Bombay High Court
Pralhad S/O Sitaram Waghmare vs Anandrao S/O Mahadeo Mandirkar on 22 January, 2018
Bench: A.S. Chandurkar
J-cra144.17.odt 1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION No.144 OF 2017
Pralhad s/o. Sitaram Waghmare,
Aged about 70 years,
Occupation : Private,
R/o. Jogithana Peth, Umred,
Tah. Umred, Distt. Nagpur. : APPLICANT
...VERSUS...
Mr. Anandrao s/o. Mahadeo Mandirkar,
Aged about 75 years,
R/o. Jogithana Peth, Umred,
Tah. Umred, Distt. Nagpur. : RESPONDENT
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Shri C.B. Dharmadhikari, Advocate for the Applicant.
Smt. Rashi Deshpande, Advocate for the Respondent.
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CORAM : A.S. CHANDURKAR, J.
nd JANUARY, 2018.
DATE : 22
ORAL JUDGMENT :
1. Original defendant-tenant has filed this civil revision
application challenging the decree for eviction passed by the Appellate
Court.
2. The respondent is the landlord, who had filed the suit for
eviction of the applicant herein on various counts. According to the
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landlord, the tenant was in arrears of rent. He was also causing nuisance
and annoyance. The landlord had reasonable and bona fide need of the
suit premises for the purpose of residence of his family members. The
trial Court dismissed the suit holding that none of the grounds for
eviction had been made out. The First Appellate Court has, however,
directed eviction of the applicant on the ground of bona fide need.
3. It is submitted by Shri C.B. Dharmadhikari, learned counsel
for the applicant that the finding recorded by the Appellate Court that
the bona fide need of the landlord was proved was without considering
the evidence on record. He submitted that the tenant was in occupation
of about 280 sq.ft. room and his wife and son are not mentally fit. In
fact, the landlord had alternate premises at a nearby village and it was
possible for him to reside there. After tenant was inducted in the year
1996, other tenants were inducted whenever occasion arose. As regards
hardship is concerned, it was submitted that merely because the tenant
did not search for any other premises would not be a ground for
directing his eviction. It was not easy for the tenant to secure alternate
premises and as he was in possession since the year 1996, he did not
deserve to be evicted. On this count, it was submitted that decree for
eviction is liable to be set aside. He also submitted that the direction to
pay mesne profits was not proper as the tenancy was determined only by
the judgment of the appellate Court.
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4. Smt. Rashi Deshpande, learned counsel for the respondent
supported the impugned judgment. According to her, both the Courts
had recorded concurrent findings with regard to the reasonable and bona
fide need of the landlord. The trial court refused the decree only on the
ground of absence of hardship. As regards hardship it was submitted
that there were nine members in the landlord's family when the suit was
filed. The premises occupied by the tenant were the premises adjoining
that of the landlord and hence were more convenient for being occupied.
The tenant did not take any steps to locate any alternate premises. The
landlord was aged about 82 years and hence his need was bona fide.
She also submitted that the scope of interference was limited considering
revisional jurisdiction being exercised. She placed reliance in the case of
Ambadas Khanduji Shinde and others vs. Ashok Sadashiv Mamurkar
and others, reported in AIR 2017 S.C. 2527. She fairly did not contest
the direction to pay mesne profits.
5. I have heard learned counsel for the parties and I have also
perused the impugned orders.
6. Though the eviction of the tenant was sought on various
grounds, both the Courts have concurrently found that the need of the
landlord was reasonable and bona fide. It was noticed that there were
about nine members in his family and the premises occupied by the
tenant were adjoining to the landlord's premises. This was convenient
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for the landlord. The tenant was in occupation since the year 1996 and
after initiation of the proceedings for eviction, he did not make any
attempt to search for alternate premises. Though it was urged that the
landlord had inducted some new tenants, there is no evidence to indicate
that after the suit was filed any new tenant had been inducted. The
alternate premises of the landlord were at a distance of about six
kilometers from the suit premises and therefore, it could not be said to be
alternate accommodation in that sense. The landlord being the best
judge of his need, he could not be directed to reside in the alternate
premises, which was far away. Though it is true that two family
members of the tenant's family are mentally ill that by itself cannot be a
reason to deny the relief of possession to the landlord. I do not find that
the Appellate Court committed any jurisdictional error while directing
eviction of the tenant.
However, there could not have been a direction to pay mesne
profits from 01.11.2007 when eviction had been directed for the first
time by the appellate Court. Same is liable to be set aside.
7. In view of aforesaid, following order is passed :
(i) The decree for eviction is maintained. Direction No.
(iii) in R.C.A. No.522/2010 is however set aside.
(ii) However, the applicant is granted time till the end of
June, 2018 to vacate the suit premises. Till said period, the applicant
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shall continue to pay the agreed rent.
(iii) He shall also file an undertaking within a period of
four weeks from today in this Court that he shall vacate the suit premises
by the end of June 2018.
The revision application is disposed of in aforesaid terms
with no order as to costs.
JUDGE
okMksns
