ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.1123 OF 1992 PETITION NO.1123 OF 1992 PETITION NO.1123 OF 1992 Shri F.B.Shama, (Since deceased by his L.Rs.) ...Petitioners. Vs. Smt.Lilabai J.Peter, (Since deceased through her L.Rs.) ...Respondents. Mr.S.M.Kamble, i/by Mr. A.P.Mundargi for the Petitioners. Mr.V.S.Gokhale for Respondent Nos. 1(a), 1(d), 1(e) and 1(f). CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 21st November, 2008. : 21st November, 2008. : 21st November, 2008. P.C. P.C. P.C. . The Petitioners are plaintiffs-landlords who are challenged the impugned order dated 23/08/1991 whereby the Appeal filed by Respondent-Tenant, the Additional District Judge, Pune reverse the Judgment and Decree passed by the learned Small Causes Court in R.C.S No.206/1983 whereby after considering the material placed on record, the Trial Court directed, to deliver the possession of the premises with costs on the ground that the Respondent tenant has defaulted and the Petitioner landlord need the premises for his bonafide occupation, by further observing that the ( 2 ) greater hardship will cause if such decree is refused to plaintiff-landlord. However, the Appellate Court reverse the same on both the counts. 2. So far as the bonafide need is concerned, there is an ample material on record to show that at the relevant time, the landlord family was consists of 5 members which includes 2 sons. The learned Appellate Court observed that the Plaintiff- landlord’s bonafide need cannot be considered, as he has two rooms already in possession. The requirement is that the landlord owner of the premises if wants to use particular premises unless proved otherwise, the said need to be respected and specially when there is a material that the family is consists of 5 members. This facet according to me just cannot be overlooked on the ground of comparative hardship. Once, the foundation is laid and proved about the need of landlord, the comparative hardship though necessary to consider but in no way prevail over the bonafide need of the landlord. In the present case, the trial Court rightly come to a conclusion that the need of landlord is genuine. This finding according to me ought not to have been disturbed by the Appellate Court on the ground of comparative hardship and further by ( 3 ) observing that the two rooms are sufficient for the landlord to accommodate his 5 members of the family. It is desirable the landlord which should prevail and wish and desire of third person. Having once observed above, I am inclined to reverse the order as passed by the lower Appellate Court vide impugned order dated 23/08/1991. 3. So far as the arrears of rent is concerned, there is a clear finding given that on the first date of hearing, the appellant has deposited the amount which is excess in arrears of rent. Therefore, there is no reason to interfere with the same so far as on that part. 4. However, having once convince, so far as the bonafide need is concerned that itself is sufficient to in the facts and circumstances of the case to quash and set aside the order dated 23/08/1991 and it is set aside accordingly. The Judgment and Decree passed by the learned Small Causes Court in Suit No.206 of 1983 is hereby maintained with the above extent, bonafide need as observed above. 5. The learned counsel appearing for the Petitioner ( 4 ) praying for stay of effect and operation of the Judgment which I am inclined to grant for two months provided the Petitioner should not create any third party right or interest in the suit property till the next date. 6. The Petition is accordingly, allowed. Rule made absolute. . No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)