Shri. Prakash Nanasaheb ... vs Shri. Rajkumar Motilala Shah
2021 Latest Caselaw 7484 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                 CIVIL REVISION APPLICATION NO. 125 OF 2017

 Rajkumar Motilal Shaha
 Age-69 years, Occ. Contractor,
 R/o. 4075/3A, Savarkar Path,
 Station Road, Tal. Pandharpur,
 District Solapur.                                    ..Applicant

           Vs.

 1. Prakash Nanasaheb Deshpande
 Age 73 years, Occ. Retired,

 2. Anjali Prakash Deshpande
 Age 65 years, Occ. Household,
 Both R/o. C/o. M. R. Joshi,
 1077/A, Sharmishtha -1,
 Plot No.5, Shivaji Nagar, Pune                       ..Respondents

                                   WITH
                 CIVIL REVISION APPLICATION NO. 631 OF 2019

 1. Prakash Nanasaheb Deshpande
 Age 73 years, Occ. Retired,

 2. Anjali Prakash Deshpande
 Age 65 years, Occ. Household,
 Both R/o. C/o. M. R. Joshi,
 1077/A, Sharmishtha -1,
 Plot No.5, Shivaji Nagar, Pune                       ..Applicants

           Vs.

 Rajkumar Motilal Shaha
 Age-69 years, Occ. Contractor,
 R/o. 4075/3A, Savarkar Path,
 Station Road, Tal. Pandharpur,
 District Solapur.                                    ..Respondent

                                    ----

    Mamta Kale                                                    page 1 of 26



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 Mr. S.M. Gorwadkar, Senior Advocate a/w Mr. S.P. Rajepandhare for
 the Applicants in CRA No.125/2017 and Respondents in CRA
 631/2019.
 Mr. A.V. Anturkar, Senior Advocate a/w Mr. Yatin Malvankar, Ms.
 Preet Phanse i/b Siddharth Subhash Deshpande, Mr. Sudhir N.
 Deshpande and Ms. Nivedita S. Deshpande for the Respondents in
 CRA 125/2017 and Applicants in CRA 631/2019.

                                         ----

                                        CORAM : C.V. BHADANG, J.

RESERVED ON : 2nd MARCH 2021

PRONOUNCED ON : 20th MAY 2021 (Through Video Conferencing)

COMMON JUDGMENT:

. Both these revision applications are between the same

parties and arise out of the judgment and decree dated 1 September

2016 passed by the learned District Judge at Akkalkot, directing

eviction of the applicant Rajkumar Shah (defendant) from the suit

premises. These revision applications have been expedited and as

such are finally heard by consent of the parties.

2. The suit property consists of eight rooms at Pandharpur,

District Solapur. more specifically described in plaint para No.1

which are in possession of the applicant Rajkumar Shah as a tenant.

Prakash Deshpande and his wife are the landlords (plaintiffs). For

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the sake of convenience, the parties are referred to as plaintiffs and

defendant.

3. The plaintiffs filed RCS No.415/2001 for eviction and

possession of the defendant and other consequential reliefs. The

case made out in the plaint is that the agreed monthly rent in

respect of six rooms is Rs.450/- per month while the monthly rent in

respect of the remaining two rooms is Rs.200/- per month. The

tenancy is as per the English Calender month.

4. The eviction was sought on the ground of (i) default in

the matter of payment of rent. (ii) non-user of the premises by the

defendant for a continuous period of six months. (iii) reasonable

and bonafide requirement of the plaintiffs and (iv) nuisance.

5. It was contended that plaintiff Prakash Deshpande who

is M.Sc. (Food Technology) was serving in Glaxo Company at

Aligarh (Uttar Pradesh) and thereafter at Ponda (Goa) and he has

since retired from service on 31 July 2001. It was contended that

the suit premises are bonafide and reasonably required by the

plaintiffs for residence. The plaintiff No.1 also proposes to start a

business in order to make use of his knowledge in Food Technology.

      Mamta Kale                                                     page 3 of 26




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It was contended that the defendant was not residing in the suit

premises since about 2-3 years prior to filing of the suit. He has left

Pandharpur alongwith his family and is permanently residing at

Pune. It was contended that the defendant does not need the suit

premises and even otherwise he owns several premises at

Pandharpur and in the vicinity. It was next contended that the

defendant has created nuisance and was storing explosive material

in the suit premises for the use of his business as a Civil Contractor,

which matter was reported to the police. It was contended that such

use of the premises was against contractual terms of the tenancy.

6. The plaintiffs issued a notice dated 12 June 2001,

terminating the tenancy w.e.f. 30 June 2001 and thereafter filed the

aforesaid suit for eviction and possession.

7. The suit was resisted by the defendant. All the adverse

allegations regarding the default in the matter of payment of rent,

non-user and nuisance were denied. It was contended that six out

of the eight rooms were in possession of the defendant for

residential purpose and in the remaining two rooms he was carrying

on business of M/s. Bharat Construction. The suit premises were in

possession of the defendant since the year 1984. It was contended

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that apart from the eight rooms, there are sixteen other rooms in the

said property which are in possession of the plaintiffs and in some of

such rooms the plaintiffs have inducted tenants. The allegations

about the bonafide need were denied in as much as according to the

defendant, the plaintiffs were not residing at Pandharpur..

8. On the basis of the rival pleadings, the learned Trial

Court framed as many as ten issues.

9. The plaintiff No.1 examined himself as P.W.1 alongwith

Mr. Dinanath Chauhan (P.W.2), Pandhurang Jadhav (P.W.3) and Vijay

Dhavale (P.W.4). The defendant examined himself as D.W.1

alongwith Jagannath Rannavare (D.W.2), Mr. Vijay Dhavale (D.W.3)

and Mr. Ashok Deshpande (D.W.4). Both parties produced certain

documents.

10. The learned Trial Court by a judgment and order dated

15 April 2013 granted a decree of eviction in respect of the six

rooms which were being used for residential purpose. The eviction

was granted on the ground of non-user by the defendant and the

bonafide requirement of the plaintiffs. The Trial Court, however,

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dismissed the suit in respect of the claim of eviction of the two

rooms used for business purpose.

11. Feeling aggrieved, the plaintiffs filed RCA No.143/2013

in which the defendant filed cross objection to the extent of the

grant of the decree of eviction for six rooms.

12. The Appellate Court by a judgment and decree dated 1

September 2016 partly allowed the appeal, while dismissing the

cross objection. The Appellate Court has confirmed the decree in

respect of six rooms granted by the Trial Court. The Appellate Court

granted a decree of eviction in respect of two rooms on the ground

of bonafide requirement. However, the First Appellate Court refused

to accept the case of the landlord as to non-user of the said two

rooms which were used for business purpose. Feeling aggrieved by

the decree of eviction, the defendant has filed CRA No.125/2017.

The plaintiffs have filed CRA No.631/2019 seeking decree of

eviction in respect of two rooms, also on the ground of non-user.

13. I have heard Mr. Gorwadkar, the learned Senior counsel

for the defendant and Mr. Anturkar, the learned Senior counsel for

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the plaintiffs. With the assistance of the learned counsel for the

parties, I have gone through the record.

14. It is submitted by Mr. Gorwadkar that the suit seeking

eviction of the tenant in respect of the two separate tenancies one

for residential purpose and the other for business purpose was not

maintainable. For this purpose, reliance is placed on the decision of

the Supreme Court in Jamal Vs. Safia Beevi1 .

15. It is submitted that the plaintiffs have failed to establish

the ground of bonafide requirement as well as non-user. It is

submitted that the plaintiffs have suppressed the fact that other

rooms from the same property were in possession of the plaintiffs

and the plaintiffs had also received possession of four rooms which

were in possession of tenant late Mr. Kurulkar. It is submitted that

the plaintiff No.1 has admitted in the cross-examination that he is

serving in Hindustan Foods Ltd. at Goa. It is thus submitted that the

plaintiffs have suppressed the material facts and are not entitled to

the relief, in as much as such suppression vitiates the entire

proceedings. For this purpose, reliance is placed on the decision of

12005 0 Supreme (Ker) 57

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the Supreme Court in the case of S. P. Chengalvaraya Naidu (dead)

by LRs. Vs. Jagannath (dead) by LRs. and Ors.1

16. It is submitted that the plaintiffs have no intention of

residing or carrying on business in the suit premises at Pandharpur.

The learned counsel has thereafter referred to the findings recorded

in the context of the evidence led. It is submitted that the evidence

of P.W.2 who was working in Electricity Department and P.W.3 who

was an employee of the Telephone Department is insufficient to

establish the non-user of the suit premises. It is submitted that P.W.3

has admitted that from 1 March 2001 to 30 September 2001 the

telephone connection was in use. Thus, the ground about non-user

of the premises within six months next prior to the filing of the suit

is not established, in as much as the suit was filed on 5 September

2001. It is submitted that P.W.4 who was a Municipal employee had

stated about disconnection of the 24 hours water tap connection in

the suit premises since the year 1997 which was on account of the

fact that due to drought conditions the Government had

discontinued the facility of 24 hours water tap connection. He

pointed out that P.W.4 has admitted that there were two common

water tap connections in the property which were being used by all

11994 1 SCC 1

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the tenants. In so far as the evidence of D.W.2 who was examined

by either party, it is pointed out that D.W.2 has deposed that in the

various surveys conducted after every four years, in the municipal

record, defendant was shown as the occupant. He therefore

submitted that the ground of non-user is not established even in

respect of the six rooms used for residential purpose. He pointed

out that the First Appellate Court has rightly refused to accept the

ground of non-user in so far as the two rooms are concerned on the

basis of the letters (Exh.299 to 303) issued in the year 2007, 2009

and 2011. It is pointed out that both the daughters of the plaintiffs

are married and the evidence of D.W.3 would show that during the

period from 1988 to 2004 various tenants had vacated and new

tenants were inducted and about 10 to 12 rooms out of said

premises are still in possession of the plaintiffs. It is thus submitted

that the Courts below were in error in granting the decree of

eviction.

17. On behalf of the defendant, further reliance is placed on

the decision of the Supreme Court in the case of M. M. Quasim Vs.

Manohar Lal Sharma and Ors.1 and the decision of this Court in

1AIR 1981 SC 1113

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Vinayak Trimbak Wale (Dr.) Vs. Tarachand Hiralal Shet Marwadi 1 ,

Tarachand Hassaram Shamdasani Vs. Durgashankar G. Shroff and

others2 and Smt. Sugarbai Mohamad Siddiq and Ors. Vs. Ramesh

Sundar Hankare (deceased) by LRs.3

18. It is submitted by Shri. Anturkar the learned Senior

counsel for the plaintiffs that there is no serious challenge in the

written statement to the ground of reasonable and bonafide

requirement of the plaintiffs. It is submitted that even otherwise the

same is sufficiently proved on record. It is submitted that

reasonable and bonafide requirement is not to be equated with dire

need. It is submitted that plaintiff No.1 has retired from service of

Glaxo Company in the year 2001 and is seeking possession of the

suit premises. It is submitted that the evidence about disconnection

of the telephone and the water tap connection and the nature of the

electricity use would clearly indicate that the defendant is not using

the suit premises either for residence or for business purpose and

has shifted to Pune where the name of the defendant and his family

members figures in the Electoral Roll. It is submitted that the

evidence led by the defendant is unacceptable. It is pointed out that

11960 DGLS (Bom.) 14

22004(Supp.) Bom.C.R. 333

31997(2) Bom.C.R. 620

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the chart allegedly prepared by D.W.4 Ashok Deshpande cannot be

relied upon as the said witness does not have any personal

knowledge as he admitted that he has left the said locality from

2004. It is submitted that the said witness was evicted by the

plaintiff and therefore, out of annoyance has deposed against the

plaintiff. It is submitted that the defendant apart from having

stopped the use of the suit premises has two galas i.e. Gala Nos.10

and 21 in the 'Indraprastha Shopping Centre' which is near the suit

premises. The defendant has also not led evidence to show that

from 2001 the defendant had made any attempt to search for any

alternate premises and therefore the issue of comparative hardship

has to be answered in favour of the plaintiff.

19. It is submitted that the contention about non

maintainability of a single suit in respect of the six rooms (used for

residential purpose) and the two rooms (used for business purpose)

is misconceived and cannot be accepted. It is pointed out that no

such ground was raised before the Courts below. He submitted that

in the absence of the defendant showing that there were distinct

tenancies, the contention cannot be accepted.

   Mamta Kale                                                       page 11 of 26




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20. On behalf of the plaintiffs, reliance is placed on the

decision of the Supreme Court in (i) Ramniklal Pitambardas Mehta

Vs. Indradaman Amratlal Sheth1 (ii) State of Gujarat and Anr. Vs.

Justice R. A. Mehta (Retired) and Ors.2 (iii) Raghunath G. Panhale

(Dead) By LRs. Vs. Chaganlal Sundarji and Co. 3 (iv) Modern

Tailoring Hall Vs. H. S. Venkusa and Ors. 4 and the decision of this

Court in (v) Vasant Mahadev Gujar Vs. Baitulla Ismail Shaikh &

Anr.5

21. In so far as CRA No.631/2019 is concerned, it is

submitted that the Courts below were not justified in placing

reliance on the letters (Exh.299 to 303) which were of the year

2007, 2009 and 2011 in order to hold that the ground of non-user in

respect of the two rooms is not established.

22. I have carefully considered the rival circumstances and

the submissions made.

1AIR 1964 SC 1676

2(2013) 3 SCC 1

3(1999) 8 SCC 1

4(1997) 5 SCC 315

5(2015) 5 Bom. C.R. 243

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23. As noticed earlier, the eviction in respect of the six

rooms has been granted on the ground of the reasonable and

bonafide requirement of the plaintiff and the non-user by the

defendant. In so far as two rooms are concerned, the eviction has

been granted on the ground of reasonable and bonafide

requirement. The plaintiffs are seeking the eviction from the two

rooms on the ground of non-user also. The consideration in the

present revision applications has to be confined to these two

grounds alone.

24. It has come on record that the entire premises consist of

six blocks, having four rooms each out of which two rooms are on

the ground floor and two on the first floor. Thus, there are total

twenty four rooms. The defendant is admittedly in possession of

two rooms on the ground floor from block No.1 which were used by

the defendant for the purpose of his business as Bharat

Construction. He is also in possession of two rooms, from out of

block No.5 and four rooms from out of block No.6, total six rooms,

which are used for residential purpose. It has come on record that

the premises were obtained on lease by the defendant somewhere in

the year 1984-1985 from the mother of plaintiff No.1.

Subsequently, the plaintiffs had purchased the said premises. Be

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that as it may, the relationship as landlord and tenant is not in

dispute nor the description of the property is in dispute and

therefore, it is not necessary to further dwell on the said aspect.

What is relevant is that according to the plaintiffs, the tenancy

comprises of the total eight rooms and the rent in respect of the six

rooms in block No.5 and 6 was Rs.450/- per month and the two

rooms from block No.1 is Rs.200/- per month. According to the

plaintiffs the user of the two rooms for business purpose was started

in the year 1996-97. There is no tenancy agreement produced on

record by either parties. Thus, there is nothing on record to show

that there were two distinct tenancies as such, the separate user for

residential and business purpose notwithstanding. The record

discloses that the contention about the non-maintainability of the

suit, on the ground of two distinct tenancies one for residential and

the other for business purpose was not raised. Thus, in my

considered view, the issue about non-maintainability of the suit on

account of the alleged existence of the two distinct tenancies does

not arise and at any rate the contention as raised on behalf of the

defendant cannot be accepted.

25. In the case of Jamal the landlord had filed a single suit

against different tenants which is not the case in the present matter.

   Mamta Kale                                                       page 14 of 26




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Thus, the reliance placed on the case of Jamal to my mind is

misplaced. I have already noticed that there is no evidence to show

that there were two distinct tenancies one each for residential and

business purpose, although, two out of the eight rooms might have

been used for the business purpose.

26. In S. M. Gopalakrishna Chetty,1 the Supreme Court has

refused to accept that a single petition with regard to different

tenancies one for residential purpose and the other for non-

residential purpose is not maintainable (para 10)

27. Ground of non-user

This takes me to the merits of the matter. It has come

on record that the defendant is presently residing at Pune alongwith

his family and the names of the family members figures in the voters

list at Pune. A perusal of the evidence of the defendant shows that

the defendant has feigned ignorance on several aspects including

whether his name and the names of the family members figures in

the voters list of Ward No.106 of Pune Municipal Corporation. He

also claimed that he does not know whether the names were

included at his instance. The defendant has also admitted that there

1AIR 1975 SC 1750

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were two concerns namely Bharat Construction and Raj and Raj

Construction. He claimed that he is a proprietor of Raj and Raj

Construction. He further claimed that his brother Nandkishore Shah

was the proprietor of Bharat Construction. He stated that he is not

aware whether said Bharat Construction in which he claimed that

his wife was a partner is still subsisting or it has been dissolved. He

claimed that he cannot file the returns of Bharat Construction

without the consent of his brother. He stated that he can file the

returns of Raj and Raj Construction (of which he claimed to be the

proprietor). However, no such returns were ever filed. He also

claimed ignorance whether while obtaining the mobile number of

his wife, the address at Kothrud Pune was given. He further claimed

that he does not know whether there is a landline phone

No.5385581 at Kothrud address.

28. P.W.2 Dinanath Chauhan is an employee of the

electricity department and stated that the electricity consumption in

respect of the suit premises (comprising of eight rooms) was 30

units from February 1991 to February 2000 and 70 units from April

2000 to April 2003. It was claimed on behalf of the plaintiffs that

the said consumption was too low for eight rooms which would

indicate that there was non-user which is controverted on behalf of

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the defendant. Both the Courts below have however chosen to rely

on the said evidence.

29. Pandurang Jadhav (P.W.3) is an employee of the

Telephone Department. He stated that there was a landline

No.223243 in the suit premises which was released in the year

1981. The said connection was disconnected for want of payment of

bill on 27 December 2001. In the cross examination, it was brought

on record that instead there was a mobile connection obtained.

30. P.W.4 Vijay Dhavale is an employee of the Municipal

Council and has stated about discontinuation of the 24 hours water

tap connection of which the water charges were paid from 1994-

1995 to 1997 after which the tap connection was disconnected. It is

necessary to note that Vijay Dhavale was also examined by the

defendant to show that in the municipal survey, the defendant was

shown as the occupant. The defendant continues to be in possession

of the suit premises i.e. why the plaintiffs are seeking decree of

eviction. Thus, merely being in possession or occupation of the

premises on the basis of the municipal survey would not be

sufficient to show that there is actual user. The ground for eviction

is non-user and not non-occupation. The address in the marriage

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card of the son of the defendant was also shown at Pune. It is

necessary to note that the Courts below have relied upon the

evidence to uphold the ground of non-user and in the absence of

said findings of fact being perverse or against the weight of the

evidence on record, no case for interference is made out in the

revisional jurisdiction.

31. At this stage, it would be worthwhile to refer to the

Civil Revision Application No.631/2019. The challenge in the said

revision application at the instance of plaintiffs is limited. The

plaintiffs claim that decree for eviction in respect of the two rooms

be granted on the ground of non-user also. The Appellate Court has

granted decree in respect of two rooms only on the ground of

reasonable and bonafide requirement.

32. A perusal of the impugned judgment would show that

the Courts below have relied upon the letters Exh.299 to 303. In the

first instance, these letters are of the year 2007, 2009 and 2011. No

witness from the office of the Executive Engineer, Medium Project

Division, Gondia or PWD Nanded have been examined in support of

these letters. That apart, the perusal of the letters indicates that

there was no progress in the work contracted and one letter Exh.299

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was about extension of the Bank guarantee. In my considered view,

the learned counsel for the plaintiffs is right that if the Courts below

have accepted the case of non-user of the six rooms and the fact

which had come on record that the plaintiff was residing alongwith

his family at Pune, it would not be possible that the two rooms at

Pandharpur were being used for the business purpose.

33. The defendant has not produced any documents except

the letters Exh.299 to 303 to show that the business of Raj and Raj

Construction was still being conducted from the two rooms out of

the suit premises.

34. Having regard to the over all circumstances, in my

considered view, the decree on the ground of non-user deserves to

be granted in respect of all the eight rooms.

35. Reasonable and bonafide requirement

In so far as the ground of reasonable and bonafide

requirement is concerned, it has come on record that the plaintiff

No.1 who is having a Post Graduate Degree in Food Technology was

serving in Glaxo Company. Initially, he was serving at Aligarh (Uttar

Pradesh) and subsequently at Ponda (Goa) and has since retired on

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31 July 2001. The suit is filed on 5 September 2001 i.e. shortly after

his retirement. It is now well settled that the reasonable and

bonafide requirement of the landlord is not to be equated with dire

need. It should be something more than a mere desire. The Courts

below have concurrently found that the said requirement is proved

in respect of the eight rooms.

36. Although the defendant has claimed ignorance, it has

sufficiently come on record that the plaintiffs are natives of

Pandharpur. It is true that in the cross-examination conducted in

the year 2008, P.W.1 has stated that he was serving at Goa in

Hindustan Foods Ltd at Goa. This admission is of the year 2008.

There is nothing on record to show that after retirement from Glaxo,

the plaintiff No.1 was immediately engaged in Hindustan Foods Ltd.

and if so, till when, in as much as the said admission is more than

13 years now. The plaintiffs claimed that they are residing at the

place of the father-in-law of the plaintiff No.1 at Pune and desire to

settle down at Pandharpur. There is nothing unusual for the

plaintiffs, being natives of Pandharpur to desire to settle down at

their native place. As noticed earlier, the need of the landlord need

not be a dire need.

   Mamta Kale                                                      page 20 of 26




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37. The claim of the plaintiffs for reasonable and bonafide

requirement is opposed on the ground that the plaintiffs have

obtained possession of the other rooms in the property and these

room are rented out. I have carefully gone through the evidence

and there is no acceptable evidence to support such contention. At

this stage, it is necessary to note that the defendant has relied upon

the admission of P.W.1 that after the death of tenant Kurulkar, the

four rooms in his possession were obtained by the plaintiffs. It

appears that an application was made for correction of the said part

of the evidence as according to the plaintiffs the suggestion given

was incorrectly recorded out of inadvertence. In short, according to

the plaintiffs, P.W.1 had denied the suggestion that he had obtained

the possession of four rooms which were in possession of tenant

Kurulkar after the death of said tenant.

38. Mr. Anturkar, the learned counsel for the plaintiffs

stated that the said application was not decided which aspect was

controverted by the learned counsel for the defendant. The learned

counsel for the defendant submitted that the said application was

rejected and that order has been confirmed by this Court. The

parties have not produced any order by which the said application

was either allowed or rejected. It is then necessary to refer to the

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chart (Exh.276) prepared by D.W.4 Ashok Deshpande. It has come

on record that the D.W.4 was evicted by the plaintiffs. It is claimed

that he has grudge and therefore has deposed against the plaintiffs.

That part, the witness has admitted hat he has left the said locality

in the year 2004.

39. I have gone through the evidence of the said witness as

well as the chart (Exh.276) pertaining to the period 1996-97 to

1999-2000 and 2000-2001 to 2004-2005. It is not clearly

discernible from the said chart as to what it purports to be. At any

rate, D.W.4 Ashok Deshpande cannot have any personal knowledge

to such minute details pertaining to the tenants in the suit premises.

40. I have carefully considered the circumstances and the

evidence on record including the fact that there is a purported

admission of P.W.1 of obtaining of the four rooms which were in

possession of the tenant late Kurulkar (the correctness of which is

disputed by the plaintiffs). It is necessary to note that it is for the

landlord to decide as to how and in what manner the premises are

to be put to use and the said circumstance, in my considered view, is

not sufficient to set aside the concurrent finding of fact recorded by

the Courts below.

   Mamta Kale                                                      page 22 of 26




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41. A brief reference may be made at this stage to the cases,

relied on by the parties.

42. The decision in the case of Vinayak Trimbak Wale has

been relied upon to submit that the subsequent events are required

to be taken into consideration. In that case, on facts, it was found

that one of the tenant who was occupying one room and veranda on

the ground floor was evicted in the execution of a decree obtained

by the plaintiffs and had got possession of the rooms and veranda

from him.

43. In Sugarbai Siddiq, again it was brought on record that

during the pendency of the proceedings in the year 1991 itself

another tenant of the landlord vacated the premises and the vacant

possession was handed over to the landlord from 1991 itself which

the landlord had kept locked.

44. In M. M. Quasim, the possession was sought by the

plaintiff / landlord on the ground of bonafide requirement. The

plaintiff lost interest in the demised premises during the pendency

of the appeal as a result of a decree in a partition suit. It was in

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these circumstances held that the Appellate Court can take notice of

the subsequent events and mould relief accordingly.

45. In Tarachand Shamdasani, on facts, it was found that

the plaintiffs had failed to plead and depose in his evidence about

the ownership of other premises capable of being used for the

requirement pressed into service in the subject suit.

46. In the case of Modern Tailoring Hall, arose out of the

provisions of Karnataka Rent Control Act. In the context of Section

21(1)(h) & (j) of the said Act, it was held that the ground of

bonafide requirement of landlord does not overlap with the ground

of requirement for demolition and reconstruction and the two

grounds are mutually exclusive.

47. In the case of Ramniklal Mehta , it was held that Clause

(hh) of sub-section 1 of Section 13 of the said Act cannot possibly

apply to the case where landlord reasonably and bonafide requires

the premises for his own occupation, even if he wants to demolish

the premises and to construct a new building on it.

   Mamta Kale                                                       page 24 of 26




                                                             1-cra-125-17 & cra-631-19

48. The case of Justice R. A. Mehta, has been cited to show

the binding nature of the precedent. Reliance is placed on para 61

in which the Supreme Court has noted that a decision would not

lose its authority merely because it was "badly argued, inadequately

considered or fallaciously reasoned."

49. In Vasant Mahadeo Gujar, on facts it was found that the

respondent landlord had not at all been candid with the Court in so

far as the pleadings are concerned.

50. It has come on record that the defendant has obtained

two galas in the 'Indraprastha Shopping Centre' which is near the

suit premises. The defendant also did not state in his evidence that

he had made any attempt to search for the alternate accommodation

from the year 2001. Considering the over all circumstances, I find

that the issue of comparative hardship also needs to be answered in

favour of the plaintiffs.

51. In that view of the matter the Civil Revision Application

No.125/2017 is hereby dismissed. Civil Revision Application

No.631/2019 is hereby allowed.

   Mamta Kale                                                       page 25 of 26




                                                              1-cra-125-17 & cra-631-19

52. Consequently, the decree of eviction in respect of the

eight rooms stands confirmed both on the ground of the reasonable

and bonafide requirement and non-user.

53. In the circumstances, there shall be no order as to costs.

54. At this stage, the learned counsel for the applicant /

tenant seeks continuation of the interim relief for a period of twelve

weeks.

Mr. Anturkar, the learned Senior counsel for the

plaintiffs / landlord has opposed the prayer. However, considering

the fact that the interim relief was operating during the pendency of

the revision application, the same is continued for a period of ten

weeks from today subject to the condition that the defendant shall

not part with possession of the suit premises and shall not create

any third party interest in the same.

55. All pending civil applications do not survive and are

disposed of, as infructuous.

C.V. BHADANG, J.

   Mamta Kale                                                        page 26 of 26