INDUMATI SADASHIV DESHMUKH Vs. MOHANLAL DAHYABHAI GANDHI

JUDGEMENT

(1.) The petitioners are the original defendants of Regular Civil Suit No.78 of 1985, against whom as well as against respondent no.2 herein a suit for possession was filed by respondent no.1 herein - original plaintiff. Respondent no.1 - original plaintiff is the owner of property situated in the city of Navsari in Ward No.1, which is situated at Dargah Road having Municipal Census No.1415. Originally, the suit premises were let out to one Sadashiv Deshmukh for residential purpose and after his death his heirs continued to occupy the suit premises. It is the case of the plaintiff that at the time of filing of the suit, defendant no.1, one Sindhuben and defendant no.2 - Induben, were residing in the suit premises and both of them are sisters and both of them are spinsters. Rest of the defendants, i.e. defendants nos.3, 4 and 5, are not residing in the suit premises and they are residing elsewhere. They were joined as the heirs of original tenant - Sadashiv Deshmukh. It seems that during the pendency of the suit, said Sindhuben expired and therefore her name was deleted from the suit. The case of the plaintiff is that the defendants are staying on the first floor of the suit premises and on the ground floor the plaintiff is doing the business of running a provision store, which, according to him, is going on since the time of his father and grandfather and the plaintiff is also residing in the ground floor in one room along with his other family members. According to the plaintiff, defendant no.2 is occupying a room and a katariya ( a store room ). It is the case of the plaintiff in the plaint that he is having a large family and that the premises of one room, which is in their possession, is not adequate and therefore the said suit was filed for a decree for possession on the ground of bona fide requirement under Section 13(1)(g) of the Bombay Rent Act. It is also the case of the plaintiff that since he is having aged sons, the privacy is not maintained. As against that, defendant no.2 is occupying two rooms and if decree as prayed for is not passed, the plaintiff will suffer irreparable hardship. On the aforesaid grounds the suit for possession was instituted by the plaintiff.

(2.) On behalf of the defendants written statement at exh.16 was filed denying the claim of the plaintiff. After appreciating the evidence on record, the trial Court came to the conclusion that the plaintiff has proved his case for getting possession of the suit premises on the ground of bona fide requirement. The trial court also found that if the decree for possession is not passed, the plaintiff will suffer immensely and that even if the decree is passed, the defendants are not likely to suffer any hardship. The finding about the comparative hardship is given by the trial court in view of the fact that the plaintiff had offered to the defendants alternative accommodation, which is a flat, in the same city, free of cost. However, since defendant no.2 has refused to accept the said offer, the trial court came to the conclusion that if the decree is passed in favour of the plaintiff, it will not cause any hardship to the said defendant no.2. Since it has been pointed out by advocates for both the sides that, at present, only defendant no.2 Indumatiben is residing in the suit premises, the question about the bona fide requirement as well as the question about passing of eviction decree was to be considered only in respect of Indumatiben as no one else is residing in the suit premises. The learned advocate for the petitioner has also argued that the question of bona fide requirement and eviction decree is required to be considered in connection with Indumatiben only as except her no one else is interested in the suit premises. Ultimately, the trial court passed the decree for possession upholding the claim of the plaintiff for decree for possession on the ground of bona fide requirement.

(3.) Being aggrieved by the aforesaid decree of the trial court, an appeal, being Regular Civil Appeal No.42 of 1992, was preferred by the original defendants. During the pendency of the said appeal, the original plaintiff submitted an application before the appellate court below exh.38 for amending the plaint, on the ground that during the pendency of the appeal, defendant no.2, Indumatiben, had acquired an alternative accommodation and therefore an additional ground for getting the possession under Section 13(1)(l) of the Bombay Rent Act was pressed into service. The appellate Judge allowed such amendment vide order dated 1.9.2002. Appellant no.1 before the appellate court thereafter submitted amended written statement on the said point. The appellate court thereafter framed issue to the effect whether the plaintiff proves that the defendants have acquired suitable accommodation? The appellate court after framing the said issue sent the matter back to the trial court for deciding the aforesaid issue with the direction that the said issue be decided after giving opportunity to the parties to lead the evidence on the aforesaid issue and thereafter to return the record of the suit with the evidence led by the parties to the suit, together with its finding and reasons, within the stipulated time.