R.E.Fanibunda v. Nicholas of India Ltd.& Ors.

Cases referred :

1. Somchand Sankharia v. Singh Light House, 2002(Supp.) Bom.C.R. 658.

2. Motilal Padampat Sugar Mills v. State of U.P., 1979(2) S.C.C. 409.

3. Sikkim Subba Associates v. State Of Sikkim, 2001(5) S.C.C. 629.

4. P. Dasa Muni Reddy v. P. Appa Rao, 1974(2) S.C.C. 725.

5. Balu A. Sangaonkar v. Rangrao D. Palkar, 2001(3) Bom.C.R. 249.

6. Ambalal Saabhai Enterprises Ltd. v. Amritlal & Co., 2001(8) S.C.C. 397.

7. Kumud Kumar v. Central Bank of India, 2000(9) S.C.C. 244.

8. Siddiah v. Kamath, A.I.R. 1968 A.P. 121.

9. K. Perumal Shettiar v. Muthuswamy, A.I.R. 1962 Mad. 447.

10. Gaya Prasad v. Pradeep Srivastava.., 2002(Supp. 2) Bom.C.R. (S.C.)741 : 2001(2) Mh.L.J. 581.

11. Ansuyaben Kantilal Bhatt v. Rashiklal Manilal Shah, 1997(4) Bom.C.R. 354 : 1997(5) S.C.C. 457.

12. Kamleshwar Prasad v. Pradumanju Agarwal (Dead) By Lrs, 1997(4) S.C.C. 413.

13. P. Venkateswarlu v. Motor & General Traders, A.I.R. 1975 S.C. 1409.

14. Om Prakash Gupta v. Ranbir B. Goyal, 2002(2) S.C.C. 256.

Advocates appeared :

Shyam Divan with M.V. Jaykar i/b. Desai & Diwanji, for petitioner.

Y.S. Jahagirdar with V.B. Naik i/b. Doijode Phatarphekar & Associates, for respondents 1 to 3.

KHANWILKAR A.M., J.:This writ petition under article 227 of the constitution of india takes exception to the judgment and decree dated 16th July, 1996 passed by the Small Causes Court at Bombay in Appeal No. 438 of 1990 in R.A.E. Suit No. 555/2438 of 1977. The premises in question is situated on the ground floor being Flat No. 1 and the Grage No. 1 in the basement in the building known as Sorrento at Mount Pleasant Road, Mumbai. The respondent No. 2 was inducted as tenant in the said premises, pursuant to Lease Agreement dated 1st November, 1966 by the erstwhile landlord of the suit premises. The suit premises were purchased by the petitioner in the year 1974. At that time, the petitioner was unmarried. It is not in dispute that tenancy was attorned in favour of the petitioner after she purchased the suit property. The petitioner got married to Dr. Fanibunda in the year 1975. After marriage, the petitioner started living with her husband in Amarchand Mansion, 16. Madam Cama Road, Mumbai 400 039. The petitioner instituted the subject suit on 9th June, 1977 for possession of the suit premises from the respondent No. 1. The ground on which possession is sought can be culled out from paragraph 4 and subsequently inserted paragraph 4-A of the plaint, which read thus:-

PARA 4:

"The plaintiff states that the suit premises are occupied by the defendant No. 1 as a statutory tenant thereof. The premises are required bona fide and reasonably by the plaintiff and her family members. The plaintiff, therefore, submits that she is entitled to a decree in ejectment against the defendant No. 1."

PARA 4-A:

"The defendants Nos. 2, 3 and 4 have been joined in this suit as unlawful occupants in order to get effective relief of possession on the ground of requirements."

Although no particulars or elaboration of the ground on which possession was sought is made in the plaint, nevertheless, the trial Court framed necessary issues, which read thus:

"1. Is plaintiff entitled to file such a suit?

2. Does plaintiffs prove that the suit premises are required by the plaintiff and her family members bona fide and reasonable for their use and occupation, as alleged?

3. Will greater hardship be caused to the defendants if a decree in eviction is passed than to the plaintiff if it is refused?

4. Is plaintiff entitled to possession sought?

5. What order and decree?"

2. It is relevant to note that during the course of adducing evidence, the petitioner examined herself as well as other witnesses and brought on record several details and particulars to justify the ground for possession of the suit premises i.e. bona fide and reasonable requirement of the petitioner and her family members. It is not in dispute that the respondents allowed the said evidence to be let in without any demur. At this stage, it is relevant to note that the petitioner moved an application for amendment of plaint, so as to implead defendant Nos. 2 and 3, respondent Nos. 2 and 3 herein, sometime on 16th January, 1980, which application was allowed on 5th June, 1980. Subsequently, the petitioner took out another application for adding defendant No. 4 respondent No. 4 herein, which was allowed on 26th August, 1988. By this amendment, the petitioner asserted that defendant No. 1, who was the original tenant, had become statutory tenant after expiry of the lease period in November, 1976. It is further asserted that defendants 2, 3 and 4 were unlawful occupants and were joined as defendants in order to get effective relief of possession on the ground of requirement. Be that as it may, as observed earlier, the petitioner adduced evidence in support of her case of her requirement being bona fide and reasonable. The trial Court, on analysing the evidence on record, however, negatived the plea taken by the plaintiff in so far as her personal requirement. Undisputedly, the petitioner is suffering from Polio since 11 years of age and because of that, her leg muscles and stomach muscles are partially paralysed. According to the petitioner, the lift in the building where the petitioner was presently staying along with her husband in Amarchand Mansion situated at Madam Cama Road was not working properly on account of which, she was finding it difficult to climb up or climb down from her flat in the building which was on the first floor. The second reason given by the petitioner was that in Amarchand Mansion Building, which was her matrimonial home, prostitution business was rampantly going on and on account of which, she wanted to shift her residence in the suit premises. The next reason given by the petitioner was that the condition of Amarchand Mansion including the flat in which she was residing was not good. Besides, it was contended that nuisance was caused on account of air conditioner which was fitted in the office and/or outside the office of T.W.A. (now Jet Airlines) in the Amarchand Mansion. The next reason given by the petitioner was that she was unable to bring her car upto the steps of the portico in Amarchand Mansion, because there is a taxi stand in front of the portico. Moreover, there is a restaurant in the said building known as Golden Gate Restaurant and the visitors in that Hotel, park their cars near the pavement. Besides, the petitioner is required to walk on the said pavement, which was always wet and oily because of the cars parked nearby. It was also alleged that garbage was dumped below the window of her mother-in-laws bed room in Amarchand Mansion. All these factors were pressed into service on behalf of the petitioner, but the same have been negatived by the trial Court. However, the trial Court accepted the plea of reasonable and bona fide requirement of the suit premises, canvassed on behalf of the petitioner, holding that the present premises in her occupation in Amarchand Mansion, though admeasuring about 2900 square feet, was insufficient for her family. The trial Court found that besides the petitioner and her husband, the mother-in-law of the petitioner and her two daughters (twins) were staying in the Amarchand Mansion. The said premises though admeasuring 2900 square feet, essentially consisted of four rooms plus one makeshift bedroom, one kitchen and one servants room with attached lavatory. Out of the said rooms, one room was used as dental clinic, another room was used as dark room, the third room was used as hall-cum-dining room and the fourth room was used as bed room of petitioner, her husband, two daughters (Twins) which had attached bath and lavatory. The makeshift bed room which was carved out from the drawing and dining room was used by the petitioners mother-in-law, who was around 90 years of age. The trial Court accepted the petitioners version that on account of the growing business of petitioners husband, he required additional space for his clinic. The trial Court also accepted the petitioners version that her two daughters (twins) would require separate bed room, as they were already about 12 years of age when the trial Court decided the case. The trial Court also accepted the petitioners version that the present bedroom arrangement of her mother-in-law was not proper, as because of her advanced age, she was unable to walk upto the bath and lavatory as there was no attached bath and lavatory in her makeshift bed room. Accordingly, the trial Court held that the requirement of the petitioner was bona fide and reasonable. The trial Court then proceeded to examine the issue of comparative hardship and found that the petitioner would suffer greater hardship in the event decree is refused; whereas, the defendants would not suffer any hardship as it was possible for them to take another premises in the same locality. Accordingly, by the judgment and decree dated July 12, 1990, the trial Court decreed the suit filed by the petitioner and directed the defendants to quit, vacate and hand over vacant and peaceful possession of the suit flat by the end of October, 1990.

3. Against this decision, respondent Nos. 1, 2 and 3 preferred appeal being Appeal No. 438 of 1990 before the Appellate Bench of the Small Causes Court. The Appellate Court affirmed the view taken by the trial Court that the petitioner cannot be non-suited on the ground of vagueness or inadequacy in the pleadings, especially when the petitioner was allowed to adduce evidence in support of her case of reasonable and bona fide requirement and which evidence was allowed to be let-in by the respondents, without any demur. In so far as merits of the contention are concerned, the Appellate Court also affirmed the view taken by the trial Court with regard to the various reasons pressed into service on behalf of the petitioner that the same were devoid of any merits. In that sense, that reasoning is concurrent view recorded by two courts below. At this stage itself I may record that there is no question of interfering with the said concurrent opinion recorded by the two courts below in exercise of writ jurisdiction. That view cannot be labelled as perverse or manifestly wrong. This Court shall, therefore, be bound by the finding of fact recorded by the two courts below on those aspects. In other words, even the Appellate Court rejected the petitioners case with regard to lift in Amarchand Mansion was not working properly or that her car cannot be brought up to the portico and that, prostitution business was going on in Amarchand Mansion or that garbage was dumped in the compound of Amarchand Mansion causing nuisance to the petitioner or her family members or that the air conditioner unit of T.W.A. was causing any nuisance to the petitioner and her family members. The Appellate Court has also negatived the petitioners case that proper repairs are not carried out in Amarchand Mansion and the building was dangerous. The Appellate Court has also found that it is not a case that the plaintiff has no other place for residence for which reason she requires the suit premises. Further, it is neither the case of the plaintiff that as the premises in Amarchand Mansion were tenanted premises, she wanted to reside in her own premises being the suit premises. These findings are based on evidence on record. In other words, the Appellate Court rejected the petitioners plea of bona fide and reasonable requirement, which was founded on the aforesaid reasons. In so far as the last aspect which weighed with the trial Court that the present accommodation in Amarchand Mansion was insufficient, the Appellate Court reversed even the said finding of fact recorded by the trial Court. It needs to be mentioned that the trial Court was essentially impressed on the ground that the petitioners husband required additional space for his growing business, and that, the petitioners two daughters (twins) required separate bedrooms. In so far as the finding with regard to the requirement on account of growing business of dental clinic of the petitioners husband, the Appellate Court has discussed the said aspect in paragraph 25 at page 418 and again at pages 421 to 425. The Appellate Court has essentially found that the petitioner has improved her case from time to time. The Appellate Court has taken into account the fact that the petitioners husband in his cross-examination has conceded that the requirement of additional space for dental clinic business was not in the mind of the plaintiff when the suit was filed. He has further deposed that he was not aware of institution of the suit. It is further noticed by the Appellate Court that the petitioner has not stated anything about the expansion of dental clinic of the petitioners husband in her evidence. However, after the evidence of the petitioner was over and she was cross-examined at length, the petitioners husband was examined and for the first time, he has come out with the case that he intends to expand his dental clinic. However, he has not given the particulars of expansion of his dental clinic, nor he has anything to show such intention prior to the date on which he gave his evidence. Moreover, the Court has found as a fact that the petitioners husband was entertaining his patients in Amarchand Mansion only on prior appointment. Besides this, Appellate Court has adverted to the fact that from the income-tax returns of petitioners husband, it would be seen that there is no significant increase in his dental clinic business, which was the case sought to be made out by the petitioner. Inasmuch as it is noted that for the year 1975-76, the total professional income of the petitioners husband is only Rs. 42,387/-, whereas, the rest of the income was by way of dividend and interest derived by him. Whereas, almost after ten years thereafter i.e. in the year 1985-86, the professional income derived by the petitioners husband was only Rs. 56,833/- and the rest was income from dividend and interest. Similarly in the year 1986-87, though the total income is shown as Rs. 1,67,535/-, but his professional income during that period is only Rs. 74,233/- and the rest is on account of dividend and interest earned by him, which was the other source of income. The Appellate Court has also recorded that there is no positive statement by the petitioners husband in the evidence that because of his growing practice in dental clinic, the present accommodation in his possession was inadequate. The Appellate Court on taking the totality of the evidence has not accepted the plea of the petitioner regarding the additional requirement for her husbands clinic. Accordingly, the Appellate Court reversed that finding of fact recorded by the trial Court. In so far as requirement of the two daughters (twins) for a separate bed room, even that finding of fact has been reversed by the Appellate Court. The Appellate Court has noted that the premises at Amarchand Mansion is sufficiently big, as it admeasures 2900 square feet. The Appellate Court has further found on appreciating the evidence on record that having regard to the size of the living room which was admeasuring 27.6" x 16.6", the same could be used during night time. The Appellate Court further found that in any case the petitioners daughters could also be adjusted in the makeshift bed room which was equally big and admeasuring about 14.6" x 17.6" which was used by her mother-in-law. The Appellate Court found that if the twin daughters of the petitioner used the said bed room of the mother-in-law, it will be helpful for the mother-in-law who was 96 years old and has also sight problem. Besides, the Appellate Court has doubted the fact that the mother-in-law was staying along with the petitioner. The Appellate Court accordingly held that the petitioner failed to establish element of necessity with regard to the suit premises, and therefore, the plea of requirement being reasonable and bona fide, could not be accepted. In paragraph No. 38 of the judgment, the Appellate Court has also considered the fact that only three and half years prior to the institution of the suit, the plaintiff had purchased the suit premises. The petitioner never asked for possession of the suit premises from the defendants prior to the marriage or even after the marriage before the institution of this suit in the year 1977. There is no mention about the fact that the intended to occupy the premises after her marriage, and therefore, she had purchased the suit premises---nor she has stated that the suit premises is convenient to her because of her handicap nor such fact is brought on record in the pleadings. The Appellate Court after taking the totality of the circumstances, and evidence on record, found that the petitioner has improved her case from time to time, for which reason, it was not possible to hold that she had proved her requirement as reasonable and bona fide. Accordingly, the Appellate Court was pleased to set-aside the said finding. In so far as the finding regarding comparative hardship is concerned, the Appellate Court has affirmed that finding of the trial Court. However, since Appellate Court reversed the finding of fact recorded by the trial Court in so far as reasonable and bona fide requirement of the petitioner is concerned, the Appellate Court was pleased to allow the appeal and set aside the judgment and decree passed by the trial Court by the impugned judgment and order dated 16th July, 1996.

4. Against this decision, present writ petition under article 227 of the constitution of india has been filed by the petitioner. While this writ petition was pending, an affidavit has been filed on behalf of respondent No. 2 dated 6th November, 2001. This affidavit attempts to bring on record two events which have transpired subsequent to the filing of the writ petition and which became known to the respondents only recently. This affidavit records that the petitioners husband Dr. Fanibunda has expired in the first half of the year 2001. The affidavit also records that according to the information of the respondents, even the mother-in-law of the petitioner has expired sometime back. The respondents therefore assert that having regard to this changed factual situation, the petitioner was not entitled for any relief from this Court. Besides, the affidavit recorded that the Maharashtra Rent Control Act, 1999 has come into force and on account of the provisions of the said Act, the second respondent is not governed by the Rent Control Legislation and the writ petition was not maintainable. In response to this affidavit, the petitioner chose to file reply affidavit dated 11th June, 2002. In this reply affidavit, the petitioner has conceded the fact that her mother-in-law expired on 22nd January, 1997 and her husband expired on 23rd November, 2000. Nevertheless, according to the petitioner, the relief prayed in the suit would still survive as her two daughters have now become major and one of them has completed her B.D.S. (Bachelor of Dental Surgery) Course and was in the process of setting up her practice in dentistry in Amarchand Mansion in the portion of premises where her husband was practicing. It is stated in the affidavit that the second daughter Sashaina has appeared for her Masters in Life Science and is in the process to set up Micro Biological Research Laboratory in Amarchand Mansion and will require at least 1500 square feet of area to set up her laboratory. According to the petitioner, therefore, the claim set up by the petitioner will survive for consideration. The petitioner has filed further affidavit on 5th July, 2002, giving further details about the nature of activities of her two daughters so as to justify the claim of reasonable and bona fide requirement. In response to this affidavit, respondent No. 2 has filed affidavit sworn on 8th July, 2002, denying the claim of the petitioner and further asserting that, if at all the case as made out in the affidavit was to be considered, it would require remand of the case for recording of fresh evidence on those aspects. Besides, it is stated that the petitioner is not supporting the decree on the grounds which were originally pressed into service and reversed by the Appellate Court, but has setup an entirely new case in the recent affidavits. According to the respondents, therefore, the writ petition ought to be dismissed.

5. When the matter was taken up for hearing the Counsel appearing for the respondents raised preliminary objections and claimed that the writ petition be dismissed on the said objections. The first contention raised on behalf of the respondents was that since the bombay rent act of 1947 has been repealed by the maharashtra rent control act of 1999, the pending writ petitions have not been saved by the new Act. Therefore, this writ petition cannot proceed further. It is next contended that in any case, the petitioner has waived her right to pursue the present writ petition assuming that the same was saved by the new Act of 1999, by filing T.E.& R. Suit No. 547/578 of 2001 for possession and mesne profits against the respondents. It is therefore submitted that the present writ petition deserves to be dismissed on that count. It is next contended that the petitioner should be non-suited, having taken inconsistent and destructive stand in two different proceedings. Inasmuch as in the recent suit filed by the petitioner, she has recognised the second respondent as her monthly tenant prior to the termination of the tenancy by her. Whereas, in the present suit for possession, which is subject matter of this writ petition, the petitioner has described the second respondent as an unlawful occupant in paragraph 4-A of the plaint. According to the respondents, therefore, because of this destructive and inconsistent pleas taken by the petitioner, she should be non-suited and this writ petition be dismissed. It is next contended on behalf of the respondents that the petitioner will have to elect her remedy inasmuch as either she can pursue the present writ petition assuming that it has been saved by the Act of 1999 or to pursue the fresh suit filed by her in 2001 for possession and mesne profits referred to above. It is contended that the petitioner cannot be allowed to pursue two different remedies for the same relief, as it would result in abuse of process of Court.

6. Before I proceed to examine the merits of the contentions regarding the ground of reasonable and bona fide requirement, I think it appropriate to deal with the aforesaid preliminary objections raised on behalf of the respondents. It is right by urged on behalf of the petitioner that none of the aforesaid objections have been specifically pleaded, but have been raised for the first time, across the bar at the time of hearing, which cannot be countenanced. Be that as it may, coming to the first objection that the writ petition cannot proceed as the same has not been saved by the Act of 1999 is concerned, this need not detain me further as very recently, I had occasion to deal with this contention in Writ Petition No. 2877 of 1989 decided on 16th August, 2001, in case of (Somchand Sankharia v. Singh Light House)1, reported in 2002(Supp.) Bom.C.R. 658. I have elaborately dealt with the said aspect and held that inspite of repeal of 1947 act and introduction of act of 1999, writ petitions pending in this Court, would continue, as if the repealing Act has not been passed. Hence, this objection is negatived.

7. That takes me to the next contention that the petitioner has waived her right to pursue the present writ petition having filed fresh suit against the respondents for possession and mesne profits. In the first place, this objection has not been specifically pleaded, but has been raised only during the course of argument by the Counsel appearing for the respondents. It is well settled that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. See 1979(2) S.C.C. 409 (Motilal Padampat Sugar Mills v. State of U.P.)2, para 5. On this count alone, this objection will have to be overturned. Besides, it is well settled that waiver means abandonment of a right or remedy, either express or implied from the conduct, but its basic requirement is that it must be an intentional act with knowledge. To put it differently, waiver must be with knowledge and there has to be intentional abandonment of such right. See 2001(5) S.C.C. 629 (Sikkim Subba Associates v. State Of Sikkim)3, paragraph 16. The Apex Court has observed that waiver involves a conscious, voluntary and intentional relinquishment or abandonment of a known, existing legal right, advantage, benefit, claim of privilege, which except for such a waiver, the party would have enjoyed. See 1974(2) S.C.C. 725 (P. Dasa Muni Reddy v. P. Appa Rao)4, paragraph 13. In the present case, however, the petitioner had given notice on 19th July, 2001 to the respondent No. 2 terminating the tenancy in respect of the suit premises expressly mentioning that the notice was without prejudice to her right to recover possession of the said premises in the pending proceedings (present writ petition). Even in the plaint in T.E.& R. Suit No. 574/578 of 2001 in para 2 thereof, the petitioner has expressly stated that she is filing the suit without prejudice to her right to recover possession of the suit premises pending in Writ Petition No. 6303 of 1996. Where an offer or admission is made "without prejudice", it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except in so far as may be expressly conceded or decided. Understood thus, there is nothing on record to even remotely suggest that the petitioner had waived her right to pursue the writ petition by filing the above numbered suit of 2001. In the circumstances, there is no substance even in this objection.

8. The next objection is that the petitioner has taken inconsistent and destructive stand with regard to the status of the 2nd respondent. It is contended that in the suit, from which the present writ petition emanates, the petitioner described the 2nd respondent as unlawful occupant, whereas, in the recent suit filed against the said respondent, the petitioner has described it as monthly tenant prior to the termination of the tenancy by letter dated 19th July, 2001. It is therefore, contended that the writ petition be dismissed. Reliance is placed on the decision of this Court reported in 2001(3) Bom.C.R. 249, in (Balu A. Sangaonkar v. Rangrao D. Palkar)5, that party cannot be allowed to take destructive stand. There is no substance even in this contention. No doubt, the petitioner described the 2nd respondent as unlawful occupant in the suit from which the present writ petition arises. However, that stand was taken by the petitioner on the premise that the respondent No. 1 was the original tenant in the suit premises and on expiry of lease period, it became statutory tenant and being a statutory tenant, had no right to transfer interest in the suit premises in any manner to any other party. In response to this case, it was contended on behalf of the respondents that the second defendant/respondent No. 2 herein has been vested with the asserts, rights, titles, interests, benefits and properties of the first defendant company by operation of law and because of the mandatory policy of the Government of India. It was therefore contended that the second defendant/respondent No. 2 herein was not the unlawful occupant as alleged. It is pertinent to note that this plea has not been pursued further by the petitioner before the trial Court, perhaps in the light of the explanation offered by the respondents. This is obvious as no issue was framed by the trial Court with regard to the status of the 2nd respondent. Nor this plea was pressed before the Appellate Court. Undoubtedly, in the writ petition as filed, the petitioner has described the 2nd respondent as unlawful occupant inducted in the flat, pending trial of the suit and further that the 2nd respondent cannot challenge the petitioners requirement under section 13(1)(g) of the Act. However, that plea has been taken in the context of the claim that the first defendant/respondent No. 1 being statutory tenant had no authority to create interest in respect of the suit premises in favour of respondent No. 2 in any manner. Be that as it may, this cannot be the basis for non-suiting the petitioner. Moreover, as observed earlier, this objection has not been specifically pleaded but raised across the bar at the time of hearing of this writ petition. To put it differently the petitioner cannot be taken by surprise. The decision relied upon by the respondents in Balu Sangonkars case (supra) is an authority on the proposition that the amendment of pleadings when inconsistent and destructive to the pleadings already filed, cannot be allowed. That does not mean that the present writ petition filed by the petitioner can be dismissed merely because the petitioner has taken different stand in two different proceedings with regard to the status of the 2nd respondent. Accordingly, this objection is also overruled.

9. The next objection taken on behalf of the respondent is that the petitioner cannot pursue two parallel proceedings for the same relief. It was submitted that since the present writ petition has been saved, the petitioner will have to pursue this remedy and cannot take recourse to another proceedings by way of suit as filed in the year 2001. Reliance was placed on the decision of the Apex Court in (Ambalal Saabhai Enterprises Ltd. v. Amritlal & Co.)6, reported in 2001(8) S.C.C. 397, in particular, paragraph 39 thereof, where the Apex Court observed that since the Rent Controller has the jurisdiction over the subject matter, it will not be right for the landlord to continue with two parallel proceedings one under the general law and the other before the Rent Controller. The landlord in that case was given opportunity to withdraw one of the two proceedings within six weeks. Reliance was also placed on another decision of the Apex Court reported in 2000(9) S.C.C. 244 in (Kumud Kumar v. Central Bank of India)7, where the Court observed that to permit a party to prosecute two proceedings for the same relief, would amount to abuse of process of Court and cannot be countenanced. Relying on the aforesaid decisions, it is contended that the petitioner can either pursue the present writ petition or the fresh suit instituted in 2001 for the same relief of possession. To counter this contention, it is contended on behalf of the petitioner that the argument of the respondents clearly overlooks that both the proceedings are independent proceedings arising from separate cause of action. It is contended that the question of doctrine of election would apply only where two parallel remedies are pursued by the litigant in respect of the same cause of action. I find force in this submission advanced on behalf of the petitioner. In the present case, the writ petition arises from suit instituted by the petitioner under the provisions of the bombay rent act of 1947. That Act has been repealed and has been replaced by Maharashtra Rent Control Act of 1999. By virtue of the provisions of the maharashtra rent control act of 1999, the 2nd respondent is not covered and therefore, not amenable to the provisions of that Act. It is on that premise that notice was issued by the petitioner on 19th July, 2001, terminating the tenancy of the respondents in respect of the suit premises and claiming possession thereof. In the suit as filed, no doubt, relief of possession as claimed is the same, but the fresh suit is also for the relief of mesne profits, which relief could not have been claimed against the respondents if they were to be governed by the provisions of the Rent Act. In other words, the cause of action for filing the suit in 2001 is independent. No doubt, in the case of Ambalal Sarabhai Enterprises Ltd. (supra), the Apex Court has observed that litigant cannot be permitted to take recourse to two parallel proceedings, however, as rightly contended on behalf of the respondents, that principle will have to be understood in the context of the fact situation of that case, where both the proceedings were pending before the first Court i.e. the trial Court. However, in the present case, two proceedings are pending before different forums inasmuch as the suit is pending before the first Court; whereas, the second proceeding in the form of writ petition is pending in this Court. Even in the case of Kumud Kumar (supra), the fact situation was entirely different. In that case, the landlady had filed suit for possession and damages, which suit was decreed, but eventually, in the appeal, the High Court found that the landlady had not terminated the tenancy by giving notice under section 106 of the transfer of property act. After that decision, the landlady proceeded to terminate the tenancy under section 106 of the transfer of property act and thereafter, filed a fresh suit for possession and mesne profit; whereas, later on, the landlady challenged the order passed in the first appeal on the ground that it was not necessary to give notice under section 106 of the transfer of property act. In that context, the Apex Court observed that the litigant cannot be allowed to prosecute two remedies simultaneously, having acquiesced of the order passed by the High Court regarding giving notice under section 106 of the Act. I find force in the argument of the petitioner that it is only when two parallel remedies are resorted to, arising from the same cause of action, that the question of election of remedy would arise. However, in the present case, both the suits are on different and distinct cause of actions and the nature of reliefs claimed is not identical. Inasmuch as in the suit from which the present writ petition arise, the relief is only of possession, whereas, in the fresh suit filed under the general law, relief is not only of possession, but also of mesne profit. Besides, the fresh suit has been filed in view of the express statutory provision of the Act of 1999, which excludes application to the companies such as respondent No. 2. It is well settled that the landlord can file successive suits for the same relief, but on different grounds. To put in differently, the landlord may file suit for recovery of possession against the tenant on the ground of bona fide and reasonable requirement; And later on, during the pendency of the said suit, if new cause of action for seeking possession has arisen for example, because of the default committed by the tenant, the landlord is competent to institute another suit for the same relief of possession against the tenant on that count. Applying that principle the institution of suit cannot be questioned. I would adopt the view taken by the Full Bench of the Andhra Pradesh High Court in A.I.R. 1968 A.P. 121, in the case of (Siddiah v. Kamath)8, that notwithstanding the pendency of an application for eviction filed by a landlord against his tenant under the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, the landlord is entitled to file a second application for eviction either during the pendency of the first application or its disposal, relying upon a ground of eviction which has accrued to him during the pendency of the earlier application for eviction. Similar view has been taken by the Full Bench of Madras High Court in A.I.R. 1962 Mad. 447 in the case of (K. Perumal Shettiar v. Muthuswamy)9. To my mind, therefore, the question of election of remedy will have no application to the fact situation of the present case as both the remedies are founded on separate and distinct cause of actions. In the circumstances, I find no force in this objection taken on behalf of the respondents.

10. Accordingly, the writ petition will have to be now decided on its own merits as the same is maintainable and as the same has been saved inspite of the repeal of the Act of 1947, as if the said Act was still in force.

11. On careful analysis of the judgments of the courts below, it is seen that the trial Court accepted the petitioners version only to the extent that the present accommodation in Amarchand Mansion which is admeasuring about 2900 square feet, was insufficient for the petitioner and her family members, in particular, on account of the additional requirement for her husbands dental clinic and also because her two daughters (twins) would require separate bed room. The trial Court has also accepted the petitioners plea that the present makeshift bed room provided to her mother-in-law was causing difficulty to her mother-in-law due to lack of attached bath and lavatory. On the other hand, the Appellate Court has reversed the above said finding of facts returned by the trial Court. The Appellate Court has rejected the case made out on behalf of the petitioner about the additional requirement for her husbands dental clinic. For that, the Appellate Court has analysed the materials on record and taken a different view than the one taken by the trial Court, as mentioned in para 3 above. It is not possible to even suggest that the said view is perverse or is not a possible view. Even if two views were possible, that cannot be the ground for interfering in writ jurisdiction under article 227 of the constitution of india. In other words, this Court will have no option but be bound by the finding of fact recorded by the Appellate Court with regard to the petitioners version of additional requirement for her husbands dental clinic. Besides, it is conceded that the petitioners husband has expired on 23rd November, 2000. In that sense, assuming that the petitioner was right in canvassing that requirement, but in view of this changed situation, the said need has become unavailable to the petitioner.

12. The other plea which had weighed with the trial Court about separate bed room required for two daughters (twins), the Appellate Court has reversed that finding of fact on the reasoning that the present flat occupied by the petitioner and her family was sufficiently big. It is common ground that the same is admeasuring about 2900 square feet. In paragraph 37 of the impugned judgment the Appellate Court has adverted to the availability of total space/rooms. Having analysed that position, the Appellate Court has found as a fact that there was ample space including closed balcony of about 7.4" x 18.10" to take care of the requirement of separate bed room for the daughters. Besides, the bed room of petitioner was quite big about 17 x 17. The Appellate Court has also observed that the twin daughters could either use portion of the living room which is about 27.6" x 16.6" during night time of for that matter, share the bed room of their grand mother (mother-in-law of the petitioner), which was also sufficiently big, admeasuring about 14.6" x 12.6". The Appellate Court has taken the view that if the twin daughters were to share the bed room of their grandmother, it will be helpful to the grandmother who was about 96 years old and has also sight problem. It appears from the record that when the suit was filed in 1977, the twin daughters were hardly one year old and at the time of recording of evidence commenced in October, 1986, they were about 8 years of age and when the trial Court decided the suit, they were 12 years of age. By the time the Appellate Court decided the matter, they were 18 years of age. It is well settled that the rights and obligations of the parties are to be determined as they were when the lis commenced. Undoubtedly, the landlord is entitled to seek eviction of the tenant on the ground of his future reasonable and bona fide requirement, albeit in close proximity. In the present case, the petitioner has not spelt out any details in the plaint as filed. Whereas, during the recording of evidence has taken several reasons to justify her claim, most of them have not been accepted even by the trial Court. Be that as it may, it is not unknown in the city of Bombay that enclosed balconies such as in the present case which is as big as a room could be utilised or for that matter the children share the bed room of their parents or even of the grandparents. Undisputedly, the grandmother has expired in 1997. Understood thus, and taking the totality of the evidence on record which goes to show that the petitioner has taken so many pleas which were and have been held to be untenable and unsubstantiated by both the courts below and the area of her premises being sufficiently big about 2900 square feet, it is not possible to hold that the view taken by the Appellate Court that the petitioner failed to establish her requirement to be reasonable and bona fide is not a possible view or that it is perverse and manifestly wrong. If it is so, the finding of fact returned by the Appellate Court on this aspect will also need no interference, having regard to the limited scope of interference in exercise of writ jurisdiction under article 227 of the constitution of india.

13. In so far as the requirement on account of the mother-in-law of the petitioner is concerned, the Appellate Court has doubted the fact that the mother-in-law was residing with the petitioner at Amarchand Mansion. Assuming that the said finding recorded by the Appellate Court was to be discarded, that would make no difference to the ultimate conclusion reached by the Appellate Court that the petitioner had failed to establish the element of necessity in respect of the suit premises and the requirement being reasonable and bona fide. There is another reason for which the said finding would make no difference, as it is common ground that the mother-in-law has expired long back on 22nd January, 1997.

14. To my mind, therefore, it will be inappropriate to overturn the finding of fact recorded by the Appellate Court that the petitioner had failed to establish reasonable and bona fide requirement in respect of the suit premises. If that is so, no interference is warranted with the judgment and decree passed by the Appellate Court, in dismissing the suit preferred by the petitioner. As the petitioner has failed to establish bona fide and reasonable requirement in respect of the suit premises, even if the petitioner were to succeed on the issue of greater hardship, that would make no difference to the ultimate conclusion reached by the Appellate Court in dismissing the suit. No doubt, if I was called upon to examine the issue of comparative hardship, I would have had no hesitation in observing that the Appellate Court has applied the correct principle in holding that greater hardship will be caused to the plaintiff and not to the defendants because the defendants could procure another accommodation in the same or nearby area, either on ownership basis or on lease. In view of that finding, the issue has been correctly answered in favour of the petitioner. However, as observed earlier, finding on this issue in favour of the petitioner would make no difference to the conclusion reached by the Appellate Court and the order of dismissal of the suit. For the reasons mentioned, I find no infirmity therein.

15. The petitioner, in the affidavit now filed before this Court, has asserted that even though the petitioners husband has died in the year 2000, that would make no difference because one of the daughter has completed her B.D.S. and is in the process of setting up her practice in dentistry at Amarchand Mansion in the portion of the premises where her husband was practicising. Moreover, her other daughter has appeared for Masters in Life Science and was in the process of setting up Micro Biological Research Laboratory at Amarchand Mansion and would require space of about 1500 square feet to set up her laboratory. It is in this background, petitioner contends that these are subsequent events which would entitle the petitioner to claim for the relief, which was granted by the trial Court. Reliance has been placed on the decisions of the Apex Court reported in 2002(Supp. 2) Bom.C.R. (S.C.)741 : 2001(2) Mh.L.J. 581, in the case of (Gaya Prasad v. Pradeep Srivastava..)10, 1997(4) Bom.C.R. 354 : 1997(5) S.C.C. 457, in the case of (Ansuyaben Kantilal Bhatt v. Rashiklal Manilal Shah)11, 1997(4) S.C.C. 413, in the case of (Kamleshwar Prasad v. Pradumanju Agarwal (Dead) By Lrs)12, and A.I.R. 1975 S.C. 1409, in the case of (P. Venkateswarlu v. Motor & General Traders)13, to support the argument that the above said events are subsequent events occurred pendente lite and would have impact on the rights and obligation of the parties. On the other hand, learned Counsel for the respondents contends that the fact that the petitioners husband and mother-in-law died, was not brought on record by the petitioner, though she was obliged to do so. It is therefore, contended that the said fact was crucial as it would indicate that the need of the petitioner as accepted by the trial Court was eclipsed. Therefore, those events were suppressed by the petitioner, but has come on record only after the respondents filed their affidavit in November, 2001. Moreover, it is contended that the requirement of daughters, which is now sought to be pressed into service by way of the affidavits filed before this Court, ought not to be considered because it is entirely new case made out and that is a fact on which evidence will have to be adduced and the respondents should be given opportunity to controvert the said position. No doubt, in the aforesaid decisions, the Apex Court has held that the normal rule is that rights and obligations of the parties are to be determined as they were, when the lis commenced and the Court is not precluded from moulding the reliefs appropriately in consideration of subsequent events, provided such events had an impact on those rights and obligations. In the recent decision of the Apex Court reported in 2002(2) S.C.C. 256 in (Om Prakash Gupta v. Ranbir B. Goyal)14, the Apex Court has observed that subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under order vi, rule 17 of the code of civil procedure. The Apex Court has observed that this is the mandate. In the present case, although subsequent events sought to be pressed into service to justify the relief, are founded on facts, no formal application has been filed by the petitioner for amendment of the pleadings. In such a situation, the Apex Court in para 12 and para 13 of the same decision, has observed that the Court cannot base its decision on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. The Apex Court, relying on Privy Council decision, then went on to observe that as a rule, relief not founded on the pleadings should not be granted. The Apex Court has observed that subsequent events, which are factual events, cannot be taken cognizance of, unless brought to the notice of the Court in accordance with the established rules of procedure which if done, would have afforded the other side an opportunity of meeting the case. On this Court alone, the subsequent events of two daughters (twins) having acquired qualification, or are in the process of starting business in Amarchand Mansion, cannot be taken cognizance of. Even if this Court were to find that the said subsequent events will have impact on the rights and obligations of the parties, the same will have to be properly tried and proved by adducing evidence. Besides, to my mind, these subsequent events have admittedly arisen after the Act of 1999 has come into force. No doubt, writ petition has been saved inspite of repeal of 1947 act and introduction of 1999 act; but nevertheless, the event of petitioners daughters having graduated and are in the process of setting up business, has occurred after the introduction of Act of 1999. In that sense, the rights and obligations arising out of the said events, would be after the repeal of 1947 Act, which happened on 31st March, 2000. Rights which have accrued after 31st March, 2000, cannot be said to have been saved, but the rights which have crystallized on or before 31st March, 2000 alone are saved and can be pursued in the present writ petition. In that sense, the subsequent events of daughters having acquired qualification and are in the process of starting business in the premises of Amarchand Mansion having occurred after 31st March, 2000, the same cannot be taken cognizance in the present writ petition. Even for this reason, the said subsequent events, will be of no avail.

16. In the circumstances, I have no hesitation in dismissing this writ petition and affirming the conclusion and finding of fact recorded by the Appellate Court that the petitioner has failed to establish that the requirement of the suit premises is reasonable and bona fide for herself and for her family members and consequently, dismissing the suit for possession preferred by the petitioner. Hence, this writ petition is dismissed with no order as to costs.

Writ petition dismissed.

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