1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 933/2011 RADHESHYAM AGRAWAL ..VS.. RAKESHKUMAR S. JAIN AND ANOTHER - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri M.S.Gupta, advocate for the petitioner Shri A.G. Gharote, advocate for respondent no1. & 2. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 23, 2011. By this petition, the petitioner challenges the judgment passed by the first appellate court on 18.11.2010 reversing the judgment passed by the trial court and holding that the respondent were entitled to grant of possession of the suit property under the provisions of section 16(1)(g) of the Maharashtra Rent Control Act. The respondents are the landlords. They had filed a suit for the possession of the suit property which was a flat admeasuring about 1000 sq.ft. The plaintiffs pleaded that they were presently occupying only a small flat admeasuring 750 sq.ft. in Girnar Housing Society and since there were 10 members in their family, they were facing acute shortage of accommodation. It was stated that apart from the tenanted premises they did not have any residential premises for occupying the same and hence they were desirous of seeking the premises which were in occupation of the petitioner as tenant. 2 The petitioner filed the written statement and denied the claim of the landlords. The petitioner did not dispute the relationship between the parties and pleaded that he was in occupation and possession of the suit premises since 1977. It was pleaded that though he had a three storied house of his own in Itwari, it was an old construction and was in dilapidated condition and hence though the first and the second floor premises of the three storied building were vacant the defendant was not able to occupy the same. It was pleaded by the petitioner that the landlords had not desired to occupy the suit premises for the bonafide need and in fact they had entered into an agreement of sale with one Prakash Malviya on 31.12.1996. The petitioner pleaded that the landlords indeed wanted to sell off the suit property after getting it vacated from the petitioner at a higher price and hence a suit for eviction was filed. The parties tendered the evidence and on an appreciation of the same, the trial court dismissed the suit of the plaintiffs, mainly on the ground that the landlords did not desire to occupy the suit premises and had an intention to sell the same as they had entered into an agreement of sale with one Shri Malviya on 31.12.1996 after receiving the earnest amount from him. The trial court held that the comparative hardship which would be caused to the tenant would be greater had the suit been decreed and therefore, the trial court dismissed the suit of the plaintiffs. 3 The first appellate court on re-appreciation of the material evidence on record, reversed the findings recorded by the trial court on both the issues i.e. on the issue of bonafide need and on the issue of comparative hardship. The first appellate court considered the evidence of the plaintiffs which showed that the plaintiffs were staying along with several other members of the family in a flat which admeasured only 750 sq.ft. The first appellate court found that the flat in occupation of the landlord was insufficient and the landlord's bonafide required suit premises for their occupation. The court found that the flat in the Girnar Housing Society was in the name of the mother of the plaintiffs and they were residing in the said flat along with other members. The first appellate court then found that the petitioner had clearly admitted in his cross examination that he had a three storied building in Itwari and though two of its floors i.e. 2nd and 3rd floor of the building were got vacated, the same were kept vacant. The first appellate court then found that the trial court was not justified in holding that the landlord desired to sell the suit property to a third party after getting it vacated from the tenant. The first appellate court found that the landlords had vehementally contested the suit filed by Shri Malviya for specific performance of contract. Moreover, the said transaction i.e. agreement of sale was executed in the year 1996 and the present suit was instituted by the landlords in 4 the year 2003. The first appellate court found that the need of the parties goes on changing and in this case it cannot be said that the landlord did not have the bonafide need to occupy the suit premises. The finding recorded by the first appellate court on the issue of bonafide need are pure findings of facts based on a proper appreciation of the material on record. They call for no interference in exercise of the writ jurisdiction. So also, the first appellate court was also justified in holding that the hardship which would be caused to the landlords would be greater than the hardship which would be caused to the tenant in case the suit premises was not vacated by the tenant. The first appellate court held that it was crystal clear that the landlords required the suit premises for residential purposes and the members in the family of the landlords were facing great difficulty in accommodating themselves in a small flat in Girnar Housing Society admeasuring less than 800 sq.ft. The first appellate court found that on the other hand the tenant had disposed of the three storied building which was owned by the tenant during the pendency of the proceedings and was occupying the premises which belonged to the landlords. In such circumstances, the first appellate court held that the respondents would be put to greater hardship than the petitioner in case the decree of eviction was not passed in favour of the respondents. The findings on the issue of 5 comparative hardships also appears to be just and proper. In the result, the writ petition fails and is dismissed with no order as to costs. Shri M.S.Gupta, the learned counsel for the petitioner at this juncture, seeks a stay of this order and the judgment passed by the first appellate court on 18.11.2010 by a period of 8 weeks. Shri A.G. Gharote, the learned counsel for the caveator/respondent strongly opposes the prayer made on behalf of the petitioner. As the first appellate had passed the order as early as on 18.11.2010 and since there was no stay operating in favour of the petitioner during the period from 18.11.2010, till this date, it would not be in the interest of justice to grant stay to the effect and operation of this order as also the judgment passed by the first appellate court on 18.11.2010 for a period of 8 weeks. The prayer made on behalf of the petitioner is rejected. JUDGE SMP