NEELMANI BHIKOBA PATHARE Vs. S INDIRA

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 28.2.1986 passed by a Division Bench of the Small Causes Court at Bombay in Appeal No.673/83. That appeal was filed by the petitioners challenging the judgment and decree dated 25.8.1983 passed by the single Judge of the Small Causes Court at Bombay in R.A.E. Suit No.470/1729 of 1979. That civil suit was also filed by the petitioners, claiming that they are joint owners of the building known as "Prabhakar Niwas", situated 9th Road, Chembur, Bombay - 400 071. It was further claimed that defendant No.1 is a tenant of the plaintiffs in respect of the flat on the ground floor of the suit building. The landlords sought a decree of eviction against the tenant on the ground that they need the premises for their bonafide occupation. The trial Court on the basis of the evidence on the record found in favour of the landlords on the aspect of bonafide need of the landlords. However, after considering the aspect of comparative hardship, the trial court passed a decree of eviction against the tenant for eviction from a part of the suit premises. The landlords feeling aggrieved by the order of the trial court, approached the appellate court. The appellate court confirmed the findings recorded by the trial court on the aspect of the bonafide need. The appellate court also confirmed the findings of the trial court on the aspect of the comparative hardship and with some modifications the decree for partial eviction of the tenant was confirmed. In this petition filed by the landlord, therefore, it is the finding recorded by the courts below on the aspect of comparative hardship, which is challenged.

(2.) THE learned counsel appearing for the petitioners/landlords Shri Abhyankar urged before me that after holding that the landlord has established his requirement for the suit premises, the courts below have passed decree in favour of the landlord, which has a result of giving one room and varanda in possession of the landlords. He submitted that the suit premises are situated at Chembur, whereas the landlord is residing presently with his family at Shivaji Park, Dadar and the distance between these two premises is about 15 kilometers. The petitioner also placed an affidavit on the record dated 9th Feb.1998, pointing out that the financial position of the tenant has improved and now they are in a position to secure other accommodation. There is counter affidavit filed by the tenant disputing the statements made in the affidavit filed by the landlords. The learned counsel appearing for the tenant submitted that both the courts below after considering the aspect of comparative hardship have held that though the need of the landlord for the suit premises cannot be disputed, the tenants are in no position to secure alternate accommodation and therefore, the decree of partial eviction has been passed.