Bombay High Court
Narendra Govind Bhandarkar vs Gopal Shersingh Thakur on 1 March, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.3731/2016
Narendra Govind Bhandarkar,
aged about 68 years, Occ. Retired,
r/o Civil Lines, Chandrapur. .....PETITIONER
...V E R S U S...
Gopal Shersingh Thakur,
Aged about 49 years, Occ. Private,
r/o Plot No. Pawan Bhoomi Layout,
Somalwada, Nagpur. ...RESPONDENT
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Mr. U. M. Aurangabadkar, Advocate for petitioner.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 01.03.2021.
JUDGMENT
1. By this writ petition, the petitioner is challenging the
judgment and decree passed by learned District Judge-7, Nagpur
in Regular Civil Appeal No. 985/2012. By the said, the learned
appellate Court, by allowing appeal filed on behalf of respondent,
set aside the judgment and decree passed by learned Additional
Judge, Small Causes Court, Nagpur in Regular Civil Suit No.
343/2006 dated 05.09.2012.
2. This writ petition was admitted for final hearing on
21.06.2019. Vide order dated 07.12.2020, considering that the
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petitioner is a senior citizen and suffering from ailments, the
application for early hearing filed by him was allowed.
Today, when this writ petition was taken up for final
hearing, though learned counsel for petitioner Mr. Aurangabadkar
is present, learned counsel for respondent Mr. Moon, chose not to
remain present.
3. Petitioner is landlord whereas respondent is tenant.
According to the submissions of learned counsel for
petitioner, the learned Judge of the appellate Court committed
error in dismissing the suit filed on behalf of petitioner. He
submitted that the petitioner has proved his bona fide need to
occupy the premises. He also submitted that since respondent has
secured alternate accommodation, the appellate Court ought not
to have reversed the finding given by learned Judge of the trial
Court. He submitted that the writ petition be allowed.
No precedent, either reported or unreported of any
case was cited before this Court at the time of hearing.
4. The petitioner filed a suit for possession. According to
the petitioner, he is absolute and exclusive owner of the house
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bearing Nagpur Municipal Corporation House No.1860/18,
situated at Pawanbhoomi layout, Somalwada, Nagpur. The said
house is having one block of three rooms and the same is in
possession of respondent as tenant. In the plaint, it is stated that
rent is Rs.1250/- per month, which does not include water and
electricity charges to be paid by tenant on its actual consumption.
Also, the rent is exclusive of taxes levied by the Nagpur Municipal
Corporation. It was stated in the plaint that the respondent is
occupying the suit block since last 8 to 10 years. He was irregular
in payment of rent and committed default. It was stated in the
plaint that at the time of filing of the plaint, respondent was in
arrears of rent for about 35 months.
5. It was also pleaded that petitioner stood retired from
his service and is presently residing at Chandrapur where his wife
is in service. He intends to shift to Nagpur as his other brother
and members of his family are settled at Nagpur. Since, the
petitioner intends to shift at Nagpur, he requires accommodation
for himself. Thus, the decree was sought for bona fide need. It
was also contended by the petitioner that respondent has already
acquired alternate accommodation on his own and is having house
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property near the locality. Thus, the petitioner claimed decree on
the ground that the respondent is in arrears of rent. He requires
the tenanted premises for his bona fide accommodation and the
respondent-defendant has secured the alternate accommodation.
6. The respondent, on being summoned filed written
statement and denied each and every pleading and allegation
made in the plaint. It was also pointed out that in fact the
petitioner is having four rooms available for him and in the house
where the suit block is situated. It was also pointed out that the
petitioner is having his ancestral house at Laxmi Nagar and he
used to stay therein when he used to visit from Chandrapur. The
contention on behalf of the petitioner that tenant has secured
alternate accommodation was also denied.
On behalf of the petitioner, he entered into the witness
box as PW1 and also his wife Smt. Vijaya as PW2. The respondent
also entered into the witness box.
7. Learned Additional Judge, Small Causes Court, by his
judgment dated 05.09.2012, decreed the suit and the respondent
was directed to hand over possession of the suit premises. While
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granting decree, it was observed by the learned Judge, Small
Causes Court that on 30.08.2012, respondent-defendant filed
pursis Exh.-77 by submitting that he has deposited the arrears of
rent of Rs.22,500/- vide CCD 1157 on 17.12.2007 in the Court,
which was withdrawn by the petitioner-plaintiff on 16.01.2009.
8. Though it was the case of the petitioner-plaintiff that
the respondent-defendant was in arrears of rent for about 35
months, it was, of course, was denied by respondent-defendant,
no point in that behalf was formulated by learned Judge, Small
Causes Court. No finding was given by the learned Additional
Judge, Small Causes Court that respondent-defendant was in
arrears of rent for about 35 months. In spite of that, no cross-
appeal was filed on behalf of the petitioner. Not only that, the
rent deposited by respondent-defendant was withdrawn by
petitioner-plaintiff. In addition to the said, before this Court, non
payment of rent for 35 months was not pressed into service.
9. It is to be adjudicated in this writ petition as to whether
the petitioner is having bona fide need and the respondent has
secured alternate accommodation.
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10. Ownership of the petitioner over the suit house is not
in dispute. The petitioner was in service and he stood retired in
the year 1998. From the evidence of the petitioner, it is clear that
the petitioner owns the plot admeasuring 3000 Sq. Ft. and having
900 Sq.Ft. construction. He has admitted in his cross-examination
that on backside of the house, respondent-defendant is occupying
two rooms and one storeroom and it is on Western side. He
admitted that three bedrooms, one hall and one kitchen are East
facing and these East facing rooms are vacant. Precisely, this has
weighed in the mind of the learned Judge of the appellate Court
to allow the appeal filed on behalf of respondent-defendant.
11. Before this Court, it was contended on behalf of the
petitioner that the vacant rooms facing East are not sufficient to
cater the needs of the petitioner. The pleading and evidence of
the petitioner has no foundation for the same. In fact, in the
plaint, this aspect was not at all pleaded. The plaint is
conspicuously silent that three bedrooms, one hall and one kitchen
facing East are in vacant condition. Thus, the said fact was
suppressed in the plaint. It has come on record during the cross-
examination of the plaintiff. It is also brought on record through
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his cross-examination that the petitioner's son was occupying the
said portion along with his friends when he was taking education
who is now settled at Pune. The petitioner has not brought on
record the number of members of his family either in the plaint or
during his evidence. Thus, if the petitioner intends to shift to
Nagpur, in my view, the learned Judge of the appellate Court was
right in recording a finding that in view of the availability of three
bedrooms, one kitchen and one hall and storeroom in the house
facing East, caters his bona fide need. Therefore, it cannot be said
that the tenanted portion is required by the petitioner.
12. Insofar as alternate accommodation is concerned, the
petitioner could only prove that wife of the respondent owns plot
no.327 at Nagar Vikas Housing Society. The petitioner could not
prove that on the said plot, respondent has made any construction
of the house. Thus, though the wife of the respondent is owning a
plot, it is an open plot and it cannot be treated as an alternate
accommodation.
13. In my view, the learned Judge of the appellate Court
has correctly found that the petitioner could not prove his bona
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fide need. In my view, even comparative hardship also tilts in
favour of the respondent.
No case is made out. The writ petition is, therefore,
dismissed confirming the order passed by learned appellate Court.
Rule is discharged. No order as to costs.
JUDGE
kahale
