:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO.48 OF 2007 CIVIL REVISION APPLICATION NO.48 OF 2007 CIVIL REVISION APPLICATION NO.48 OF 2007 1. Mrs. Ved Laxminarayan Wadhwa since deceased by her Legal Representatives Nos.2 and 3 below:- 2. Sunir Laxminarayan Wadhwa age about 51 years, 3. Deepak Laxminarayan Wadhwa age about 41 years All residing at Room No.3 and 4 S.V.Khandekar Marg, Vile Parle, (East), Mumbai 400 057 ...Applicants. (Orig.Defts.) v. M/s. Darshana Construction a registered Partnership Firm having its office at 55, Agarwal Market, Opp:Railway Station, Vile Parle (E), Mumbai 400 057 ...Respondent. (Orig.Plffs.) Ms.E.A.Gonsalves , adv. for the Applicants. Mr.Abhay L. Patki , adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 17th April, 2008. DATE: 17th April, 2008. DATE: 17th April, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the parties. Revision applicants before this Court are the original defendants and the respondent is the original plaintiff. Plaintiff is the landlord of the suit premises, which consists of room nos.3 and 4 in Mala Villa building situated at Tejpal Road, Vile Parle (E) admeasuring :2: about 500 sq.ft. One Laxminarayan Wadhwa was the tenant of the plaintiff in the suit premises. Laxminarayan died on 16th September, 2000 leaving behind his widow and two sons, who are the defendants . Plaintiff filed suit for eviction under Section 16(1)(i) of the Maharashtra Rent Control Act, 1999 on the ground that he bonafide and reasonably required the premises for demolition of the old building and for reconstruction on the same. Several other grounds were also taken for eviction. The suit was contested by the defendants. After hearing the parties, the learned trial Court passed decree in favour of the landlord only on the ground that he reasonably and bonafide required the premises for the purpose of demolishing the old building and for erecting a new one. The judgement and decree passed by the trial Court was challenged by the defendants in Appeal No.9 of 2006. Appeal came to be dismissed. Therefore, original defendants have preferred the present revision application. 2. After going through the judgments rendered by the Courts below, I find that it is sufficiently proved that the plaintiff/landlord reasonably and bonafide required the suit premises for demolition of old building and for construction of new one. It appears that most of the tenants have already vacated the premises but only the present defendants have not yet vacated. At the time of arguments before this Court, :3: the only dispute was about the area in occupation of the defendants. The Courts below noted that in the plaint, plaintiff had specifically contended that area of the suit premises was about 500 sq.ft. and this fact was not denied in the written statement. However, for the first time during the evidence, an attempt was made by the defendants to state that area in their occupation was about 1,000 sq.ft. They examined one Rajvilas D. Gadkari an architect in support of their contention about area of the suit premises. He submitted a report pointing out that carpet area of room nos.3 and 4 was 581.62 sq.ft. Front varanda was 171.50 sq.ft. Backside varanda was 166.25 sq.ft. and side varanda was 68.50 sq.ft. The toilet was shown to be 12.05 sq.ft. Evidence shows that he had not given notice to the plaintiff before taking measurements of the property. He admitted that he had taken the measurements as requested by the defendants. He also did not remember whether he had measured area of the rooms from outside or inside. He had no personal knowledge whether varandas were used commonly or they were in the exclusive use of the defendants. Toilet was admittedly for the common use of so many tenants in the chawl. Therefore, evidence R.D.Gadkari was not relied by the Courts below. It is material to note that the plaintiff had also got the property measured and Vijay Phulkar an architect had taken measurements and submitted a report. As per his evidence, the total carpet area of the suit :4: premises was 538.66 sq.ft. equivalent to 50.04 sq.mtrs. It included 95.37 sq.ft. of the common area in use of the plaintiffs. Vijay Fulkar was also examined. There is no reason to disbelieve his evidence and the reports submitted by him. In the plaint, it was contended that the carpet area was about 500 sq.ft. and as per architect’s report, total area in occupation of the defendants was 538.66 sq.ft. 3. The learned counsel for the plaintiff/respondent pointed out that during the trial of the suit, a notice was given to defendants on behalf of the plaintiff whereby he had offered premises admeasuring about 575 sq.ft. carpet area on the first floor in the newly constructed building in lieu of the suit premises in the old building. As per the report of the architect, carpet area of the flat no.4 on the first floor in the proposed building is 575 sq.ft. equivalent to 59.01 sq.mtrs. 4. Admittedly, in this case decree was passed in favour of the plaintiff under Section 16(1)(i) on the ground that the plaintiff reasonably and bonafide required the suit premises for immediate purpose of demolishing them for the purpose of erecting new building. Under Clause (d)(1) of Section 16(6) certain conditions are put before such a decree is passed. The landlord has to give undertaking that the plans and :5: estimates for the new building or new floor or new floors to be erected includes premises for each tenant with carpet area equivalent to the area of the premises in his occupation in the building sought to be demolished subject to a variation of 5% in area. As such in the present case, plaintiff is required to give undertaking and make provision for carpet area equivalent to carpet area in possession of the tenant in the old building subject to variation of 5%. As defendants are in occupation of 538.66 sq.ft. and the plaintiff has offered flat no.4 in the building to be constructed with carpet area 575 sq.ft., this offer fully meets the requirements of law. 5. Taking into consideration all the facts and circumstances, I find no illegality or irregularity in the impugned judgment and decree passed by the Courts below. I see no substance in the contention of the learned counsel for the defendants that they are entitled to carpet area of 1,000 sq.ft. in the new building. 6. For the aforesaid reasons, Revision Application stands dismissed. 7. At this stage, the learned counsel for the revision applicants/defendants makes a request to stay the execution of decree for a period of six weeks. The :6: learned counsel for the applicants objects to it. However, as stay to the execution of the decree is operating since 29th March, 2007, it shall continue to operate for a further period of six weeks from this day subject to their giving usual undertaking within two weeks. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)