1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3538 OF 1994 Ramesh s/o. Hari Bari, Age 44 yrs., Occu. Agril., R/o. Chopda, Tq. Chopda, Dist. Jalgaon. ....Petitioner. Versus Sitaram s/o. Mitharam Bari, Age 46 yrs., Occu. Agril., R/o. Chopda, Tq. Chopda, Dist. Jalgaon. ....Respondent. Miss. C.N. Lahare h/f. Mrs. C.S. Deshmukh, Advocate for petitioner. Mr. R.M. Yelnoorkar, Advocate for respondent. CORAM : R.K. DESHPANDE, J. DATE : 2nd July, 2010. ORAL JUDGMENT : 1. This writ petition challenges the judgment and order dated 24.12.1986, passed by the learned Civil Judge, Junior Division, Chopda, dismissing Regular Civil Suit No. 87/1983 filed by the petitioner, who is the original plaintiff. The instant writ petition also challenges the judgment and order dated 27th of December 1993 passed by the learned 2 Additional District Judge, Amalner, dismissing Regular Civil Appeal No. 194/1989 filed by the petitioner, challenging the dismissal of the suit. 2. The petitioner filed Regular Civil Suit No. 87/1983 for eviction and possession of the suit premises from the respondent. It was alleged that the respondent was merely permissive occupant in respect of the suit premises, with an assurance that as and when he would get alternate accommodation, he shall vacate the premises. An alternate cause also put up that even if it is assumed that the respondent was a tenant in respect of the suit property, he was defaulter in payment of rent and that the petitioner/plaintiff requires the premises in question for his bona fide use. It is further alleged that if the decree for eviction is granted on the ground of bona fide requirement, no hardship would be caused to the respondent, as he can secure an alternate accommodation. 3. The Trial Court dismissed the suit vide its judgment and order dated 24th of December 1986. It was held that the plaintiff has failed to prove that the defendant was occupying the premises merely as a licensee. The Trial Court further recorded a finding that the plaintiff has failed to establish that the defendant is the defaulter in payment of rent. The Trial Court further recorded a finding that greater hardship would be caused to the defendant, if the decree for eviction is passed. It was held that the defendant was monthly tenant on payment of Rs. 3/- per month. The suit was dismissed. 3 4. In appeal, the Appellate Court confirmed the findings recorded by the Trial Court. It was held that the petitioner/plaintiff has failed to establish that the respondent was licensee. It was further held that the plaintiff has also failed to prove that the respondent was defaulter and the Trial Court was right in dismissing the suit for eviction and possession. The present petition is, therefore, preferred by the landlord, challenging the findings and the orders passed by the Courts below. 5. The learned counsel Miss. C.N. Lahare, appearing for the petitioner, has vehemently urged that a specific case was made out in the plaint for grant of decree of eviction, on the ground that the petitioner/plaintiff requires the premises for his bona fide use. However, the Trial Court has neither framed any issue in that respect nor has recorded any finding. She further urged that a specific ground was raised in the appeal that the Trial Court has failed to frame the issue regarding the bona fide requirement of the landlord. According to her, the Appellate Court has also failed to take this ground into consideration and there is no finding recorded, even by the Appellate Court that the landlord had failed to establish the bona fide requirement. Hence, according to her, the exercise of jurisdiction by both the Courts below is with material irregularities, resulting in failure of justice and hence, the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is invoked. 4 6. Shri. R.M. Relnoorkar, the learned counsel appearing for the respondent/tenant, has urged that the point of pleadings in respect of the bona fide requirement in the plaint is vague and the Trial Court has touched the aspect of bona fide requirement, when it has recorded a finding that comparative hardship would be caused to the tenant, if the decree for eviction is passed. He further submits that such a finding is also recorded by the Appellate Court and hence, this Court under Articles 226 and 227 of the Constitution of India shall not normally touch or enter into the findings of fact, recorded by the Courts below, which are treated as final. According to him, there is no perversity in the finding recorded by the Courts below. 7. After going through the judgment of the Trial Court, it is apparent that the issue regarding the bona fide requirement of the petitioner/ landlord has not been framed, though, there is pleading in para 5 of the plaint. Similarly, there is no finding recorded by the Trial Court on the point that the petitioner/landlord has failed to establish his bona fide requirement. The learned counsel for respondent could not point out any such specific finding recorded by both the Courts below. The specific plea regarding bona fide requirement having been raised, it was necessary for the Trial Court to frame that issue and record its finding. Though specific ground was raised in the appeal, the Appellate Court has also failed to take into consideration and to record a finding in 5 respect of bona fide requirement of the petitioner. In view of this, Miss. C.N. Lahare, the learned counsel for the petitioner is right in her contention that the exercise of jurisdiction by both the Courts below is with material irregularities, resulting in failure of justice. The remote findings recorded by the Courts below in that respect are liable to be quashed and set aside. 8. The learned counsel for the petitioner could not convince this Court, on the aspect of findings recorded by the Courts below, on the question of the defendant being the tenant of the petitioner/plaintiff and that the plaintiff has failed to prove that the defendant was defaulter in payment of rent. Hence, the findings in that respect, recorded by both the Courts below, cannot be interfered with and the same would be treated as final. However, in respect of bona fide requirement, the matter is required to be remitted back to the Trial Court for framing an issue and deciding the case afresh. 9. In the result, the instant writ petition partly succeeds. The judgment and order passed by the learned Civil Judge, Junior Division, Chopda on 24.12.1986, dismissing Regular Civil Suit No. 87/83 is hereby quashed and set aside. Similarly, the judgment delivered by the learned Additional District Judge, Amalner on 27.12.1993, dismissing the Regular Civil Appeal No. 194/1989 is also quashed and set aside. The matter is remitted back to the Trial Court for deciding Regular Civil Suit No. 87/83 6 for limited purpose of framing an issue on bona fide requirement and deciding it afresh, after giving the parties an opportunity of being heard in the matter. It is, however, made clear that in respect of the status of the respondent as a tenant in respect of suit property and also the finding recorded by the Courts below that the plaintiff has failed to establish that the defendant is defaulter in payment of rent, shall not be reopened. Rule is made absolute in the aforesaid terms. No order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp3538.94