1 CRA No.1123 of 2010 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.1123 of 2010 (i) Shri Keshav Krishna Shetty (ii)Shri Yadav Krishna Shetty (iii)Shri Jaya Krishna Shetty (iv)Smt.Lila Krishna Shetty ... Applicants versus (i) Smt.Namita Nilkanth Bagayatkar ... Respondent ... Mr. Abhijit Kulkarni for the applicants. Mr. Sanjeev Rairkar for the respondent. CORAM : D.G. KARNIK, J DATED : 22nd February 2011 P.C. 1. Heard learned counsel for the parties. 2. This revision application is directed against the judgment and order dated 13 September 2010 passed by the District Judge-II Pune allowing the appeal of the respondent – landlady and there passing a decree for eviction of the petitioners. 2 CRA No.1123 of 2010 3. A suit filed by the respondent for eviction of the petitioners was dismissed by the trial court. However, the appellate court allowed the appeal and passed a decree on three grounds viz (i) reasonable and bonafide requirement and that greater hardship would be caused to the respondent by refusing to pass a decree than to the petitioners by passing a decree (ii) the conduct of the petitioners amounted to nuisance and annoyance inasmuch as the petitioners had approached upon the open space in front of the suit shop and using the same for the purpose of business and (iii) change of user. 4. The lower appellate court is a final curt of facts. In the absence of perversity, the findings of fact recorded by the appellate court cannot be interfered with in exercise of a revisional jurisdiction under section 115 of the Code of Civil Procedure. I am satisfied that the finding of fact in respect of bonafide requirement, comparative hardship and nuisance are possible findings of fact which requires no interference in exercise of a revisional jurisdiction. 5. Respondent landlady has separated from her husband. Initially, she was residing at Vashi where she was working as a teacher. In the year 1995 she has shifted to Pune and residing in the first floor of the suit building. She has a son who at the time of the filing of the suit was taking education in the Government 3 CRA No.1123 of 2010 Engineering College. During the pendency of the appeal he has passed his B.Tech examination. Respondent’s case is that she requires the suit premises for setting up her son in life who wants to carry on business. In her deposition, she has deposed that she is temporarily working as a teacher in a private school on a consolidated salary of Rs.10,000/- which is not enough for her maintenance. She is aged 57 years and is about to retire. She therefore also needs the premises for the business as there is no other source of income to her. The appellate court has held that petitioners have not searched for any alternative accommodation and has recorded the finding on comparative hardship against the petitioners. In my view, the finding of fact of the appellate court of the bonafide as well as hardship is a possible finding of fact based on re-appreciation of the evidence. 6. As regards the nuisance, the respondent stated on oath that the petitioners have encroached upon the open space in front of the shop and have started selling sandwiches therein. The petitioners also put up tables and chairs in the open space and made an encroachment of about 8’ x 10’ in the open space in front of the shop. She has produced the photographs on record. She has also examined Suhas Manjrekar, her brother who is also residing in the suit building itself to prove this encroachment. This finding of encroachment and nuisance is also a possible finding of fact. In the circumstances, there is no merit in the civil revision application which is hereby rejected summarily. 4 CRA No.1123 of 2010 7. After this order was pronounced in the open court, learned counsel for the petitioners pray that the petitioners may be protected for some time to enable them to approach the superior court. It is accordingly directed that decree of eviction shall not be in force for a period of 10 weeks from today subject to all the petitioners filing an undertaking in this court within one week that they shall not create any third party interest in the suit premises nor part with the possession thereof. If an undertaking is not filed within one week, the decree can be executed forthwith. (D.G.KARNIK, J)