2013 Supreme(Bom) 421

High Court of Judicature at Bombay
S.C. DHARMADHIKARI, J.
Chetan Anand Shetty & Others
Versus
Indrajeet Chandrasen Shirole & Others
Civil Revision Application No.257 of 2007
Decided on: 22-02-2013

Headnote:BOMBAY RENTS, HOTEL & LODGING HOUSE RATES (CONTROL) ACT, 1947 - Section 13 - Civil Procedure Code, 1908, Section 115 - Bona fide and reasonable requirement.

       Concurrent finding of fact of two Courts below in respect of bona fide and reasonable requirement of landlord based on pleading and evidence, cannot be interfered with in revisional jurisdiction. - The plaintiffs have proved that they and Pravin do not have any occupation at present. The said Pravin has required experience of hotel business, but he does not have any source of income. Thus, to earn livelihood for himself and his family he needs the premises for running the hotel business. It may be that there is business of internet cafe in the flat in Chandrasen Apartment, nonetheless it is a flat in a residential building. Even that aspect has been referred to and what the Judge has held is that the hotel business could be set up by Pravin and it is not as if there is any further requirement of any experience which is to be pleaded and proved. Therefore, the trial Court held that the respondents/plaintiffs have proved that they require possession of the suit premises bona fide and reasonably for the hotel business of their son Pravin. If the defendants have been carrying on business from the said premises since 1976, that by itself does not mean that the respondents/plaintiffs cannot set up a plea of reasonable and bona fide requirement, is the conclusion arrived at by the trial Court which could be found in paragraph 25 of its judgment.

       That the law does not require that the landlords must plead and prove that they are in the business which they propose to set up and that they have experience and necessary financial backing and resources. Once the requirement has been pleaded and if Pravin is said to be a part of the family of the landlord and intends to set up the hotel business in the commercial premises and other premises are not suitable for such business, then, the requirement cannot, but said to be reasonable and bona fide . This is not a case where interference is permissible in revisional jurisdiction with the concurrent findings of fact. Once Court agree with appreciation and appraisal of the oral and documentary evidence by the Courts below their conclusions are consistent with the same, then, one cannot fault the trial Court and the appellate Court in passing a decree on this ground in favour of the respondents.

       BOMBAY RENTS, HOTEL & LODGING HOUSE RATES (CONTROL) ACT, 1947 - Section 13(2) - Comparative hardship.

       Concurrent finding of fact of Courts below, in respect of comparative hardship of landlord, not suffering from any perversity or infirmity, cannot be interfered with in revisional jurisdiction. - If the Court is satisfied that the landlord is entitled to recover possession of the premises on the ground that they are required reasonably and bona fide by him for occupation by himself or by any person for whose benefit the premises are held, still the decree for eviction shall not be passed on the grounds specified in clause (g) of Section 13(1), if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the Decree than by refusing to pass it. Thus, the first part of sub-section (2) of Section 13 requires the Court to be satisfied that having regard to all the circumstances which includes the question whether other reasonable accommodation is available for the tenant or the landlord, greater hardship will be caused by passing the decree. In the instant case, as far as this aspect is concerned, there is no quarrel or dispute that the Courts below have allowed the applicants to place adequate and enough material to support their argument that there are other premises available to the respondents. The Courts have found that other premises cannot be said to be reasonable for the business intended to be commenced by the landlords. Therefore, the finding has been rendered concurrently that greater hardship would be caused by refusing to pass the decree in landlord’s favour. The finding in that behalf does not suffer from any perversity or error of law apparent on the face of record warranting interference in revisional jurisdiction. The jurisdiction has not been exercised illegally or with material irregularity.

       BOMBAY RENTS, HOTEL & LODGING HOUSE RATES (CONTROL) ACT, 1947 - Section 13(2) - Comparative hardship.

       Where no issue about comparative hardship was raised before Courts below therefore request to pass decree in respect of part of premises cannot be allowed. - It is not as if in the case like the present one, the applicants for the first time in revisional jurisdiction can urge before this Court that the trial Court has failed to abide by the statutory mandate flowing from sub-section (2) of Section 13. For such plea being raised in revisional jurisdiction and which jurisdiction is limited, there has to be some material before the Courts below. If the materials before the Courts below rest only on the availability of other accommodation and premises to the landlord for his requirement, either of residential or non-residential nature, then, the parties like the applicants cannot claim as of right that they be permitted to raise a plea of the present nature and for the first time in the revisional jurisdiction. Concededly, there is nothing in the judgments of the Courts below or in the oral and documentary evidence, which would enable Court to hold that the applicants did request the trial Court or the lower appellate Court to consider passing of a partial decree or in relation to a part of the premises. That statutory mandate requires two things, the Court must be satisfied that no hardship would be caused to either of the parties. That hardship would not be caused by passing a decree in respect of a part of the premises If on the earlier point the Court is satisfied that the need of the landlord is proved and in relation to the entire premises and that need could not be satisfied because other accommodation available at his disposal is not reasonable, then, the parties like the applicants cannot be heard to say that there is non-fulfilment of the later statutory mandate, particularly when they fail to place any material in the first instance or the first available opportunity. If such pleas are raised in the highest Court for the first time, they cannot be entertained without any material. That means there is no finality to proceedings. This is really the ratio of the above decisions. The argument which has been raised before Court is as a last resort to avoid consequences of the decree. That hotel business has been settled by the applicants in 1976 as claimed by them and has been continuing for decades from the suit premises, is no ground to hold that non-fulfilment of the statutory mandate as urged by Mr. Jahagirdar vitiates the decree in this case. Once concurrent findings on the point of both reasonable and bona fide requirement and comparative hardship have been rightly rendered in favour of the respondents, then, it is futile to urge that a partial decree should be passed. That would mean that the Court finds fault with the satisfaction that has been reached with regard to requirement of the premises by the respondents. Once that satisfaction in this case has not been found to be vitiated by any error of jurisdiction and particularly the Courts below, have not acted illegally nor they committed material irregularity, then, all the more the concurrent decrees cannot be set aside in revisional jurisdiction.