GANPATI PARASHURAM BACHAL Vs. HARI DATTATRAYA VANARASE

JUDGEMENT

(1.) THIS is a petition filed by the tenant under Article 227 of the Constitution of India, challenging the judgment dated 18.3.1993 passed by the II Additional District Judge, Satara, in Regular Civil Appeal No.46/1991, dismissing the appeal filed by the petitioner and confirming the decree of eviction passed against him by the Civil Judge, Junior Division, Wai, dated 21.12.1990, in Regular Civil Suit No.151/1982. The decree has been passed against the tenant on the ground of bona fide need of the landlord. While admitting this petition for final hearing, this Court had restricted the Rule in this petition to the question of comparative hardship to the landlord and the tenant in passing the decree of eviction against the tenant. Learned counsel appearing for the petitioner, Shri Pradhan, also restriced his petition to the same ground. He urged that while considering the question of comparative hardship, the Courts below ought to have taken into consideration as to whether passing a decree in relation to only a part of the suit premises would be sufficient. In the submission of Shri Pradhan, as this aspect of the matter has not been considered by both the Courts below, the orders of the Courts below are vitiated and are liable to be set aside. Shri Dhakepalkar, learned counsel appearing for the respondent, urged that this point has not been raised in the petition and, therefore, the petitioner should not be allowed to argue this point. Shri Pradhan conceded that the point has not been speciafically raised in the petition. However, in the interest of justice and considering that the material necessary for advancing the argument on this point is before the Court, he should be permitted to raise the same. Shri Pradhan further urged, relying on two judgments of the Supreme Court - one in the case of Rahman Jeo Wangoo v. Ram Chand, AIR 1978 Supreme Court 413, and the other in the case of Bhagwan Vishwanath Phadnis v. Bhaskar Digambar Choudhary, 1977(2) All India Rent Control Journal, 544, that the Courts were under a duty, in view of the provisions contained in sub-section (2) of Section 13 of the Bombay Rent Act, to consider whether passing the decree in relation to only a part of the premises would satisfy the need. Shri Dhakepalkar, learned counsel for the respondent, contended that neither in the written statement nor in the evidence, the tenant had pointed out that if a decree is passed only in relation to a part of the premises, the need can be said to be satisfied. He urged, relying on the judgment of this Court in Kisanrao Madhavrao Bartakke v. Narayan Dhondi Shete, AIR 1979 Bombay 74, that this Court has held that it is not for the Court to suo motu hold an enquiry on this aspect without parties placing material before the Court and urging the point specifically.

(2.) IN view of the rival submissions made, now it is to be considered whether the Court was under a duty to hold an enquiry into this aspect of the matter and render a finding when the tenant had not urged this point at any stage of the proceedings. He has not urged this point even in the present petition. The Division Bench of this Court in its judgment in the case of Krisanrao Bartakke has referred to both the judgments of the Supreme Court on which Shri Pradhan placed reliance. In so far as the judgment of the Supreme Court in Rahman's case is concerned, the Division Bench has observed that the provisions that were being construed by the Supreme Court are not para materia to the provisions of the Bombay Rent Act. Similarly, the Division Bench has also considered in detail the judgment of the Supreme Court in Bhagwan Phadnis's case. The Division Bench has quoted with approval the judgment of a learned single Judge of this Court in the case of P.A.Machiah v. Champaklal Nagindas, 1975 Mh.L.J. 238, wherein it has been held that whether a finding on one or both parts of Section 13(2) of the Bombay Rent Act is necessary or not must necessarily depend upon how the case is prosecuted on either side. This Court has further held that Section 13(2) of the Act does not cast a mandatory duty on the Court to record a finding on both parts without any plea, evidence and need. It thus becomes clear that the Court was under no duty to record a finding on this aspect of the matter when admittedly there was no pleading or evidence placed by the tenant on this count. So far as the Appellate Court is concerned, it has taken the entire evidence into consideration in recording a finding on the question of comparative hardship. No fault can be found with the finding record by the Appellate Court. In any case, the question whether a decree in relation to a part of the premises could have been passed by the trial Court was not specifically urged before the Appellate Court. The Appellate Court has taken into consideration the pleadings and the evidence on record and has correctly recorded the finding on the question of comparative hardship. In the absence of any error of law being pointed out, in my jurisdiction under Article 227 of the Constitution of India, I would not be justified in disturbing the findings recorded by the Courts below which are concurrent.

(3.) AT this stage, the learned counsel for the petitioner requests that operation of the interim order passed in this petition should be continued for a period of 4 weeks, obviously to enable the petitioner to approach the higher court. Learned counsel appearing for the respondent does not oppose the request. In view of this, it is directed that the interim order passed in the present petition shall continue to operate, despite dismissal of this petition, for a period of 4 weeks from today. It is, however, directed that during this period, the petitioner shall not create any third party interests or rights in the suit premises and shall not part with possession of the suit premises in favour of anybody except the respondent.