PARSHURAM CHUNILAL KANOJIYA Vs. MANOHAR VITHOBA KUNTHA

JUDGEMENT

(1.) This Revision Application is filed challenging the decree dtd. 8/10/2021 passed by the Appellate Bench of the Small Causes Court dismissing Appeal No. 376/2017 filed by the Applicant/Defendant No.2 and confirming the eviction decree dtd. 26/10/2017 passed by the learned Judge of the Small Causes Court directing the Defendants to handover possession of the suit premises in addition to conduct of enquiry into mesne profits.

(2.) Briefly stated, facts of the case are that, Plaintiffs are owners and landlords in respect of the property known as Building No.4 situated on plot of land bearing CTS No.425, 12thlane, Kamathipura, Nagpada, Mumbai 400 008. Defendant No.1 was inducted as a monthly tenant in respect of Shop No.1 on the ground floor of the said Building No.4 on monthly rent of Rs.400.00, which are the 'suit premises'. Plaintiff instituted R.A.E. Suit No.253/426 of 2011 seeking recovery of possession of the suit premises alleging unauthorised subletting by Defendant No.1 in favour of Defendant No.2. Plaintiff also claimed the ground of non-user as well as bonafide requirement of the landlord. The suit was resisted by Defendant No.2 by filing Written Statement that he is the son of Defendant No.1 and denied the allegation of unlawful subletting. Defendant No.2 also contested the grounds of non-user and bonafide requirement of Plaintiff-landlord. Both the sides led evidence in support of their respective claims. It appears that during the pendency of the suit, Defendant No.1-Tenant passed away. In the Affidavit of Evidence, Plaintiff made a statement that he was not pressing the grounds of non-user and unlawful subletting though pleaded in the plaint. Thus, the suit proceeded on the sole ground of bonafide requirement of Plaintiff. After considering the pleadings, documentary and oral evidence, the Trial Court answered the issues of bonafide requirement and comparative hardship in favour of Plaintiff and proceeded to decree the suit vide judgment and order dtd. 6/10/2017.

(3.) Mr. Kachare, the learned counsel appearing for Petitioner would submit that the Trial Court and Appellate Bench have erroneously accepted the ground of bonafide requirement for passing eviction decree against the Revision Applicant. He would take me through the averments in the plaint in support of his contention that the bonafide requirement as originally pleaded was that Plaintiff's daughter-in-law needed the suit premises for the purpose of her business as Consultant in investment and Agency of Postal Savings, R.B.I. Bond Saving Scheme, ICICI Bond Saving Scheme, ICICI Prudential Life Insurance etc. That it was pleaded that the daughter- in-law had clients around the suit premises and she was looking after the affairs of the business from residential premises of the Plaintiff located in the same building which consisted of only one room and kitchen. He would submit that in the cross-examination, it was admitted by the Plaintiff's daughter-in-law that the Plaintiff was not residing in the building, in which the suit premises are located and that he had permanently shifted to the flat at Wadala. He would submit that the said witness also admitted that Plaintiff was also in possession of Room No.3 in the suit building, which is kept vacant. That she was also admitted availing of commercial electricity connection in respect of the said Room No.3. That she further admitted that neither she nor any member of her family ever resided in the suit building at any point of time. That she further admitted that no difficulty would arise for the Plaintiff if the decree was to be refused.