1 WP 2146.2004 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2146 OF 2004 Ranchoddas S/o Ramdas Lohar Age : 62 Yrs., Occ. Labour, R/o : Municipal House No. 220, Shivaji Nagar, Jalgaon. .... PETITIONER V E R S U S Chandrashekhar S/o Pandurang Zende Age : 50 Yrs., Occ. : Railway service, R/o : Marai Building, Shivaji Nagar, Bhusawal, Dist. : Jalgaon. ..... RESPONDENT Mr. L.V.Sangit, Advocate holding for Mr. V.J.Dixit, Advocate for the petitioner. Mr. Girish Rane, Advocate for Respondent. CORAM : S.V. GANGAPURWALA, J. DATE : 19/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2 WP 2146.2004 - [ J ] 2. The present respondent has instituted Suit for recovery of rent and possession in respect of premises bearing Municipal House No. 220 CTS No. 2168/148 situated at Shivaji Nagar, Jalgaon on the ground that the respondent is the landlord and the present petitioner is the tenant of one room in the said house admeasuring 10 ft. x 12 ft. on an agreed rent of Rs. 3.50 Ps. plus 44 Ps. tax. The petitioner is a defaulter, so also, the present respondent requires the house for its bonafide personal use. The trial court decreed the Suit holding that the respondent – landlord requires the suit premises for his bonafide personal use and if the decree for eviction is refused, the landlord would suffer greater hardship. It negatived the contention of the landlord regarding the theory of default. Aggrieved by the decree passed by the trial court, the defendant preferred Appeal before the District Court. The District Court dismissed the Appeal confirming the findings of the trial court. The defendant has assailed the said Judgment in the present Writ Petition. 3. Mr. Sangit, Advocate holding for Mr. V.J. Dixit, learned Sr. Counsel for the petitioner submits that the respondent has failed to prove that he is the landlord. Admittedly, the petitioner had taken the premises on lease from the father of the present respondent. The present respondent can not claim to be the landlord. The Courts below committed an error in holding the respondent to be the landlord only on the basis of the money orders sent to the respondent. The said 3 WP 2146.2004 - [ J ] money orders were sent after the issuance of the notice and filing of Suit. The same would not be relevant to determine the issue of the respondent being the landlord. The learned counsel submits that there is no independent evidence to show that the petitioner had accepted the respondent as landlord. Even there is no notice of attornment of tenancy. 4. The learned counsel further contends that the evidence on record clearly establishes that the respondent is residing with his father at Chalisgaon. In such circumstances, if a decree for eviction is not passed, the respondent would not suffer any hardship. On the contrary, the petitioner would suffer hardship if the decree of eviction is passed. This aspect should have been considered by the Court. 5. Per contra, Mr. Rane, the learned counsel for the respondent submits that though in the pleadings the petitioner had raised a dispute about the present respondent not being the landlord, but, in the evidence, no suggestion was given to the respondent that he is not the landlord. Money orders were sent to the respondent by the petitioner towards the rent. While preferring Appeal before the District Court, the petitioner had not even raised the said ground in his Appeal memo that the respondent is not a landlord. Even in his deposition, the petitioner never stated on oath that the respondent nos not the landlord. As such, the petitioner is estopped by conduct from disputing 4 WP 2146.2004 - [ J ] the status of the present respondent as the landlord. The learned counsel relies on the Judgment of the Apex Court in the case of Smt. Anar Devi V/s Nathu Ram reported in 1994 AIR SCW – 2637. 6. The learned counsel further contends that there is evidence on record to show that the respondent is serving in Railway department at Bhusawal. He could not get the residential quarter and so has to stay in rented premises paying rent of Rs. 60/- per month. Thereafter, the respondent was required to vacate the said premises and was compelled to reside at Chalisgaon with his father and from Chalisgaon he has to do up and down every day at Bhusawal. According to the learned counsel, the respondent would suffer more hardship if the decree of eviction is refused. More over, there are concurrent findings of facts and this Court in its writ jurisdiction under Article 227 of the Constitution of India would not re-appreciate the same. 7. No doubt, in the pleadings, the petitioner had raised a ground that the respondent is not the landlord. But, it has been discussed by the Courts below that the petitioner has paid rent through money orders to the present respondent on various occasions in the year 1989. Even the petitioner has not given suggestion to the respondent that he is not the landlord nor has led any evidence to show that he has never treated the respondent as landlord. More over, the petitioner while filing the Appeal before the District Court, 5 WP 2146.2004 - [ J ] nowhere raised the ground disputing the status of the respondent as the landlord. In a way give up the said challenge to the status of the respondent as land lord. In view of that, there is no error committed by the Courts in holding that the present respondent is the landlord of the present petitioner. 8. The evidence shows that the respondent does not have any other house premises apart from the two ( 2 ) rooms in the said municipal house No. 220. The respondent is serving at Bhusawal. There is also evidence on record to show that the respondent was required to pay Rs. 60 per month for his residence and thereafter he had to vacate the said premises and had to shift to Chalisgaon to reside in the house of his father and from that place he had to go to Bhusawal every day to attend his service. In view of the fact that the respondent is serving at Bhusawal and he has no place for his residence, there is no error committed by the Court in coming to the conclusion that the respondent needs the suit premises for his personal bonafide use. 9. The next question would be about the hardship. When the hardship that would be caused to the landlord and the tenant is similar, then the decree for eviction is required to be passed. In the present case, it is on record that the respondent landlord has no other premises for his residence in the city of Jalgaon and he is serving at Bhusawal. The respondent would naturally suffer hardship if the decree for 6 WP 2146.2004 - [ J ] eviction is not passed. 10. In light of the above, I do not find any error committed by the Courts below while passing the decree for eviction in favour of the respondent. 11. In the result, the Writ Petition is dismissed. 12. At this stage, Mr. Sangit, the learned counsel for the petitioner seeks time to vacate the suit premises on the ground that the petitioner is 85 years of age and it will not be possible for the petitioner to get alternate accommodation in quick time. In view of that, Mr. Sangit, the learned counsel seeks one year’s time to vacate the suit premises. 13. Mr. Rane, the learned counsel for the respondent strenuously opposes the said prayer and contends that the respondent is prosecuting the matter since 1989. 14. Taking into account the fact that the petitioner is residing in the suit premises since long time and also the fact that the petitioner is aged 85 years, I feel it appropriate to grant nine ( 9 ) month’s time to the petitioner to vacate the suit premises. The petitioner shall vacate the suit premises on completion of nine ( 9 ) months from today i.e. on 7 WP 2146.2004 - [ J ] or before 30/06/2012. The said time is granted on condition that the petitioner furnishes an undertaking to this Court that the petitioner shall not create any third party interest or encumbrance over the suit property, shall pay the amount of rent as damages to the respondent regularly and shall vacate the suit premises and hand over the vacant possession of the same to the respondent on or before 30/06/2012. The said undertaking to be filed within the period of four ( 4 ) weeks from today. 15. Rule is accordingly discharged. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 2146.2004 - [ J ]