GAFUR Vs. HIRABAI

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the Order passed by the IInd Additional District Judge, Pune dated February 18, 1989 in Regular Civil Appeal No. 966 of 1986.

(2.) THE petitioner is the tenant in respect of premises being two Khans room in CTS No. 354, House No. 312 situated at Wanori, Tal. Haveli, District Pune as monthly tenant on payment of Rs. 16/- plus education cess Rs. 0. 64 paise and other taxes of Rs. 2. 18 total Rs. 18. 82 paise. According to the respondent-landlady, the petitioner was in arrears; for which reason she issued notice dated September 19, 1983, which is stated to have been duly served upon the petitioner on September 19, 1983. Later on in 1984 the respondent instituted a suit for possession on the ground of default. In the said suit the respondent also prayed for possession on the ground of bona fide and reasonable requirement. At this stage, it is relevant to point out that the respondent-landlady had filed a suit for possession against the petitioner-tenant in the year 1977 being Regular Civil Suit No. 614 of 1977 which was eventually dismissed on June 23, 1981. In other words, the ground of bona fide and reasonable requirement pressed into service on behalf of the landlady was negatived by the Rent Court. It appears that in the said judgment the Rent Court took into account the fact that the landlady was originally a tenant in respect of the property which is in her occupation and she purchased the said house in the year 1970. Besides that, it is observed that, the respondent-landlady has built a new house in the same vicinity and let out on rent. In the circumstances, in the previous suit, the Rent Court negatived the plea of bona fide and reasonable requirement of the respondent-landlady. Notwithstanding this position, in the suit instituted in the year 1984, pursuant to the demand notice issued on September 19, 1983, being Regular Civil Suit No. 77 of 1984, the respondent once again pleaded the ground of bona fide and reasonable requirement.

(3.) IN view of the rival pleadings the trial Court framed in all seven issues. Besides the issue of default and bona fide requirement, the issue of comparative hardship was also framed including the issue as to whether the present suit was barred by res judicata. The trial Court after analysing the rival pleas and evidence on record took the view that the respondent-landlady failed to establish the ground of bona fide and reasonable requirement. The trial Court also came to the conclusion that the issue of comparative hardship will have to be answered in favour of the petitioner-tenant. In so far as the issue of res-judicata is concerned the trial Court negatived the same on the ground that the previous suit was filed in the year 1977, whereas the present suit is filed in the year 1984. This view is taken notwithstanding the fact that the previous suit was dismissed only on June 23, 1981 and the present suit filed in 1984. Since the suit was eventually dismissed by the trial Court, the respondent-landlady filed appeal before the District Judge, Pune, being Civil Appeal No. 966 of 1996. The Appellate Court was, however, pleased to reverse the conclusion reached by the trial Court on the issue of bona fide and reasonable requirement and answered the same in favour of the respondent-landlady. In so far as the issue of comparative hardship is concerned, the finding recorded by the Appellate Court is that, the same is balanced on both the sides. Nevertheless, the Appeal Court answered the said issue in favour of the respondent-landlady. The Appellate Court decreed the suit for possession against the petitioner on the ground of bona fide and reasonable requirement. This judgment of the Appellate Court is the subject matter of challenge in the present petition.