1 wp6913.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6913 OF 2010 Mrs.Yasmin K. Cooper ...Petitioner vs. Mrs.Yasmin Banu Yunus Abdul Gaffer & Ors. ...Respondents Mr.Aspi Chinoy, Sr.Counsel, Findosh Pooniwal & Ms Ferzana Bahramkamdia i/b Mr.F.Z.B. & Associates for the petitioner Ms Rajani Iyer, Sr.Counsel with Ms Kirtida Chandarana i/b Mahesh Humranwala for the respondent nos.1 to 5 CORAM :A.S.OKA,J. DATE : NOVEMBER 19,2010 P.C.: 1 Heard the learned senior counsel for the petitioner. The petitioner is the defendant in a suit for eviction filed by the respondents under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act,1947 (hereinafter referred to as the said Act. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 3 rd April 2010 passed by the learned Judge of the Court of Small Causes by which the application made by the petitioner at Exh.174 has been rejected. The challenge is also to the order dated 28 th July 2010 passed by the Appeal Bench of the Court of Small Causes by which the order dated 3 rd April 2010 was confirmed in revision application preferred by the petitioner. 2 A suit for eviction has been filed by the 2 wp6913.sxw respondents on the ground of bona fide need incorporated under clause (g) of sub section 1 of section 13 of the said Act as well as on the ground of non user under clause (k) of sub section 1 of section 13 of the said Act. There are pleadings in the suit as regards bona fide need of the respondents. The application at Exh. 174 was made by the petitioner-tenant by invoking section 151 of the Code of Civil Procedure,1908 for dismissal of the suit. The application was made at a stage when the respondents-plaintiffs had closed their evidence and the petitioner had filed affidavit in lieu of examination-in-chief. A contention was raised in the said application at Exh.174 based on the no objection certificate dated 23 rd October 2008 for development of the larger property issued by the Chief Officer of the M.B.R. & R. Board, Mumbai. It was contended that there is a writ petition filed by the petitioner along with other occupants of the property for challenging the said No Objection Certificate. It was contended that in view of the said subsequent event of the respondents obtaining No Objection Certificate, as well as their affidavit-cum-undertaking dated 27 th August 2008, the suit had become infructuous as the ground of bona fide need will not survive. It was contended that now the respondents desire to demolish the building and redevelope the said building and therefore, alleged bona fide and reasonable requirement pleaded has been totally eclipsed. 3 wp6913.sxw 3 The said application was opposed by the respondents. The learned trial Judge rejected the said application. The learned Judge held that the suit cannot be dismissed and the application was devoid of merits. In the revision application filed by the petitioner, Appeal Bench of Court of Small Causes observed that it cannot be said that the suit will not survive only because the respondents have obtained No Objection Certificate for demolishing the building and for redevelopment. It was observed that validity of the said No Objection Certificate has been challenged by the petitioner and other occupants by filing a writ petition which is pending in this Court. Therefore, the Appeal Bench of Court of Small Causes proceeded to confirm the order of the trial Court. 4 The learned senior counsel for the petitioner relied upon the decision of the Apex Court in case of Shipping Corporation of India Vs. Machado Brothers and others (AIR 2004 SC 2093). He invited the attention of the Court to various clauses in the No Objection Certificate and in particular clauses 1,12 and 19. He submitted that the conditions in the No Objection Certificate obtained by the respondents show that all occupants of the building including the present petitioner will have to be re- accommodated in the redeveloped building. He submitted that even assuming that the petitioner is able to obtain a decree, on the basis of the 4 wp6913.sxw No Objection Certificate granted for development, the petitioner will have to be re-accommodated. He, therefore, submitted that by no stretch of imagination the need pleaded in the plaint by the respondent to occupy the suit premises will survive after the said No Objection Certificate was obtained by the respondents in as much as intention of the respondents is not to occupy the suit premises for their personal use but now they intend to demolish the entire building and to re- develop the same by accommodating all the occupants including the petitioner. He, therefore, submitted that bona fide need on the face of the No Objection Certificate stands eclipsed. 5 I have carefully considered the submissions. The application has been made by the petitioner at such a stage when the respondents have already closed their evidence and the petitioner has filed affidavit in lieu of examination-in-chief. It is an admitted position that the occupants in the building including the petitioner has challenged the No Objection Certificate by filing a writ petition and the said writ petition is pending in this Court for final hearing. The present suit has been filed in the year 1996. The material particulars of the alleged bona fide need have been set out in the plaint. Evidence has been adduced by the respondents-plaintiffs on the ground of bona fide need. Considering the fact that there is challenge to the No Objection Certificate, as of today one cannot come to the 5 wp6913.sxw conclusion that No Objection Certificate will be acted upon. The suit for possession filed in the year 1996 on the ground of bona fide need of the members of the family of the respondents has remained pending till the year 2010. During the pendency of the suit in the year 2008, said No Objection Certificate has been granted to the respondents-plaintiffs. As pointed out earlier, whether the No Objection Certificate can be acted upon is a matter of debate as the writ petition is admitted by this Court. Only on the basis of the said No Objection Certificate, one cannot come to the conclusion that the need pleaded by the respondent is completely eclipsed. A writ petition for challenging the said No Objection Certificate has been filed by the petitioner herself and others which is pending in this Court for final hearing. The petitioner is relying upon the same No Objection Certificate for throwing out the suit of the respondents. After the parties adduce evidence, the effect of grant of No Objection Certificate will have to be considered after appreciating entire evidence on record. The Appeal Bench has therefore rightly observed that only on the ground of obtaining No Objection Certificate, one cannot jump to the conclusion that need has been eclipsed. A conclusion regarding existence of the bona fide need can be drawn only after entire evidence is adduced and the same is appreciated by the trial Court. 6 As stated earlier, the application was made at a stage when the petitioner-defendant has 6 wp6913.sxw already filed an affidavit in lieu of examination-in-chief. In the circumstances, this is not a case where interference can be made with the discretionary order passed by the trial Court at a stage when substantial part of the evidence of the parties has been recorded. This is not a case where writ jurisdiction can be invoked. As stated earlier, the suit is pending since the year 1996 on ground of bona fide requirement of the respondents-plaintiffs. It must be however observed that all contentions of the parties on said No Objection Certificate and other documents will have to be kept open which will be agitated before the Trial Court. 7 Subject to what is observed above, no case for interference is made out. Writ Petition is rejected. JUDGE