PETITIONER:
SMT. SAVITRABAI BHAUSAHEB KEVATE AND OTHERS
Vs.
RESPONDENT:
RAICHAND DHANRAJ LUNJA
DATE OF JUDGMENT: 15/12/1998
BENCH:
S.SAGHIR AHMAD, & M. JAGANNADHA RAO.
JUDGMENT
M.JAGANNADHA RAO Leave granted. This appeal is directed against the judgment of the High Court of Bombay in Writ Petition 3714 of 1982 dated 17.04.1997. By that judgment the learned Single Judge set aside the judgment of the 2nd Addl. Small Causes Court, Pune in Civil Suit No. 1285 of 1979 dated 02.12.1981 as affirmed by the District Court, Pune in Civil Appeal No. 266 of 1982 dated 20.10.1982. The trial court had decreed the suit filed by the appellants for eviction of the respondent on the ground of bona fide requirement and the said judgment was affirmed by the District Court. These two judgments were set aside by the High Court under Article 227 of the Constitution of India. It is this judgment of the High Court that is challenged in this appeal.
We shall refer to the facts briefly: ..........L...I.........T.......T.......T.......T.......T..J
The suit premises consist of a shop bearing
No.4 on the ground floor of a house at Pune. The
shop was let out by the predecessor in-title of
the appellants, Sri Kevate to the respondent on a
monthly rent of Rs. 75/- for running a grocery
shop. The said Kevate wrote a letter to the
respondent on 8.3.1978 that the respondent had
closed the shop for more than a year, and that he
was not using the same for the purpose for which
it was let out. Later, Shri Kevate sent a
registered notice on 27.3.1979 terminating the
tenancy w.e.f. 01.04.1979 and asking the
respondent to vacate the shop. As respondent
failed to vacate the shop, the said Shri Kevate
filed the present Civil Suit before the Small
Causes Court, Pune under Section 13(1)(g) and (k)
of Bombay Rents, Hotel and Lodging House, rates
Control Act, 1947 (hereinafter called the Act).
According to him the shop was is necessary for his
son Madhukar to start business. During the
pendency of the suit, Shri Kevate expired and the
appellants, including the said Madhukar came on
record as plaintiffs, being his legal heirs. The
parties led oral and documentary evidence in the
trial court. The learned trial Judge by judgment
dated 2.12.1981 held that the appellant failed to
prove that the shop was closed continuously for
more than 6 months prior to the filing of the suit
and hence the claim under Section 13(1) (k) was
liable to be rejected. However, in regard to the
claim for bona fide requirement under Section
13(1)(g), the learned trial Judge held that the
requirement of the plaintiff, namely for his son
Madhukar to start a business, was a bona fide one.
It was also held that the hardship to the
appellant’s son Madhukar was more than the
hardship to the respondenttenant. The eviction
suit was decreed. On appeal, the learned District
Judge confirmed the said judgment holding that
since the family was already in business, there
was no question of the appellant’s son Madhukar
not having the necessary experience and capital
for running business. The learned District Judge
also held that the respondent had another shop in
Ganesh Peth which was flourshing and, therefore,
no hardship would be caused to the respondent if a
decree for eviction was passed. When the
respondent moved the High Court under article 227
of the Constitution of India, the learned Single
Judge of the High Court allowed the writ petition
holding that there was no material on record
showing as to why the landlord did not occupy a
particular shop of his which had fallen vacant in
the year 1976. According to the High Court, the
landlord’s son Madhukar could have started his
business in that shop in 1976 if there was really
a bona fide need. Inasmuch as the said shop which
fell vacant in 1976 was not occupied by the
landlord’s son Madhukar, the High Court came to
the conclusion that the need of the landlord was
not bona fide. Accordingly, the judgments of both
the lower courts were set aside and the eviction
suit was dismissed.
In this appeal, learned counsel for the
landlord -appellant contended that the High Court
ought not have reversed the finding of fact
arrived by the lower courts which finding was
based on evidence. It was also argued that the
High Court erred in thinking that Madhukar, the
landlord’s son could have occupied the shop
vacated by a barber in 1976 inasmuch as Madhukar
was still in college in 1976 and was not ready to
start any business.
On the other hand, learned counsel for the
respondent contended that the landlord ought to
have occupied the shop vacated by the barber in
1976 and made his son Madhukar to start his
business there. According to learned counsel, the
conclusion arrived at by the High Court was
consistent with the evidence.
The point for consideration is: whether the
High Court erred in reversing the concurrent
findings of fact of both the lower courts and in
holding that the landlord did not bona fide
require the shop?
From the above facts, it is clear that both
the courts have arrived at concurrent findings of
fact regarding the bona fide need of the landlord,
namely, to enable his son Madhukar to start a
business. The High Court has reversed the said
finding on the salutary ground that the landlord
has not occupied the shop vacated by the tenant,
namely a barber, in 1976 which he could have given
to his son Madhukar to start business.
In our view, the High Court was wrong in its
assumption that Madhukar could have started a
business in 1976 for the following reasons.
Number of witnesses were examined on behalf of the
landlord whose evidence was accepted by the trail
court and the first appellate court. But the most
important part of the evidence which the High
Court omitted to consider was the following
statetment of Madhukar:
"Why my father did not retain the premises let
out to the barber, I cannot say. It is a fact
that my father was requiring the suit premises, as
I did not complete education at that time."
From the above evidence of the landlord’s son
Madhukar it is clear that by 1976 the said
Madhukar had not completed his education and was
not ripe enough to start a business. It was only
in 1979 that the said Madhukar completed his
education, and the landlord thought of making
Madhukar to start a business in the suit shop and
gave a notice for eviction and filed the present
suit in 1979. Therefore, it is clear that the
assumption of the High Court that the landlord
could have given the shop which fell vacant in
1976 to his son Madhkur is the contrary to the
evidence placed on record.
The above evidence of the landlord’s son
Madhukar was the reason for the trial court
ordering eviction. This is what the trial court
stated.
"By the time the suit came to be filed by the
deceased, the plaintiff-Madhukar had not taken
B.A. degree."
This was affirmed by the appellate court. The
High Court erred in setting aside the concurrent
findings of both courts.
For the aforesaid reasons the judgment of the
High Court cannot be sustained. We accordingly
set aside the same and restore the judgment of the
trial court as affirmed by the appellate court.
The appeal is accordingly allowed.
The learned counsel for the respondent-
tenant, however, submitted that some time may be
granted to respondent to vacate the premises. We
accordingly grant time up to 30th June, 1999 for
the respondent to vacate the suit shop subject to
the condition that the respondent files an
undertaking in this Court within 2 weeks from
today. If the said undertaking is not filed
within the said period of 2 weeks or in the event
the conditions mentioned in the said undertaking
are committed breach of, the order granting time
up to 30th June, 1999 shall stand recalled and the
appellant will be entitled to execute the decree
of the trial court as affirmed by the appellate
court.