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Judgment
V.P. Tipnis, J.—This is a petition by the original tenant against the decree for possession of the demised premises in favour of the landlords on the ground of bona fide personal requirements of the landlords.
The original plaintiff Shantaram filed RAE Suit No. 6781 of 1967 in the Court of Small Causes at Bombay against the original tenant M.A. Puvayya. The suit was filed on the grounds of default of payment of rent; that the conduct of the tenant amounts to nuisance and annoyance, as also on the ground of bona fide personal requirement of the landlord. Both the Courts have held against the landlord on the issue of default of the tenant in payment of rent and the conduct of the tenant being nuisance, hence it is unnecessary to deal with that aspect of the matter. The solitary ground on which the suit has been decreed by the Lower Appellate Court is the reasonable and bona fide requirement of the landlord.
So far as the Trial Court is concerned, after taking into consideration the evidence adduced before it and especially in view of the decision of the. earlier suit between the parties, the Trial Court came to the conclusion that the bona fide personal need or requirement of the landlord would be satisfied if the possession of only one room admeasuring 14''.3" x 9''.5" is delivered to the landlord and vide its judgment and order, dated 31st July, 1974 the Trial Court decreed the suit to the extent aforesaid i.e. one room only.
Being aggrieved by the said judgment and decree, the tenant preferred an appeal being Appeal No. 608 of 1974 to the Appellate Bench of the Court of Small Causes, Bombay. During the pendency of the appeal original tenant Shantaram unfortunately expired and his four sons were brought on record as his legal representatives.
In the Lower Appellate Court the tenant made an application for additional evidence in view of the subsequent facts taking place after passing of the decree, which in the submission of the tenant, must negative the case of the landlord so far as his bona fide and reasonable requirement is concerned. The landlord on his part made an application that certain subsequent events like sons of the tenant having acquired independent suitable residence also may be taken into consideration as also further expansion of the family members of the landlord. The Lower Appellate Court on this aspect i.e. change of .circumstances that have taken place subsequent to the passing of the decree, remanded the matter to the Trial Court and directed that the Trial Court should record the evidence of parties and submit the same to the Appellate Court. The evidence on this aspect was recorded by the Trial Court and submitted to the Appellate Court.
The Appellate Court after hearing the parties and after having gone through the evidence initially recorded as well as subsequently recorded by the Trial Court, came to the conclusion that not only the finding recorded by the Trial Court that the plaintiff has proved his bona fide reasonable requirement of the suit premises is correct, but also looking to the facts and circumstances of the case, plaintiff should be given possession of the entire demised premises. The Appellate Court also considered the effect of not filing any appeal or cross-objections by the plaintiff-landlord and came to the conclusion that, that by itself will not deprive the Lower Appellate Court of its jurisdiction and power to pass just and proper decree under the provisions of Order XLI, Rule 33 of the Code of Civil Procedure. On consideration Of the entire material placed before the Court the Lower Appellate Court has come very heavily on the tenant. It has found that the landlord is most reasonable and kind hearted person and has found that despite the landlords kind gestures, the tenant has not responded with the same spirit and on the contrary made the landlord''s life miserable for his rightful dues so far as this matter is concerned. The Lower Appellate Court on the assessment of the evidence has come to the conclusion that not only the landlord has proved his bona fide and reasonable requirement of the entire premises but even on the issue of hardship it is the landlord who would suffer more hardship if a decree is refused. Ultimately by its judgment and decree, dated 16th March, 1988 the Appellate Court of the Court of Small Causes at Bombay dismissed the appeal of the defendant-tenant but in exercise of powers under Order XLI, Rule 33 of the Code of Civil Procedure, passed a Decree in favour of the plaintiff in respect of the entire suit premises with no order as to costs.
This writ petition admitted by this Court in the year 1988 was pending final disposal. In the meantime several attempts were made by the respondent-landlord for getting the matter disposed of. Last one was Civil Application No. 4186 of 1992 wherein it was contended that not only none of the heirs of the original tenant are residing in the suit premises for the last about 1/2 years but the premises are kept locked. It was further contended that the landlords are having about 17 family members as of now and they are in dire need of the suit premises and what was prayed therein was to vacate interim stay earlier granted or to fix the matter for hearing. After hearing the parties, by my order, dated 18.9.1992, petition was peremptorily fixed for hearing today.
I have heard Shri Walawalkar, learned Counsel appearing on behalf of the petitioner-tenant and Shri A. K. Abhyankar, learned Counsel appearing for and on behalf of the respondent-landlords. I have carefully gone through the judgments and orders of both the Lower Courts and especially the portions which were specifically brought to my notice by the learned Counsel on both sides, and after having gone through the judgment and having gone through the material on record, I am of the view that there is absolutely no ground for interference with the order passed by the Lower Appellate Court in exercise of writ jurisdiction of this Court.
Now admittedly out of a separate independent bungalow the entire ground floor was leased out to the original tenant Shri Puvayya. Now so far as the premises are concerned, the entire first floor is in possession of the original landlord admeasuring 846 sq. ft. and also one room on the ground floor admeasuring about 110 sq. ft. Thus the landlords were in possession of a total area of about 956 sq. ft. whereas the tenant was in possession of 736 sq. ft. on the ground floor. The record further shows that initially there were as many as 27 members in the family of the landlord whereas there were about 17 members in the family of the tenant. The record further clearly shows that one Khushallappa claiming to be a member of the tenant''s family, admittedly left the premises alongwith his family members thus reducing the members of the family of the tenant to mere eight. The record of the case to which I will have an occasion to refer, further clearly shows that the original landlord, I unfortunately, one who could not get the fruits of the decree, had been repeatedly begging of the tenant to atleast surrender one room. The record further clearly shows that the original landlord has made even an offer of alternative accommodation to the tenant of the equal area, but the tenant had repeatedly refused to accept the same. The record further shows that the tenant''s five sons have acquired independent residences for their respective families and it is an admitted position that as of today it is only the old mother who can possibly stake her claim to the suit premises.
Shri Walawalkar, could not challenge several findings of fact recorded by the Lower Appellate Court. After hearing Shri Walawalkar and after having gone through the judgment carefully I find no reason at all to disturb the finding recorded by the Lower Appellate Court; that almost every son has acquired suitable residence and are not in need of the demised premises at all. The main ground of attack of Shri Walawalkar was that in view of the fact that the landlord has neither filed appeal nor preferred cross-objections it was not proper and legal for the learned Judges of the Lower Appellate Court to consider the entire case and pass a decree in respect of the entire premises. I do not find any merit in this submission inasmuch as in the startling facts of this particular case I am inclined to share the opinion of the Lower Appellate Court that refusal to decree in respect of the entire suit premises to the present plaintiff would be travesty of justice. Though the judgment is very lengthy one, at times unnecessarily, ultimately the lower appellate Court has considered the following facts :
That the Trial Court had passed the decree in respect of only one room in the light of the circumstances prevailing in 1974 when the tenant was staying alongwith his 5 sons and their family members.
The tenant''s son Karambhayya acquired residential building at Vashi having ground and 1st floor having in all 5 rooms accommodation.
Another son of the tenant Appachu and his doctor wife also acquired and/or were allotted by the State Government spacious quarters at Vikhroli.
Further third son Devayya and 4th son Somayya are also not residing in the suit premises and they have also acquired premises at Nerul and Bhayander and though the original tenant had denied this fact Devayya and Somayya did not file any affidavit denying that they have obtained separate residence inspite of specific order to that effect passed by the Lower Appellate Court.
All these facts persuaded the Lower Appellate Court that the tenant and the family members had acquired more than sufficient accommodation for all of them and thus there will be no hardship in case the decree for possession is passed against the defendant tenant. The Lower Appellate Court also considered the fact that the landlord had offered alternate accommodation of equal area even before institution of the suit and the tenant declined to accept the same. During the trial also same offer was repeated. During remand proceedings also some offer was made. The tenant resolutely declined these offers every time and though the tenant declined the offer, he submitted that some of the members of the landlord himself can be accommodated in the said premises. The Lower Appellate Court also observed that in view of these circumstances it will be justified in granting decree for possession of the entire premises in favour of the landlords even though they have not filed any appeal and/or cross-objections. The Lower Appellate Court felt that it will be failing in its duty if such a decree in favour of the landlord was not passed. The lower appellate Court observed that the landlords have waited for about 21 years and the original plaintiff had already died during the pendency of the proceedings. Thus the Lower Appellate Court felt that it should, under Order XLI, Rule 33 of the C.P.C., in exercise of its power, pass a decree in favour of the plaintiff in respect of the entire premises despite the fact that the plaintiff had not preferred any appeal or cross-objections. The Lower Appellate Court very correctly relied upon the decision of the Apex Court enunciating the principles in that behalf. After having gone through the judgment carefully and in view of the aforesaid facts which are clearly established by the material on record I do not find any ground at all to interfere in the aforesaid judgment and decree of the Lower Appellate Court.
In addition to the aforesaid material, from the averments in Civil Application No. 4186 of 1992 filed-by the original plaintiff, it is clear to my mind that even the widow of the original tenant is not residing in the suit premises. There is no dispute that all the sons have got separate accommodation. In the affidavit in reply filed to the aforesaid Civil Application one of the sons Shri M.P. Thimayya has stated that he denied that the petitioners, heirs and legal representatives of the deceased defendant, are not staying in the suit premises and all are staying at the places and addresses shown in the title of the Civil Application. He has further stated that petitioner No. 1-A i.e. old widow of the original tenant (mother of the deponent) is staying at the suit premises as she has got sentimental attachment where she stayed with her husband throughout his life and thereafter. Thimayya further stated in the affidavit that occasionally mother stays with her children and at times stays for some time. But ultimately she goes back to the suit premises. He denied that the premises are kept locked as alleged.
At the hearing of this position Shri Abhyankar learned Counsel appearing for the respondent-landlords has produced original electricity bills in respect of the suit premises. The bills were shown to Shri Walawalkar, learned Counsel for the petitioner-tenants. Shri Walawalkar upon taking instructions from one of the petitioners i.e. Shri Thimayya accepted the fact that the bills do pertain to the suit premises. The bills show consumption of electricity in the meter affixed to the suit premises. The bills are right from 1985 till August, 1992 and the consumption as per these bills is as under :
These bills therefore clearly support the averment of the plaintiff-landlords that from about December, 1990 till this date there has been absolutely no consumption of electricity excepting in April, May and June, 1990. In my opinion the material on record and this additional fact also suggests that the premises have been kept locked for a considerable period of time as accreted by the plaintiff-landlords. It is also very probable that the old mother is staying with one of the sons or with the sons and virtually all of them are well placed and admittedly are having independent suitable residences separately.
In the result petition will have to be dismissed, the same is dismissed. Rule discharged with costs. Certified copy expedited.