1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Writ Petition No. 1262 of 2008 [M.U. Waswani Vs. Smt. Sarayya Syed Rafiuzzaaman & ors.] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. H.B. Gaikwad, Advocate for the petitioner. ----- CORAM : A.H. JOSHI, J. DATE : 02nd April,2008. 1. Heard. 2. The petitioner is a tenant. 3. Landlady sought permission to terminate the tenancy on the ground of bona fide personal requirement. Background 4. The case was initially decided by Rent Controller. After remand, the landlady filed application for amendment, which was ultimately allowed and thereafter her evidence was again recorded. 5. In the examination-in-chief recorded after remand and amendment, she has deposed 2 that:- [a] She has purchased the ground floor which is occupied by the tenant. [b] She was residing on rent in the area with seven children and husband, which has gone to the share of her brother-in-law – Khalik Ahmed. [c] Khalik Ahmed's articles are stored there and he wants the premises to be evicted. This testimony was in addition to oral evidence already given by her. The petitioner has cross-examined the landlady. 6. It is seen from the judgment of the Rent Controller that the fact of need of landlady and size of family of landlady consisting of seven children and husband are proved. 7. It is further seen that though the tenant claims that the premises in possession of landlady are sufficient, any evidence to contradict the facts sought to be proved by plaintiff is not brought on record by the tenant. 8. The tenant preferred an appeal against order granting permission to terminate the tenancy. 9. During pendency of appeal, the landlady 3 filed an application for taking affidavit and certain documents on record. This application was opposed by the tenant. It appears that the said application was allowed, as nothing contrary is shown or argued. 10. By the said application and evidence brought with it, the landlady had brought on record the fact that the house in her possession was vacated by her in 1998 and she has occupied a house owned by Smt. Jahida Shakil Isha situated on Plot No. 23A, Gandhi Layout, Jafar Nagar, Nagpur, on a monthly rent of Rs.3000/-. 11. The Appellate Authority, after taking resume of facts, took into account the need of the landlord as originally made out, as can be seen from the Judgment at page no. 57 of the paper-book of this petition. It is seen that, in addition to this discussion, the Appellate Authority has referred to the additional facts brought on record during pendency of appeal, and ordered dismissal of the appeal. 12. The petitioner filed a Review Application before Appellate Forum, which was heard and is dismissed after hearing, after about six years. 13. The petitioner is challenging all these orders in this petition. 4 14. The order in Review has been challenged in this petition, however, it is necessary to consider merits of the order of leave to terminate the tenancy as granted by the Rent Controller, and confirmed by the Appellate Authority. An error of fact apparent on the face of record requiring review is made out, and it won't be of any merit to lose time on discussion as to order in review. The challenge 15. In the present petition, petitioner has pressed following contentions:- [a] The observations recorded in last paragraph of the Judgment, namely :- “the tenant has not objected to contents of additional affidavit filed before Appellate Forum, but has raised a procedural point”, are not factually correct. [b] Additional material aimed at proving developments, which have occurred during pendency of case, are not legally proved. [c] Landlady's claim of bona fide personal requirement is a desire than actual need. 16. The petitioner has then placed reliance on two reported judgments, namely:- 5 [a] Sukhdeo Krishnarao Ghatode Vs. Laxmibai Dattatraya Mohoril [1979 Mh. L.J. 545], and [b] Om Prakash Gupta Vs. Ranbir B. Goyal [(2002) 2 SCC 256], Based on these judgments, learned Advocate for the petitioner has argued that the need of the landlady has to be distinct from desire to seek the possession. 17. The petitioner has not disputed that subsequent developments can be considered. He rather disputes the observation contained in last paragraph of the Judgment at page 58, which is quoted in para 14 as second contention, and he urges that said material could not be considered as facts sought to be introduced through said application were not proved. 18. Petitioner relies on para 4 of reply filed by him to plaintiff's application bringing on record subsequent developments, which reads as follows:- “4. The application is silent in respect of several material particulars. The alleged affidavit or the alleged documents cannot be accepted unless and until they are proved as required by the provisions of law. It is submitted that in that eventuality, the applicant/tenant gets opportunity to cross examine the landlady in relation to her alleged plea and also about alleged documents. In fact that is the requirement of 6 law.” 19. According to the petitioner, the tenant had objected to the prayer for filing of affidavit and subsequent developments, and, therefore, the First Appellate Court was wrong in relying on the evidence produced during pendency of appeal and basing its judgment on it. Analysis & Conclusions 20. This Court has considered the submissions of petitioner, the judgment impugned and annexures to the petition on which petitioner limits his reliance. 21. It is seen from the judgment that the learned Appellate Court has devoted in all four paragraphs for considering by re-appreciation and discussion on the need of landlady as made out before the Trial Court. These findings are not challenged as illegal or perverse. 22. By way of a passing reference, learned Appellate Authority has referred to the subsequent developments in last para of the judgment and order. 23. Considering sum effect of assessment of judgment impugned, it has to be held that the 7 reference to subsequent developments made in last paragraphs of the judgment is not the foundation, much less sole basis of the order passed by Appellate Authority. 24. If the last paragraph of the judgment is ignored, and four paras preceding thereto, which consist of discussion about evidence already on record, are read, it reveals that those four paras contain appreciation of evidence and are the foundation of Judgment. 25. The First Appellate Court, while confirming the order of Rent Controller, has applied mind to the material seen on record before the Trial Court, and has confirmed the order. 26. The order of First Appellate Authority, therefore, cannot be faulted as erroneous on account of denying to the petitioner an opportunity of hearing, much less a fair and reasonable opportunity of hearing. 27. In this background, the observation of the First Appellate Court that the tenant has not objected to the contents of the affidavit, but has raised a procedural point is a finding which is liable to be regarded as observation made by way of passing reference. Therefore, the challenge to said judgment based on said observation is weak and is misplaced. 8 28. The petitioner has not shown or even urged that any request for cross-examination was made before the Appellate Authority before participating in final hearing, and it was declined. 29. Moreover, fact that the petitioner resides in the same house and he is bound to have direct knowledge as to whether the landlady and her family members are residing in the same house or not. 30. The tenant should have, based on this direct personal knowledge, brought on record of First Appellate Authority these contemporary facts by filing affidavit, which the petitioner has failed to do, rather elected to refrain from doing so. For this failure of his own, now the petitioner cannot blame either the plaintiff or First Appellate Forum. 31. The petitioner has initially permitted the appeal to be heard and decided, then preferred a Review Application and has whiled away six years' time in it, and is now trying to take the benefit of a passing reference in the Judgment, urging that the whole judgment is based on subsequent developments which he knowingly declines to deny, may be because these matters are sheerly factual and are not capable of denial. 9 32. It is well settled that once the need is proved, the landlord's word is to be respected. The landlady's requirement that she has a family consisting of seven children and her husband etc., and that she does not have alternate house of her own to occupy has gone unchallenged. The cross-examination conducted by the petitioner does not even peripherally touch or attack the landlady's bonafide personal need. It is sheerly for the sake of naming that the petitioner is contending that the landlady's need is barely a desire than actual need. The submissions of the petitioner based on this ground are, thus, claimouring in hollow. 33. The petitioner has, thus, failed to make out a case for interference. Writ Petition is, therefore, dismissed. Judge |Hedau| 10