SUHASINI ATMARAM PARAB Vs. B H KHATU

JUDGEMENT

(1.) THIS writ petition takes exception to the judgment and decree passed by the Small Causes Court, at Bombay in Appeal No. 170 of 1985 on 15-4-1988. Petitioners before this Court are the landlords in respect of premises situate at Ganga Nivas, Ganesh Lane, Lalbaug, Mumbai 12. The predecessor of the petitioners inducted one Ganpat Naik in one room (i. e. the suit premises) out of the three rooms which was in his possession. The said Ganpat Naik later on inducted the respondent No. 1 in the suit premises as a licence; and since he had a subsisting leave and licence agreement on 1-2-1973, became protected by virtue of the amended provisions of the Bombay Rent Act. The predecessor of the petitioners however, filed a suit for possession of the suit premises against the original tenant-Ganpat Naik inter alia on the ground of reasonable and bona fide requirement. In that suit, the respondent No. 1 was also impleaded as defendant No. 2 on the assertion that he was the person in occupation of the suit premises and unlawfully inducted by the tenant Ganpat Naik. It is not necessary to advert to the other details. Suffice it to point out that the trial Court decreed the suit in favour of the plaintiff and held that the ground of reasonable and bona fide requirement was established. The trial Court by its judgment and decree dated 23-1-1985 also answered the issue of comparative hardship in favour of the plaintiff. Consequently, the defendants were directed to hand over the vacant and peaceful possession of the suit premises to the plaintiff or on before 31-7-1985. Against that decision, the matter was carried in appeal only by defendant No. 2 respondent No. 1 herein. It is relevant to note that the original defendant No. 1 tenant did not contest the proceedings and the matter proceeded ex parte against him. The Appellate Bench of the Small Causes Court at Bombay by the impugned judgment has affirmed the finding of fact recorded by the trial Court on the issue of reasonable and bona fide requirement but, however has reversed the finding in so far as the issue of comparative hardship is concerned and therefore, reversed the decree passed in favour of the plaintiff. It is in this backdrop the present petition is filed under Article 227 of the Constitution of India.

(2.) IT is not in dispute that the respondent No. 1 herein has not filed any cross petition challenging the finding in so far as the issue of reasonable and bona fide requirement is concerned. In that sense, finding on that issue has been allowed to become final. Even before this Court no argument was advanced on behalf of respondent No. 1 to assail the correctness of the finding on that issue. Accordingly, this judgment will have to be confined to the issue of comparative hardship.

(3.) LEARNED Counsel for the petitioners contended that the Appellate Court has applied incorrect test in answering the issue of comparative hardship in favour of the respondent No. 1. According to him, it has been pleaded and proved by the plaintiff that he did not own any other premises except the suit premises. On the other hand, the tenant has merely pleaded and adduced evidence to the effect that he was not in a position to secure alternative premise because of financial constraints. It is this defence taken on behalf of the respondent No. 1 that has weighed with the Appellate Court as the Appellate Court has observed that the defendant will not be able to secure alternative premises for want of financial support. According to the petitioners, the basis on which the Appellate Court has decided the issue is manifestly wrong, erroneous and against the settled position in that regard resulting in serious miscarriage of justice. It is contended that what was required to be pleaded and proved by the respondent No. 1 was that it was impossible to get any other premises in the same locality or for that matter in the same city then the issue could be answered in favour of the tenant, but that has not been done.