1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 3937/2007 Smt. Mukta w/o Ashok Khankhoje ..vs.. Namdeorao Tukaramrao Khutafale -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM: R. V. MORE, J. DATED : 9 th April, 2008 1. Heard Mr. Purohit, learned counsel for petitioner and Mr. Kshirsagar, learned counsel for respondent. 2. The petitioner is original tenant and the respondent is original landlord. The respondent/landlord preferred Regular Civil Suit No. 316/2000 in the Small Causes Court for eviction under Section 16 (g) and (n) of the Maharashtra Rent Control Act. The trial Court decreed the suit on both the counts. The appeal preferred by the present petitioner before the lower appellate Court came to be dismissed and the decree passed by the trial Court was confirmed. 2 3. Mr. Purohit, learned counsel for the petitioner submitted that the respondent/landlord has not proved the reasonable and bonafide need and, therefore, the decree of eviction could not have been passed. He took me through the pleadings of the respondent in para 2 and 2(a) of the plaint. He also pointed out that petitioner's allegation and, thereafter, the reasoning of the learned trial Court and appellate Court. Mr. Purohit further submitted that in the plaint, the respondent made out case that after his retirement the respondent and his wife used to reside with their sons either at Mumbai or at Nasik. Since the climate at Mumbai is not conducive to the health of the respondent and his wife they preferred to live mostly at Nasik with their son Vinod. When son Vinod died in the year 1991 they were constrained to live at Nasik to meet the liabilities of Vinod's family. The respondent, being satisfied that Vinod's family is settled, decided to shift to Nagpur. 3 4. Mr. Purohit, learned counsel for the petitioner, also invited my attention to the pleadings that the respondent entered into an agreement to sell the suit premises to P.M.G.'s Office Staff Co-Operative Housing Society Limited, Nagpur on 26.03.2000. Mr. Purohit, also invited my attention to the cross-examination of the respondent in which he has admitted that Vinod's family was settled by the end of year 1999 and, thereafter, advanced submission that had the respondent wanted to settle at Nagpur, after the family of deceased Vinod was settled in the year 1999, in that case he would not have agreed to sell the suit premises to the aforesaid Society in the month of March-2000. 5. Per contra, Mr. Kshirsagar, learned counsel for the respondent, supported the impugned decree by inviting my attention to the finding of the trial Court in para 7 of and finding of the appellate Court in para 12, 13, 14 and 15 in the respective judgments. 4 6. The Courts below concurrently held that if the respondent, at the fag end of life, wants to settle at Nagpur his intention cannot be doubted. The lower appellate Court also relied upon two circumstances in order to hold that the respondent's need is reasonable and bonafide. Firstly, the respondent got his pension transferred from Mumbai to Nagpur and secondly, he has also obtained ration card at Nagpur. Both these circumstances do show that the respondent, in fact, is staying at Nagpur. A finding is also recorded that the petitioner has not adduced any rebuttable evidence to show that the respondent has any other house at Nagpur. In my view, no interference is called for in the approach adopted by the Courts below. 7. The issue of comparative hardship is also answered in favour of the respondent. The Courts below held that the respondent has reached at the fag end of his life and he cannot be made to run from pillars to post for obtaining 5 vacant possession of the suit house. The lower Courts also held that the petitioner can search for any other premises. 8. In the lower appellate Court, the petitioner also contended that the respondent has constructed 400 sq ft. premises above the suit premises and, therefore, the respondent's need can be said to be satisfied and he may not require possession of the suit premises. This contention of the petitioner is also considered by the lower appellate Court. The finding as recorded by the lower appellate Court that the said construction is hardly admeasuring about 100 sq. ft and again this construction is of temporary nature. In any case, the respondent cannot be compelled to stay on the first floor premises due to his advance age. I have perused the reasons given by he lower appellate Court in this regard. I am satisfied that no fault can be found in the impugned order. 9. This takes me to consider the petitioner's submission that if the respondent was really in need of the suit premises in that case in the year 2000, he would not 6 have entered into the agreement to sell with P.M.G.'s Office Staff Co-Operative Housing Society Limited, Nagpur. I have considered this submission and in my opinion, the same has no merit. The respondent in his pleading has already disclosed that he entered into the agreement of sale in the month of March-2000. He has also disclosed that, thereafter, the major problems of the family of his deceased son have been solved and hence he decided to shift at Nagpur and accordingly, he rescinded the agreement. By and large the respondent reiterated what is stated in the pleading in his cross-examination also. The learned counsel for the petitioner relied upon the stray admission of the respondent that by the end of year 1999, the family of deceased Vinod was settled. 10. In my opinion, the petitioner cannot take advantage of this stray admission. The evidence of the respondent is required to be read as a whole. After perusal of their evidence along with pleadings, I am of the opinion 7 that the respondent has made out the case for bonafide and reasonable requirement. 11. Since, I have concluded that the respondent is entitled to decree on the ground of reasonable and bonafide need, it is not necessary to go into the merits of the respondent's case under Section 16 (1) (n) of the Maharashtra Rent Control Act, 1999 i.e. the premises is not used for the period of six months for the purpose for which it was let out. 12. Now, it is settled law that the landlord is the judge of his own case. Both the lower Courts below have concurrently held that the respondent has proved reasonable and bonafide requirement and comparative hardship will be caused to the respondent in case of refusal of decree. I do not find any error or perversity in the impugned order. The writ petition is, therefore, dismissed with no order as to costs. 8 13. At this stage, Mr. Purohit, learned counsel for the petitioner seeks some time to vacate the suit premises. Mr. Kshirsagar, leaned counsel for the respondent, has no objection if three months' time is granted to the petitioner. The petitioner is, therefore, granted three months time to vacate the suit premises subject to filing of usual undertaking in this Court within a period of three weeks from today. JUDGE kahale