wp2507.odt 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. 2507/2011 Anil Badrinath Mandve -vs- Vishakha D/o Madan Deshbhratar ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri O. D. Jain, learned counsel for the petitioner. Shri A. H. Laddhad, learned counsel for the respondent. CORAM : R. M. SAVANT, J. DATED : 26/07/2011. The above petition filed under Article 227 of the Constitution of India takes exception to the judgment and order dated 05/03/2011 passed by the learned District Judge-15 and Assistant Sessions Judge, Nagpur in Regular Civil Appeal No.562/2009, by which the judgment and decree of the trial Court dated 27/10/2009 came to be confirmed. Resultantly, the decree passed by the trial Court on the ground of bona fide need of the respondent came to be confirmed. The petitioner herein is the original defendant in Regular Civil Suit No.262/2007, which was filed by the respondent herein, who is the original plaintiff, for arrears of rent, ejectment on the ground of bona fide need and recovery of possession. The suit premises is Municipal Corporation House No.440, situated Behind Gaddigodam, Nagpur. The trial Court, on the basis of the material on record, came to a conclusion that wp2507.odt 2/4 the bona fide need has been proved by the plaintiff. The trial Court held that the minor contradictions here and there in the evidence of the plaintiff would not impinge upon the plaintiff’s case that she bona fidely requires the premises in question. The trial Court also took into consideration the case of the defendant that two other premises were available to the plaintiff to reside, in so far as one of the premises are concerned, the same are of the ownership of the paternal grandfather wherein the paternal aunt of the plaintiff was residing, in so far as the other premises are concerned, though owned by the father of the plaintiff are in occupation of the stepmother of the plaintiff. The trial Court recorded a finding that the said premises cannot be said to be available to the plaintiff for residence. The trial Court also took into consideration the fact that the defendant’s son had premises at Zingabai Takali wherein the defendant could reside. The trial Court on the basis of consideration of the said material before it, recorded a finding that the plaintiff has proved the bona fide need and that the comparative hardship would be more on the plaintiff rather than the defendant, if the decree is not passed. The trial Court however rejected the case of the plaintiff in so far as non occupation of the premises by the defendant in preceding six months. The decree of the trial Court is dated 27/10/2009. Aggrieved by the said decree, the defendant filed an Appeal before the District Court. The said Appeal came to wp2507.odt 3/4 be numbered as Regular Civil Appeal No.562/2009. The Appellate Court on a re-appreciation of the evidence confirmed the decree in so far as the bona fide need is concerned and as also the finding as regards the comparative hardship. The Appellate Court inter alia held that it was not for the Court to order the landlord as to how to use the premises in question. The Appellate Court further recorded a finding that the case of the defendant that two premises, which are said to be available to the plaintiff wherein the plaintiff could stay, on the said basis, it could not be said that the plaintiff has not proved her bona fide need. The First Appellate Court, therefore, confirmed the decree passed by the trial Court. Both the Courts below have relied upon the judgments of the Apex court covering the issue of bona fide requirement and the tests applicable thereto. It is contended by the learned counsel for the petitioner that in view of the contradictions in the evidence of the plaintiff, the case of bona fide requirement was not proved. As indicated above, both the Courts below have recorded concurrent findings of fact as regards the bona fide need of the plaintiff and the comparative hardship. In that regard a useful reference could be made to the judgment of the Apex Court reported in AIR 2008 SC (Supp) 526 in the matter of Shamshad Ahmad and Ors. v. Tilak Raj Bajaj (D) by L.Rs. and Ors., wherein the Apex Court has held that - “The High Court in its writ jurisdiction under Articles 226 and 227 of the Constitution of India wp2507.odt 4/4 does not act as a Court of Appeal or a Court of Error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior Court or Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law.” Having perused the orders passed by the Courts below, in my view, the same do not warrant any interdiction in the writ jurisdiction of this Court. The writ petition is accordingly dismissed. The learned counsel for the petitioner at this stage seeks time on behalf of the petitioner to vacate the premises in question. The petitioner is granted time up to 31st October, 2011 to vacate the premises on furnishing usual undertaking to be filed in this Court within two weeks, the said undertaking to cover all the family members and occupants. If such an undertaking is not filed within the time stipulated by this order, the respondent-landlord would be free to execute the decree in accordance with law. JUDGE KHUNTE