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1999 DIGILAW 64 (GUJ)

KARSANDAS GORDHANDAS PARMAR v. BAHADURSINGH MADHURSINGH DODIA

1999-02-19

D.C.SRIVASTAVA

body1999
D. C. SRIVASTAVA, J. ( 1 ) THESE two cases are proposed to be disposed of by a common Judgment. ( 2 ) IN the Civil Application the prayer is that in view of subsequent events occurring during pendency of the eviction suit the decree for eviction passed by the trial Court and confirmed by the lower Appellate Court be set aside. ( 3 ) CIVIL Revision Application has been filed by the revisionists who are the legal representatives of the deceased tenant under Section 29 (2) of the Bombay Rent Act, 1947 (for short "the Rent Act" ). ( 4 ) BRIEF facts giving rise to this revision are as under : the suit premises was let out on a monthly rent of Rs. 200. 00 per month besides Rs. 80. 00 p. m. towards municipal taxes. It was let out for a short period of six months and after expiry of the said period the defendant was required to vacate the premises. It was not vacated, hence the allegation was that the tenant committed breach of the terms of tenancy. There was another ground for eviction that the defendant tenant was in arrears of rent which he did not pay. Another ground was that the tenant had caused damage to the doors, windows and decoration of the suit premises and made permanent changes in the suit premises. Eviction was also sought on the ground of bonafide and reasonable requirement of the landlord and his family members. Another ground was that the defendant had built a bungalow and thus acquired alternative accommodation suitable for his residence. ( 5 ) THE Suit was contested denying all these allegations. Standard rent was also disputed. It was denied that alternative accommodation has been acquired by the defendant tenant. The said accommodation is still incomplete and is not fit for residence. ( 6 ) THE suit was decreed by the trial Court. An Appeal was preferred which was dismissed by the Appellate Court, hence this revision. Standard rent was also disputed. It was denied that alternative accommodation has been acquired by the defendant tenant. The said accommodation is still incomplete and is not fit for residence. ( 6 ) THE suit was decreed by the trial Court. An Appeal was preferred which was dismissed by the Appellate Court, hence this revision. ( 7 ) THE learned Counsel for the revisionist pressed the following points in this revision :i) That the decree was passed on ground of reasonable and bonafide personal requirement of the landlord, but this ground did not exist on the date of institution of the Suit, hence the Suit was pre-mature and it could not be decreed on ground of reasonable and bonafide requirement of the landlord;ii) That the courts below failed to consider that the decree for eviction from portion of the tenanted accommodation could have served the purpose of the landlord;iii) That comparative hardship of the landlord and tenant in the event decree for eviction was passed was also not properly appreciated by the two courts below; ( 8 ) LEARNED Counsel for the respondent on the other hand contended that it is a case where the two courts below have recorded concurrent findings of facts, hence the revisional court can not re-appreciate the evidence and substitute its own findings over the findings of the two courts below. It was argued that the findings of the two courts below do not suffer from any manifest error of law or misappreciation of evidence on record, hence under these circumstances revisional interference is not required. The Apex Court in Patel Valmik v/s. Patel Mohanlal, reported in 1999 (1) GLR 15 considered the scope and ambit of Section 29 (2) of the Bombay Rent Act. Considering the earlier decision in Girdharbhai v/s. Saiyed Mohmed, 1987 (2) GLR 960 (SC) and Catena of decisions it was held that the right to Appeal carries with it the right of hearing both on questions of law and fact unless the statute conferring the right to Appeal itself restricts the rehearing in some way, while the power to hear revision is generally given to a particular case which is decided according to law. It was further laid down that the High Court can not substitute its own finding on the question of fact for the findings recorded by the Courts below after reappraisal of evidence. It was further laid down that the High Court can not substitute its own finding on the question of fact for the findings recorded by the Courts below after reappraisal of evidence. In view of this Apex Courts pronouncement I do not think it necessary to refer in detail the pronouncement of this Court in Santokbhai v/s. Ramdas reported in 1996 (2) GLR 80 . ( 9 ) THE only thing to be seen in revision is whether the decree of the two courts below is in accordance with law or not. The revisional court will not be entitled to re-assess and re-appreciate the evidence and substitute its own finding over the concurrent findings of facts recorded by the two courts below. Such interference on concurrent findings of fact is permissible only when such findings are found to be perverse. The finding is said to be perverse when it is based upon inadmissible evidence or it is based upon misreading of evidence or it is the result of mis-appreciation of evidence to the extent that no reasonable man from the evidence on record could have taken such a view. However, this does not mean that revision of this nature under consideration should be dismissed on this preliminary objection. Since the learned Counsel for the parties were heard on merits of the revision, it has to be decided on merits and it has to be seen whether the decree of the two courts below is in accordance with law or not. ( 10 ) SHRI S. M. Shah, learned Counsel for the revisionists contended that the decree of the two courts below is not in accordance with law inasmuch as the decree for eviction was passed on grounds of bonafide requirement of the landlord and this ground did not exist on the date of institution of the suit, hence the suit was pre-mature and the decree which was passed in such pre-mature suit becomes illegal, hence revisional interference is required. In my opinion the contention cannot be accepted for several reasons. It was not a suit for eviction of the tenant only on the ground of reasonable and bonafide requirement of the suit accommodation for use of the landlord and his family members. There were other grounds on which eviction of the revisionist was sought and those grounds have been indicated in the fore-going portion of this judgment. It was not a suit for eviction of the tenant only on the ground of reasonable and bonafide requirement of the suit accommodation for use of the landlord and his family members. There were other grounds on which eviction of the revisionist was sought and those grounds have been indicated in the fore-going portion of this judgment. Since the suit for eviction was filed on more than one grounds it cannot be said that all the grounds did not exist on the date of institution of the Suit. If those grounds could not be substantiated by the landlord it cannot be said that the cause of action to file the Suit for eviction on those grounds did not accrue to the landlord when he filed Suit for eviction. Cause of action consists of bundle of facts upon which the plaintiff is entitled to bring an action in the form of a Suit against his adversery, viz. the defendant. Cause of action is not confined to single isolated fact. When eviction is sought on more than one ground it cannot be said that the Suit as a whole was pre-mature and was liable to be dismissed. Failure of the plaintiff in substantiating other grounds for eviction cannot be a ground for observing that the entire suit was pre-mature and cause of action for such suit did not accrue to the plaintiff respondent on the date of the Suit. ( 11 ) SHRI Shah referred three cases in support of his contention, but I feel that those cases hardly help him. ( 12 ) IN Surajmal v/s. Radheshyam reported in A. I. R. 1988 SC 1345 it was laid down by the Apex Court that the bonafide need must be considered with reference to the time when the Suit for eviction was filed and it cannot be assumed that once the question of necessity is decided against the landlord it has to be assumed that he will not have a bonafide and genuine necessity ever in future. Thus, from this case it is clear that the Apex Court laid down that the question of bonafide need must be considered with reference to the time when the Suit for eviction was filed. Thus, from this case it is clear that the Apex Court laid down that the question of bonafide need must be considered with reference to the time when the Suit for eviction was filed. However, if such need occurred subsequently the Suit could not be dismissed or that the second suit on the said ground cannot be said to be barred; rather such second suit is competent. ( 13 ) IN Rameshwar v/s. Jot Ram, reported in A. I. R. 1976 SC 49, the Apex Court again laid down that the rights of a party are determined by the facts as they existed on the date the action is instituted and later development can not defeat his right. The courts procedural delays cannot deprive him of legal justice or rights crystalised in the initial cause of action. On the point of cause of action the Apex Court laid down that the right to relief must be judged to exist as on the date the suit is instituted. There can be no dispute about this proposition of law. If the right to sue accrued to the landlord on several grounds he could have filed the Suit for eviction. ( 14 ) IN Bhai Hariben v/s. Shantilal, reported in 1997 (2) GLR 1108 it was laid down that the landlord must have obtained the cause of action on the date of Suit. Where such cause of action has arisen after the Suit, decree cannot be passed in favour of the landlord. This case also hardly helps the learned Counsel for the revisionist because in the case before me the fact that the landlord needed accommodation for his personal occupation after his retirement was disclosed in the plaint and the date of retirement was also disclosed as 26. 11. 1994. The Suit was, however, filed in the year 1990. Thus, simply because the Suit was filed in the year 1990 it cannot be said that the cause of action for eviction on the ground of bonafide and personal requirement did not accrue to the landlord. Moreover bonafide personal requirement was alleged on various other grounds, viz. on the ground that climate of Udaypur was not suitable to the health of the landlords wife. Another ground was that the landlord has large family consisting of himself, his ailing wife, five daughters. Only one daughter was employed and the others were not. Moreover bonafide personal requirement was alleged on various other grounds, viz. on the ground that climate of Udaypur was not suitable to the health of the landlords wife. Another ground was that the landlord has large family consisting of himself, his ailing wife, five daughters. Only one daughter was employed and the others were not. Consequently requirement of the landlord was not the only ground to justify his boinafide and reasonable requirement. The landlord is justified to set up bonafide and reasonable requirement not only for himself, but also for his family members who are dependent on him and are living with him and also of other relations who are regularly living with him. In this view of the matter also it cannot be said that the requirement of the accommodation after retirement of the landlord cannot be said to be a ground which was all together non-existent. In these days when such litigations continue for decades if the landlord showed his intention to settle at Ahmedabad after his retirement it cannot be said that his desire was fanciful and not bonafide and reasonable. Even if it is accepted technically that on the date of the Suit the landlord was in service it cannot be said that subsequent events could not be taken into consideration by the two courts below as well as by the revisional court. Consideration of subsequent events by the courts is a settled proposition of law. This settled proposition is to the effect that if certain events take place during pendency of the suit the trial Court can take the same into consideration. Likewise if such events take place during pendency of the appeal the Appellate Court can look into it and if such events take place during pendency of the revision the revisional court can also consider such subsequent events and can mould and grant relief keeping in view these subsequent events. Amendment of pleadings on account of accrual of subsequent events during pendency of the proceeding has also been permitted in view of Apex Courts verdict in Shikar Chand Jain v/s. D. J. P. Karini Sabha, reported in A. I. R. 1974 SC 1178. On subsequent events and considering the same by the Courts the Apex Courts verdict in P. Venkateshwarlu v/s. Motyor and General Traders,a reported in A. I. R. 1975 SC 1409, M. Laxmi and Co. On subsequent events and considering the same by the Courts the Apex Courts verdict in P. Venkateshwarlu v/s. Motyor and General Traders,a reported in A. I. R. 1975 SC 1409, M. Laxmi and Co. v/s. A. R. Deshpande, reported in A. I. R. 1973 SC 171, M/s. Variety Emporium v/s. V. R. M. Mohmed Ibrahim reported in A. I. R. 1985 SC 207, Hasmat Rai v/s. Raghunath Prasad, reported in A. I. R. 1981 SC 1711 can be referred. The learned Counsel for both the sides referred these rulings, but interpreted the same in their own way. Shri S. M. Shah, learned Counsel for the revisionist urged that subsequent events can be taken into consideration and the subsequent events in the instant case are that no doubt the landlord had retired on 26. 11. 1994, but since he has settled at Udaypur and has opened Medical store the cause of action for eviction on ground of his personal and bonafide as well as reasonable requirement is lost and if this is so the decree passed by the two courts below cannot be sustained. Civil Misc. Application was also moved in the same direction intimating this fact and it was prayed therein that the decree for eviction may be set aside. Shri P. V. Nanavati, learned Counsel appearing on behalf of the respondent, on the other hand, taking assistance from these decisions of the Apex Court contended that even if factually the landlord was in service on the date of institution of the Suit, but if he retired on 26. 11. 1994 i. e. during pendency of the suit it is nothing, but subsequent event and on the basis of such subsequent event the decree for eviction can be confirmed. ( 15 ) THE lower Appellate Court has rejected other contentions of the landlord relating to his reasonable and bonafide requirement of the accommodation. However, it was found by the lower Appellate Court that the landlord has retired and he has desire to settled at Ahmedabad and has no intention to settle at Udaypur. This requirement of the landlord was found to be genuine and bonafide. This is a finding of fact based upon proper appraisal of evidence on record and as such it cannot be disturbed in this revision. ( 16 ) IN cases of retirement of a landlord the decision of this court requires mention. In Heirs of decd. This requirement of the landlord was found to be genuine and bonafide. This is a finding of fact based upon proper appraisal of evidence on record and as such it cannot be disturbed in this revision. ( 16 ) IN cases of retirement of a landlord the decision of this court requires mention. In Heirs of decd. , Krishna Kumar v/s. Sanghavi, reported in 1998 (1) GLH 265 the facts were still on lower footing than the facts of this case. In that case eviction was prayed for by the landlord, a retired Government employee. There was no specific averment with regard to retirement in the plaint. The plaintiff landlord was in service at the relevant time and only at the time of adducing evidence the landlord made averments with regard to his retirement. This court found that the fact of retirement of the plaintiff was made known to the defendant tenant. Nothing was said by the defendant that the landlord had an alternative accommodation where he could reside. On these facts the decree for eviction of the tenant was held to be legal. In the case before me the date of retirement was very much disclosed in the plaint. It was not a case where the plaintiff made any suppression of facts. Learned Counsel for the revisionist on the other hand contended that the respondent concealed the fact that after retirement he has started business in medicines and has opened a medical store at Udaypur. Counter Affidavit was filed in the Civil Application wherein it was deposed by the landlord that because of large family and financial stress he had no option, but to engage in some business so that he could meet his normal financial requirement and that he had to stay at Udaypur awaiting eviction of the tenant from his own house at Ahmedabad. Consequently it cannot be said that there was any concealment of fact on the part of the landlord. Even in the Civil Application it is not disclosed as to when the tenant revisionist came to know that the landlord had opened a medical store at Udaypur. Opening of medical store at Udaypur for a short while is no ground for holding that the cause of action for eviction on the ground of reasonable and bonafide requirement of the landlord does not survive or has vanished. Opening of medical store at Udaypur for a short while is no ground for holding that the cause of action for eviction on the ground of reasonable and bonafide requirement of the landlord does not survive or has vanished. In the Counter Affidavit the landlord has further deposed that the licence of the medical store is in the name of his daughter and the landlord is only a partner and that he will close the medical store the moment he gets possession of the disputed accommodation. He further deposed that his daughter who has obtained licence for medical store is of marriagable age and the moment she is married the medical store will be closed. Under these circumstances staying of the landlord at Udaypur awaiting eviction of the revisionist is no ground for holding that the cause of action for eviction on ground of bonafide and reasonable personal requirement of the landlord does not survive. ( 17 ) THE lower Appellate Court has rightly held that the requirement of the landlord is reasonable and bonafide. It is reasonable because it is rational, just and not excessive, while it is bonafide because it is honest and not actuated by bad or oblique motive. The strength of the family members of the landlord and tenant was also taken into account by the lower Appellate Court. Comparative hardship was also considered by the lower Appellate Colurt and it was found that in case the decree of eviction is refused it is the landlord who will suffer greater hardship. This Court in S. Narhari Sombhai Kachhia v/s. Vithaldas, reported in 1998 (3) GLR 2607 has held that where the landlords need for the accommodation is reasonable, bonafide and genuine the Suit cannot be dismissed on the ground of comparative hardship. The landlord being the owner of the property is not expected to reside in a rented house. ( 18 ) THE tenant in the instant case made no efforts to find out alternative accommodation for himself. It is not for the landlord to find out alternative accommodation for his tenant. If the landlord succeeds in establishing that his requirement is genuine, reasonable and bonafide he is entitled to evict his tenant on this grounds. ( 18 ) THE tenant in the instant case made no efforts to find out alternative accommodation for himself. It is not for the landlord to find out alternative accommodation for his tenant. If the landlord succeeds in establishing that his requirement is genuine, reasonable and bonafide he is entitled to evict his tenant on this grounds. ( 19 ) IN cases where the landlord is to retire or has retired during pendency of legal proceedings it cannot be expected that a retired landlord should go in search for alternative accommodation on rent for himself nor he can be forced to stay at Udaypur. No doubt the two courts below have found that other requirements of landlords family were not proved, but still the desire of retired employee to settle at his native place in his own house cannot be said to fanciful rather it can be said to be just, reasonable and bonafide requirement. ( 20 ) THE question of comparative hardship was considered on right lines by the lower Appellate Court and the findings of the lower Appellate Court on this points require no interference. . ( 21 ) SHRI S. M. Shah, in the end contended that the lower Appellate Court has not considered the feasibility of passing the decree for eviction for a portion of tenanted accommodation. The lower Appellatecourt cannot be blamed for this because this contention was not raised before the lower Appellate Court from the side of the appellant who is revisionist in this Court. Moreover considering the strength of the family members of the landlord and the accommodation available it can hardly be said that decree for a portion of the tenanted accommodation will serve the purpose of the landlord. The landlords family consists of himself, his wife, five unmarried daughters. One daughter is married, naturally she will come occasionaly to see her parents. Under the circumstances passing decree for part of the tenanted accommodation will be against bonafide and reasonable requirement of the landlord for the whole of the tenanted accommodation. Thus, on this ground also even partial modification of the decree passed by the two courts below will not be justified. ( 22 ) NO other point was pressed. The revision is thus without merit and is bound to fail. The revision is accordingly dismissed. No order as to costs. Thus, on this ground also even partial modification of the decree passed by the two courts below will not be justified. ( 22 ) NO other point was pressed. The revision is thus without merit and is bound to fail. The revision is accordingly dismissed. No order as to costs. ( 23 ) IN view of the observation made in the body of the Judgment in main Civil Revision Application the Civil Application also stands disposed of. .