- 1 - 665.sxw rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.665 OF 2009 Pruthkumar Chabildas Kapadia & ors .. Applicants . vs Dr.Arvind Raghav Kapadia .. Respondent Mr. Rafiqe Dada, Sr.Advocate and Mr.Fredun Divetre, Sr.Advocate a/w Mr.Shyam Mehta,Ms.Deepa Ahuja,Mr.Farhan Dubhash i.b.M/s Federal & Rashmikant for Petitioners Mr.A.A.Kumbhakoni, i/b M/s Thakore Jariwala & Co for Respondent - CORAM: A.S.Oka, J DATE: 8th October, 2010 P.C. 1. Heard learned counsel appearing for the parties. 2. It must be stated here that submissions of the learned counsel appearing for the parties were heard on 16th September 2010 and due to paucity of time, the Revision application was adjourned to 23rd September 2010 for passing orders. During the course of submissions made on 16th September 2010 the learned counsel appearing for the respondent had tendered a Chart/note. By filing an affidavit, an objection was raised by the applicant to certain factual - 2 - 665.sxw statements made in the said Chart/note. After considering the said affidavit dated 5th October 2010 this Court directed that the said Chart/note will not be taken into consideration. To appreciate the submissions made by learned Counsel appearing for the parties, a brief reference to the facts of the case will be necessary. 3. The Revision Application arises out of a suit filed by the respondent-plaintiff for eviction. The suit premises is a residential flat more particularly described in the plaint. The flat is situated in a building known as Raghavji Nivas, Dadi Seth Lane,Chowpatty, Bombay-400 007. It is stated in the plaint that the building has two wings having two separate entrances. The building consists of ground and two upper floors comprising of six self contained residential flats and two garages. The suit was filed in respect of suit premises described in paragraph 2 of the plaint which is a residential flat. The decree was sought on the ground of bona fide and reasonable requirement. The applicant filed the written statement and contested the claim by contending that there is no genuine requirement. The parties adduced evidence on the issue of bona fide requirement. The trial Court dismissed the suit by holding that bona fide requirement has not been established. In an appeal preferred by the respondent-plaintiff, the Appeal Bench of the Court of Small Causes Court, Mumbai passed a decree for possession on the ground of bona fide and personal - 3 - 665.sxw requirement. 4. The learned senior counsel appearing for the applicants- defendants has taken the Court through the pleadings and relevant part of the evidence. The learned counsel invited attention of the Court to the findings recorded by the Appellate Court as regards availability of premises to the respondent. The learned senior counsel appearing for the applicants invited the attention of the Court to the finding recorded that the respondent is in possession of 18 rooms which are spread over in four flats. The learned Senior counsel appearing for the applicants invited the attention of the Court to the requirement as pleaded in the plaint and to certain part of the evidence. He pointed out the specific averments made in the plaint and in particular in paragraph 3 and pointed out that thought requirement of Bipin and Lalit who are allegedly the members of the family of the respondent has been pleaded, the said requirement is not at all proved. The submission of the learned senior counsel appearing for the applicants is that though the requirement pleaded of the two aforesaid family members who are abroad is virtually given up and/or is not proved, the same is held as established by the Appellate Court. The learned Counsel pointed out the findings recorded in paragraph 67 of the impugned judgment. He pointed out that by no stretch of imagination, requirement of the persons who are settled abroad can be accepted. In fact the requirement - 4 - 665.sxw of said persons was given up by the respondent. He submitted that the requirement of Bipin is not proved. He also submitted that the requirement of Lalit which is accepted by the Appellate Court in paragraph 68 of the judgment could not have been accepted in as much as admitted position which is brought on record is that said Lalit has settled down in U.K. and was having a large house there. He submitted that the entire approach of the Appellate Court is illegal. He pointed out that in paragraph 3 of the plaint, the basic requirement of Bipin and Lalit has been pleaded and no other requirement is pleaded. He submitted that the material particulars such as the extent of the accommodation in possession of the respondent/plaintiff and his family members have not been set out in the plaint. He submitted that all these aspects were considered by the learned trial Judge and a finding was recorded holding that requirement has not been established by the respondent/plaintiff. He submitted that as the respondent/plaintiff has failed to establish requirement of Bipin and Lalit who were abroad, the decree on the ground of bona fide requirement could not have been passed by the Appellate Court. He submitted that requirement which is not pleaded in the pleadings could not have been considered. 5. Learned counsel for the respondent invited my attention to the findings recorded by the Appeal bench. He pointed out that that even assuming that there are 18 rooms which are available to the - 5 - 665.sxw respondent/landlord, one family member Deepak was forced to reside at Vashi, New Bombay on account of lack of adequate accommodation. He submitted that the said Deepak has been examined to prove inconvenience caused to him by undertaking travelling every day. He submitted that it is found that said family member has to reside at Vashi in New Bombay on account of lack of accommodation. He submitted that requirement of family of Bharat has been proved. He pointed out that requirement of a large family consisting of six married couples and the other members of family has been pleaded and proved. Though total number of rooms available may be 18, there are only four flats available and therefore, bona fide need cannot be disputed. He therefore submitted that no interference is called for with the said finding of fact recorded by the Appellate Court. 6. I have carefully considered the submissions. There is some justification for the criticism made by learned senior counsel appearing for the petitioner of the findings recorded by the Appeal bench as regards the requirement pleaded in case of Lalit and Bipin. However, that is not only the finding recorded by the Appeal bench. The Appeal bench has taken into consideration the present accommodation available to the family of the respondent. It must be noted that in paragraph 3 of the plaint, the names of all 17 family members of the family of the respondent residing in Mumbai excluding - 6 - 665.sxw the respondent have been set out. It must be noted here that in paragraph 1 of the plaint it is specifically stated that the respondent- plaintiff is a Karta of the Hindu undivided family. In paragraph 3 of the plaint, it is specifically stated that the brothers of the respondent are the other coparceners of the Hindu undivided family. In paragraph 6 of the plaint, bona fide need of all the family members has been specifically pleaded including those who are of marriageable age. In the said paragraph, it is stated that in the changed socio economic conditions and circumstances, the present accommodation available is not at all adequate. It is further stated that the requirement of the suit premises is for the use and occupation of the family members. It is stated that the respondent’s nephews were of marriageable age. It is stated that 2 of them have married but find it difficult to adjust themselves. It is stated that it has been decided amongst the coparceners to live independently by allotting each with a residential block. The specific bona fide requirement pleaded is to ensure that the families of coparceners stay comfortably in separate premises in the building of the family. In fact, the respondent has examined his brothers Harish and Bharat as well as his nephew Deepak to prove the requirement of the family. In the circumstances, the submission that the need of only 2 brothers who are staying abroad has been pleaded is not correct. Essentially the bone fide need pleaded is of accommodating the entire family. Therefore, keeping aside the findings recorded by the - 7 - 665.sxw Appellate Court as regards requirement of Bipin and Lalit, the other findings will have to be examined. In paragraph 52 of the judgment, the Appellate Court has held thus : “Then, his further cross examination do show that in the year 1985. plaintiff filed a suit for possession of ground floor and they got possession of three rooms and thus now they are in possession of 18 rooms which was spread over in 4 flats. One hall is partitioned and two rooms are prepared. Then, further cross examination of the plaintiff will show that at the time of filing of the suit there were six married couples from the family of the plaintiff residing in the suit building. Thus, married male members in the family were Arvind, Dilip, he himself and his two nephews Deepak and Hemant and they were three other adult members and those were unmarried namely Raj, Heena and Falguni. His mother died in the year 2000. She was occupying one room in the suit building. His nephew purchased the flat at Vashi. His family consists with he himself, his wife and one son. Thus, whatever he has stated in his evidence in the cross examination about the members of the family, about their residence in the suit building about getting possession of the property from the decree of the hon’ble High Court and by consent decree of the tenant Mrs Malti Merchant, how each of members are having their children of marriageable age, how their children are married and how the grand children are born in the family and how there is growing need of the family and one flat has obtained by decree of the Hon’ble High Court and three rooms flat obtained by Mrs Malti Merchant as the accommodation was insufficient. Inspite of those premises, there is growing need of family being there are adult male members every family requires separate rooms. There are unmarried daughters in the family. They - 8 - 665.sxw also require the premises. Then, there are grandchildren in the family who also require the separate room for studies etc in near future. “ 7. Thus, what is accepted is that there are 18 rooms which are available to the respondent’s family which are spread over four flats. The finding of fact is that at the time of institution of the suit, the married male members of the family were the respondent, his brothers Dilip, Bharat and Harish as well as his nephews Hemant and Deepak. Another nephew Anand got married during the pendency of suit. At the time of institution of the suit, there were three unmarried adult members Rajkiran, Heena and Falguni. In the evidence adduced by the brother of the respondent namely Harish he stated that his nephew Deepak had acquired a flat in Vashi in New Bombay and he is residing at Vashi along with his wife and child. He has stated that he has to commute between Vashi and Babulnath in Mumbai where he is working. In the evidence of Harish, it has come on record that his another brother Bharat is occupying premises on the ground floor which consists of only one bed room ,hall and a kitchen. It is stated that the said Bharat is occupying the said premises along with his wife , one umarried daughter, a son and a daughter-in-law. It is stated that after marriage of the Bharat’s son Anand in the year 2002, he along with his wife is using one bed room and others are sleeping in the hall. - 9 - 665.sxw The respondent examined his brother Bharat to prove the said requirement. Their requirement has been taken into consideration by the Appellate Court. The perusal of the judgment of the Appellate Court and in particular in paragraph 63 shows that requirement of Deepak which was specifically pleaded in his evidence has been taken into consideration. It has been established that Deepak is residing away in New Bombay with his wife and his 14 years old son. In the same paragraph, requirement of Anand, the son of respondent’s brother Bharat has been taken into consideration by noting that after his marriage in 2002, he is occupying the only one bed room available to the family of the said Bharat. The Appellate Court has also noted that Anand has a child. In paragraph 66, the Appellate Court has taken a note of the requirement of respondent’s brother Dilip whose family consist of his wife, daughter, son ,daughter-in-law and a grandson. 8. In paragraph 3 of the plaint, names of the family members of the undivided family of the respondent has been set out. As indicated earlier, though number of rooms found to be in possession of the plaintiff may be 18, but the same are spread over in four flats. There are many married couples in the family. Apart from that, the requirement of Deepak who is staying in New Bombay and the requirement arising out of the marriage of Anand in 2002, has been held as established. - 10 - 665.sxw 8. It is a well settled law that neither the tenant nor the Court can dictate in what manner a landlord should live. Keeping aside the requirement of two brothers of respondent who are residing abroad, the requirement of other family members is proved. Considering the status of the respondent , the need to accommodate growing family in the same building is certainly reasonable. Thus, even excluding the alleged need of two members of the family who are abroad, the finding on bona fide need cannot be disturbed. 9. The suit was filed in 2001. The Appellate Court has also complied with the mandatory requirement of adjudicating the issue of comparative hardship by holding that no efforts have been made by the tenants to secure alternate accommodation. The appellate court also noted that the 1st defendant-1st applicant was residing in Germany along with his family members for last 30 years and if he makes efforts, he can acquire alternate accommodation. The fact that family of the respondent can acquire other accommodation is irrelevant for consideration of comparative hardship in as much as the requirement pleaded is of accommodating a very large family in the same building. The appeal Court held that it is not possible to accept that for the applicants no alternate accommodation is available at any place in Mumbai. A well considered finding has been recorded on the issue of - 11 - 665.sxw the comparative hardship in favour of the respondent-plaintiff. 10. In this view of the matter, it is not possible to interfere with the findings of fact recorded by the Appellate Court. Revision Application is accordingly rejected. 11. On a prayer made by learned senior counsel for the applicant, decree for possession shall not be executed for a period of twelve weeks from today. ( A.S.Oka, J )