MEHEBOOBBHAI ANWAR MISTRI Vs. KRISHNABAI SHIVRAM INAMKE

JUDGEMENT

(1.) THIS Writ Petition under Article 227 of the Constitution of India takes exception to the order passed by the Additional District Judge, Baramati, District Pune dated January 3rd, 1992 in Civil Appeal No. 264/8 of 1989. The property in question is House No. 154 situated in Ward No. 5 at Baramati. The Petitioner was inducted as a monthly tenant in the said premises which consisted of 9 Khans. The predecessor of the Respondents Shivram B. Inamke since deceased, subsequently terminated that tenancy and instituted suit against the Petitioner in the Court of Civil Judge, J. D. , Baramati bearing Suit No. 133 of 1980 on the ground of default, bonafide requirement and nuisance. The Trial Court by order dated March 28, 1988 decreed the suit on the ground of default and bonafide requirement. The Petitioner carried the matter in appeal before the Additional District Judge, Baramati in Civil Appeal No. 264/8 of 1989. The Appellate Court overturned the decree with regard to the ground of default. However, affirmed the view taken by the Trial Court in so far as the ground of bona-fide requirement and comparative hardship was concerned. Against this concurrent decisions of two Courts below regarding the issue of bonafide requirement and greater hardship, the present Writ Petition under Article 227 has been filed.

(2.) DURING the pendency of this Writ Petition according to the Petitioners, certain developments have taken place which would eclipse the need which was set up by the Respondents/landlords for eviction on the ground of reasonable and bonafide requirement. It is contended that said ground was pressed by the landlord essentially for the requirement of handicapped daughter of Nivrutti Inamke and for the wife Shivram namely Krishnabai being an old aged women, for both of them required medical treatment. In this backdrop, affidavit has been filed before this Court on 15th October, 2001 by the Petitioner pointing out that the said Krishnabai has already died and that handicapped daughter Rekha has since been married and staying at her matrimonial home. In other words, it is contended that the basis on which the suit was instituted, that requirement was no more subsisting or available to the landlords. Therefore, the conclusion reached by the two Courts below, though concurrent, will have to be effaced. However, the learned Counsel for the Respondents on the other hand contends that the ground of bonafide and reasonable requirement was pressed not only on the basis of the aforesaid requirement but additionally also for the children who had grown up and they have to take higher education at Baramati. According to the Respondents therefore, the requirement was not only for the handicapped daughter Rekha and old aged Krishanabai but also for the other family members more particularly for the children who were to take higher education at Baramati and for their occupation. It is therefore contended that the plea taken in the said affidavit is wholly misconceived and of no avail. The learned counsel for the Respondents further contends that two Courts below have concurrently accepted the plea taken by the Respondents for the requirement of the children and their family and that finding of fact cannot be interfered with in writ jurisdiction.

(3.) THE next question that arises for consideration is whether the present suit in so far as the ground of requirement of the children for their higher education can be said to be barred by resjudicata. This plea was raised before the courts below. THE Appellate Court has adverted to this aspect and found that the cause or the reason shown by the plaintiff for reasonable and bonafide claim is not the same which was in the earlier suit. THE Appellate Court in Paragraph 15 has also found that due to passage of time the family members of the plaintiffs have increased and now the children were taking higher education in school and college and hence they intended to reside at Baramati, which fact was not pleaded in the previous suit. In that context the Appellate Court found that the present suit cannot be said to be barred by resjudicata. No doubt, the Appellate Court has also adverted to the fact that in the present proceeding additional reason pressed into service was also on the ground of handicapped daughter Rekha and old aged Krishnabai. Be that as it may, the Appellate Court therefore, took the view that the present suit cannot be said to be barred by resjudicata. I find no reason to differ from the view taken by the Appellate Court, as no material has been placed before me to doubt the correctness of that view of the Appellate Court. In that sense, the present suit will have to be continued on the ground of the requirement of other family members and in particular of the children for taking higher education. No doubt, due to passage of time the children must have completed their education but that itself cannot disentitle the landlords to get the decree of eviction. THE Apex Court has considered even this aspect of the matter in Gayaprasad case (cited supra) as the parties will have to be relegated to the dates of institution of the suit.