ash 1 wp-3166.97 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 3166 OF 1997 Sukhadeo Maruti Gangane. .. Petitioner Vs Smt. Laxmibai Vithal Satpute. .. Respondent -- Shri P.N. Karlekar for the Petitioner. Shri Nitin Jamdar with Shri Haribhau Desinge for the Respondent. -- CORAM : A.S. OKA, J DATED : 1ST DECEMBER, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondent. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to make a brief reference to the facts of the case. The Respondent is the Plaintiff and the Petitioner is the Defendant. The suit premises consists of two rooms on the first floor of the property more particularly described in the Plaint. The suit was filed by the Respondent-landlady against the Petitioner for possession on the ground of bona fide need. A case was made out that out of six room in the house of the Respondent, two ash 2 wp-3166.97 rooms are in possession of the tenant Shivaji Shankar Kore and one room was in possession of one Vishnu S. Renake. It is contended that one room on the first floor was in possession of the Respondent. The bona fide need pleaded was that there were five members in the family of the Respondent. The suit was contested by the Petitioner by filing a Written Statement. It was contended that the Respondent was in possession of the two rooms on the first floor and a passage on the ground floor. It was contended that the Respondent was residing in the said premises and that her son along with her daughter in law were residing with his mother-in-law in Ramwadi. Reliance was placed on the earlier suit filed in the year 1978 on the ground of bona fide need which was dismissed. 3. The Trial Court decreed the suit. The Trial Court accepted the case that the family of the Respondent consists of herself, her son, her daughter in law and three grand children. The Trial Court held that the suit premises is adjacent to the premises in possession of the Respondent. The Trial Court recorded a finding on the issue of comparative hardship in favour of the Respondent. An Appeal was preferred by the Petitioner-Defendant. The Appellate Court confirmed the decree. A Writ Petition was filed by the Petitioner in this Court being Writ Petition no.3081 of 1996. By the Judgment and Order dated 14th August, 1996, this Court confirmed the finding on the issue of bona ash 3 wp-3166.97 fide requirement. However, this Court considered the submission made by the Petitioner that a tenant Shivaji Kore who was occupying two rooms on the ground floor has left the premises. This Court recorded a submission that during the pendency of the Appeal, the Petitioner had applied for leading additional evidence to prove that the said Shivaji Kore had surrendered the premises to the landlady. The operative part of the Order passed by this Court reads thus:- “.....The evidence came to be recorded. Initial burden of the Petitioner I stood discharged because landlady has admitted that Pore lives elsewhere. But the question was whether Pore relationship continued as a Tenant with landlady. In her evidence landlady has not stated that whether she is receiving the rent or not. Whether relationship of landlady and tenant has continued or not. To this extent landlady was required to prove that even today that relationship exists. It cannot be expected of the Petitioner to prove that fact. Landlady has not stated whether any notice has been given to tenant. At this stage I wish to clarify that this Court does not wish to state that landlady should take steps to evict Kore on the ground that he is not occupying the suit premises or that he has acquired alternate premises. That question does not arise in this Writ Petition. The evidence in this matter of Landlady before Lower Appellate Court is not sufficient to prove that relationship of landlady and tenant with Kore continues. It is for this reason that I have made above observations. In the circumstances I am accepting concurrent findings on all points but I am required to remand this matter to lower Appellate Court only for landlady purpose viz. Whether relationship of Landlady and tenant continues with Kore or not and whether Kore has left the premises or not. Only on the above point matter is remanded to lower Appellate Court.” ash 4 wp-3166.97 4. After remand by this Court, the Appellate Court held that the relationship between the Respondent and the said Shivaji Kore as the landlady and tenant continued and there was no evidence on record to show that the said Shivaji Kore had left the premises. 5. Learned counsel appearing for the Petitioner has taken the Court through the evidence recorded by the Appellate Court after remand. He submitted that in fact this finding shows that the said Kore is not at all using the premises which shows that he must have surrendered the premises to the Respondent. He submitted that it cannot be believed that though the said tenant is not using the suit premises, the landlady has neither proceeded against him in the Court nor has taken possession of the said premises. He invited the attention of the Court to the findings recorded by the Appellate Court and submitted that the findings are perverse. He pointed out the order passed by this Court at the time of admission of the Writ Petition. He stated that as per the statement made by the Petitioner, one room admeasuring 8 x 8 feet out of the suit premises has been surrendered by the Petitioner to the Respondent-landlady. He pointed out that the stay was granted only as regards the other room. The learned counsel appearing for the Respondent stated that he has not received any instructions from the Respondent. However, he has supported the ash 5 wp-3166.97 impugned Judgment and Decree. 6. Perusal of the order of remand passed by this Court shows that a finding was recorded that the evidence which was recorded before remand was not sufficient to prove that the relationship of landlady and tenant between the Respondent and the said Kore still continued. In the context of this observation, the finding recorded by the Appellate Court after remand will have to be appreciated. It is pertinent to note that after remand, the Respondent Plaintiff did not enter the witness box to lead evidence regarding continuation of the relationship as the landlady and tenant between herself and Shri Kore, but she examined the said Shivaji Kore who claimed that he continued to be in possession of the two rooms on the ground floor. He relied upon the Ration Card. The Appellate Court was impressed by the entry made on the Ration Card on 14th December, 1996. According to the Appellate Court, the entry showed that the said Kore had purchased rationing articles by use of the Ration Card. It will be interesting to note that the Appellate Court appointed a Court Commissioner who was a practicing Advocate. The Appellate Court has noted the observations made by the Court Commissioner in his report. In Paragraph 14, the Appellate Court observed thus:- “On going through the contents of the report, it is seen that there were certain garments found inside ash 6 wp-3166.97 the inner side room. In the first room, there was stove and pot. There was cupboard kept in the first room. There were photographs and about six gunny bags were found in the first room. According to Commissioner the inner side room was completely vacant but there were certain articles in the first room. There were certain articles in the first room. There were certain utensils and pitcher found in the first room. All these facts show that in the first room there are certain articles of domestic use. Thus Commissioner report shows that Shivaji Pore has not completely vacated the premises. No doubt, the inner room is vacant and no articles were found in the inner side room but that is part of the block and that room cannot be possessed separately. Therefore, Commissioner’s Report read as a whole further support the evidence of Shivaji Pore that he is in possession of two room block at the ground floor.” ( underline added) 7. Taking the observations reproduced by the Appellate Court as it is, it is so obvious that the said Shri Kore was not using the premises on the ground floor for a considerably long time. There was a cupboard and six gunny bags found in one room. The room was found to be completely vacant. The Appellate Court in Paragraph 13 observed that the daughters of Shivaji Kore were students of the school near the suit house. The Appellate Court observed that the fact that Shri Shivaji Kore’s daughters were taking education in nearby school shows that he was in possession. However, in Paragraph 12, the Appellate Court has noted the admission by Shri Kore in the cross- examination that his daughters are married and they are not residing with him. The report of the Commissioner which does not seem to have been objected to was in fact sufficient to disbelieve the evidence of ash 7 wp-3166.97 said Shivaji Kore that he was still using the residential two rooms on the ground floor of the building for residence. In fact, in Paragraph 15, the Appellate Court has referred to the evidence of the Respondent before remand in which she has stated that the said Shivaji Kore was residing at Shahir Vasti. It is pertinent to note that the suit was disposed on on 4th August, 1992. The order of remand was passed by this Court on 4th August, 1992. It was obvious that an entry of taking rationing articles on 14th December, 1996 was made only to create evidence of use of the premises by the said Shri Kore and that is the reason why on plain reading of the finding of the Appellate Court itself, the evidence of Shri Shivaji Kore ought to have been discarded especially in the view of uncontroverted Commissioner’s Report. 8. As pointed out earlier, the finding recorded by this Court is that the evidence before remand was not sufficient to prove that the relationship of the Respondent and Shri Shivaji Kore as the landlady- tenant continued. After remand, the Respondent did not step into witness box. Once the evidence which adduced after remand, is kept out of consideration, the only obvious conclusion which can be recorded is that the two rooms in possession of Shri Kore were available to the Respondent. 9. It is true that this Court has confirmed the finding on the issue of bona fide need. However, now the fact that two rooms on the ash 8 wp-3166.97 ground floor are available for the Respondent will be a relevant consideration for deciding the issue of comparative hardship. Perusal of the finding of the Appellate Court before remand shows that the Petitioner was working as a Mason. As far as the Trial Court is concerned, it has noted that the family of the Petitioner consists of seven members. The family of the Respondent consisted of six members. One room out of the suit premises is now available to the Respondent and two additional rooms of Shivaji Kore are available to the family of the Respondent. Two rooms on the first floor were already available to the Respondent. Therefore, this is a fit case where second part of Sub-section (2) of Section 13 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 will have to be invoked by passing a partial decree. If the decree passed by the Courts below is confined to the room which is already surrendered by the Petitioner, there will not be any hardship both to the Petitioner and the Respondent and, therefore, the decree for possession in respect of a part of the suit premises will have to be passed. 10. Hence, I pass the following order: (a) The impugned Judgments and Decrees are modified. There will be a partial decree for possession only in respect of one room out of the suit premises the ash 9 wp-3166.97 possession of which has been already handed over by the Petitioner to the Respondent as per the statement of the Petitioner recorded in the order dated 11th August, 1997 passed by this Court. The decree as far as the other room forming part of the suit premises is concerned is quashed and set aside and the suit stands dismissed to that extent. (b) The Rule is made partly absolute on above terms with no orders as to costs. ( A.S. OKA, J )