GANGARAM MANJI GAJARA Vs. GANESH MARGANESH NAIDU

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution takes exception to the reversal of a decree for possession passed in favour of one who had sought that relief under Section 13(1)(g) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 hereinafter referred to as the "Act" or "Rent Act".

(2.) THE deceased plaintiff filed a suit to obtain possession of a one-room apartment in the occupation of the respondent. It was alleged that plaintiff had three grown up sons who were all married, and whose wives quarrelled amongst themselves as also with his own wife. This quarrel some set of individuals plus some children, were in occupation of a two-room apartment which was grossly insufficient for their needs. Hence, the claim for possession. The respondent-defendant in his written statement denied the claim summarized above. It was his case that the two-room apartment for the plaintiff was more than adequate, and, that in any case, he had more accommodation available to him. Even if plaintiff's case was established and held to be reasonable, greater hardship would be inflicted upon him in case a decree for ejectment was passed than that which would befall the plaintiff if the claim were rejected. The appropriate issues were raised and parties went to trial. As frequently happens, there were ups and downs with one or two remands, and, eventually, the trial Court held that plaintiff's claim stood proved. On the issue of comparative hardship also, the finding was in plaintiff's favour. In the appeal preferred against that verdict, the defendant succeeded. During the pendency of the present writ petition, the plaintiff expired and an attempt was made to produce some new facts. This was on the ground that since the decision there had been a change in the circumstances. The defendant counters this by disputing the assertions made in the affidavit tendered on behalf of the plaintiff. It is contended that far from the circumstances having changed in his favour, these had worsened in relation to him and for the better vis-a-vis the plaintiff. Having regard to the effect of the parties laying different claims vide change in circumstances, it will be best to exclude the same for consideration of the points that arise in the instant petition. The consideration of the points at issue will therefore be restricted to the material brought on record during the trial of the suit. The petition is without merit and I dismiss it for the seasons given below.

(3.) NOW , so far as the size of plaintiff's family is concerned, he has three married sons. But, there is a farm house at Amgaon. That farm house is from time to time admittedly used by the insane son of the plaintiff. In any case, with plaintiff owning agricultural land there is nothing to stop him or one of his three sons moving into the said farm house with their wives and or children. I see no reason to disregard the appellate Court's finding that the tenements vacated by Mane and Noormohammed have been let out to Vatnani by the plaintiff or at least with his active consent. We have the bare word of Vatnani and plaintiff, that the former person has been inducted into Mane's tenement by Mane. This is difficult to believe, seeing that Vatnani has come into the witness box at the instance of the defendant. I decline to believe that person is so honest as to come and testify against himself. The better probability is that he induced defendant to believe that he would be testifying in support of him, and, thereafter gave the performance that he did not in the witness box viz. supporting the stand taken by the plaintiff. Were Vatnani and plaintiff telling the truth, the latter would not have sat silent. A notice would have been sent to the sub-tenants, inducted by Mane and Noormohammed. Suits would have been filed against them. When questioned on this court, plaintiff was vague. He did not know the number of suits filed or even the Advocate who lodged one of the suits or the dates thereof. What become of the suit thereafter, was not made known. In between decision and a remand, his interest in one of the houses, dwindled to a one fourth. In so far as Vatnani is concerned, he does not say why no steps have been taken against him by the plaintiff. Plaintiff may be uneducated, but does not seem to be the sort of person who would let go of a heaven sent opportunity to file a suit against an erring tenant. Yet no step has been taken against Vatnani and one does not know what became of the suit allegedly instituted against the occupant inducted by tenant Noormohammed. Having regard to the circumstances, the better inference would be that the present occupants of the premises viz. formerly in the occupation of Mane and Noormohammed, are tenants brought in by the plaintiff, and, if inductees of ex-tenants, they have been so inducted with the active knowledge and consent of the plaintiff. Once we come to this conclusion, it is difficult to believe in his protestations about experiencing an acute need for additional accommodation to provide a residence for his family.