-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Review Petition Stamp No. 27449 of 2007 in Writ Petition No.3938 of 1991 with Civil Application No.3061 of 2007 and Civil Application No.3062 of 2007 Smt.Dhirajibai Khilaun Purani ..Petitioner vs. Shri Vyankatee Narsayya Pandarli ..Respondent Shri C.S.Joshi for petitioner. Shri R.S.Datar for respondent. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 25th January, 2008 25th January, 2008 25th January, 2008 P.C. P.C. P.C. 1. The matter was placed before me because there is a civil application no.3061 of 2007 in the review petition. The Review Petitioner/original respondent in W.P.No.3938 of 1991 has filed this civil application seeking condonation of delay of one year and one month in filing the review petition. Perused the Civil Application. For the reasons set out therein the delay is condoned. -2- 2. The review petition is also taken up by consent of the parties. Heard Shri Joshi for the review petitioner/original respondent and Shri Datar appearing for the original writ petitioner. 3. The original writ petitioner/landlord had filed the above writ petition challenging the Judgment and order dated 21st February, 1991 in Reg.Civil Appeal No.57 of 1988 confirming that of the Trial Court dated 24th November, 1987 in Reg.Civil Suit No.139 of 1983. 4. The writ petition filed in the year 1991 by the landlord challenging the judgment and orders dismissing his suit for recovery of possession was heard by this Court and on 7th October, 2006 and the same has been allowed by the learned Single Judge. 5. The suit premises are a room admeasuring 140 sq.ft. being House no.152, Chitalsar, Manpada, Thane. The case of the original petitioner is that his brother in law had let out this room at the agreed rent of Rs.50/- p.m. inclusive of all charges and permitted increases to the husband of the review petitioner who has since -3- expired. The case of the original writ petitioner was that being the owner of the house and his family consisting of about 9 members he required the premises which are in possession of the deceased, and, thereafter his widow/review petitioner, bonafide and reasonable for his own occupation. It is his case that the review petitioner was in arrears of monthly rent for about 32 months from 10th May, 1979. He, therefore, served a notice dated 23rd January, 1982 demanding arrears of rent. It appears that there was a regular civil suit filed by the review petitioner in which some amount was deposited which amount was withdrawn by the brother in law of the writ petitioner without prejudice to his rights and contentions. Since the earlier notice did not meet with any response, a fresh notice was sent some time in October,1982 which was received by the review petitioner on 24th November, 1982. She denied that the writ petitioner was the landlord. She did not comply with the notice. Another notice was sent on 4th December, 1982. The said notice was pasted on the outer door in the presence of the panchas and thereafter Reg.Civil Suit No.139 of 1983 was filed in the court of Civil Judge, Jr.Dn., Thane by the writ petitioner for -4- possession on the ground of arrears of rent as well as bonafide and reasonable requirement. In the said suit summons was served and the written statement was filed. Various pleas were taken and the review petitioner has prayed for dismissal of the suit for eviction. The Civil Judge dismissed the suit on 24th November, 1987. The learned Judge accepted that the writ petitioner was the owner. However, the learned Judge held that the review petitioner before me was not the defaulter and that the landlord failed to prove that he required the premises bonafide and reasonably for his occupation. 6. The said finding was confirmed by the Additional District Judge in appeal and that is how the landlord filed the writ petition under Article 227 of the Constitution of India. 7. The order of the learned Judge of the lower Appellate Court is based upon the fact that there are 3 rooms, one of which is occupied by the review petitioner and rest are used for commercial purpose. However, relying upon the cross-examination of the landlord, the learned Judge observed that there are two more sheds and they are available for residential purpose. The -5- finding in that behalf in para 8 of the lower Appellate Court’s order reads thus: "8. Next ground for eviction is the bonafide and reasonable requirement of the plaintiff. According to the plaintiff are are only 3 rooms, one of which is leased out to the defendant, another is used for business of Hair cutting saloon by the plaintiff and his brother in law and only one room is available for actual residence of the plaintiff and his family members; but during the cross examination, the plaintiff as well as Shankarayya admitted that besides these 3 rooms plaintiff has constructed 2 more sheds in front of this building and those two rooms are also available for residential purpose to the plaintiff. It is not disputed that wife and children of the plaintiff are living at his native place in Andhra Pradesh and his two brothers in law, their wives and children are living at Manpada. It is the contention of the defendant that brothers in law of the plaintiff have got alternative -6- accommodation and they are also doing their business separately. This contention is not accepted by the plaintiff. Now even if evidence of the plaintiff himself is believed, it is difficult to hold that the plaintiff has bonafide and reasonable requirement of the suit premises for keeping his wife and children there. From the admissions of the plaintiff and Shankarayya, it is clear that besides one room in the suit building, he is also in occupation of two more sheds or rooms in front of this building. Those rooms are also in occupation of the plaintiff. By no stretch of imagination it can be held that the brothers of his wife and wives of brother in law can be members of the family of the plaintiff. If the plaintiff finds that he can accommodate his brothers in law, their wives and children in his house, it is difficult to believe that he cannot accommodate his own wife and children in his house. Any ordinary and prudent person will first accommodate the members of his own family including wife and children in -7- his house and if there is any extra accommodation he may accommodate the other relatives. In the present case, the plaintiff admits to have accommodated in all 8 persons being two brothers in law, their wives and four children. It would be most reasonable to hold that with this much place where he can accommodate his relatives, he is not in a position to bring his wife and children to Manpada for want of house. The learned Trial Court has rightly rejected the plea of the plaintiff on this count." 8. It is this judgment and order and particularly the above reproduced finding which was assailed before the learned single Judge of this Court. The learned single Judge after hearing the Advocate for the landlord proceeded, in absence of the respondent, because, although served, she failed to appear. Her Advocate was also not appearing. 9. In such circumstances, I have heard Shri Joshi appearing for the review petitioner at length and perused with his assistance the -8- orders passed by the Trial Court, lower Appellate Court and this Court. Shri Joshi sought to place on record some events which, according to him, are subsequent to the judgment rendered by this Court. In his submission, the landlord has enough premises and, therefore, it is not necessary for him to evict the original respondent/review petitioner from the suit premises. 10. The Courts below did not have the benefit of the judgments of the Supreme Court which have been rendered subsequently. In so far as the need of the landlord for occupation of the premises is concerned, the Hon’ble Supreme Court has held that merely because there are other premises available the landlord cannot be forced to go and occupy them. Ultimately, it is the choice of the landlord and he is the best judge of the situation. If he finds that he would be comfortable by residing next to or inthe vicinity of the premises wherein some commercial activities are also being conducted by him or the family, then, it cannot be said that the need was not genuine and bonafide. That is how this Court proceeded to allow the writ petition. Reasoning of the lower Appellate Court in sofar -9- as the reasonable and bonafide need of the landlord is concerned, only affirms the finding in that behalf of the Trial Court. Additionally, the learned Appellate Judge has heavily relied upon the fact that the landlord is in occupation of two more sheds or rooms in front of the building. The Court below has proceeded on the basis that the brother of the landlord’s wife and wife of the brother inlaw cannot be the members of the family. Further, the learned Judge has proceeded on the basis that if the brother of the wife can be accommodated by the landlord in his premises, then, it is difficult to believe that he cannot accommodate his own wife and children. 11. This reasoning by no stretch of imagination can be sustained. More so, in the light of the principles laid down by the Hon’ble Supreme Court. It is not as if the Court must always accept that the need is genuine and bonafide. However, the fact remains that the landlord is the best judge of his requirement. These principles are by now well settled. A reference can usefully be made to the decisions of the Hon’ble Supreme Court in Prativa Devi Vs.T.V.Krishnan (1996) 5 SCC 353 and Atma -10- S.Berar Vs.Mukhtiar Singh (AIR 2003 SC 624) The landlord can request the Court, after tenancy is terminated, to hand over possession to him. This is not a case where need lacks bonafides or it was a mere wish or desire of the landlord to occupy the suit premises. The learned single Judge has held that the number of family members being large, the suit premises are reasonably and bonafide required by the landlord. If he decides to settle down in Thane and wishes to shift the family members there, then, it is not a case of malafides. 12. In these circumstances, in my view, there is no error apparent so as to exercise the review jurisdiction. The learned single Judge has adverted to rival cases and held that the entire approach of the Courts below was not in accordance with law. The judgments were vitiated by error apparent on the face of record and perverse. The learned Judge was right in holding that the landlord’s desire that his wife and family should come and stay with him cannot be said to be unreasonable. The family members cannot be forced to reside away from him. He has only one room presently in his possession. That fact is sought to be disputed by relying -11- upon an affidavit filed now and some photographs. It is urged that some construction has been made. In my view that would not be proper approach. In Pratap Rai Tanwani and another Vs. Uttam Chand and another reported in AIR 2005 Supreme Court 1274, the Hon’ble Supreme Csourt has held that the crucial date while considering the need of the landlord is the date of petition for eviction. (See paras 8 and 9). In para 10 the Hon’ble Supreme Court observes thus: "10. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the ultimate termini, is a malady afficting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatter the confidence of the litigant, despite the impairment already caused." -12- Once the litigation commenced from 1983 and the landlord was consistently putting forward his case of eviction on the ground that he reasonably and bonafide requires the premises, then, to throw out the said request on the ground that the landlord has put his premises to some other use or in part thereof has made additional construction. The sheds by their very nature were temporary. It appears that the landlord has business of Hair Cutting Saloon, still, it cannot be said that if he requires additional area and that too for useof himself and his family members who are staying away in the state of Andhra Pradesh, then, he can seek eviction of the respondent from the subject premises. It is not the case of the tenant that the above are not his family members. 13. In the above circumstances, I do not find that the judgment and order of this Court in the above writ petition requires to be reviewed. On the other hand, I am satisfied from a perusal of the material produced that no case is made out for invoking the Jurisdiction of this Court under sec.114 read with Order 47 Rule 1 of the Code of Civil Procedure. The judgment and order cannot be said to be vitiated by error apparent -13- on the face of record. Even on the question of serious prejudice and hardship, it appears to me that the writ petitioner (landlord) would suffer greater hardship on account of his family being unable to accommodate itself permanently. In this behalf, the test laid down by the Hon’ble Supreme Court in Atma’s case (supra) and in the case of Badrinarayan Chunilal Bhutada Vs.Govindram Ramgopal Mundada reported in A.I.R.2003 S.C.2713 will have to be applied. Applying that and considering the number of family members of the landlord, the need is genuine and hardship to him would be more. 14. At one stage I had suggested to Shri Joshi that the respondent/tenant being an old lady aged 75 years, could occupy the suit premises for some more time or alternately she could be given some reasonable time to vacate. Both suggestions were not accepted and there is insistence to go ahead and argue the review petition. It is in such circumstances that I have proceeded to hear the review petition. 15. For the reasons aforestated there is no substance in the review petition and it is accordingly dismissed. -14- 16. At the request of Shri Joshi ad-interim stay granted by this Court on 14th December, 2007 to continue for a period of 3 weeks to enable the review petitioner to approach the higher Court. Shri Joshi states that the review petitioner is in possession of the premises and that she would not alienate, encumber or part with the same in any manner. It is in the light of this statement of Shri Joshi that the ad-interim order is continued for a period of 3 weeks from today. 17. In the light of the above order, the Civil applications do not survive and also disposed of. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)