Bhausaheb Kevate & Ors Vs. Raichand Dhanraj Lunja  INSC 615 (15 December 1998)
Ahmad, & M. Jagannadha Rao. M.Jagannadha Rao
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.
shall refer to the facts briefly:
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).
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.
also held that the hardship to the appellant's son Madhukar was more than the
hardship to the respondent- tenant. 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.
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.
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.
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.
view, the High Court was wrong in its assumption that Madhukar could have
started a business in 1976 for the following reasons.
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:
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.
above evidence of the landlord's son Madhukar was the reason for the trial
court ordering eviction. This is what the trial court stated.
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.
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.
appeal is accordingly allowed.
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.