TMI Blog2002 (9) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 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 and not the respondent trust, if the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this submission, reliance is placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as proof to establish the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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 wrong statements. And therefore the plaintiff had to ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperly 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 answered against the petitioner. That conclusion is not assai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 behalf of the petitioner that no iota of evidence with regard to the requirement for students hostel has been adduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondent trust. In that case also, the respondent trust would be entitled to claim possession of the suit premises for the requirement of the trust. If this be so, there is no force in the argument pressed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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