BALWANT P DOSHI Vs. SHANTABEN DHIRAJLAL SHAH

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Small Causes Court at Bombay, Bandra Bench dated August 30, 1993 in Appeal No. 158 of 1991 in R. A. E. Suit No. 76/207 of 1986. Briefly stated, the respondent No. 1 is the landlady in respect of residential premises situated on the first floor of Nemi Building, 83 Nutan Laxmi Co-operative Housing Society Ltd. , J. V. P. D. , Mumbai 400 056. The suit building was constructed in the year 1966-67. Thereafter the respondent No. 1 inducted respondent No. 2 as a tenant on monthly basis. At the relevant time the respondent No. 1 was staying with her elder son at Sion. The premises at Sion were rented premises admeasuring 750 sq. ft. This fact has been established from the record, whereas the suit premises admeasure 1200 sq. ft. with 3 bed rooms, hall and kitchen. According to the respondent No. 1, since her requirement was growing because of the increase in the number of family members, after the marriage of her son, she required the suit premises for herself as well as for her other family members. Accordingly, suit for possession on the ground of bona fide and reasonable requirement under section 13 (1) (g) of the Bombay Rent Act was filed by the respondent No. 1 in the Small Causes Court at Bombay being R. A. E. Suit No. 76/207 of 1986. This suit was originally filed against the respondent No. 2 who was the tenant. Subsequently, the petitioner got himself impleaded in the said suit contending that he was occupying the suit premises on leave and licence basis since 1971 and that the leave and licence in his favour was subsisting on 1-2-1973, therefore, he became the protected licensee by virtue of section 15-A of the Bombay Rent Act. The petitioners application for impleadment was allowed by the trial Court. Accordingly, the suit for possession was against the tenant as well as the petitioner who claimed to be the protected licencee, for possession of the suit premises on the ground of bona fide requirement. Both the parties thereafter went for trial. The trial Court after recording the evidence, by a well considered judgment and order dated 17-7-1991 running into about 141 pages, decreed the suit in favour of the respondent No. 1. Various issues were raised before the trial Court. To my mind, it will not be necessary to go into all those aspects for the reasoning which I propose to adopt a little later. Suffice it to mention that, the trial Court accepted the plea of the respondent No. 1 landlady that the suit premises were required bona fide and reasonable for herself and her family members. The trial Court also decided the issue of comparative hardship in favour of the respondent No. 1 landlady. Being dissatisfied, the petitioner, who was impleaded as defendant No. 2, claiming to be the protected licensee, alone preferred appeal before the Appellate Bench of the Small Causes Court. That appeal has been dismissed by the Appellate Bench by order dated 30-8-1993. The Appellate Bench has also affirmed the finding of facts recorded by the trial Court. In so far as the conclusion on the issue of bona fide and reasonable requirement of the respondent No. 1 landlady is concerned, the Appellate Court has addressed to the factual matrix of the case particularly in paras 38 to 41 in the impugned judgment. The Appellate Court has held that taking overall view of the matter the respondent No. 1 had succeeded in establishing the bona fide and reasonable need in respect of the suit premises for herself and her family members. Even on the issue of comparative hardship the Appellate Court has taken the view that in fact the original tenant was not occupying the suit premises and since the leave and licence agreement relied by the petitioner was held to be suspicious document, there was no question of any hardship being caused to the tenant. The Appellate Court observed that, since the tenant was not personally occupying the suit premises, the question of causing any hardship to the tenant would not arise. In so far the petitioner is concerned, the Appellate Court observed that the evidence on record would clearly indicate that he had kept on changing the residential premises in the past. In other words, the Appellate Court has taken the view that the respondent No. 1 plaintiff had no other premises for satisfying her requirement, which is established from the record; On the other hand, alternative premises were abundantly available in the locality as well as in the city. Accordingly, even the issue of comparative hardship has been answered against the petitioner and in favour of the respondent No. 1 landlady. It is this concurrent decisions which are subject matter of the present writ petition.

(2.) BEFORE adverting to the rival contentions on merit, I would think it appropriate to mention that, before the trial Court one of the issue was-that the leave and licence document relied upon by the petitioner was palpably bogus document. That issue has been decided against the petitioner by both the courts. That finding of fact cannot be re-opened in writ jurisdiction. Once that finding is undisturbed, it necessarily follows that occupation of the petitioner in the suit premises was not as a licensee or for that matter protected licensee as contended. In that case, it will not be open for the petitioner to either challenge the decree passed against the tenant or to file writ petition in this Court. Nevertheless, since the writ petition has been filed and the same has been admitted, it is being considered on merits.

(3.) THE Counsel for the petitioner assails the findings recorded by the courts below on the ground that they are perverse and therefore unsustainable. On the other hand, Mr. Vashi, learned Counsel for the respondent No. 1 contends that no infirmity can be found in the concurrent view taken by the two courts below particularly in respect of question of fact regarding the reasonable and bona fide need of the respondent No. 1 as also on the question of hardship.