Sou. Vijaya Arun Beri v. Shri Vijay Waman Bhat

8. On the other hand, Mr. Naphade learned counsel for the Respondents (legal heirs of Plaintiff landlord) submitted that though language of the Appeal Court’s judgment at some places is not upto the mark, what is held in essence, is that requirement of the landlord as pleaded ranks higher than the tenant’s requirement to use suit premises as occasional holiday home. Inviting the Court’s attention to paragraph No.3 of the plaint, he submitted that the requirement is sufficiently pleaded for the landlord and his family members. He submitted that Petitioner has admitted that she is residing in her own flat. He submitted that no medical record or evidence is produced for alleged medical condition about climate. He submitted that the requirement is not completely eclipsed and ordinarily the requirement as pleaded on the date of the suit must be considered. He submitted that the Petitioner has not even shifted to the suit premises post retirement. That the Court has to consider the impact of subsequent events in pragmatic manner. He submitted that long delays in the legal system, which are completely beyond the control of the landlord, must not be permitted to result in very cause of the landlord getting frustrated. He relied upon following judgments in support of his case:

(i) Kanahaiya Lal Arya V. Md. Ehshan and Ors. [2025

(ii) D. Sasi Kumar V. Soundararajan [(2019) 9 SCC 282],

(iii) Trimbak Gangadhar Telang and Anr. V. Ramchandra

(iv) Pasupuleti Venkateswarlu V. The Motor & General

REASONS AND CONCLUSION

9. I have carefully considered the submissions and perused the record. For better understanding of the requirement pleaded by the landlord, paragraph No.3 of the plaint is reproduced below: “3.The Defendant does not use suit premises for her own residential use and is residing mainly at Bombay. Defendant was working at Railway and her husband is also residing at Bombay. Defendant resides in suit premises occasionally once in 10 to 11 months in holidays or vacations. The Plaintiff's family comprises of 6 people. The premises in possession of Plaintiff are 3 rooms admeasuring about 10" x 10" each. The children of Plaintiff have grown up and these 3 rooms of 10" x 10" are not sufficient enough for Plaintiff's family. The Plaintiff’s children have also grown up and they need more area for their studies & stay and as such are suffering from grave inconvenience & difficulties. The premises in possession of Plaintiff is not sufficient for himself & his family members. Defendants are not residing at Lonavala but are residing at Bombay and are occassionally using suit premises for one or two days and as such are not in need of suit premises. The Defendants will not suffer any inconvenience if they have to leave the suit premises. The Plaintiff will suffer grave inconvenience if the suit premises is not given to them. The Plaintiff honestly submits that the suit premises is required by him for his personal & family requirement and as such their requirement of suit premises is proper & reasonable.” [emphasis supplied]

10. It is therefore clear that the Plaintiff has given size of his family, the area of three rooms in his possession. The Plaintiff has pleaded that children are growing up requiring more space. He has pleaded that premises in his possession are not sufficient for himself and for his family members. That he will suffer grave inconvenience if suit premises is not given to him. That he honestly requires suit premises for his personal and family requirement.

11. In a recent judgment of Kanahaiya Lal Arya (supra) the Hon’ble Supreme Court has reiterated the well settled principle that the landlord is the best judge of his requirement. It is also settled principle of law that neither the tenant nor the Court can dictate terms to the landlord.

12. In my view, the above pleadings are more than sufficient for the landlord to urge not only his own requirement but requirement of his whole family. This case is duly supported and proved by the landlord by entering into witness box.

13. It is important to note that the landlord has come to the Court with a specific case that the Defendant is mainly residing at Mumbai as she was working in Railway and her husband is also residing at Mumbai. He has specifically pleaded that Defendant resides in suit premises occasionally, once in 10 to 11 months in holidays or in vacations. Perusal of the written statement filed by the Defendant indicates that she is permanent resident of Mumbai and her husband was also working at Mumbai at the relevant time. She has clearly admitted that suit premises are taken by her for holidays and vacations and for change in climate and for residential use after retirement. She has contended that she cannot afford any other place in Lonavala which is suitable for her health. She has contended that she keeps well by occupying suit premises, because of which she does not have to spend on medicines. She has taken defence that she was advised by a doctor to change climate condition and she can not stay at Mumbai permanently. She has also reiterated the said case in her evidence stating that “I have taken the suit premises on rent for my convenient and for vacation and for change of climet for my illness”.

14. It is therefore clear that requirement of the landlord is for accommodating increasing need of his family, as against the purpose of tenant, which is only occasional use as holiday home for alleged medical condition with Lonavala’s climate suitable for her.

15. There is no evidence on record in support any specific medical condition of the Defendant. The alleged case of climate condition of Lonavala suiting Petitioner and keeping her well, saving her money on medicines and doctor’s advice is nothing but bald statement in the pleadings without any medical record or evidence in support. Therefore it cannot be accepted. The said case of the Petitioner is a lame attempt to invoke Court’s sympathy.

16. The falsity of the tenant’s case about so called medical condition being affected by Mumbai weather can be seen from following admissions given by her in the cross-examination: “In 1989 I got retirement. Since 10 to 12 years I am suffering from low Blood-pressure Dr. has not given any treatment to low B.P. but I am adviced to take rest when I feel uneasy. I took voluntarily retirement, to look after my family and due to my illness of low B.P. Since 1989 I am traking rest at home. It is not true to say that at present I am not the patient of low B.P. If I get strained, I get the attack of low B.P. As per our convenient we used to come to Lonawla. If I get attack of B.P. and if it is convenient to come to Lonawla, then I used to come to Lonawla. If I get attack of low B.P. and if it is not convenient to come to Lonawla, then I used to take rest at Mumbai.”

17. The aforesaid admissions clearly indicate that only when it was convenient for the tenant, she would come to Lonavala (suit premises). This is nothing but an attempt to over-stretch protection under Bombay Rent Act to deprive a landlord of his requirement. This is simply an attempt to retain tenanted premises by all possible means. It is matter of common knowledge that when a person suffers from low blood pressure, it is not possible to travel at will to get blood pressure settled. It is clear that the Petitioner has stretched the case way too much, to suit her own convenience.

18. The Plaintiff-landlord has already expired. When his children were growing, his requirement of making available additional space was not fulfilled. It is worth noting that the impugned judgment and decree is passed in second round of litigation as the appeal was remanded and reconsidered. Impugned decree is of December 2002 and thereafter, 23 years have passed. The landlord and his wife has expired in the interregnum. It has been a pathetic situation for landlord and his family waiting for outcome of the litigation that started in 1994, about 31 years ago.

19. Perusal of the Appeal Court’s judgment shows that the Appeal Court has considered the measurement of three rooms available with the landlord. The Appeal Court has considered the family size of the landlord being landlord himself, his wife, one daughter and two sons with mother at the relevant time.

20. The Appeal Court has held that Respondent has to be considered alone as a member of family so far as the tenancy claim is concerned. This observation in paragraph No.9 of the impugned judgment is seriously assailed by the learned Senior Advocate for the petitioner. Such consideration, even if apparently not correct, will not vitiate the ultimate conclusion reached by the Appeal Court, considering over all facts and circumstances.

21. Learned Senior Advocate for the Petitioner also assailed the observations of the Appeal Court in paragraph No.10 about a flat being available with the tenant at Bombay. In this respect, it is material to note that the tenant has admitted in her cross-examination that at Mumbai their family is staying in their own flat. The words “our own flat” cannot be considered anything else and certainly not a space in a chawl. Therefore, there is nothing wrong with the observation of the Appeal Court.

22. The Appeal Court has considered that children of the landlord are boys and a girl and they may require different rooms. The Appeal Court has considered that the children of the landlord may require place to play with their friends or may require separate study room or bedroom. The Appeal Court has considered the requirement of privacy of the landlord and his family. All these considerations, despite the quality of language and words used by the Appeal Court, remain relevant considerations.

23. The Appeal Court has considered that the tenant is a retired lady who wants to use the suit premises as holiday home occasionally during vacation, as against the requirement of the landlord including his requirement to provide bigger place to his family, including growing children. There is nothing wrong with this consideration. In fact it is the most important consideration in the facts of this case.

24. The Appeal Court has held that if the tenant requires good weather and if she really has a problem with Mumbai climate, she could not have allowed a flat and a place in a chawl in Mumbai and could have used her funds accordingly in places like Lonavala. The Appeal Court has concluded that the tenant has insisted for retaining suit premises as holiday home for her whim, especially in the absence of any medical record to show that Mumbai weather really affects her health. In my view this is the most probable finding.

25. The Appeal Court has further considered that the tenant even after taking voluntarily retirement has chosen to reside at Mumbai with her family members. The observation about tenant being rich and landlord being middle class person is out of place. However, it does not affect or vitiate the finding about bona fide requirement, for this Court to interfere.

26. The Appeal Court in paragraph No.22 of the impugned judgment has rightly compared landlord’s need for additional accommodation vis-a-vis accommodation for enjoyment as a holiday home by tenant. The need pleaded by the landlord is rightly compared and pitched against the requirement of tenant for occasional use.

27. So far as the aspect of comparative hardship is concerned, the Appeal Court has considered that when the suit was filed, there were six persons in the family of the landlord. Comparing the need pleaded by the landlord and requirement of occasional use by the tenant during holiday, it is found by the Appeal Court that the hardship tilts in favour of the landlord. This finding is also the most probable finding.

28. Now coming to the aspect of subsequent developments.

29. In Gaya Prasad (supra), the Hon’ble Supreme Court has held that crucial date for deciding as to bona fide requirement, is date of filing of suit and subsequent events to overshadow genuineness of need must be of such nature and dimension that the need propounded by the landlord should have been completely eclipsed. In the said judgment, it is held by the Hon’ble Supreme Court as under: “10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post-petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow-process system subsists. During 23 years, after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to crease the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.”

30. The Three-Judges Bench of Hon’ble Supreme Court in the case of Pasupuleti Venkateswarlu (supra) relied upon by the Respondents, was taken note of in the case Gaya Prasad (supra) and it was held that the said judgment forewarned that the cognizance of subsequent events should be taken very cautiously.

31. In Kedar Nath Agrawal (supra) the Hon’ble Supreme Court after considering various earlier judgments held that the High Court was in error in not considering the subsequent event of death of both applicants and it was power as well as duty of the High Court to consider the fact of death of applicants during pendency of the writ petition. Agreeing humbly, in the present case therefore, this Court is considering the effect of subsequent developments, as will be clear from the paragraphs to follow.

32. In the recent judgment of D. Sasi Kumar (supra) the Hon’ble Supreme Court has re-iterated the above law laid down in Gaya Prasad. In this case, the Hon’ble Supreme Court was considering bona fide requirement and it is held that once landlord establishes bona fide requirement ‘on the date of institution of suit’ the same subsists irrespective of delay in adjudication and declining relief to the landlord on the ground of delay is impermissible, as it would encourage the tenants to protract the litigation. The Hon’ble Supreme Court has also held that High Court re-appreciating the evidence was impermissible.

33. In the Judgment of Seshambal (supra) relied upon by the Petitioner, the Hon’ble Supreme Court has observed that subsequent events having bearing on the right to seek relief can not be shut out from consideration and the Court is expected to ‘examine the impact of such subsequent development’ on the right to relief and if necessary, mould the relief suitably so that the same is tailored to the situation on the date of grant of relief.

34. Hence, the settled position of law, as emerging from the judgments discussed above is that in the proceedings under the Rent Act seeking eviction, subsequent events and its effect on the relief claimed are material consideration for the purpose of decision at Appellate stage.

35. It must be noted that development in the lives of landlord can not be expected to come to a standstill during pendency of eviction proceedings, especially in view of delay in legal system. There can be myriad of subsequent developments and situations. Therefore, to decide the impact of subsequent development, it is obvious that such effect has to be seen in the facts of each case and no straight jacket formula can be adopted. Therefore in such situations, unless the requirement is completely eclipsed / extinguished, suit for eviction can not be dismissed.

36. Let us therefore consider the effect of death of landlord and his wife and his legal heirs coming on record.

37. After the death of the landlord and his wife, present Respondents being son and married daughter are brought on record. They are very much part of the landlord’s family and they are defending the decree of eviction. In affidavits in reply dated 28.03.2025 (paragraph 3) and 19.09.2025 (paragraph 4) filed by landlord’s legal heirs, it is stated on oath as under: “ xxxx We further say that after the death of the Original Landlord / Owner i.e. the Deceased Respondent Mr. Vijay Waman Bhat who died Intestate, these Respondents as the only Legal Heirs of the Deceased Respondent are holding equal right, title and interest in the Suit Property and are therefore furthering the cause of the Deceased Respondent, who was unable to get the Return of Possession of the Suit Property and also the Mesne Profits in respect of the Suit Property xxx” There is no reason to disbelieve the above case of the legal heirs that they are furthering the cause. Therefore it cannot be said that the requirement is completely eclipsed or extinguished. There is no merit in the argument of Petitioner that the bona fide requirement is completely eclipsed.

38. After considering the above facts and circumstances, overall, I am of the opinion that it cannot be said that requirement is completely eclipsed as on today. Even if presently the petition is being opposed by one son and one daughter of Respondent landlord, who are residents of Pune, it cannot be said that just because they are residing at Pune they do not require the suit premises at Lonavala. To say that present Respondent Nos.[1] & 2 do not require their own suit premises at Lonavala and to refuse decree of eviction will be travesty of justice.

39. In J. Marathe (supra), the Division Bench of this Court was considering the case involving ground under Section 13(1)(l) of the Bombay Rent Act and this Court was considering whether acquisition of residential premises by tenant in different town can per-se be considered as acquisition of suitable residential premises within the meaning of said section. The Division Bench held that ordinarily, acquisition or allotment of residential premises outside local area will not automatically forfeit the protection given by the Bombay Rent Act and it will ultimately depend on facts and circumstances of the particular case. There is no dispute about this proposition of law. In the present case, the ground involved is not of acquisition of alternate suitable residence by the Petitioner. In the present case, the premises available with the Petitioner at Mumbai are considered by the Appeal Court as a consideration of comparative hardship. Therefore this judgment will not help the Petitioner.

40. In Deena Nath (supra) the Hon’ble Supreme Court has held that the bonafide requirement cannot be mere fanciful and whimsical desire. I am in respectful agreement with the said proposition. However, in the present case, on facts it is found that neither requirement as pleaded at the time of filing of the suit nor the requirement of the family as on today is mere fanciful or whimsical desire. Therefore present case being factually distinguishable, the said judgment will not help the Petitioner.

41. In Trimbak Gangadhar Telang (supra), it is held that it is only when the impugned order is violative of fundamental basic principles of justice and fair play and where a patent and flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that this Court can justifiably intervene under Article 227 of the Constitution of India.

42. The jurisdiction of this Court under Article 227 of the Constitution of India is limited to correcting errors apparent on the face of the record and interfering if there is perversity in the impugned order. It is not for this Court sitting under Article 227 of the of Constitution of India, to re-appreciate the evidence and interfere in a probable finding.

43. In the facts and circumstances narrated above, the view taken by the Appeal Court is the most probable view. The Appeal Court has rightly pitched the case of the tenant for use as holiday home against requirement pleaded by the landlord. The view taken by the Appeal Court that requirement of landlord ranks higher than tenant’s need to use it as holiday home, cannot be faulted with.

44. Certain considerations by the Appeal-Court may be treated as out of place. Wording and language of the Appeal-Court may not be up to the mark or even below par, at some places. However, it is not of such degree as to vitiate the ultimate conclusion drawn by the Appeal-Court. After all, a Judge is not expected to write a literary work of excellence.

45. Over all consideration of the evidence by the Appeal Court is found to be appropriate and leading to the most probable finding. Therefore in the limited jurisdiction under Article 227 of the Constitution of India, this is not a fit case to interfere. Since the end result of impugned order is found justifiable, relying on the judgment of Hon’ble Supreme Court in the Garment Craft Vs. Prakash Chand Goel (2022) 4 SCC 181, I decline to interference.

46. The Writ Petition is accordingly dismissed. Petitioner, including all adult members of her family, are directed to hand over vacant and peaceful possession of the suit premises to the Respondents within a period of 6 weeks from today. The decree of eviction becomes executable immediately after 6 weeks. copy of this order. (M.M. SATHAYE, J.)