LILY GOMES Vs. FRANCIS FERNANDES SHRI

JUDGEMENT

(1.) BY this writ petition under Article 227 of the Constitution of India, the petitioner have impugned the Order dated 29-8-1996 passed by the lower Appellate Court in Appeal No. 103 of 1996, whereby the respondents appeal was allowed and decree of possession passed by the trial Court on 2-2-1996 in R. A. E. Suit No. 4526 of 1989 was set aside. Briefly stated, the relevant facts are as under.

(2.) THE dispute between the parties relate to Room No. 4 forming part of a chawl known as Lily Gomes Chawl, situated at Andheri (West), Mumbai. The petitioners are the landlords and the respondent is the tenant is respect of the said premises. The plaintiffs filed a suit for recovery of possession in the Court of Small Causes of Mumbai on two grounds, namely, that the respondent had unauthorisedly and illegally constructed one room on the western side of the suit premises and, secondly, that the suit premises are reasonably and bona fide required by them for the purpose of demolition and erecting a new building. The defendant resisted the suit and denied to have made any construction upon the suit premises. As regards the second ground, the defendant contended that the plaintiffs requirement of the suit premises was neither bona fide nor reasonable and that the certificate obtained from the Tribunal was not legal.

(3.) THE learned trial Judge, upon consideration of the evidence on record, came to the conclusion that the plaintiffs have failed to prove the first ground. However, he held that the plaintiffs have succeeded in proving the second ground. Consistent with this finding, the trial Judge passed a decree of possession in favour of the plaintiffs in appeal a Division Bench of the Small Causes Court took a different view and held that the plaintiffs requirement of the suit premises was not bona fide and reasonable. It was pointed out that the plaintiffs had already made over possession of the entire building to the builder during the pendency of the suit itself demolished part of the building made a new construction and sold the flats to others on ownership basis. The learned Appellate Court further held that the plaintiffs have failed to comply with the requirement of sub-section (3-A) of section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, Rent Act ). The Appellate Court, therefore set aside the decree of possession passed in favour of the plaintiffs and dismissed the suit.