1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4717 of 2008 Waman Motiram Labhade (since deceased thru his LRs Smt.Kalwati W. Labhade & Ors. .. Petitioners versus Shri Gopal Shankar Jaju & ors. .. Respondents ... Mr.M.S. Karnik for the petitioner. Mr.Rameshwar Gite i/b R.R. Ugale for the respondents. CORAM : A.M.KHANWILKAR, J DATED : 25th July 2008 P.C.: 1. Heard counsel for the parties. 2. In my opinion, the concurrent findings reached by the two courts below on the issue of bonafide requirement of the landlord are unquestionable. For the family of the landlord admittedly consists of 9 grown up members. The present premises in occupation of the landlord is 2 only four rooms. The two courts have considered the entire evidence on record and concurrently found that the landlord has established his bonafide and reasonable requirement of the suit premises. That finding will have to be upheld as it is. 3. The argument that the petitioners, however, is that even if the said finding is to be upheld, petitioners ought to succeed on the issue that petitioners would suffer greater hardship than the hardship to be caused to the landlord. Once again there is no merit in this submission. The argument proceeds on the premise that the landlord is inclined to redevelop the property. That argument has been considered by the appellate court and rejected on the reasoning that no case for recording of additional evidence was made out in terms of Order 41 Rule 23 of the Code of Civil Procedure. Besides, such case is not made out in the pleadings filed by the tenant or the evidence adduced before the court. The court below has also rightly opined that in the event the landlord is likely to let or develop the premises within the statutory period, in terms of section 17 of the Bombay Rent Act, the tenants would be entitled for appropriate relief. That would address the grievance of the tenants that the landlord is likely to re-let the premises or develop the premises after 3 taking possession consequent to of the decree of eviction on the ground of bonafide requirement. 4. The next argument of the petitioners was that the premises referable to document Exhibit.49 is only admeasuring 500 sq.ft and that too has been purchased by Arun (Petitioner no.2) who incidentally happens to be one of the heirs of the original tenant. The premises so acquired cannot be reckoned to consider the issue of greater hardship. This argument clearly overlooks the factual position emerging from the record which plainly indicates that all the heirs of the original tenant claim that they were residing in the suit premises along with the widow of the tenant who is also one of the petitioner before this court. In other words, the family members of deceased tenant continue to stay "together" even after the death of the tenant, which position has been conceded before the courts below in the context of the ground of eviction referable to section 13(1)(1) of the Act. If it is so, the premises acquired by one of the member of the family who is staying together will be a relevant factor to be considered in the contest of issue of greater hardship to be caused to the tenant or the landlord. No fault can be found with the view taken by the lower court which is founded on that fact in relation 4 to the said issue. 5. It was then contended that the said premises standing in the name of Arun - petitioner no.2 is already rented out as back as in 1995. The fact remains that the same has been let out during the pendency of the present suit. While considering the issue of greater hardship that would be a relevant factor to be taken into account to answer the issue against the petitioner tenants. It is fairly accepted across the bar by the counsel for the petitioners, on instructions of petitioner no.2 who is personally present in court, that the said premises have been let out on leave and licence basis which tenure will expire in another three months time. If is is so, the petitioners can fall back upon the said premises in the event of decree of eviction was to be executed. 6. Suffice it to observe that no fault can be found with the finding reached by the two court below on the issue of bonafide and reasonable requirement as also greater hardship. Findings recorded in that behalf are upheld by this order. In view of the said opinion, it is not necessary to examine the argument in relation to the ground that the tenant has acquired alternate accommodation, as the decree is 5 being upheld against the tenants on the ground of bonafide requirement. 7. Accordingly, this petition fails. The same is dismissed. 3. Counsel for the petitioner prays on instructions of petitioner no.2 who is personally present in court for time to vacate upto atleast upto one year from today. It is not possible to accede to that request. For the Respondents have rightly opposed that request on the ground that they have instituted suit for recovery of possession as back as in the year 1995 and are waiting to get back the possession of the suit premises on the ground of bonafide requirement since then. Besides, the petitioners are expected to get back possession of premises purchased by petitioner no.2 within three months from now. Taking an overall view of the matter, petitioners can be granted time upto 31st January 2009. The petitioners through counsel assure to file usual undertaking in that behalf before this court within one week from today failing which the Respondents would be free to proceed in the matter in accordance with law. It is once again reiterated that time to vacate is granted on the assurance given by the petitioner through counsel on instructions of 6 petitioner no.2 who is personally present in the court. (A.M.KHANWILKAR, J)