1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION CIVIL REVN. APPLN. NO. 722 OF 2009 Mr. Mohindersingh Kahansingh Verma. ... Applicant. V/s. Mr. Homi Burjorji Dick. ... Respondent. Mr. D.B. Sawant for the Applicant. Mr. T. Dahibawkar i/b. Dahibawkar & Co. for the Respondent. CORAM : S.C. DHARMADHIKARI,J. DATED : 18th MARCH 2010. P.C. :- This is a Revision Application challenging the Judgment and Decree of the Lower Appellate Court reversing that by the Trial Court. By the order and decree under challenge, the Lower Appellate Court has directed the Petitioner – Defendant to vacate and hand over possession of the Suit premises to the Plaintiff – landlord. 2. Mr. Sawant, learned Advocate appearing for the Petitioner – Tenant raised two fold contentions. His first contention is that the Suit premises were not genuinely and bonafide required by the landlord. Mr. Sawant submits that Suit premises are commercial premises situate at Dadar, Mumbai. These premises are in possession of the Petitioner – Tenant since 1990. The Landlord, on his own showing, had filed a Suit for possession against another tenant one Nirmala Sachdev. However, the landlord settled the claim with the said Nirmala Sachdev and allowed her to continue 2 in possession by accepting a sum of Rs.8,00,000/- from her. The landlord had made a similar offer to the Petitioner – Defendant. The landlord never required the suit premises for himself or for his family members but he wanted to make money from the same. Therefore, he made an offer to the Petitioner – Defendant and when the talks are fizzled out, the landlord turned around and filed this Suit for possession. The landlord does not dispute that the offer was made. He does not dispute the figure of Rs.4,00,000/- and he does not dispute that the talks of settlement were going on. In such circumstances, and particularly, when the larger area in possession of said Sachdev (200 sq.ft.) is given up, then, the claim of the landlord on the basis of the present premises which admeasure a meager 96 sq.ft. cannot be said to be genuine and bonafide. The Trial Court therefore, rightly dismissed the Suit and Lower Appellate Court interfered with the said decree erroneously and by ignoring this vital aspect of the matter. 3. In any event, according to Mr. Sawant, his second submission is equally well founded. He submits that the landlord filed the Suit and at the relevant time, he was 82 years of age. Presently, he is 90 years of age. He filed this Suit on the basis that his son in law is a qualified Engineer and would commence engineering business from the Suit premises. However, the son in law has expired. The grand son of the landlord has gone abroad. In such circumstances, how this old gentleman will set up any business and what is the nature of that business is all vague and unclear. For this reason as well, the Lower Appellate Court should not have interfered in the Judgment 3 of the Trial Court. Therefore, his submission is that the Judgment and Decree under challenge be set aside. 4. It is not possible to accept any of these contentions for more than one reason. It may be true that the landlord had settled his claim in respect of a larger area with another tenant. However, he cannot be faulted for proceeding with the claim for eviction against the Petitioner – tenant in respect of a smaller area when the smaller area is on the ground floor and more convenient for the landlord’s business. While it is true and unfortunate that the landlord lost his son in law but considering that the landlord contemplates setting up of a consultancy business and states that this smaller area on the ground floor would be convenient for him, then, no malafides could be attributed to him merely because of his advanced age and the grandson being abroad. In that behalf, by reason of the unfortunate subsequent events, he cannot be said to have lost his right of seeking possession. It may be further true that the landlord has only his grand son now, who is presently abroad. However, when the Lower Appellate Court has found on the basis of the material produced and evidence led that the landlord though 90 years of age is fit to carry on some business activities and further, that the landlord requires premises because he has to look after himself, his wife and his widowed daughter so also grand son, then, the Lower Appellate Court cannot be faulted for interfering with the order of the Trial Court. In my view, the Lower Appellate Court has not acted with any material irregularity resulting in manifest injustice nor its order suffers from perversity so as to call interference in my 4 Revisional jurisdiction. The contention that the landlord settled his claim in respect of the larger area and therefore is only interested in recovering money is also not well founded in the present set of circumstances, it may be that the landlord may have made an offer for settlement but the settlement offer could not fructify and there was nothing agreed by the parties. The landlord has not suppressed this fact and has stated that at one time there was settlement so that he could have recovered a sum of Rs.12,00,000/- from both tenants out of which funds he wanted to acquire another property for his business. However, he could not acquire that area/property in the vicinity and ultimately, found it convenient and reasonable to commence some business activity in the Suit premises. Without anything more being placed on record, this version of the landlord cannot be said to be not genuine or bonafide. 5. The landlord having come with clean hands and stated all facts pertaining to his family so also other premises allegedly available to him, the Lower Appellate Court rightly believed him and reversed the decree of the trial court dismissing the landlord’s Suit. 6. For the reasons afore-recorded and finding that the jurisdiction has not been exercised in such a manner so as to term the Judgment and Decree as perverse, there is no alternative but to dismiss this Revision Application. 7. Reliance by Mr. Sawant on the Judgment of the Supreme Court and the learned Single Judge of this Court reported in (2001) AIR (SC) 2655, 2001-SCC-5-705, 5 2001(TLS) 34848 S.C. (Deena Nath v/s. Pooran Lal) and 2005 (2) Mh.L.J. (Sitaram Narayan Shinde & Ors. V/s. Ibrahim Ismail Rais & Ors.) is misplaced. On facts, the Court found that the landlord’s requirement was not genuine and bonafide. The requirement in one case was obviously not bonafide as it was found that the only desire was to seek enhancement in the rent. In the second case, in respect of residential premises there was no pleading at all. The basic pleading being lacking, this Court found that the decree cannot be sustained. 8. Both Judgments are distinguishable on facts and therefore, inapplicable. Consequently, the Revision Application fails and it is dismissed. No costs. 9. However, at the request of Mr. Sawant, and to enable him to challenge this Judgment in the higher Court, the execution of the subject decree is stayed for a period of three months, however, the stay is on the condition that the Petitioner – tenant who is stated to be in possession shall not create any third party rights or induct anybody else in possession of the Suit premises. He shall continue to abide by the same terms with regard to compensation and if any order from the higher Court is not obtained within this period, then, the landlord would be entitled to recover possession. (S.C. DHARMADHIKARI,J.)