1 228-CRA.221.07 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 221 OF 2007 Waman Balku Yevale. ... Applicant Versus 1. Ashok Shankar Bhosale. 2. Siddharth Shankar Bhosale. ... Respondents ----- Mr. Sandesh Patil for the Applicant. Mr. N.P.Deshpande for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 20 th December, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the parties. 2 The Respondents are the original Plaintiffs and the present Applicant is the original Defendant. The suit property is one room admeasuring 10' x 10' situated on the property bearing C.T.S. Nos.2666 to 2670, Bopodi, Pune. The suit premises was let out for residential purposes. 2 228-CRA.221.07 3 The Respondent No.1 – Plaintiff No.1 is an advocate by profession. His case is that he is in possession of only two rooms admeasuring 10' x 12' and 10' x 15' in which he is residing alongwith his mother and sister. In the suit filed in the year 2000, his case is that he was of marriageable age and he was unable to perform his marriage due to lack of accommodation. It was contended that his mother being very old, requires an independent accommodation. It is contended that the Respondent No.2 – Plaintiff No.2 alongwith his wife, two sons and a daughter are residing in two rooms admeasuring 10' x 15' and 10' x 12'. It is contended that another sister of the Respondent by the name Dr.Sadhana was separated from her husband and was residing in a tin shed in their property with her two daughters and a son for a period of more than seven years. It was contended that the Respondents are social workers and they are running a library and other institutions in tin shed situated on their property. In the same tin shed, the said Dr.Sadhana is running a dispensary. It was contended that apart from the fact that both the 3 228-CRA.221.07 Plaintiffs require additional accommodation for accommodating their families, the Respondent No.1 – Plaintiff No.1 needs separate premises for starting his office and the sister Dr.Sadhana needs a separate premises for residence and for starting her clinic. Apart from pleading the ground of bona-fide need, it was contended that the suit premises has been sublet to one Mr.Prakash Dnyaneshwar Gaikwad. The said ground was pleaded by way of amendment. The suit was contested by the revision Applicant by filing a written statement. He denied the plea of bona-fide need. He stated that the Respondents have acquired eight rooms in a Chawl and the said eight rooms are in possession of the Respondents – Plaintiffs. By way of additional written statement, the Applicant denied the allegation of sub-tenancy. The trial Court decreed the suit on the ground of reasonable and bona-fide need. An appeal was preferred by the Applicant before the District Court. The appeal has been dismissed by the District Court. 4 The learned counsel appearing for the Applicant has taken the Court through the pleadings and the findings recorded by both the 4 228-CRA.221.07 Courts below. As this revision application was to be heard alongwith the Writ Petition No.388 of 2006, he has relied upon the additional affidavit filed by the Petitioner in the said petition for bringing on record the subsequent events. He pointed out that the Civil Application No. 2505 of 2010 is filed in the writ petition for brining the same events on record. 5 He pointed out the admitted position that the Respondents received possession of two rooms from the tenant by the name Mr.Pannikar and one room from another tenant – Mrs.Pillay. He pointed out that the Respondents have obtained a decree for possession against a tenant Mr.Kapale and he stated that the said decree has not been executed. Thus, he submitted that two rooms of Mr.Pannikar, one room of Mrs.Pillay and one room of the said tenant in respect of which the decree is passed have become available to the Plaintiffs. He also pointed out that the evidence of one Mr.Kishor @ Raju P. Pardeshi. The said witness stated that his employer Mr.Patharkar was in possession of a room in the property owned by 5 228-CRA.221.07 the Respondents and he has handed over the possession of the said room to the Respondents. Thus, he submitted that even the fifth room is available. 6 Inviting attention of the Court to the averments made by Mr.Prakash Dnyaneshwar Gaikwad, the Petitioner in the Writ Petition No.388 of 2006, in his affidavit dated 14 th February, 2011, the learned counsel appearing for the Applicant pointed out that mother of the Respondents Mathurabai Shankar Bhosale died on 5 th August, 2010 and therefore, her need is not subsisting. He also pointed out that the need of Sujata, a sister of the Respondents is no longer subsisting as she is no more. He pointed out that in the said affidavit, it is stated that the sister Dr.Sadhana was residing in a structure on land bearing Survey No.50. He stated that the Respondents have obtained possession of the property bearing Survey Nos.2662 to 2665 in which there are eight rooms. He stated that out of the eight rooms, one room consisting of two internal rooms is vacated by one Mr.Rajan Pillay and the Respondents' sister Dr.Sadhana is in possession of the said 6 228-CRA.221.07 rooms. It is stated that four rooms out of the eight rooms are vacant as the concerned tenants are not occupying the same. His submission is that due to the subsequent events which are pleaded by way of the said affidavit which is filed in companion writ petition filed by another tenant, the need of the Respondents has been completely eclipsed. He pointed out that in view of the order passed by this Court today in the Writ Petition No.388 of 2006, another premises having two rooms will be available in the year 2015. His submission is that thus, the bona-fide need is not subsisting and therefore, the decree for possession cannot be sustained. He submitted that the Applicant is in possession of only one room and he has no other premises available. The learned counsel appearing for the Respondents invited attention of the Court to the affidavit-in-reply filed by the Respondent No.1 to the additional affidavit in the Writ Petition No.388 of 2006. He submitted that with passage of time, the need has in fact increased and by no stretch of imagination, the need has been completely eclipsed. He pointed out the averments made in the affidavit filed by the 7 228-CRA.221.07 Respondent No.1 dealing with the additional affidavit filed by the Petitioner in the writ petition. 7 The original suit was filed by the Respondents in the year 2000 and the proceedings have remained pending for a long time. At the time of institution of the suit, the need pleaded was of the Respondent No.1 himself for his residence and for his legal profession, the need of the mother and the sister Sujata, the need of the Respondent No.2, his wife and three children and the need of the sister Dr.Sadhana alongwith three children. At that time, there were four small rooms in possession of the Respondents and it was pleaded that the sister Dr.Sadhana is residing in a tin shed constructed on the property Survey No.50. It is true that another sister and the mother have expired during the pendency of the proceedings. However, the additional affidavit filed by the Respondent No.1 in March 2011 in companion writ petition discloses that the age of the elder son of the Respondent No.2 is now eighteen years, the age of the younger son is fourteen years and the daughter's age is twelve years. 8 228-CRA.221.07 8 In the additional affidavit, the Respondent No.1 has disclosed that the Respondents are in possession of the property bearing Survey Nos.49A (City Survey Nos.2662 to 2665) and Survey No.50 situated at village Bopodi, District Pune. He pointed out that there are five rooms in the said Survey No.50 out of which two rooms are in possession of the family of the Respondents and in fact, the Respondent No.1 is occupying the said rooms. He stated that the possession of other two rooms is obtained from Mr.Pannikar which are being used by his brother and the brother's family. The tin shed in Survey No.50 being used by his sister Dr.Sadhana wherein she is residing alongwith her two daughters and a son. 9 As far as Survey No.49/A is concerned, he has stated that there are eight tenants occupying eight rooms. It is pertinent to note that even additional affidavit of the Petitioner in writ petition, he has not stated that four tenants have vacated the rooms in their respective occupation. He has merely stated that they are not using the rooms. 9 228-CRA.221.07 It is disclosed that apart from the said eight rooms, there are two rooms which are occupied by Dr.Sadhana. As far as Survey No.49 is concerned, there is a tin shed containing three rooms in possession of a Trust which is running a Centre of Leprosy Eradication Programme. The two rooms are occupied by the said Trust and there is one room used for Government library. He has stated that the room vacated by Mrs.Pillay is occupied by the said Trust. 10 Not only in the evidence but in the affidavit filed dealing with the additional affidavit of the Petitioner in the writ petition, the Respondent No.1 has given details of the rooms in possession of the Respondents and their family members. 11 The Respondent No.1 is an advocate by profession. He is unable to get married due to lack of accommodation. Considering the requirement of premises for his legal profession and the premises which may be necessary for residence after marriage, it can be safely said that the need of the Respondent No.1 himself is of minimum four 10 228-CRA.221.07 rooms. As far as the Respondent No.2 is concerned, he has an adult son and a grown up son and a daughter. It is not for the tenant to dictate in what manner a landlord should enjoy his property. Therefore, even in the case of the family of the Respondent No.2, it can be safely said that the Respondent No.2 needs minimum four to five rooms for exclusive use of his family. 12 Dr.Sadhana, the sister of the Respondents has two daughters and a son. She is occupying a tin shed on Survey No.50 and two rooms in Survey No.49A. She is in need of one or two rooms for carrying on her medical profession and she has three children. Therefore, even her reasonable requirement can be said to be of more than four to five rooms. Thus, taking a reasonable view of the matter, the requirement of the family of the Respondents is of about 14 to 15 rooms. The bona fide requirement cannot be equated with dire necessity. Therefore, even taking into consideration the rooms which have subsequently become available including the room of the tenant Mr.Kapale and two rooms in possession of the tenant Mr.Prakash 11 228-CRA.221.07 Gaikwad (the Respondent in the Writ Petition) which may become available in the year 2015, it is not possible to say that due to subsequent events, the need of the Respondents – landlords has been eclipsed. Though, the size of the family may have been reduced by two members, in the reasonable the need of the Respondent No.2 and Dr.Sadhana has increased as their children have grown up. 13 Now coming to the comparative hardship, the suit is pending from the year 2000. As far as the hardship is concerned, it will be necessary to make a reference to paragraph No.15 of the judgment of the Appellate Court which reads thus: “15} It has come in the evidence that defendant was serving as a labour in a Private Company and that he had retired in the year 2000. The defendant is presently aged about 59 years. After his retirement he had received Rs. 1,75,000/- as G.P.F. and Rs.60,000/- as Gratuity. Significantly the wife and children of defendant have been residing in Satara District since many years. Wife of defendant is serving as a Primary Teacher since about 34 years prior to the year 2004. The defendant is having his house consisting of four rooms at Satara road, Koregaon, District Satara. He has also agricultural lands at village Ambavade, District Satara. His three daughters out of four are married. His youngest daughter has been taking education since beginning at Satara road. He goes to his 12 228-CRA.221.07 wife and daughters on every Saturday and Sunday. After his retirement, he is doing labour work and some painting work at Pune for five days in a week. The defendant can do his labour work even at his native place. In my considered view, no hardship would be caused to the defendant if a decree of eviction is passed against him.” Therefore, apart from the fact that no efforts have been made by the Applicant to find out another accommodation, there is no reason to disturb the concurrent findings recorded on the ground of comparative hardship. 14 Hence, there is no merit in the revision application. The revision application is dismissed. Rule is discharged with no order as to costs. 15 Interim relief operating during the pendency of the revision application shall continue to operate for a period of three months from today. [ A.S.OKA, J ]