CRA.793-09 & 794-09 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 793 OF 2009 Ganesh Ranmal Shah .. Applicant Vs. Mohammed Ali Gulam Hyderkhan ..Respondent AND CIVIL REVISION APPLICATION No. 794 OF 2009 Ghela Harakchand Shah & Ors. .. Applicants Vs. Mohammed Ali Gulam Hyderkhan ..Respondent Mr. A. Y. Sahhan, Sr. counsel a/w Ms. Ushajee Peri, for the Applicants. Mr. O. R. Tiwari, for the Respondents. CORAM : R. C. CHAVAN, J. DATED : JULY 29, 2010. P.C. : 1. Both these revision applications are directed against the judgments delivered by the appellate Bench of the Court of Small Causes, upholding findings, given in two suits by the learned Judge of CRA.793-09 & 794-09 - 2 - the Court of Small Causes, holding that applicants herein, uncle and nephew, are liable to be evicted from the two shop Nos. 1 and 2, owned by respondent No.1, on the ground that the respondent No.1 had proved bona fide need of the premises to meet the needs of his family, comprising of his brother and 8 grown-up sons. The learned Judges of the trial Court as well as Appellate Bench have also considered the question of comparative hardship and have held that greater hardship would be caused to the landlord by refusing the decree of ejectment and therefore, passed the decree of ejectment. These concurrent findings are questioned by filing the present revision applications. 2. I have learned heard the learned senior counsel for the applicants, who has taken me through pleadings, evidence and the judgments of the Courts below. According to the applicants/tenants, Shop Nos. 7 and 8 which were in possession of another tenant Pitale became available to the landlord, and landlord in fact inducted a Chinese, Mr. Chau Lau, in those shops. This happened after the suit was filed, therefore, they had inserted such a plea in paragraph 9A of the written-statement. According to the landlord, it was Pitale who had inducted Chau Lau as sub-tenant. The learned counsel for the applicants CRA.793-09 & 794-09 - 3 - states that the respondents ought to have chosen to evict sub-tenant of tenant Pitale rather than running after the applicants. It will not be open to the tenants to raise such a contention as the landlord had already filed suit against these applicants before Pitale inducted Chau Lau in the suit premises. Tenants cannot tell the landlord to pursue a cause of action which becomes subsequently available or go in for two in bush, giving up one in hand. This is presuming that the premises of Pitale, have, in fact become available. 3. The learned counsel for the applicants submitted that in view of the judgment of the Supreme Court in the case of – Maqboolunnisa Vs. Mohd Saleha Quaraishi [ 1998(5) Bom. C. R. 721] , the Courts below should not have granted the decree of ejectment on the ground of bona fide need since the landlord must be held to be in possession of said shops of Pitale. This is on the assumption that the landlord had inducted the Chinese individual in Shop Nos. 7 and 8 after getting possession from Pitale, for which there is absolutely no evidence, except bare allegations of the tenants/applicants. Therefore, this judgment is not helpful to the applicants. 4. The learned counsel for the applicants, next submitted that CRA.793-09 & 794-09 - 4 - the need set up was for the nephew of the landlord who had requisite qualification only in the year 2002 and that his need could have been satisfied by occupying one of the two shops and so it was not clear as to why the tenants from both these shops i.e. uncle and nephew were liable to be thrown out. Relying on the judgment of the Supreme Court in the case of – Rehman Jeo Wangnoo Vs. Ram Chanu [1977 DGLS (Soft.) 344 = 1978(3) SCC 539 : 1978 AIR (SC) 413], learned counsel for the applicants submitted that the learned trial Judge as well as the Appellate Bench should have considered the comparative hardship from this point and partial eviction i.e. eviction of one of the two could have been held as sufficient. It has to be noted that the landlord had simultaneously filed the suits against both the tenants. It is not that he had sought ejectment of either of them stating that ejectment of one of them would satisfy his need. It is contended on behalf of the landlord that family of the landlord consists of eight grown up children who are required to be set up. Therefore, it cannot be said that need set up by the landlord was only of one shop and therefore, by evicting one of the two applicants, the need would have been satisfied. 5. As regards the comparative hardship, suffice it to observe CRA.793-09 & 794-09 - 5 - that a tenant cannot expect any protection from eviction if he does not search for premises for himself, after at least a suit claiming possession from the such a tenant on the ground of bona fide need is filed. It would be for the tenant to search for accommodation for himself and if he does not make any arrangement, he has to blame himself. Therefore, even on this ground, the the finding of fact recorded by both the Courts below, cannot be faulted. There is no perversity in the findings recorded, as the findings are based on the evidence, which has been correctly appreciated by the Courts below. In view of this, both the revision applications are rejected. 4. At the request of the learned counsel for the applicants, the decree may not be put to execution for a period of eight weeks, though the learned counsel for the respondent/landlord strongly opposes, on applicants furnishing usual undertaking within a period of two weeks. Sd/- [R. C. CHAVAN, J.]