Holding

The Supreme Court held that the High Court’s judgment was untenable as it failed to consider subsequent events that negated the landlord’s bonafide requirement, and therefore remanded the matter for fresh determination.

Summary

The tenant, Mohd. Ismail, occupied a shop for over 20 years when the landlord, Dinkar Vinayakrao Dorlikar, sought eviction on the ground of bonafide requirement, claiming he and his three sons needed two shops for a kirana business. The Rent Controller, Additional Collector, and the High Court repeatedly affirmed the eviction despite the tenant's objections. During the pendency, the landlord's circumstances changed: one son died, another absconded, and the landlord had already constructed and occupied two shop rooms for his business. The Supreme Court observed that the High Court had failed to consider these subsequent events, which could defeat the claim of bonafide requirement. Consequently, the Court set aside the High Court’s judgment and remanded the matter for fresh determination of the landlord’s requirement, directing the Rent Controller to complete proceedings within a stipulated time.

Issues considered

Whether the landlord proved a bonafide requirement for the premises under the Rent Control Order, 1949.
Whether subsequent events (death of a son, absconding son, construction and occupation of other shops) affect the existence of a bonafide requirement.
Whether the High Court erred in not taking these subsequent events into account while upholding the eviction order.
Whether the case should be remanded for a fresh fact-finding on the bonafide requirement.

Subjects

rent controlevictionbonafide requirementsubsequent eventsremandlandlord-tenant disputeSupreme Court of Indiacivil appeal

Judgment

[2009) 15 (ADDL.) S.C.R. 542

A MOHD. ISMAIL
v. -~
DINKAR VINAYAKRAO DORLIKAR
(Civil Appeal No. 7206 of 2009)

OCTOBER 28, 2009
B
[TARUN CHATTERJEE AND AFTAB ALAM, JJ.]

Rent Control and Eviction - Eviction petition on the
ground of bonafide requirement - Order of eviction without ,r
c considering subsequent events, which negated claim of
bonafide requirement - On appeal, he/q: Judgment since
passed without considering subsequent events, matter
remitted to High Court to decide taking into consideration, the
same.
D ~
Respondent-landlord filed application for eviction of
the tenanted premises, against appellant-tenant on the
y
ground of bonafide requirement, stating that he and his
three sons required two shops for starting business.
Rent Controller passed order of eviction and the same
E
was upheld in appeal. High court in a writ petition,
remanded the matter to appellate Court. Despite repeated
remand (thrice) of the case by the High Court, appellate
court decided in favour of landlord on the ground of
bonafide requirement. Against the order of the appellate
F court, High Court in a writ petition held that the landlord
proved his bonafide requirement. Hence the present
appeal.

Partly allowing the appeal, the Court
G
HELD: 1.1. After considering the subsequent events
that had occurred during the eviction proceeding, in )...
which it was brought to the notice of the Court that (1)
one of his sons had expired (2) second son had
H 542
MOHD. ISMAIL v. DINKAR VINAYAKRAO DORLIKAR 543

absconded for the last 8-9 years and (3) the tenant had A
constructed two shop rooms where he has been carrying
on business of Kirana, no order for eviction could be
passed without considering the aforesaid aspects of the
matter which was duly brought to the notice of the Court.
[Para 13] (547-F-G] B

1.2. lnspite of repeated orders of remand passed by
the High Court as well as admissions made by the
respondent in his deposition about the fact stated in the
application for taking into consideration of subsequent C
events, it would not be possible to accept the impugned
Judgment of the High Court, which had failed to consider
the requirement of the respondent after the subsequent
events had occurred. [Para 14] [547-G-H; 548-A-B]

\ . 2. The case is remanded to the High Court, who in
turn, would frame issues to the extent whether in view of
D

y the subsequent events, the bonafide requirement of the
landlord/respondent has already been satisfied or not.
The High Court shall direct the Rent Controller, to
complete the proceedings for taking up the matter, as E
directed. The High Court, after receiving the records along
with evidence and documents from the Rent Controller,
and the findings made thereon, shall decide the same
finally. [Paras 15 and 18] (548-C-D; 549-8-C]

CIVIL AP PELLATE JURISDICTION : Civil Appeal Nos.
F
7206 of 2009.

From the Judgment & Order dated 28.09.2006 of the High
·court of Judicature at Bombay, Nagpur Bench in Writ Petition
No. 5075 of 2005. G
Subhash Chandra Jain (N.P.) for the Appellant.

Manish Pitale, Chander Shekhar Ashri, for the
Respondent.
H
544 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
,.
'

'

·>-
~-
A The Judgment of the Court was delivered by
.i,-
'
TARUN CHATTERJEE, J. 1. Leave granted.

2. This appeal is directed against the Judgment and Order
dated 28th of September, 2006 passed by a learned Single
B Judge of the High Court of Judicature of Bombay at Nagpur
Bench in W.P. (c) 5075 of 2005, by which the High Court hao
dismissed the writ petition and affirmed the order of tht?
Additional Collector, Nagpur dated 22nd of July, 2005, whit;h "! 4 •

was filed against the. order of the Rent Controller, Nagpur in
c Revenue Gase No. 264/A-71 (2)/92-93 dated 12th of /

November, 1999 thereby allowing the application of the
respondent for grant of permission to issue quit notice under
Clause -13(3)(vi) of the Rent Control Order, 1949.

0 3. The case made out by the respondents in his eviction (
.;
petition may be summarized as follows :-
~
The appellant is a tenant in respect of a Shop Room
measuring about 1O' x 26' (hereinafter referred to as "the s~op
in question") under the respondent for the last more than 20
E years at a monthly rental of Rs.600/- payable at the end of each
English Calendar month. In the application for eviction, the
respondent had alleged that since he was jobless and had to
maintain a family of ten members and had no source of income, )
he wanted to start a 'kirana business' in the shop in question, -y
F in which business the respondent had sufficient experience and r
funds to start the same. It was further alleged that he and his
three sons required two shops for his bonafide need.
Accordingly, the appellant was directed to vacate the shop in
question and as he had failed to deliver possession to the·
G respondent, the eviction proceeding was started against the
appellant on the ground of bonafide requirement.
)o..
4. The tenant/appellant appeared before the Rent
Controller, Nagpur and contested the eviction proceeding by
filing a written statement, in which he had denied the material
H

T
MOHD. ISMAIL v. DINKAR VINAYAKRAO DORLIKAR 545
[TARUN CHATTERJEE, J.]
allegations made in the application for eviction. It was A
.. specifically denied by the appellant in the written statement that
~
the respondent bonafide required the shop in question as the
respondent was already in possession of sufficient
accommodation. Accordingly, the appellant sought for
dismissal of the eviction petition. B
5. Parties adduced evidence in support of their respective
~
claims and after taking oral and documentary evidence, the Rent
Controller, Nagpur, by his order dated 12th of November, 1999
't'
passed an order of eviction against the appellant.
c
•
"(
6. Against the aforesaid order of eviction passed by the
Rent Controller, Nagpur, an appeal was taken before the
Additional Collector, Nagpur, which also affirmed the order of
eviction passed against the appellant.
D
• 7. Feeling aggrieved, a writ petition was moved before the
High Court of Bombay at Nagpur Bench which, by a final order,
y'
remanded the matter back to the Additional Collector for
'~
consideration afresh. After remand, the case was again
decreed in favour of the respondent on the ground of bonafide E
requirement.

8. Again, a writ petition was filed against the aforesaid
order of the Additional Collector, Nagpur before the High Court
i of Bombay at Nagpur Bench. During the pendency of the writ
F
petition, it was brought to the notice of the Court that a similar
eviction proceeding was started by the respondent against
another tenant Mr. Lal Mohd. which was decreed and
possession was taken from Lal Mohd. by the respondent and
the respondent, thereafter, started using the same. This fact
was in fact brought to the notice of the High Court and the High G
Court, having found it to be true, again remitted the case back
,,., to the Additional Collector, Nagpur, for consideration afresh but
after the second remand, again the order of eviction was
affirmed in favour of the respondent by the Additional Collector,
Nagpur. H
..

546 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

\

A 9. Against the aforesaid order of the Additional Collector,
~
Nagpur, again a writ petition was moved by the tenant/appellant
in the High Court of Bombay at Nagpur Bench. Again, by an
~-
order dated 16th of January, 2004, the High Court had partially
allowed the writ petition and quashed the order dated 5th of
B November, 2003 passed by the Additional Collector, Nagpur
and directed the Additional Collector to hear and decide the
appeal afresh after affording an opportunity of being heard to )--
the parties and permitted the respondent to file reply of affidavit
filed by the appellant. It was further directed that the appeal shall 'i'~
"''
c be decided in the light of the law laid down by Bombay High
Court in Janba Daulatrao Borkar vs. Rajesh Kumar Ramjiwan
Agarwal [1975 MHLJ 746]. • ~:_

10. When the matter was remanded again by the High I
I
Court, the Additional Collector, Nagpur again dismissed the ,i
D appeal by his order dated 22nd of July, 2005. Feeling aggrieved
by this order of the Additional Collector, Nagpur, a writ
•
application was moved before the High Court, which by the y
impugned Judgment was dismissed inter alia on a finding that
the respondent had successfully proved his bonafide
E requirement of the shop in question and against the said order
of the High Court, this instant Special Leave Petition was filed,
which on grant of leave, was heard in presence of the learned
counsel appearing for the respondent only.
~

F 11. Unfortunately, at the time of hearing, the learned f
counsel appearing for the appellant was not present in Court
to argue this appeal before us. Therefore, we were not
benefited by the argument of the learned counsel for the
appellant. However, we have heard the learned counsel for the
respondent. In this appeal, in our view, the only question that
G
needs to be decided is whether the concurrent findings as
affirmed by the High Court in the writ application on the bonafide
),._
requirement of the suit premises by the respondent was duly
proved or not. From the record, it appears to us that the
appellant sought to argue that the bonafide need of the
H
MOHD. ISMAIL v. DINKAR VINAYAKRAO DORLIKAR 547
[TARUN CHATTERJEE, J.]
respondent of the shop in question was non-existent inasmueh A
as during the proceedings, the respondent had constructed two
- -j.
shops and the need pleaded by the respondent for starting a
business for one of his sons, who is dead and another son
being absconding, could not be accepted.
8
12. On the other hand, the learned counsel for the
respondent before the High Court had urged that since the
landlord/respondent was the best judge of his need and that
he had produced material documents on the record that he had
sufficient experience in Kirana business and that he had
sufficient funds to do that business, the respondent had
c
disch~rged the burden of proving that the respondent bonafide
required the shop in question to start a business of Kirana in
the shop in question. Accordingly, the learned counsel
appearing for the respondent before us argued that in view of
the concurrent findings of fact arrived at by the Courts below, D
>
this Court is not in a position to interfere with such concurrent
finding of fact on the question of requirement of bonafide need
....,,. y of the landlord respondent until and unless it is found that the
findings arrived at were perverse or arbitrary.
E
13. Having perused the impugned Judgment of the High
Court and the orders of the Additional Collector and the Rent
Contoller, Nagpur, and after considering the subsequent events
that had occurred in the eviction proceeding, in which it was
brought to the notice of the Court that ( 1) one of his sons had F
expired (2) Second son had absconded for the last 8-9 years
and (3) he had constructed two shop rooms where he has been
carrying on business of Kirana, no order for eviction could be
passed without considering the aforesaid aspects of the matter
which was duly brought to the notice of the Court.
G
14. Unfortunately, in spite of repeated orders of remand
~ passed by the High Court as well as admissions made by the
_respondent in his deposition about the fact stated in the
application fortaking into consideration of subsequent events,
• H
548 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A it would not be possible for us to accept the impugned
Judgment of the High Court, which had failed to consider the
requirement of the respondent after the subsequent events had
-\-- ~·
occurred namely (1) death of one son of the respondent (2)
absconding of the second son of the respondent for the last 8-
B 9 years (3) two shops having been taken possession of and
(4) possession was taken from another tenant Lal Mohd. in
which, the third son has been running a Leatha Machine
Business.

15. In our view, although such admitted facts had not been y
c considered by the Courts below, we do not propose to allow
the appeal in full but remand the case back to the High Court,
who in turn, would frame issues to the extent whether in view
of the subsequent events, as stated herein earlier, the bonafide
requirement of the landlord/ respondent has already been
D satisfied or not.

16. For this purpose, it would be open to the respondent
y
to amend his pleadings of the eviction petition against which, ··-..
additional objection may also be filed by the tenant/appellant.
E Thereafter, both parties shall be allowed to adduce evidence
in support of their respective cases and to reach a final finding
of fact on the question whether the case of bonafide
requirement of the respondent was duly proved and such
findings along with records and the evidence to be adduced
~

F for this purpose shall be transmitted back to the High Court, -t
who will, after considering the evidence on record and the
evidence that would be taken after remand along with the
findings of the Rent Controller, finally decide whether the
requirement of the landlord/respondent was satisfied by the
occurrence of subsequent events either during the pendency
G
of the appeal before the Additional Collector, Nagpur or before
the High Court.
)L
17. For the reasons aforesaid, we set aside the Judgment
of the High Court and send the case back to it for decision
H
MOHD. ISMAIL v. DINKAR VINAYAKRAO DORLIKAR 549
[TARUN CHATTERJEE, J.]

afresh in the light of the observations and directions made A
hereinabove.

18. The High Court shall direct the Rent Controller, Nagpur
to complete the proceedings for taking up the matter, as
directed, within three months from the date of supply of a copy 8
of its order and the High Court, after receiving the records along
with evidence and documents from the Rent Controller, Nagpur,
and the findings made thereon, shall decide the same finally
within three months from the date of receipt of the records from
the Rent Controller, Nagpur, positively, without granting any C
unnecessary adjournments to either of the parties.

19. The impugned Judgment of the High Court is thus set
aside and the appeal is allowed to the extent indicated above.
There will be no order as to costs.
D
K.K.T. Appeal partly allowed.