1 FH wp.1143.97 w 1144.97 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1143 OF 1997 WITH WRIT PETITION NO. 1144 OF 1997 Pratapsingh Ajabsingh Nagarkar. ... Petitioner (In both the petitions) Versus Smt. Ramtarabai Suratsingh Thakur and ors. ... Respondents (In both the petitions) -------- Mr. N.P.Deshpande and Ms. Tanmayi Gadre for the Petitioner in both the petitions. Mrs. Anita A. Agarwal for Respondent Nos. 1 and 2 in both the petitions. -------- CORAM : A.S.OKA, J. DATE : 10 th December, 2010. JUDGMENT: 1 Submissions of the learned counsel for the parties were heard on the earlier date. By this writ petitions under Article 227 of the Constitution of India, the Petitioner who is the defendant – tenant has challenged the judgment and decree dated 27 th November, 1996 passed by the learned Additional District Judge. 2 FH wp.1143.97 w 1144.97 2 The Petitioner is the original defendant – tenant and the respondents are the legal representatives of the original plaintiff who was the landlord. The suit relates to suit premises consisting of three rooms admeasuring 10” x 10” more particularly described in paragraph No. 1 of the plaint. According to the plaintiff, the suit premises was let out at monthly rent of Rs.20/- for residential use. The suit was filed on the ground of bonafide and reasonable requirement. It was contended by the plaintiff that he has a large family consisting of two married sons and grand children. It was contended that the premises in occupation of the plaintiff was not sufficient and the grand children needed premises for the purposes of their studies. It was contended that the defendant has other premises available. The suit was contested by the defendant by filing written statement. The trial Court held that bonafide need has been established by the plaintiff. After considering the evidence on the issue of comparative hardship, the learned trial Judge passed a partial decree of eviction in respect of front room and the defendant was allowed to remain in possession of other two rooms with a balcony. There were cross appeals preferred by the plaintiff and the defendant. By the impugned judgment and decree, the appeal preferred by the defendant was dismissed and the appeal preferred by the plaintiff was allowed. The Appellate court directed that the defendant shall handover the possession of two rooms on the rear side to the legal representatives of the plaintiff and the defendant – tenant was permitted to retain room on the front side with a balcony. The challenge is to the decree passed by the Appellate 3 FH wp.1143.97 w 1144.97 Court. 3 The learned counsel appearing for the defendant - Petitioner invited the attention of the Court to the findings recorded by both the Courts below. The learned counsel appearing for the defendant pointed out that the Appellate Court has observed that there were fourteen members in the family of the plaintiff and the plaintiff was in possession of the premises consisting of two rooms. The learned counsel pointed out that the requirement of the plaintiff accepted by the Appeal Court was of two rooms. The learned counsel appearing for the defendant pointed out the subsequent events. She pointed out that one of the grand daughters of the original plaintiff got married on 8 th February, 1995. She pointed out that the original plaintiff died during the pendency of the appeal. Thus, numbers of the family members of the plaintiff have been reduced to twelve. The learned counsel further pointed out that in the year 1993, two rooms became available to the plaintiff, which were vacated by one Mr. Musale. She pointed out in the year 1979, one Mr. Sadare vacated one room and in the year 1983 one Mr.Bhujbal vacated another room. She submitted that in the writ petition, it is disclosed that one room earlier occupied by the tenant Mrs.Yashodabai Satav was available inasmuch as after hear death, there was no one who could have succeeded as a tenant under Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as “the said Act”). Her submission is that now atleast seven rooms are 4 FH wp.1143.97 w 1144.97 available with the legal representatives of the plaintiff to accommodate twelve members of their family. Her submission is that in view of this subsequent events, the need pleaded in the suit does not survive and the same has been eclipsed. The learned counsel relied upon the decision of the Apex Court in the case of Sheshambal (dead) Through LRs. Vs. Chelur Corporation Chelur Building and others (2010) 3 Supreme Court Cases 470. The learned counsel submitted that the subsequent events, which are not disputed ought to be taken into consideration as the said events show that the need as pleaded in the suit is no longer subsisting. The learned counsel also relied upon a decision of Madras High Court in the case of Natesan Vs. Surya Bagadhur Shah (1957) Madras Law Journal Reports 586. The learned counsel therefore, submitted that the decree on the ground of bonafide need cannot be sustained. The learned counsel appearing for the Respondents supported the impugned judgment and decree. 4 I have given careful consideration to the submissions. It must be noted here that the original suit was filed by the original plaintiff – landlady on 10 th April, 1992 claiming a decree of eviction on the ground of bonafide need. The case made out by the original plaintiff was that the original plaintiff was in possession of a residential premises consisting of two rooms admeasuring 8“ x 8” and 10” x 10” respectively. The trial Court noted the admitted position that the original plaintiff – landlady has two sons Shivkumar and Dipraj and both of them were married. It is noted 5 FH wp.1143.97 w 1144.97 that Shivkumar had four issues and Dipraj had five issues. It was brought on record that the grand children were taking education at the relevant time and there were fourteen members in the family of the plaintiff. As against that, the trial Court found that apart from the suit premises consisting of three rooms, the elder son of the defendant had obtained a flat consisting of four rooms. The finding of the trial Court is that the defendant has two sons and two daughters. After recording these findings, the trial Court passed decree in respect of the front room and two other rooms were allowed to be retained by the defendant – tenant. 5 The cross appeals were preferred by the parties in the year 1993, which were decided by the impugned judgment and decree dated 27 th November, 1996. The Appellate Court in paragraph No.18 of the judgment has noted that the grand children of the landlady were college and school going. The Appellate Court also observed that the defendant was in possession of three rooms and he was residing alongwith his wife and one son. One of the factors considered by the Appellate Court was that the defendant was a heart patient and was undergoing treatment. Considering the need established by the plaintiff, instead of one room, the Appellate Court passed a decree in respect of two rooms on the rear side and permitted the defendant – tenant to retain one room on the front side alongwith balcony. 6 In paragraph No.15 of the judgment, the Appellate Court has 6 FH wp.1143.97 w 1144.97 considered the case made out by the Petitioner – tenant that one Bhujbal and one Sadre who were the tenants occupying one room each, had vacated the rooms in their possessing and one Avekar was inducted in the suit premises by the plaintiff. However, on the basis of suggestion given by the advocate for the defendant in the cross-examination of the grand daughter of the original plaintiff – landlady, the Appellate Court observed that the said Avekar was inducted in the year 1983 nearly nine years prior of the institution of the suit. Thus, it cannot be considered that the rooms vacated by the tenants were available to the landlady. The suit was filed in the year 1992 and therefore, the tenancy created in respect of two rooms in the year 1983 cannot affect the bona fide need pleaded by the landlady. 7 According to the case made out by the learned counsel appearing for the defendant, apart from the said two rooms, two other rooms were vacated in the year 1983 by the tenant - Musale and one room occupied by one Yashodabai Satav was kept locked after her demise. 8 As noted earlier, the family of the landlady consisted of 14 members including two married sons and grand children. During the pendency of the appeal, the grand children were school going or college going. The landlady died during the pendency of the appeal and one grand daughter married during the pendency of the appeal. Still the 7 FH wp.1143.97 w 1144.97 family of the landlady continued to consist of 12 members consisting of two married sons and their families. As per the impugned decree, two rooms will available to the family of the plaintiff in addition to two rooms in their possession. It is not the case of the Petitioner that possession of the room occupied by Yashodabai Satav had been taken over by the legal representatives of the plaintiff. Even assuming that the said room is available and two rooms allegedly vacated by Mr.Musale are available, it must be noted that the family of the plaintiff consisted of two married sons and atleast eight grown up grand children (excluding a married grand daughter of the plaintiff). In the year 1996, when the Appeal was decided the eight grand-children were either college or school going. Even assuming that total seven rooms including the rooms in respect of which decree has been passed by the District Court are available to the family of the plaintiff, two married sons will require a room each, the family will require one kitchen and one sitting room. The eight grown up grand-children will have only 3 remaining rooms between them. 9 The law laid down by the Apex Court in the case of Sheshambal (supra) is well settled. The subsequent events in the case where bona fide need is pleaded are material provided the subsequent events have the effect of eclipsing the need of the landlord. Law on this point has been laid down in the case of Pratap Rai Tanwani Vs. Uttam Chand, (2004) 8 SCC 490. In the present case, though there is no material on record to show that premises occupied by the tenant – 8 FH wp.1143.97 w 1144.97 Yashodabai Satav became available to the landlords, it is impossible to record a finding that the need of a large family of the landlord stands eclipsed even assuming that two rooms of Mr.Musale and one room of Satav are available to the family of the landlord. In the circumstances, it is not possible to interfere with the partial decree of eviction passed by the Appellate Court in writ jurisdiction under Article 227 of the Constitution of India. 10 At this stage, the learned counsel appearing for the Petitioner pointed out that while granting interim relief, this Court by order dated 6 th March, 1997 imposed a condition of the Petitioner handing over possession of the front room to the plaintiff. Accordingly, the possession has been handed over and the affidavit dated 21 st March, 1997 has been filed by the Petitioner to which possession receipt signed by the legal representatives of the plaintiff has been annexed. 11 As the impugned judgment and decree has been confirmed, the legal representatives of the plaintiff will have to handover possession of the front room to the Petitioner and the Petitioner will have to handover possession of the two rooms on the rear side of the suit premises to the legal representatives of the plaintiff. 12 There is no merit in the writ petition. Subject to what is observed above, writ petitions are rejected. Rule is discharged with no 9 FH wp.1143.97 w 1144.97 order as to costs. 13 At the time of handing over possession of the two rooms in terms of the impugned decree to the legal representatives of the plaintiff, the said legal representatives shall put the Petitioner in possession of the front room alongwith balcony. [ A.S.OKA, J ]