K D JOSHEPH Vs. P M PHILLIPOSE

JUDGEMENT

(1.) BY this petition the petitioner challenges the order dated 24.9.1985 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.641/1982. That appeal was filed by the respondent, challenging the judgment and decree passed by the Judge, Small Causes Court at Bombay dated 30.8.1982 in R.A.E.& R. Suit No.342/1888 of 1972. That civil suit was filed by the respondent K.D.Josheph claiming therein that he owns the suit house known as 'Johnson House', situated at Tulsikar Wadi, M.G.Road, Kandivali (W), Bombay and in that house the respondent is a tenant of room No.3. The landlord sought decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay the rent and also that the landlord needs the suit premises for his bonafide occupation. The trial Court found in favour of the landlord and passed decree in his favour and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, however, the appellate Court reversed the findings recorded by the trial Court, allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit filed by the landlord. Therefore, in the present petition filed by the landlord the order of the appellate Court has been challenged.

(2.) WHEN the petition was called for final hearing none appeared for the petitioner and none appeared for the respondent. However, I have gone through the record. Perusal of the judgment of the appellate Court shows that though the landlord had demanded arrears of rent by notice dated 25.1.1972 for the period from 1/1/1971 to 31/12/1971 at the rate of Rs.35/ per month, the appellate court after considering the entire evidence on the record has held that on the date of the demand notice the tenant was not in arrears of rent for the period from 1.1.71 to 31.12.1971 and therefore, it has held that the demand notice itself was illegal. In so far as the ground of bonafide need is concerned, the appellate Court has found that the landlord has established that he needs the suit premises for his own bonafide occupation. However, the appellate Court while considering the question of comparative hardship has found that the financial position of the landlord is much better compared to the tenant and therefore, the appellate court has found that in case the decree of eviction is passed, greater hardship would be caused to the tenant than to the landlord. It is thus clear that the entire case turns on the appreciation of the evidence on the record. The appellate Court which is a court of fact has considered the entire evidence on the record in detail and has recorded the findings which are necessarily findings of facts. Therefore, in my opinion this court will not be justified in interfering with those findings of facts in its jurisdiction under Article 227 of the Constitution of India.