Anil P. Bansal & another vs Central Bank of India & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 933

IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Anil P. Bansal another .... Petitioners.
Versus
Central Bank of India others.... Respondents.
Writ Petition No. 4053 of 1992, decided on 3-9-2002.
Advocates appeared :
A.K. Abhyankar with C.S. Kapadia, for petitioners.
P.S. Dani, H.N. Vakil with V.N. Bilve, i/b. Mulla Mulla and Craigic Blunt and Caroe, for respondents.

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 13(1) - Suit for eviction. - Where Landlord pleaded and proved his bona fide requirement and greater hardship, decree for eviction cannot be refused in ground of comparative hardship of tenant.
Maharashtra Rent Control Act, 1999 - Section 33 - Suit filed under Bombay Rent Control Act - Even during its pendency landlord instituted one more suit under Maharashtra Rent Control Act - Whether both the suits shall be maintainable simultaneously -Held - Yes. - As, in his submission the appellate Court has mainly decided the matter on the basis of lack of pleadings against the petitioners. He further contends that the issue of comparative hardship has been recorded by the appellate Court and the appellate Court has recorded finding of fact in that behalf which cannot be interfered in writ jurisdiction under Article 227 of the Constitution of India. Counsel further contends that the petitioners have also instituted another suit for the relief of possession after coming into force of Maharashtra Rent Control Act, 1999 and in such a situation, the present proceeding cannot be continued. Having considered the rival submissions, Court shall first deal with the last plea taken on behalf of the respondents that the petitioners have instituted another suit being Suit No. TE/229/274/2000 for possession of the suit premises. But, that would not preclude the Court from proceeding to consider the present writ petition. Court has recently examined similar plea in the case of R.B. Fanibunda v. Nocholas of India Ltd. in W.P. No. 6306 of 1996 decided on July 9, 2002. For the reasons already indicated in the said decision, it will not be necessary to elaborate on that aspect of the matter. Suffice it to point out that Court has negatived that plea.
Civil Procedure Code, 1908 - Order VI, Rule 4 - Vague pleading - Pleadings are just represen- tation of statutory provisions - In writ jurisdiction the fact finding cannot be disturbed - In the proceeding it was not necessary to speak of specific nature of business - Seeing pleadings in totality it is impossible to hold that these were not sufficient - Once evidence has been given and allowed as evidence, the petitioner cannot be non-suited - Merely on plea that specific business was not pleaded. - Moreover, it is evident that the parties understood each other s case as in the written statement no grievance was made regarding the lack of necessary pleadings or particulars. Further, the parties went for trial and respondents allowed the evidence adduced by the petitioners to be let in without any demur. If that is so, then it is not possible to ignore the evidence which has been allowed to come on record. On the other hand, it will be the duty of the Court to adjudicate the matter on the basis of the entire legal evidence which has come on record. Even assuming that the pleadings as filed by the petitioners can be said to be vague, but once the evidence has bee adduced and which has been allowed to be let in then the petitioners cannot be non suited on the ground that the specific business of computer and diamond was not pleaded. Taking over all view of the matter, the basis on which the Appellate Court has non suited the petitioners cannot be sustained.

JUDGMENT - KHANWILKAR A.M., J.:---This writ petition under Article 227 of the Constitution of India takes exception to the judgment and decree passed by the Small Causes Court on 29th April, 1992 in Appeal No. 220 of 1991. The premises in question are block Nos. 7-A and 7-B on the 7th floor of the suit building Chandramukhi on plot No. 316, Block No. IIP Backbay Reclamation, Nariman Point, Bombay 400021. The petitioners were the joint owners of the suit flats alongwith their aunt. The suit flats were subsequently transferred in favour of the petitioners after they became major. The respondents were inducted in the suit flats on leave and licence basis. But, since licence was subsisting on 1st February 1973, they became protected tenants by virtue of section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The present suit was filed by the petitioners for possession of the suit flats before the Court of Small Causes, Bombay being R.A.E. Suit No. 1496/4851 of 1983 on the ground of bona fide and reasonable requirement. The trial Court by judgment and decree dated July 12, 1991 decreed the suit and directed the respondents to deliver the vacant and peaceful possession of the suit premises accepting the need set up by the petitioners for their business as bona fide and reasonable requirement. Even the issue of comparative hardship has been answered in favour of the petitioners by the trial Court. Against the said judgment and decree the respondents carried the matter in appeal before the Appellate Court being Appeal No. 220 of 1991. The Appellate Court on the other hand has reversed the decree and dismissed the suit by the impugned judgment and decree. According to the Appellate Court, the suit was required to be dismissed because pleading with regard to need set up by the petitioners was not in respect of computer business for plaintiff No. 1 and diamond business for plaintiff No. 2, which however, has been asserted only during the evidence. The Appellate Court has, therefore, found that the case as proved has not been pleaded; and, for which reason, was of the view that the suit was required to be dismissed. Before the Appellate Court, it was argued on behalf of the respondents that, in any case, the requirement of the petitioners was not reasonable. That argument also found favour of the Appellate Court and the Appellate Court in para 17 has held that the petitioners could carry on their intended import export business in the premises situated in Maker Chambers which was admeasuring about 1300 sq.ft. In so far as, the question of comparative hardship is concerned, even that issue has been answered in favour of the respondents as the respondents would suffer inconvenience and hardship. It is this decision which is the subject matter of challenge in the writ petition under Article 227 of the Constitution of India.

2. The learned Counsel for the petitioners contends that the tests applied by the Appellate Court are wholly improper and opposed to the settled legal position. In so far as the view expressed by the Appellate Court that the petitioners have not pleaded the case regarding the requirement for computer business, and diamond business the learned Counsel contends that in fact the pleading as filed before the trial Court was sufficient to answer the issue in favour of the petitioners. He further contends that it was not obligatory on the part of the petitioners to plead about the nature of business and if that be so, the reasons recorded by the Appellate Court cannot be sustained. Reliance has been placed on the decision of the Apex Court in the case of (Raj Kumar Khaitan and others v. Bibi Zubaida Khatun and another)1, reported in 1997(11) S.C.C. 411 to support the above contention. The learned Counsel has also placed reliance on the decision of this Court in the case of (Commander Anand V. Badve v. G.M. Amphray Laboratories)2, reported in 1986 Maharashtra Rent Control Journal page 284 in particular

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2002 Supreme(Bom) 933

Cases Referred (1)