1999 Supreme(Bom) 157

IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Narsingrao Kondaya Kondle..... Petitioner.
Versus
Mallesham Irayya Sambharam others ..... Respondents.
Writ Petition No. 4589 of 1984, decided on 26-2-1999.
Advocates appeared :
R.M. Agrawal, for the petitioner.
S.M. Mhamane R.S. Mhamane, for respondents Nos. 3 to 5 7 to 10.
M.R. Deshpande, for respondent Nos. 12-A, B,C,G, I.

Headnote:Section 13(1)(g)-Eviction suit -Open plot-On ground of bona fide requirement-Landlord having no other house-Living with his nephew in house wherein he has no right Landlord requiring plot in question for construction of his residential house-Held, thus bona fide requirement is established and landlord entitled for decree of eviction of tenant.

       Sections 13(1)(g), 13(1)(i) and 13(2), (3)-Suit for eviction on ground of bona fide need and for construction of new residential house-Landlord living with his nephew not as of right cannot be said as no bona fide need to landlord-Further in case no specifico issue on requirement of premises for construction of new house framed, there is no need for remand of case as ingredients of both Sections 13(1)(g) and 13(1)(i) are same to the established.-Merely because, the petitioner is staying in the house that belongs to his nephew cannot cast any doubt about the bona fide requirement of the petitioner. In order to come to such a conclusion, there must be sufficient evidence to prove that the petitioner could reside or stay in the suit that belonged to his nephew, as a matter of right. The defendant has failed to establish such a circumstance in this case. In view of this merely because the petitioner was staying in the house that belonging to his nephew cannot cast any doubt about the bona fide requirement of the suit house of the petitioner. On the other hand, if a landlord who is occupying a premises as tenant, requires for his occupation his own house, which was being occupied by his tenant, in itself will be the circumstance to establish reasonable requirement of a landlord. The landlords desire, who is having no other house of his own, itself is a sufficient circumstance to indicate his reasonable and bona fide requirement.

       It can be seen that the petitioner had sought eviction of the tenant from the suit premises so as to construct a new residential house. Therefore, merely because there is non-framing of an issue on that aspect under Section 13(1)(i) of the Act, this matter need not be remanded back for that purpose alone. Because the ingredients to be established by the parties, both under Section 13(1)(g) and 13(1)(i) are almost he same. In other words, the matter that was factually required to be looked into by the courts below under both these sections, was whether the requirement of the suit house of the landlord was reasonable and bona fide. There is no dispute at all that this question has not been gone into by both the courts below. Therefore, he request made on behalf of the respondent for the purpose of framing the specific issue that the matter may be remanded back, cannot be accepted.

       Section 13(1)(i)-Eviction suit on ground of bona fide requirement of the landlord of the suit property for construction of residential house for his own occupation-Suit property was an open plot originally given for construction of a shed to the original tenant Defendants were the subtenants and legal heirs of the original tenant-Merely because landlord was staying in the house that belonged to his nephew could not cast any doubt about his bona fide requirement Landlords desire, who was having no other house of his own, itself is a sufficient circumstance to indicate his reasonable and bona fide requirement.- The petitioner the landlord in respect of the suit property which was an open plot filed eviction suit on the ground that he required the plot for construction of his residential house. The open plot was originally given for construction of a shed to the original tenant and the defendants were the sub-tenants and the legal heirs of the original tenant. The original suit was filed on the ground of arrears of rent and also on the ground of bona fide requirement of the landlord for construction of a residential house for his own occupation. Both the Courts below found that the claim made by the landlord was not reasonable and bona fide. Landlord was residing along with his nephew. According to the evidence on the record, when the petitioner was occupying a house as a tenant, the landlord of the house had threatened him for eviction. Then his nephew had purchased that full house. This circumstance was taken by the Courts below to come to the conclusion that the petitioner could very well stay, in the house that belonged to his nephew and the petitioner did not require the suit plot for construction of a residential house. In writ petition challenging the rejection of the claim.

       Held, that this approach of the Courts below was quite erroneous. Merely because, the petitioner was staying in the house that belonged to his nephew, that did not cast any doubt about the bona fide requirement of the petitioner. In order to come to such a conclusion, there must be sufficient evidence to prove that the petitioner could reside or stay in the suit that belonged to his nephew, as a matter of right. The defendant had failed to establish such a circumstance in this case. In view of this, merely because the petitioner was staying in the house that belonged to his nephew cannot cast any doubt about the bona fide requirement of the suit house of the petitioner. On the other hand, if a landlord, who is occupying a premises as tenant, requires for his occupation his own house, which was being occupied by his tenant, is itself the circumstance to establish reasonable requirement of a landlord. The landlords desire, who is having no other house of his own, itself was a sufficient circumstance to indicate his reasonable and bona fide requirement. Another circumstance that militated against his case which has been pointed out before the Courts below, was that the petitioner is having a plot of his own in the MIDC area. The trial Court has accepted the contention of the defendant/tenant that since the petitioner is having a plot in the MIDC area, is the sufficient circumstance to doubt the petitioners bona fide. Even the certificate issued by the Town Planning Authority, was sought to be produced by the petitioner in the appellate Court but the appellate Court has rejected the same on the ground that no further proof was adduced by the petitioner to prove that document. No further proof was required for proving that document, as it is a public document issued by the public authority. Moreover, there was an uncontroversial admission made by the petitioner before the trial Court that he had a plot in the MIDC area but it was in the industrial zone, where he was running a power-loom, which he cannot use for his own residential purpose. Both the Courts below had wrongly rejected the contention of the petitioner. Acquisition of an alternate site is the matter to be considered while considering the comparative hardships of the tenant and the landlord under sub-section (2) of Section 13 of the Bombay Rent Act. Sub-section (2), provides for consideration on the aspect of comparative hardships between the tenant and the landlord. Under the provisions of sub-section (2), the landlord would become entitled for a decree only when a residential house is sought to be vacated by the landlord for his bona fide occupation, as envisaged under Section 13(1)(g) of the Act. On examining the pleadings and evidence adduced thereof it was clear that the defendant/tenant was trying to bring his case within the ambit of Section 13(1)(i). There was a rival contention advanced by the respondents that there was no issue before the Courts below to the effect that the eviction was sought under Section 13(1)(i). It was true that no specific issue had been framed in this regard in this case by the trial Court. But, on a detailed reading of the plaint, it can be seen that the petitioner had sought eviction of the tenant from the suit premises, so as to construct a new residential house.

       Therefore, merely because there is non framing of an issue on this aspect under Section 13(1)(i) of the Act, this matter need not be remanded back for that purpose alone. Because, the ingredients to be established by the parties, both under Section 13(1)(g) and Section 13(1)(i) are almost the same. In other words, the matter that was factually required to be looked into by the Courts below under both these sections, was whether the requirement of the suit house of the landlord was reasonable and bona fide. There was no dispute at all that this question had not been gone into by both the Courts below. Therefore, the request made on behalf of the respondent for the purpose of framing the specific issue that the matter may be remanded back, cannot be accepted. It was further contended by the respondents that in view of sub-section (3) of Section 13 of the Act, this Court need not interfere in the case where the decree is not passed by the Courts below. The landlord cannot construct a house in the remaining part of the premises without disturbing the building. It is true that this aspect has not been examined by the Courts below. In other words this plea has not been raised by the parties before the authorities below. The counsel for the respondents submitted that in the absence of such specific plea is being raised by both the parties, the matter had to be remanded back to the lower Court. It is for giving protection to the tenants, sub-section (3) of the Act was enacted. Thus, it is for the tenant to raise that question before the Courts below. Therefore, at this stage the request for remand of the matter for that purpose alone, cannot be entertained. The construction of the house can be carried out if only the respondent is dispossessed. The order passed by both the Courts below were, therefore, liable to be set aside.