2004 Supreme(Bom) 836

IN THE HIGH COURT OF BOMBAY
Karnik D.G., J.
Sitaram Narayan Shinde others .... Petitioners.
Versus
Ibrahim Ismail Rais others.... Respondents.
Writ Petition No. 764 of 1991, decided on 21-6-2004.
Advocates appeared :
N.B. Shah, for petitioner.
G.V. Limaye K.S. Deval, for respondent.

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 12(2) - Suit for possession. - Before filing a suit for possession on ground of default in payment of rent, issuance of notice of demand in writing is mandatory. - Respondents had issued a notice prior to the filing of the suit for possession. However, neither in paragraph No. 5 nor anywhere else in the notice a demand was made requiring the tenants to pay the rent. Paragraph No. 5 was only a statement of fact that the tenants were in arrears. It did not contain a demand. The notice was not a notice of demand at all but purported to be a notice of termination of tenancy. In the absence of a demand in writing being made prior to the institution of the suit, a decree for possession could not be passed on the ground of default in payment of the rent.

       Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 13(1)(e) - Suit for possession on ground of sub-letting. - Suit for possession on ground of sub-letting of superstructure erected by tenants on suit land belongs to landlord liable to be dismissed. AIR 1966 SC 1939 - Relied on. - Courts below have held that the petitioners had constructed the house on the suit open land and had let out such construction to respondent Nos. 3 to 7. This was held to be illegal subletting. In India, the concept of dual ownership is well-recognised. The land may belong to one person and super-structure standing thereon may belong to another. Where the land belongs to one person and the superstructure belongs to another and the owner of a super-structure lets out the super-structure, in the absence of any other evidence, it cannot be held that the owner of super-structure has sublet the land. Court is fortified in this view by a decision of a Supreme Court in Mrs. Dossibai N.B. Jeejeebhoy v. Khemchand Gorumal and others, reported in AIR 1966 SC 1939. No finding has been recorded by the Courts below that the suit property which is an open land was sublet out in addition to the letting out of the super-structure by the petitioners. Hence, the finding of a sub-letting of the open land cannot be sustained.

       Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section (1)(g) - Suit for eviction on ground of bona fide need. - Order VI, Rule 5 of CPC would not debar plaintiff/landlord from bringing further and better particulars in respect of his bona fide need. - The trial Court as well as first Appellate Court have held that the respondent Nos. 1 and 3 required the suit premises reasonably and bona fide for erection of a new building for their residence. The pleading regarding bona fide requirement in the plaint consists of only two sentences which are quoted below :

       "Besides as per the notice, the plaintiff has no sufficient accommodation for his residence. He therefore, is required to make additional construction and requires the suit premises bona fide ."

       There was no pleading at all where the respondent Nos. 1 and 2 - plaintiffs were presently residing, what was the accommodation in their presence, how many members were there in their family and how the present accommodation in their possession was insufficient. It is true that the modern trend of the decisions of the Courts show that the pleadings in suits between landlord and tenant for possession are to be construed liberally. It is also a settled position that it is not necessary for a landlord to prove absolute need; as long as there is an element of need, a decree for possession can be passed. However, there must be some pleading spelling out of the need to enable the tenant to resist the claim. In any event, there must be sufficient evidence about the need in consonance with the basic pleading of need mentioned in the plaint. Even in the evidence the respondent No. 1 did not state what was the extent of the premises in his possession and how that was insufficient. All that is stated in the evidence of the respondents is that there were 9 members in the family and the premises wherein respondent No. 1 was residing were insufficient. In the cross-examination, the respondent No. 1 admitted that he has another constructed house in the same City Survey number. That house was 15 hands x 20 hands i.e. approximately 1000 sq. feet. Nothing was stated how that accommodation was not sufficient. On these facts, mere ipse dixit of the respondent Nos. 1 and 2 that they required additional premises could not have been accepted by the Courts below. The Courts below have not considered the evidence of other premises available to the respondents and whether they were sufficient. Thus, admissible and relevant evidence and ignored.