JULIETA ANTONIETA TARCATO Vs. SULEIMAN ISMAIL

JUDGEMENT

(1.) In these appeals by special leave the appellant has impugned the judgment and order of the High Court of Judicature at Bombay dated July 27, 2004 in Writ Petition No.4261 of 1991. The High Court by its impugned judgment and order allowed the writ petition filed by the tenant-respondent herein and dismissed the application for eviction filed by the appellant to evict the respondent from the suit premises which is a flat located at Bandra in the city of Mumbai. While doing so, the High Court set aside the appellate order of a bench of the Court of Small Causes, Mumbai which had held that the landlady appellant herein had established her case of bonafide personal need of the suit premises. Having regard to the finding recorded by the High Court it is not necessary to reproduce the facts of the case in detail but to appreciate the findings of the High Court it is necessary to state the facts as briefly as possible.

(2.) The appellant herein undoubtedly, is the owner of the suit premises. She was residing in the suit premises till December, 1971 when she suffered serious burn injuries. In the unfortunate circumstances, since there was no male member residing with her, she moved to the premises owned by two of her brothers namely, father Lawrence and Mr. Tito, which premises are known as Ashoka Apartments. Till then she was residing with her mother and her brother and two of her nephews and one niece. The brother being a sailor, employed in the Merchant Navy, was very often on the high seas. Her brother, father Lawrence advised her that they should stay with him in the Ashoka Apartments. At about that time, the respondent herein was in need of accommodation since the premises occupied by him had collapsed and there was urgent need of accommodation for him and his family members which included two brothers, both of them lawyers. Under these circumstances, on 24th or 25th January, 1972 an agreement was executed between the landlady and the respondent purporting to let out the premises on leave and licence basis on monthly fee of Rs.550/-. It is not disputed that under the amended provisions of the Tenancy Act, such a licencee has acquired the status of a tenant.

(3.) Having stayed with her brother for several years, the appellant decided not to burden her brother any more and to return to her own premises along with the family members who were earlier residing with her. Accordingly, a notice terminating the tenancy was issued in the year 1979 and a suit for eviction followed in the year 1980. It is not necessary to refer to other legal proceedings relating to fixation of standard rent and eviction claimed on the ground of default in payment of rent. The case of the appellant was that she had to leave the suit premises in the circumstances narrated above, and started living with her brother. However, she needed the suit premises for her own reasonable and bonafide need and also for accommodating her two nephews and her niece who always resided with her. Her nephews and niece also required sufficient accommodation to pursue their studies. The accommodation available in her brother's flat was not only insufficient but also inconvenient. She did not want herself and her nephews and niece to be a burden upon her brother, father Lawrence who was a research scholar, after enjoying his hospitality for a long time during her ailment. She submitted that she did not own any other immovable property in Mumbai nor did she have sufficient means to acquire or secure any other suitable accommodation for herself.