Full Text
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.841 OF 2014
Anmol Dresses through
1 Chandulal Motilal Shah
2 Hitesh Motilal Shah ...Applicants
(orig. Defendants)
1A Dipak Rajaram Chipade
1B Praful Rajaram Chipade ...Respondents
Mandlik for the Applicants.
Mr. Ashok Dhanuka with Mr. Hitesh Gupta and Mr. Pawan Tiwari for the Respondents.
JUDGMENT
1) Applicants have filed this Application under the provisions of Section 115 of the Code of Civil Procedure, 1908 (the Code) challenging judgment and decree dated 7 July 2014 passed by the learned Principal District Judge, Kolhapur, dismissing Regular Civil Appeal No.225 of 2004 and confirming the judgment and decree dated 15 April 2004 passed by the learned third Joint Civil Judge, Junior Division, Kolhapur, by which Regular Civil suit No.258 of 2002 has been decreed. The Revision Applicants /Defendants are directed to handover possession of the suit premises to the Plaintiff with further direction for conduct of enquiry into mesne profits under Order XX Rule 12 of the Code.
2) Shop premises admeasuring 600 sq.ft. situated in House No.3100 /1-A, ‘A’ Ward, Mahadwar Road, Kolhapur, are the ‘suit premises’. Plaintiff/Respondent claims to be the owner of the suit premises, in which Defendants were inducted as monthly tenant for conduct of business in garments on monthly rent of Rs. 2,000/-. Plaintiff instituted Regular Civil Suit No. 258 of 2002 in the Court of third Jt. C.J.J.D., Kolhapur on 7 March 2002 seeking recovery of possession of the suit premises on the ground of bonafide requirement of himself as well as of his two sons. Plaintiff contended that his family was in the business of jewelry for three generations and the Plaintiff and his two sons did not have any premises for conducting their independent business. That Plaintiff had merely 1/6th share in the partnership firm- ‘Keshav Martand Chipade’ located at Gujari in Kolhapur. That Plaintiff wanted to commence independent business in the suit premises by himself as well as for his two sons. Plaintiff further contended that he was in possession of the premises admeasuring 150 sq. ft. divided by common wall with the suit premises. That his elder son-Deepak Chipade was conducting jewelry business in the said small shop admeasuring 150 sq.ft. That Plaintiff wanted to demolish the common wall and commence the showroom in combined shops admeasuring 750 sq.ft.
3) The Suit was resisted by the Defendants by filing written statement contending that Plaintiff had 3 to 4 jewelry shops in Kolhapur city in joint family and was earning huge income through the jewelry business. That Plaintiff was one of the highest tax paying Jeweler in Kolhapur city. That his family had possession of as many as 11 commercial and residential properties. That after securing tenancy in respect of the suit premises in the year 1969 after paying huge amount of pagdi (deposit) Defendants were carrying out business of readymade garments under the name-Anmol Dresses. They contended that neighbouring shop in the possession of the Plaintiff was admeasuring 300 sq.ft. Defendants accordingly prayed for dismissal of the Suit.
4) Based on the pleadings, Trial Court framed issues. Parties led evidence in support of their respective claims. On behalf of Plaintiff Ms. Sulabha Chipade, daughter-in-law of Plaintiff was examined as PW[1]. Plaintiff also examined Anil Suryawanshi in support of his claim. Defendant examined its partner-Hitesh Motilal Shah and Dattatray N. Salokhe, Shahaji Salokhe and Pravin Patil in support of their case. After considering the pleadings, documentary and oral evidence the Trial Court proceeded to decree the Suit by judgment and order dated 15 April 2004. The Trial Court held that the Plaintiff proved that the suit premises is required by him and his family. The Trial Court held that Plaintiff established bonafide requirement of his son- Prafull in respect of the suit premises. The issue of comparative hardship was held in favour of Plaintiff and against the Defendant. The Trial Court accordingly directed Defendants to handover possession of the suit premises to the Plaintiff with further direction to conduct enquiry into mesne profit under Order XX Rule 12 of the Code.
5) Defendants filed R.C.A. No.225 of 2004 in the Court of Principal District Judge, Kolhapur. However, by judgment and decree dated 7 July 2014, the learned Principal District Judge has dismissed the Appeal by confirming the decree passed by the Trial Court. Aggrieved by the decree of the Appellate Court confirming the eviction decree passed by the Trial Court, Defendants have filed the present Revision Application. By order dated 18 September 2014, this Court admitted the Application and granted ad-interim relief of stay on execution of eviction decree. By order dated 25 April 2017, this Court has fixed the interim compensation in respect of the suit premises at the rate of Rs. 20,000/- per month payable from January 2017. By order dated 7 August 2019 this Court permitted Deepak Rajaram Chipade to withdraw 50% of the deposited interim compensation. The Petition is called out for final hearing.
6) Mr. Patwardhan, the learned counsel appearing for the Petitioner would submit that the Trial Court and Appellate Courts have erred in decreeing the Plaintiff’s Suit on the ground of bonafide requirement. He would submit that neither Plaintiff himself nor any of his sons stepped into the witness box and justified their alleged bonafide requirement. That Plaintiff was in a position to lead evidence, but stayed away from witness box for reasons unknown. That both the sons Deepak and Praful, whose bonafde requirement was also pleaded, did not lead evidence in support of their alleged bonafide requirement. Instead, evidence was led by Ms. Sulabha Chipade, constituted attorney of the Plaintiff, who was incompetent to lead evidence about bonafide requirement of Plaintiff and his two sons. He would also demonstrate that the Trial and the Appellate Courts have erroneously relied upon Ramkubai (smt.) deceased by Lrs. & Ors. V/s. Hajarimal Dhokalchand Chandak & Ors.[1] in which the constituted attorney was son, for whose benefit the business was set up and in any case, the bonafide requirement was ultimately conceded by the Appellant therein. That therefore, the judgment in Ramkubai (supra) cannot be cited in absolute proposition that in every case where the constituted attorney happens to be close relative he /she is competent to give evidence relating to matters in personal knowledge of party to the Suit. That PW1-Sulabha is an Advocate by profession having no knowledge about jewelry business nor is her case that she has participated in the jewelry business of her husband or father-in-law. That, therefore, there was no reason for PW[1] to have any personal knowledge about the bonafide requirement of the Plaintiff or his two sons. Mr. Patwardhan would rely upon judgment of the Apex Court in Man Kaur (dead) by LRs. V/s. Hartar Singh Sangha[2] in support of his contention that a spouse can lead evidence only if, she exclusively manages the affairs of the business of her husband. There is nothing on record to indicate that PW[1] exclusively managed the business of her husband. That in fact she is prohibited from managing the business of her husband on account of her legal profession. He would submit that the Trial Court and the Appellate Court ought to have discarded the evidence of PW[1] and in absence of evidence being led by Plaintiff or his two sons, the Suit ought to have been dismissed.
7) Without prejudice to the objection about inadmissibility of evidence led by PW[1], Mr. Patwardhan would submit that Plaintiff otherwise did not establish the bonafide requirement in any manner. That the Trial Court had accepted bonafide need of only Praful and. (1999) 6 SCC 540. (2010) 10 SCC 512 had not recorded any finding about alleged bonafide need of Deepak, meaning thereby bonafide requirement of Deepak was in fact, rejected by the Trial Court. That the Appellate Court erroneously upheld even Deepak’s need in absence of any cross-objection by Plaintiff. That the findings recorded by the Trial and the Appellate Courts on the issue of bonafide requirement clearly suffer from vice of perversity. That Plaintiffs are otherwise rich persons having numerous jewelry showrooms throughout Kolhapur city and set up a false case of requirement for grabbing the property from the tenant. The need pleaded by the Plaintiff is nothing but fanciful wish, which cannot be fulfilled by ordering eviction of the Defendants, who would suffer greater hardship on account of decree for eviction.
8) Mr. Patwardhan would further submit that neighbouring premises actually admeasure 300 sq.ft. and not 150 sq.ft. as falsely alleged and were sufficient for carrying out the alleged jewelry business of Deepak at the relevant time. That Deepak never wanted to conduct any business from the said neighbouring premises, which is clear from the fact that Deepak finally shut the shop. He would rely upon additional affidavit filed by Hitesh Motilal Shah in support of contention of closure of jewelry shop by Deepak in the year 2017. He would submit that the electricity consumption as well as non-renewal of Shop Act license would fairly indicate that Plaintiff’s son Deepak does not conduct any business in the neighbouring premises. He would therefore pray that the impugned eviction decrees be set aside.
9) Petition is opposed by Mr. Dhanuka, the learned counsel appearing for Respondents /legal heirs of the original Plaintiff. He would submit that the Trial and the Appellate Courts have rightly decreed Plaintiff’s Suit by accepting bonafide requirement of Plaintiffs and his two sons. That PW1-Sulabha was fully competent to lead evidence in support of case of the Plaintiff. Her relationship as daughter-in-law of original Plaintiff is not disputed. Being wife of Deepak, she was bound to possess personal knowledge of the business needs of the family. That she has deposed in detail about various details relating to partnership, area of the premises, financial condition of the family, unemployment of her brother-in-law, etc. That being a member of the family, she has deposed what is in her personal knowledge. Therefore, the Trial and the Appellate Courts have rightly relied upon the evidence of PW[1]. In support he would rely on judgment of the Delhi High Court in Jay Prakash Tyagi and Anr. V/ s. MCD[3]
10) Mr. Dhanuka would further submit that composite need of Plaintiff and his two sons for doing jewelry business in the suit premises was pleaded and has been proved. That Plaintiff as well as his son’s engagement in jewelry business is not disputed. Deepak conducting business in neighbouring premises was also never disputed. Similarly, unemployment of Praful is also not disputed. That therefore, it was but natural for Plaintiff to set up independent business of his children rather than being dependent on joint family business alone. He would take me through findings recorded by the Trial and the Appellate Courts and that therefore there is no warrant for interference by this Court in exercise of revisionary jurisdiction. He would pray for dismissal of the Revision Application.
11) Rival contentions of the parties now fall for my consideration.
12) Plaintiff’s Suit has been decreed on the solitary ground of landlord’s bonafide requirement. Perusal of the Plaint would indicate that Plaintiff pleaded bonafide requirement of himself as well as his two sons-Deepak and Praful for expanding the size of the then existing small jewelry showroom operated in neighbouring shop at 150 sq.ft. by amalgamating the said establishment with the suit premises. The Plaintiff thus, desired to open of a large showroom of 750 sq.ft. for setting up independent jewelry business by himself with his two sons. Plaintiff admitted that he did carry out business in jewelry but as a partner of the Firm- ‘Keshav Martand Chipade’ in which he had 1/ 6th share. Thus, the bonafide requirement pleaded by the Plaintiff was for expanding the existing of small jewelry showroom in shop admeasuring 150 sq.ft. in which his son Deepak conducted the business. It appears that some dispute was sought to be created by Defendant about measurement of the neighbouring shop by contending that the same admeasured 300 sq.ft. However, it appears that Defendants did not prove their assertion about area of neighbouring shop being 300 sq.ft. Therefore, the area of the neighbouring shop will have to be taken as 150 sq. ft. Defendant denied Plaintiff’s bonafide requirement contending that Plaintiff’s family operates three to four jewelry showrooms in 7 to 8 shops in Kolhapur city. They also pleaded that Plaintiff was conducting good business from neighbouring shop and on account of good profits earned through that shop, they had recently renovated the same.
13) As observed above, neither Plaintiff nor his sons -Deepak or Praful led evidence. The evidence instead was led by Sulabha Deepak Chipade, daughter-in-law of the Plaintiff and wife of Deepak. The sheet anchor of Mr. Patwardhan’s submission is about admissibility of evidence led by Sulabha to prove bonafide requirement of her father-in-law, husband and brother-in-law. Affidavit of evidence filed by Sulabha declares her occupation as Advocate with a further contention that Power of Attorney was executed in her favour on account of her legal background. She admitted in cross-examination that she was in legal profession for four years as on 19 August 2003. It is on account of the profession of the constituted attorney that Mr. Patwardhan has strenuously contended that it was impossible for her to exclusively manage the business affairs of the family.
14) The law relating to leading of evidence by constituted attorney in regard to matter involving personal knowledge has been summarised by the Apex Court in Man Kaur (supra) in which it is held in paragraph 18 as under:
18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorneyholder alone has personal knowledge of such acts and such transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorneyholders or persons residing abroad managing their affairs through their attorney-holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorneyholders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his state of mind" or "conduct", normally the person concerned alone, has to give evidence and not an attorney-holder. A landlord who seeks, eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. (emphasis and underlining supplied)
15) In paragraph 18(g) of the judgment in Man Kaur, the Apex Court has dealt with illustration of constituted attorney leading evidence in support of landlord seeking eviction of tenant on the ground of bonafide requirement, which is the case involved in the present proceedings as well. The Apex Court has held that since landlord has personal knowledge about his own bonafide need, he /she alone needs to prove the bonafide requirement by leading his/her own evidence. The Apex Court has however recognised an exception to this principle, where affairs of the party are completely managed, transacted and looked after by attorney, who happens to be a close family member. The Apex Court has given illustration of husband/wife exclusively managing the affairs of his/her spouse. Thus, in a case where husband/wife is found to be managing affairs of the spouse and is in a position to lead evidence with regard to bonafide requirement of the spouse, he/she can lead evidence in capacity as constituted attorney of landlord.
16) In the present case, bonafide requirement was pleaded in respect of Plaintiff as well as his two sons for setting up independent jewelry business by amalgamating existing shop with suit shop. Sulabha is daughter-in-law of Plaintiff and Deepak’s wife. Bonafide requirement of Deepak was also pleaded in the Plaint. Therefore, being a spouse of Deepak, Sulabha is bound to know the position /requirement of her husband. Mere practicing of legal profession by Sulabha would not mean that she would be oblivious of the need of family members for expanding the jewelry business. It has come in evidence that Plaintiff, Deepak and Praful were staying together in same house. Sulabha has led evidence of Praful’s unemployment. She is bound to know the difficulties faced by her husband in operating jewelry business through tiny premises admeasuring 150 sq.ft. It therefore, cannot be contended in the facts of the present case that Sulabha did not have personal knowledge about the family’s requirement for setting up independent jewelry business by expanding the size of the then existing show room.
17) The expression ‘wife exclusively managing the affairs of his/her spouse’ used by the Apex Court in Man Kaur cannot be strictly interpreted to mean that the wife must be in full or total control of all affairs of her husband. ‘Management of affairs’ needs to be understood in the context of the subject matter about which the evidence is being given. To illustrate, the husband participates in the transaction of purchase of property by the wife by becoming part of negotiations and is privy to all interactions with the vendor, he will be treated as a person managing affairs of his wife qua that transaction, even though he may not be a part of other activities of his wife. As a husband, in ordinary course, he is bound to know the resources available with his wife to complete the transaction and her state of mind to complete the same. Thus the expression ‘exclusive management of affairs’ would not mean that the spouse must have knowledge about every tiny detail about the business activities of husband/wife. In the context of bonafide requirement, what needs to be deposed by the Plaintiff is the existence of ‘requirement’, that the requirement is both bonafide and reasonable and cause of greater hardship. For deposing about these factors, the wife need not know every small detail about her husband’s jewelry business. She needs to possess knowledge about the exact need of the family. She can depose about state of mind of her husband. Unless it is proved that the wife had absolutely no knowledge about the family’s business and the need expressed in the Plaint, her deposition as a constituted attorney cannot be discarded altogether.
18) Defendants subjected Sulabha to extensive crossexamination. Perusal of Sulabha’s cross-examination would indicate complete knowledge on her part about joint family business of Chipade family at Gujari and the same being conducted by Plaintiff’s son, his brother and nephew. She has knowledge about the business of the Firm– Keshav Martand Chipade being conducted through three generations. When asked about the names of the partners, she disclosed the same. She even disclosed the shares of various partners. She deposed about income tax returns of the Firm as well as individual returns of partners. She did not express ignorance about turnover of the Firm but denied suggestion that same was in excess of Rs.[1] crore. She gave evidence about the size of the shop in which Firm’s business was being conducted. She led evidence about experience of Praful in jewelry business. Then she was extensively cross-examined about the structure in which the suit premises are located as well as the size of the shop, in which her husband was conducting business, she deposed that Deepak conducted business for 10 to 15 years. At the time of her examination, she answered queries about municipal taxes. The deposition of Sulabha would show her indepth knowledge about business conducted by Firm-Keshav Martand Chipade as well as individually by her husband. Her mere legal background and profession as practicing Advocate for four years cannot be a sole ground for holding that she had no knowledge about the business of the family and was not in a position to depose about the need of the family members. In fact, applying the ratio of the judgment in Man Kaur, in my view Sulabha was fully competent to lead evidence on behalf of Plaintiff.
19) The Trial and the Appellate Courts have relied upon judgment in Ramkubai (supra) in which it is held in paragraph 9 as under:-
9. We have already noted above that the ground of bona fide requirement of the landlady was accepted by the trial court but it was negatived by the appellate court and the same was confirmed by the High Court. The appellate court was swayed away by the fact that the landlady herself did not come into the witness box to support her claim. What is not appreciated by the appellate court is that her son Bhikchand who was also her GPA-holder and for whose benefit the business is to be set up, did come into the witness box to support the case of personal requirement. The appellate court was of the view that the bona fide requirement is in the first place a state of mind and might be something more and that could be established only by the landlady. In all fairness to Mr Mohta, we must note that he conceded that that reasoning of the appellate court could not be supported.
20) True it is that in Ramkubai (supra) the need of the son in whose favour power of attorney was executed was also set up. However, the Apex Court has disapproved the findings of the Appellate Court that bonafide requirement is a state of mind, which could be established only by the landlady. In any case, in subsequent judgment in Man Kaur (supra), the Apex Court has recognised the exception of spouse leading evidence on behalf of her husband about matters in her personal knowledge. In the present case, Sulabha had complete personal knowledge about the business of family members as well as their needs. She is therefore perfectly competent to lead evidence on behalf of the Plaintiff. The Trial and the Appellate Courts have not committed any jurisdictional error in relying on her evidence.
21) Once the contention of Revision Applicant for discarding evidence of Sulabha is repelled, the next question for determination is whether evidence led by her reflects existence of bonafide requirement of Plaintiff and his two sons. Law is well settled that landlord is the best Judge of his bonafide requirement and the tenant cannot dictate his terms. In the present case, Plaintiff and his two sons are engaged in jewelry business. Deepak operating his own independent business in tiny shop admeasuring 150 sq.ft. is borne out from evidence. Praful’s unemployment on the date of filing of the Suit is also clearly proved. The desire expressed by Plaintiffs to expand the tiny showroom by Deepak by amalgamating the same with suit premises appears to be genuine and cannot be discarded as a mere fanciful wish as sought to be suggested by the Revision Applicants. It is but natural for members of growing family to expect expansion of business by seeking possession of additional premises, which is in occupation of tenant. After all it is landlord’s own shop and he is not expected to scout for other premises while tenant continues to enjoy shop belonging to landlord. In my view, Plaintiff’s requirement for himself and his two sons is bonafide and reasonable.
22) It is sought to be suggested by Mr. Patwardhan that Deepak has shut the neighbouring shop in the year 2017. In support, additional affidavit is filed on behalf of the Applicants. The affidavit filed on behalf of Applicants on 22 August 2023 relies on ledger of electricity consumption supply of Maharashtra State Electricity Distribution Company Ltd. (MSEDCL). However, it turned out that said information supplied by MSEDCL by letter dated 17 August 2023 did not pertain to the premises in possession of Deepak. Revision Applicants corrected themselves after being accused of misrepresentation by the Plaintiff and accordingly filed further affidavit dated 21 March 2024 producing copy of another ledger, this time relating to the shop occupied by Deepak. The said ledger does reflect consumption of electricity in the shop during the entire year of
2017. Therefore, the allegation of shop being shut in 2017 does not hold any water. Faced with this position, Mr. Patwardhan has contended that there is no consumption post 2021.
23) Plaintiff has passed away. Mr. Patwardhan has fairly not stretched his case to the extent that the need has been eclipsed due to death of Plaintiff, since need of his two sons was also pleaded. Even if the allegation of Deepak completely shutting the neighbouring shop is momentarily accepted as correct, the said event would hardly have any impact on the eviction decree. The Suit was instituted in 2002 and by now 22 long years have elapsed and during these 22 years, Deepak was required to conduct his business in tiny shop of 150 sq. ft. as execution of the decree got delayed due to stay granted by the Appellate Court and by this Court. After securing possession of suit premises, Deepak and Praful can amalgamate both the shops and can conduct their business in a larger showroom.
24) Even otherwise, it cannot be contended that the subsequent events of death of original Plaintiff or difficulties faced by Deepak in operating jewelry business through tiny premises have completely eclipsed the original bonafide requirement pleaded. Also, information placed through affidavit filed before this Court cannot be taken into consideration in absence of any evidence in support thereof. The supervening events that are brought to the notice of this Court are not something which amounting to complete eclipsing of Plaintiff’s original bonafide requirement so as to remand the proceedings for recording of additional evidence. In my view, therefore, the supervening events cannot be taken into consideration for deciding the present revision application.
25) The conspectus of the above discussion is that the Trial Court and the Appellate Court have rightly decreed the Suit filed by the Plaintiff. Both the sons of Plaintiff admittedly possess knowledge and experience in jewelry business. Plaintiff’s one of the sons -Deepak was operating jewelry business from neighbouring shop admeasuring 150 sq.ft. His requirement of expanding the said business into neighbouring premises cannot be treated as fanciful wish, which is impossible of being brought into reality. Praful was unemployed at the relevant time and it was not unnatural for the father to have a desire of opening of business for Praful in the said premises. Though the Trial Court had mainly concentrated on bonafide requirement of Praful, (though it never rejected the bonafide requirement of Plaintiff or Deepak) the Appellate Court has rightly considered the composite requirement of Plaintiff and his two sons. It was well empowered to do so by exercise of jurisdiction under Order XLI Rule 22 and 33 of the Code. Therefore, it cannot be contended that there is any jurisdictional error on the part of the Appellate Authority in finding favor with Deepak’s bonafide requirement as well. No interference is therefore warranted in the concurrent findings recorded by the Trial and the Appellate Courts.
26) Revision application must fail. It is accordingly dismissed. Plaintiffs are permitted to withdraw entire deposited amount together with interest. Revision Applicants are given time till 28 February 2025 to vacate the possession of the suit premises subject to non-creation of third-party interests therein. [SANDEEP V. MARNE, J.]