Dr. Sakharam Dinkar Patwardhan v. Shri Shankar Kondo Kalekar

1. Heard Mr. Deshmukh, learned Counsel appearing for the Petitioner and Mr. Shimpi, learned Counsel appearing for the Respondent Nos. 3/1 to 3/3 i.e. the contesting Respondents.

2. The challenge in this Writ Petition, filed under Articles 226 and 227 of the Constitution of India, by the Petitioner, who is the original tenant is to the legality and validity of the Judgment and Decree dated 29th February 1996 passed by the learned III Additional District Judge, Solapur in Civil Appeal No.415 of 1989. The challenge in said Civil Appeal No. 415 of 1989 was to the Judgment and Decree dated 30th March 1989 passed by learned II Joint Civil Judge, Junior Division Solapur in Regular Civil Suit NO. 1099 of 1980, by which the said Suit was dismissed. By the impugned Judgment and Decree dated 29th February 1996, the Appeal is partly allowed by passing partial eviction decree regarding only Block No.14 out of Suit premises being Block Nos. 14, 15 and 16 of Kalekar Building, Navi Peth, Solapur.

3. It is the submission of Mr. Deshmukh, learned Counsel that, although earlier the bonafide requirement mentioned as of all the Plaintiffs, however, during the pendency of the Suit, the plaint has been amended by adding paragraph 2(v) and paragraph Nos. 6(v) by which it has been brought on record that the partition has been effected between the Plaintiffs and as far as the Plaintiff No.3 is concerned, he has been allotted Block Nos. 7, 14, 15, 16, 20, 21 and 22 of said Kalekar Building. He submitted that the entire basis of the case of Plaintiff No.3 is on the partition of the properties, however, said partition has not been proved and in any case, the same is challenged by filing Suit by one co-owner. He submitted that the said partition is malafide. He submitted that the Plaintiff No.3 has failed to prove bonafide requirement and therefore, the impugned decree of partial eviction should not have been passed. He further submitted that the learned Trial Court by giving cogent reasons has dismissed the suit and therefore the learned Appellate Court should not have interfered with the findings recorded by the learned trial Court.

4. Mr. Shimpi, learned Counsel appearing for the Respondents submitted that as far as allotment of these blocks in favour of Plaintiff No.3 is concerned, there is no dispute raised by Plaintiffs before the learned Trial Court as well as the learned Appellate Court. He further submitted that all the Plaintiffs are parties to the present Writ Petition as the Respondents, however, none of the Respondents have raised any dispute atleast regarding allotment of these block Nos. 7, 14, 15, 16 and 20 and 21 in favour of the Plaintiff No.3. In any case, he submitted that even assuming that there is no partition, then also admitted position is that the Plaintiff No.3 is co-owner of these properties and therefore, as per settled legal position, even one co-owner can file the Suit for eviction. He further submitted that the evidence on record clearly shows that the son of Plaintiff No.3,who is an Advocate is having need of the premises. He therefore, supported the decree passed by the learned Appellate Court.

5. At the outset, it is required to be noted that the Petitioner i.e. the Defendant is in possession of Block Nos. 14, 15 and 16 i.e. each block consisting of 3 rooms and thus admittedly the Defendant is in possession of 9 rooms. By the impugned Order of the Appellate Court only partial decree is passed by which the Defendant is directed to deliver vacant possession of Block No.14 to the Plaintiff. The said Block No.14 is consisting of 3 rooms and even after eviction of the Defendant of said Block No. 14, the Defendant will be in possession of 6 rooms of Block Nos. 15 and

16. The position on record shows that all these rooms are very specious.

6. With the above background, it is required to note the reasons given by the learned trial Court while rejecting decree of eviction and even the partial eviction decree. The reasons given by the learned Trial Court reads are as under: “At present the Plff. No.3 is in possession of Block No.7 consisting of 4 rooms. Plff. No.3 and his wife can have a one room for maintaining their privacy. Son of Plff. No.3 and daughter-in-law of Plff. No.3 can live along with small kid in one room. There remains 2 more rooms. One room can be used by the Plff. No.3 as drawing room and remaining one room can be used for other purposes. It is admitted fact that during pendency of the suit, the Plffs. have received possession of Block No.1, 8 and 18. Block No.1 is used by Plff.No.1. Plff. No.1 is in possession of 9 rooms. There were 9 persons in the family of Plff. No.1 at the time of institution of the suit. The Plff. No.1 is in possession of 9 rooms. I am of the opinion that the premises of 9 rooms for the family members of Plff. No.1 are sufficient. Moreover, Block No.1 is used by Plff. No.1 for the office purpose. There is a board of son of Plff. No.3 on Block No.1. It means son of Plff. No.3 is also using Block No.1 as office for his legal practise. Moreover, Plff. No.1 and son of Plff. No.3 have deposited Rs.30,000/- each for getting Chambers in the Court Campus of Solapur. Plff No.1 and son of Plff. No. 3 will get one Chamber each of area 17 x 10 ft. within a few months. Therefore, the problem of office of the Plff. No.1 and son of Plff. No.3 will be solved. It is pertinent to note that the Chambers will be available for the Plff. No.1 and son of Plff. No.3 since

8.30 am to 8 pm. It means crowd of litigants will not be at the Block No.7 of Plff No.3 during the above hours. From all the circumstances and facts of the case, I am of the opinion that the Plffs do not require suit premises, reasonably and bonafide. Hence, I reply the issue in negative.” (Emphasis supplied)

7. It is required to be noted that while considering bonafide need of the Plaintiff No.3, even the area which is in possession of Plaintiff No.1 or more particularly the possession of Block which the Plaintiff No.1 has received has been taken into consideration by the learned Trial Court. However, the learned Trial Court failed to appreciate that the Suit has been filed against the Petitioner- Defendant seeking eviction decree with respect to the Suit premises i.e. Block Nos. 14, 15 and 16, which have been allotted to the share of the Plaintiff No.3 in the partition. Thus, the availability of rooms for the Plaintiff No.1 is totally irrelevant.

8. Apart from that, it is required to be noted that one of the contention raised by the Plaintiff No.3 is that the son of Plaintiff No.3 is an Advocate and therefore, he requires space for independent office. The learned trial Court has held that the Plaintiff No.1 is also an Advocate and therefore, son of Plaintiff No.3, who is junior Advocate also can work from the office of Plaintiff No.1. The learned Trial Court has relied on the fact that the office premises of the Plaintiff No.1 also bears the name-plate of son of the Plaintiff No.3. The learned Trial Court has also held that the family members of the Plaintiff No.3 can adjust in the premises which are available with them. However, the said approach of the learned Trial Court is not in accordance with law. The Supreme Court in the case of R.C. Tamrakar And Another Vs. has held that:-

“10. Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bona fide requirement, it is unnecessary to make an endeavour as to how else the landlord could have adjusted himself.” As per settled legal position, it is the landlord who is the best judge of his requirement and he will decide the manner in which the property will be used. The Court cannot dictate the manner in which the landlord should use the property. The approach of the learned Trial Court is contrary to the legal position.

9. The another reason given by the learned trial Court in effect is that the Chambers would be available in near future to the Advocates in Court campus of Solapur, and the same would be available to them from 8.30 a.m. to 8.00 p.m., therefore it is not necessary to have separate office near the residence. However, the learned trial Court has completely ignored that if an Advocate has office near the Court as well as another at his residences or near the residence, the same is very convenient for Advocate’s work. The Advocates who are the officers of the Court and have to assist the Court in best possible manner have to work very hard for preparing their cases including for studying the facts of the cases, the applicable legal provisions, latest decisions of the Supreme Court and the High Court. Therefore, it cannot be said that the Advocates’ work is only for certain hours as noted by the learned trial Court. The Advocates also have to held conferences with their clients for taking instructions. The Advocate has to give full time attention to his profession. The approach of the learned Trial Court as reflected in the reasoning as quoted hereinabove is completely wrong.

10. In any case, it is the landlord who will decide the manner in which the premises is required to be used. It is required to note the manner in which the learned Appellate Court has considered the need of the Plaintiff No.3 and particularly his son, who is an Advocate. The relevant discussion is in paragraph No.17 which reads as under: “17/- Needless it to say bonafide need of the land lord of the suit premises is to be considered in the context of landlord's own status, occupation and size of his family. In short, it is the landlord's own state of mind in the background of which the requirement has to be considered. Then the requirement must be bonafide i.e. honest and not actuated by motive. In the instant case, plaintiff No.3's son is practising as an Advocate and not only that but he is additional public Prosecutor and Government pleader. Having regard to the functions which he has to discharge and having regard to the nature of the work and his status, his claim that he needs separate office room-cum-study room and a drawing room is not imaginary and hypothetical. I have already discussed extent of his family and his other needs. Considered in the background of all these facts, I hold that the plaintiff has proved bonafide and reasonable need of the suit premises. Lower Court while considering this aspect of the matter wrongly held that plaintiff No.3's son can use office of the plaintiff No.1 which is at the ground floor. This is not only impracticable but contrary to the ethics of the profession because plaintiff No.3's son is now working as Additional public prosecutor and representing State in most of the matters. Lower Court then wrongly relied upon the fact that plaintiff No.3's son was in possession of Lawyer's Chambers and it was sufficient for his office and study. While holding so, Lower Court completely ignored the restrictions on the use of the Lawyer's Chambers and its distance from residence of the plaintiff. Therefore, finding recorded by the Lower Court that need of the plaintiff is not bonafide and reasonable cannot be sustained. I, therefore, differ with the Lower court and the conclusions which are based on certain wrong hypothesis cannot be sustained.” (Emphasis added) Thus, the reasons given by the learned Appellate Court are on the basis of evidence on record and the approach is in accordance with the law.

11. One more contention raised by Mr. Tejas Deshmukh, learned Counsel appearing for the Petitioner that the partition on the basis of which the Plaintiff No.3 is claiming right to Suit premises has been challenged by one of the co-owner. It is required to be noted that although all the co-owners are parties to this Writ Petition, as well as in the Appeal and Suit, however, none of them have raised any objection. In any case as per settled legal position even one coowner can file a Suit for eviction. The Supreme Court in the case of Mohinder Prasad Jain Vs. Manohar Lal Jain[2] has held as follows: “10. This question now stands concluded by a decision of this Court in India Umbrella Mfg. Co. v. Bhagabandei Agarwalla [(2004) 3 SCC 178] wherein this Court opined: (SCC p. 183, para 6)