SEETA P MAKHIJANI Vs. B D MELLO

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 16.7.1985 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.418/1984. That appeal was filed by the respondent challenging the judgment and decree passed by the Judge, Small Causes Court at Bombay, dated 1.6.1984 in R.A.E. Suit No.717/2522/1980. That civil suit was filed by the petitioner claiming therein that she is owner of Flat No.22, in a building known as Pushpa Vihar No.3, 4th Floor, Colaba, Bombay, and that the respondent is the tenant of that flat. The landlady sought a decree of eviction against the tenant on the ground that she needs the suit premises for her own occupation. The trial Court, on the basis of the evidence on record, recorded finding in favour of the landlady her favour and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, the appellate court, however, reversed the finding recorded by the trial court. As a result, the appeal was allowed and the judgment and decree passed by the trial Court directing the tenant to vacate the suit premises was set aside. In this petition filed by the landlord, therefore, what is challenged is the order passed by the appellate Court.

(2.) SHRI Walawalkar, learned counsel appearing for the petitioner, urged before me that in so far as the city of Bombay is concerned, the suit flat is the only residential premises which the petitioner can occupy as a matter of right. He submitted that presently the petitioner along with her husband is residing in a flat which is owned by the brother of the petitioner. He submitted that after the husband of the petitioner retired from the service of the Central Government in the year 1980, the petitioner and her husband have settled down in Bombay and they are residing in Bombay since 1981 continuously. Therefore, in the submission of Shri Walawalkar, as the petitioner and her husband are residing continuously in Bombay from 1981, the appellate Court committed a grave error in reversing the finding recorded by the trial Court on the basis of the correspondence between the husband of the petitioner and his employer regarding his intention to settle down in Delhi and not in Bombay. In the submission of Shri Walawalkar, in the face of this position that after his retirement in the year 1980, the husband of the petitioner alongwith the petitioner started residing in Bombay and has been doing so for the last 15 years, his correspondence with his employer regarding his settling down in Delhi after his retirement loses any significance and therefore, according to Shri Walawalkar, these two factors - (1) that the petitioner along with her husband is residing continuously form 1980 in Bombay and(2) that the petitioner does not have any other residential accommodation in Bombay which she can occupy as a matter of right, the findings recorded by the appellate Court is liable to be set aside. Shri Walawalkar invited my attention to a statement made in paragraph 10 of the affidavit dated 23.7.1997 filed on behalf of the respondent-tenant wherein the respondent-tenant has stated that the petitioner and her husband continuously stayed in Flat No.34 on the 5th Floor of Pushpa Vihar Building No.3 at Bombay till today. Therefore, in the submission of Shri Walawalkar, it is an admitted position before this court that since 1981, the petitioner is residing with her husband continuously in Bombay. Shri Walawalkar also relied on the judgment of the Supreme Court in the case of Meenal Eknath Kshirsagar v. Traders & Agencies, (1996) 5 Supreme Court cases 344 and urged that in the face of the established fact that the petitioner does not have any other residential accommodation available to her in Bombay which she can occupy as a matter of right, a decree of eviction has to be passed against the tenant. In so far as the aspect of comparative hardship is concerned, Shri Walawalkar pointed out that the appellate Court has also found that the petitioner has residential premises available to him at Pune. Shri Walawalkar further urged that the tenant has already retired from service and as he is a bachelor, he can conveniently stay in the residential premises that are admittedly available to him in Pune.

(3.) NOW , if the record of the case is perused in the light of the rival submissions, it is clear that the appellate court has reversed the finding recorded by the trial Court after appreciating the correspondence between the husband of the petitioner and his employer regarding the intention of the husband of the petitioner to settle down in Delhi and the appellate Court has recorded a finding that it is clear from that correspondence that the intention of the petitioner's husband was to settle down in Delhi. In my opinion, though the correspondence between him and his employer may show that it was the intention of the petitioner's husband to settle down in Delhi after his retirement, the subsequent conduct of the petitioner and her husband of starting to reside in Bombay from 1981 continuously for the last over 15 years shows that the petitioner has along with her husband settled down in Bombay. In paragraph 10 of the affidavit dated 23.7.1997, the tenant has stated thus :