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     REPORTABLE

IN THE SUPREME COURT OF INDIA       CIVIL APPELLATE JURISDICTION  CIVIL   APPEAL No.8648 OF 2015   

(Arising out of SLP(C)No.22973 of 2010)

FARUK ILAHI TAMBOLI & ANR                         .......APPELLANTS

VERSUS

B.S.SHANKARRAO KOKATE(D) BY LRS.& ORS.           .......RESPONDENTS                                                      

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. The  petitioners-plaintiffs  purchased  the  suit  property  bearing  CTS  No.2640/C  in  Barshi  town,  Barshi  Taluka,  District  Sholapur, measuring 9.7 square meters, on 06.09.1980. At the time  of  purchase  of  the  property,  the  ancestor  of  the  respondent- defendant (who has since expired, and is now represented by his  legal  heirs)  was  occupying  the  suit  property  as  a  tenant.  The  contractual rent thereof was Rs.36/- per month. Having purchased  the  aforesaid  property,  the  petitioners  issued  a  notice  to  the  respondent, intimating him about the change in title.  In spite of  receipt of the attornment notice, the respondent did not tender any

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rent to the petitioners for the period from 1980 to 1982. The  petitioners  then  issued  a  notice  dated  01.05.1982,  demanding  arrears of rent at the rate of Rs.36/- per month.  Despite of the  receipt of aforesaid notice, the respondent did not tender any rent  to  the  petitioners.  In  fact,  through  a  communication  dated  10.09.1982,  the  respondent  took  a  stand,  that  he  had  filed  an  application for fixation of “standard rent”, and as such, till the  aforesaid application was disposed of, no rent was payable by him  to the petitioners.  Insofar as the issue of non-payment of rent,  and the prayer made by the petitioners in the aforesaid notice for  eviction from the premises are concerned, the stand adopted by the  respondent was that he was not a defaulter for a period of more  than six months, and as such, the notice issued by the petitioners  was invalid under the provisions of the Bombay Rents, Hotel and  Lodging House Rates Control Act, 1947 (hereinafter referred to as  `the  Rent  Act').  The  assertion  that  the  respondent  was  not  a  defaulter  for  more  than  six  months,  was  based  on  yet  another  factual assertion, that the respondent had paid a sum of Rs.180/-  by cash to the uncle of the petitioners, whereafter the respondent  was not in default for a period of more than six months.  2. Consequent upon the denial by the respondent to tender  any rent, the petitioners filed  Regular Civil Suit No.420 of 1982.  In the aforesaid Suit, besides the plea of eviction based on non- payment  of  rent,  the  petitioners  also  claimed  the  premises  for  their reasonable and bona fide need.

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3. The respondent contested the aforesaid Suit by preferring  a written statement wherein he reiterated, that the rent was not  payable by him to the petitioners till the fixation of “standard  rent”. It was also his claim, that an application for determination  of  “standard  rent”  was  pending.  He  also  undertook  to  pay  all  arrears of rent, as and when the aforesaid application was disposed  of. It is not a matter of dispute that the respondent had impleaded  the  petitioners,  in  the  aforesaid  application  (for  fixation  of  “standard rent”) and for all intents and purposes, the petitioners  participated  in  the  proceedings  pertaining  to  the  fixation  of  “standard rent”.  On the issue of eviction based on non-payment of  rent, the stand adopted by the respondent was that he had paid a  sum of Rs.180/- by cash to the uncle of the petitioners, and on  account of the said payment, the notice issued by the petitioners  seeking eviction of the respondent on the ground of non-payment of  rent, was defective. 4. The  Standard  Rent  Application  No.80/1979  was  finally  decided  on  16.10.1984.  The  Court  fixed  the  “standard  rent”  at  Rs.36/- per month, which admittedly was the same as the contractual  rent payable by the respondent on account of the tenancy of the  suit property. 5. The trial Court disposed of Regular Civil Suit No.420 of  1982,  on  15.03.1989.  The  pleas  raised  by  the  petitioner  were  accepted. Dissatisfied with the order passed by the trial Court,  the respondent preferred Civil Appeal No.187 of 1989 before the IV  Additional  District  Judge,  Sholapur.  The  IV  Additional  District  Judge,  Sholapur,  disposed  of  the  above  appeal  on  21.04.1993  by

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reversing  the  decision  rendered  by  the  trial  Court.   It  is,  therefore, that the petitioners-landlords approached the High Court  by filing Writ Petition No.2254 of 1993.  The said Writ Petition  was dismissed on 26.02.2010, which has led to the filing of the  present special leave petition. 6. Leave granted. 7. We have heard learned counsel for the rival parties. 8. Having  given  our  thoughtful  consideration  to  the  submissions advanced at the hands of the learned counsel for the  rival parties, we are satisfied that no interference whatsoever is  called for, on the claim of the appellants for the eviction of the  respondents, on the ground of non-payment of rent.  We, therefore,  hereby affirmed the findings recorded by the IV Additional District  Judge, Sholapur, as also by the High Court, on the issue of non- payment of rent.   9. The  question  that  has  engaged  us  while  hearing  the  present controversy, pertains only to the  bona fide need of the  appellants, of property bearing CTS No.2640/C, which was purchased  by the appellants on 06.09.1980.  The aforesaid premises admittedly  measures 9.7 square meters.  The claim of the appellants was, that  they needed the premises to run their own business. It was the  assertion of the appellants, that at the relevant time, they were  selling betel-nuts and betel-leaves, in the open on the street, and  that, they needed the shop in question, which was most suited for  the aforestated business. The claim of the appellants was disputed  by the respondents,by asserting that the appellants were joint with  their father and uncle, in residence as well as in business. It was

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the case of the respondents, that the father and uncle of the  appellants,  were  running  their  business  in  CTS  No.2640/A  and  2640/B. It was pointed out, that they were also dealing in the  business  of  betel-leaves,  betel-nuts,  bidys  (Indian  hand-rolled  cigarettes) and tobacco etc. It was, therefore, the assertion at  the behest of the respondents, that the plea of bona fide necessity  was merely a trumped up plea, and was wholly unacceptable.  10. The  repudiation  at  the  hands  of  the  respondents,  was  sought to be controverted by the appellants by asserting, that they  were  not  joint  and  that,  there  was  no  system  of  joint  family  amongst  Mohammedans.  The  case  set  up  was  that  amongst  Muslims,  there was no presumption of passing of joint family property to  descendants.  It was submitted, that even the ration cards of the  appellants were separated from other members of the family in 1985  (even though admittedly the suit for eviction was filed in 1982).  It was the contention of the respondents, that the father and uncle  of the appellants were unwell, and in fact, the business of the  father  and  uncle  was  being  taken  care  of  by  the  appellants.  Besides the aforesaid, learned counsel for the respondents invited  our attention to the fact, that an affidavit was filed by one of  the  legal  heirs  of  the  original  tenant  before  the  High  Court,  during the course of proceedings in Writ Petition No.2254 of 1993,  wherein the following stand was adopted by the respondents:

“7.   I  state  that  the  Petitioners  have  also  purchased the property bearing CTS No.3569/A after  admission of the present Writ Petition. I state  that  the  property  bearing  CTS  No.3569/A  is  admeasuring 114-2 Sq.mtrs. and the Petitioners are  running a flour mill in the said property. Hereto  marked and annexed as Exhibit-`4’ is the copy of

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the property extract of the property bearing CTS  No.3569/A. 8. I state that the Petitioners after admission  of the abovementioned Writ Petition on 29.4.1994  have  purchased  property  bearing  CTS  No.3568/A,  which is admeasuring 105-7 Sq.mts.  I state that  the  said  property  bearing  CTS  No.3568/A  is  situated  at  less  than  100  mtrs.  from  the  suit  property.  I  state  that  the  Petitioners  are  carrying  wholesale  business  of  various  goods  including beetle leaves, cigarette and fire work  items. Hereto marked and annexed as Exhibit-`5’ is  the copy of the property extract of the property  bearing CTS No.3568A.”

      (emphasis is ours)

11. In  view  of  the  factual  position  indicated  in  the  affidavit extracted above, it was submitted by the learned counsel  for the respondents, that the need of the appellants could not be  considered to be bona fide.  Additionally, it was pointed out, that  on account of purchase of business premises during the pendency of  the proceedings, it was not possible to assume, that the bona fide  necessity of the appellants was subsisting. In order to support his  contention, learned counsel for the respondents placed reliance on  Mattulal vs. Radhe Lal, (1974) 2 SCC 365, and placed reliance on  the following observations:

“12. The  question would still remain  whether  there  were   proper  grounds  on  which  this  finding  of  fact  could  be interferred  with by the High Court. It is  now well  settled by several decisions of this Court  including the decision in Sarvate T.B.'s  case(supra)  and Smt. Kamla Soni's  case(supra) that mere assertion  on the part of the landlord that he requires the  non- residential  accommodation  in   the occupation of   the tenant for   the  purpose  of  starting  or  continuing  his  own business is not decisive. It is  for the court to  determine the truth of the assertion  and also whether it is bona fide. The  test which has  to be applied is an objective  test and  not  a  subjective one and merely because a landlord  asserts

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that  he  wants the non-residential  accommodation  for  the  purpose  of   starting  or  continuing  his  own  business, that would not  be  enough to establish that  he requires it  for  that purpose  and  that  his  requirement is bona fide.  The word  'required'  signifies   that  mere  desire  on  the  part   of  the  landlord  is not enough but there should be an element  of need  and the landlord must show - the burden being  upon  him - that he genuinely  requires  the  non- residential accommodation for the purpose of starting  or  continuing  his  own   business.  The   Additional  District Judge did not misdirect himself  in regard

to  these  matters,  as  for  example,   by  misconstruing  the  word  'required'  or  by  erroneously  placing the burden of proof on the appellant and no  error of law was committed  by him  in arriving at  the  finding of fact in  regard  to the question  of bona  fide  requirement  of  the  respondent,   which  would  entitle the High Court in second appeal to  interfere  with that finding of fact.”

12.   In addition to the above, learned counsel placed reliance on  Hasmat Rai and another vs. Raghunath Prasad (1981) 3 SCC 103, so  as  to  contend,  that  the  events  which  transpired  during  the  pendency  of  the  proceedings,  were  liable  to  be  taken  into  consideration for arriving at a final determination, whether the  bona fide need of the tenant subsists, and it is only thereafter,  that the eviction of a tenant can be ordered (based on the ground  of bona fide necessity, raised by a landlord). 13. Insofar  as  the  submissions  advanced  by  the  learned  counsel for the rival parties are concerned, the first question  that  draws  our  attention  is,  whether  or  not  the  need  of  the  appellants was bona fide, when the civil suit was preferred by the  appellants  on  10.09.1982.  Having  given  our  thoughtful  consideration to the aforesaid issue, we are satisfied, that the  fact, that the instant premises was purchased by the appellants on  06.09.1980 for a total consideration of Rs.10,000/- even though

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the  same  was  earning  a  meager  rent  of  Rs.36/-  per  month,  is  indicative of the fact, that the appellants had not purchased the  premises  for  earning  rent  therefrom,  but  for  the  purpose  of  running a business therein. The assertion made by the appellants  that they wished to sell betel-leaves and related articles in the  premises, has not been seriously contested at the hands of the  respondents. But then, were the appellants engaged in some other  alternative business, at the time when the civil suit was filed?  It  was  not  the  case  of  the  respondents,  that  any  business  activities were being carried out by the appellants independently,  from their father and uncle, when the civil suit was filed. It  certainly cannot be the claim at the behest of a tenant, that the  owner of a premises must continue in business with his parents or  relations, assuming there was a joint business activity, to start  with.  That is usual, and happens all the time when children come  of age.  And thereafter, they must have the choice to run their  own life, by earning their own livelihood.  The property owner has  the right to use his property as he chooses, and if the appellants  in the instant case had purchased the suit property, for running  their own business, we find no irregularity therein, nor can there  be any doubt about their  bona fide desire to run the proposed  business in the premises, independent of the other family members.  The premises measuring a mere 9.7 square meters, we are satisfied  would  be  most  suitable  for  the  business  proposed  by  the  appellants, namely, for selling betel-nuts and betel-leaves.  This  is the usual size of the shops engaged in such business.   14. The aforesaid determination, however, would not render a

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final decision in favour of the appellants, for the reason, that  we would still have to determine whether the bona fide need of the  appellants was subsisting? It is therefore, that we will venture  to deal with the affidavit placed on our record, by the learned  counsel for the respondents, relevant extracts of which have been  reproduced  hereinabove.  A  perusal  of  the  same  reveals,  that  reference  therein  has  been  made  to  a  property  bearing  CTS  No.3569/A  admeasuring  114-2  square  meters.  This  property  was  purchased during the pendency of the proceedings arising out of  Regular Civil Suit No.420 of 1982. The affidavit itself indicates,  that the aforesaid premises is being used by the appellants to run  a flour mill. Even if the aforesaid factual position is accepted,  it cannot be the case of the respondents, that the appellants can  run their betel-nuts and betel-leaves business, from the premises  which  has  a  running  flour  mill.  Thus  viewed,  the  purchase  of  property bearing CTS No.3569/A is inconsequential insofar as the  present  controversy  is  concerned.  The  above  affidavit  further  indicates,  the  purchase  of  property  bearing  CTS  No.3568/A  admeasuring 105-7 square meters by the appellants. This property  was also purchased during the pendency of the proceedings arising  out of Regular Civil Suit No.420 of 1982. It was also submitted,  that the instant property bearing CTS No.3568/A, is at a distance  of merely 100 meters from the suit property.  It is also the  assertion of the learned counsel for the respondents, that the  appellants  are  running  wholesale  business  of  various  goods  including  betel-leaves,  cigarettes  and  fire-work  items,  and  as  such, the instant premises could be put to use for the additional

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purpose,  for  which  the  suit  premises  is  being  claimed  by  the  appellants.   Even  though  the  instant  contention  appears  to  be  attractive, it is not possible for us to accept the same, because  a retail business of selling betel-nuts, bidi and tobacco etc.  cannot be run from a premises as large as the one in CTS No.3568/A  which admittedly measures 105-7 square meters. It is unlikely for  customers to visit such a large premises for buying betel-leaves,  betel-nuts and bidis etc. In our view, the suit premises which  measures 9.7 square meters would attract retailers of the trade  under reference, as shops selling betel-leaves and betel-nuts are  usually of the size of the suit property. We therefore decline the  submissions advanced by the learned counsel for the respondents in  this regard.   15. Having arrived at the above conclusion, it is imperative  for  us  also  to  determine  the  question  of  comparative  hardship  between the parties. It was the submission of the learned counsel  for the respondents, that they have no business premises other  than the one in question to earn their livelihood, and that, if  the respondents were to be vacated from the premises, they would  be deprived of their entire livelihood.  The submissions advanced  by the learned counsel for the respondents, in our view, does not  lie in his mouth specially on account of the factual position  depicted in the findings recorded by the trial Court in paragraph  13  of  the  order  dated  15.03.1989,  which  is  being  extracted  hereunder:

“13.  Now it has to be seen as to whom greater  hardship will cause in case of eviction.  The fact is  on record that adjacent to suit property, there is

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property bearing C.T.S.No.2641 wherein the defendant  is running grocery shop.  So in case of eviction of  defendant from the suit premises, there will not be  much  loss  to  the  defendant  as  already  he  is  in  possession  of  some  premises  adjacent  to  the  suit  premises. No fact was brought on record that this  premises C.T.S.No.2641 is not sufficient for him to  run both business of grocery shop and paint. It was  contended on behalf of the defendant that he will  have to remain without food in case of his eviction  from the suit premises.  But this contention of the  defendant appears to be baseless, because, the record  shows that, the defendant has got agricultural lands,  bicycle shop in the name of his son and also grocery  shop being run in C.T.S.No.2641 adjacent to the suit  property. Further the fact is on record that, the  defendant is running wine shop in partnership. So all  these circumstances are sufficient to infer that, the  defendant will not be put to greater hardship in case  he is evicted from the suit property, because there  is  alternative  accommodation  available  for  the  defendant which is adjacent to the suit premises and  there are other sources from which the defendant can  earn  and  is  earning.  Much  efforts  were  made  on  behalf of the defendants to show how the plaintiffs  are economically sound.  It was shown on behalf of  the defendant that the plaintiffs are dealing the  business  of  matador  and  for  that  he  has  examined  witnesss Devdhar and Dhale.  The witness Devdhar has  stated  that  he  was  driver  on  the  matador  of  the  plaintiffs  and  the  plaintiffs  used  to  pay  his  remuneration.  The witness Dhale has stated that at  one  occasion  he  had  obtained  the  vehicle  of  the  plaintiffs on hire to proceed on journey. The sum and  substance of the defendants contention appears that  the plaintiffs are well to do. But even if for the  sake  of  time  being  it  is  presumed  that,  the  plaintiffs are dealing in business of matador, that  cannot be linked with the need of plaintiff’s suit  premises,  because  in  the  matador  the  plaintiffs  cannot  run  their  business  of  betel  leaves,  bidy,  cigarettes and other in which they desire to step.  For this business only property like suit premises  (is)  required and  matador  will  not  fulfill  that  purpose.  Therefore I am not inclined to rely upon  the contentions of the defendant that he will suffer  more loss in case of his eviction and that loss will  be  comparatively  more  the  suit  premises.  Consequently, I am of the opinion that, more hardship  will be caused to the plaintiffs if they are not put  in possession of the suit premises because it will be  as like to deprive plaintiffs from their right and  enjoy  their  own  property  for  their  bonafide

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requirement.  Fact has been admitted by the defendant  that, the plaintiffs are well vertical in business of  pan, bidy etc. It is for all the time contention of  the  defendant  that,  the  suit  property  has  been  purchased by the plaintiffs, that the rent has been  paid by him to plaintiffs, so all these callings by  defendant to plaintiffs in relation to suit property  shows  that,  suit  property  has  been  presumed  by  defendant  as  belong  to  the  plaintiffs  and  in  existence of these facts contention of the defendant  cannot  be  accepted  that  there  is  alternative  accommodation for plaintiffs to run their business in  the premises of their father or uncle when it is not  basic  contention  of  the  defendant  that,  the  suit  property has been purchased by the plaintiffs, their  father and uncle jointly.  In the result, I answer  issue  no.7A  in  the  affirmative  and  issue  no.7B  accordingly.”

 (emphasis is ours)  

16.   The reason for us to rely on the averments recorded in  paragraph 13 extracted hereinabove, emerges from the fact, that  the factual position depicted therein, was not disputed by the  respondents,  in  the  affidavit  filed  before  the  High  Court.  Although, in the affidavit filed before the High Court, respondent  No.1 made a reference to some of the properties which were used  for business by his wife Kusum Kokate, he did not dispute the fact  that he was running a grocery shop in CTS No.2641, and besides the  aforesaid,  he  had  a  separate  business  premises  wherein  he  was  having  a  bicycle-shop  and,  in  addition  thereto,  he  had  agricultural lands.  It is also not disputed that the respondent  was running a wine shop in partnership with his wife. Thus viewed,  we are satisfied, that the comparative hardship would be that of  the appellants, as against the respondents.  17. In  view  of  the  above,  we  are  of  the  view  that  the  impugned  orders  passed  by  the  IV  Additional  District  Judge,

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Sholapur dated 21.04.1993, and by the High Court dated 26.02.2010,  while disposing of Writ Petition No.2254 of 1993 deserve to be set  aside.  The  same  are  accordingly  hereby  set  aside.  The  instant  appeal  is  allowed.  The  respondents  are  directed  to  vacate  the  premises on or before 31.12.2015.           

                                 ..........................J.            (JAGDISH SINGH KHEHAR)  

                       ..........................J.  

         (R. BANUMATHI)

NEW DELHI; OCTOBER 14, 2015.

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