BHIMRAO MAHADEVAPPA KOTHULE Vs. KISAN DAGDU VYAVSHARE

JUDGEMENT

(1.) BY this Petition filed under Article 227 of the constitution of India the Petitioner-landlord is challenging the legality of the judgment,dated 30th July 1981 delivered by the II Extra Assistant Judge Nasik reversing the Judgment and decree, dated 31st January, 1979 passed by the learned II Joint Civil Judge, Junior Division, Nasik. The facts giving rise to filing of the Petition are as follows.

(2.) THE Petitioner-landlord filed suit for possession on two grounds firstly, on the ground of default or non-payment of rent and secondly on the ground of bonafide requirements. It is urged by the Petitioner that there are 24 members in his family and he is in possession of only 4 rooms which are not sufficient for their requirement, and the room on the ground floor which is in their occupation is not fit for residential purpose. Other three rooms are 10x10 feet and one room is 9x8 feet and one room is required to be used as kitchen. There are school going children and hence they must set some separate accommodation for their study. The Petitioner further urged that there are couples in the family and they also need some privacy, as agains this it was contended that there are only seven members in the family of the defendant and hence the decree for possession should be passed. The trial court inter alia held that plaintiff requires the suit premises bonafide for his personal use and occupation. The trial Court also held that greater hardship would be caused to the landlord in the event if no decree is passed in favour of the landlord. In this view of the matter, the learned II Joint Civil Judge junior Division, Nasik passed a decree for possession on the ground of bonafide requirement. However, on the ground relating to non-payment of rent no decree was passed.

(3.) AGGRIEVED by this Order, Respondent-tenant filed Civil Appeal No. 67 1979. The Appeal Court confirmed the finding relating to bona fide requirements however on the question relating to relative hardships, the Court recorded a finding that the landlord is in possession of five rooms the tenant is only earning member of his family earning Rs. 162/- per month there are no other earning members in the family of the tenant, no other accommodation is available and the tenant would not be in a position to pay more rent and thus the Court held that greater hardship would be caused to the tenant in the even decree for possession is passed and in this view of the matter the appeal was allowed and the Judgment and decree for possession passed by the trial Court was set aside.