Sidramappa Mutyappa Mengane, since deed. through legal heirs vs Mahadev Tammanna Bagdure

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1993 Supreme(Bom) 378

IN THE HIGH COURT OF BOMBAY
M.F. Saldanha, J.
Sidramappa Mutyappa Mengane, since deed. through legal heirs.... Petitioners.
Versus
M/s. Mahadev Tammanna Bagdure.... Respondent.
Writ Petition No. 330 of 1981, decided on 26-8-1993.
Advocates appeared :
M.A. Rane, S. Vazifdar and V.B. Rajure, for the petitioners.
M.L. Patil, for the respondent.

Headnote:Section 13 (1) (g)-Business premises-Suit for possession of-Reasonable and bona IIde requirement of landlord-Suit pending-Landlord acquired premises-Subsequent development to taken into consideration by Court.
       Section 13 (1) (g)-Eviction-Bona fide for running business in shop in question-Landlords shop acquired for road widening by Corporation-He detained another shop in lane-He made no attempt to get this shop evicted Landlord claiming re-entry of his own shop located on main road-Admissibility of such claim.
       Held, absence of pressure from landlord to get shop in lane evicted will not preclude him from claiming re-en try of his own shop on main road - Right of re-entry cannot be made subsequent to protection granted to tenant under Act.
       Section 13 (3) (g) -Suit for exercise of right of re-entry by evicting the tenant-Ground-Bona fide requirement for own use.
       Trial Court dismissed the suit-Appeal against-Allowed while directing the defendant to vacate-Right of re-entry of the landlord cannot be made sub-servient to the protection-The Rent Act grants to the tenant - While deciding the appeal Appellate Court did not take cognizance of the fact that these are business premises so the position of both the parties had to be considered seriously-Petitioner entitled to have sufficient fine before Appellate Courts Order takes effect.
       Section 13 (1) (g)-Tests of reasonable and bonafide requirement What is ?
       Held, some genuine personal need requires to be demonstrated on the part of the landlord for purposes of exercise of the right of re-entry. This, would basically come under the aspect of bona fides, but it could also be an additional requirement in so far as the aspect of bonafides may strictly and technically be confined in cases, to an examination of whether the need itself that has been pleaded is, in fact, true or otherwise. On the aspect of reasonableness also a Court would, normally, assess the question as to whether the need that has been pleaded passess this test, but both these aspects may in a given case exclude the aspect of expediency. Under these circumstances, the proposition canvassed that the Court will also have to consider the pressure or compulsion aspect is, very correct. Applying this test to the facts of the present case, the question that would arise is as to whether in the absence of any evidence to the effect that the original plaintiff-landlord is facing a threat of eviction from the premises presently occupied by him he could still sustain his plea of re-entry requires to be examined. The High Court has already indicated that on the peculiar facts of the present case, the landlord having accepted a spot that is certainly not conductive to his business to carryon, on a stop-gap basis or to put it more bluntly at a spot that is less suitable to his business to keep himself going; it can never be argued that there is no pressure or compulsion on him to get back into stride at a spot located in the main business area, particularly when the premises belonged to him. The learned Appellate Judge has put it rather bluntly when he has stated that the appellant was certainly entitled to ask for his own premises back rather than continue indefinitely in some one elses rented premises. This does not really state the situation as correctly as it actually is because the need of the plaintiffs will have to be in the light of the situation in which he was placed in the year 1971 when the post possession of his shop in a main business area and, therefore, desired to continue in his own premises located in an equally good business area. This right of re-entry of the landlord, under these circumstances, cannot be made subservient to the protection which the Rent Act grants to the tenant.

JUDGMENT- M.F. SALDANHA, J.:---An interesting angle touching the interpretation of section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as "the Rent Act") has been canvassed by learned Counsel representing the parties in this petition and it is a facet that does require some degree of elucidation. In a proceeding where a landlord seeks the exercise of his right of re-entry by evicting the tenant on the ground that the premises are reasonably and bona fide required for his own use and where it is demonstrated that the landlord is in occupation of other premises in respect of which there is no threat or compulsion requiring him to vacate therefrom, whether this aspect can be canvassed as a ground to negative the enforcement of the right conferred under section 13(1)(g) of the Rent Act. In other words, quite apart from the aspects of balance of convenience, relative hardship, etc., which the landlord is able to satisfy, whether a tenant would be justified in resisting the landlords claim on the solitary ground that the aspect of pressure on the landlord is either non-existent or is relatively minimal. The facts of this case require to be briefly set out first.

2. The petitioner, since deceased and now represented by his heirs, is in occupation of a house bearing City Survey No. 3413 in East Mangalwar Peth, Solapur. There is no dispute about the fact that the respondents are the owners thereof and that the petitioner through his firm was doing hardware business in the said premises and that they were the monthly tenants thereof. The respondents-landlords instituted a suit, being Regular Civil Suit No. 28 of 1973, for possession on the ground that the premises were reasonably and bona fide required by him for his own use. The landlords basic plea before the trial Court was that they were previously carrying on business in the property bearing Municipal No. 778, situated in West Mangalwar Peth, Solapur, and that while implementing Town Planning Scheme No. 5, the said premises were acquired by the Solapur Municipal Corporation in the year 1971 and that, consequently, the business was required to be shifted to the premises belonging to one Degaonkar. It is of some relevance to point out that the shop premises in question, where the business was being run, was situated on the main road in a busy locality called "Madhala Maruti Chowk". According to the landlords, a request was conveyed to the petitioner-tenant that the premises were required back by them, that initially the tenant promised to vacate, but did not do so and, therefore, after service of the requisite notice, etc., the present suit was instituted. The trial Court, after hearing the parties, by judgment and order dated 30-1-1979, dismissed the plaintiffs suit for possession.

3. The plaintiff-landlord thereafter preferred Civil Appeal No. 147 of 1979 and the learned Third Extra Assistant Judge, Solapur, by his judgment and order dated 30-9-1980, allowed the appeal and directed the defendant to vacate and handover possession of the premises on or before 31st January, 1981. It is against this judgment that the present petition has been preferred. Rule and stay came to be issued by this Court on 30-1-1981 and the case has been pending since then. In the meanwhile, as indicated by me, the original defendant-petitioner passed away and his five heirs, who have been brought on record, have prosecuted the present proceeding.

4. Shri Rane, learned Counsel appearing on behalf of the petitioner-defendant, has assailed the decision of the Appeal Court essentially on a point of law. He has contended that the Appeal Court has, while construing the legal ingredients of section 13(1)(g) of the Rent Act, unfortunately bypassed one important ingredient of the law which requires that it is not merely on the basis of inclination or desire of a landlord to shift back to his own premises which he may be able to justify

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