IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO 8202 OF 2008 Smt. Kanchanbai Wd/o. Manekchand .. Petitioners V/s Dr. (Smt) Chitra Kanga Sabhapathy .. Respondent Mr. M.M. Shetty for Petitioners Ms. Geeta Shastri for Respondent CORAM : A.M. KHANWILKAR, J DATE : 03rd February, 2009. P.C.: 1. Heard counsels for the parties. I find no reason to interfere in exercise of writ jurisdiction under Article 227 of Constitution of India. 2. The argument of the Petitioners is that the Plaintiff had asserted before the Trial Court that the Defendant was unlawful sub-tenant. Therefore, it was not open for the Appellate Court to allow the 1 Plaintiff to elect alternative plea in the suit which proceeds on the basis that the Defendant was Lawful sub-tenant of the Plaintiff. There is no substance in this argument. The plaint if read as a whole, though assertion was made that the Defendant is unlawful sub- tenant, at the same time, it is asserted in the alternative that even otherwise, the Plaintiff has terminated his tenancy. The matter before the Trial Court also proceeded on that basis. The Plaintiff relies on the Deed of Assignment consequent to which has acquired right in respect of suit property. The Defendant / Petitioner, on the other hand, asserted that he was inducted by Nijamuddin in the suit premises. However, no evidence to substantiate that fact was produced by the Defendant, as has been noted by the Trial Court. The Trial Court on that finding proceeded to opine that the Defendant was unlawful sub-tenant, but when the matter went before the Appellate Court, the Appellate Court permitted the Respondent / Plaintiff to elect their action against the Defendant on the basis that he was lawful sub-tenant and then proceeded to decide the matter on the case made out by the Respondent / Plaintiff. In that context, the 2 matter has been examined by the Appellate Court and decree of possession passed against the Petitioner on the ground of bonafide and reasonable requirement. 3. In so far as the finding of fact recorded by the Trial Court about bonafide and reasonable requirement of landlady and also on the factum of comparative hardship, the same is founded on tangible material and needs no interference. The argument of the Petitioner, to overcome the said finding of the fact is that, the Plaintiff herself did not enter the witness box and instead her husband deposed on the matters which could be deposed only by the Plaintiff to establish her bonafide and reasonable requirement. This argument is devoid of merit. It is well established position as expounded by the Apex Court in AIR 1999 SC 3089 (Smt. Ramkubai Vs Hajarimal Dhokalchand Chandak), that the landlord need not personally enter the witness box to depose in the matter of bonafide and personal requirement but it is in enough if a person who has personal knowledge about these facts deposes before the Court to substantiate the case of the Plaintiff. In 3 present case, Plaintiff's witness is none other than her husband who had personal knowledge about all the relevant facts. The fact that he had personal knowledge of matters on which he has deposed was never challenged even in cross-examination as has been rightly pointed out by the Appellate Court. Taking any view of the matter, therefore, no case for interference is made out. Accordingly, Petition stands dismissed. 3. At this stage, Counsel for the Petitioner seeks four weeks time to enable the Petitioner to carry the matter in Appeal. There is no difficulty in acceding to this request. It is ordered that decree of eviction shall not be given effect for a period of four weeks from today on condition that Petitioner and all adult members associated with the Petitioner in business conducted from the suit premises shall file undertaking in this Court within one week from today and pay all the outstanding dues or deposit all outstanding dues within the same time, failing which it will be open to the Respondent to proceed with execution of decree. 4 (A.M. KHANWILKAR, J) 5