Bombay High Court
Ramesh R. Shukla vs Smt. Azizabiabdul Karim And Anr on 8 December, 2016
Bench: N.M. Jamdar
1 207. WP 3064.94.doc
JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELL ATE SIDE JURISDICTION
WRIT PETITION NO. 3064 OF 1994
Ramesh Ramavad Shukla (deleted since deceased)
1. Udayraj s/o. Ramagya Shukla, adult
2. Smt. Shyam Kumari Wd/o. Ramagya Shukla, adult
3. Mr. Griharaj s/o. Ramagya Shukla, adult
all Indian Inhabitants, legal heirs and legal
representatives of the deceased of the Petitioner/
Plaintiff residing at Abdul Karim Chawl,
Ibrahim Hussein Compound, Quarry Road,
Cross Kedarmal Road, Malad (E),
Mumbai - 400 064, through their C.A.
Mr. Udayraj Ramagya Shukla, the Applicant No.1.
2. Hausala Ramavad Shukla (since deceased)
through Legal heirs and representatives
(2a) Smt. Premadevi wd/o. Hausala
Prasad Shukla, age 65 years,
Occupation - Housewife
(2b) Mr. Shobhnath Hausala Prasad Shukla,
age 42 years, Occupation - Service,
(2c) Mr. Rakesh Hausala Prasad Shukla,
age 33 years, Occupation - Service,
::: Uploaded on - 15/12/2016 ::: Downloaded on - 16/12/2016 00:00:52 :::
2 207. WP 3064.94.doc
(2d) Mr. Sajesh Hausala Prasad Shukla,
age 30 years, Occupation - Service
(2e) Mr. Brijesh Hausala Prasad Shukla,
age 28 years, Occupation - Service.
(2f) Mr. Rajesh Hausala Prasad Shukla,
age 23 years, Occupation - Service.
All Indian Inhabitants, at present residing
at 761-1/1, Dr. Ambedkar Chawl, Narsipada,
Hanuman Nagar, Akurli Road, Kandivali (E),
Mumbai - 400 101.
V/s.
ig ... Petitioners.
(1) Smt. Azizabai wd/o. Abdul Karim,
Indian inhabitant residing at Abdul
Karim Chawl, Ibrahim Hussein
Compound, Quarry Road,
Cross Kedarmal Road, Malad (East),
Bombay - 400 064.
(2) Radha Group of Companies
Mandarshi Developers
Having Office at 102/103, Devikrupa
Apt., Behind Eastern Mall, Daftary Road,
Malad (E), Mumbai - 400 097. .... Respondents.
Mr. J.N. Jayale a/w. Shailesh Yadav for the Petitioners.
Mr. Sandeep Mahadik i/b. Manoj Upadhyay for Respondent 2.
CORAM : N.M. Jamdar, J.
08 December, 2016.
3 207. WP 3064.94.doc
Oral Judgment :-
By this Petition, the Petitioners have challenge the
judgment and order passed by the Appellate Bench of Small Causes
Court, Mumbai dated 11 March 1994 allowing the Appeal filed by
the Respondent No.1 - landlady directing the Petitioners to hand
over the possession of the suit premises. The Appellate Bench by the
impugned order set aside the order passed by the learned Small
Causes Court Judge, Mumbai, the learned Small Causes Court Judge
had dismissed the suit filed by the Respondent for possession of the
premises.
2. The Respondent No.1 filed RAE Suit No. 5564 of 1982
against the Petitioners for recovery of the suit premises on the
ground that the Petitioners were in arrears of rent. Non user of the
premises, sub-letting and that the premises are required for a
reasonable and bonafide use of the Respondent No.1. The learned
Small Causes Court Judge by the judgment and order dated 14
January 1985 dismissed the suit. Thereafter, the Respondent No. 1
filed an Appeal bearing No. 256 of 1986 before the Appellate Bench
of Small Causes Court. The Appellate Bench confirmed the findings
of the Small Causes Court that the Petitioners were not in arrears of
sub-letting or that there was any sub-letting but accepted the case of
Respondent No. 1 that the Petitioners have not used the premises for
4 207. WP 3064.94.doc
more than six months preceding the institution of the suit without
any reasonable cause and that the premises were reasonably and
bonafide required for the personal use of the Respondent No.1
Accordingly, by judgment and order dated 11 March 1994 the
Appellate Bench allowed the Appeal. This order has been
challenged in this Petition.
3. Perusal of farad-sheet would show that the Petition has
appeared on board for final hearing on numerous occasions. On
many occasions the Respondents have sought time. In this Petition
a Civil Application No.2677 of 2015 was filed by the Petitioners to
join the Respondent No.2 - developer as a party Respondent. It was
asserted in the Application that the area is declared as a slum and
Respondent No.2 has undertaken a Slum Rehabilitation Scheme and
the Respondent No.1 has no longer a landlady of the suit premises.
It was stated that the part possession of the suit property was also
forcibly taken and certain demolitions have been taken out. After
hearing the learned Counsel for Respondent No.1, notice was issued
to the Respondent No.2 and the Civil Application was granted.
Whenever the matter had appeared after 26 November 2015, none
has appeared for Respondent No.1. On 21 November 2016 parties
were put to notice that the matter shall be proceeded with
irrespective of the appearance of the parties. The matter was partly
heard on the earlier occasion and the learned Counsel for the
5 207. WP 3064.94.doc
Petitioners were directed to inform the learned Counsel for the
Respondents. None appears for the Respondent No.1. The learned
Counsel holding for Respondent No.2 has accepted the position that
the Slum Rehabilitation Scheme is in process and has also stated that
the Petitioners and Respondent No.2 are in process of settling the
dispute wherein certain accommodation in the scheme would be
offered. The learned Counsel for the Petitioners states that even
the consent terms are signed which clearly indicates that Respondent
No.2 promised to hand over certain premises in the scheme. Be that
as if may, it appears that in view of these developments, the
Respondent No.1 has lost interest in contesting this Petition.
6. The Appellate Bench of the Small Causes Court had
allowed the Appeal filed by the Respondent No.1 on the ground of
bonafide requirement and on the ground of non-user. As far as the
requirement for personal use is concerned, as stated earlier,
subsequent events have transpired whereby the Respondent No.1 has
stepped out of the picture and the property is being developed by
Respondent No.2 - the developer. The learned Counsel for the
Petitioners submitted that the Petitioners have now in possession of a
notification which demonstrates that the area was notified as slum
even prior to institution of the suit. However, the learned Small
Causes Court Judge has held that no such material was placed on
record. Going by the averments in the Civil Application by which
6 207. WP 3064.94.doc
Respondent No.2 was added as a party Respondent and which
averments have gone un-controverted, it appears that in any case as
on date a Slum Rehabilitation Scheme is being implemented by
Respondent No.2. These subsequent developments will have to be
taken note of while determining the need of the Respondent No.1.
By virtue of the Respondent No.1 assigning the rights to Respondent
No.2 for development of the suit property under the Slum
Rehabilitation Scheme, the claim of the Respondent No.1 now that
the premises are required for personal bonafide use, does not survive.
7.
The next ground on which the decree has been passed
against the Petitioners is on the ground of non-user of the premises.
In the plaint the Respondent No.1 has only stated in one line that
the premises are not being used by the Petitioners. In the Written
Statement the Petitioners have asserted that the premises are
currently in use. In the evidence that has been led by the parties the
Respondent No.1 has only reiterated a single line statement that the
Petitioners are not occupying the premises. The Petitioners on the
other hand had produced the documentary evidence on record. The
Petitioners have asserted in the cross-examination that they have an
electricity bill, ration card and the documents would be produced.
However, the Appellate Bench straight away drew a conclusion that
the premises were not being used for period of six months. The
Appellate Bench ought to have considered that merely inserting one
7 207. WP 3064.94.doc
line in the plaint that too in a vague manner "the premises are not
being used by the Petitioner". The entire burden could not have
been placed on the Petitioners to prove with absolute certainty that
the premises were used for period of six months preceding filing of
the suit. Such assertion cannot be a mere mechanical statement in
the plaint. In the present case documents such as electricity bill and
other correspondence was produced. Therefore, the Appellate
Bench has placed no responsibility on the Respondent - landlady
except to make a single line assertion, while placing the entire
responsibility on the Petitioners - tenant to strictly prove their
occupation for six months, without considering the evidence
produced by the Petitioners. The evidence produced by the
Petitioners ought to have been considered in its proper perspective,
which has not been done and therefore, the ground of non-user as
held against the Petitioners also cannot be sustained.
8. In the circumstances, the case is made out for
interference under Article 227 of the Constitution of India. The
impugned judgment and order passed by the Appellate Bench of
Small Causes Court, Mumbai will have to be quashed and set aside
and accordingly quashed and set aside. Rule is made absolute in the
above terms. No order as to costs.
8 207. WP 3064.94.doc
9. It is open to the Petitioners and Respondent No.2 to
enter into such arrangement as may be permissible. Further since the
Slum Rehabilitation Scheme is in process, it is open to the Petitioners
to make such application as may be advised, to the Slum Re-
development Authority on the basis of this order whereby the decree
of eviction against the Petitioners has been set aside.
(N.M. Jamdar, J.)
