Maganlal Kishanlal
Godha Vs. Nanasaheb Uddhaorao Gadewar [2008] INSC 1745 (16 October 2008)
Judgment
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6125 OF
2008 [Arising out of S.L.P. (C) No.4764 of 2006] Maganlal son of Kishanlal
Godha .... Appellant Versus Nanasaheb son of Udhaorao Gadewar .... Respondent
Lokeshwar Singh
Panta, J.
1.
Leave
granted.
2.
This
appeal arises out of the judgment and order dated 01.12.2005 passed by the
Division Bench of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur.
By the impugned order, the Division Bench has set aside the judgment and order
2 dated 14.02.1995 of the learned Single Judge in Writ Petition No. 400/1990
and restored the order dated 06.11.1989 of the Appellate Authority whereby the
order dated 07.03.1988 recorded by the Rent Controller, Nagpur granting
permission to the landlord under Clause 13(3) (iv) and (vi) of the Central
Provinces and Berar Letting of Houses and Rent Control Order, 1949, has been
quashed and set aside.
3.
Briefly
stated, the facts of the case are as follows:
Maganlal Kishanlal
Godha, appellant herein, is the owner of three storey house bearing Corporation
No. 57/0-4 in Ward No. 28 in Bapurao Gali, Itwari, Nagpur. One portion on the
ground floor of the said house, except one room, is occupied by Nanasaheb the
respondent-tenant herein on rent of Rs. 140/- per month.
4.
The
appellant-landlord on 30.09.1982, filed an application before the Rent
Controller, Nagpur seeking permission to terminate the tenancy of the
respondent-tenant under Clause 13 (3) (iv) and (vi) of the Central Provinces
and Berar Letting of Houses and Rent Control Order, 1949 (hereinafter referred
to as "Rent Control Order"). It was the case of the
appellant-landlord before the Rent-Controller that he purchased the suit house
by a 3 registered sale deed in the year 1968 from the previous owner.
The
appellant-landlord was carrying on cloth business at Gondia and his son Pradeep
Jain, at the time of filing of the eviction application, was studying in M.
Tech. and residing in a Hostel at Nagpur. It was contended that after
completing the education, Pradeep Jain will start independent business for
which the demised premises were required by the appellant-landlord. The
appellant-landlord further stated that he wanted to shift his residence from
Gondia to Nagpur, therefore, he needed the demised premises for his bona fide
requirement as well. During the pendency of the eviction proceedings, the
appellant-landlord filed an application seeking amendment of the pleadings. The
said application was allowed by the Rent Controller on 08.07.1985. The
appellant-landlord had pleaded in the amended petition that he has applied for
licence to manufacture of Oxalic acid in Bhandara District. According to the
appellant-landlord, his son Pradeep Jain had completed his M.Tech. education in
Chemical Engineering and wanted to look after the sales of Oxalic acid business
to be started in the demised premises by the 4 appellant-landlord. On these
premises, the appellant-landlord sought the eviction of the respondent-tenant.
5.
The
respondent-tenant, in the written statement filed on 06.01.1983, admitted the
relationship of landlord and tenant between the appellant and himself. He
denied the allegation of change of user of the demised premises from
residential to the non-residential as alleged by the appellant-landlord. He
stated that the demised premises were let out to him for non-residential
purpose by predecessor-in-title of the appellant-landlord. He specifically
stated that the alleged bona fide need, pleaded by the appellant-landlord, is
nothing but a pretext to secure enhancement of the rent and also to get him
evicted by illegal and unfair method.
6.
On
the pleadings of the parties, the Rent Controller framed necessary issues. Both
the parties went to trial and led their evidence. After considering the
evidence, the Rent Controller granted permission to the appellant-landlord to
determine the tenancy under Clause 13 (3) (iv) and (vi) of the Rent Control Order.
7.
Being
aggrieved by the order of the Rent Controller, the respondent-tenant preferred
an appeal under Clause 21 of the 5 Rent Control Order and the Additional
District Magistrate, Nagpur (Appellate Authority) by order dated 06.11.1989
allowed the said appeal and set aside the order of the Rent Controller.
8.
Against
the Appellate Authority's order, the appellant- landlord filed Writ Petition
No. 400/1990 before the High Court of Judicature at Bombay, Nagpur Bench. The
learned Single Judge, by order dated 14.02.1995, partly allowed the writ
petition upholding the order of the Appellate Authority to the extent it
quashed the order of the Rent Controller granting relief to the
appellant-landlord under Clause 13 (3) (iv) of the Rent Control Order. However,
the order of the Rent Controller dated 07.03.1988 granting permission to the
appellant-landlord to terminate the tenancy of the respondent-tenant under
Clause 13 (3) (vi) of the Rent Control Order was restored and to that extent
the order of the Appellate Authority was set aside.
9.
Being
aggrieved, the tenant filed a writ appeal before the Division Bench of the High
Court, which was allowed by the Bench on 01.12.2005 whereby the judgment and
order passed by the learned Single Judge was set aside and the order of the
Appellate Authority dated 06.11.1989 was restored. Hence, the 6
appellant-landlord has challenged the correctness and validity of the order of
the Division Bench of the High Court in this appeal.
10.
We
have heard learned counsel for the parties and with their assistance, examined
the material on record. The relationship of landlord and tenant between the
appellant and the respondent is not in dispute.
11.
The
Division Bench of the High Court, while setting aside the judgment and order of
the learned Single Judge observed as under:
"The learned
Single Judge totally ignored the material on record which was considered by the
Appellate Authority under the Rent Control Order, which totally belies the
claim of the respondent-landlord for bona fide requirement and it is evident
from the documents placed on record by the appellant-tenant. The first notice
dated 12.07.1982 sent to the appellant- tenant by Advocate Shri Mahajan, which
is in the form of a quit notice wherein reason given for issuing the quit notice
is stated in para 4 which reads as under:
`That the premises
occupied by you can easily fetch the rent of Rs. 1,000/- per month. You are an
undesirable tenant and hence this quit notice is issued.' The same was replied
by the Advocate for the appellant-tenant on 15.07.1982 in which it is
specifically denied that the premises were 7 given for residential purpose, on
the other hand it was claimed that the premises were given on rent for
non-residential purpose and the appellant-tenant was running his Dispensary
since 1958. In so far as the demand for rent is concerned, it was stated that
previously the rent was Rs. 80/- per month and it was raised from time to time
and now the appellant-tenant is paying Rs. 140/- per month. It was specifically
denied that the premises can fetch Rs. 1,000/- per month as alleged. It was
further contended that the alleged termination of tenancy is illegal.
Therefore, it can be
seen that the whole object of respondent-landlord in issuing the notice to quit
was that the premises were fetching less rent whereas it can fetch Rs. 1,000/-
and as the appellant-tenant was paying Rs. 140/-, he was an undesirable tenant.
There is no whisper in the said notice, which was sent to the appellant-tenant
hardly a month before the rent control proceedings came to be initiated and if
the respondent-landlord wanted the premises for his bona fide occupation then
there is no reason why this fact was not mentioned in the said notice.
Therefore, it can be
necessarily inferred that the need to occupy the premises by the
respondent-landlord cannot be said to be natural, real, necessary and honest.
Further, there are documents on record to show that except for portion of the
ground floor of the house which is in occupation of the appellant- tenant, rest
of the house was already in use and occupation of the respondent-tenant, which
has been brought on record by placing the declaration given by the
respondent-tenant to the Municipal Corporation as required for assessment of
taxes. Unfortunately, the 8 learned Single Judge ignored this material
evidence in spite of the fact that the Appellate Authority under the Rent
Control Order has based its findings by placing reliance on these documents
which are material on record."
12.
The
only question arising for our consideration in this appeal is whether the
Division Bench of the High Court has erred in appreciating the evidence
considered by the learned Single Judge in his order and whether the order
impugned before us is not in conformity with the provisions provided in the
Rent Control Order. The relevant provisions applicable to the present case may
be referred to for examining the factual situation as well as the finding of
the Division Bench on legal issue.
13.
Clause
13 of the Rent Control Order provides the grounds on which the landlord is
entitled to determine lease of tenancy. The provisions relevant for the purpose
of deciding this appeal reads as under:
"13 (1) No
landlord shall, except with the previous written permission of the Controller
:- (a) give notice to a tenant determining the lease or determine the lease if
the lease is 9 expressed to be determinable at his option ; or (b) xxxx xxxx
(2) A landlord who seeks to obtain permission under sub-clause (1) shall apply
in writing to the Controller in that behalf:
Provided that where
the tenancy is for a specified period agreed upon between the landlord and the
tenant, no application under items (vi) and (vii) of sub-Clause (3) shall be
entertained by the Controller before the expire of such period.
(3) If after hearing
the parties, the Controller is satisfied:- (i) xxxx xxxx (ii) xxxx xxxx (iii)
xxxx xxxx (iv) that the tenant has used the house or premises or any part
thereof for a purpose other than that for which it was leased; or (v) xxxx xxxx
(vi) that the landlord needs the house or a portion thereof for the purpose of
his bona fide residence, provided he is not occupying any other residential
house of his own in the city or town concerned; or (vii) xxxxx 10 (viii) xxxxx
(ix) xxxxx "
14.
The
eviction of the respondent-tenant recorded by the Rent Controller has been
confirmed by the learned Single Judge on the ground of bona fide requirement of
the appellant-landlord in terms of Clause 13 (3) (vi) of the Rent Control
Order. On plain reading of the language of Clause 13 (1) (a) of the Rent
Control Order, it is clear that the question of determination of tenancy would
arise only after permission to serve such notice is granted by the Rent
Controller. Thus, the notice issued by the Advocate on behalf of the appellant-landlord
prior to filing of the application for eviction of the respondent-tenant under
Clause 13 (3) (vi) was not a mandatory requirement postulated under the
provisions of the Rent Control Order. As there was no statutory requirement
that the landlord should issue a notice of eviction to the tenant before
initiating proceedings under clause 13(3) of the Rent Control Order, the
Division Bench of the High Court was not right in drawing an inference against
the appellant-landlord for not stating the ground of bona fide requirement of
the premises in the notice 11 dated 12.07.1982 issued to the respondent-tenant
before the institution of eviction proceedings which commenced on 30.09.1982.
15.
The
appellant-landlord applied to the Rent Controller for determination of the
tenancy of the respondent-tenant on two grounds, i.e. under clause 13 (3)(iv)
and (vi) of the Rent Control Order. His claim was that his son Pradeep Jain, at
the time of application, was a student of M. Tech. at Nagpur and after
completing his examination in Chemical Engineering, he wanted to start his
business of manufacturing oxalic acid in the factory to be set up in the
demised premises. He stated that he also wanted to shift his business and
residence from Gondia to Nagpur, therefore, he was in need of the premises for
himself and for the bona fide occupation of his son. During the pendency of the
eviction proceedings, the Rent Controller vide Order dated 08.07.1985 allowed
the application of the appellant-landlord for amendment of the pleadings. In
para 5 (a) of the amended application, the appellant-landlord stated that his
son Pradeep Jain has since qualified M. Tech. examination in Chemical 12
Engineering and the applicant has also applied for licence to manufacture
Oxalic acid in Bhandara District. According to the version of the
appellant-landlord, his son Pradeep Jain will reside at Nagpur in the demised
premises and will look after the sales of Oxalic acid. Alternatively, it was
claimed by the appellant- landlord that if the licence for manufacturing Oxalic
acid is not granted by the competent authority, his son will shift to Nagpur
and start an industry for manufacturing chemical products. It is further
established that Pradeep Jain cannot make up his future career by staying in Gondia
which is a small town and, therefore, for building up his future career,
Pradeep Jain has to be shifted to Nagpur. In the light of the evidence on
record, we are of the opinion that the order of the Division Bench of the High
Court cannot be sustained. The entire approach of the Division Bench in setting
aside the finding recorded by the Rent Controller and affirmed by the learned
Single Judge was erroneous and the Division Bench mis-directed itself while
considering the question of bona fide requirement in terms of Clause 13 (3)
(vi) of the Rent Control Order, which postulates that there must be an element
of need as opposed to a mere desire or wish of the landlord.
16.
This
Court in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal &
Ors. [(2005) 8 SCC 252] held that it is always a prerogative of the landlord
that if he requires the premises in question for his bona fide use for
expansion of business, this is no ground to say that the landlords are already
having their business at Chennai and Hyderabad, therefore, it is not genuine
need. Further, it is held that it is not the tenant who can dictate the terms
to the landlord and advise him what he should do and what he should not. It is
always the privilege of the landlord to choose the nature of the business and
the place of the business.
17.
In
the case of Pratap Rai Tanwani v. Uttam Chand [(2004) 8 SCC 490], it was held
that the bona fide requirement of the landlord has to be seen on the date of
the petition and the subsequent events intervening due to protracted litigation
will not be relevant. It was held that the crucial date is the date of
petition; therefore, the normal rule is that the rights and obligations of the
parties are to be determined on the date of petition and that subsequent events
can be taken into 14 consideration for moulding the reliefs provided such
events had a material impact on those rights and obligations. It was further
observed that it is a stark reality that the longer is the life of the
litigation the more would be the number of developments sprouting up during the
long interregnum. Therefore, the Courts have to take a very pragmatic approach
of the matter. It is common experience in our country that especially
landlord-tenant litigations prolong for a long time. It is true that neither
can the person who has started the litigation sit idle nor can the development
of the event be stopped by him. Therefore, the crucial event should be taken as
on the date when the suit for eviction was filed, unless the subsequent events
materially change the ground of relief.
18.
In
the case of Gaya Prasad v. Pradeep Srivastava [(2001) 2 SCC 604], this Court
held that the landlord should not be penalized for the slowness of the legal
system and the crucial date for deciding the facts of the requirement of the
landlord is the date of his application for eviction. It is also observed that
the process of litigation cannot be made the basis for denying the landlord 15
relief unless the litigation at least reaches the final stages.
However, it is
further added that subsequent events may, in some situations, be considered to
have overshadowed the genuineness of the landlords' needs but only if they are
of such nature and dimension as to completely eclipse such need and make it
lose the significance altogether.
19.
So
far as the findings of the learned Single Judge with regard to the eviction of
the respondent-tenant on the ground of using the demised premises for the
purpose other than that for which it was leased under Clause 13 (3) (iv) is
concerned, that has been held against the appellant-landlord and there was no
cross- appeal before the Division Bench. Therefore, we need not go into the
merits of the findings of the learned Single Judge on that ground.
20.
In
the result, for the aforesaid reasons, the appeal is allowed and the judgment
and order dated 01.12.2005 passed by the Division Bench of the High Court in
Letters Patent Appeal No. 58/1995 is set aside and the judgment and order of
the learned Single Judge dated 14.02.1995 recorded in Writ Petition No. 16
400/1990 is upheld. Consequently, the order of the Rent Controller dated
07.03.1988 granting permission to the appellant- landlord to terminate the
tenancy of the respondent-tenant under Clause 13 (3) (vi) of the Rent Control
Order, 1949 shall stand restored.
21.
The
respondent-tenant is directed to handover the vacant possession of the suit
premises to the appellant-landlord on or before 31st July, 2009. He shall file
usual undertaking before this Court within four weeks from the date of this
order.
22.
In
the facts and circumstances of the case, the parties are left to bear their own
costs.
........................................J.
(R. V. Raveendran)
........................................J.
(Lokeshwar Singh Panta)
New
Delhi.
October
16, 2008.
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