Abdulraheman @ Iqbal Faljukhan Pathan since deceased through legal heirs vs Kamalaben Mohanlal Shah

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 163

IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Shri Abdulraheman @ Iqbal Faljukhan Pathan
since deceased through legal heirs..... Petitioners.
Versus
Sou. Kamalaben Mohanlal Shah ..... Respondent.
Writ Petition No. 5331 of 1989, decided on 3-3-1999.
Advocates appeared :
G.R. Rege with Smt. Shakuntala A. Mudbidri, for the petitioner.
M.L. Patil, for the respondent.

Headnote:Sections 13(1)(g) and 13(2)Eviction-Comparative hardships Seeking eviction under Section 13(1)(i) of Act-Held, eviction decree can be passed after establishing bona fide need of landlord only after considering comparative hardships of landlord and tenant as required under Section 13(2) of Act.-Even though landlord seeks eviction under Section 13(1)(i) and it has come out in the pleadings as well as in the evidence that the construction proposed to be done in the premises is for the purpose of his own use and occupation, then notwithstanding the claim made by the landlord based on 13(1)(i), sub-section (2) of Section 13 will come into play and the Court can pass decree for eviction after establishing the reasonableness and bona fide of the landlords requirement only after considering the comparative hardships of the landlord and tenant as envisaged under Section 13(2) of the Act.
Sections 13(1)(i), (g) and (2) Suit for eviction under Section 13(1)(i)-Construction proposed to be done in the premises by landlord for own use-Court. can pass decree for eviction after establishing reasonableness and bona fide of landlords requirement only after considering comparative hardship of landlord as envisaged under Section 13(2)-Matter remanded to trial Court for framing issue based on sub-section (2) before passing decree of eviction against petitioner.-Section 13 of the Bombay Rent Act has put certain restrictions on the exercising right of the landlord in evicting his tenants. The various circumstances and situations have been taken note of by the Legislature under that section. One of the important circumstance [Section 13(1)(g)] where the landlord, who let out the building to his tenant requires it back for his bona fide and reasonable requirement for his own use. Sub-section (2) of Section 13 says that before any eviction is ordered under Section 13(1)(g), the comparative hardships about the availability of the accommodation of the tenant and landlord has to be considered by the Court. Section 13(1)(h), 13(1)(hh), 13(1)(hhh) and 13(1)(i) deals with different constructional activities to be carried out in the premises. Section 13(1)(h) deals with a situation where the premises are required reasonably and bona fide for carrying out repairs. Section 13(1)(hh) deals with where the premises requires demolition and reconstruction. Section 13(1)(hhh) deals with a circumstance where the premises are required to be demolished by orders of the local authority or other competent authority and Section 13(1)(i) deals with the situation where the landlord requires the land bona fide for the erection of a new building. Looking at these sub clauses, though the same deal with different facets of constructional activities on the premises, a common factor which is present in all these sub clauses in that the landlord should establish his reasonable and bona fide requirement for the constructional activities as enumerated in clauses 13(1)(h), (hh), (hhh) and (i). Though these sub-clauses are demonstrably distinct from the wording of Section 13(1)(g), it contain a common feature that is found in all these is feature of reasonable and bona fide requirement of the landlord. But, clause 13(1)(g) comes into play only where the eviction is sought for his personal use or occupation. In other words, the personal use or occupation by the landlord which is found in Section 13(1)(g) is lacking in other sub-clauses, In view of this analysis, wherever eviction is sought for the bona fide and reasonable requirement for personal use even after the constructional activities contemplated in this sub-clause, it is squarely coming under Section 13(1)(g) and not under Section 13(1)(i) or any other clauses. Even though landlord seeks eviction under Section 13(1)(i)and it has come out in the pleadings as well as in the evidence that the construction proposed to be done in the premises is for the purpose of his own use and occupation, then notwithstanding the claim made by the landlord based on Section 13(1)(i), sub-section (2) of Section 13 will come into play and the Court can pass a decree for eviction after establishing the reasonableness and bona fide of the landlords requirement only after considering the comparative hardships of the landlord and tenant as envisaged under Section 13(2) of the Act. In view of this, it is necessary to send the matter back to the trial Court for framing issue based on sub-section (2) of Section 13 and decide the same before passing the decree of eviction against the petitioner. The trial Court should complete this exercise within three months from the date of receipt of the judgment. Parties are at liberty to lead evidence on this issue.

JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---The unsuccessful tenant in both the courts below in a suit for eviction has filed this petition. That the open land bearing C.T.S. No. 5766 admeasuring 113.2 sq. mtrs in village Miraj, Tal. Miraj for the monthly rent of Rs. 50/- was taken on rent by the petitioner for his personal use. He had constructed structure in the suit premises for shop. The tenancy was terminated by the respondent on 30-9-1978 on the ground of default in making the payment of rent and also personal occupation of the landlord. The Civil Suit No. 317 of 1978 before the trial Court was filed by other respondent landlady on the aforesaid grounds and trial went on those grounds. In fact the trial Court decreed the suit on both the grounds. At the appellate stage, the landlady has given up the ground of default in payment of rent. Both the courts below found that the landlady has established her reasonable and bona fide requirement. Normally, in that circumstances, this Court is very slow in interfering to upsettings the findings of the courts below.

2.The learned Counsel for the petitioner Mr. Rege has contended that though the courts below has granted decree of eviction against the petitioner under section 13(1)(i) in fact, it has been pleaded and proved before the Court that the eviction is sought on the ground of 13(1)(g). He contended that the courts below was wrong in passing decree against his client under section 13(1)(i) depriving his client of the benefit of sub section (2) of section 13 of the Bombay Rent Act. Mr. Rege took me through various part of the pleadings and the evidence for this purpose. Though he tried to challenge the very findings of the bona fide requirement and reasonableness as I indicated earlier, in exercise of the power under Article 227 of the Constitution of India, though certain discrepancies could be pointed out in the appreciation of evidence by the courts below, it is not proper on my part to interfere in those findings. Therefore, for the purpose of this case, I proceed on the premise that there is concurrent finding on facts by the courts below that the landlady has established the reasonableness and bona fide requirement. In this context, learned Counsel for the petitioner, Mr. Rege argued that inspite of the fact that there are overwhelming evidence and pleadings to lay the case under the precinct of 13(1)(g), the Court was wrong in resting their decision on 13(1)(i). He submits that in the notice for terminating the tenancy and in the plaint, the plaintiff has pleaded that the construction proposed in the suit premises is for the plaintiffs personal use and occupation. Mr. Rege also brought to my notice evidence of P.W. 2, husband of the plaintiff who says that he wants property for conducting the business. Therefore, clear case which was made out by the plaintiff is that he bona fide require the premises for his own occupation after construction. The pleadings and proof have all the trappings of the case made a ground envisaged under section 13(1)(g). In order to fortify his contention, he sought to rely on a decision of the Supreme Court in (Ramniklal Pitambardas Mehta v. Indradaman Amratlal Sheth)1, reported in A.I.R. 1964 S.C. 1677. It is a case where the eviction was sought under Clause (hh) of section 13(1) of the Bombay Rent Act which deals with the situation where the building requires for demolition and reconstruction. In this context, Supreme Court observed in para 15 and 16 as under :

"(15) We are therefore of opinion that once the landlord establishes that he bona fide requires the premises for his occupation, he is entitled to recover possession of it from tenant in view of the provisions of sub-clause (g) of section 13(1) irrespective of the fact whether he would occupy the premises without making any alteration to them or after making the necessary alterations.

(16) The provisions of Clause (hh) cannot possibly apply to the case where a landlord reasonably and

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