JUDGMENT A. M. Kbanwilkar, J.
1. This writ petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the IVth Additional District Judge, Thane, in Civil Appeal No. 183 of 1983 dated April 7, 1989.
2. The petitioner is a tenant in respect of the premises which are owned by Respondent No. 1 bearing Municipal House No. 75, Ali No. 63 known as Ugvekar Chawl, situated at Rambaug, Kalyan. The suit property consists of one room which was let out to the predecessor of the petitloner-Kashinath Gujar - on a monthly rent of Rs. 8.00 plus 0.16 paise towards education cess. After the demise of the said Kashlnath Gujar, the petitioner has become tenant of the present Respondent No. 1.
3. Respondent No. 1 instituted a suit in the Court of the IInd Jt. Civil Judge, Junior Division, Kalyan, being R.C.S. No. 288 of 1975 praying for recovery of possession of the suit premises. Eviction of the petitioner-tenant was prayed on different grounds, viz., default in payment of rent; conduct of the petitioner-tenant causing nuisance and annoyance; petitioner having committed an act contrary to provisions of Clause (o) of Section 110 of the Transfer of Property Act, 1981; petitioner having erected a permanent structure without the consent of the landlord, and bona fide and reasonable requirement of the landlord.
4. The said suit was resisted by the petitioner-tenant by filing written statement. On the basis of the rival pleadings, the Trial Court framed as many as eleven issues. On the basis Of evidence adduced by the parties, the Trial Court was, however, pleased to dismiss the suit and negatived the case of the respondent No. 1 on all counts. Against the said decision, the respondent No. 1 Smt. Krishnabai Dhaniram Ugavekar. being landlady, preferred an appeal being Civil Appeal No. 183 of 1983 before the IVth Additional District Judge. Thane, Before the Appellate Court, the respondent No. 1 not only pressed the ground of default Inpayment of rent but also other grounds, including the ground that the petitioner having erected a permanent structure without the consent of the landlady and the petitioner having acquired a suitable and alternative accommodation, as well as the ground of bona fide and reasonable requirement of the respondent - landlady. The Appellate Court was, however, pleased to negative all other grounds except the ground of bona fide and reasonable requirement of the respondent No. 1 as well as the issue of greater hardship to be caused to the landlady than the petitioner tenant. The Appellate Court was, accordingly, pleased to allow the appeal by the impugned order and decreed the suit for possession filed by the respondent No. 1 solely on the ground of bona fide and personal requirement.
5. Against the said judgment, the petitioner-tenant has filed the present writ petition under Article 227 of the Constitution of India, whereas the respondent No. 1 has not assailed the findings recorded by the Appellate Court with regard to other grounds. In other words, the sole ground that survives for consideration of this Court is whether the landlady has succeeded in establishing that the suit premises are bona fide and reasonably required by her as well as consequential issue of greater hardship.
6. The learned Counsel for the petitioner mainly contended that having regard to the material on record, it is more than clear that the landlady has acquired possession from other tenants in respect of neighbouring premises; and, in the circumstances, the issue of bona fide and personal requirement will have to be necessarily answered against her. As such, no decree of eviction could be passed against the petitioner-tenant. According to the learned counsel for the petitioner, even if the respondent No. 1 had shown her fairness in offering an alternative accommodation to the petitioner, that would not entitle her for a decree of possession unless she succeeds in establishing the reasonable and bona flde requirement. He further submits that, in any case, the alternative accommodation offered to the petitioner, is not habitable and suitable for the reasons stated before the Lower Court as well as in the affidavit filed by the petitioner before this Court.
7. On the other hand, the learned counsel for the respondent No. 1, contends that the Appellate Court has rightly recorded a finding of fact that the landlady has succeeded in establishing that the suit premises were bona fide and reasonably required by her; and. therefore, no interference is warranted by this Court with such a finding, in exercise of writ Jurisdiction under Article 227 of the Constitution of India. The learned Counsel for the respondent No. 1 further submits that since the finding on the aforesaid issue cannot be disturbed by this Court, the decree of possession ordered by the Appellate Court cannot be questioned in law. Inasmuch as, in so far as the finding with regard to the issue of comparative hardship is concerned, no fault can be found with the approach adopted by the Appellate Court.
8. Before I proceed to examine the rival contentions on merits, it will be appropriate to point out that when this writ petition came up for hearing before this Court on 25.1.2001, after having heard both the sides, it was felt that the parties should explore the possibility of a settlement. Accord-
ingly, at the instance of both the sides, the matter was adjourned on couple of occasions. The respondent No. 1 has filed an affidavit dated 2.2.2001 before this Court to bring on record her Intention to offer an alternative accommodation to the petitioner-tenant inspite of the decree of possession against the petitioner. This affidavit also indicates that the petitioner has not deposited regularly in Court, the entire rent, and that the petitioner is in arrears of rent since June, 1999. Besides this, the affidavit also recites that during the pendency of the proceeding for all these years, the requirements of the respondents have grown manifold and particulars in that behalf including the size of the family has been enumerated. Subsequent to the said affidavit, the petitioner has filed an affidavit dated 14.2.2001 before this Court. It indicates certain subsequent developments that have taken place during the pendency of the writ petition. The affidavit indicates that the respondent No. 1 is staying in Room No. 10 in the said chawl, and the said room is extended by 10 ft. x 10 ft., and this extension would meet all her requirements. It is stated that the Respondent No. 1 is also occupying another room, viz.. Room No. 7, along with her family consisting of two children. This affidavit further indicates that, on the other hand, the petitioner was living in Room No. 1 along with his two sons, one daughter-in-law and five grandsons. The affidavit further indicates that the alternative accommodation offered by the respondent No. 1 to the petitioner bearing Room No. 5 is completely in a dilapidated condition. According to the petitioner, infront of this room, one gutter flows and there is a chamber of a septic tank, which mostly overflows, causing nuisance due to discharge of waste water. The affidavit also indicates that during the rainy season, water comes inside the said room, and it would be absolutely difficult, if not impossible, for the petitioner to occupy the said room. The respondent No. 1, on the other hand, filed further affidavit dated 2.3.2001, which indicates the steps taken by her for repairing the room which has been offered to the Petitioner. The affidavit also explains the other allegations made by the petitioner. The respondent No. 1 has also placed on record that the suit premises which are presently occupied by the petitioner, are also in bad condition and. In fact, there is no water or electricity connection, as the same have been disconnected by the concerned authorities because of the default in payment of the charges therefor by the petitioner. The respondent No. 1 has also denied that the premises which have been offered as alternative accommodation are not suitable or habitable, as contended by the petitioner. On the contrary, the respondent No. 1 relies on certain correspondence, including the photographs of the said alternative accommodation, which have been appended to the said affidavit. To complete the narration of facts, it would be necessary to point out that thereafter the petitioner on 9.3.2001 filed further affidavit before this Court and reiterated the stand taken earlier that the premises which are offered as an alternative accommodation are not habitable and suitable.
9. After having considered the rival submissions, in my view, the moot question that arises for my consideration is whether the respondent No. 1 has established the ground of bona fide and reasonable requirement. In this case, it is necesary to point out that the Appellate Court has analysed the evidence on record and considered all the relevant aspects, including the fact that the respondent No. 1 has acquired possession of additional premises from other tenants; and, has recorded a clear finding that the landlady has established the ground of bona fide and reasonable requirement. It is well settled that the scope or interference by this Court in exercise of its writ jurisdiction under Article 227 of the Constitution, is very limited. It is not open for this Court to re-appreciate the evidence on record to upset the finding of fact recorded by the Court below, merely because another view is possible. In the circumstances, I would proceed to examine the matter in the context of the limited Jurisdiction to be exercised in the present case. The learned Counsel for the petitioner has not been able to point out any infirmity in the approach adopted by the Appellate Court with regard to the finding on bona fide and reasonable requirement. The Appellate Court, in paragraphs 13 to 15-A of the impugned Judgment, has analysed the entire material on record and has also relied on certain decisions of this Court. Having regard to the legal position with reference to the said decisions of this Court, I find no reason to interfere with the said finding arrived at by the Court below. The Court below has rightly taken the view that merely because other premises have become available to the respondent No. 1, that would not preclude her from pursuing the suit for possession in respect of the suit premises on the ground of bona Jlde and reasonable requirement having regard to the fact that a specific case was made out by the landlady in the pleadings, and which is proved in evidence, that the suit premises were ideally situated, i.e., abutting the premises already occupied by the landlady which would enable her beneficial enjoyment of both the premises together. It is not disputed that the tenements which have become available to the respondents are not contiguous; and, therefore, would not possess the same advantage that would be available with the suit premises. It is well settled that it is the prerogative of the landlord to decide about his requirements and the Court cannot dictate the landlord about the manner of enjoying the premises owned by him. What is reasonable and bona fide requirement is no more res Integra. The nature of proof and evidence to be adduced by the landlord to establish this ground is also well settled. I have had the occasion to elaborately deal with all these aspects in Writ Petition No. 6286 of 1987 decided today. In the circumstances, I find no reason to take a different view in the matter and I have no option but to hold that the finding recorded by the Appellate Court on the issue of bona fide and reasonable requirement of Respondent No. 1 cannot be interfered with.
10. While coming to the Issue of comparative hardship, I find that the Appellate Court has given cogent reasons for coming to the conclusion that greater hardship would be caused to the landlady, if the decree of eviction was refused; and that; on the other hand, no hardship would be caused to the petitioner-tenant. In the first place, I affirm the view taken by the Appellate Court in observing that while considering the Issue of comparative hardship, the Court should not be influenced by the fact that the landlord is in a position to offer some alternative premises to the tenant. In other words, the fact that the landlord has, or is in a position to offer alternative accommodation to the tenant, in case the decree for possession is to be passed, cannot be held against the landlord while answering the issue of comparative hardship. In the present case, the Court below has rightly concluded that, having regard to the evidence on record, if the decree for possession is ordered, the petitioner-tenant would not suffer any hardship, as she would not be thrown on streets, for she has been offered alternative accommodation by the landlady. Besides this, the Appellate Court has rightly found, relying on the decisions of this Court, that when the suit for bona fide and reasonable requirement was instituted by the landlady it was the duty of the tenant to have started looking for an alternative accommodation. But, in the present case, there is nothing on record to justify the inaction of the petitioner in this behalf. In the circumstances, the issue of comparative hardship, necessarily, will have to be answered against the petitioner-tenant.
11. The Appellate Court, in my view, has rightly taken into account that, the landlady has offered an alternative accommodation to the petitioner. which is suitable to the requirements of the petitioner as it is similar to the one already occupied by her. The Appellate Court has rightly observed that it is not open to the tenant to be selective about the accommodation, if offered by the landlord, but it is for him to accept the same or not; and if the tenant declines the said offer, that would not preclude the landlord from getting decree of possession. In other words, if the offer of alternative accommodation made by the landlord, is not availed of by the tenant, in such a situation, the Court would obviously answer the issue of comparative hardship against the recalcitrant tenant.
12. In my view, the reasons which are mentioned by the petitioner for not accepting the offer of alternative accommodation are, absolutely flimsy and figment of her imagination. Inasmuch as the premises which have been offered, being Room No. 5, as an alternative accommodation, to the petitioner, are in the same complex (chawlj. Moreover, the landlady has already undertaken substantial repairs and made the said room habitable. In the circumstances, it is open to the petitioner to avail of the said alternative accommodation, if she is so advised. The petitioner cannot be allowed to question the correctness of the decree of possession ordered by the Appellate Court, merely because the petitioner feels that the alternative accommodation offered to her is not suitable.
13. The Court below while decreeing the suit in favour of the respondent (owner), has relied on decision of this Court in Maganlal Bhimji and Ors. v. Chhaganmal Chaturbhuj and Anr., wherein the landlord's family was staying at a different place, but within nearest reach, and the tenant was requested to exchange the tenement, but the tenant refused. The landlord filed suit for bona fide requirement. In the said case, this Court held that there is nothing to exclude the claim of the landlord on the ground of bona fide requirement of his family members. Even, in the present case, similar situation has arisen and, therefore, the Court below was right in relying on the said decision. The Appellate Court has also relied on another decision in Nana Narayan Kamble v. Kashiprasad Nitanma Prasad, which has taken the view that merely because other accommodation is not available to the tenant, that would be no ground for depriving the landlord to get decree of possession. The ratio of this decision would apply with full force to the facts of the present case. The next decision relied upon by the Appellate Court is in Poona General Stores and Ors. v. Kashibai Sriniva Lohia, which takes the view that it is the duty of the Court, including that of the High Court, to take into account the subsequent events so as to mould the decree accordingly. There is ample material on record, which has been taken into account by the Appellate Court, as well as now placed on record by further affidavits by both the sides, which, in my view, is relevant for the full, complete and effectual adjudication of the present matter. The affidavits would indicate that the landlady has established that her requirement is bona fide and reasonable. Besides this, the affidavits would also answer the issue of comparative hardship against the petitioner and in favour of the landlady. The Appellate Court has also placed reliance on another decision of this Court in Karunshankar Bholabhai v. Sagarmal Rajmal, wherein this Court has taken the view that there is no warrant for accepting the proposition that the decree cannot be passed in favour of the landlord, unless the landlord has offered an equivalent alternative accommodation to the tenant. In other words, in the present case, the petitioner-tenant, has been resisting the grant of decree for possession merely because the alternative accommodation offered by the landlady is not suitable or convenient. This, in my view, cannot be a ground for refusing the decree for possession. However, it is open to the petitioner to avail of the offer made by the landlady. This authority can be cited also in support of the proposition that once the landlord makes an offer to the tenant, such an offer should enure to the benefit of the tenant till the final culmination of the proceedings between the parties. In the circumstances, the offer of an alternative accommodation made by the respondent No. 1 can be availed of by the petitioner-tenant within a reasonable time, and in any case, not later than three months from the date of the order passed by this Court. The Appellate Court has also relied on another decision of this Court in Kumndini Balkrishna v. Laxman Dnyanoba, that merely because the landlady was living with some other family member, that would not denude her to maintain the suit for her personal and bona fide requirement. This authority also supports the proposition that once the petitioner receives notice about termination of tenancy he should immediately look for an alternative residence, and failure to do so, would visit him with liability of eviction; and non-availability of alternative or suitable accommodation to the tenant, cannot be a ground for denying decree for possession to the landlord.
14. Having regard to the evidence on record and the finding of fact recorded by the Appellate Court on both the aforesaid issues, I see no reason to interfere with the impugned order and decree of possession passed in favour of the respondent No. 1. It is, however, made clear that the petitioner can avail of the offer made by respondent No. 1 of the alternative accommodation, being Room No. 5; and in case the petitioner avails of the said tenement within a reasonable time, but not later than three months from the date of this order, the respondent No. 1 undertakes that she shall fully repair the said room, and hand over possession thereof to the petitioner in lieu of the present accommodation, viz., the suit premises. It is also made clear that the relationship of tenant and landlord in respect of this alternative premises (Room No. 5) would be on the basis of a fresh agreement to be arrived at between the parties on such terms and conditions as they may agree and are permissible in law. The learned counsel for the respondent No. 1 has fairly submitted that the respondent No. 1 shall ensure that the said accommodation (Room No. 5) is made habitable and the respondent No. 1 shall extend full co-operation to the petitioner as and when required. In the circumstances, even though this petition fails, the petitioner would get an alternative accommodation, as offered by the respondent No. 1, on the aforesaid condition.
15. In the result, this petition fails and is, therefore, dismissed with no order as to costs. However, the undertaking of the Respondent No. 1 referred to above, for providing an alternative accommodation to the petitioner-tenant, is accepted. Rule discharged. Order accordingly.