VERY IMPORTANT POINT
It is for the landlord to decide how and in what manner he should live and he is the best judge of his residential requirement and if the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate him to continue to occupy such premises.

Headnote:EVICTION SUIT-Bona fide requirement for personal occupation-Test to be applied in finding out whether requirement of landlord is bona fide or not-Landlord is best judge of his residential requirement-What is to be considered is not merely the availability of alternative commodation but also whether the landlord has a legal right to such accommodation-If landlord desires to beneficially enjoy his own property when the property occupied by him as a tenant or on any other basis is either insecure or inconvenient-It is not for courts to dictate him to continue to occupy such premises.
       Held : The fact that the appellant is the owner of the suit premises and that she does not own any other premises in the City of Bombay is not in dispute. She does not possess, even as a tenant, any premises in Bombay. No doubt, she would be entitled to stay in the premises of which her husband is a tenant but if for any reason her husband had parted with possession of such premises and the same were occupied by her husband s brother, it cannot be said that the said premises were available to her and by not referring to those facts she had come to the court with unclean hands and that by itself was sufficient to disentitle her from getting a decree of eviction. If the appellant believed that the Olympus flat of which her husband was a tenant was not available for occupation as the same was vacated by her husband many years back and was occupied by Sridhar and his family and that it was not possible or convenient for her and her family to go and stay there, it was not absolutely necessary for her to refer to those facts in her plaint. It would have been better if she had referred to those facts but mere omission to state them in the plaint cannot be regarded as suifficient for disentitling her from claiming a decree for eviction, if otherwise she is able to prove that she requires reasonably the suit premises for her occupation. (Para 14)
       Further held : 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. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate him to continue to occupy such premises. Though Eknath continues to be the tenant of the Olympus flat, as a matter of fact, it is being occupied exclusively by Sridhar and his family since October 1972. For this reason and also for the reason that because of the partial decree passed against him Eknath is now entitled to occupy the area of 550 sq. ft. only, it is difficult to appreciate how the Appellate Bench and the High Court could record a finding that the Olympus flat is readily available to the appellant s husband and that the said accommodation will be quite sufficient and suitable for the appellant and her family. (Para 16)

JUDGMENT

Nanavati, J.-Leave granted.

2. This appeal arises out of the judgment and order of the High Court of Bombay in Writ Petition No. 3600 of 1990. The appellant had filed that writ petition against the judgment and order passed by the Appellate Bench of the Small Causes Court whereby the judgment of the Small Causes Court, Bombay, was reversed and the appellant s suit was dismissed.

3. The appellant is an owner of a flat and a garage in the building known as Tarangini in Bombay. This suit premises belonged to her father and were gifted to her in 1972. By an agreement dated 29.3.1972 the said premises were given by the appellant to Respondent No. 1 firm on leave and licence basis for the purpose of its use and occupation by Respondent No. 2 who is a partner of that firm. She filed Suit No. R.A.E 372/1276/83 in the Court of Small Causes at Bombay seeking eviction of the respondents on the ground that she requires the suit premises reasonably and bona fide for her personal occupation. In the plaint she stated that she and her husband do not have any other residential premises of their own in Bombay. Her husband is a paid Assistant in M/s. A.F. Ferguson & Co. a firm of Chartered Accountants. That firm has taken on lease one flat in a building named Park View . It had then given the same to one of its partners Mr. Kalra for his occupation. As Mr. Kalra was transferred from Bombay to Delhi, the flat had become available temporarily and therefore it was allowed to be used by the appellant s husband purely on a temporary caretaker basis. As the said partner is likely to return to Bombay her husband will be required to vacate that flat and, therefore, they will be without any accommodation whatever in Bombay. She further stated that she had called upon the respondents to vacate the suit premises in 1974 and in response to one of her letters the respondents had in 1976 and again in 1978 assured the appellant that they would vacate the suit premises as soon as the flat booked by Respondent No.2 in a building called Rambha would become ready for occupation. Even though the said flat has become available to Respondent No.2 he is not vacating the suit premises. She also stated that is is not possible for her to acquire any other premises in Bombay and, therefore, if a decree for possession is not passed she will suffer greater hardship.

4. The suit was opposed on the ground that possession of the premises then in occupation of her husband was not insecure or temporary and that the suit premises are really not required by the appellant reasonably and bona fide for her occupation.

5. Later on in 1987, during the pendency of the suit, the appellant, took out a notice of motion for early hearing of the suit. Therein she stated that she is serving as a lecturer in the Education Department of the Bombay University. As the respondents did not vacate the suit premises in spite of her request and the assurances given by the respondents and as there was a problem of accommodation in Bombay her husband had to get himself transferred to Madras in 1984. She also obtained study leave and went to Madras to stay with him. As her application for further leave was rejected she had to return to Bombay and report for duty in July 1987. Since then she has been residing with her parents as she does not have any accommodation in Bombay.

6. In support of her case the appellant examined herself and led evidence of P.W.3 Mr. Eknath Kshirsagar her husband, P.W.5 Mr. Maluste her father, P.W.2, Dr. Momin Mohinuddin, Head of the Department of Foreign Languages in the University of Bombay, P.W.4 Mr. Shohrab Burjoriji Vakil, Secretary of the Royal Bombay Yatch Club. On behalf of the respondents, Respondent No.2 was examined as a witness. During her cross-examination the appellant stated that her husband was a tenant of a two bed room flat in Olympus Apartments and that after her marriage with Eknath on 24.10.1971 she stayed with her husban

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1996 Supreme(SC) 1047

Cases Referred (2)