CHIMANLAL SAKALCHAND SHAH Vs. DAYAROBA SEDBE KODRE

JUDGEMENT

(1.) THIS petition has been filed under Article 227 of the Constitution of India by the original defendant No. 1, who was the tenant of the suit flat in house No. 16 Kasba Peth, Pune. This suit premises involved in this eviction proceedings governed by the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (hereinafter called as Bombay Rent Act) is situated on the first floor. The defendant (tenant) is in possession of the three rooms block on the first floor as described in para 1 of the plaint. We are not concerned with the remaining premises either on the ground floor, or second floor or third floor of the house. However, it may be stated that defendant No. 2 who is the co-owner along with the plaintiff-respondent No. 1 herein, is in occupation of some portion of third floor. Respondent No. 2 (defendant 2) who is a brother of the plaintiff-respondent No. 1 was not available for signing the plaint and so he was impleaded as defendant No. 2. The plaintiff instituted the present eviction proceedings following the provisions of the Bombay Rent Act on three grounds : He requires suit premises bonafide such as he himself wants to reside in it. He has two sons and grand children. His family consists of himself, his wife, two sons, two daughters-in-law and two grand-sons. One of the sons is an advocate. He wants to reside at Pune and to set up his career following certain profession. Second ground was that the tenant has acquired suitable residence recently i.e. after the commencement of the amending Act. This suitable residence consists of five rooms situated in Shrinagar Apartments, Swargate, Pune. The third ground is that the suit premises themselves remained close for more than six months next before the date of the suit. The first defendant was in fact not in the need of the suit premises at all. He locked the suit premises and did not use the same.

(2.) THE first defendant denied all these grounds taken by the plaintiff for his eviction and disputed the claim of the landlords. He asserted that there is a block in Shrinagar Apartments which owned by his own. He has got more than 7 members dependent on him. His shop where he carries business is near the suit premises. On the contrary, he contended that the suit premises are too small and therefore, a separate block was acquired in Shrinagar Apartments, in which his one of the sons is residing. He disputed the contention that he had not used the premises for more than six months proceeding the date of the filing of the suit. He further asserted that his landlords need is not bonafide at all. The plaintiff's brother, who is co-owner of the house is in occupation of 5 rooms block on the third floor, disputed that the need of the landlord-plaintiff is genuine.

(3.) THIS decree was challenged by the tenant before the appellate Court in appeal. The learned appellate Judge raised necessary points for determination. The first point is whether the plaintiff requires the suit premises reasonably and bonafide for his occupation and the members of his family. Second point relates to the greater hardship. Third point is, whether defendant-tenant in January, 1974 acquired suitable residence and the last point is in the following terms whether the tenant kept the suit premises closed for a continuous period of six months ? The learned appellate Judge after adverting to the evidence on record although not discussing fully was aware that he was dealing with the appeal as a first appellate Court based on the appreciation of evidence on record and after hearing the parties agree with the view of the learned trial Judge and confirmed the decree passed by the learned trial Judge and dismissed the appeal by his judgment dated 3rd March, 1981. It is against this concurrent finding of fact recorded by the below granting decree for eviction against tenant that the present writ petition has been filed under Article 227 of the Constitution of India.