1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.596 OF 2008 Kisangir Nathugir Gosavi @ Bawa ..Applicant V/s Subhash Murlidhar Gujrathi & ors ..Respondents Mr.M.M.Sathaye, Advocate, for the applicant Mr.R.M.Haridas i/b.Mr.P.N.Joshi, Advocate, for the respondents CORAM : R.M.SAVANT, J. DATE : 4TH MARCH, 2009 P.C. . The above Civil Revision Application has been filed by the tenant impugning the concurrent decree of eviction passed by both the Courts below on the ground of arrears of rent, acquisition of suitable alternate premises and bona fide requirement of the landlord. 2. The respondents herein are the original plaintiffs, who had filed Regular Civil Suit No.212 of 1993, seeking eviction of the petitioner on various grounds. The suit property is room No.2 2 admeasuring about 10 x 13 Sq.feet, on the 3rd floor floor of the Building bearing City Survey No.924, within Municipal limits of Manmand City, Taluka Nandgaon, District Nashik. The suit property was let out to the petitioner on rent of Rs.50/- per month in the year 1994 by the father of the respondents. The petitioner has been residing in the said suit property with his family members since then. The suit was inter alia filed on various grounds but as mentioned above decreed on the ground of arrears of rent, acquisition of suitable alternate premises and bona fide requirement. The defendant i. e. the petitioner herein filed his Written Statement and denied the ground on which his eviction was sought. It is the case of the petitioner that since he was not agreeable to the increase in rent, the said suit for eviction came to be filed by the landlord on the said false grounds. The petitioner further contended that the bungalow constructed by him is not suitable for residence being far away from the School where he and his wife work and where his children take education. He has further contended that he has never stopped staying in the suit property. It is further contended that the respondents herein are wealthy having more than 40 tenants and who keep changing tenants 3 by evicting them. The petitioner denied that the requirement was bona fide. He further contended that Money Order for payment of rent was refused by the landlord. 3. The parties went to Trial and led evidence in support of their respective cases. The learned Civil Judge, Junior Division, Manmad, who heard and tried the said suit, was pleased to decree the same by his Judgment and Decree dated 23rd January, 2003, on the ground of arrears of rent, acquisition of suitable alternate premises and bona fide requirement. The petitioner being aggrieved by the Decree passed by the Trial Court, filed Civil Appeal No.38 of 2003 in the District Court, Malegaon which was dismissed by the Lower Appellate Court by Judgment and Decree dated 25th February, 2003 thereby confirming the Judgment and Decree of the Trial Court dated 23rd January, 2003. 4. I have heard the learned counsel for the parties. The learned counsel for the applicant contended that the decree passed on the ground of default is not sustainable in view of the fact the 4 petitioner had deposited an amount of Rs.4,590/- on the 1st day of appearance in the Court. In so far as the decree on the ground of acquisition of suitable alternate premises is concerned, which is a ground under Section 13(1)(1) of the Bombay Rent Act. The learned counsel submitted that since the premises were used for both residence as well as conducting tuitions, the said provision could not be invoked. The learned counsel for the petitioner relied upon a Division Bench Judgment of this Court reported in 1994(4) Bom.C.R.209 in the matter of Bhavarlal Sukhlal Soni, since deceased by his heirs and legal representatives Versus Lakshminarayan Deo, Public Trust Swaminarayan Mandir through General Mukhtya, the paragraph 6 of the said Judgment was relied upon which is reproduced herein under :- “Section 14(1)(h) of the Delhi Control Act is almost similar to section 13(1)(1) of the Act. In the case of (S. Katar Singh v. Chaman Lal and others), A.I.R. 1968 S.C.1288. Section 14(1)(h) has been interpreted on the lines indicated above. In the said decision, following observations in the case of (Dr.Gopal Dass Varma v. Dr.S.K.Bhardwaj and another), A.I.R 1963 S.C. 337, have received approval (page 340) : “If the premises from which ejectment is sought are used not only for residence but also for profession how could section 5 13(1)(h) come into operation. One of the purposes for which the tenancy is acquired is professional use, and that cannot be satisfied by the acquisition of the premises which are suitable for residence alone, and it is the suitability for residence alone which is postulated by section 13(1)(h). Therefore, in our opinion, it would be unreasonable to hold that tenancy which has been created or used both for residence and profession can be successfully terminated by merely showing that the tenant has acquired a suitable residence” 5. Relying upon the said Judgment the learned counsel for the petitioner submitted that since the premises were used both for residence and profession, the said ground of acquisition of suitable alternate premises could not be invoked. 6. In so far as the ground of bona fide requirement is concerned, the learned counsel for the petitioner submitted that the respondents have not substantiated their said case as there is no material on record that the premises are reasonably and bona fide required by the landlord. The learned counsel further submitted that assuming the Courts below were against the petitioner in so far as the ground of bona fide requirement is concerned, it was necessary for the Courts below to consider the issue of comparative hardship 6 between the petitioner and the respondents herein. If comparative hardship were to be considered then the petitioner stood on a better footing than the respondents in as much as the petitioner would suffer greater hardship if the decree is passed than the respondents if the decree were not to be passed. The learned counsel therefore submitted that the eviction of the petitioner on the said ground was unsustainable. 7. On the other hand, it is contended by the learned counsel for the respondents that Section 12(3) makes it obligatory on the tenant to deposit the arrears of rent with 9% interest, in the instant case it is an admitted position that since the petitioner has not deposited the rent with 9% interest, the protection of the Act would not be available to the petitioner. In so far as the ground of acquisition of suitable alternate premises is concerned, the learned counsel drew my attention to the averments made in the plaint and the averments in the Written Statement as well as the deposition of the petitioner. The learned counsel submitted that it is the case of the respondents in the suit that the petitioner was illegally taking tuitions in the suit premises 7 since two years prior to filing of the suit which fact has been denied by the petitioner in his Written Statement. The learned counsel submitted that the petitioner had to deny the same as the petitioner was working in a Railway School and was taking tuitions without permission of the School Authorities which was not permissible. 8. In so far as the ground of bona fide requirement is concerned, the learned counsel for the respondents drew my attention to paragraph 7 of the plaint wherein the said ground has been set up. The learned counsel also drew my attention to the deposition of the respondent No.1 i. e. plaintiff No.1 wherein the need for additional accommodation has been mentioned. The learned counsel submitted that the concurrent findings of fact recorded by both the Courts below in respect of the said grounds need not be interferred by this Court in its revisional jurisdiction. 8 9. Having considered the rival contentions and having considered the material on record, in my view, the findings of fact recorded by both the Courts below do not merit any interference by this Court in its revisional jurisdiction. 10. In so far as the ground of arrears of rent is concerned, though the petitioner deposited an amount of Rs.4,590/- which was the arrears of rent from February, 1992 to 25th April, 1996 on the day when the issues were framed in the Trial Court. The said deposit was admittedly without interest at the rate of 9% per annum as provided under Section 12(3) of the Bombay Rent Act. The learned counsel for the respondents is, therefore, right in his submission that the extent of the amount due from the tenant is not material it may be a meagre amount but non-compliance of Section 12(3) is the deciding factor. In my view, therefore, the finding on the said ground is well founded. 11. In so far as the ground of acquisition of suitable alternate premises is concerned, it would be significant to note that the petitioner has specifically denied the averments made in paragraph 6 9 of the plaint that he is conducting tuitions. The petitioner has also denied in his deposition that he is conducting tuitions in the said premises. The petitioner had obviously to do so in view of the fact that the petitioner is a teacher in School run by the Railways and therefore, could not conduct tuitions without permission of the authorities. It, therefore, does not now lie in the mouth of the petitioner to contend that the premises were let out both for residence as well as for profession. No other material is produced on record in support of this case. The Judgment (Supra), therefore, relied upon by the learned counsel for the petitioner has therefore, no application in the facts and circumstances of the present case. 12. In so far as the ground of bona fide requirement is concerned, the plaintiff No.1 i. e. the respondent No.1 herein has in paragraph 8 of the plaint set out the said ground of bona fide requirement. The plaintiff No.1 has mentioned that in view of the bickering amongst the wives of the plaintiffs, it was necessary for them to live separately. The learned counsel for the petitioner was, therefore, not right in his submission that there is no material on 10 record in support of the said ground. In so far as the comparative hardship is concerned, though both the Courts below have not adverted to the said issue. In so far as the facts of the present case are concerned, it is an admitted position that the petitioner has constructed a bungalow about 2 & ½ Kms away from the suit premises. It is also on record that the said bungalow has got Water connection, Electricity connection and also Telephone connection and therefore has all the amenities. The petitioner cannot deprive the landlord of the suit premises on the ground that the said bungalow constructed by him is not suitable for residence. It is well settled by the Hon'ble Apex Court as well as this Court that it is the choice of the landlord as to where he wants to reside. It has also come on record that the petitioner has kept the suit premises locked for about 7 – 8 years. The said fact has been deposed by a person, who is an independent witness and, who has cordial relations both with the petitioner as well as the respondent. In my view, therefore, even if comparative hardship was to be considered, the same would operate more against the respondents plaintiffs than the petitioner, who has his own bungalow to reside. 11 13. Both the Courts below having concurrently recorded the findings on the said grounds and the decree being sustainable on any one ground. In my view, the decree passed by both the Courts below does not call for any interference in the revisional jurisdiction of this Court. The Civil Revision Application is accordingly dismissed. 14. On the application of the learned counsel for the petitioner the instant order is stayed for a period of 8 weeks. ` (R.M.SAVANT, J.)