LAWS(BOM)-1997-6-141

VISHNU KRISHNARAO JADHAV Vs. MAHADEO SAMBHAJI CHOUGULE

Decided On June 23, 1997
Vishnu Krishnarao Jadhav Appellant
V/S
Mahadeo Sambhaji Chougule Respondents

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 13.9.1995 passed by the II Addl. District Judge, Kolhapur, in Civil Appeal No.86/1993. That appeal was filed by the respondent challenging the judgment and decree passed by the II Joint Civil Judge Senior Division, Kolhapur, dated 15.1.1993 in Regular Civil Suit No.289/1987. That civil suit was filed by the petitioner claiming therein that he is owner of CTS No.1970, A-Ward, which consists of two rooms admeasuring 10' x 15', situate near Rankala Tower, Kolhapur, and that the respondent is tenant of those premises. The landlord claimed in the suit that his native place is Kolhapur. He further stated that he was in service in the armed forces from 1944 till 31.12.1982. The landlord sought a decree of eviction against the tenant on several grounds. The principal ground was that the landlord needs the premises for his own bona fide occupation and that the tenant has secured alternate accommodation. The trial court, after appreciating the evidence on record, decreed the suit on the two above-referred grounds. The trial Court also recorded a finding in favour of the landlord on the question of comparative hardship. In the appeal filed by the tenant, the appellate Court, however, reversed the findings recorded by the trial Court and allowed the appeal. The result was that the suit for a decree of eviction against the tenant filed by the landlord was dismissed. In the present petition, therefore, it is the order of the appellate Court which is challenged.

(2.) LEARNED counsel for the petitioner urged before me that it is an admitted position that the petitioner had retired from service and that after his retirement he wants to settle down in Kolhapur and therefore he wants possession of the suit premises. Learned Counsel urged that the finding recorded by the appellate Court that the landlord has accommodation available to him at Pune where his sons are residing and therefore his need is not bona fide is perverse. In the submission of the learned counsel, it is an admitted position that the landlord hails from Kolhapur and that Kolhapur is his native place. In the submission of the learned counsel, no fault can be found with the desire of the landlord to settle down at Kolhapur after his retirement from the military service. In the submission of the learned counsel, there was no justification for the appellate Court to reverse the findings recorded by the trial court when it is an admitted position that the landlord does not have any other premises at Kolhapur. On the other hand, the learned counsel for the respondent-tenant urged that the accommodation available to the petitioner-landlord at Pune can be taken into consideration. For that purpose he relied on a judgment of this Court in the case of Lt.Col. P.M.Lokhande v. Dr.R.G. Talwalkar, 1990 Bom.Rent Cases 378 and urged that this court has held that the accommodation available to the landlord in some other city can also be taken into consideration. However, perusal of that judgment shows that the suit premises were situate at Bombay; the landlord had filed a suit initially making it a requirement of his son who was taking education in Bombay; however, by the time the suit came up for hearing, the petitioner had retired from service and therefore he claimed that he wants to settle down in Bombay after his retirement. This court, however, found that the landlord had declined to make a positive statement as to whether he desires to stay in Bombay after his retirement. This Court has observed that the landlord was specifically asked in Cross-examination as to whether he intends to settled down at Pune on retirement and the landlord declined to give any answer by claiming that he had not made up his mind. On these facts, this court held that the landlord had failed to prove that he had decided to reside at Bombay after his retirement and therefore this Court held that the place where he is residing is relevant and the accommodation was taken into consideration. In the present case, in my opinion, in the face of the admitted position that Kolhapur is the native place of the landlord and that he has no other premises except the suit premises, the appellate Court was not justified in reversing the findings recorded by the trial Court. The trial court had taken into consideration the entire evidence on record. When it was the case of the landlord that he wants to settle down at Kolhapur, the accommodation available to him at Pune could not have been taken into consideration. In my opinion, the learned counsel for the petitioner rightly relied on the observations of the Supreme Court in its judgment in Meenal Eknath Kshirsagar v. Traders & Agencies, (1996) 5 Supreme Court Cases 344. The Supreme Court observed :

(3.) AT this stage, the learned counsel for the respondent requests that the respondent should be given a reasonable time to vacate the suit premises. In the submission of the learned counsel, one year's time would be a reasonable time. Learned Counsel for the petitioner does not oppose the request. He, however, submits that the respondent should be required to submit an undertaking to this Court in the usual form of himself and all other adult members in his family. In this view of the matter, therefore, it is directed that the decree of eviction passed against the respondent shall not be executed for the period of one year from today, subject to the condition that the petitioner submits an undertaking of himself and the other adult members of his family in the usual form to this court within a period of two weeks from today. Failure of the respondent to submit the aforesaid undertakings within the aforesaid period shall, however, entitle the landlord-petitioner to execute the decree immediately.