1 CRA 154/2011 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 154 OF 2011 Shri Sinha Swami Mutha (deceased) Through his legal heirs & representatives Rose Mary Chettiar & Ors. .. Applicants V/s Smt. Monika wd/o Joe Duming Jacinto .. Respondent Mr. J. Reis i/b Mrs. A.S. Malvankar for the applicants. Mr. D.A. Joseph i/b David & Associate for the respondent. CORAM : D.G. KARNIK, J. DATE : 28TH FEBRUARY 2011 P.C. : 1. Heard learned counsel for the parties. 2. This revision application is directed against a judgment and order dated 23rd November 2010 passed by the appellant Bench of the Small Causes Court, Mumbai, confirming the judgment and decree for eviction of the revision applicants passed by the trial Court. 3. In a suit filed by the respondent against the revision applicants, a decree was passed by the trial Court inter alia on the ground of bonafide requirement, arrears of rent and 2 CRA 154/2011 unauthorised alterations. The appellate Bench confirmed the decree on all the three grounds mentioned above. 4. As regards the bonafide requirement, learned counsel for the applicants submitted that the respondent landlady had not entered the witness box and had only examined her son as a power of attorney and he could not have deposed regarding the requirement. The case of the landlady was that she is in possession of only 380 sq.ft. of the premises and required the suit premises for the residence of herself and her family members. Her family consists of herself, 3 sons and 5 daughters. Though 4 daughters have been married, still one daughter is unmarried and is living with the respondent. Out of the 3 sons, one son is married and has family of wife and 2 children. In view of the fact that the premises were required not only by the respondent for her residence but for her family members who are suffering hardship, it cannot be said that the son could not have deposed on behalf of the landlady. It was the requirement of not only herself but of entire family and he was aware of the need and therefore the contention of the applicants that no decree can be passed on account of non-examination of the landlady, cannot be accepted. 3 CRA 154/2011 5. Learned counsel for the applicants then submitted that the landlady was also in possession of another block of 2 rooms and a kitchen which was an ancestral property. P.W.1, one of the sons of the landlady who has been examined, has stated that his elder brother – a married son was occupying the said block. Considering even the remaining family members excluding the married son, the requirement of the respondent was held to be proved. The finding recorded by both the Courts below is not only a possible finding of fact but imminently probable finding of fact which cannot be interfered with in exercise of revisional jurisdiction. 6. As regards the greater hardship, the original tenant has died and out of the several heirs, only applicant nos.1A and 1C are in occupation of the suit premises. Rest of the heirs are residing in different premises. It appears that it was possible for the other heirs to acquire accommodation for them and there is no reason why the applicant nos.1A and 1C cannot acquire another accommodation. The finding of greater hardship also being a possible finding of fact cannot be interfered with in exercise of revisional jurisdiction. 7. So far as the ground of default is concerned, admittedly 4 CRA 154/2011 after the receipt of notice of demand, the present revision applicants did not pay the arrears nor did they file any application for fixation of the standard rent. There is no dispute regarding the standard rent. The decree on the ground of default also cannot be faulted with. 8. For these reasons, there is no merit in the revision application which is hereby rejected. 9. After this order was pronounced, learned counsel for the revision applicants prays for some time to vacate the premises. It is accordingly directed that the decree for possession shall not be executed for a period of 6 months subject to the following conditions: (i) The revision applicants shall deposit all the arrears within 2 weeks. The amounts already deposited shall be given credit to. (ii) The revision applicants shall file undertaking of each of them and all their adult family members to vacate the suit premises on usual terms. The undertaking shall be filed within 2 weeks. On failure to file the undertaking, the decree 5 CRA 154/2011 can be executed forthwith. (D.G. KARNIK, J.)