JETHANAND BHOJRAJ NAGDEV Vs. KISHINCHAND JETHANAND

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution arises out of a civil suit for possession of Room No. 6, Barrack No. 412, O.T. Section, Ulhasnagar-I, filed by the petitioner against the respondent under the provisions of Bombay Rents, Hotel, Lodging House Rates Control Act, 1947.

(2.) THE petitioner is the landlord and the respondent is the tenant of the premises in question on a monthly rent of Rs. 25/- together with the permitted increases. The respondent is in possession of the premises since about the year 1962 as a tenant. Prior to the filing of the suit the petitioner served a notice on the respondent terminating the tenancy on various grounds. One of the grounds stated in the notice is that the petitioner is retired from service and the climate of Bombay (Matunga) where he is residing is not suitable and he desires to settle at Ulhasnagar in his own house. The suit was filed in the year 1975. The trial Court framed various issues arising out of the pleadings of the parties. Since the controversy raised before me is confined to the question of bonafide requirement, it will be sufficient to state that the trial Court held that the petitioner proved that he required the suit premises reasonably and bonafide for his personal use and occupation. On the question of comparative hardship, the trial Court held that if the decree is not passed, the hardship would be greater on the petitioner. In the result, the trial Court passed a decree for possession of the premises in favour of the petitioner. Aggrieved by the aforesaid decision, the respondent preferred a civil appeal in the District Court, Thane. The learned IV Extra Assistant Judge, Thane, who heard the appeal by his judgment and order dated July 16, 1962, allowed the appeal disagreeing with the view taken by the trial Court. On the appreciation of facts and circumstances of the case, the learned lower appellate Court held that the petitioner had failed to establish his case that he required the suit premises reasonably and bonafide for his personal use and occupation. He also held in favour of the respondent on the question of comparative hardship. In the result, the learned judge set-aside the decree passed by the trial Court and dismissed the petitioner's suit for possession.

(3.) NOW , certain salient facts need to be noted. The suit premises consist of a room without the facility of an independent toilet or kitchen. The family of the respondent consists of himself and his six children who were minor at the time of the suit and they have all been residing in the suit premises since the year 1963. The respondent has also two brothers who too resided in the suit premises as members of his family. However, during the pendency of the suit the respondent's one brother shifted to Nagpur and the other brother took a room in Camp No. 2 at Ulhasnagar. In other words, the occupants of the suit premises are the respondent, his wife and six children. Now, turning to the position of the petitioner, it is undisputed that he had purchased a self-contained flat at residing there since then. The petitioner retired from service in the year 1968 and filed the present suit seven years thereafter. As far as the family of the petitioner is concerned, it would appear that till the disposal of the appeal the petitioner along with his wife and four sons and four daughters who were all major were residing in the Matunga flat. In other words, his family consisting of ten members resided there.