SUNDER MANSUKHANI Vs. GOBIND S O HEMRAJ KESWANI

JUDGEMENT

(1.) This is a writ petition by the tenant against the judgment and decree passed by the Small Causes Court, Pune and confirmed in appeal by the 7th Extra Assistance Judge, Pune.

(2.) The original landlord filed a suit for ejectment on the ground that the defendant-tenant has acquired suitable alternative residence and that the defendant is not using the suit premises for the purpose for which the same were let out to him for a continuous period of more than six months. The landlord also claimed possession of the suit premises on the ground that the defendant-tenant has committed acts which are contrary to the provisions of Clause (o) to section 108 of the Transfer of Property Act and that he requires the premises bona fide and reasonably for his own occupation. After appreciating all the evidence on record the trial Court held that the plaintiff has succeeded in proving that the defendant is not using the suit premises for a continuous period of more than six months and on other counts the trial Court recorded findings in the negative. However in view of the finding recorded on issue No. 2 the trial Court passed a decree for possession and also directed the defendant tenant to pay Rs. 1500/- towards the arrears of rent. Being aggrieved by this judgment and decree the defendant tenant filed an appeal before the District Court. Before the District Court the landlord also canvassed contentions on which findings were recorded by the trial Court in the negative. After independently appreciating all the evidence the Appeal Court found that the plaintiff has succeeded in proving that the defendant-tenant has acquired suitable residence at Bombay, that he has not been using the premises for a continuous period of more than six months. The Appeal Court also found that the plaintiff requires the suit premises reasonably and bona fide for his own use and occupation and greater hardship would be caused to the plaintiff if the decree for eviction is not passed. In view of these findings the Appeal Court dismissed the appeal filed by the tenant and allowed the cross objections filed by the plaintiff. As already observed it is against these findings that the present writ petition is filed by the tenant.

(3.) Shri Shah the learned Counsel appearing for the petitioner-tenant contended before me that both the courts below committed an error apparent on the face of record that the tenant is not using the suit premises without reasonable cause for a continuous period of more than six months immediately preceding the date of the suit. According to him the defendant-tenant was required to go to America temporarily for resolving certain problems of his brother. He has left India for a short period and he intends to come back to India. In these circumstances it cannot be said that he is not using the premises for a continuous period of more than six months or in any case is not using it without any reasonable cause. According to Shri Shah his sister and his brother-in-law are using the premises off and on whenever they go to Pune and therefore the premises are in use. So far as the bona fide requirement of the landlord is concerned it is contended by the Counsel that the landlord has constructed a big bungalow in Delhi after his retirement. For construction of this bungalow he has raised loan of Rs. 75,000/- and has also used his provident fund amount and part of his pension. If after retirement a person chooses to invest such a huge amount for the construction of a bungalow then it is clear that he intends to settle at Delhi. Therefore the finding recorded by the Appeal Court is wholly perverse. He also contended that the Appeal Court was also wrong in coming to the conclusion that the tenant has acquired alternate premises at Bombay. The flat at Bombay is in the name of his brother-in-law who is residing there in his own right and therefore it cannot be said that he has acquired premises in Bombay.