1 wp4347.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4347 OF 1994 Sahebrao Jagannath Dhikle (since deceased through L.Rs.) 1 Smt.Kamal Sahebrao Dhikle 2 Smt.Shobha Sahebrao Dhikle 3 Dhananjay Sahebrao Dhikle 4 Savita Sahebrao Dhikle ...Petitioners vs. Smt.Gangabai Shiram Shirode (since deceased through L.Rs.) 1 Arvind Shiram Shirode 2 Vasant Shriram Shirode 3 Shamkant Jagannath Shirode 4 Eknath Shiram Shirode 5 Murlidhar Shriram Shirode ...Respondents Mr.J.B.Kocheta for the petitioners Mr.R.M.Haridas i/b Mr.P.N.Joshi for the respondents CORAM :A.S.OKA,J. DATE ON WHICH JUDGMENT IS RESERVED: OCTOBER 22,2010 DATE OF PRONOUNCEMENT OF JUDGMENT : November 24,2010 JUDGMENT : 1 By this writ petition under Article 227 of the Constitution of India, the petitioner who is the defendant-tenant has challenged the decree for possession passed by the Appellate Court under section 13(1) (g) of the Bombay Rents, Hotel and Lodging House Rates (Control)Act, 1947 (hereinafter referred to as the said Act). The respondent-plaintiff is the landlady and owner of the house bearing city survey no.780 situated within the limits of Manmad Municipal Council, Taluka Nandgaon, District Nashik. Out of 2 wp4347.sxw the said property, two rooms on the western side were let out to the petitioner for residential purpose. The respondent stated that there was bona fide need to occupy the suit premises as the respondent was desirous of making available a separate residential accommodation to her son Arvind. It was stated that her son Arvind was not pulling on well with her. Apart from the ground of bona fide need, the respondent claimed a decree for possession on the ground of arrears of rent. The suit was contested by the petitioner by filing the written statement. The petitioner contended that he was a poor person who is unable to secure any other accommodation. The petitioner denied the existence of bona fide need. 2 The trial Court dismissed the suit. In an appeal preferred by the preferred by the respondents, the Appellate Court has passed a decree for possession only on the ground of bona fide need. 3 The learned counsel for the petitioner submitted that the respondent-landlady admitted in her evidence that she was enjoying a very cordial relationship with her son. He stated that the respondent s son Arvind stepped into witness box who admitted that his brother Jagannath has constructed his own tenament on Government land. The learned counsel pointed out that the respondent s son Arvind admitted that house no.884 was standing in the name of his brother which was a two storeyed building in which the said Arvind has a shop premises. He submitted that the Appellate Court has committed a 3 wp4347.sxw gross error by observing that the petitioner ought to have adduced evidence to show that there were 12 rooms available in the said house no.884. He submitted that though there were clinching admissions by the respondent and her son, the Appellate court has erroneously casted the burden on the petitioner. He submitted that the impugned Judgment and Decree of the District Court will have to be quashed and set aside on the ground that the same is perverse. 4 The learned counsel for the respondent placed reliance on the decision of this Court in case of Gaur Chandra Basu and another vs. Smt.Ruchira Ashok Sonde and another (2003 Bom.R.C 607) and submitted that even assuming that the decision of the Appellate Court is not happily worded, that is no ground to interfere in jurisdiction under Article 227 of the Constitution of India. He submitted that admittedly the respondent-landlady and her son Arvind were residing in rented premises and therefore, it was not for the petitioner or to the Court to dictate in what manner the landlady and her family members should live. He relied upon the decision of the Apex Court in case of Meenal Eknath Kshirsagar (Mrs.) vs. Traders and Agencies and another [(1996) 5 SCC 344]. He submitted that in view of the findings of fact recorded by the Appellate Court on the issues of bona fide need and comparative hardship, no interference can be made in writ jurisdiction even assuming that the Judgment of the District Court is not happily worded. 4 wp4347.sxw 5 I have considered the submissions. While holding the issue of bona fide need against the respondent-landlady, the trial Court held that house no.884 consisting of two storeys was standing in the name of the respondent s elder son Jagannath in which the respondent s son Arvind had a shop premises. The trial Court observed that the respondent admitted that her relationship with both her sons was very cordial. The trial Court observed that two storeyed building was being used by the said Arvind and his brother Jagannath which was available to the respondent. Considering the availability of the two storeyed building, the need pleaded by the respondent was not accepted by the Trial Court. While dealing with this aspect, in paragraph 10 of the impugned Judgment, the District Court has observed thus : 10...He further specifically stated that his elder brother Jagannath is residing separately from them since 1978. In his cross examination he specifically stated that he is residing in a rented premises since June, 1978. In that month also he was in need of the suit premises. He admitted that his elder brother Jagnnath is residing in the house owned by him which is constructed on Government land. He denied that he is residing jointly with his brother. He further admitted that the House no.884 is in the name of his brother and it is two storeyed building. However, he denied that there are 12 rooms in the 5 wp4347.sxw said house. He deposed that he does not know whether there are 12 rooms in the said house bearing no.884. So from the cross examination of Arvind the defendant is trying to bring on record that there are houses owned by plaintiff s son Jagnnath and it is of joint family consisting of plaintiff and both the sons. However, the defendant has not produced any documentary evidence in support of his contention, nor examined any witness to show that there are 12 rooms in House no.884. On the contrary, it specifically come in the evidence of plaintiff Gangabai P.W. 1 and Arvind P.W.2 that Jagannath is residing separately since 1978. There is no documentary evidence produced on record to show that plaintiff own any house in her own name. On the contrary, it has come in record that she is residing in a rented premises. Moreover, her son Arvind is also residing in a rented premises. In paragraph 11, the learned District Judge has observed thus : 11 ...In the cross examination he admitted that he has no evidence to show that the plaintiff and her sons are residing together and they are the members of joint family. He also admitted that he has not filed any documentary evidence to show that plaintiff is having 12 rooms 6 wp4347.sxw premises. He has not inquired in whose name the said premises are.... The respondent had stated in her evidence that her son Arvind was residing in the house of one Haribhau Bodke and the said premises was inadequate for her family. She stated that there were 7 to 8 members in her family. In the cross examination, the respondent admitted that her son Arvind was residing with her and her elder son Jagannath was residing separately. In the cross examination she came out with a case that even Jagannath was residing in a rented premises. She candidly admitted that her son Jagannath was receiving rent in respect of the suit house. She further admitted that her son Arvind behaved with her in a lovely manner . She admitted that her family members and she herself resides in two houses. 6 The respondent s son Arvind admitted that his elder brother Jagnnath has constructed his own tenement on the government land. He specifically admitted that house bearing no.884 was standing in the name of his brother Jagnnath which was a building consisting of two storeys. Though he did not admit that there were 12 rooms in the said house, he did not disclose the number of rooms in the said house. He pleaded ignorance as to whether his brother s family was residing in the said premises in House No.884. However, he stated that the said House was used for residential purpose. He admitted that he is having his shop on the ground 7 wp4347.sxw floor of House No.884. 7 Taking the evidence of respondent s son Arvind as it is, it is an admitted position that there is House No.884 consisting of two floors at Manmad standing in the name of his brother. As stated earlier, he did not accept that two storeyed house had 12 rooms but declined to specify as to how many rooms were there in the said house. He stated that the house was used for residential purpose by Jagnnath. He admitted that he was having Adat shop on the ground floor of the said House No.884. The witness Arvind did not state that the House No.884 is owned by Jagnnath. He merely stated that the house was standing in the name of his brother. Admittedly, he was occupying a shop premises on the ground floor of the said house. This fact shows that the house consisting of two floors was available for Arvind and his brother. This important aspect has not been considered by the Appellate Court and the Appellate Court proceeded on wrong hypothesis that the case of existence of 12 rooms ought to have been proved by the petitioner-tenant. The respondent s son Arvind after accepting that that two storeyed building stands in the name of his brother did not disclose the number of rooms in the said House. Thus, the only conclusion which could have been drawn is that two storeyed house was available to both the brothers in the light of the admitted fact that the said Arvind was holding a shop premises in the said house. The petitioner was under no obligation to prove that there were certain number of rooms in house no.884 in as much as the said fact 8 wp4347.sxw was within special knowledge of the respondent and her sons. 8 There is another important aspect of the case. In the plaint, bona fide need is pleaded on the ground that the respondent was not pulling on properly with her son Arvind and therefore, the respondent was intending to make a separate accommodation available to the said Arvind. In the cross examination, the respondent admitted that she has been treated in a lovely manner by her son Arvind. Thus, the basic ground pleaded in the plaint was something totally different. The requirement pleaded is based on the allegation that as the respondent was not getting along well with her sons, it was necessary for the respondent to make available other accommodation to him. 9 Thus, the entire approach of the Appellate Court is perverse and even taking the evidence of both the witnesses examined by the respondent as correct, a decree on the ground of bona fide need could not have been passed. The Judgment of the Appellate Court is perverse and the same is required to be quashed and set aside. 10 Hence, I pass the following order : i) Rule is made absolute in terms of prayer clause (b). ii)There will be no order as to costs. JUDGE