Mr. Habib Babu Gundwala vs Sau. Meerabai W/O Baburao ...
2016 Latest Caselaw 3554 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                              
                              NAGPUR.




                                                     
                     WRIT    PETITION     NO.   2140     OF     2015




                                                    
    Habib Babu Gundwala,
    aged 58 yrs. Occu.Business,
    R/o House of Santhwane,
    Circle No. 1, Ward No. 128
    (New), Ganjipeth, Nagpur.                                      PETITIONER.




                                         
                              ig         VERSUS

    Meerabai Baburao Sathwane,
                            
    through L. Rs. 

    a] Chhabibai Keshawrao
    Devtade, R/o Jogeshwari
    (East), Mumbai.
      


    b] Malti Ghanshyam Wanjari,
   



    R/o Sakkardara Nagpur. 

    c] Manda Sudhir Mukardam,
    R/o Chandannagar, Nagpur.  





    d] Prabhatai Baburao Sathwane

    e] Kundatai Baburao Sathwane

    f]  Pushpatai Baburao Sathwane





    g] Chandrashekhar @ Vijay
    Baburao Sathwane

    h] Laxmikant @ Dashrath Baburao
    Sathwane.

    Nos. (d) to (h) R/o Ganjipeth
    Ganeshpeth, Nagpur.                                            RESPONDENTS.

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Shri M. K. Kulkarni, Advocate for the petitioner.

Shri P. A. Markandeywar, Advocate for the respondent nos. 1(a) to 1(h).

                                     CORAM:     A. S. CHANDURKAR  J.
                               
                                      Dated    :   JULY  04, 2016.




                                                             
    ORAL JUDGMENT: 

In view of notice for final disposal the learned counsel for the

parties have been heard at length.

2]

The petitioner is the tenant in the house property that is

owned by original plaintiff. The respondent no. 1-original plaintiff filed

a suit for eviction of the petitioner-original defendant on the ground of

bonafide need. In the plaint it was pleaded that the house property was

purchased in the year 2000. The plaintiff was in occupation of two

rooms and kitchen while the other two rooms were being used by her

son for running a grocery shop. The defendant was occupying two

rooms including kitchen and the area in his possession was about 342

sq. ft. Before the trial Court the original plaintiff examined his son by

executing a power of attorney in his favour. After considering the

evidence led by the parties the Small Causes Court upheld the plea

regarding bonafide need and dismissed the suit. The appellate Court

after re-appreciating the evidence dismissed the appeal preferred by the

petitioner.

3] Shri M. K. Kulkarni the learned counsel for the petitioner

submitted that as the prayer for eviction was on the ground of bonafide

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need it was necessary for the landlady to have examined herself. The

landlady did not examine herself but examined her son. He submitted

that the son could have been examined only if the need was with regard

to his requirement. He could not have deposed in place of landlady in

support of the prayer for eviction on the ground for bonafide need. He

then submitted that the premises in question were located in slum area

as per the Notification dated 16.01.1980 and hence the suit could not

have been filed without obtaining prior permission from the competent

authority. He, therefore, submitted that no decree for eviction could

have been passed in these circumstances.

4] Shri P. A. Markandeywar, the learned counsel for the legal

representatives of the original plaintiff submitted that in the plaint the

bonafide need of the entire family had been made out. The son being

the member of the family, he was competent to depose in place of his

mother. It was submitted that when the suit was filed the original

plaintiff was about 73 years of age and hence she examined her son. He

then submitted that both the Courts have found the evidence on record

to be sufficient and on that basis it decreed the suit. As regards the plea

that the suit house was located in the slum area, he submitted that no

such plea was taken either before the trial Court or appellate Court.

Such plea could not be raised for the first time in these proceedings.

5] I have considered the respective contentions and I have gone

through the documents filed on record. It is not in dispute that the

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bonafide need as pleaded was for the requirement of entire family. The

defence of the tenant that the landlady ought to have been first

examined has been considered by the appellate Court and by relying

upon the judgment of this Court in Ramchandra Wagh Vs. Rajashree

Bhoosereddy 2009(6) Maharashtra Law Journal 972, it was held that the

son was a competent witness to depose about the bonafide need of the

entire family. Even otherwise considering the fact that the original

plaintiff was aged about 73 years when the suit was filed and her own

son having deposed in favour of the claim for bonafide need, there

cannot be any fault with his deposition in that regard.

6] As regards location of the suit house in the slum area, the

stand though based on Notification dated 16.01.1980 was not raised in

the written statement or before the appellate Court. Merely by stating

that the petitioner got knowledge about the same subsequently, said

plea cannot be permitted to be raised for the first time in these

proceedings. The same is a question of fact which ought to have been

raised atleast before the appellate Court.

7] In view of aforesaid I do not find any case made out to

interfere with writ jurisdiction. The writ petition is dismissed with no

order as to costs. In the facts of the case the petitioner is granted time

till 31.10.2016 to vacate the suit premises.

JUDGE

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