9911796707
TMI Blog2002 (9) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... te the suit premises. Since the petitioner did not respond to that request, the respondent instituted suit for eviction and possession of the suit premises on the ground under Section 13(1)(g) of the Act, being Regular Civil Suit No. 611 of 1977 in the Court of Civil Judge, Jr. Division at Kolhapur, Besides, this action against the petitioner herein, similar action was initiated against the other tenants of the trust in the suit property. In all, the respondent trust instituted ten suits for possession against the respective tenants in the suit property on the ground under Section 13(1)(g) of the Act. During the trial, the respondent caused to examine the Secretary of the Trust as PW No. 2 and the Principal of the College as PW No. 4. Both these witnesses have deposed with regard to the requirements of the respondent trust in particular for establishing a students hostel in each of the ten suit premises. On the basis of the evidence which came on record, the trial court answered the issue of requirement in favour of the respondent trust. However, the trial court dismissed the suit against the petitioner herein on the ground that greater hardship would be caused to the petitioner an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finding of fact recorded by the appellate court on the issue of comparative hardship. He submits that the appellate court has not addressed itself to the issue as to whether any hardship would be caused to the respondent plaintiff by refusing the decree and has assumed that the respondent plaintiff would suffer hardship. He submits that that approach is impermissible especially when the Court is obliged to assess the comparative hardship of the landlord as well as the tenant. Therefore, according to him, the finding of fact arrived at by the appellate court on this issue cannot be sustained. 3. On the other hand, Mr. Kumbhakoni for the respondent trust submits that there was clear pleading regarding the requirement of the respondent trust which was fully understood by the petitioner; and in any case, the respondent plaintiff caused to adduce evidence in support of its stated requirement and that evidence was allowed to be let in without any demur by the petitioner defendant. He therefore, contends that in such a situation, even assuming that the pleading as filed by the respondent was vague, the Court would not non-suit the respondent plaintiff at this stage. In support of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inapplicable. Insofar as the issue of comparative hardship is concerned, Mr. Kumbhakoni contends that the appellate court has applied the correct tests while answering the said issue. He further contends that there is no force in the contention of the petitioner that the appellate court has not address itself to the issue of hardship of the respondent plaintiff. Inasmuch as in substance, the appellate court in paragraph Nos. 17 and 18 of the judgment has clearly dealt with the same wherein it has opined that the respondent trust would require the suit premises and there was no other alternate accommodation available to the respondent to achieve the object of the trust which was pressed into service in the suit. He therefore submits that even this contention is devoid of any merits and that the conclusion recorded by the appellate court cannot be taken exception to. 4. Having considered the rival submissions, I shall first deal with the plea that there is no pleading whatsoever with regard to the purpose of requirement of the respondent trust in the plaint. As rightly contended by the respondent, since the respondent is a public charitable trust, the requirement of pleading as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t anything more was required by law. The two Courts below are therefore, right in holding that the trustees satisfied the requirement of Section 13(1)(g). 5. Be that as it may, in the present case the respondent has averred in para 3 of the plaint as follows: "Education is one of the main objectives of this institution. The said institution has the following objectives viz. running an educational institution, and spread education, start schools and colleges, to do research etc. and the plaintiff is working accordingly. The property bearing C. S. No. 7, E-Ward situate at Karvir City is purchased by the plaintiff as they require the same for their own purpose. A well known college viz. Mahavir College run by the plaintiff institution has been started in the same property. The said institution requires the aforesaid property for its bona fide and honest use and hence the said property purchased (by the institution). As the plaintiff institution required the property with the defendant for their own purpose bona fidely and honestly, they sent a notice and informed the Defendant to handover the possession of the same. The defendant replied the same notice by making false and wron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no specific requirement was pleaded but once the parties properly understood the case of each other, issues were framed and evidence was adduced, technicalities of pleadings recede to the background. Admittedly, the respondent is a public trust and its accommodation is meant for pilgrims in Pandharpur which is one of the well known pilgrim centers in Maharashtra. Therefore, in the nature of the service being rendered to the pilgrims, it is not practicable to plead in specific terms the nature of the need of the respondent-landlord except to say that it is a bona fide requirement for pilgrims. On that ground, the respondent cannot be non suited when he succeeded in two courts." 6. In the present case, two courts below have answered the issue of requirement in favour of the respondent trust. What is relevant to note is that the grievance regarding lack of pleading is being raised for the first time before this Court. On the other hand, the ground urged before the two courts below, as can be discerned from the observations of the courts below, was that there was variance in the pleading and evidence. Even that contention has been dealt with by both the courts below and has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sity." 8. Another witness examined on behalf of the respondent is Shri Dilip Raghunath Kognur (PW 2) who was the principal of the College run by the respondent at the relevant time when the evidence was being recorded in the year 1982. This witness has deposed in para-1 as under: ".....The majority of student are from outside particularly from rural area. We have not provided necessary residential i.e. Hostel arrangement for such students." In para-2 of his evidence, he has deposed : "The students of the college includes boys and girls. Suit premises is behind the college building near the suit premises there is one ladies room, part of the portion of the building of the suit premises is available to us, we keep students i.e. we use it as hostel for the students. Due to the tenant in the compound of the college premises the atmosphere of education college premises is not proper....." ".....If we do not get possession from the tenant we will not be able to implement the progress of the college and the interest of the students." 9. Having seen the evidence as adduced by the respondent, it is not possible to countenance the grievance made on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here he sleeps at night. This court in the said case adverted to the decision of the Privy Council, wherein it is observed that there is no reason for assuming that it contemplates only permanent residence and excludes temporary residence. Reference is also made to [1954] 1 SCR 919 wherein it is observed that, "Residence only connotes that a person eats, drinks and sleeps at that place and that it is not necessary that he should own it". This Court then proceeded to hold that the legislature is using words "non-residential purpose" in Section 25 did not intend to prohibit use of a building containing a residential flat for the purposes of construction of Marriage Halls, Charitable Hospitals and "quarters" and garages for Doctors and Nurses. As in the present case, "Students hostel" was also to be used for sleeping, eating, studies etc. temporarily if not permanently day to day, it cannot be described as "non-residential" use within the meaning of Section 25 of the Act. Accordingly, if the suit premises were to be used as students hostel, then surely it would be for the residential purpose of the students of the College run by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ini A. Parab v. B. H. Khatu. In other words, the Appellate Court was right in reversing the conclusion of the trial Court on this issue by applying the correct tests. In the circumstances, it is not possible to accept the grievance made that the appellate Court has not at all dealt with the issue of hardship insofar as respondent landlord was concerned. As observed earlier, the appellate court in substance has dealt with that aspect in paras 17 and 18 of its judgment. Besides, the appellate court, has also noted in para 17 that the defendant has not adduced any positive evidence to establish the fact that he would not be in a position to secure alternate accommodation except his bare words. If that be so, the appellate court was right in answering the issue against the petitioner tenant. Accordingly, since no other grievance has been made and as observed earlier, the appellate court has applied the correct test while answering this issue of comparative hardship, no interference is warranted even with regard to this finding and conclusion reached by the Appellate Court.
12. Accordingly, this Writ Petition fails and the same is dismissed with costs all throughout. X X X X Extracts X X X X X X X X Extracts X X X X
|
