1 (CRA248.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REIVISON APPLICATION NO.248 OF 2011 Mrs. Snehlata Mangesh Bhatkal .... Petitioner. v/s Mrs Joginder Kaur Sethi and others ..... Respondents. Shri V.A. Thorat, Senior Counsel with Shri R.A. Thorat and Shri P.J. Thorat for the Petitioner. Shri P.S. Dani i/b Shri Rampal Kohli for Respondent Nos. 2 to 8. CORAM: V. M. KANADE, J. DATE : 4th May, 2011 P.C.:- 1. Heard. 2. Petitioner is the original Defendant/Tenant and the Respondents are original Plaintiffs/Landlords. For the sake of convenience, parties shall be referred to as “Plaintiffs” and “Defendant”. 3. Defendant is aggrieved by the judgment and order of eviction passed by the trial court against her on the ground of bonafide requirement and non-user, which order was 2 (CRA248.11) confirmed by the lower appellate court. 4. Brief facts are as under :- 5. Plaintiffs filed a suit for eviction against the Defendant. Plaintiffs’ case was that they had a large joint family and there were about 26 members in the said family. The premises which were in their possession consisted of 9 bed- rooms. There were three flats in their possession; one was on the second floor, another was on the third floor and the flat on the ground floor was given on leave and license basis prior to the filing of the suit on account of financial constraints by the Plaintiffs. It was also contended in the suit that the Defendant was not in use and occupation of the premises six months prior to the filing of the suit. 6. The trial court accordingly decreed the suit and the lower appellate court also dismissed the appeal filed by the Defendant. 7. Shri Thorat, the learned Senior Counsel appearing on behalf of the Defendant submitted that the lower courts did not take into consideration the fact that the Plaintiffs had given one flat on leave and license on the eve of filing of the suit. It was submitted that if the bonafide requirement of the Plaintiffs was genuine, they would not have given this three bed-room flats on leave and license basis and, in that case, they would have 12 bed-rooms at their disposal. It was 3 (CRA248.11) also submitted that both the Courts did not consider the aspect that, during pendency of the suit, Plaintiffs had received possession of the said flat on the ground floor. It was then submitted that the lower appellate court while dismissing the appeal of the Defendant had taken into consideration the requirement of their children in its judgment, though, no such averment or plea was found in the plaint. So far as the ground of non-user is concerned, it was submitted that the Defendant was an old lady who was 80 years of old and was suffering from various ailments and that she used to reside with her son on a few occasions. It was submitted that both the lower courts had given much emphasis on the fact that the electric meter showed that there was no consumption of electricity. It was submitted that, in fact, Plaintiffs had connected the said electricity to their own flat and MSEB had disconnected the electricity of the Defendant’s flat. 8. It is not possible to accept the submissions made by the learned Senior Counsel appearing on behalf of the Petitioner/Defendant. So far as the ground of non-user is concerned, the Defendant in her evidence had given specific admission that she was not residing in the premises at least since 2002. Her son, who was examined as D.W. 3, had stated that he was residing in the suit premises since his birth and, even after his marriage, with his wife till November, 2002 till he was transferred to Bangalore and this was even after he was shifted to his own independent 4 (CRA248.11) premises in May 2000. The trial court has taken into consideration the contention of the Defendant and found that the contention of the Defendant that she was residing in the premises without any electricity could not be accepted. The trial court has also noted that the Defendant had admitted that she was not aware that there was any electric supply in the suit premises. The trial court further has observed that even if it was accepted that there was disconnection of power supply at the instance of landlord in January 2003, the Defendant had not taken any steps to get the electricity restored. There was no reference to any steps which were taken by the Defendant for restoration of the electric supply. Hence, both the courts below have rightly held that it was established that the Defendant was not in use and occupation of the premises six months prior to the filing of the suit. 9. So far as the contention of the learned Senior Counsel Shri Thorat on the ground of boanafide requirement is concerned, even on this aspect, both the lower courts have taken into consideration the effect of the Plaintiffs’ acquiring the flat on the ground floor and the various members and persons residing in the Plaintiffs’ family on the basis of evidence which was adduced by the Plaintiffs and have held that the Plaintiffs were entitled to claim the suit premises on the ground of bonafide requirement. The trial court as well as the lower appellate court have arrived at a conclusion that greater hardship would be caused to the 5 (CRA248.11) Plaintiffs if decree of eviction is not passed. 10. It will thus be not possible to interfere with the concurrent finding of fact recorded by both the courts below on both these grounds. No case is, therefore, made out for interfering with the judgment and order passed by the lower courts. Civil Revision Application is dismissed. 11. At this stage, the learned Counsel appearing on behalf of the Petitioner/Defendant seeks some time to enable the Petitioner to file SLP in the Apex Court. Time is given upto 15th August, 2011. However, the Petitioner shall file an undertaking in usual form on/or before 7th May, 2011. In the meantime, Petitioner shall not create any third party rights or handover possession of the suit premises. If the Petitioner is not in a position to file the said usual undertaking on/or before 7th May, 2011, liberty is granted to seek extension of time to file the said undertaking upto 8th June, 2011. 12. Civil Revision Application is disposed of. (V.M. KANADE, J.) 6 (CRA248.11)