1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5322 OF 1993 Smt.Krishnabai Ramchandra Kachi & Ors. .. Petitioners versus Shri Babanrao Bhimaji Kurande .. Respondent Mr.S.V.Pitre for the petitioners. Mr.Jaydeep Deo h/f Ms.Suhasini Mutalik for respondent. CORAM : A.S.OKA, J. DATE : 1st February 2010. JUDGMENT: . Heard learned counsel appearing for the petitioners and learned counsel appearing for the respondent. The petitioners are the landlords and the respondent is a tenant. The suit was filed by the petitioners for possession of the suit premises consisting of two rooms on the first floor of House No.104 at Ravivar Peth, Pune which was let out to the respondent for residential use. The suit was filed by the petitioners on various grounds including bonafide requirement. The trial Court dismissed the suit by judgment and decree dated 14th March 1984. There was an appeal preferred in which there was an order of remand and the parties were permitted to lead evidence. The appeal preferred by the petitioners against dismissal of the suit has been dismissed by the Appellate Court. 2 2. The learned counsel appearing for the petitioners has invited my attention to the findings recorded by the Courts below. He submitted that rent receipts were produced on record to show that the four rooms which were earlier in possession of tenant Navandar were let out to one Mr.Shah. He invited my attention to the findings recorded by the Courts below and especially Appellate Court. He pointed out that House No.105 has been used as a cattle shed and that is not available for residential use. He invited my attention to further affidavits filed in this Court. Firstly, he invited my attention to affidavit of 2nd petitioner dated 14th November 2008 which was in reply to the affidavit filed by the respondent on 17th October 2006. He pointed out that in the said affidavit dated 14th November 2008 the 2nd petitioner has pointed out that the petitioners continued to occupy two rooms on the second floor of the suit building i.e House No.104 and there are 11 members in the family of the petitioners. He pointed out that the said affidavit discloses that there were only two rooms in possession of the petitioners. He pointed out a statement in the said affidavit that the respondent has retired from Life Insurance Corporation of India and is drawing handsome income by way of pension. It is pointed out that his three sons are very well employed. He invited my attention to another affidavit dated 6th July 2005 filed by the 2nd petitioner in which it was pointed out that the respondent was not using the suit premises. He invited my attention to the electricity bill on pages 61 and 62 of the petition and submitted that there is a complete non-user of the suit premises by the respondent and he does not need the premises. He submitted that the affidavit dated 6th July 2005 discloses that the one of the sons of the respondent by virtue 3 of his employment in the Maharashtra State Electricity Board has been allotted a residential quarter and the respondent is residing with his wife in the said premises. He, therefore, submitted that decree on the ground of bonafide requirement must follow as there is no hardship to the respondent. 3. I have given careful consideration to the submissions. As pointed out earlier, there was an earlier order of remand. The Appellate Court has noted in the impugned judgment that evidence of the 1st petitioner was recorded on 1st February 1988 in which she deposed that a tenant Mr.Navandar vacated four rooms in the year 1979 and one Mr. Shah was inducted in the said rooms. The Appellate Court has noted that in the cross-examination she admitted that she had filed a suit against the said tenant Mr. Navandar and next day after obtaining possession of the said four rooms , the said Mr. Shah was inducted as a tenant. Reliance was placed on the rent receipts. The Appellate Court noted that before remand when her evidence was recorded on 2nd March 1984, 1st petitioner has deposed in her deposition that she has issued rent receipts to Mr. Shah but counterfoils of the rent receipts were not with her. The learned Judge observed that the counterfoils at Exhibit 70 were produced on record which relate to a receipt issued for the first time in January 1980. The learned Judge observed that there is no explanation as to how the counterfoils which were not available in the year 1984 could be produced in the year 1988. Apart from this, the Appellate Court observed that after remand , the alleged tenant Mr. Shah was not examined. After taking into account the cumulative effect of all these aspects, 4 the learned Judge disbelieved the case of the petitioners that after the earlier tenant Mr. Navandar admittedly vacated four rooms, Mr. Shah has been inducted as a tenant. It is not possible to find fault with the said finding. On their own showing a premises consisting of four rooms were vacated by tenant Mr.Navandar. To show that the said rooms were not available, a case was made out by the petitioners that Mr. Shah has been inducted in the said rooms. The finding of fact recorded is that the petitioners could not establish that the said Mr. Shah was inducted as tenant in the said four rooms. This militates against the bonafide requirement pleaded by the petitioners. The appellate Court also found that another occupant had vacated two rooms in his possession. Therefore , the finding on the requirement pleaded by the petitioners in the impugned order cannot be faulted with. 4. The learned counsel appearing for the petitioners has relied upon additional affidavit of the 2nd petitioner dated 18th November 2008. In the said affidavit the 2nd petitioner has dealt with the affidavit of the respondent dated 17th October 2006. In the affidavit of the respondent dated 17th October 2006 in paragraph 2 has stated thus: “. I say that the petitioners have entrusted development of the properties bearing House Nos.105 and 106, Raviwar Peth, Pune, belonging to the petitioners to M/s. Mohol Associates Promoters and Builders, Mohol Complex, 539, Ganesh Peth, Pune 411 002. The said M/s Mohol Associates have in or about March-April 2006 demolished the old buildings on the said properties and started to carry out construction of new building consisting of ground floor and four upper floors thereon which consist of commercial and residential premises. The construction of the building has almost been complete. I have come to know that petitioner 5 Nos.1 to 3 have been given one flat each i.e in all three flats admeasuring about 650 sq.ft each, in the said building and have also been paid substantial monetary consideration by M/s Mohol Associates. Annexed hereto and collectively marked Exhibit “A” are photographs of the said building in which the said building is shown by Mark “X”.” The photographs showing construction of the new building were also annexed. This aspect has been dealt with by the 2nd petitioner in paragraph 6 of affidavit dated 14th November 2008 which reads thus: “. I state that the respondent has filed an affidavit stating the petitioners have entrusted development of their properties bearing C.T.S.No.105 and 106 at Raviwar Peth, Pune. I state that we all three petitioners together received an amount of Rs.7,00,000/- (Rupees Seven Lakhs Only) from the said builder and that the petitioners continued to occupy two rooms on the 2nd floor of the suit building and two rooms are in possession of the respondent on the 1st floor of the said building. I hereby rely upon photographs indicating that the suit premises are locked.” The specific case made out in the affidavit dated 17th October 2006 of the respondent that the petitioners have been allotted one flat each admeasuring 650 sq.ft by the builder in the newly constructed building and have received substantial monetary consideration has not been specifically dealt with in paragraph 6. There is no denial that the petitioners have been allotted one flat each of 650 sq ft. Moreover, the 2nd petitioner admitted to have received consideration of Rs.7,00,000/-. The failure to specifically deny allotment of said flats is very conspicuous. This is one more reason why this Court should not interfere with the finding of fact recorded by the appellate court that the plea of bonafide requirement was not established. 6 5. The Petition is accordingly dismissed. Rule is discharged. No orders as to costs. (A.S.OKA,J)