N.H.BHATT - (1.)This is a revision application under sec 29(2) of the Bombay Rent Act by the original plaintiff of the civil suit No. 1199 of 1971 dismissed by the learned Joint Civil Judge (J. D ) Rajkot against which this petitioner plaintiff had preferred the civil appeal No. 121 of 1975 in the District Court Rajkot where the learned Joint Civil Judge by his judgment was pleased to confirm the decree of dismissal of the suit. The plaintiffs suit was filed for possession of the rented property namely the open land by resort to sec. 13(1)(i) of the Bombay Rent Act on the allegation that the rented land was reasonably and bona fide required by the plaintiff landlord for erection of a new building.
(2.)It is no longer in controversy before me that the subject matter of lease is a parcel of land situated on the Gondal road in the City of Rajkot. The defendants No. 1 firm whose partners are the defendants Nos. 2 to 6 had hired the said land for the monthly rent of Rs. 550.00. I say that there is no controversy before me about the subject matter of the lease being open land because upto the lower appellate stage defendants had raised the contention that the subject matter of the lease was not an open land because of its being bounded by a compound wall. Quite rightly Mr. G. N. Desai appearing as a counsel for the respondents defendants had not raised this question before me.
(3.)Both the courts below and particularly the lower appellate court however decided the question of alleged requirement of the plaintiff against him on its view that the plaintiffs suit did not fall under sec. 13(1) (i) of the Rent Act but partook of the character of sec. 13 (1) (g) of the Rent Act and the plaintiff could not be said to have established that he required the premises reasonably and bona fide partly for occupation by himself and partly for the purpose of erection of a new building. The learned appellate Judge in the course of his judgment has emphasised more than once that the plaintiff himself had not entered in to the witness box that the only man to speak of his requirement was his maternalun clecumconstituted attorney Vasantlal and that the purpose of construction was twofold namely the plaintiffs alleged requirement to have a permanent income and secondly the occupation of that building for his personal purposes. The question that has been raised by the learned respective counsels appearing for the two contending parties was whether the case would fall under sec. 13(1)(g) of the Rent Act or whether it would fall squarely under sec. 13(1)(i)of the Rent Act. The second controversy raised is as to what are the essential requirements of facts to be established for the purpose of making out a case under sec. 13 (1) (i) of the Rent Act. According to Mr. Advocate General appearing for the petitioner plaintiff the moment the landlord proved that the subject matter of the lease was an open land that he had sufficient means to bring up the proposed structure that he had made requisite preparations in the form of getting municipal permissions nothing else was required to be established. On the other hand Mr. G. N. Desai appearing for the respondents tenant with equal emphasis submitted that those were not the only reqUirement of law and a further element of need through not an absolute need would be made out in order to attract the essential requisite namely the requirement which is by catena of authorities laid down to mean an element of need though not an absolute need.