JAGMOHANDAS JAMNADAS PATEL Vs. GANGADAS DURLABHDAS SHAH

JUDGEMENT

(1.) THIS is a petition filed under Article 227 of the Constitution of India by the landlord who was plaintiff in Regular Civil Suit No.393 of 1974. The petitioner claimed in the plaint that he owns House No.4 in Ali No.19 at Bajarpeth in Kalyan. He stated that the suit premises which consist of one shop admeasuring 15' x 30' with two galas on the ground floor. One room of an identical dimension namely, 30' x 15' feet which adjoining shop premises on the ground floor and one Padvi admeasures 15' x 6' also on the ground floor and two rooms on the first floor. He stated in the plaint that these suit premises have been given on rent to the respondent, who is the tenant of the premises. The plaintiff urged in the plaint that he has 17 members in his family and the accommodation available to his family is insufficient. He further urged that tenant has only 4 members in his family and therefore, he does not need the entire suit premises. It was further urged that out of two galas of the shop premises, one gala was not being used by the tenant. The defendant tenant by his written statement denied these allegations. After the parties led evidence, the Civil Judge, Junior Division, Kalyan decided the suit by his Judgment dated 17.10.1980. The Trial Court passed a decree of partial possession of the suit premises in favour of the landlord. The Trial Court passed decree of eviction against the tenant only in relation to the two rooms on the first floor and one gala of the shop premises on the ground floor. As a result, one gala in the shop premises, one room admeasuring 30' x 15' sq.ft. adjoining the shop premises and the padvi admeasuring 15' x 6' ft. remained with the tenant. The Trial Court cast obligations of carrying out necessary repairs to the suit premises on the landlord. The partial decree passed by the Trial Court was challenged by the respondent-tenant in Appeal being Civil Appeal No.311 of 1980. The Appeal was decided by the IVth Assistant Judge, Thane by the order dated 12.10.1982. The learned Appellate Authority allowed the Appeal and set aside the Judgment and decree passed by the Trial Court. It is this Order of the Appellate Court, which is challenged in the present petition.

(2.) SHRI Dani, the learned counsel appearing for the petitioner urged that considering the size of the family of the petitioner and the accommodation necessary for them as also the evidence on record, the Trial Court had passed a decree of partial eviction of the tenant from a portion of the suit premises. Shri Dani urged that even after execution of the decree, the tenant would have with them one gala of the shop premises and one big room admeasuring 30' x 15' feet and one Padvi admeasuring 15' x 6' feet. Shri Dani further stated that the Trial Court had also cast the obligations of constructing wall for partition of the shop premises between the landlord and the tenant and also constructing partition wall between the room on the ground floor and padvi and the necessary repairs of the Padvi were also to be carried out by the landlord. He urged that the Appellate Court has not given any reasons for setting aside the decree passed by the Trial Court. He urged that the Appellate Court has also not given any reasons for holding that the decree passed by the Trial Court was in any way erroneous. He pointed out that even the Appellate Court has observed that there are 17 members in the family of the landlord whereas in the family of the tenant there are only 4 members.

(3.) IT is to be seen that the Appellate Court has in paragraph 8 of its order mentioned that there are 4 members in the family of the defendant-tenant and 17 members in the family of the landlord. It has further observed that presently for accommodating these 17 members, the landlord has only three rooms on the first floor. After having found that there are 17 members in the family of the plaintiff-landlord and that the accommodation available with the landlord for the purpose of residence is only three rooms on the first floor, in my opinion, there was no justification for the Appellate Court to disturb the decree passed by the Trial Court, which resulted in making two more rooms on the first floor available to the landlord for accommodation of his family. So far as the shop premises are concerned, it is to be seen that undisputed position was that one gala of the shop premises was not being used by the tenant for his business and therefore, no fault could have been found by the Appellate Court with the order of the Trial Court in making that gala available to the landlord. So far as the aspect of there being no partition wall between two galas of the shop and between the room on the ground floor and the padvi is concerned, the Trial Court has clearly cast obligations to effect necessary construction on by the landlord. Shri Dani appearing for the petitioner also stated before me that the landlord would carry out the construction/repairs that are necessary for making the premises habitable by the tenant. In my opinion, the Appellate Court could have directed that the tenant shall not be made to vacate the rooms on the first floor unless and until the plaintiff completes the repairs/construction that are required to be carried out on the ground floor instead of setting aside the decree for partial possession of the suit premises passed by the Trial Court on the ground that because of the absence of partition wall between the room on the ground floor and Padvi and between two galas of the shop, the premises cannot accommodate the tenant's family. Such a direction would have met the ends of justice. However, the Appellate Court instead of doing that, has proceeded to set aside the decree for partial possession passed by the Trial Court which in my opinion, the Appellate Court was not justified in doing. If the Trial Court after appreciating the material on record, records the findings the Appellate Court cannot disturb those findings without finding a manifest error either of fact or of law committed by the Trial Court.