WP. 4224-92 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 4224 OF 1992 Smt. Rudravvabai Wd/o Veerappa Jinkeri (since deceased, represented through legal heirs) and Ors. ...Petitioners Vs. Iranappa S. Trishule (since deceased, represented through legal heir) ...Respondent *** Mr. P. M. Mengane, for the Petitioners. Mrs. A. R. S. Baxi, for the Respondent. *** CORAM: V. M. KANADE J. DATE : JUNE 7, 2011 PC : 1. Heard the learned counsel appearing on behalf of the petitioners and the respondent. Petitioner is the original landlord and respondent is the original tenant. For the sake of convenience, parties are hereinafter referred to as the ‘landlord’ and the ‘tenant’. 2. The landlord had filed a suit for eviction on the ground of bona fide requirement and arrears of rent. The trial Court came to the WP. 4224-92 - 2 - conclusion that the landlord had not established that tenant was in arrears of rent. So far as question of bona fide requirement is concerned, the trial Court held that the landlord has established that he requires the suit premises for his personal use and occupation. The trial court, however, came to the conclusion that if the suit was decreed on that ground, greater hardship would be caused to the tenant and not to the landlord. After having recorded the said finding, trial court decreed suit of the landlord under Section 13(1)(g) of the Bombay Rent Act. 3. Being aggrieved by the said judgment and order, the tenant preferred an appeal. The appellate court set aside the judgment and order of the trial court on the ground that after having recorded the finding on the point of hardship in favour of the tenant, it held that the trial court could not have passed the decree of eviction. It is an admitted position that the landlord did not file cross-objection in respect of the finding of the trial court on the ground of arrears of rent. 4. During pendency of this petition, a Civil Application was filed by the petitioner in which it was contended that the tenant is no longer residing in the premises and has shifted to a bungalow which is constructed by the joint family. Secondly, it was contended that during pendency of the petition, the suit premises were demolished and the suit WP. 4224-92 - 3 - premises were no longer in existence. It was contended that, therefore, this Court may record a finding that the tenancy should extinguish on account of demolition of suit premises. A reliance is placed on the judgment of the learned Single Judge of this Court in the case of – Sidharam Ganpati Mulage & Ors., Petitioners vs. Bashir Elahibaksh Tamboli & Ors., Respondents1, and more particularly on the observations made in paragraph 8 and 9 of the said judgment. 5. On the other hand, the learned counsel appearing on behalf of the respondent submits that the trial court had specifically held that the plaintiff had not established that the tenant was a member of the joint family and had observed that the landlord could not prove that tenant had a share in a flat which was purchased by the brother of the tenant. It is submitted that in view of this finding, it was not open for the landlord now to bring additional documents on record in support of his case. 6. So far as demolition of the suit premises is concerned, the said fact is disputed by the tenant and it is submitted that the said issue cannot be decided in this writ petition since it constitutes a separate cause of action. 7. It is not possible to accept the submissions of the learned 1 2009(3) Mh.L.J. 907 WP. 4224-92 - 4 - counsel for the petitioners. The trial court obviously committed a patent error of law in passing the decree of eviction after holding that greater hardship would be caused to the tenant. It is a settled position in law that even if bona fide requirement of the landlord is established, the court has to consider the question of hardship and if the court comes to the conclusion that greater hardship would be caused to the tenant, in that case, even if bona fide requirement is established by the landlord, a decree of eviction cannot be passed against the tenant. The lower appellate court was justified in setting aside order of the trial court. In my view, there is no infirmity in the judgment and order passed by the lower appellate court and as such, it will not be possible to interfere in the said concurrent finding on the question of hardship. 8. So far as averments which are made in the Civil Application are concerned, as rightly pointed out by the learned counsel for the respondent, the question whether tenancy would be extinguished or not, is a separate issue, which cannot be decided in this writ petition. Even in the judgment in the case of Sidharam Ganpati Mulage & Ors. (supra) on which reliance is placed by the learned counsel for the petitioner, the learned Single Judge has observed that the question as to whether tenancy rights of a tenant are extinguished or not would depend on facts WP. 4224-92 - 5 - and circumstances of each case and in a case where the landlord himself demolishes the suit premises, in such a case, it cannot be said that tenancy stands extinguished. This fact, therefore, being a disputed question of fact, cannot be decided in this petition. The petitioner is always at liberty to institute appropriate proceedings for, seeking such a declaration. In the result, it is not possible to interfere with the impugned judgment & order passed by the lower appellate court. Civil Writ Petition, is, therefore, dismissed. [ V. M. KANADE J.]