1 cra516-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.516 OF 2010 Sardar Begam Khan and others ..Applicants Vs Darryl David Rodrigues and another ..Respondents -- Mr.V.A.Thorat, Senior Advocate with Mr.R.A.Thorat, for applicants. Mr.Roque D’mello, for respondent no.1. -- CORAM : A.S.OKA, J. DATE : 13 th DECEMBER, 2010 P.C: Heard learned Senior Counsel for the applicants and learned counsel for the first respondent no.1. 2] The challenge in this Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 is to the decree of eviction passed by the trial Court and confirmed by the Appeal Bench of the Court of Small Causes. 3] The suit premises is a flat on the ground floor of a building owned by 2 cra516-10.sxw the Co-operative Society, more particularly described in the plaint. The decree was sought on the ground of bona fide need and arrears of rent. The first respondent is the plaintiff and the present applicants are the legal representatives of the original defendant tenant. The trial Court decreed the suit on the ground of arrears and bona fide requirement. However, the ground of nuisance and annoyance was negatived. There were two cross appeals preferred by the applicants and other first respondent. Both the appeals have been dismissed and the Appeal Bench of the Court of Small Causes has confirmed both the decree on the ground of bona fide need as well as arrears of rent. 4] Learned Senior Counsel for the applicants submitted that there is no clear finding as to which of the two provisions namely Section 12(3) (a) or 12(3)(b) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 is applicable in the present case. He submitted that both Sections will not apply. 5] As far as bona fide need is concerned, he submitted that it is brought on record that in another building owned by the first respondent, on the first floor, there is a residential premises which is occupied by a paying guest. He pointed out that there are other two tenements which are owned by the first respondent which are in possession of Limited Companies. He submitted that instead of proceeding against the paying guest and Limited Companies, the first respondent has chosen to proceed against the applicants. He submitted that the decree has been passed on the ground which is not pleaded in the plaint. He, therefore, submitted that the decree 3 cra516-10.sxw passed on the ground of bona fide need is erroneous. 6] I have given careful consideration to the submissions. The case made out in the plaint is that the first respondent is having a family consisting of wife, one son and one daughter. When the evidence was recorded, the daughter and son were college going. He is in possession of a flat consisting two bed rooms. The finding recorded by both the Courts below and in particular, by the Appellate Court is that out of two bed rooms, one bed room is being used by first respondent plaintiff for the purpose of his office during the day time and, in the night, the said bed room is being used by his children. The appellate Court found that the plaintiff’s daughter has selected a match for herself. The need which is accepted by both the Courts below is of the married daughter. The Landlord wants a premises where his daughter can settle down after marriage. The need of the daughter after her marriage has been specifically pleaded in the plaint. 7] The evidence on record discloses that the premises on the first floor of another building are in possession of a paying guest. Plaintiff’s sisters are recovering charges from the said paying guest. No evidence is brought on record to show that the said premises is exclusively owned by the plaintiff. In fact, it has brought on record that the plaintiff has brothers and sisters. The premises which is exclusively available to the plaintiff is a flat consisting two bed rooms. The married daughter and her husband cannot be accommodated in the said flat and they obviously need a separate premises. A grievance was made that the plaintiff has not proceeded against the Companies which are occupying the other premises. However, 4 cra516-10.sxw it is not for the tenant or anybody else to suggest in what manner the landlord should enjoy his property. The suit flat is in a Co-operative Housing Society. The plaintiff wants to ensure that after the marriage, his daughter should settle down in the said flat. 8] Hence, no fault can be found with findings recorded by both the Courts below concurrently on the issue of bona fide need. On the issue of hardship also, there are findings recorded by both the Courts below against the applicants. There is no evidence adduced by the applicants to show that any effort was made by them to secure any other accommodation. There is no merit in the Revision Application. Revision Application is rejected. 9] On the prayer made by learned Counsel for the applicants, the decree for possession shall not be executed for a period ten weeks from today, subject to condition that the applicants will not part with possession and will not create any third party interests in respect of the suit premises. [A.S.OKA, J]