Riteshkumar S/O Surajmal Jaiswal vs Sanjay Fattechand Shaha And ...
2017 Latest Caselaw 1753 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                   Writ Petition No.874 of 2015


  Riteshkumar s/o Surajmal Jaiswal,
  Aged about 40 years,
  Occupation - Nil,
  R/o Dal Fail, Khamgaon,
  Tah. Khamgaon,
  Distt. Buldhana.                                ... Petitioner


       Versus


  1. Sanjay Fattechand Shaha,
     Aged Adult,
     Occupation - Business,
     R/o Near Tilak Putla,
     Near Madhu Agencies,
     Khamgaon, Tq. Khamgaon,
     Dist. Buldhana.

  2. Smt. Chandanbaen wd/o Fattechand
     Shaha (died),
     LRs.,
     R/o Near Tilak Putla,
     Near Madhu Auto Agencies, 
     Khamgaon, Tq. Khamgaon,
     Dist. Buldhana.

  2(1) Sau. Seema Anilkumar Shaha,
     Aged 50 years,
     Occupation - Household,
     R/o Tembhi Naka,
     Dhobi Ali,




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       Block No.12, Ketan Bldg.,
       Thane.

  2(2) Sau. Rekha Vardhaman Nanavati,
     Aged 58 years,
     Occupation - Household,
     R/o Tilak Road,
     Malegaon, Distt. Nasik.

  3. Pravin s/o Surajmal Jaiswal,
     Adult,
     Occupation - Business.

  4. Smt. Durgabai wd/o Surajmal Jaiswal,
     Age Adult, Occupation - Business.

       Respondent No.2 and 4, R/o Dal Fail,
       Khamgaon, Tah. Khamgaon,
       Distt. Buldhana.

  5. Sau. Rajashri Sharad Jaiswal,
     Age Adult,
     Occupation - Household,
     R/o Jalna, Tah. & Distt. Jalna.

  6. Sau. Mamta Prakash Jaiswal,
     Age Adult,
     Occupation - Household,
     R/o Chikhali,
     Tah. Chikhali, Distt. Buldhana.            ... Respondents


  Shri A.M. Ghare with Shri N.L. Jaiswal, Advocates for Petitioner.
  Shri A.V. Bhide, Advocate for Respondent No.1.


                Coram : R.K. Deshpande, J.

th Dated : 17 April, 2017

wp874.15.odt

Oral Judgment :

1. Rule, made returnable forthwith. Heard finally by

consent of the learned counsels appearing for the parties.

2. The Trial Court passed a decree for eviction and

possession in a matter between the landlord and tenant in

Regular Civil Suit No.134 of 2004 decided on 25-7-2007. The

Trial Court holds that the plaintiff has proved the bona fide

requirement in respect of the suit premises, that the plaintiff has

no other accommodation to start the business, and that the

plaintiff has established that the defendant Nos.1 and 2 have an

alternate accommodation for their business.

3. In Regular Civil Appeal No.46 of 2007 decided on

29-10-2014, the lower Appellate Court considers the only

question of remand of the matter back to the Trial Court for

decision afresh on the question of reasonable and bona fide

requirement of the plaintiff and the comparative hardship of the

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defendants. It does not record the finding that the plaintiff has

failed to establish the bona fide requirement. It also does not set

aside the findings recorded by the Trial Court on these aspects of

the matter, but holds that the issue of greater hardship is

required to be considered irrespective of the fact whether there is

a pleading of comparative hardship by the tenant in the written

statement.

4. In the decision of the Apex Court, relied upon by the

lower Appellate Court, in the case of Badrinarayan Chunnilal

Bhutada v. Govindram Ramgopal, reported in

2003(3) All MR 1141 (S.C.), it is clearly observed with reference

to the bona fide requirement that it is expected of the parties to

raise necessary pleadings and the Court to frame an issue based

on the pleadings so as to enable the parties to adduce evidence

and bring on record such relevant material as would enable the

Court forming an opinion on the issue as to comparative

hardship. Similar view is taken by this Court in the case of

Vilaschand s/o Deochand Khedikar (Jain) (deceased) by LRs. Sujot

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s/o Vilaschand Khedikar (Jain) and another v. Bhimchand s/o

Pannasao Jain, reported in 2011(4) Mh.L.J. 864, wherein it is

held that it was obligatory on the part of the tenant to first-of-all

raise a plea of comparative hardship in the written statement and

then only the Trial Court is obliged to make an enquiry

irrespective of the fact whether there is any such demand or not.

5. In view of the aforesaid two decisions, the lower

Appellate Court has committed an error in remanding the matter

back to the Trial Court, particularly when it records a clear

finding that there is neither a plea nor an issue framed in respect

of comparative hardship by the Trial Court. The lower Appellate

Court could not have considered such aspect of the matter

without reversing the decree in appeal, as required by Order XLI,

Rule 23A of the Code of Civil Procedure. The judgment and

order passed by the lower Appellate Court cannot, therefore, be

sustained and it will have to be quashed and set aside with an

order of remand.

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6. In the result, the petition is allowed. The judgment and

order dated 29-10-2014 passed by the lower Appellate Court in

Regular Civil Appeal No.46 of 2007, is hereby quashed and set

aside. The matter is remanded back to the lower Appellate Court

to decide the appeal afresh within a period of three months from

the date of first appearance of the parties before it. The parties

to appear before the lower Appellate Court on 12-6-2017.

7. Rule is made absolute in above terms. No order as to

costs.

Judge

Lanjewar