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2001 DIGILAW 588 (BOM)

SHANTARAM TUKARAM MOHITE v. DATTATREYA GANGARAM TELI

2001-07-18

A.M.KHANWILKAR

body2001
ORAL JUDGMENT :- This Writ Petition under Article 227 of the Constitution of India takes exception to the Order passed by the Additional District Judge, Sangli dated February 6, 1983 in Regular Civil Appeal No. 176 of 1987. 2. The respondent is the landlord in respect of the House in C.T.S. No.993/B situated at Maruti Road, Sangli. The suit premises which form part of the said house was let out to the petitioner by the respondent somewhere in the year 1965. The present Petition arises out of the suit filed by the respondent for recovery of possession of the suit premises and for arrears of rent and permitted increases before the III Joint Civil Judge, Junior Division, Sangli being Regular Civil Suit No.25 of 1979. The respondent-landlord prayed for eviction of the petitioner-tenant on the ground that the suit premises are required for personal use and occupation as well as on the ground of default, unlawful subletting, damages caused to the suit property. The said suit was, however, partly allowed only with regard to the claim of recovery of arrears. In so far as the claim for possession of the suit premises same was negatived. In the circumstances, the respondent-landlord preferred Appeal before the District Court being Regular Civil Appeal No. 176 of 1987. Only two grounds were pressed into service on behalf of the respondent-landlord before the Appellate Court. The first ground was of bona fide and reasonable requirement of the suit premises for personal use and occupation and the second ground was for damages caused to the suit premises. The Appellate Court after appreciating the evidence on record, negatived the second ground that the petitioner had caused any damage to the suit premises so as to make him liable for eviction within the meaning of the Bombay Rent Act. However, with regard to the first ground, namely, that the suit premises are required for reasonable and bona fide requirement of the landlord, the Appellate Court accepted the version of the respondent, but instead of granting decree of eviction for the entire premises the Appellate Court restricted the decree only to the portion of the suit premises. In other words, the Appellate Court granted partial decree in respect of the suit premises described as "B" in the sketch produced along with Exh.l5. Accordingly, the appeal preferred by the respondent was allowed to the above extent only. In other words, the Appellate Court granted partial decree in respect of the suit premises described as "B" in the sketch produced along with Exh.l5. Accordingly, the appeal preferred by the respondent was allowed to the above extent only. It is this order which is the subject matter of challenge by way of present Writ Petition at the instance of the petitioner-tenant. 3. The Learned Counsel for the petitioner mainly argues that, in view of the subsequent development that during the pendency of the proceedings the respondent has secured possession of some other premises from another tenant, the Appellate Court was in error to return a finding in favour of the respondent-landlord on the issue of bona fide and reasonable requirement. This is the only argument advanced so as to assail the finding recorded by the Appellate Court with regard to the issue of bona fide and reasonable requirement. In so far as the finding recorded by the Appellate Court, on the issue of partial eviction, the Learned Counsel submits that, from the materials on record it would be seen that the requirement of the respondent-landlord was only for 3 ft x 3 ft. premises which position he has accepted in evidence. He, therefore, submits that it was wholly unnecessary to order partial eviction especially when the respondent-landlord has secured possession of almost equal area of the premises in the suit house from another tenant. In other words, the finding returned by the Appellate Court on the issue of bona fide and reasonable requirement are not seriously challenged except to the extent referred to above. The Learned Counsel for the respondent on the other hand contends that the Courts below have analysed the materials on record and has considered all the relevant factors while concluding that the respondent has established bona fide and reasonable requirement of the suit premises. In so far as the reasons recorded by the Appellate Court on the issue of comparative hardship the Learned Counsel has adopted the same to support the order passed by the Appellate Court. He submits that, there is no infirmity in the approach or the reasoning recorded by the Appellate Court which would warrant interference under Article 227 of the Constitution of India. 4. He submits that, there is no infirmity in the approach or the reasoning recorded by the Appellate Court which would warrant interference under Article 227 of the Constitution of India. 4. After considering the rival submissions, I find that the Appellate Court has considered all the relevant factors while recording the finding that the respondent-landlord has established bona fide and reasonable requirement of the suit premises. The Appellate Court has, inter-alia, found that the plea of bona fide and reasonable requirement has been set up in para 3 of the plaint and which has been established from the evidence on record. The respondent-landlord requires the suit premises for installing crushing machine and oil rotary. The Appellate Court has also concluded this aspect of the matter has not been challenged by the petitioner-tenant. According to the Appellate Court, this itself was sufficient to return a finding on the issue of bona fide and reasonable requirement in favour of the respondent-landlord. However, besides this the Appellate Court has also taken into account that the respondent was staying with his sons and was in possession of any two rooms which were admeasuring 8 ft x 10 ft and 10 ft x 12 ft., respectively. The Appellate Court has also rightly rejected the plea of the petitioner that due to the non-examination of the sons of the respondent-landlord the plea of reasonable and bona fide requirement cannot be held to have been established by the respondent-landlord. The Appellate Court before recording its conclusion that the respondent-landlord has established the ground of bona fide and reasonable requirement has considered all relevant circumstances, which in my view needs no interference. In so far as the subsequent event of respondent-landlord having secured possession of another premises in the suit house from another tenant, which according to the petitioner is of equivalent area to the suit premises, the Appellate Court has considered even that aspect and observed that those premises were not suitable for the purpose of installing crushing machine and oil rotary for which the present suit was filed against the petitioner and for which purpose the suit premises are claimed by the respondent. The Appellate Court has further observed that the premises which have been secured by the respondent-landlord from another tenant are being used for residence since the respondent-landlord was falling short of premises and was badly in need of additional space to accommodate his growing family which consisted of himself and his three sons. Taking this view of the matter, the Appellate Court found that even the subsequent event, which was pressed on behalf of the petitioner tenant, was of no avail. In the circumstances; I find no reason to interfere with the conclusion reached by the Appellate Court on the issue of bona fide and reasonable requirement of the suit premises. 5. Coming to the issue of comparative hardship, even on this aspect the Appellate Court has elaborately considered all the facets of the rival stand. The Appellate Court, besides comparing the financial position of the respective parties has also considered the fact that the respondent-landlord has no other alternative accommodation whereas the petitioner-tenant was a Municipal Councillor in the past and has his own ancestral house in the city. In other words, the Appellate Court has taken into consideration that the petitioner-tenant is well equipped in every respect including the Financial position and the status of the respondent-landlord. The Appellate Court, therefore, rightly held that even the issue of comparative hardship needs to be answered in favour of the respondent-landlord. Although the Appellate Court has found that the respondent will suffer greater hardship but it still preferred to grant partial decree in respect of the portion of the suit premises, marked as "B" in the sketch produced at Exh.l5. Even for reaching this conclusion, the Appellate Court has considered all the relevant aspects as would be evident from the judgment. 6. I have no hesitation in observing that all these matters are essentially finding of facts recorded by the Appellate Court which is the final fact finding Court. It is not open for this Court to re-appreciate the evidence on record in exercise of the writ jurisdiction under article 227 of the Constitution of India. In the circumstances, the present Petition is devoid of merits and does not merit any interference. 7. While parting, it would be relevant to point out that, the parties were given opportunity to explore the possibility of some settlement. However, it appears that the parties were not able to reach at any amicable settlement. In the circumstances, the present Petition is devoid of merits and does not merit any interference. 7. While parting, it would be relevant to point out that, the parties were given opportunity to explore the possibility of some settlement. However, it appears that the parties were not able to reach at any amicable settlement. It appears that even such opportunity was not availed before the Appellate Court. 8. For the aforesaid reasons, this Writ Petition fails and is dismissed with costs. 9. At this stage, the Learned Counsel for the petitioner prays for stay of operation of this order to enable the petitioner to approach the Apex Court. The Leaned Counsel for the respondent has no objection if reasonable time is granted. In the circumstances, the interim order passed by this Court on April 6, 1993 is continued for a period of eight weeks from today. Petition dismissed.