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CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 553 OF 2019
Pratap Arjundas Valecha, Age: 63 years, Occupation: Business
R/o. Bharat Hotel, Near Ramkund, Near Pande Mitthai, Panchvati, Nashik ...Applicant
Residing at Old Tambat Lane, Nashik.
2. Heena Paresh Talajia
Age-47 years, Occupation: Household, Residing at 1844, Old Tambat Lane, Nashik
…Respondents
Mr. Surel Shah, Senior Advocate, with Sandeep D. Shinde and S
Relekar, for the Applicant.
Mr. Vikram A. Sathaye, i/b Yogita Deshmukh, for Respondent.
JUDGMENT
1. This Revision Application is directed against a judgment and order dated 27th June 2018 passed by the learned District Judge, Nashik in RCA No. 91 of 2014, whereby the Appeal preferred by the Respondents-Plaintiffs, against a judgment and decree passed by the Trial Court in RCS No. 167 of 2008 dated 30th January 2014 was set aside and the said Suit came to be decreed thereby directing the Applicant to deliver vacant and peaceful possession of the premises situated at City Survey No. 5900 (the Suit premises).
2. Shorn of unnecessary details, the background facts leading to this Revision Application can be stated as under: 2.[1] The suit premises is the joint family property of Talajia family-the members of which perform the rituals as priests. The Applicant- Defendant is a tenant in respect of the suit premises. The Defendant runs a hotel under the name and style of Bharat Hotel in the suit premises. The rent of the suit premises was Rs. 450 per month. 2.[2] Viresh(R[1]) and Ramesh Talajia (P[2]) and Madhukanta Talajia (P[3]) instituted a Suit for recovery of possession of the suit premises on the grounds of default in payment of rent, personal bona fide requirement of the landlord and the nuisance and annoyance to the ad-joining occupiers on account of the acts and conduct of the Defendant and his servants, while running the said hotel. 2.[3] It was, inter alia, asserted that the members of the Plaintiffs family were rendering services as priest. The premises in the possession of the Plaintiffs was extremely inadequate to render the services as priest as there was a huge rush of the devotees. Vishal, Prashant, Dipak, Gitesh, Ramesh and Bipin, the members of the Talajia family, were not able to render the services of priest on account of paucity of the premises in their occupation. On account of the acts and omissions on the part of the employees and customers visiting the hotel, annoyance was caused to the neighbouring occupiers. The left over food was dumped by the Defendant and his employees in front of the demised premises. That led to grave nuisance. 2.[4] The Defendant No.1-Applicant resisted the Suit by filing a Written Statement. It was categorically denied that the Defendant was in arrears of rent. On the contrary, since January 2008, the landlord had refused to accept the rent with an oblique motive. An effort made by the Defendant to pay the rent by Money Order, did not succeed as the landlord refused to accept the Money Order. The Defendant also controverted the requirement of the suit premises for the occupation of the landlord. It was contended that the requirement was neither bona fide nor reasonable. The Plaintiff had ample space to render the services as priest. They did not require any additional premises for the said purpose. The Defendant also refuted the claim of the plaintiffs that the acts and omissions on the part of the Defendant, his employees and the customers of the hotel amounted to nuisance and annoyance to the neighbouring occupiers. 2.[5] The learned Civil Judge, recorded the evidence of the Viresh (PW-
1) and Jitendra Shah (PW-2). The Plaintiffs also tendered documents to substantiate their claim. The Defendant neither cross-examined the Plaintiffs witnesses nor adduced any evidence in the rebuttal. 2.[6] After appraisal of the evidence and the documents tendered for her perusal, the learned Civil Judge was persuaded to dismiss the Suit opining, inter alia, that the Plaintiffs failed to establish that the Defendants was in arrears of rent and the suit premises was required by the Plaintiffs reasonably and bona fide for their occupation. The evidence adduced by the Plaintiffs, according to the learned Civil Judge, was not sufficient to establish the ground of personal bona fide requirement. 2.[7] Being aggrieved, the Plaintiffs preferred Appeal before the District Judge, Nashik. 2.[8] By the impugned judgment and order the learned District Judge was persuaded to allow the Appeal. The learned District Judge was of the view that, since the evidence adduced by the Plaintiffs to substantiate their claim of requirement of the suit premises had gone unimpeached, there was adequate evidence to sustain a decree for eviction on the ground of personal bona fide requirement. In the view of the learned District Judge, the element of greater hardship was also required to be answered in favour of the landlord. Thus, while affirming the finding of the Trial Court that the Plaintiffs failed to establish that the Defendants committed default in payment of rent, the learned District Judge held that the ground of personal bona fide requirement of the landlord was duly proved and, resultantly, passed the decree for eviction. 2.[9] Being aggrieved the Defendant has invoked the revisional jurisdiction.
3. I have heard Mr. Surel Shah, the learned Senior Advocate, for the Applicant, and Mr. Vikram Sathaye, the learned Counsel for the Respondents, at some length. The learned Counsel took the Court through the pleadings and evidence on record.
4. To begin with, it is necessary to note that the there is not much controversy over the jural relationship between the Applicant and the Respondents. Nor is it in contest that the Applicant runs a hotel in the demised premises. The facts that the demised premises is situated at a close distance from a temple and the Applicants family renders services as priests are also not much in dispute.
5. The Courts below have rendered concurrent finding that the Plaintiffs failed to establish the ground of default in payment of rent by the Defendant. The controversy thus revolves around the question as to whether the learned District Judge was justified in recording a finding that the suit premises was required reasonably and bona fide for the use and occupation of the Plaintiff and, in the event of refusal to pass the decree, the Plaintiffs would suffer greater hardship.
6. As noted above, the evidence of PW-1 and PW-2 went unimpeached. Despite ample opportunity, the Defendant did not crossexamine the Plaintiffs witnesses. Nor the Defendant adduced any evidence in rebuttal.
7. Faced with the situation which emerged on account of no contest on behalf of the Defendant-Applicant, Mr. Shah, the learned Senior Advocate for the Applicant, would urge that, notwithstanding the fact that the Defendant did not contest the suit, it was incumbent upon the Courts to evaluate the evidence and material on record before a decree for eviction could be passed. In the case at hand, the learned Trial Judge had correctly appraised the material on record and declined to pass the decree, though the evidence on behalf of the Plaintiffs went unimpeached. The learned District Judge, according to Mr. Shah, however, erred in passing the decree loosing sight of the judicious discretion which was required to be exercised.
8. To buttress the aforesaid submission, Mr. Shah placed reliance on a judgment of the Supreme Court in the case of Balraj Taneja And Anr Vs Sunil Madan & Anr,[1] wherein it was enunciated that the Court is not expected to act blindly upon the admission of a fact made by the Defendant in his Written Statement nor the Court should proceed to pass the judgment blindly merely because a Written Statement has not been filed by the Defendant traversing the facts set out by the Plaintiff in the Plaint. In a case, specially where a Written Statement has not been filed by the Defendant, the Court should be a little cautious in proceeding under Order VIII Rule 10 of the Code of Civil Procedure 1908 (“the Code”). Before passing the judgment against the Defendant it must see to it that even if the facts set out in the Plaint are treated to have been admitted, a judgment could possibly be passed in favour of the Plaintiff without requiring him to prove any fact mentioned in the Plaint. It is matter of Court’s satisfaction and, therefore, only on being satisfied that there is no fact which need to be proved on account of deemed admission, the Court can conveniently pass a judgment against the Defendant who has not filed the Written Statement.
9. Mr. Shah would further submit that the evidence adduced by the Plaintiffs, even if taken at par, does not satisfy the test of reasonable and bona fide requirement. The learned Trial Judge was, therefore, wholly justified in negativing the claim of the Plaintiffs as the area which was in the occupation of the Plaintiffs, the persons for whom the additional premises was required and the extent of the requirement were not at all spelled out by the Plaintiffs. In the absence of such evidence, the learned District Judge committed a grave error in allowing the Appeal and passing the decree of eviction on the ground that the Defendant did not cross-examine the Plaintiffs' witness and adduce evidence. To this end, Mr. Shah placed reliance on a judgment of the Supreme court in the case of Sudha Agrawal Vs Xth Addl District Judge & Ors.[2]
10. In the said case the Supreme Court postulated that in the context of the provisions contained in U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, where Application of the landlord is uncontested, still the landlord has to establish his bona fide need. In fact the landlord is required to stand on his own legs and he cannot derive any advantage of absence of defence of the tenant. The proceedings before the prescribed authority are like an uncontested Suit, where there is no defence of the Defendant. In such a Suit, the Plaintiff in order to get a decree must prove his case to the satisfaction of the Court.
11. Mr. Shah also placed reliance on a judgment of a learned Single Judge of this Court in the case of Hanuman Mishrimal Oswal & Anr Vs Chandrakant Bhagwantrao Chavan & Ors[3] wherein after referring to an earlier decision in the case of Tarachand Hassaram Shamdasani Vs Durgashankar G. Shroff,[4] the learned Single Judge observed as under:
12. Per contra, Mr. Sathaye, the learned Counsel for the Respondents, stoutly submitted that the leaned District Judge was well within his rights in reversing the judgment and decree passed by the Trial Court as the latter had completely misdirected herself in appreciating the concept of, “reasonable and bona fide requirement”. Taking the Court through the Judgment of the Trial court, Mr. Sathaye would urge that the leaned Civil Judge had taken a completely erroneous view of the matter in nonsuiting the Plaintiffs on the ground that the Plaintiff did not examine the members of the family for whom the possession of the demised premises was sought. It is settled law that the term personal requirement is required to be construed liberally and is not restricted to the landlords individual requirement. The learned District Judge was, therefore, fully justified in correcting the error into which the Trial Court had fallen in.
13. To bolster up the aforesaid submissions, Mr. Sathyae placed reliance on the judgments of the Supreme Court in the cases of Ramkubai Since Deceased by L.Rs. & Ors Vs Hajarimal Dhokalchand Chandak & Ors,[5] Dwarkaprasad Vs Niranjan & Anr,[6] C Karunakaran (Dead) by LRs Vs T. Meenakshi[7] and a judgment of this Court in the case of Chotumal Bahiramal Sindho (Since Deceased) through his LRs Vs Baburao Vinayak Mohadkar (Since Deceased) through his LRs.[8]
14. The aforesaid submissions now fall for consideration:
15. In the backdrop of the uncontroverted facts, noted above, a perusal of the evidence adduced by the Plaintiffs, indicates that the Viresh Talajia (PW-1) had given a vivid account of the nature of services rendered by the Plaintiffs family members as priests, insufficiency of the premises then in occupation of the family and the necessity of the additional premises to cater to the requirement of the devotees who visited the adjoining temple in large numbers. It was in terms deposed that out of the family members, Vishal, Prashant, Dipak, Gitesh, Ramesh and Bipin were not in a position to render their services as priest as the premises in their occupation was insufficient.
16. The aforesaid uncontroverted testimony of the Viresh Talajia (PW-1) was discarded by the learned Civil Judge primarily on the 5 2000(3) Bom C.R. 628.
8 2009 (5) All M.R. 342. ground that the Plaintiff did not furnish the number of devotees who approached the Plaintiffs for such services; the number of devotees who could not be provided such services on account of paucity of the space and the non-examination of the abovenamed members of the Plaintiffs family as witness to substantiate their claim.
17. Evidently, the learned Civil Judge did not correctly appreciate the concept of reasonable and bona fide requirement. It is not an immutable rule of law that the landlord must examine the members of the family for whom the premises is required. The expression, “ for occupation by himself” is not confined to the landlord individually.
18. In the case of the Dwarkaprasad (Supra), the Supreme Court considered the question as to whether the ground of eviction of the tenant for the personal bona fide requirement of the landlord be construed strictly so as to confine it to the requirement of the landlord alone or can it be extended to include the requirement of the members of the landlord’s family. The Supreme Court held that the ground of eviction contained in Clause (g) of Section 13(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (“the Bombay Rent Act 1947”), has to be liberally construed. Confining it to the landlord alone would defeat the very object of the said provision.
19. In the case of Joginder Pal Vs Naval Kishore Behal,[9] to which a reference was made in the case of Dwarkaprasad (Supra), it was enunciated that the expression, “for his own use” occurring in Section 13(3) (a) (ii) (a) of the East Punjab Urban Rent Restriction Act, 1949 has to be liberally construed and should be given a wide and useful meaning rather than a strict and narrow construction. The requirement of a member of the family of the landlord who is dependent on the landlord for the purpose of residence or for economical consideration can be considered as a requirement of the landlord.
20. In the case at hand, the Plaintiffs have approached the Court with a specific case that the Plaintiffs family was rendering the services as priests, the premises in the occupation of the family was insufficient to render such services by the members of the Plaintiffs family and had, in fact, named the members of the family who were unable to render such services on account of the paucity of the premises. The Plaintiffs thus adduced evidence in support of the said claim. The evidence went uncontroverted.
21. The learned Civil Judge was not persuaded to place reliance on such unimpeached evidence for the reason that the persons to satisfy whose need the suit premises was required, were not examined. Clearly the learned Civil Judge approached the issue from an erroneous perspective.
22. In the case of C Karunakaran (Supra), the Supreme Court has enunciated in clear terms that mere non-examination of the person for whose need the building was required by itself was no ground to nonsuit the landlady. In a number of decisions, it has been held that it is not necessary to examine the person for whose need the premises are required. It depends on the facts and circumstances of each case.
23. Following the aforesaid pronouncement in the case of Chotumal Bahiramal Sindho (Supra), the learned Single Judge repelled the submission canvassed on behalf of the tenant therein that it was necessary for the landlord to examine his two sons to establish that the requirement was bona fide and reasonable.
24. In the light of the apparently erroneous view, which vitiated the findings of the Trial Court, the learned District Judge correctly exercised the jurisdiction to correct the error committed by the Trial Court. Suffice to note that the Plaintiffs had adduced adequate evidence to substantiate the specific pleading as regards the requirement of the suit premises. The requirement was shown to be both reasonable and bona fide. Nothing could be brought on record to show to the contrary.
25. On the aspect of the comparative hardship as well, the leaned District Judge correctly held that the Plaintiffs have brought on record that the Defendant was running three other firms and the evidence in regard to the said fact, went unimpeached. The said fact was also sought to be established by placing on record a copy of the Invitation Card (Exhibit “32”) which enumerates the number of firms which the Defendant was then running.
26. The failure to cross-examine and adduce evidence, can only be said to be at the own peril of the Defendant. Once it was demonstrated that the Defendant had three other firms and nothing could be brought on record to show that, after the institution of the Suit, the Defendant had made efforts to search for premises to run the hotel business, the element of comparative hardship was justifiably answered in favour of the Plaintiffs.
27. For the forgoing reasons, this Court does not find such infirmity or jurisdictional error in the impugned judgment and order as to warrant interference in exercise of the revisional jurisdiction.
28. Hence the following order:: O R D E R: The Civil Revision Application stands dismissed. No costs. [N. J. JAMADAR, J.] At this stage, the learned Counsel for the applicant seeks continuation of the stay to the execution and operation of the impugned judgment and decree of eviction. As the stay has been in operation since the year 2019, the same shall continue to operate for the period of four weeks from today, subject to the Applicant filing an undertaking that he is in possession of the Suit premises and he will not part with possession of the suit premises or otherwise create any third party interest therein, within a period of one week from today. [N. J. JAMADAR, J.]