MANGALA Vs. NILKANTH SHAMRAO NAWALKAR

JUDGEMENT

(1.) THIS matter arises out of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called as "bombay Rent Act" ). The petitioners are the tenants of the respondents who challenge the order passed by the Appellate Court in Appeal No. 129 of 1993 on the file of the Court of Small Causes at Bombay whereby the appeal of the petitioner for setting aside the eviction order passed by the trial Judge was rejected. The respondents have filed petition before the Small Causes Court as RAE and Suit No. 1130/3714 of 1985 with the prayer that second plaintiff in that suit i. e. Hiranath Shamrao Nawalkar requires the suit premises for his own occupation as he was occupying a Block No. 18, 2nd Floor, Suprabhat Apartments Co-operative Housing Society Ltd. , Dayan Mandir Road, Dadar, Bombay - 400 028 as a tenant and he was evicted from there by the order of the Court and the said eviction order though went upto the Supreme Court, he was unsuccessful and therefore, he was compelled to vacate his tenanted premises and therefore, he has no other premises where he can shift with his family and household articles. Therefore, he was compelled to shift to Nawroj Building, Hughes Road, Bombay 400 007 where the first petitioner and family along with members of the family were residing which was already crowded. By coming back to Nawroj Building, the same became over crowded and impossible to occupy. Therefore, it is necessary to shift one of the families of respondent Nos. 1 and 2 to the suit building after evicting petitioner.

(2.) THE defence mainly set up by the petitioner was that the respondents have got other rooms which was occupied by tenants and that even when the tenants vacated these rooms, instead of occupying himself he has again inducted new tenants and therefore, there is no bona fide in the requirement of the respondent. He also contended that comparative hardship will be greater than that of the landlord if the tenant is being vacated. During the pendency of the petition, the original defendant died and the present petitioners are the legal heirs of Mahadeo Damodar Kale, who was the original tenant. Therefore, by virtue of sub section (2) of section 13 no order can be passed for evicting the petitioners. Both these contentions of the defendant were rejected by the Small Causes Court and against that appeal was filed by the petitioners as Appeal No. 129 of 1991. The same was also dismissed by the Court below.

(3.) THE learned Counsel for the respondent has mainly relied upon his argument that it is proved before the Court that during the pendency of the proceedings, certain tenants of the respondents were vacated the premises and the same were transferred to some other tenants and transfer took place even before 1980 and creation of tenancy during the period should be held against the landlord.