1 cra780-2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 780 OF 2009 Smt.Shantabai G. Mhalgi & Ors. ...Applicants vs. Mr.Kulkarni Baban Narsopant ...Respondent Mr.R.S. Apte, Senior Counsel i/b. Mr.Girish Paryani for the Applicants. Mr.Nitesh Bhatekar i/b. Mr.Uday Warunjikar for the Respondent. CORAM : A.S. OKA, J. DATED : SEPTEMBER 24, 2010 P.C. :- 1 Heard submissions of the learned Counsel for the parties on the last date. 2 Challenge in this revision application is to the judgment and decree of eviction passed under the provisions of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as "the said Act") 2 cra780-2009 which has been confirmed in appeal by the District Court. 3 Decree for possession has been passed by the Courts below on the ground of bonafide requirement. The case made out by the respondent- landlord in short is that his family consists of he himself, his wife, two married sons and grand children. According to his case, he is in possession of four rooms out of which one room is used for the purposes of running typing classes. According to the case of the respondent, one room is used as a kitchen and only two other rooms are left for three married couples in the family. The need of the respondent-landlord has been accepted by the courts below. 4 Learned Senior Counsel appearing for the applicant has taken the Court through pleadings of the parties, the notes of evidence and the findings recorded by the courts below. His first submission 3 cra780-2009 is that the bonafide need has not been established. He pointed out that even according to the case made out by the respondent, the need pleaded is only of a room. He pointed out that even after filing of the suit, the respondent has erected one structure admeasuring 15 feet x 20 feet and thus, the need of the respondent has been satisfied. He submitted that the requirement pleaded is only of one room and after construction of additional room, the requirement is no more subsisting. He invited the attention of the court to the finding on the issue of comparative hardship. He submitted that the finding of the appellate court that there is income received by the applicant from business of a firm in which deceased tenant was a partner is completely contrary to the evidence on record. Lastly, learned Senior Counsel submitted that it was the duty of the courts below to consider the case for passing a decree for eviction in respect of a part of the suit premises inasmuch as the need of the respondent as pleaded was only of one room. He submitted that it 4 cra780-2009 was the duty of the courts below under Sub-section 2 of Section 16 to consider the case for partial eviction. He has placed reliance on the decision of this Court dated 28th August, 2002 in Writ Petition No.4457/1991 (Gaur Chandra Basu & another vs. Ruchira Ashok Sonde & another). He also placed reliance on the decision of the Apex Court in the case of Rehman Jeo Wangnoo vs. Ram Chand and others ((1978) 3 SCC 539). He submitted that the Courts below have not performed its duty of considering the case for partial eviction. 5 I have given careful consideration to the submissions. As stated earlier, the respondent is in possession of the premises consisting of four rooms. Even the suit premises consists of four rooms. At the time of institution of the suit in the year 2001, the respondent has stated that his family consisted of himself, his wife, his two sons, their respective wives and a grand son. The case made out in the plaint as well as in the evidence is that the 5 cra780-2009 premises consisting of four rooms in possession of the respondent is on the ground floor and in one of the rooms, respondent's daughter-in-law is running business of typing class. It is the specific case made out that one room is being used as a kitchen. 6 The respondent examined himself and one of his sons. In his affidavit in lieu of examination- in-chief, he stated that he has two grand children. He stated that one room is being used by the daughter-in-law for running typing classes. 7 The respondent also examined his son Mahendra in support of his case. He stated that apart from the members of the family, his brother's father-in-law was residing along with the members of the family who requires constant attention. 8 As regards construction of structure admeasuring 15 feet x 20 feet, the appellate court has recorded a finding that the structure was in 6 cra780-2009 fact a tin shade and the same was demolished at the later stage. What has been considered by both the courts below is the fact that there are three couples in the family of the respondent and the grand children. The Respondent is in possession of four rooms out of which one was used for typing classes and one as a kitchen. There is one more aspect of the matter which is noted by the appellate court. The second applicant who stepped into witness box stated that the respondent had given cheque in the sum of Rs.75,000/- which was encashed by her. She stated in the cross-examination that the respondent issued cheque for outstanding balance and acquiring other alternate premises and he also assured to pay some amount from time to time. The Applicant no.2 further admitted that the purpose of the encashment of the cheque amount was not served and that is why she refunded the said amount by a cheque to the respondent. Further the second applicant admitted that thereafter she raised the demand for huge amount. She volunteered that in the 7 cra780-2009 alternative, she raised the demand of alternate premises. She, however, denied the suggestion that at that time, she raised a demand of Rs.1,70,000/- for securing other premises. The second applicant categorically admitted that she has not searched for any other premises anywhere after filing of the suit. The witness also admitted that the shed constructed by the respondent was of temporary nature and that one of the daughter-in-law of the respondent was conducting typing classes. 9 It appears that during the pendency of the suit, one of the sons of the respondent took up employment in Mumbai and the respondent himself has stated in examination-in-chief this fact and the fact that his wife and son continue to stay along with him and his son has been staying at every weekend along with him. 10 There are concurrent findings recorded by the courts below that the respondent has established 8 cra780-2009 bonafide need of his family. On the other hand, it is brought on record that the applicants had at one point of time agreed to vacate the suit premises. In fact, sum of Rs.75,000/- was accepted by the applicants from the respondent which was later on refunded. 11 Perusal of the judgments of both the courts below do not show that at any stage, a submission was canvassed by the applicants that a case for passing a decree in respect of a part of the premises should be considered. It is not the case of the applicants that the said contention was raised before the appellate court but was not considered by the appellate court. What is brought on record is that there are three married couples along with grand children who were occupying a tenament on the ground floor consisting of four rooms out of which one is being used for running typing classes. One room is being used as a kitchen. Moreover, there are two grand children. The family will reasonably need 9 cra780-2009 at least three bed rooms, one sitting room and at least one room for grand children. It is well settled law that the landlord is the best judge of his requirement and it is not for the Court to tell the manner in which he should live. Considering the size of the family of the respondent, it is impossible to come to the conclusion that the requirement of additional four rooms is unreasonable. The suit is of the year 2001 and there was sufficient time for the applicants to search another accommodation. 12 In the circumstances, this is not a case where in revisional jurisdiction, for the first time, the case made out by the applicants for partial decree of eviction can be considered. 13 In the circumstances, no case is made out for interference in the revisional jurisdiction. Revision application is rejected with no orders as to costs. 10 cra780-2009 14 The learned Counsel for the applicants prays for continuation of ad-interim relief. Ad- interim relief will continue to operate for a period of eight weeks from today. (A.S. OKA, J.)