cra77 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRA/77/2011 ROBINDERSING MOTISING THAKUR .. PETITIONER. VERSUS KESHARBAI BRIJLAL JAISWAL ..RESPONDENTS. ... Advocate for Petitioner(s) : Mr.Gaikawad Pandurang M. ... CORAM : S.S. SHINDE, J. Dated: July 13, 2011 PER COURT: This civil revision application has been filed challenging the judgment and order dated 8th December, 2010 passed by the District Judge-2, Aurangabad in R.C.A. No.331 of 2009 thereby confirming the judgment and order dated 30th October, 2009 passed by the C.J.J.D., Aurangabad in Rent Suit No.22/2007. cra77 2 2 The Counsel appearing for the revision applicant submits that in absence of sufficient pleadings in the plaint about the bona fide need of the plaintiff, the trial Court as well as the appellate Court have recorded findings that the family of the plaintiff consists of 5 to 6 members. In fact, the plaintiff has only one son and one daughter as stated by the PW 2 before the Court below. The plaintiff has not given any proof showing how many members are in the family of the plaintiff and they are residing in the same premises. The learned Counsel further submits that the issue of comparative hardship was subsequently framed and without having any evidence about comparative hardship, the Court has concluded in favour of the plaintiff. It is further submitted that the present applicant who is original defendant is serving in a private establishment. He has son and daughter and they are taking education. Since it being rainy season, it will be impossible for the applicant / defendant to move from the suit premises to any other premises. He further invited cra77 3 my attention to the evidence of the witness to contend that in absence of any specific statement or averment in the plaint, perverse findings are recorded by the Courts below that the family of the plaintiff consists of 5 to 6 members. He further submitted that all the properties which are owned by the plaintiff - respondent herein are not disclosed before the Court in the plaint and, therefore, on that ground also the civil revision application requires to be entertained. In support of his contention, he placed reliance on the reported judgments of this Court in the cases of Tarachand Hassaram Shamdasani vs. Durgashankar G. Shroff & others (2004(Supp.) Bom.C.R. 333) and Sitaram Narayan Shinde & others vs. Ibrahim Ismail Rais & others (2005(2) Bom.C.R. 427), more particularly, Head Notes (C), para 8 thereof. Therefore, the learned Counsel for revision applicant would submit that the civil revision application may be entertained. 3 I have given due consideration to the cra77 4 submissions advanced by the learned Counsel for the revision applicant and also perused the impugned judgment and order passed by the Courts below and the evidence produced on record by the Counsel for the applicant by way of filing civil application. Upon perusal of the paragraph 30 of the judgment of the Jt. C.J.J.D., Aurangabad, it appears that after taking into consideration the entire evidence which was brought on record by the parties, the trial Court has concluded that the plaintiff is in bona fide need or requirement of the suit premises and comparative hardship would be caused to the plaintiff only if decree is refused. The said findings have been confirmed by the District Judge, Aurangabad. In para 19 of the judgment, the appellate Court has considered the evidence on the point of bona fide need and after appreciating the evidence on record, has reached to the conclusion that the plaintiff wants to shift her son in the suit premises and the defendant has admitted in his cross- examination that the plaintiff is residing in two rooms. The Court has also recorded finding that the cra77 5 defendant has also admitted the fact that the plaintiff is having one son who is unable to talk. 4 Upon perusal of the findings recorded by the Courts below, it appears that the Courts below have recorded the findings that the son of the plaintiff is not able to talk and, therefore, the plaintiff wants the suit premises. It is for the landlord to tell what is the bona fide need or requirement of the landlord and both the Courts have appreciated the evidence brought on record and have come to the conclusion that the son of the plaintiff is not able to talk and the plaintiff wants to move their son to the premises, which is the subject matter of the suit. As stated earlier, in cross-examination, the defendant has admitted that the son of the plaintiff is not able to talk. The point of comparative hardship has been considered by the appellate Court in para 21 of the impugned judgment and taking into consideration the cra77 6 evidence led by the parties, the Court held that the plaintiff will face comparative hardship if the decree is not passed in her favour. In para 28 of the judgment of the trial Court, the point of comparative hardship has been considered. It is observed that nothing has come on record regarding the hardship, if any, caused to the defendant if decree is passed in favour of plaintiff. So, the point of comparative hardship was considered and nothing was placed on record by the defendant - present applicant in that regard. Therefore, in absence of any evidence in regard to comparative hardship to the defendant, both the courts below were correct in concluding that the plaintiff will face more hardship if decree is not passed in her favour. 5 Taking overall view of the matter, in my opinion, the findings recorded by both the Courts below are not perverse so as to disturb the decree passed by the trial Court and confirmed by the District Court. Merely because the appellate Court at one cra77 7 place in the judgment observed that there are 5 -6 members of the family of the plaintiff, it would not be sufficient to reverse the entire judgment and decree passed by the Courts below. Even if the contentions of the applicant are taken as it is that there is one son and one daughter to the plaintiff, the family would certainly consist husband, wife, son and daughter i.e. four members. Therefore, taking over all of the matter, in my opinion, the view taken by both the Courts below is in consonance with the evidence brought on record. There is no perversity in the findings recorded. 6 Hence, the civil revision application stands rejected. The prayer of the revision applicant that it is practically impossible for the defendant / applicant to find out some other accommodation in this rainy season cannot be considered. Once the findings of the courts below are confirmed by this Court, in my cra77 8 opinion, passing any further order is not just and proper. Hence, such prayer of the revision applicant cannot be entertained. [ S.S. SHINDE ] JUDGE. ... PLK/*