1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4382 OF 1993 Narayan Shankarrao Shinde since deceased by L.Rs. .. Petitioners versus Manohar Dattatraya Rode .. Respondent Mr.R.A.Thorat for the petitioner. Mr.Pramod N. Joshi for the respondent. CORAM : A.S.OKA, J. DATE : 5th May 2010. JUDGMENT: . The petitioners who are the legal representatives of the original plaintiff-landlord have filed this writ petition under Article 227 of the Constitution of India for challenging the impugned judgment and order by which the Appellate Court has reversed a decree of eviction passed in favour of the original plaintiff. 2. The suit filed by the plaintiff relates to suit premises bearing Block No.2 having three rooms more particularly described in the plaint. The suit premises was let out by the plaintiff to the defendant. The suit was filed on the ground of arrears of rent, bonafide 2 requirement and acquisition of suitable residence. The allegation in the suit was that there are 18 members in the family of the plaintiff out of which his three sons were married and one son was of marriageable age. It was contended that the premises possessed by the plaintiff was not sufficient to accommodate 18 members of the family. Another allegation was that the defendant had been alloted a residential quarters by virtue of his employment. The suit was contested by the defendant by filing written statement. The trial Court upheld the ground of bonafide requirement. Issue of comparative hardship was answered by the trial Court in favour of the plaintiff. The ground of the acquisition of suitable residence was also upheld. In an appeal preferred by the defendant-tenant, the Appellate Court has interfered and has set aside the decree for eviction. 3. The learned counsel appearing for the petitioners has invited my attention to the findings recorded by the trial Court. He pointed out that the trial Court accepted the case made out in the deposition of the plaintiff’s son. He pointed out that the finding of the trial Court was that the plaintiff has three sons who are married and there were 12 children in the family. He pointed out that even according to the case of the defendant, the plaintiff was in possession of three bigger rooms. He stated that the defendant specifically admitted that there 3 were 22 members in the family of the plaintiff. He pointed out the finding of the trial Court on the issue of comparative hardship. He pointed out that apart from the fact that the defendant was entitled to reside in railway quarters, it was for the defendant to search suitable accommodation. He pointed out that even before the trial Court, the plaintiffs offered that some time to vacate be granted to the defendant. Inviting my attention to the findings of the Appellate Court he submitted that the same are perverse. He submitted that the Appellate Court also accepted that there were 22 members in the family of the plaintiff. He invited my attention to the finding of the Appellate Court on the issue of comparative hardship. He submitted that the Appellate Court has completely ignored the fact that no efforts were made by the defendant to secure some other accommodation. He submitted that the perverse finding recorded by the Appellate Court on both the aforesaid issues is required to be set aside. The learned counsel appearing for the respondent supported the impugned judgment and decree. He submitted that in absence of any evidence to show that no other premises are available to the plaintiff, the Appellate Court was justified in disturbing the decree. He submitted that no interference is called for with the findings of fact recorded by the Appellate Court. Lastly, he submitted that petition is of the year 1993 and therefore it is necessary to permit the parties to 4 adduce further evidence on the issue of comparative hardship by remanding the matter to the Appellate Court. He submitted that one of the grounds stated by the plaintiff was that the respondent being an employee of railways , he was entitled to service quarters. He submitted that with the passage of time the respondent must have reached age of superannuation and therefore further evidence is required to be adduced. 4. I have given careful consideration to the submissions. Perusal of the finding of the trial Court shows that there is a categorical admission on the part of the defendant in his evidence that there are in all 22 members in the family of the petitioner-plaintiff. Though a case was sought to be made out that three married sons of the plaintiffs are residents of Igatpuri, the trial Court noted that in the cross-examination the respondent admitted that he was not aware whether the sons of the petitioner were residing at Igatpuri. The trial Court in paragraph 7 of its judgment noted admitted the position that there were only 7 members in the family of the respondent. In fact the case of the respondent-tenant was that the petitioner was in possession of three rooms which were of bigger size. After finding that there were 22 members in the family of the petitioner-plaintiff and there were three rooms in possession of the plaintiff, the bonafide 5 requirement has been held as proved. While dealing with the issue of comparative hardship the learned trial Judge has considered the conduct of the respondent of not applying for allotment of railway quarters though he was entitled to allotment of such quarters. The learned Judge noted that it was not a case of the respondent that quarters were not available. Considering this conduct and considering the fact that on one hand there were 22 members in family of the petitioner-plaintiff and on the other hand there were only 7 members in the family of the respondent-defendant, the issue of comparative hardship has been decided against respondent-defendant. It will be interesting to note that before the Appellate Court a contention was raised by the respondent that the son of the plaintiff who deposed had no authority to depose. The said contention was overruled by the Appellate Court by observing that the evidence of the son will have to be considered as his own personal requirement has been pleaded. The Appellate Court again noted the admitted position that there were 22 members in the family of the petitioner. It must be noted that neither before the trial Court nor before the Appellate Court a case was made out by the respondent that he made an effort to secure some other accommodation and that he could not succeed. In paragraph 10 of the judgment the Appellate Court has observed thus: 6 “In the present case, as there are number of tenants but landlord has not proved his bonafide requirement of the suit premises as the appellant-tenant cannot get alternate accommodation by allotment of quarter in Railway Department and his contingency in short period retirement also makes a ground in his favour to remain in possession of the suit premises stating that there would be greater hardship to him if decree of eviction is passed against him.” 5. In paragraph 9 while dealing with the aspect of acquisition of quarters, the learned District Judge observed thus: “... It is clear from the above statement of law that after retirement tenant will not be able to get allotment of quarter in railway department and presently he is not allotted any such quarter. This contingency causes greater hardship to the tenant-appellant if the decree of eviction is passed. Therefore, suit is liable to be dismissed.” 6. In paragraph 9 of the judgment, the Appellate Court accepted that there were 22 members in the family of the petitioner and some of them are married. A specific argument of the petitioner that no 7 effort has been made by the respondent for securing some other accommodation has been noted by the Appellate Court. However, there is no finding recorded that any effort was made by the respondent to secure some other accommodation. The fact that the petitioner has not proceeded against the other tenants is totally irrelevant. Thus, even after accepting that the plaintiff landlord has 22 members in the family including three married sons, without assigning any reason, the finding on the issue of bonafide requirement has been set aside by the Appellate Court. As reflected from paragraph 10 which is quoted above, the finding on the issue of comparative hardship is cryptic. In fact, the manner in which the Appellate Court has dealt with the matter shows that the entire approach of the Appellate Court was erroneous. This was a meritorious case where admittedly the landlord was having 22 members in the family and that he was in possession of only three rooms. There was no reason to disturb finding of the trial Court on the bona fide need. 7. As far as comparative hardship is concerned, it is not the case of the respondent that any efforts were made by him at any stage to secure any other accommodation. Admittedly there are 22 members in the family of the plaintiff including his three married sons. The plaintiff is in possession of only three rooms. Moreover, the defendant 8 has admittedly only seven members in his family. The defendant is occupying suit premises which consists of three rooms. These two factors coupled with the failure of the defendant to search another accommodation for all these years is sufficient to record the finding on the issue of comparative hardship against the defendant. Considering the large size of the family of the plaintiff, it is not possible to balance the hardship by considering question of division of the suit premises which consists only of three rooms. The suit is of the year 1982 which was decreed in the year 1989. The decree was reversed in appeal in the year 1992. Thus, the defendant tenant had more than sufficient time to acquire another suitable accommodation. An argument was made by the respondent that due to lapse of inordinate long time parties be permitted to lead evidence on the issue of comparative hardship. There is no application filed by the respondent setting out any subsequent event . In absence of any material placed on record regarding alleged subsequent events, the prayer for passing order of remand cannot be accepted. The judgment of the Appellate Court will have to be quashed and set aside on the ground that the same is perverse. Hence, the decree on the ground of bone fide need passed by the trial Court will have to be restored. On the other ground of acquisition of suitable residence, no submissions have been made. 9 8. Hence, the petition must succeed and I pass following order: : O R D E R : (a) Rule is made absolute in terms of prayer clause (b). The decree for possession passed by the trial Court is restored. (b) The decree for possession shall not be executed till 31st August 2010 subject to condition that the respondent will not create any third party interests and will not part with possession thereof in any third party. (A.S.OKA,J)