Julieta
Antonieta Tarcato Vs. Suleiman Ismail [2007] Insc 162 (20 February 2007)
B.P. SINGH & H.S. BEDI
B.P.SINGH, J.
In these appeals by special leave the appellant has impugned the judgment
and order of the High Court of Judicature at Bombay dated July 27, 2004 in Writ Petition No.4261 of 1991. The High Court by its impugned judgment and order
allowed the writ petition filed by the tenant-respondent herein and dismissed
the application for eviction filed by the appellant to evict the respondent
from the suit premises which is a flat located at Bandra in the city of Mumbai.
While doing so, the High Court set aside the appellate order of a bench of the
Court of Small Causes, Mumbai which had held that the landlady appellant
herein had established her case of bonafide personal need of the suit premises.
Having regard to the finding recorded by the High Court it is not necessary to
reproduce the facts of the case in detail but to appreciate the findings of the
High Court it is necessary to state the facts as briefly as possible.
The appellant herein undoubtedly, is the owner of the suit premises.
She was residing in the suit premises till December, 1971 when she suffered
serious burn injuries. In the unfortunate circumstances, since there was no
male member residing with her, she moved to the premises owned by two of her
brothers namely, father Lawrence and Mr. Tito, which premises are known as
Ashoka Apartments. Till then she was residing with her mother and her brother
and two of her nephews and one niece. The brother being a sailor, employed in
the Merchant Navy, was very often on the high seas.
Her brother, father Lawrence advised her that they should stay with him in
the Ashoka Apartments. At about that time, the respondent herein was in need of
accommodation since the premises occupied by him had collapsed and there was
urgent need of accommodation for him and his family members which included two
brothers, both of them lawyers. Under these circumstances, on 24th or 25th
January, 1972 an agreement was executed between the landlady and the respondent
purporting to let out the premises on leave and licence basis on monthly fee of
Rs.550/-. It is not disputed that under the amended provisions of the Tenancy
Act, such a licencee has acquired the status of a tenant.
Having stayed with her brother for several years, the appellant decided not
to burden her brother any more and to return to her own premises along with the
family members who were earlier residing with her.
Accordingly, a notice terminating the tenancy was issued in the year 1979
and a suit for eviction followed in the year 1980. It is not necessary to refer
to other legal proceedings relating to fixation of standard rent and eviction
claimed on the ground of default in payment of rent. The case of the appellant
was that she had to leave the suit premises in the circumstances narrated
above, and started living with her brother. However, she needed the suit
premises for her own reasonable and bonafide need and also for accommodating
her two nephews and her niece who always resided with her. Her nephews and
niece also required sufficient accommodation to pursue their studies. The
accommodation available in her brother's flat was not only insufficient but
also inconvenient. She did not want herself and her nephews and niece to be a
burden upon her brother, father Lawrence who was a research scholar, after
enjoying his hospitality for a long time during her ailment. She submitted that
she did not own any other immovable property in Mumbai nor did she have
sufficient means to acquire or secure any other suitable accommodation for
herself.
The respondent contested the application for eviction and denied that the
appellant required the suit premises reasonably and bonafide for her own use
and occupation along with her two nephews and her niece. It was asserted that
they had been residing with the appellant in the Ashoka Apartments with her
brother, father Lawrence who owned a big self- contained flat which had
sufficient accommodation to accommodate all of them. There was denial of the
fact that the appellant did not own any other immovable property in Mumbai nor
did she have sufficient means to acquire or secure any other suitable
accommodation for herself. It was also asserted that greater hardship would be
caused to him if the decree for ejectment was passed.
The Trial Court framed several issues, the crucial issue being whether the
plaintiff failed to prove her bonafide reasonable need of suit premises for her
own use and accommodation along with her two nephews and one niece.
The Trial Court found on the basis of material on record that the appellant
had been residing in the suit premises during the years 1966-68 and even
thereafter. Therefore, the plea urged on behalf of the respondent that she used
to give the suit premises to various persons on leave and licence basis was
rejected. The facts found by the Trial Court also disclosed that soon after the
appellant shifted to the apartment of her brother, the premises were given to
the respondent on leave and licence basis. The defendant was also in dire need
of accommodation since the premises occupied by him had collapsed. The Trial
Court however, came to the conclusion that the appellant had gone to reside in
the Ashoka Apartments with the intention not to come back in near future, and
with that intention to give the premises on leave and licence basis to earn
income therefrom. On the question of bonafide personal need, the Trial Court
came to the conclusion that the appellant had claimed possession of the suit
premises on the ground that the suit premises were reasonably and bonafide
required by her and her nephews and niece who had grown up and required
sufficient accommodation which was not available in the Ashoka Apartments and
that she did not want herself and her nephews and niece to be a burden on her
brother Lawrence. The Trial Court observed that the appellant had nowhere
stated that she required the suit premises for her nephews and niece who had to
pursue their studies and vocation. The Trial Court noticed that the mother of
the appellant died during the pendency of the suit and her unmarried sister
also got married and was residing with her husband at Goa. Her niece also got
married and was residing with her husband at Goa, while one of her nephews Lino
joined the Merchant Navy and the other Brian was studying for his M.B.B.S.
Degree. The Trial Court considered the evidence in great details and came to
the conclusion that since some of the family members residing with the
appellant started residing elsewhere after marriage or on getting employed,
there was sufficient accommodation available in the apartment of her brother
Lawrence which was a spacious apartment consisting of three bed rooms, a hall,
kitchen etc.
The Trial Court further held that the appellant as well as her brother
Lawrence had sufficient income to maintain themselves and, therefore, the plea
of the appellant that she did not want to burden her brother any more did not
appear convincing. It, therefore, concluded that the accommodation in Ashoka
Apartments was sufficient for the appellant as well as others who were residing
with her. Her requirement of additional premises therefore could not be said to
be reasonable and bonafide.
On such findings the Trial Court dismissed the eviction petition. The
appellant preferred an appeal before the Appellate Bench of the Court of Small
Causes at Mumbai. On a consideration of the evidence on record the Appellate
Bench held that the appellant had made out a case of bonafide personal need of
the premises in question. It found that the appellant had not left her own
apartment permanently without any intention of coming back.
The Trial Court was in error in holding that the appellant had left her
apartment once for all. In any event, this question was immaterial to decide
the question of bonafide personal need. It considered the appellant's plea that
she had lived with her brother for quite some time and she did not want to stay
there any longer. She therefore required her own premises for her own occupation
and her need could not be said to be unreasonable. Since she had her own flat
on the ground floor which suited her in her old age, and she did not wish to
burden her brother any more, there was nothing unreasonable in her wanting to
reside in her own apartment rather than continuing to reside in her brother's
apartment where she had to move under compelling circumstances on account of
serious burn injuries suffered by her. Moreover, before the accident in which
she had suffered burn injuries, the appellant was residing in her own flat. The
Appellate Bench took notice of the fact brought on record that after filing of
the suit the appellant was detected to be suffering from heart ailment and,
therefore, she would enjoy staying in her own apartment rather than staying
with her brother. The Appellate Bench further observed that even if the
appellant's sister and niece got married and were residing at different places,
and her mother had also died, that did not lead to the conclusion that the
bonafide personal need of the appellant to reside in her own apartment did not
survive. It may be that the premises were no longer required also for providing
accommodation to her sister, niece and mother, but her own need for the
premises subsisted.
The Appellate Bench also recorded a finding that respondent would not suffer
greater hardship than the appellant if he was evicted from the premises in
question.
On these findings the Appellate Bench allowed the appeal holding that the
appellant had established her bonafide personal need for the premises in
question.
The respondent preferred a writ petition before the High Court of Judicature
at Bombay which was ultimately allowed by the High Court by its impugned
judgment dated July 27, 2004. After briefly noticing the facts of the case the
High Court accepted the finding of the Appellate Bench that the appellant had
not left the premises with the intention of staying with her brother
permanently. The High Court also accepted the finding of fact recorded by the
First Appellate Court that the appellant had no share in the flat in Ashoka
Apartments and, therefore had no right to stay therein.
However, the High Court was impressed by the subsequent events which were
brought to its notice by a civil application filed by the respondent. The
subsequent events which impressed the High Court were that the appellant's
mother had died in the year 1976 and her sister-in-law had also died in the
year 1982. Her brother was residing permanently in Goa to look after the
ancestral family property. Of the three children of her brother, a son Lino had
died during the pendency of the Writ Petition while his daughter had got
married and was residing permanently at Goa. Another son of her brother namely,
Brian had settled in U.S.A. as a medical practitioner. The appellant denied
that Dr. Brian had migrated to U.S.A. permanently. The learned Judge held that
apart from the appellant and Dr. Brian all the others who were earlier residing
with the appellant had either expired or had settled down elsewhere and
therefore the need of the other family members did not survive. The appellant's
brother Lawrence had also died. The High Court concluded that Lawrence being a
bachelor, the appellant has also inherited a share in his flat at Ashoka
Apartments and thus became a co-owner having a right to reside in the flat in
Ashoka Apartments. Her brother Tito no doubt was also a co-owner of the
premises since he owned the premises jointly with her late brother Lawrence. In
view of the fact that she as a co-owner had a right to reside in the premises,
her need of her own apartment did not survive. The High Court, therefore,
concluded that in the changed circumstances and subsequent events which
happened during the pendency of the Writ Petition before the High Court, the
need of the appellant did not survive and, therefore the decree passed by the
Appellate Court deserved to be set aside. Accordingly, the Writ Petition was
allowed and the eviction petition was rejected.
Having noticed the evidence on record and the findings recorded by the
Courts below we have come to the conclusion that this appeal must be allowed.
The finding of bonafide personal need recorded by the Appellate Court is a
finding of fact based on the evidence on record. We have considered the evidence
on record and we find that the finding recorded by the Appellate Court did not
deserve to be set aside. In fact, the High Court also was of the same view, but
in the changed circumstances having regard to the events that took place during
the pendency of the Writ Petition, the High Court interfered with the order of
the Appellate Court. We hold that the High Court was not justified in doing so.
It cannot be lost sight of that the premises which the appellant required for
her personal bonafide need belonged to her. She was residing in those premises
with other family members for many years. Unfortunately, she suffered an
accident and in the absence of any other grown up male member in the family she
was persuaded by her brother Lawrence to come and reside in his apartment which
was one of the flats in the Ashoka Apartment and which was owned by him and his
brother Tito. After residing there for several years, the appellant felt that
she should not burden her brother any more and, therefore wanted to shift to
her own accommodation which was then in occupation of the respondent. The Trial
Court made much of the fact that the appellant had also pleaded her bonafide
need of providing accommodation to other members of the family. While doing so
the Trial Court completely lost sight of the fact that apart from the
requirement of other members of the family, the appellant also required the
premises for her own accommodation. Thus, even if the other members of the
family no longer required the premises, the requirement of the appellant
survived. She had every right to occupy her own premises and she could not be
told that she should share accommodation with her brother in another apartment.
The High Court was in error in holding that since the appellant became a co-owner
of the premises upon the death of her brother Lawrence, she had a right to
reside in those premises and, therefore, her need for the premises owned by her
exclusively did not subsist. The appellant has brought to our notice the fact
that in September 2003, the appellant and her sister gave their consent for the
transfer of the flat in Ashoka Apartments in the name of Tito their brother,
who was a co-owner of the flat along with her late brother Lawrence. Even if we
ignore this fact, one cannot compel the owner of the premises which exclusively
belongs to her to share accommodation with a co-owner of hers in another
premises. The appellant being the owner of the suit premises, her need being
bonafide and reasonable, it would be unfair to compel her to share the
accommodation in another premises with its co-owner. We must therefore hold
that the High Court was in error in coming to the conclusion that the bonafide
personal need of the appellant did not subsist.
We, therefore, set aside the impugned judgment and order of the High Court
and restore that of the Appellate Bench of the Court of Small Causes, Mumbai
dated June 14, 1991 allowing the Eviction Petition and directing the respondent
to deliver/ vacant possession of the suit premises to the appellant.
These appeals are accordingly allowed with costs.
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