MANGESH GOVIND PATANE Vs. NAGESH VASANT KADAM

JUDGEMENT

(1.) The petitioner is the original defendant and the repondents are the original plaintiffs. The plaintiffs filed a suit for eviction on the ground of non-payment of arrears of rent and bona fide and reasonable requirement of the landlord. At the trial, the plaintiffs, inter alia, examined ms. Samta Kadam, wife of plaintiffs 2, who holds the power of attorney of the plaintiff. The said power of attorney is at Ex-68. The defendant examined himself. The trial Court held that the plaintiffs had not proved that the defendant is a defaulter. However, the trial Court held the plaintiffs have proved that the plaintiffs required the suit premises reasonably and bona fide and that greater hardship will be caused to the plaintiffs if the decree of eviction is not passed.

(2.) In the appeal carried from the said judgment and order, the lower Appellate court held that the plaintiffs had proved that the defendant is a defaulter. The lower Appellate Court confirmed the findings of fact recorded by the trial Court that the plaintiffs required the suit premises reasonably and bona fide for their personal use and occupation. The lower Appellate court also confirmed the findings on hardship. Hence, the defendant has approached this Court.

(3.) I have heard Mr, Sawant, the learned Counsel appearing for the petitioner-defendant. Mr. Sawant contended that none of the plaintiffs have stepped in the witness box. The plaintiffs chose to examine one Ms. Samta Kadam, who is the wife of plaintiff 2 and, who holds the power of attorney of the plaintiffs. The learned Counsel contended that the power of attorney holder of the plaintiffs could not have deposed about the bona fide and reasonable requirement of the plaintiffs. In this connection, the learned Counsel relied on a judgment of the Supreme Court in (Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others) , 2004 (4) Bom. C. R. (S. C. ) 76 : A. I. R. 2004 S. C. W. 7064. The learned Counsel drew my attention to the judgment of the Supreme court in (Sarwan Singh Lamba and others v. Union of India and others) , a. I. R. 1995 S. C. 1729 and contended that even an obiter dictum of the Supreme court is binding on this Court. The learned Counsel then drew my attention to yet another judgment of the Supreme Court in (Director of Settlements, a. P. and others v. M. R. Apparao and another) , 2002 (6) Bom. C. R. (S. C. ) 367 : 2002 (4) S. C. C. 638. Relying on this judgment, he contended that under article 141 of the Constitution of India, the law declared by the Supreme court shall be binding on all Courts within the territory of India. The learned counsel submitted that in view of this, the ratio of the judgment of the Supreme court in Janki Vashdeo Bhojwani's case (supra) on the value and appreciation of evidence of the power of attorney holder would be binding on this Court. He contended that inasmuch as the plaintiffs have not examined themselves, the plaintiffs' case that they reasonably and bona fide require the suit premises, is not proved.