Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ...

on 31 March, 2015

Bombay High Court

Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ... on 31 March,
2015
Bench: A.S. Chandurkar
wp4505.14.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

WRIT PETITION NO.4505 OF 2014

PETITIONER: Wamanrao S/o Vyankatrao Shinde

(since Deceased) Through Legal
Representatives,

a. Shreedhar S/o Wamanrao Shinde,

Aged about 42 years,
Occupation:Business,
b. Girdhar S/o Wamanrao Shinde, Aged

about 48 years, Occupation: Business,

ig c. Piyush S/o Wamanrao Shinde, Aged
about 39 years, Occupation: Business,
d. Girish S/o Wamanrao Shinde, Aged
about 45 years, Occupation: Business,

All residents of Gudganj, Itwari,

Nagpur.

-VERSUS-

RESPONDENTS: Mrs. Munnibai wd/o Parmanand Jain

(Since Deceased), Through Legal

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 Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ... on 31 March, 2015

Representatives.
i. Gyanchand S/o Parmanand Jain,
Aged about 65 years, Occupation
Business,

ii. Virendrakumar S/o Rajkumar Jain,

Aged about 45 years,
Occupation:Business,
Iii. Smt. Kasturibai wd/o Rajkumar Jain,
Aged about 67 years, Occupation

Household,
All residents of House no.54, Gudganj
Oli, Itwari, Nagpur.

Shri S. P. Bhandarkar, Advocate for the petitioners.

Shri R. L. Khapre, Advocate for the respondents.

::: Downloaded on - 01/04/

wp4505.14.odt 2/1

CORAM: A.S. CHANDURKAR, J.

DATE ON WHICH SUBMISSIONS WERE HEARD: 09-03-2015 DATE ON WHICH JUDGMENT IS

PRONOUNCED: 31 -03-2015 ORAL JUDGMENT :

1. This writ petition at the instance of the tenant takes exception to the decree for eviction passed by
the appellate Court in an appeal filed by the landlords under Section 34 of the Maharashtra Rent
Control Act, 1999 (for short the said Act).

2. The respondents are owners of House No.54 situated at Itwari, Nagpur. Two shop blocks on the
ground floor of aforesaid house were let out to the predecessor of the petitioners in the year 1970.
The rent payable was Rs.215/- per month. As the landlords were in need of the tenanted premises

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 Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ... on 31 March, 2015

for carrying on their business, eviction of the tenant was sought on the ground of bonafide need.
According to the landlords who were two brothers, they were carrying on their business in a shop
having area of 3 ft. x 9 ft. owned by one Rajendrakumar Parmar. Both the brothers were doing
separate business in half portion of said premises. As they wanted to expand their business and as
they also desired to settle their sons, on 26-3-2002 notice came to be issued to the tenant for
vacating the suit premises. Thereafter the landlords filed Regular Civil Suit No.261/2002 under
provisions of Section 16(1)

(g) of the said Act.

wp4505.14.odt 3/15 The claim as made was opposed by the tenant on the ground that the need of
the landlords was not bonafide. It was stated that two sons of the plaintiff were employed elsewhere
and further the tenant was wholly dependent on the income that was received by doing business in
the suit premises. The trial Court by its judgment dated 1-

12-2005 held in favour of the landlords and decreed the suit. In appeal preferred by the tenant, the
first appellate Court upheld the finding of the trial Court regarding bonafide need of the landlords.
It, however, held that greater hardship would be caused to the tenant if he was evicted from the suit
premises. It was observed that as the landlords themselves were not in a position to get alternate
accommodation, greater hardship would be caused to the tenant.

3. The landlords being aggrieved by aforesaid judgment filed Writ Petition No.4926/2006, while the
tenant being aggrieved by the finding recorded by the Court as regards bonafide need of the
landlords filed Writ Petition No.3303/2008. Learned Single Judge by judgment dated 10-8-2010
held that the aspect as to whether the need of the landlords would be satisfied by directing partial
eviction of the tenant from a portion of the suit premises had not been considered by the first
appellate Court. Hence, the proceedings were remanded to the Small Causes Court for recording a
finding on the aspect of comparative hardship and as to whether partial eviction of the tenant would
satisfy the need of the landlords. After remand, the parties did not lead any further evidence. The
trial Court held that the need of the landlords wp4505.14.odt 4/15 would be satisfied if half portion
on the front side could be made available to the landlords for carrying on their business. Hence, by
order dated 28-2-2011 the landlords were held entitled for possession of half portion of the suit
blocks. The landlords, therefore, challenged the said order before the appellate Court, while the
tenant filed cross objections challenging the decree in respect of half portion of the suit premises. By
impugned judgment dated 20-12-2013, the appellate Court allowed the appeal and dismissed the
cross objections filed by the tenant. A decree for eviction in respect of the entire premises was
passed in favour of the landlords.

4. Shri S. P. Bhandarkar, learned Counsel appearing for the petitioners, at the outset, submitted that
the question as to whether a judgment passed under Section 34 of the said Act could be challenged
by the unsuccessful party by filing revision application under Section 115 of the Code of Civil
Procedure or whether the same could be assailed under Article 226 and/or 227 of the Constitution
of India had been referred for consideration by learned Single Judge to a larger bench. He,
therefore, submitted that in view of the order or reference dated 27-6-2014 passed in Writ Petition

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 Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ... on 31 March, 2015

No.5552/2013, this Court should await decision of the larger bench and till such period, the hearing
of the present writ petition should be deferred. He submitted that the scope of remedy available for
challenging an order passed under Section 34 of the said Act had different contours and, therefore,
it was necessary to await such adjudication. In support of his submissions, he relied upon the
wp4505.14.odt 5/15 observations made in paras 34 and 35 of the Full Bench decision of this Court in
Subhangi Tukaram Sawant vs. R. H. Mendonca and others, 2001(3) Mh.L.J., 580.

He then submitted that the appellate Court erred in directing eviction of the tenant from the suit
premises. The evidence on record was clear that the greater hardship would be caused to the tenant
if he was evicted from the suit premises. The business that was being conducted from the suit
premises was the only source of income of the tenant and, therefore, greater hardship would be
caused to him if he was evicted from the suit premises. In support of said submissions, the learned
Counsel relied upon Badrinarayan Chunilal Bhutada v.

Govindram Ramgopal Mundada, AIR 2003 Supreme Court 2713, Yogesh Dattaram Pathak vs.
Shrikrishna Shriram Joshi 2003(3) Mh.L.J., 684 and Bismilla Bee w/o SK. Chand and another vs.
Mohd.

Anwar S/o Mohd. Akhtar, 2010(2) Mh.L.J. 829. It was, therefore, submitted that the tenant was not
liable to be evicted from the suit premises and therefore, the claim of the landlords was liable to be
rejected.

5. Countering aforesaid submissions, Shri R. L. Khapre, the learned Counsel appearing for the
landlords submitted that merely because the issue regarding nature of remedy available to a party to
challenge an order passed under Section 34 of the said Act was pending, the same would be no
reason to defer hearing of the present writ petition. He submitted that the view holding a writ
petition to be wp4505.14.odt 6/15 tenable had not been stayed and hence, the present writ petition
could be heard on merits. He then submitted that the proceedings arose out of suit for eviction filed
by the landlords in the year 2002 seeking possession on the ground of their bonafide need. The
proceedings had once come up to this Court and had been thereafter remanded and the present
orders arise after adjudication pursuant to the order of remand.

He, therefore, submitted that there was no justification whatsoever to defer hearing of the writ
petition nor was there any bar to proceed with its hearing. In this regard, he relied upon Ashok
Sadarangani and Anr.

v. Union of India and Ors. AIR 2012 Supreme Court 1563, Manager, National Insurance Co. Ltd. v.
Saju P. Paul and Anr. AIR 2013 Supreme Court 1064, Harbhajan Singh and Anr. v. State of Punjab
and Anr. AIR 2009 SC (Supp) 1977, and Aristo Pharmaceuticals Pvt.

Ltd. v. Innova Cap Tab & Anr. 2014(7) ALL MR 198.

As regards comparative hardship to the landlords, it was submitted that the premises was needed
for bonafide need to carry on business by the landlords and also for settling their sons in life. The

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 Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ... on 31 March, 2015

premises in question were of a small dimension and hence, partial eviction of the tenant would not
satisfy the need of the landlords.

Considering the fact that the landlords were two brothers having eight sons in all, it was clear that
there was need of both the shop blocks and, therefore, the appellate Court was justified in holding in
favour of the landlords. He placed reliance upon decision of the Supreme Court in Shamshad
Ahmad and Ors. V. Tilak Raj Bajaj (D) by L.Rs., and Ors.

wp4505.14.odt 7/15 AIR 2008 SC (Supp) 526 and Mohd. Ayub & Anr. v. Mukesh Chand AIR 2012
SC 881 in that regard. He, therefore, submitted that there was no reason to interfere with the decree
for eviction.

6. I have carefully considered aforesaid submissions and I have also gone through the material
placed on record. As the learned Counsel for the petitioners had prayed for deferring hearing of the
writ petition till the reference was decided by the larger bench, it is necessary to first consider said
aspect. By order dated 27-6-2014 in Writ Petition No.5552/2013, the issue regarding nature of
remedy available to an aggrieved party has been referred for consideration by a larger bench.

The question is whether in the facts of the present case, hearing of the writ petition should be
deferred till such adjudication. In Ashok Sadarangani (supra), the Supreme Court in para 19 has
observed that pendency of a reference to a larger bench would not mean that all other proceedings
involving a similar issue should remain stayed till a decision was rendered in the reference. It was
further observed that till the decisions rendered earlier were not modified or altered in any way,
they continued to hold the field. Similarly, in Manager, National Insurance Company Ltd. (supra),
the Supreme Court held that mere pendency of certain questions before a larger bench would not
mean that the particular course that was followed in earlier judgments could not be followed. After
noting the peculiar facts of said case arising under provisions of Motor Vehicles Act, 1988 wherein
the accident had occurred in the year 1993, the Supreme Court adjudicated the wp4505.14.odt 8/15
proceedings on merits. Similar course was followed by the Supreme Court in Harbhajansingh and
another (supra). In P. Sudhakar Rao Vs. V. Govinda Rao (2013) 8 SCC 693, the Supreme Court in
para 55 observed thus:

"55. Be that as it may, the pendency of a similar matter before a larger Bench has not
prevented this Court from dealing with the issue on merits. Even on earlier occasions,
the pendency of the matter before the larger Bench did not prevent this Court from
dealing with the issue on merits. Indeed, a few cases including Pawan Pratap Singh
were decided even after the issue raised in Asis Kumar Samanta was referred to a
larger Bench. ig WE, therefore, do not feel constrained or precluded from taking a
view in the matter.

Similarly, in State of Maharashtra Vs. Sarva Shramik Sangh, Sangli AIR 2014 SC 61 a prayer for
postponing consideration of the proceedings was made due to pendency of reference before a larger
bench. The Supreme Court in para 20 observed thus:

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 Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ... on 31 March, 2015

"20.............................................................................
................................................................................. As noted earlier, the
reconsideration of the wide interpretation of the concept of "industry" in Bangalore
Water Supply and Sewerage Board (supra) is pending before a larger bench of this
Court. However, as of now we will have to follow the interpretation of law presently
holding the field as per the approach taken by this Court in State of Orissa v. Dandasi
Sahu (supra), referred to above. The determination of the present pending industrial
dispute cannot be kept undecided until the judgment of the larger bench is received."

In the Full Bench decision relied on behalf of the petitioners in Shubhangi Tukaram Sawant (supra),
the Full Bench had noted that it was not appropriate for a co-ordinate Bench to disagree with earlier
wp4505.14.odt 9/15 views without referring the matter for being resolved by a larger Bench.

In para 35, it was observed that it was inappropriate on the part of the Court to decide the matter
after being informed of the constitution of a larger Bench.

7. The facts of the present case indicate that the landlords are seeking eviction of the tenant on the
ground of bonafide need in proceedings that were initiated in the year 2002. The proceedings had
reached this Court in the year 2008 after which they were remanded to the trial Court for
considering the aspect of comparative hardship to the parties. At this stage, it would be necessary to
refer to the judgment of the Division Bench in Prabhulal Chhogalal Mandore vs. Bastiram Himatram
Bhutada and another, 1990(1) Bom. C. R. 529. The Division Bench therein was considering the
question as to whether proceedings initiated by way of a writ petition under Article 227 of the
Constitution of India would fall within the term "proceeding" as appearing in Section 25 of the
Maharashtra Act No.XVIII of 1987. In that context, the Division Bench also considered the issue as
regards the remedy available to an aggrieved party against an order passed under Section 29 of the
Bombay Rents Hotel and Lodging House Rates Control Act, 1947. In para 11 of the judgment, the
Division Bench observed as under:

"11.............................................................................
..................................................................................
.................................................................................. It is an admitted position that
against the order of District Court in appeal under Section 29 of the Bombay Rent
Act, no appeal lies to the High Court.

wp4505.14.odt 10/15 Therefore obviously powers of the High Court under Section 115
of the code of Civil Procedure could be invoked. As held by the Supreme Court in
Shankar R. Abhyankar's case, there are two modes of invoking jurisdiction of the
High Court. i.e. either under section 115 of the Code of Civil Procedure and/or under
Article 227 of the Constitution of India. The law laid down therein has been further
clarified by the Supreme Court in A.I.R. 1986 S.C. 1780 (Indian Oil Corporation Ltd.
v. State of Bihar), which reads as under:

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 Wamanrao S/O Vyankatrao Shinde ... vs Mrs. Munnibai Wd/O Parmanand Jain ... on 31 March, 2015

"11.The doctrine of election referred to by the High Court has no application at all to
the present situation and the decision in Shankar Abhyankar v. Krishnaji Dattatraya
Bapat. (1970) 1 S.C.R. 322: A.I.R. 1970 ig S.C. 1 is clearly distinguishable. The
question that arose in that case was whether a party who had a choice of resorting to
one of two remedies before the same Court namely, the High Court, could
successively move the High Court under Section 115 of the Civil Procedure Code and
again under Arts. 226 and 227 of the Constitution. The question was answered in the
negative for the simple reason that the order passed by High Court under the first
proceeding would conclude the matter inter-parties. In such a situation the party had
to exercise his choice and elect which remedy he would resort to in the High Court."

Therefore, obviously two modes are available for approaching the High Court against
the order passed in appeal by the District Court under section 29 of the Bombay Rent
Act. A revision under Section 115 of the Code of Civil Procedure is a normal remedy
provided by the Code of Civil Procedure itself. A writ petition under Article 227 of the
Constitution of India is the second mode available to an aggrieved party." (Emphasis
supplied by me) After considering the various other decisions holding the field, it was
then observed in para 14 as under:-

wp4505.14.odt 11/15 "14.............................................................................

..................................................................................

.................................................................................. The proceedings commenced by a

suit for eviction of a tenant do not come to an end on the decision of the appeal or
revision filed under the Bombay Rent Act. These decisions are liable to be challenged
in the High Court either under Section 115 of the Code of Civil Procedure or under
supervisory jurisdiction of the High Court under Article 227 of the Constitution of
India, and therefore, if the said proceedings were actually pending, on the date of
commencement of the Bombay Rent Act, then it cannot be said that the case has been
finally disposed of before the commencement of the Amending
Act....................................................."

ig It is to be noted that provisions of Section 29 of the Act of 1947 are similarly worded with
provisions of Section 34 of the said Act.

From the aforesaid, therefore, it is obvious that the Division Bench in clear terms has held that the
order of the appellate Court could be challenged either by preferring a revision application under
Section 115 of the Code of Civil Procedure or by filing a writ petition under Article 227 of the
Constitution of India. In the light of this decision of the Division Bench which continues to hold the
field and in view of the fact that the present proceedings arise out of a claim for eviction on the
ground of bonafide need of the landlords instituted in the year 2002, I have proceeded to consider
the challenge to the impugned order on merits. Even otherwise, it is to be noted that learned Single
Judge in Aristo Pharmaceuticals Pvt. Ltd. (supra) has observed that pending a reference, prevailing
judgments would continue to operate as binding precedent.

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wp4505.14.odt 12/15

8. The issue can be viewed from another angle. Though the issue regarding nature of remedy
available to an unsuccessful party to challenge an order passed under Section 34 of the said Act has
been referred by learned Single Judge for consideration by a larger Bench, the law as laid down by
the Division Bench in Prabhulal Chogalal (supra) continues to operate as a binding precedent on
this Court. Following the law laid down by the Division Bench that continues to hold the field
wherein remedy of preferring a writ petition under Article 227 of the Constitution of India has been
recognized, the respective Counsel have been heard on merits.

The observations of the Full Bench in Shubhangi Tukaram Sawant would come into play if it were to
be held that the writ petition was not tenable and the only remedy available to the petitioners was
under Section 115 of the Code of Civil Procedure. As the writ petition is being entertained on merits
in view of the observations of the Division Bench in Prabhulal (supra), aforesaid observations of the
Full Bench would not be applicable to the facts of the present case.

9. Considering the purpose for which the proceedings were remanded by this Court, the only issue
that requires adjudication is in respect of comparative hardship of the respective parties. It is to be
noted that the shop block that is occupied by the petitioners consists of two rooms admeasuring 10
ft. x 12 ft. and 12 ft.x 16 ft. While one brother is doing the business of ready-made garments, the
other brother is doing the business of bags. Both the brothers were doing their wp4505.14.odt 13/15
respective business in a tenanted premises admeasuring 3 ft. x 9 ft. The ready-made garment
business was being done in an area of 3 ft. x 4½ ft.

while the business of bags was being done in an area of 3 ft. x 4½ ft. On the other hand, the tenant
was doing his tailoring business in the suit premises. The trial Court held that the landlords could
carry on their business by vertically dividing both the shop blocks and by granting half portion to
them. This arrangement was not found acceptable by the first appellate Court and it held the
landlords entitled for both the shop blocks.

10. ig It is to be noted that the landlords are two brothers having their respective families. The
respective business being conducted by them are separate and independent. If the arrangement as
directed by the trial Court is taken into consideration, the landlords would be getting possession of 5
ft. x 12 ft. and 6 ft. 12 ft. in both the shops.

Considering the nature of the business proposed to be carried out and the need being in respect of
the sons also, it is clear that grant of half portion would clearly result in shortage of space and
inconvenience to the landlords. There would be no scope whatsoever for expanding the business
from the half portion. The appellate Court has, therefore, rightly found that the decree for partial
eviction as passed by the trial Court was not just and proper. It is also to be noted that the finding
regarding hardship is a question of fact as held by the Supreme Court in Dr. Ranbir Singh vs.
Asharfilal (1995) 6 SCC 580.

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11. As regards the decision of the Supreme Court in wp4505.14.odt 14/15 Badrinarayan Bhutada
(supra), the proceedings had been remanded for considering the aspect of hardship and in said
exercise, the appellate Court has held in favour of the landlords. In para 9 thereof, it was observed
by the Supreme Court that the present need for eviction and the fact that the landlords were doing
business in a tenanted premises were relevant facts. Similarly, the fact that the tenant could have
shifted to other premises was also held to be a relevant fact. The necessary enquiry as contemplated
by provisions of Section 16(2) of the said Act has now been conducted by both the Courts and the
course as indicated in Bismillah (supra) stands complied with. For very same reasons, the ratio of
the decision in Yogesh Pathak (supra) cannot be made applicable to the facts of the present case. As
held by the Supreme Court in Shamshad Ahmad (supra), absence of any attempt by the tenant to get
alternate accommodation is a factor against the tenant. Similarly, as held in Mohamad Ayub
(supra), length of tenancy by itself is not sufficient to outweigh hardship of the landlord especially
when no attempt was made by the tenant to find any other accommodation.

12. Hence, from the aforesaid, it is clear that the finding recorded by the first appellate Court
regarding greater hardship being caused to the landlords in case the decree for eviction in respect of
entire premises was not passed does not suffer from any jurisdictional error whatsoever. The finding
as recorded is a pure finding of fact. There is, therefore, no reason whatsoever to interfere with the
impugned judgment passed by the first appellate Court. The writ petition is, wp4505.14.odt 15/15
therefore, dismissed with no order as to costs.

JUDGE //MULEY//

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