1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1165 OF 2009 Chandrakant M. Jagtap .. Petitioner Versus Smt.Ratnabai S. Pansare & Ors. .. Respondents Mr.Amit Sale for petitioner Mr.Hemant Ghadigaonkar for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 12th June 2009. P.C.: 1] This petition is by the defendant – tenant who is aggrieved by the judgement and order dated 28th July 2008 passed by the Dist.Judge, Pune in Regular Civil Appeal No.70 of 2007. This appeal was filed by the petitioner challenging the judgement and order of Trial court dated 8th November 2006 in Regular Civil Suit No.256 of 2005. 2] Admittedly, the premises are governed by the Maharashtra Rent Control Act, 1999(Act for short). Admittedly, one of the ground under that enactment which enables the landlord to seek eviction/ possession of 2 the suit premises is set out in section 16(1)(g). That provision enables the landlord to seek eviction of the tenant from the suit premises on the ground that the premises are reasonably and bonafide required by the landlord for occupation by himself or by any person for whose benefit the premises are held. The later part of the provision is not relevant. 3] It is not disputed that one of the grounds on which eviction of the petitioner is sought by respondent – plaintiff is under section 16(1)(g) of the Act. 4] The trial court and lower appellate court have found that the premises in the petition admeasure about 70 sft. The suit initially was filed by the plaintiffs consisting of mother, unmarried daughter and unmarried son. During the pendency of the proceedings the daughter got married. 5] The argument on behalf of the petitioner – tenant before me is that the premises are residential premises. The landlady has in all 12 rooms. The landlady has also got possession of the third room and thus has in all three rooms for herself. Now the size of the family has decreased. It consists of only the mother and the unmarried son. Mr.Sale would contend that assuming that the son marries and his requirement and that of his family persists, yet, the premises in possession of the landlady 3 could not be said to be inadequate for their use. In these circumstances and when the courts below were fully aware of the fact that the third room has become available and the other premises have been let out, then, there was no warrant for passing a decree under section 16(1)(g) of the Act. The concurrent finding, therefore, suffers from an error apparent and considering further that the premises are near the market and are likely to be handed over for development by a developer then, all the more the decree of eviction should not have been passed. More so, when the family consists of the petitioner, his son, daughter in law and a grand daughter, who is a school going child. 6] On the other hand, the Counsel appearing for the landlady supports the impugned judgement and relies upon a judgement of the Supreme Court laying down the settled principle that the landlord is the best judge of his requirement and in a position to assess his needs. In these circumstances, according to him, the concurrent findings of fact need not be disturbed in writ jurisdiction. 7] With the assistance of the learned Counsel for both sides, I have perused the petition, the impugned order and relevant records. 8] The principles laid down by the Supreme Court are too well settled to be reiterated. As far as the instant suit is concerned, both the trial court 4 and the lower appellate court have held that the mother and son have no separate premises for their occupation. The son is of marriageable age and requires a separate bed-room. The courts below have adverted to the oral and documentary evidence and while refusing to decree the suit on the ground of non user, have held that the defendant in the subject suit has alternate premises for his use and occupation. Further, it has been brought on record that the married daughter may not be in use and occupation of the premises, yet, the rooms in possession of the landlady admeasure about 70 to 80 sft. The two or three rooms are thus not adequate, considering that the son of the landlady is of marriageable age. In these circumstances, I am of the view that the courts below have committed no error in holding that the landlady and the son have proved that the suit premises are required for their reasonable and bonafide use and occupation. In these circumstances and when the needs of the family are growing the decree for possession requires no interference. More so, considering the concurrent findings on the point of relative hardship as well. 9] As a result petition fails and is dismissed. However, considering that the petitioner has been occupying the suit premises for a long time and that his grand daughter is attending school, interest of justice would 5 be sub-served if it is directed that the decree shall not be executed and enforced till 30th June 2011 provided petitioner executes an undertaking to the following effect in this Court:- (a) that he will hand over peaceful and vacant possession of the suit premises on or before 30th June 2011; (b) that he will not transfer, alienate and or create any third party rights in the premises; (c) that all outgoings will be regularly paid by him The undertaking be filed within 15 days from the date of receipt of this order. In default, the decree would be executable and enforceable without any reference to court. (S.C.DHARMADHIKARI, J)