1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.802 OF 2009 Kirit G. Shah ..Applicant V/s. Smt.Shantaben Jadavji Satra ..Respondents Mr.H.Toor i/b.Mr.Rakesh K. Singh, Advocate, for the Applicant Mr.P.S.Dani i/b.Ms J.P.Thakkar, Advocate, for Respondent No.1 CORAM : R.C.CHAVAN, J. DATE : 7TH JULY, 2010 P.C. . This Civil Revision Application is directed against the concurrent findings of the learned Judge, Court of Small Causes and Appellate Bench of the said Court whereby the Courts held that the Applicant was liable to be evicted on the ground of bona fide need made out by Respondent No.1. I have heard the learned Counsel for the Applicant at more than adequate length. The learned Counsel for the Applicant first submitted that the landlord 2 had sought possession of the premises principally on the ground that she is aged and suffering from so many ailments which makes her impossible to climb up or down the stairs and prevents her from visiting temple. She had claimed in the plaint that she used to visit temple every day and in the evidence she stated that she had to visit the temple approximately once in a week. Her witness stated that she had not visited the temple from so many years. Thus, according to the learned Counsel for the Applicant, the evidence is contradictory. The Courts below should have held that the need put forth by Respondent No.1 was not bona fide. 2. No comments are necessary, if the Respondent No.1 had pleaded that she used to go to the temple every day, and stated in evidence that she had to visit the temple approximately once a week speaks volumes of her inability to visit the temple as she has 3 to climb stairs. The statement by her son-in- law that she had not visited temple for so many years also cannot be read against the Respondent. It would be necessary to infer that the Respondent is prevented from visiting temple because of her ailments. 3. The learned Counsel for the Applicant states that the Courts below should not have considered the medical reports since doctor was not examined. He has rightly submitted that a person who gives opinion has to be examined. But that does not mean that the person who suffers a handicap is incompetent to depose that she is unable to climb stairs. 4. The learned Counsel for the Applicant next submitted that the Respondent had given notice in the year 1990 and 1995 but had not stated about bona fide need & so the need set up by the Respondent is not bona fide. On the other hand, this conduct will show that though 4 she had issued notice in the year 1990 and 1995 for non-payment of rent, since cause of action might have been satisfied she did not rush to the Court on other imaginary grounds. This does not mean that her claim is not bona fide. It shows that she is not filing proceedings to some how evict the Applicant. 5. The learned Counsel for the Applicant next submitted that the learned Judge of the Courts below should not have held that the premises at Borivali are available to the Applicant, on the basis of notice served upon the Applicant at Borivali address, which had been replied by the Applicant on 4th May, 1996 'without prejudice'. The learned Counsel for Respondent No.1 submitted that the term 'without prejudice' at the top of the page has to be read in the context of the fact that the Applicant had forwarded without prejudice a cheque of Rs.940.50/- in terms of the demand made. There words were not in the context of 5 the address, Whether the premises at Borivali were taken on rent or are owned by the tenant is not relevant for deciding as to whether the tenant had other premises available to him where he could shift. 6. The contention of the learned counsel for the Applicant is that the family of the landlord is small. There is no restriction on the landlord to live a humble living though she may afford to have a better house. This does not show that the landlord's claim of premises on the ground floor was not bona fide. 7. In view of this, Civil Revision Application has no merit and is hereby rejected. 8. At this stage, the learned Counsel for the Applicant states that the Applicant would vacate the premises by first week of 6 September, 2010. On Applicant's furnishing undertaking by all adult members of his family to vacate the premises without creating any third party interest or without inducting any third person in the premises, decree may not be put to execution by the Plaintiff till 13th September, 2010. Undertaking on oath is to be furnished by the Applicant on or before 22nd July, 2010. If such undertaking is not furnished, the landlord would be at liberty to put the decree to the execution. (R.C.CHAVAN, J.)