1 (WP2479.93) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2479 OF 1993 Smt. Dularibai Baburao Ghorpade .... Petitioner. V/s Smt. Khairunissa P. Nabab and Others ..... Respondents. Mr. Sanjay Patil i/b Mr. P.M. Pradhan for the Petitioner. Ms. V.S. Mhaispurkar i/b Mr. D.S. Mhaispurkar for Respondent No.6. CORAM: V. M. KANADE, J. DATE : 13th June, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel for the Respondent No.6. 2. Petitioner is the original landlord and Respondents are original tenants. Petitioner filed a suit for eviction on the ground of bonafide requirement and construction of permanent structure without consent of the landlord. It was contended that the tenant constructed a shed admeasuring 10’ X 10’. So far as the question of bonafide requirement is concerned, it was contended that the Plaintiff had only three rooms and there were 18 members in her her family. The Trial Court decreed the suit and held that Plaintiff had proved that the Defendants had made construction of 2 (WP2479.93) permanent nature and also held that Plaintiff had proved bonafide requirement and that greater hardship would be caused to the Plaintiff if decree was not passed in her favour. Against this judgment and order, tenants preferred an appeal. The lower Appellate Court, however, reversed the judgment and order of the Trial Court and held that the construction made by the tenants did not fall within the purview of section 13(1)(b) of the Bombay Rent Act. It further held that though the Plaintiff had established bonafide requirement, grater hardship would be caused to the Defendants if decree of eviction was passed. 3. The learned Counsel appearing on behalf of the Petitioner submitted that the Commissioner had taken inspection of the premises and the Commissioner’s Report clearly proves that tenant had constructed one room admeasuring 10’ X 10’. It is submitted that the lower Appellate Court, therefore, was not justified in setting aside the finding of the Trial Court. 4. It is not possible to accept the submissions made by the learned Counsel appearing on behalf of the Petitioner. The Commissioner’s report clearly indicates that the said structure which was erected was not a permanent structure because there was no use of brick and mortal. The Commissioner’s report also does not indicate as to whether the same was enclosed by walls. The lower Appellate Court, 3 (WP2479.93) therefore, was justified in not relying on the Commissioner’s report. So far as the question of hardship is concerned, though lower Appellate Court has confirmed the finding of the Trial Court, it has observed that greater hardship would be caused to the tenant and not to the landlord. That being the position, it is not possible to interfere with the finding recorded by the lower Appellate Court while exercising jurisdiction under Article 227 of the Constitution of India. 5. Writ Petition is dismissed. (V.M. KANADE, J.) 4 (WP2479.93)