CRA. 284-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 284 OF 2011 Shri Abbas A. Nagaria ...Applicant Vs. Leslie John Merchant ...Respondent *** Mr. Harinder Toor a/w Omar Khaiyam Shaikh, J. H. Mishra i/b Mishra & Co., for the Applicant. Mr. Pradip J. Thorat & P. B. Gujar, for the Respondent. *** CORAM: V. M. KANADE J. DATE : JUNE 21, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the applicant and the learned counsel appearing on behalf of the respondent. Applicant is the original defendant/tenant and respondent is the original plaintiff/landlord. For the sake of convenience, parties are referred to as the ‘landlord’ and ‘tenant’. 2. The landlord had filed a suit against the tenant in the Small Causes Court for seeking possession of the suit premises on the ground of bona fide and reasonable requirement. Trial Court decreed the suit. CRA. 284-11 - 2 - The tenant preferred an appeal against the said judgment and decree passed by the trial court. The said appeal was dismissed. Being aggrieved by the judgment and order passed by the lower appellate court, tenant has preferred this civil revision application in this court under Section 115 of the Code of Civil Procedure. 3. The learned counsel appearing on behalf of the applicant submitted, firstly, that in order to succeed in the trial court on the ground of Section 16(1)(g) of the Maharashtra Rent Control Act, 1999, the landlord has to establish that his requirement for personal use has to be bona fide and genuine. It is submitted that if the court comes to the conclusion that requirement is not bona fide or genuine, the court is not expected to grant decree of eviction. 4. The learned counsel invited my attention to the various averments made in the plaint. It is submitted that in the plaint, a specific contention was raised in paragraph 3 that the premises in which plaintiff is residing in the premises, admeasures 180 sq. ft., and in paragraph 4 it is contended that family of plaintiff consists of 11 members i.e. six sisters, mother, his wife and his two children. It is further submitted that in the plaint it was contended that the premises in which plaintiff is residing, does not belong to the plaintiff but belongs to the mother of the CRA. 284-11 - 3 - family. It is submitted that in paragraph 2 it is stated that defendant is residing in the suit premises which is situated on the first floor, House No. 74 Bazar Road, Bandra (W), Mumbai. Further, the learned counsel has invited my attention to paragraph 9 of the plaint and submitted that in the said paragraph it was stated by the plaintiff that the suit premises were the only premises which belong to the plaintiff. The learned counsel invited my attention to the evidence given by the plaintiff and his mother. It is submitted that though the trial court had noted that there was a discrepancy in the pleadings and evidence which was brought on record and though it was pleaded that plaintiff was residing in the premises admeasuring 180 sq. ft., in the cross-examination he has stated that he along with his family members were residing at Mira Road in a flat admeasuring 430 sq. ft. It is submitted that both the courts, therefore, did not take into consideration the suppression of facts by the plaintiff in the plaint. It was submitted that in fact plaintiff was owner of house i.e. House No. 72 and 74. He then pointed out that House No. 71 and 73 were not joint properties and property at Mira Road let out to plaintiff’s mother. He submitted that both the courts below, therefore, failed to take into consideration the fact that this fact was not mentioned by the plaintiff in the plaint. In support of this submission, reliance is placed on CRA. 284-11 - 4 - the judgment of the Apex Court, in the case of – Ram Dass, Appellant vs. Ishwar Chander & Ors.1 more particularly, the observations made in paragraph 11. Reliance is also placed on the judgment of the Apex Court in the case of – S. P. Chengalvaraya Naidu (dead) by LRs, Appellant vs. Jagannath (dead) by LRs. & Ors.2. Reliance is also placed on the judgment of Apex Court in the case of – Meghmala & Ors., Appellants vs. G. Narasimha Reddy & Ors.3 5. Secondly, it is submitted that there was evidence on record to suggest that several properties were transferred in favour of other tenants. It is, therefore, submitted that this court while exercising jurisdiction under Section 115 of the Code of Civil Procedure would very well interfere with finding of fact which was recorded, without taking into consideration the material suppression of facts, made by the plaintiff. 6. On the other hand, learned counsel appearing on behalf of the landlord submitted that it is not a case where plaintiff was one of the owners in respect of the two properties. It is mentioned in paragraph 9 of the plaint that this was the only premises in which he could reside as a matter of right. It is submitted that this averments in the plaint be taken 1 (1998) 3 Supreme Court Cases 131. 2 (1994) 1 Supreme Court Cases 1. 3 (2010) 8 Supreme Court Cases 383. CRA. 284-11 - 5 - into consideration in the context of facts and circumstances of the present case. Further, he submitted that plaintiff had examined his mother who had stated in her evidence that though plaintiff was residing with her, she did not get well with her daughter in law i.e. wife of the plaintiff. It is submitted that both the courts below had taken into consideration the said fact and has recorded the finding that the suit premises being the only premises in which plaintiff could reside as a matter of right. Merely because he was residing in the premises at Mira Road, would not be a circumstance which could be taken against him. He submitted that the Apex Court in the case of – Meenal Eknath Kshirsagar, Appellant vs. Traders & Agencies & Anr. Respondents1 held that landlord is the best judge of his residential requirement. 7. In my view, the submissions made by the learned counsel for the applicant cannot be accepted. It is not a case where the plaintiff has suppressed material fact from the court. It is not a case of the defendant that plaintiff had in his possession certain premises which were under his lock & key and this fact was suppressed from the court. Therefore, the submissions made by the learned counsel for the tenant cannot be accepted. The ratio of the judgment on which reliance is 1 1997(1) Mh.L.J. 121 CRA. 284-11 - 6 - placed, therefore, is not applicable to the facts of the present case. There is a concurrent finding of fact recorded by both the courts below, regarding the bona fide requirement of the plaintiff. Hence, this court while exercising its limited jurisdiction under Section 115 of the Civil Procedure Code cannot interfere with the said concurrent finding of fact. Hence, Civil Revision Application is dismissed. However, six months time is given to the tenant to vacate the suit premises, subject to the tenant filing an undertaking on usual terms. The said undertaking to be filed within two weeks. [ V. M. KANADE J.]