KONDEO SAVALARAM PANSE Vs. DIGAMBAR RAMRAO PAI

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the order passed by the IIIrd Addl. Dist. Judge, Pune, dated 11-12-1989 in Civ. Appeal No. 962 of 1987.

(2.) BRIEFLY stated the petitioner, landlord in respect of premises on the ground floor of CTS No. 257/3, Rasta Peth, Pune, consisting of two rooms admeasuring 10 X 14 and 10 X 12 and bath room 7 X 5, filed a suit against the respondent in the Court of Small Causes, Pune being Civil Suit No. 611 of 1982. The possession was sought on the grounds, of bona fide requirement; the tenant having acquired alternative suitable accommodation; nuisance; and default. Prior to the institution of the suit the tenant had filed an application for fixation of standard rent. The trial Court decreed the suit on the ground of bona fide requirement and tenant having acquired alternative suitable accommodation. The said decree was carried in appeal by the respondent before the District Judge, Pune. The Appellate Court has reversed the decree passed by the trial Court on both the counts.

(3.) THE petitioners case is that the respondent No. 1 was the original tenant in respect of the suit premises. He was inducted sometime in the year 1952 as tenant. At the relevant time respondent No. 1 was bachelor and was staying alone in the suit premises. The petitioners case is that subsequently the family members of respondent No. 1 started staying along with respondent No. 1 in the suit premises. The petitioner however stated that the respondent No. 1 shifted to Bombay sometime in the year 1960-61 and since then settled down in Bombay. In the circumstances the petitioner asserted that the respondent No. 1, who was the original tenant, had acquired alternative suitable accommodation. In so far as the plea for bona fide requirement is concerned the averments contained in plaint are articulated in para (d) thereof. The petitioner has stated that the suit premises are required bona fide and reasonably for the accommodation of his family members as he desires to celebrate the marriage of his two sons. It is further stated that marriage of one son has already taken place and the marriage of second son may be celebrated within couple of months. The petitioner has further asserted in the plaint that after the said marriage the petitioners son will require the suit premises bona fide and reasonably and the petitioner will also require the premises for his own use and occupation. The plaint further asserts that the petitioner was working as Head Master of the High School, Rasta Peth Education Society, Pune which had 70 school teachers and 2500 student who intermittently visited the petitioner at his residence. Besides this the petitioner was working as the President of Science Association and Chief Editor of Vidnyan Varta a magazine circulated all over Maharashtra. According to the petitioner, he required the suit premises in view of the large number of visitors at his residence. In response to the said claim the respondents filed written statement and denied the material allegations. Both the parties went to the trial. However, during the course of the trial at the time of evidence details of some premises which became available to the petitioner were brought on record. From the evidence it would appear that though the suit was filed in 1982 prior to that sometime in 1975 the petitioner had received possession of tenement on the first floor which was occupied by Mrs. Puram. It is also alleged that another premises on the first floor which were occupied by another tenant Hardikar became available to the petitioner sometime in the year 1984. An attempt has also been made to bring on record that one more premises which were occupied by another tenant Kande on the ground floor of the rear side of the building also became available. The respondent, therefore, resisted the ground of bona fide requirement. According to the respondent since the premises occupied by Mrs. Puram became available to the petitioner prior to the institution of the suit and no reference was made about the availability of the said accommodation for occupation of the petitioner, the petitioner had not approached the Court with clean hands and in any case the ground of bona fide requirement stood belied on such evidence being brought on record. The respondent also contended before the Court below that since premises which were originally occupied by other two tenants viz. Hardikar and Kande were available to the petitioner the ground of bona fide requirement could not be pressed into service. The trial Court, however, after considering the relevant pleadings and evidence on record negatived the said contention and instead held that in so far as the premises which were originally occupied by Mrs. Puram were concerned it consisted of one big hall without any attached sanitary block. According to the trial Court the said premises could be used only as drawing hall by the petitioner. On the other hand the suit premises consisted of two rooms, kitchen and living room and therefore the said premises were bona fides required by the petitioner. In so far as the premises occupied by another tenant Hardikar is concerned the trial Court examined the evidence and has concluded that the evidence which has come on record was not convincing to hold that Hardikar had vacated the premises and handed over the possession thereof to the petitioner. The evidence that was sought to be brought on record was in the nature of entry from the Register maintained in the Rationing Department which was cancelled. The trial Court observed that the basis for cancellation of the said entry would be reflected in the application pursuant to which the said entry was cancelled and since the same was not brought on record it was not possible to accept the plea that Hardikars premises became available to the petitioner. In so far as the accommodation of another tenant Kande was concerned the trial Court has observed that the said premises consisted of one room admeasuring 6 X 10 and the bathroom 6 X 4. The trial Court has accepted the evidence adduced on behalf of the petitioner that Kandes premises were not suitable for the use and occupation of the petitioner and his family members for residence since it was on the rear side of the building and consisted of small room. Taking the totality of the circumstances, the trial Court took the view that the petitioner had established the ground of bona fide personal requirement for himself and his family members. While answering the issue of comparative hardship the trial Court analysed the evidence and concluded that the respondent No. 1 was the original tenant and since he had shifted permanently to Bombay the suit premise were not put in use by the tenant and therefore the question of causing any hardship to the tenant would not arise. The trial Court also recorded a finding that the respondent No. 1 tenant had acquired alternative suitable accommodation at Bombay and that there was no evidence on record to show that there was any probability of respondent No. 1 coming back to Pune. The trial Court has recorded that no animus revertendi has been shown by the original tenant. In the circumstances the trial Court decreed the suit also on the ground of alternative suitable accommodation.