1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 93 OF 2008 CIVIL REVISION APPLICATION NO. 93 OF 2008 CIVIL REVISION APPLICATION NO. 93 OF 2008 Mr. Joseph Ignatius Drego since deceased through his heirs & legal representatives : 1(a) Mr. Anthony R.Drego & Ors. ... Applicants (Org. Plaintiffs) Versus The Publicity Society of India Ltd. Respondents (Org. Defendants) Mr. A.K.Abhyankar,Senior Counsel, a/w N.M.Asha M.Bhambani, Advocate, for the applicants. Mr.Navin Parekh, Senior Counsel, a/w Mr. Kishore Jain & Mr. S.M.Chauvan, i/b. M/s.Gijoriwala & Co.Advocates for the Respondents. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 12th February, 2008. DATE : 12th February, 2008. DATE : 12th February, 2008. P.C. P.C. P.C. 1. Heard learned Counsel for the parties. 2. The revision-applicants are the original 2 plaintiffs and the respondent is the original defendant. The plaintiffs filed the suit for eviction and possession on the ground of reasonable and bonafide requirement for self occupation in view of the large number of the family members. When the suit was filed, the family consisted of the original landlord-plaintiff No.1 Joseph Rego, his wife, who is plaintiff No.2, one unmarried son, and 5 daughters. All the members of his family were residing on the ground floor of the building. The building consisted of three floors, each floor being one flat and consisting of 3-bed rooms, hall and kitchen admeasuring about 1290 sq. ft. According tot he plaintiffs, this was not sufficient for their needs.The suit was contested by the defendant. During evidence it was admitted by the witnesses examined by the plaintiffs that during the pendency of the suit, the first floor was also got vacated from another tenant and these two floors were available to the family. During the said period, one son and four daughters were also married. Three married daughters are living abroad, but according to the plaintiffs, they intend to come back to India and settle in Mumbai and for them accommodation is required. The son, who is now married, has also a son. One daughter is living with her husband and two children in the house of her mother-in-law consisting of about 14 members and it is difficult for them to stay in that 3 house. Therefore, she also wanted to be accommodated in the suit house. The evidence of P.W.2 - Susane, who is unmarried daughter, reveals that relations between her mother and brother are strained. Taking into consideration these circumstances, the trial Court decreed the suit accepting the plea of the plaintiffs about reasonable and bonafide requirement. The defendant preferred an appeal. That appeal was allowed by the Appellate Bench of the Small Cause Court. Hence, the original plaintiffs have filed the present Revision Application. 3. From para 13 of the impugned judgment passed by the Appellate Court, it appears that the Appellate Court was swayed away by the fact that the subsequent developments about the flat which came in possession of the plaintiffs’s family, the marriages of the daughters, the requirements of the married daughter residing in Mumbai, the requirement of the three married daughters who are living abroad, but who intend to come to India and about the strained relationship between the plaintiff and her married son were not pleaded inspite of sufficient opportunity available to the plaintiffs. Naturally, in view of this, the appellate Court was not willing to consider the evidence led by the plaintiffs in respect of these circumstances. It is material to 4 note that on the basis of the said evidence, the trial Court had decreed the suit but the evidence was not considered by the appellate Court on the ground that there was no pleading in respect of these facts and as a result the decree passed in favour of the landlord came to be set aside. If all these aspects are not taken into consideration, the possibility of miscarriage of justice cannot be ruled out. It is material to note that the defendant is a public limited company and the suit house was taken on leave and license way back in 1970 and its employees are residing in the suit house. 4. In my considered opinion, in the interest of justice, it will be necessary to remand the matter back to the appellate Court with liberty to the plaintiffs to make appropriate amendment in the plaint about all subsequent events and the change in requirements and after that the appellate Court may consider the evidence on its own merits and come to its own conclusions. I do not intend to remand the matter back to the trial Court because on the basis of the evidence, the said events have been considered by the trial Court and decreed the suit. The appellate Court will consider that evidence and to find out whether the plaintiffs have proved their reasonable and bonafide requirement of the suit premises. 5 5. In view of the above circumstances and in the interest of justice, the Revision Application is allowed. The impugned judgment is hereby set aside. Appeal No.193 of 2003 is hereby remanded back to the appellate court with liberty to the plaintiffs to make appropriate amendment about the subsequent events which occurred after the filing of the suit and thereafter the appellate Court shall consider the evidence led by the parties and come to its conclusions independently of the findings of the trial Court. The plaintiffs shall make appropriate amendment in the plaint within two weeks from the date of receipt of the writ. If the defendants so desire, they may also be given opportunity to make amendment in the written statement or file additional written statement within 2 weeks thereafter.Meanwhile, inspite of this order, the execution of the decree passed by the trial Court shall remain stayed till the decision of the appellate Court. The appellate Court shall hear the appeal and dispose of the same, as far as possible, till the end of June, 2008. 6. At this stage, the learned Counsel for the respondent-defendant makes a request to stay this order for four weeks. In the interest of justice, this order shall remain stayed for a period of four weeks from this 6 date. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)