for his and the residence of his sons. The evidence of the landlord consists of P.W. 1 Badrinarayan Bhutada and his son PW 2 Shirish Bhutada. The evidence of these two witnesses clearly shows that the landlord and his four married sons cannot accommodate themselves in the limited accommodation at their disposal at present and hence the case of reasonable and bona fide requirement within meaning of Section 13(1)(g) of the Rent Act has been clearly made out on the evidence that has come on record.

Mr. Abhyankar appearing for the tenant states that the tenant could not dispute the fact that the landlord and his four married sons were living together in one and the same premises, which as stated earlier consists of only two bedrooms, if one excludes the rooms which have the staircase in between affecting the privacy of the rooms. The finding recorded by the appeal Court is thus supported by the evidence on recorded and there is no scope for interference in the petition filed by the tenant. Hence writ Petition No. 5022 of 1989 is liable to be dismissed. The same is accordingly dismissed with no orders as to costs.

Coming to the petition filed by the landlord viz., Writ Petition No. 1672 of 1990 the only grievance of the landlord is that his reasonable and bona fide requirement for the business of his sons having been held proved, a decree for eviction ought to have been passed in his favour in respect of the shop premises also on the ground floor. Assuming that the landlord is right in his contention that he has made out a case of reasonable and bona fide requirement of the shop for the business of his sons, one cannot overlook the provisions of Sub-section (2) of Section 13 of the Rent Act which reads as under :

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 will be caused either to the tenant or 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.

My attention has been invited to the evidence on record which shows that the landlord is having a substantial turnover in his business, both the cloth business carried on by him and the electronics business carried on by his sons. Whereas the turnover of the cloth business is stated to be around 10 to 12 lakhs per year, the turnover of the electronics business is stated to be 7 to 8 lakhs per year. The evidence of the son of the landlord shows that they require additional premises with a view to accommodating a showroom for display of the electronics such as T.V., Fridge, washing machine etc. However, the tenant''s evidence shows that he is having a lesser turnover in his business, and if he was evicted from the shop premises he would be required to pay a huge premium of 4 to 5 lakhs for getting other suitable business premises in Kapadganj. There is no evidence on record to show that any other suitable premises were offered or were available to him. The landlord has not led any evidence to show that the tenant could have shifted to some other premises without any hardship being caused to him. The question of goodwill of the business carried on in a particular locality which is suited for business in a particular consumer item also assumes importance in this behalf.

Hence, in my view on the evidence that has come on record, the Appeal Court was justified in coming to the conclusion that if the tenant is required to be evicted from the shop premises, hardship will be greater. There is thus no error of law or of jurisdiction in the impugned order passed by the Appeal Court. The order refusing to pass decree in favour of the landlord on the ground of greater hardship being caused to the tenant as far as the shop premises is concerned, is in my view justified by the evidence on record and the mandate of Sub-section (2) of Section 13 of the Act. Hence there is no merit in the petition. Dismissed.

Both the writ petitions are therefore dismissed with no order as to costs.