Bombay High Court
Shri. Prakash Nanasaheb Deshpande And ... vs Shri. Rajkumar Motilala Shah on 20 May, 2021
Author: C.V. Bhadang
Bench: C.V. Bhadang
1-cra-125-17 & cra-631-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 125 OF 2017
Rajkumar Motilal Shaha
Age-69 years, Occ. Contractor,
R/o. 4075/3A, Savarkar Path,
Station Road, Tal. Pandharpur,
District Solapur. ..Applicant
Vs.
1. Prakash Nanasaheb Deshpande
Age 73 years, Occ. Retired,
2. Anjali Prakash Deshpande
Age 65 years, Occ. Household,
Both R/o. C/o. M. R. Joshi,
1077/A, Sharmishtha -1,
Plot No.5, Shivaji Nagar, Pune ..Respondents
WITH
CIVIL REVISION APPLICATION NO. 631 OF 2019
1. Prakash Nanasaheb Deshpande
Age 73 years, Occ. Retired,
2. Anjali Prakash Deshpande
Age 65 years, Occ. Household,
Both R/o. C/o. M. R. Joshi,
1077/A, Sharmishtha -1,
Plot No.5, Shivaji Nagar, Pune ..Applicants
Vs.
Rajkumar Motilal Shaha
Age-69 years, Occ. Contractor,
R/o. 4075/3A, Savarkar Path,
Station Road, Tal. Pandharpur,
District Solapur. ..Respondent
----
Mamta Kale page 1 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
Mr. S.M. Gorwadkar, Senior Advocate a/w Mr. S.P. Rajepandhare for
the Applicants in CRA No.125/2017 and Respondents in CRA
631/2019.
Mr. A.V. Anturkar, Senior Advocate a/w Mr. Yatin Malvankar, Ms.
Preet Phanse i/b Siddharth Subhash Deshpande, Mr. Sudhir N.
Deshpande and Ms. Nivedita S. Deshpande for the Respondents in
CRA 125/2017 and Applicants in CRA 631/2019.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 2nd MARCH 2021
PRONOUNCED ON : 20th MAY 2021
(Through Video Conferencing)
COMMON JUDGMENT:
. Both these revision applications are between the same parties and arise out of the judgment and decree dated 1 September 2016 passed by the learned District Judge at Akkalkot, directing eviction of the applicant Rajkumar Shah (defendant) from the suit premises. These revision applications have been expedited and as such are finally heard by consent of the parties.
2. The suit property consists of eight rooms at Pandharpur, District Solapur. more specifically described in plaint para No.1 which are in possession of the applicant Rajkumar Shah as a tenant. Prakash Deshpande and his wife are the landlords (plaintiffs). For Mamta Kale page 2 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 the sake of convenience, the parties are referred to as plaintiffs and defendant.
3. The plaintiffs filed RCS No.415/2001 for eviction and possession of the defendant and other consequential reliefs. The case made out in the plaint is that the agreed monthly rent in respect of six rooms is Rs.450/- per month while the monthly rent in respect of the remaining two rooms is Rs.200/- per month. The tenancy is as per the English Calender month.
4. The eviction was sought on the ground of (i) default in the matter of payment of rent. (ii) non-user of the premises by the defendant for a continuous period of six months. (iii) reasonable and bonafide requirement of the plaintiffs and (iv) nuisance.
5. It was contended that plaintiff Prakash Deshpande who is M.Sc. (Food Technology) was serving in Glaxo Company at Aligarh (Uttar Pradesh) and thereafter at Ponda (Goa) and he has since retired from service on 31 July 2001. It was contended that the suit premises are bonafide and reasonably required by the plaintiffs for residence. The plaintiff No.1 also proposes to start a business in order to make use of his knowledge in Food Technology.
Mamta Kale page 3 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
It was contended that the defendant was not residing in the suit premises since about 2-3 years prior to filing of the suit. He has left Pandharpur alongwith his family and is permanently residing at Pune. It was contended that the defendant does not need the suit premises and even otherwise he owns several premises at Pandharpur and in the vicinity. It was next contended that the defendant has created nuisance and was storing explosive material in the suit premises for the use of his business as a Civil Contractor, which matter was reported to the police. It was contended that such use of the premises was against contractual terms of the tenancy.
6. The plaintiffs issued a notice dated 12 June 2001, terminating the tenancy w.e.f. 30 June 2001 and thereafter filed the aforesaid suit for eviction and possession.
7. The suit was resisted by the defendant. All the adverse allegations regarding the default in the matter of payment of rent, non-user and nuisance were denied. It was contended that six out of the eight rooms were in possession of the defendant for residential purpose and in the remaining two rooms he was carrying on business of M/s. Bharat Construction. The suit premises were in possession of the defendant since the year 1984. It was contended Mamta Kale page 4 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 that apart from the eight rooms, there are sixteen other rooms in the said property which are in possession of the plaintiffs and in some of such rooms the plaintiffs have inducted tenants. The allegations about the bonafide need were denied in as much as according to the defendant, the plaintiffs were not residing at Pandharpur..
8. On the basis of the rival pleadings, the learned Trial Court framed as many as ten issues.
9. The plaintiff No.1 examined himself as P.W.1 alongwith Mr. Dinanath Chauhan (P.W.2), Pandhurang Jadhav (P.W.3) and Vijay Dhavale (P.W.4). The defendant examined himself as D.W.1 alongwith Jagannath Rannavare (D.W.2), Mr. Vijay Dhavale (D.W.3) and Mr. Ashok Deshpande (D.W.4). Both parties produced certain documents.
10. The learned Trial Court by a judgment and order dated 15 April 2013 granted a decree of eviction in respect of the six rooms which were being used for residential purpose. The eviction was granted on the ground of non-user by the defendant and the bonafide requirement of the plaintiffs. The Trial Court, however, Mamta Kale page 5 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 dismissed the suit in respect of the claim of eviction of the two rooms used for business purpose.
11. Feeling aggrieved, the plaintiffs filed RCA No.143/2013 in which the defendant filed cross objection to the extent of the grant of the decree of eviction for six rooms.
12. The Appellate Court by a judgment and decree dated 1 September 2016 partly allowed the appeal, while dismissing the cross objection. The Appellate Court has confirmed the decree in respect of six rooms granted by the Trial Court. The Appellate Court granted a decree of eviction in respect of two rooms on the ground of bonafide requirement. However, the First Appellate Court refused to accept the case of the landlord as to non-user of the said two rooms which were used for business purpose. Feeling aggrieved by the decree of eviction, the defendant has filed CRA No.125/2017. The plaintiffs have filed CRA No.631/2019 seeking decree of eviction in respect of two rooms, also on the ground of non-user.
13. I have heard Mr. Gorwadkar, the learned Senior counsel for the defendant and Mr. Anturkar, the learned Senior counsel for Mamta Kale page 6 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 the plaintiffs. With the assistance of the learned counsel for the parties, I have gone through the record.
14. It is submitted by Mr. Gorwadkar that the suit seeking eviction of the tenant in respect of the two separate tenancies one for residential purpose and the other for business purpose was not maintainable. For this purpose, reliance is placed on the decision of the Supreme Court in Jamal Vs. Safia Beevi1 .
15. It is submitted that the plaintiffs have failed to establish the ground of bonafide requirement as well as non-user. It is submitted that the plaintiffs have suppressed the fact that other rooms from the same property were in possession of the plaintiffs and the plaintiffs had also received possession of four rooms which were in possession of tenant late Mr. Kurulkar. It is submitted that the plaintiff No.1 has admitted in the cross-examination that he is serving in Hindustan Foods Ltd. at Goa. It is thus submitted that the plaintiffs have suppressed the material facts and are not entitled to the relief, in as much as such suppression vitiates the entire proceedings. For this purpose, reliance is placed on the decision of 12005 0 Supreme (Ker) 57 Mamta Kale page 7 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 the Supreme Court in the case of S. P. Chengalvaraya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs. and Ors.1
16. It is submitted that the plaintiffs have no intention of residing or carrying on business in the suit premises at Pandharpur. The learned counsel has thereafter referred to the findings recorded in the context of the evidence led. It is submitted that the evidence of P.W.2 who was working in Electricity Department and P.W.3 who was an employee of the Telephone Department is insufficient to establish the non-user of the suit premises. It is submitted that P.W.3 has admitted that from 1 March 2001 to 30 September 2001 the telephone connection was in use. Thus, the ground about non-user of the premises within six months next prior to the filing of the suit is not established, in as much as the suit was filed on 5 September 2001. It is submitted that P.W.4 who was a Municipal employee had stated about disconnection of the 24 hours water tap connection in the suit premises since the year 1997 which was on account of the fact that due to drought conditions the Government had discontinued the facility of 24 hours water tap connection. He pointed out that P.W.4 has admitted that there were two common water tap connections in the property which were being used by all 11994 1 SCC 1 Mamta Kale page 8 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 the tenants. In so far as the evidence of D.W.2 who was examined by either party, it is pointed out that D.W.2 has deposed that in the various surveys conducted after every four years, in the municipal record, defendant was shown as the occupant. He therefore submitted that the ground of non-user is not established even in respect of the six rooms used for residential purpose. He pointed out that the First Appellate Court has rightly refused to accept the ground of non-user in so far as the two rooms are concerned on the basis of the letters (Exh.299 to 303) issued in the year 2007, 2009 and 2011. It is pointed out that both the daughters of the plaintiffs are married and the evidence of D.W.3 would show that during the period from 1988 to 2004 various tenants had vacated and new tenants were inducted and about 10 to 12 rooms out of said premises are still in possession of the plaintiffs. It is thus submitted that the Courts below were in error in granting the decree of eviction.
17. On behalf of the defendant, further reliance is placed on the decision of the Supreme Court in the case of M. M. Quasim Vs. Manohar Lal Sharma and Ors.1 and the decision of this Court in 1AIR 1981 SC 1113 Mamta Kale page 9 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 Vinayak Trimbak Wale (Dr.) Vs. Tarachand Hiralal Shet Marwadi 1 , Tarachand Hassaram Shamdasani Vs. Durgashankar G. Shroff and others2 and Smt. Sugarbai Mohamad Siddiq and Ors. Vs. Ramesh Sundar Hankare (deceased) by LRs.3
18. It is submitted by Shri. Anturkar the learned Senior counsel for the plaintiffs that there is no serious challenge in the written statement to the ground of reasonable and bonafide requirement of the plaintiffs. It is submitted that even otherwise the same is sufficiently proved on record. It is submitted that reasonable and bonafide requirement is not to be equated with dire need. It is submitted that plaintiff No.1 has retired from service of Glaxo Company in the year 2001 and is seeking possession of the suit premises. It is submitted that the evidence about disconnection of the telephone and the water tap connection and the nature of the electricity use would clearly indicate that the defendant is not using the suit premises either for residence or for business purpose and has shifted to Pune where the name of the defendant and his family members figures in the Electoral Roll. It is submitted that the evidence led by the defendant is unacceptable. It is pointed out that 11960 DGLS (Bom.) 14 22004(Supp.) Bom.C.R. 333 31997(2) Bom.C.R. 620 Mamta Kale page 10 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 the chart allegedly prepared by D.W.4 Ashok Deshpande cannot be relied upon as the said witness does not have any personal knowledge as he admitted that he has left the said locality from 2004. It is submitted that the said witness was evicted by the plaintiff and therefore, out of annoyance has deposed against the plaintiff. It is submitted that the defendant apart from having stopped the use of the suit premises has two galas i.e. Gala Nos.10 and 21 in the 'Indraprastha Shopping Centre' which is near the suit premises. The defendant has also not led evidence to show that from 2001 the defendant had made any attempt to search for any alternate premises and therefore the issue of comparative hardship has to be answered in favour of the plaintiff.
19. It is submitted that the contention about non maintainability of a single suit in respect of the six rooms (used for residential purpose) and the two rooms (used for business purpose) is misconceived and cannot be accepted. It is pointed out that no such ground was raised before the Courts below. He submitted that in the absence of the defendant showing that there were distinct tenancies, the contention cannot be accepted.
Mamta Kale page 11 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
20. On behalf of the plaintiffs, reliance is placed on the decision of the Supreme Court in (i) Ramniklal Pitambardas Mehta Vs. Indradaman Amratlal Sheth1 (ii) State of Gujarat and Anr. Vs. Justice R. A. Mehta (Retired) and Ors.2 (iii) Raghunath G. Panhale (Dead) By LRs. Vs. Chaganlal Sundarji and Co. 3 (iv) Modern Tailoring Hall Vs. H. S. Venkusa and Ors. 4 and the decision of this Court in (v) Vasant Mahadev Gujar Vs. Baitulla Ismail Shaikh & Anr.5
21. In so far as CRA No.631/2019 is concerned, it is submitted that the Courts below were not justified in placing reliance on the letters (Exh.299 to 303) which were of the year 2007, 2009 and 2011 in order to hold that the ground of non-user in respect of the two rooms is not established.
22. I have carefully considered the rival circumstances and the submissions made.
1AIR 1964 SC 1676 2(2013) 3 SCC 1 3(1999) 8 SCC 1 4(1997) 5 SCC 315 5(2015) 5 Bom. C.R. 243 Mamta Kale page 12 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19
23. As noticed earlier, the eviction in respect of the six rooms has been granted on the ground of the reasonable and bonafide requirement of the plaintiff and the non-user by the defendant. In so far as two rooms are concerned, the eviction has been granted on the ground of reasonable and bonafide requirement. The plaintiffs are seeking the eviction from the two rooms on the ground of non-user also. The consideration in the present revision applications has to be confined to these two grounds alone.
24. It has come on record that the entire premises consist of six blocks, having four rooms each out of which two rooms are on the ground floor and two on the first floor. Thus, there are total twenty four rooms. The defendant is admittedly in possession of two rooms on the ground floor from block No.1 which were used by the defendant for the purpose of his business as Bharat Construction. He is also in possession of two rooms, from out of block No.5 and four rooms from out of block No.6, total six rooms, which are used for residential purpose. It has come on record that the premises were obtained on lease by the defendant somewhere in the year 1984-1985 from the mother of plaintiff No.1. Subsequently, the plaintiffs had purchased the said premises. Be Mamta Kale page 13 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 that as it may, the relationship as landlord and tenant is not in dispute nor the description of the property is in dispute and therefore, it is not necessary to further dwell on the said aspect. What is relevant is that according to the plaintiffs, the tenancy comprises of the total eight rooms and the rent in respect of the six rooms in block No.5 and 6 was Rs.450/- per month and the two rooms from block No.1 is Rs.200/- per month. According to the plaintiffs the user of the two rooms for business purpose was started in the year 1996-97. There is no tenancy agreement produced on record by either parties. Thus, there is nothing on record to show that there were two distinct tenancies as such, the separate user for residential and business purpose notwithstanding. The record discloses that the contention about the non-maintainability of the suit, on the ground of two distinct tenancies one for residential and the other for business purpose was not raised. Thus, in my considered view, the issue about non-maintainability of the suit on account of the alleged existence of the two distinct tenancies does not arise and at any rate the contention as raised on behalf of the defendant cannot be accepted.
25. In the case of Jamal the landlord had filed a single suit against different tenants which is not the case in the present matter.
Mamta Kale page 14 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
Thus, the reliance placed on the case of Jamal to my mind is misplaced. I have already noticed that there is no evidence to show that there were two distinct tenancies one each for residential and business purpose, although, two out of the eight rooms might have been used for the business purpose.
26. In S. M. Gopalakrishna Chetty,1 the Supreme Court has refused to accept that a single petition with regard to different tenancies one for residential purpose and the other for non- residential purpose is not maintainable (para 10)
27. Ground of non-user This takes me to the merits of the matter. It has come on record that the defendant is presently residing at Pune alongwith his family and the names of the family members figures in the voters list at Pune. A perusal of the evidence of the defendant shows that the defendant has feigned ignorance on several aspects including whether his name and the names of the family members figures in the voters list of Ward No.106 of Pune Municipal Corporation. He also claimed that he does not know whether the names were included at his instance. The defendant has also admitted that there 1AIR 1975 SC 1750 Mamta Kale page 15 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 were two concerns namely Bharat Construction and Raj and Raj Construction. He claimed that he is a proprietor of Raj and Raj Construction. He further claimed that his brother Nandkishore Shah was the proprietor of Bharat Construction. He stated that he is not aware whether said Bharat Construction in which he claimed that his wife was a partner is still subsisting or it has been dissolved. He claimed that he cannot file the returns of Bharat Construction without the consent of his brother. He stated that he can file the returns of Raj and Raj Construction (of which he claimed to be the proprietor). However, no such returns were ever filed. He also claimed ignorance whether while obtaining the mobile number of his wife, the address at Kothrud Pune was given. He further claimed that he does not know whether there is a landline phone No.5385581 at Kothrud address.
28. P.W.2 Dinanath Chauhan is an employee of the electricity department and stated that the electricity consumption in respect of the suit premises (comprising of eight rooms) was 30 units from February 1991 to February 2000 and 70 units from April 2000 to April 2003. It was claimed on behalf of the plaintiffs that the said consumption was too low for eight rooms which would indicate that there was non-user which is controverted on behalf of Mamta Kale page 16 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 the defendant. Both the Courts below have however chosen to rely on the said evidence.
29. Pandurang Jadhav (P.W.3) is an employee of the Telephone Department. He stated that there was a landline No.223243 in the suit premises which was released in the year 1981. The said connection was disconnected for want of payment of bill on 27 December 2001. In the cross examination, it was brought on record that instead there was a mobile connection obtained.
30. P.W.4 Vijay Dhavale is an employee of the Municipal Council and has stated about discontinuation of the 24 hours water tap connection of which the water charges were paid from 1994- 1995 to 1997 after which the tap connection was disconnected. It is necessary to note that Vijay Dhavale was also examined by the defendant to show that in the municipal survey, the defendant was shown as the occupant. The defendant continues to be in possession of the suit premises i.e. why the plaintiffs are seeking decree of eviction. Thus, merely being in possession or occupation of the premises on the basis of the municipal survey would not be sufficient to show that there is actual user. The ground for eviction is non-user and not non-occupation. The address in the marriage Mamta Kale page 17 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 card of the son of the defendant was also shown at Pune. It is necessary to note that the Courts below have relied upon the evidence to uphold the ground of non-user and in the absence of said findings of fact being perverse or against the weight of the evidence on record, no case for interference is made out in the revisional jurisdiction.
31. At this stage, it would be worthwhile to refer to the Civil Revision Application No.631/2019. The challenge in the said revision application at the instance of plaintiffs is limited. The plaintiffs claim that decree for eviction in respect of the two rooms be granted on the ground of non-user also. The Appellate Court has granted decree in respect of two rooms only on the ground of reasonable and bonafide requirement.
32. A perusal of the impugned judgment would show that the Courts below have relied upon the letters Exh.299 to 303. In the first instance, these letters are of the year 2007, 2009 and 2011. No witness from the office of the Executive Engineer, Medium Project Division, Gondia or PWD Nanded have been examined in support of these letters. That apart, the perusal of the letters indicates that there was no progress in the work contracted and one letter Exh.299 Mamta Kale page 18 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 was about extension of the Bank guarantee. In my considered view, the learned counsel for the plaintiffs is right that if the Courts below have accepted the case of non-user of the six rooms and the fact which had come on record that the plaintiff was residing alongwith his family at Pune, it would not be possible that the two rooms at Pandharpur were being used for the business purpose.
33. The defendant has not produced any documents except the letters Exh.299 to 303 to show that the business of Raj and Raj Construction was still being conducted from the two rooms out of the suit premises.
34. Having regard to the over all circumstances, in my considered view, the decree on the ground of non-user deserves to be granted in respect of all the eight rooms.
35. Reasonable and bonafide requirement In so far as the ground of reasonable and bonafide requirement is concerned, it has come on record that the plaintiff No.1 who is having a Post Graduate Degree in Food Technology was serving in Glaxo Company. Initially, he was serving at Aligarh (Uttar Pradesh) and subsequently at Ponda (Goa) and has since retired on Mamta Kale page 19 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 31 July 2001. The suit is filed on 5 September 2001 i.e. shortly after his retirement. It is now well settled that the reasonable and bonafide requirement of the landlord is not to be equated with dire need. It should be something more than a mere desire. The Courts below have concurrently found that the said requirement is proved in respect of the eight rooms.
36. Although the defendant has claimed ignorance, it has sufficiently come on record that the plaintiffs are natives of Pandharpur. It is true that in the cross-examination conducted in the year 2008, P.W.1 has stated that he was serving at Goa in Hindustan Foods Ltd at Goa. This admission is of the year 2008. There is nothing on record to show that after retirement from Glaxo, the plaintiff No.1 was immediately engaged in Hindustan Foods Ltd. and if so, till when, in as much as the said admission is more than 13 years now. The plaintiffs claimed that they are residing at the place of the father-in-law of the plaintiff No.1 at Pune and desire to settle down at Pandharpur. There is nothing unusual for the plaintiffs, being natives of Pandharpur to desire to settle down at their native place. As noticed earlier, the need of the landlord need not be a dire need.
Mamta Kale page 20 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
37. The claim of the plaintiffs for reasonable and bonafide requirement is opposed on the ground that the plaintiffs have obtained possession of the other rooms in the property and these room are rented out. I have carefully gone through the evidence and there is no acceptable evidence to support such contention. At this stage, it is necessary to note that the defendant has relied upon the admission of P.W.1 that after the death of tenant Kurulkar, the four rooms in his possession were obtained by the plaintiffs. It appears that an application was made for correction of the said part of the evidence as according to the plaintiffs the suggestion given was incorrectly recorded out of inadvertence. In short, according to the plaintiffs, P.W.1 had denied the suggestion that he had obtained the possession of four rooms which were in possession of tenant Kurulkar after the death of said tenant.
38. Mr. Anturkar, the learned counsel for the plaintiffs stated that the said application was not decided which aspect was controverted by the learned counsel for the defendant. The learned counsel for the defendant submitted that the said application was rejected and that order has been confirmed by this Court. The parties have not produced any order by which the said application was either allowed or rejected. It is then necessary to refer to the Mamta Kale page 21 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 chart (Exh.276) prepared by D.W.4 Ashok Deshpande. It has come on record that the D.W.4 was evicted by the plaintiffs. It is claimed that he has grudge and therefore has deposed against the plaintiffs. That part, the witness has admitted hat he has left the said locality in the year 2004.
39. I have gone through the evidence of the said witness as well as the chart (Exh.276) pertaining to the period 1996-97 to 1999-2000 and 2000-2001 to 2004-2005. It is not clearly discernible from the said chart as to what it purports to be. At any rate, D.W.4 Ashok Deshpande cannot have any personal knowledge to such minute details pertaining to the tenants in the suit premises.
40. I have carefully considered the circumstances and the evidence on record including the fact that there is a purported admission of P.W.1 of obtaining of the four rooms which were in possession of the tenant late Kurulkar (the correctness of which is disputed by the plaintiffs). It is necessary to note that it is for the landlord to decide as to how and in what manner the premises are to be put to use and the said circumstance, in my considered view, is not sufficient to set aside the concurrent finding of fact recorded by the Courts below.
Mamta Kale page 22 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
41. A brief reference may be made at this stage to the cases, relied on by the parties.
42. The decision in the case of Vinayak Trimbak Wale has been relied upon to submit that the subsequent events are required to be taken into consideration. In that case, on facts, it was found that one of the tenant who was occupying one room and veranda on the ground floor was evicted in the execution of a decree obtained by the plaintiffs and had got possession of the rooms and veranda from him.
43. In Sugarbai Siddiq, again it was brought on record that during the pendency of the proceedings in the year 1991 itself another tenant of the landlord vacated the premises and the vacant possession was handed over to the landlord from 1991 itself which the landlord had kept locked.
44. In M. M. Quasim, the possession was sought by the plaintiff / landlord on the ground of bonafide requirement. The plaintiff lost interest in the demised premises during the pendency of the appeal as a result of a decree in a partition suit. It was in Mamta Kale page 23 of 26 ::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 ::: 1-cra-125-17 & cra-631-19 these circumstances held that the Appellate Court can take notice of the subsequent events and mould relief accordingly.
45. In Tarachand Shamdasani, on facts, it was found that the plaintiffs had failed to plead and depose in his evidence about the ownership of other premises capable of being used for the requirement pressed into service in the subject suit.
46. In the case of Modern Tailoring Hall, arose out of the provisions of Karnataka Rent Control Act. In the context of Section 21(1)(h) & (j) of the said Act, it was held that the ground of bonafide requirement of landlord does not overlap with the ground of requirement for demolition and reconstruction and the two grounds are mutually exclusive.
47. In the case of Ramniklal Mehta , it was held that Clause (hh) of sub-section 1 of Section 13 of the said Act cannot possibly apply to the case where landlord reasonably and bonafide requires the premises for his own occupation, even if he wants to demolish the premises and to construct a new building on it.
Mamta Kale page 24 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
48. The case of Justice R. A. Mehta, has been cited to show the binding nature of the precedent. Reliance is placed on para 61 in which the Supreme Court has noted that a decision would not lose its authority merely because it was "badly argued, inadequately considered or fallaciously reasoned."
49. In Vasant Mahadeo Gujar, on facts it was found that the respondent landlord had not at all been candid with the Court in so far as the pleadings are concerned.
50. It has come on record that the defendant has obtained two galas in the 'Indraprastha Shopping Centre' which is near the suit premises. The defendant also did not state in his evidence that he had made any attempt to search for the alternate accommodation from the year 2001. Considering the over all circumstances, I find that the issue of comparative hardship also needs to be answered in favour of the plaintiffs.
51. In that view of the matter the Civil Revision Application No.125/2017 is hereby dismissed. Civil Revision Application No.631/2019 is hereby allowed.
Mamta Kale page 25 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::
1-cra-125-17 & cra-631-19
52. Consequently, the decree of eviction in respect of the eight rooms stands confirmed both on the ground of the reasonable and bonafide requirement and non-user.
53. In the circumstances, there shall be no order as to costs.
54. At this stage, the learned counsel for the applicant / tenant seeks continuation of the interim relief for a period of twelve weeks.
Mr. Anturkar, the learned Senior counsel for the plaintiffs / landlord has opposed the prayer. However, considering the fact that the interim relief was operating during the pendency of the revision application, the same is continued for a period of ten weeks from today subject to the condition that the defendant shall not part with possession of the suit premises and shall not create any third party interest in the same.
55. All pending civil applications do not survive and are disposed of, as infructuous.
C.V. BHADANG, J.
Mamta Kale page 26 of 26
::: Uploaded on - 27/05/2021 ::: Downloaded on - 12/09/2021 13:15:49 :::