1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.169 OF 2008 Shri Devshibhai B Shinghadia : Applicant. versus Shri Purshottam Devsi & ors. : Respondents. Ms. Mamata Sadh i/by Shri Joseph Fernandes for the Applicant. Ms.Zenobia S Irani for the Respondents. CORAM : R.M.SAVANT, J. DATED : FEBRUARY 10, 2009 P.C. 1. The above Civil Revision Application has been filed by the Applicant, who is the original Defendant, impugning the decree of eviction dated 18/10/2007 passed by the Division Bench of the Small Causes Court at Bombay. The said decree has been passed on the ground of reasonable and bonafide requirement of the Plaintiff/landlord, though eviction was sought on other grounds also. 2. The Respondents herein are the heirs of the Original 2 Plaintiff one Purshottam Devsi, who was the landlord of the building know as Devsi Shamji Building, situated at 2nd Kumbhar Lane, Mumbai 400 004 wherein the suit tenanted premises being Room No.10 were situated. The Plaintiff filed RAE & R Suit No.3313 of 1982 for recovering of possession on the ground that the Defendant/tenant has carried out additions and alterations of permanent nature in the suit premises without necessary sanction and permission, non user of the suit premises for a period of six months immediately preceeding the date of the suit. By an amendment made in the year 2000, the ground of reasonable and bonafide requirement was incorporated and, therefore, the eviction of the Defendant was also sought on the said ground. 3. The Defendant filed his written statement in the said Suit and denied that he is liable to be evicted on the said grounds. In so far as reasonable and bonafide requirement is concerned, the Defendant merely denied the said ground. The parties went to trial. The Plaintiffs led the evidence of as many as four witnesses i.e the Plaintiff himself, his wife and two daughters viz P.W.1 to P.W.4. The 3 Defendant did not lead any evidence in rebuttal. 4. The trial Court on the basis of the material that was on record, dismissed the said Suit and held that none of the grounds have been proved by the Plaintiffs. In so far as ground of bonafide requirement is concerned, the trial Court held that in the absence of specific pleadings in the plaint that the Plaintiff No.1 requires the suit premises for the purposes of residence and for taking tuition, the evidence led on behalf of the Plaintiffs could not be accepted and, therefore, the trial Court held that the Plaintiffs have failed to prove that the suit premises are required reasonably and bonafide for the family members of the Plaintiff No.1. In view of the said finding, the trial Court did not deem it fit to examine the Issue of comparative hardship. 5. Aggrieved by the judgment and decree of the trial Court dated 4th May 2001, the Plaintiffs carried the matter in Appeal by filing Appeal No.579 of 2001 before the Division Bench of the Small 4 Causes Court, Mumbai. By the judgment and order dated 18th October 2007, the lower Appellate Court allowed the said Appeal and set aside the judgment and decree of the trial Court dated 4th May 2001. 6. The lower Appellate Court confirmed the findings of the trial Court in so far as the grounds of permanent additions and alterations and non-user are concerned, however, decreed the suit on the ground of reasonable and bonafide requirement. The lower Appellate Court, in so far as pleadings relating to the bonafide requirement is concerned, observed that in the written statement the Defendant has simply denied the averments made in the plaint. The Defendant has no-where stated that the pleadings are either vague or lack particulars. The Lower Appellate Court observed that both the parties were aware of the extent of the premises available with each other and the Plaintiffs have specifically stated the extent of their family. The Lower Appellate Court, further observed that the evidence of the Plaintiff discloses that the requirement is to accommodate the family members and particularly one of the daughters of the Plaintiff No.1 for 5 taking tuitions in the premises. Therefore, the Lower Appellate Court held that the material pleadings set out in the plaint establish the ground of requirement. The Lower Appellate Court considered the fact that the premises available with the Plaintiff are admeasuring 12'x18' and there are six members in the family of the Plaintiffs. The Suit premises are admittedly 20'x18'. The Defendant is the only person who requires the suit premises, since the wife of the Defendant expired in the year 1997 and the son of the Defendant is staying with his family in a flat at Prabhadevi, Dadar. The Lower Appellate Court took into consideration the fact that the premises occupied by the Plaintiffs consist of two rooms viz one hall and one kitchen and in the said premises, six members are required to stay. Though the adjacent building is owned by the Plaintiffs, it is no-where the case of the Defendant that in any part of the building some accommodation is available. The Lower Appellate Court, considering the evidence led on behalf of the Plaintiffs, held that the said witnesses have given clear account of the need of the premises, as they have no sufficient accommodation at their disposal. 6 7. The Defendant has not adduced any evidence in rebuttal and that it is apparent from the record that the Defendant did not dispute the said facts adduced by the Plaintiffs seriously. The Lower Appellate Court was, therefore, of the view that the Plaintiffs have discharged the burden as regards bonafide requirement and since there is no rebuttal evidence to deny the ground of requirement, the Lower Appellate Court held that the Plaintiffs have made out a case for eviction of the Defendant on the ground of reasonable and bonafide requirement. The Lower Appellate Court therefore was of the view that the findings recorded by the trial Court are contrary to the evidence on record and the well settled legal position. 8. The Lower Appellate Court thereafter examined the Issue of comparative hardship. The Lower Appellate Court took into consideration the fact that the premises available with the plaintiffs were 12'x18'. There are six members in the family. The Lower Appellate Court was of the view that the hardship of the Plaintiffs can be imagined or presumed by taking a mere look at the circumstances. The Lower Appellate Court, on the basis of the material on record, 7 also came to a conclusion that the Defendant was financially better of than the Plaintiffs. The Lower Appellate Court also took into consideration the fact that the son of the Defendant has a flat at Prabhadevi, Dadar and that the son of the Defendant was in business with the Defendant and they are together in all respects. The Lower Appellate Court therefore did not accept the case of the Defendant that the Defendant and his daughter-in-law are not in good terms and, therefore, it would not be possible to go and stay over with his son at Prabhadevi, Dadar. The Lower Appellate Court was of the view that only Defendant was required to stay in the suit premises since his wife had died in the year 1997, therefore balance tilted in favour of the Plaintiffs as the Defendant would stay with his son as of right. The Lower Appellate Court, therefore, on point of the comparative hardship held that the hardship would be more to the Plaintiffs if the decree is not passed than to the Defendant if the decree is passed. 9. A useful reference can be made to the Judgment of the Apex Court reported in 2003 (1) SCC 462 in the matter of Akhileshwar Kumar and others vs. Mushtaquim and other wherein it has been held 8 that once it has been proved by the landlord that the suit accommodation is required bonafide by him for his own purpose and such satisfaction withstands the test of objective assessment by the court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subject choice of the needy. The court cannot thrust it own choice upon the needy. Of course, the choice has to be exercised reasonably and not whimsically. A reference can also be made to the judgment of this Court reported in 2004 Volume 106 (1) Bombay Law Reported 100 in the matter of Tulsiram Bhumayya Shriram v/s. Akbarkhan Majfarkhan and others. Wherein it has been held that it is the landlord who has to decide regarding the availability of the accommodation, the type of accommodation and the convenience of his family members. The tenant cannot dictate the terms in this regard. In my view, the principles enunciated in the judgments cited (supra) are satisfied in the instant case. 10. Having considered the judgment and order of the Lower Appellate Court, in my view, the Lower Appellate Court, which is the 9 last fact finding Court, went threadbare into the material on record. It is on the said basis that the Lower Appellate Court has arrived at the finding that the Plaintiffs are entitled to the decree on the ground of reasonable and bonafide requirement. In my view, the findings of fact recorded by the Lower Appellate Court are well founded. The Lower Appellate Court was right in coming to a conclusion that the trial Court has recorded findings which are contrary to the evidence on record. 11. The supervening event of the death of Defendant who expired on 15th April 2008 is also required to be taken into consideration. Admittedly the suit premises were occupied only by the Defendant, after the death of his wife, in the year 1997. The premises are, therefore, no more required on account of the said original Defendant. The impugned decree therefore does not call for any interference on the said ground also. Hence no case for interference in the Revisional Jurisdiction of this Court under Section 115 of the Code of Civil Procedure is made out. The Civil Revision Application is accordingly dismissed. [R.M.SAVANT, J]