Abdul Rahiman Noormohammed Daruwalle v. Sonabai Sahebrao Bhilare
2010-09-08
R.C.CHAVAN
body2010
DigiLaw.ai
JUDGMENT : 1. These two civil revision applications by two tenants of the same landlords “respondent Nos.1 to 3” against decrees of their ejectment are being decided by .consent at the admission stage, by this common judgment because of the peculiar contentions advanced. 2. The respondents are undisputedly owners and landlords of two shop premises on Bazar Road, Panchgani, let out to the two applicants, where they are running their shops. While the applicant B.A. Chipade in Civil Revision Application No.333 of 2007 runs a daily needs and cutlery stores and also lives with his family on the back side; the applicant A.R.N. Daruwalle in Civil Revision Application No.178 of 2007 runs a hardware business in the shop hired by him. 3. The landlords sought possession of the properties from the applicants on the grounds of arrears of rent and bona fide need to start a flour mill, rice holler and chilly pounding machine utilizing the experience of Ramchandra, the husband of landlady Leelabai. It was also alleged that shop was let to applicant Chipade for tailoring business, but he changed the user by starting cutlery business. They stated that while the tenant Chipade had premises available at Mahabaleshwar for doing his business, tenant Daruwalle had other premises available at Panchgani itself. Therefore, according to landladies, they would suffer greater hardship if decree of ejectment was refused. 4. The applicants contested the suits by denying all allegations made. At the trial only the issues of bona fide need and comparative hardship were pressed. Hence the learned trial Judge deleted the other issues. In both the suits, the learned trial Judge held in favour of the landladies on the issue of bona fide need, but refused decrees of ejectment, holding that greater hardship would be caused to the applicants. Aggrieved thereby, the landladies appealed to the District Court. The tenants too filed cross objections questioning the finding that the landladies had proved their bona fide need. By his impugned judgment, the learned District Judge allowed both the appeals confirming the finding of the trial Court on bona fide need and also holding that the landladies would suffer greater hardship. He therefore decreed the suits. Aggrieved thereby, the tenants have preferred these revision applications. 5.
By his impugned judgment, the learned District Judge allowed both the appeals confirming the finding of the trial Court on bona fide need and also holding that the landladies would suffer greater hardship. He therefore decreed the suits. Aggrieved thereby, the tenants have preferred these revision applications. 5. Applicant Chipade has also filed a civil application for being permitted to tender additional evidence to show that the use for which the landladies seek possession is not permissible and therefore the finding on bona fide need should be reversed. Since the evidence which is sought to be given is based on a notification by the Ministry of Environment and Forests dated 17-1-2001 and rejection of the applicant Chipade’s application to the Panchgani Municipality for starting a flour mill, holler and chilly pounding machine, it is not necessary to take any additional evidence. The documents annexed to the application are being considered while deciding these revision applications. 6. I have heard the learned counsel for the parties. The death of respondent No.3’s husband during the pendency of these applications will not materially affect the fortunes of the parties. As rightly pointed out by the learned senior counsel for the landladies, Ramchandra’s expertise or experience may not be available now, but that does not diminish the need. He is also right in submitting that grown up children cannot sit with folded hands till they grey their hair through the period of pendency of litigation. Need set up was also for children of the landladies who were supposed to help Ramchandra. Merely because they take up other avocations, it cannot be said that they do not need the premises. It must be recalled that suits themselves were filed in 1985 - 25 years ago. Life cannot be frozen at that moment and just as tenants point to further developments, needs of landlords cannot be ignored. Also if the Courts were to follow the rigmarole of asking parties to plead every change, then remit them to trial stage for recording evidence and findings on changed circumstances, there would be no end to plight of landlords kept out of possession. 7. The learned counsel for the tenants questioned the findings of the Courts below on the bona fide need set up by the landladies.
7. The learned counsel for the tenants questioned the findings of the Courts below on the bona fide need set up by the landladies. The judgments of both the Courts below show that after properly appreciating the evidence tendered they have concurrently held that bona fide need is proved. These findings are proper and do not call for any interference in exercise of revisional jurisdiction. 8. The learned counsel for the tenant Chipade next submitted that if the need of the landladies can be satisfied by securing possession of one of the premises, the Courts below ought to have restricted the decree to one of the two premises. He then submitted that in such an eventuality, it would have been necessary for the Courts to decide as to which of the two tenants ought to be evicted, considering the comparative hardship inter se the tenants, and, since the other applicant Daruwalle has allegedly constructed a new building in Panchgani itself, the axe should fall on Daruwalle. The learned counsel submitted that since this would require evidence to be taken and would involve evaluation of needs/resources of the two tenants, the matters may be remanded back to the trial Court. This is indeed an ingenious argument which would ensure that the tenants remain over the property for another 25 years. 9. This contention has to be rejected because it is not the case of the landladies that their need was for one of the two premises. As pointed out by the learned senior counsel for the landladies, the premises in possession of the tenant Daruwalle would be used for locating flour mill at front and chilly pounder at the back and the premises with Chipade would be used for customer area and sales counter at the front and rice mill at the rear. Since the entire premises are needed by the landladies, further hypothetical problems raised do not survive. 10. It may be useful to point out here that though the Courts below had not decided the suits/appeals by common judgment after a common trial/hearing, they were decided by judgments simultaneously delivered. Thus the Courts were aware of the need set up and proved. Therefore, there is no question of balancing comparative hardship of the two tenants inter se as both have to go together. 11.
Thus the Courts were aware of the need set up and proved. Therefore, there is no question of balancing comparative hardship of the two tenants inter se as both have to go together. 11. This takes me to the question of effect of the notification dated 17-1-2001 issued by the Ministry of Environment and Forests notifying bazar area in Panchgani as heritage area and consequent letter of Panchgani Municipality to Chipade that he would not be permitted to set up rice mill etc., on the site. It is not necessary to decide the question whether such a use is permissible or not, since adjudication thereof would be necessary only if the authorities whose permission is required under the notification grant or refuse such permission. The contention of the learned counsel for the tenant Chipade that in any case, the decree of ejectment may be made contingent upon the landladies’ securing requisite clearance also has to be rejected for, in that case the landladies may start some other permissible activity. Need set up is to provide a vocation to children. What that business must be cannot be a subject matter of landlord-tenant dispute. Mentioning an activity is only incidental and not the core of need which is considered. 12. The learned senior counsel for the landladies drew my attention to the observations of the Supreme Court in Raj Kumar Khaitan and others v. Bibi Zubaida Khatun and another, reported in AIR 1995 SC 576 = (1997) 11 SCC 411 and Ram Babu Agarwal v. Jay Kishan Das, reported in (2010) 1 SCC 164. As held by the Supreme Court in Raj Kumar Khaitan’s case (supra), even if nature of business is indicated for pleading bona fide need, nobody could bind the landlords to start the same business. 13. In view of this, the revision applications must fail and are rejected.