1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.5917 OF 2010 (SMT. PRAMILA LALLU FULSUNGE & ANR...VS..SMT. MAHRUNNISA ABDUL HAFRIS.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr.A.M.Rizwy, Advocate for Petitioners. Mr.M. Shareef, Advocate for Respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 24, 2011. Heard the learned counsel for the parties. By this petition the petitioner impugns the judgment passed by the first appellate Court on 30.04.2010 reversing the judgment passed by the trial Court on 03.01.2008 dismissing the suit filed by the plaintiff / respondent for possession of the suit property. The respondent is the original plaintiff. She had filed a suit for eviction of the tenants under Sections 15 and 16(1)(g) of the Maharashtra Rent Control Act. The trial Court held that the suit was filed by the landlady before the statutory period under Section 15 of the Act expired and hence, the landlady was not entitled to secure the possession of the suit premises under Section 15 of the Act. The trial Court further held that the respondent was also not entitled to possession under Section 16(1)(g) of the Act. It was observed by the trial court that there was nothing on record to show that there were 15 members in the family of the respondent and the respondent required the suit premises for 2 bonafide occupation. It was observed by the trial Court in the judgment that the respondent had not produced the ration card on record to show the number of members in the family and had also not filed the rent receipts to show that one of her sons, by name Abdul Jameel, was required to stay in a rented premises as there was no accommodation available with the respondent. The first appellate Court, on a reappreciation of the evidence on record, confirmed the findings recorded by the trial Court on the issue of habitual default and reversed the findings recorded by the trial Court under the provisions of Section 16(1)(g) of the Act of 1999. The first appellate Court held that the respondent had proved by cogent and convincing evidence that there were several members in the family and it was not possible for her to stay in the premises comprising of five rooms and the rented premises were bonafidely required by the respondent for her occupation. The first appellate Court held that the married daughter of the respondent by name Rukhsana Begum was residing with the respondent along with her children. The first appellate Court considered the fact that a ration card was produced by the respondent on record to prove that there were many members in the family of the respondent. The first appellate Court mainly relied on the admissions of the witness of the defendant, Smt. Madhuri Fulsunge who admitted that the respondent was staying along with her sons in the premises comprising of six rooms. On hearing the learned counsel for the parties and on perusal of the judgments passed by both the Courts, it appears that the first appellate Court was perfectly justified in 3 reversing the finding recorded by the trial Court under Section 16(1)(g) of the Act of 1999. It is necessary to note that the respondent had entered into the witness box and she had stated in her evidence and she had four sons and one daughter by name Rukhsana Begum. She claimed possession of the suit premises as there were 15 members in her family. According to the plaintiff, five rooms in her possession were insufficient for the residence of the 15 members. It was the case of the plaintiff that one of her sons by name Abdul Jameel had to reside in a rented premises as five rooms were insufficient for the residence of 15 members. The first appellate Court considered the fact that a xerox copy of the ration card was produced by the respondent. Even if the same ought not have been produced by the respondent, it cannot be said that the respondent had not proved that there were many members in her family and that five rooms, in which she was residing, was insufficient to accommodate all the members of her family. There was ample oral evidence on record to prove the said fact and it is not necessary in every case to prove the membership in one's family by production of the ration card or any other documentary evidence. In this case, the fact that there were many members in the family of the respondent was admitted by the witness of the petitioner / tenant. Smt. Madhuri Fulsunge clearly admitted in her cross-examination that the plaintiff and her three sons and their families were residing together and she did not know whether the fourth son Abdul Jameel was residing separately from the plaintiff. The witness then admitted that she was aware that Abdul Jameel was residing at Anant Nagar, Nagpur but she was not aware whether he was residing in a rented premises. Thus, it was apparent from the cross-examination of the witness examined on behalf of 4 the petitioner that the respondent was residing in the premises comprising of six rooms along with her three sons and their families. The first appellate Court, therefore, rightly held that in such circumstances, it was necessary for the respondent to secure the premises occupied by the petitioner / tenant for her bonafide residence. The first appellate Court rightly held that six rooms in possession of the respondent were insufficient for the residence of the respondent, her three sons and her daughter and their families and the need of the respondent was genuine and bonafide. As regards ‘comparative hardship’ it is rightly held by the first appellate Court that the respondents was staying in the premises which were insufficient for the residence of 15 members and the defendant / petitioner had not brought anything on record to show that the plaintiff had any other accommodation for her residence. It was also not the case of the petitioner that after the suit was instituted, the petitioner tried to search for any other accommodation and the same was not available to him. The first appellate Court rightly held that it was necessary for the petitioner to search for other accommodation to show his bonafides but there is total absence of the evidence in this regard. In the facts and circumstances of the case, the first appellate Court rightly held that the hardship suffered by the landlady would be more severe than the hardship suffered by the tenant in case the suit filed by the plaintiff was not decreed. The findings recorded by the first appellate Court on the issue of bonafide need and on the issue of comparative hardship are pure findings of facts based on a proper appreciation of the material evidence on record. The findings call for no 5 interference in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE RR..