1 cra150.06.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY APPELLTE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO. 150 OF 2006 Pandurang Bandu Arja Occupation service (S.T. Controller) R/o C.S. No. 268, Tolli Galli, Manmad, Dist. Nashik ......Applicant. Vs. Smt. Meherun Bi W/o Shaikh Daud Since deceased per LRs. 1/A Abdul Rashid Shaikh Daud, Since deceased per L.Rs. 1-B Ismail Shaikh Daud 1-C Idris Abdul Rashid 1-D Akil Abdul Rashid 1-E Shaikh Abdul Rashid 1-F Mujammil Ismail shaikh All R/o Behind Mutton Market, Manmad, Tal. Nandgaon, Dist. Nasik. 1/B Ismail Shaikh Daud 1/C Idris Abdul Rashid 1/D Akil Abdul Rashid 1/E Shaikh Abdul Rashid 1/F Mujammil Ismail shaikh 2. Shaikh Kadir Abdul Rashid All R/o Behind Mutton Market, Manmad, Tal. Nandgaon, Dist. Nasik. ...Respondents. Mr. G.R. Agarwal for the Applicant. Mr. R.M. Hardas i/by P.N. Joshi for Respondent Nos. 1(a) to 1(f). 2 cra150.06.sxw CORAM : A.S. OKA,J. DATE : 16TH DECEMBER, 2010. JUDGMENT (PER A.S. OKA, J.) 1. This revision application was called out for final hearing. The applicant is the defendant-tenant and the respondents are the landlords. A suit for possession was filed by the respondents in respect of the suit premises consisting of 4 rooms, more particularly descried in the plaint. Suit premises is a residential premises. The suit was filed by the respondents on the grounds of arrears of rent, carrying out permanent construction, bonafide need and acquisition of suitable residence. The trial Court dismissed the suit. An Appeal was preferred by the respondents before the District Court. The ground of default was negatived by the District Court. The finding on the issue of bonafide requirement was recorded in favour of the respondents. The issue of hardship was also decided against the applicant. The appellate Court held that the ground of permanent construction was also established. The Appellate Court proceeded to pass a decree for possession. 2. The learned Counsel appearing for the applicant has taken the Court through the findings recorded by the trial Court and the appellate Court. He submitted that the requirement as pleaded by the respondents was not at all established. He submitted that instead of recording a proper finding on 3 cra150.06.sxw bonafide need, the appellate Court was impressed by the fact that the allegation of carrying out permanent construction was established. He submitted that there were other premises available to the respondents- landlords. He submitted that apart from the fact that the allegation of carrying out permanent construction was not established, at the highest, the work carried out can be called as repairs to the wall which had come down. He submitted that in fact it was the duty of the respondents to carry out the repairs, but the same was done by the applicant at his own costs. The learned Counsel appearing for respondent supported the judgment and decree and invited the attention of the Court to the affidavit filed by the respondent No.1E for himself and on behalf of respondents on 5th October, 2010. He submitted that only on the basis of humanitarian considerations the respondents are ready and willing to offer premises in house No. 1150 having area 16' X 14' as noted in paragraph 2-b of the said affidavit to the applicant which can be used by the applicant during his life time. He submitted that no right will be created in favour of the applicant in respect of the said premises. 3. I have considered the submissions. The case made out by the original plaintiff was that there were 16 members in his family and the suit premises was needed for evergrowing need of the growing family. 4. Evidence was brought on record to show that there were 21 members in the family of the respondents. In the evidence of 2nd plaintiff, all details including the names of the family members were set out. One of the contentions raised by the applicant was that the premises on the ground floor of the building in which the suit premises is situated was available to the 4 cra150.06.sxw respondents. It was contended that one Ansary had vacated the premises in his possession before the filing of the suit. 5. Though precise number of members of the family of the plaintiffs was pleaded and details were set out in the evidence of the 2nd plaintiff, applicant in his evidence pleaded ignorance about the members of the family of the respondents. The contention that one Ansary vacated the premises on the ground floor is based only on Municipal Assement Extract. However, in the cross-examination of the applicant, he admitted that except one Tambe, no other tenant vacated the premises in his possession. The finding of the appellate Court is that in the cross-examination, the applicant could not precisely state anything about the area occupied by Mr. Ansary and in which year he vacated the premises. 6. Considering the size of the family of the respondents and the extent of the premises occupied by the respondent, it is not possible to interfere with the finding of fact recorded on the ground of bonafide need. As far as comparative hardship is concerned, the appellant Court has observed that the applicant retired from the employment in 1992, and got retiral benefits in the sum of Rs. 2 lakhs and more. It was observed that after the institution of the suit, the applicant did not make any attempt to find out any other accommodation. Therefore, a finding on the issue of comparative hardship has been recorded against the applicant. There is no reason to find fault with the said finding especially when now the respondents have shown willingness to offer another accommodation to the applicant which can be used by the applicant during his life time. It must be noted here that there is an undertaking filed by the applicant dated 16th October, 2010 by which the 5 cra150.06.sxw applicant has showed willingness to accept the premises offered by the respondents and has agreed not to claim any rights in respect of the premises offered by the respondents. 7. As the finding on the issue of bonafide need and comparative hardship deserves to be confirmed, it is not necessary to deal with the other grounds of eviction. However, effect will have to be given to the statements made by the respondents in their affidavit dated 5th October, 2010. 8. Hence, I pass the following order. (i) Revision Application is rejected. (ii) Rule is discharged with no order as to costs. (iii) The statements made by respondent No.1E in the affidavit dated 5th October, 2010 filed for himself and on behalf of the respondents are accepted. (iv) The respondents shall handover to the applicant the possession of the premises more particularly described in paragraph No.2(b) of the affidavit dated 5th October, 2010 within a period of two months from today. At the time of receiving the possession of the said premises, the applicant shall simulteneously handover vacant and peaceful possession of the suit premises to the respondents. (v) In view of the aforesaid affidavit, the applicant and his wife will be 6 cra150.06.sxw entitled to remain in possession of the suit premises till he is placed in possession of the premises described in paragraph 2(b) of the affidavit. (vi) The undertaking of the applicant dated 16th October, 2010 is accepted. (vii) From the date on which the aforesaid premises is handed over to the applicant, he shall keep on paying monthly compensation of Rs. 100/- to the respondents on or before 10th day of every calender month. (viii) It is made clear that the said premises will be available to the applicant and his wife for their use and occupation during their life time and no interest of whatsoever nature is created in favour of the applicant and his wife in respect of the said premises. (ix) Parties to act upon the authenticated copy of this order. JUDGE