Bombay High Court
Asha Vijay Karande vs Sheela John Pitamber And Ors on 30 November, 2023
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2023:BHC-AS:37044
sa_mandawgad 1/24 CRA 168-22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 168 OF 2022
Mrs. Asha Vijay Karande. ]
Aged 57, Occ : Vegetable Vendor., ]
Residing at - 257, J. P. Merchant House., ]
Bazar Road, Bandra (W), ]
Mumbai - 400 050. ] ...Applicant.
VERSUS
1. Sheela John Pitambar, ]
Age 71 years, Occ. Housewife, ]
Residing at Mezzanine Floor, ]
House No.71, Bazar Road, Bandra (W), ]
Mumbai - 400050. ]
2. Shri. Rajaram Ramu Gudu ]
(Since deceased)) ]
(Smt. Savitribai wd/o Rajaram Ramu ]
Gudu) (Deceased) ]
2(1) Mrs. Rekha Keshav Hajare. ]
(Since deceased) ]
2(1)(a) Mr. Keshav Babu Hajare, ]
Age 67 years, Occ : Self Employed. ]
2/4, Swapna Sagar Society, ]
Bapusaheb Vishnu Juvekar Marg, ]
Friend Colony, Bhandup (E), ]
Mumbai - 400 042. ]
2(1)(b) Mr. Prashant Keshav Hajare, ]
Age 38 yeares, Occupation : Service, ]
2/4, Swapna Sagar Society, ]
Bapusaheb Vishnu Juvekar Marg, ]
Friend Colony, Bhandup (E), ]
Mumbai - 400 042. ]
2(1)(c) Mrs. Smita Rajesh Mhatre, ]
Age 35 years, Occupation : Housewife, ]
Sarvodaya Datta Tower, A-Wingh, ]
sa_mandawgad 2/24 CRA 168-22
Room No. 102, Motha Goan, ]
Reti Bunder Road, ]
Dombivali (W) 421202. ]
2(1)(d) Mrs. Mannisha Kishore Karande, ]
Age : 33 years, Occupation : Housewife, ]
Shivasadan Bulding, Room No.6, ]
Ground Floor, Ratnabai Compound, ]
Shivaji Nagar, Mulplease check email from ]
Ladyship.und Check Naka, ]
Thane (W).
3. Mrs. Surekha Bhanudas Pawar, ]
Age : Adult, Occ : Housewife, ]
Mumbai Devi Colony Road, ]
Bholenath Nagar, Chawl, A/1, Room ]
No.13, Diva - 400 612. ]
4. Mrs. Usha Shivaji Pote, ]
Age : Adult, Occ : Housewife, ]
Plot No. 75, Sector-C Varsha Nagar, ]
Vibhag Vikhroli, Parkside, ]
Mumbai - 400 079. ]
5. Deleted. ]
6. Deleted. ]
7. Mrs. Pinky Manoj please check email from ]
Ladyship.Shinde, ]
Aged About 32 years, Residing at 18/365, ]
Ratna Sindhu, Off. M.H.B. Colony, ]
Gorai Road, Borivali (w), ]
Mumbai - 400 091.
8. Mrs. Ashiwini Ajay Mane, ]
Aged about 29 yrs, residing at Flat No. ]
501, 5 floor, A wing, Daffodil Apartent, ]
Natasha Park -1 CHS, Mira Road (East), ]
Mumbai - 401 107. ]
9. Deleted. ] ...Respondent.
------
Mr. Mahendra Shingade, Advocate for the Applicant.
Mr. R.A. Thorat, Senior Advocate a/w Ms.Pratibha Shelke i/by
Mr.Ramanand G. Sikhwal, Advocates for the Respondents.
sa_mandawgad 3/24 CRA 168-22
------
CORAM : SHARMILA U. DESHMUKH, J.
DATE : NOVEMBER 30, 2023.
JUDGMENT. :
1. Rule. Rule made returnable forthwith and heard finally with
the consent of parties.
2. The revisional jurisdiction of this Court has been invoked
against the judgment dated 6 th January, 2022 passed by the
Appellate Bench of the Small Causes Court, at Mumbai, decreeing
the suit for eviction by reversing the judgment and decree of
dismissal by the trial Court. For the sake of convenience, parties are
referred to by their status before the trial Court.
3. RAE Suit No.659 of 2007 was instituted by the plaintiff
seeking ejectment of the original-Defendant on the ground of
reasonable and bonafide requirement and nuisance. During the
pendency of the proceedings, the original-defendant expired and his
wife was brought on record and after her death, her four daughters
were brought on record. The revision-applicant is one of the
daughters of the original tenant and arrayed as Defendant no 4 in
the suit and the Respondent Nos.2 to 9 are the other legal heirs.
sa_mandawgad 4/24 CRA 168-22
4. The suit premises is situated on the ground floor of House No
71 located at Bazar Road, Bandra, Mumbai. The case of reasonable
and bonafide requirement pleaded is that the Plaintiff is an old lady
aged about 75 years and suffering from various ailments. That, the
premises where she is residing is situated on the second
floor/mezannine floor and does not have self contained toilet and
bathroom and she is required to use the common toilet situated on
the ground floor. That, there is no lift facility in the building and due
to her ill health she has been advised not to exert herself. That, the
suit premises situated on the ground floor is self contained room and
suitable for her residence. The other requirement pleaded was that
her current premises consisting of one room, kitchen and common
WC bathroom was inadequate to accommodate herself, her
unmarried daughter Vimla and her daughter Phyllis who is a widow
and residing with her alongwith her two children. That, by reason of
lack of accommodation her son Leslie was residing in Mira Road
which is in district Thane and was facing difficulty to travel to his
work place at Uran from Mira Road. The ground of nuisance
pleaded was that there was blockage of common drainage line by
the defendant causing nuisance to the occupants of the building.
sa_mandawgad 5/24 CRA 168-22
5. After being brought as legal heirs of original Defendant,
written statement dated 14th July, 2012 was filed by the Defendant
Nos.1 to 4 adopting the written statement filed by the original-
defendant. The defence was that plaintiff and her son Leslie have
assigned development rights in the suit property to a developer.
That, the Defendant No.4 (present revision-applicant) with her
children were residing in the suit premises alongwith original
defendant at the time of his death and as such she is entitled to
tenancy rights. It appears that subsequently the written statement
came to be amended to plead that the plaintiff has acquired
possession of two premises in the same vicinity. By virtue of a
decree passed in RAE Suit No.297 of 2007 possession of self
contained premises admeasuring more than 600 square feet has
been obtained and there is another other self contained premises
situated on ground floor of House No.73/8 of which possession has
been obtained by the Plaintiff, which is not being used by the
plaintiff.
6. The parties went to trial and the Plaintiff examined herself
and her daughter Phyllis whereas the Defendant No. 4 examined
herself. The Trial Court by judgment dated 15 th February, 2016
sa_mandawgad 6/24 CRA 168-22
dismissed the suit. As to the bonafide requirement of the family
members of the Plaintiff, the Trial Court disbelieved that Phyllis was
residing with her mother and further held that as she is working she
cannot be said to be dependent on her mother. The Trial Court
observed that the case put by the Plaintiff in the cross examination
of Defendant No. 4 is that the Plaintiff's son Leslie has acquired the
room from another tenant and house No. 73/8 is used by Plaintiff's
daughter Violet for residence and as such the requirement of some
of the family members was met. The Trial Court considered the
admission of the Plaintiff that she has two other buildings and the
suggestion given in the cross examination of Defendant No. 4 is that
House No. 73 is jointly owned by Plaintiff, her daughters and her
son,which facts were suppressed in the plaint.
7. As regards the bonafide requirement of the Plaintiff herself,
the Trial Court held that her family members would not keep her
away from the available premises at the cost of her health. On the
issue of comparative hardship, the Trial Court held that the financial
capability of the tenant to acquire alternative premises was not
brought on record. That, the Defendant No. 4 - a widow is a
vegetable vendor having two children and if she is evicted greater
sa_mandawgad 7/24 CRA 168-22
hardship will be caused to her. The issue on ground of nuisance was
answered in the negative.
8. As against the dismissal of the suit, Appeal No. 27 of 2016 was
preferred. The Appellate Court held that the Plaintiff's requirement
for her use was bonafide and reasonable considering that she is
required to use the staircase to use the common toilet. The Appellate
Court did not accept the Plaintiff's case of requirement of residence
for her daughter Phyllis. On the point of comparative hardship, as
regards the ownership of House Nos. 72, 73 and 74 the Appellate
Court held that there is no evidence to show existence of other
ground floor premises in either building co-owned by the Plaintiff
being self contained premises. The Appellate Court held that the
Defendant No. 4 had married in the year 1984 and her husband
expired in the year 1997. That, there is no case of matrimonial
dispute and that she is having alternate accommodation being her
husband's house at Santacruz. The Appellate Court observed that
admittedly there is no evidence to show that she made any attempt
for securing alternate accommodation after institution of suit. On
the issue of nuisance, the finding of the trial court was upheld and
the Appellate Court decreed the suit on ground of bonafide
sa_mandawgad 8/24 CRA 168-22
requirement.
9. Heard Mr. Shingade, learned Advocate appearing for the
Applicant, Mr. Thorat, learned Senior Advocate appearing for the
Respondents.
10. Mr. Shingade, learned counsel for the defendant no.4, has
pressed into the service two submissions that there were alternate
premises obtained by the plaintiff in the same locality and that there
was suppression of the ownership of other properties i.e. building
Nos.72, 73 and 74 by the plaintiff. He has invited the attention of
this Court to the plaintiff's admission in the cross-examination that
she has got two more buildings in addition to the suit building. He
submits that after having admitted thus, the plaintiff has sought to
retract the admission. According to him, the Plaintiff has suppressed
the fact of ownership of other buildings and as such is not entitled to
decree for eviction. He contends that the case of the Defendant No 4
as regards the development of the property by the Plaintiff is
substantiated and would draw attention to the documents issued by
the planning authority for permission to develop.
11. Per contra, Mr. Thorat, learned Senior Advocate for the
sa_mandawgad 9/24 CRA 168-22
Respondent No.1 submits that the settled position in law is that the
landlord is the best judge of his requirement and the Court cannot
dictate the manner in which he is required to use the premises.
Drawing attention of this Court to the cross-examination of DW-1,
he submits that DW-1 has admitted that the plaintiff is residing in
mezzanine floor i.e. on second floor in a single room and that there
is no toilet facility inside the plaintiff's room and that the plaintiff is
using common toilet alongwith the others. He would further submit
that no efforts were made by the defendant no.4 to acquire any
alternate premises after the filing of the suit and as such, the
Appellate Court has rightly decreed the suit. He submits that the
acquisition of other premises is a subsequent event and the
requirement on the date of institution of the suit is required to be
considered. In support of his submissions he relies upon the decision
of the Apex Court in the case of Minal Eknath Kshirsagar vs. Traders
and Agencies and Anr. reported in 1997 (1) Mh.L.J. (SC 121) and in
the case of Gaya Prasad Vs. Pradeep Srivastava, reported in 2001
(2) Mh.L.J.
12. Considered the submissions and perused the record.
sa_mandawgad 10/24 CRA 168-22
13. The ejectment of the tenant was sought on the ground of
Plaintiff's as well as her family members reasonable and bonafide
requirement and nuisance. The suit has been decreed on the ground
of reasonable and bonafide requirement and it is not necessary for
this Court to consider the issue of nuisance. Before adverting to the
facts of the case it may be profitable to refer to the statutory
provision of the Maharashtra Rent Control Act, 1996 ("Rent Act")
governing the recovery of possession contained in Section 16 of the
Rent Act. Section 16(1) (g) provides that the landlord may recover
possession of the premises if the Court is satisfied that the premises
are reasonable and bonafide as required by the landlord for
occupation for himself or by any person for whose benefit the
premises are held. Sub-section (2) of Section 16 provides that no
decree for eviction shall be passed on the ground specified in clause
(g) of sub section (1) if the Court is satisfied that having regard to
all the circumstances of the case, including the question whether
other reasonable accommodation is available for the landlord or
tenant greater hardship will be caused by passing the decree than by
refusing to pass it.
14. The case of reasonable and bonafide requirement was for the
sa_mandawgad 11/24 CRA 168-22
Plaintiff herself as she required the suit premises which was self
contained room on the ground floor as due to her old age and
medical ailments she is facing difficulty in using the staircase to use
the common WC and bathroom and secondly for the requirement of
her family members as her current residence was inadequate to
accommodate her two daughters, her grand children and her son.
15. If we peruse the cross examination of the Plaintiff, her case
about her medical condition has not been shaken. She has admitted
that she owned two more buildings in addition to the suit building,
which admission was later retracted. The Defendant No. 4 in her
cross-examination has admitted that the suit premises is one single
self contained room admeasuring 550 sq.ft. having WC and
bathroom facility inside. She has admitted that the plaintiff is
residing on the mezzanine floor i.e. second floor in a single room
and there is no toilet facility inside the plaintiff's room and that the
plaintiff is using common toilet alongwith the others.
16. In so far as the need of the suit premises for residence of
Plaintiff's family is concerned, the case of her daughter Phyllis
residing with her has been disbelieved by the Trial Court as there
sa_mandawgad 12/24 CRA 168-22
was no document to show that she was residing in the suit property
after her marriage, which finding cannot be faulted as the
documentary evidence indicates that the addresses given in Aadhar
card as well as in her children's educational institution is that of her
matrimonial house. The Trail Court held that the other two premises
of which possession was acquired subsequently are in possession of
Leslie and Violet and as such the need of the family members has
been satisfied.
17. The suit was instituted in the year 2007 and the crucial date
for evaluating the reasonable and bonafide requirement of the
landlord is the date of institution of the suit for eviction. As held by
the Apex Court in the case of Gaya Prasad vs Pradeep Shrivastava
(supra), the subsequent events to overshadow the genuineness of
the need must be of such nature and of such a dimension that the
need propounded by the petitioning party should have been
completely eclipsed by such subsequent events. Applying the law
laid down by the Apex Court to the facts of the present case, the
requirement pleaded was of the Plaintiff herself and her family
members. As regards the Plaintiff's own requirement, the evidence
on record establishes the reasonable and bonafide requirement of
sa_mandawgad 13/24 CRA 168-22
the suit premises for her own occupation as due to her old age and
medical condition she is facing great difficulty while residing in her
current residence which is not a self contained premises and being
situated on the second floor compels the Plaintiff to use the staircase
each time she has to use the common toilet situated on the ground
floor. The need of the Plaintiff is an absolute and pressing need and
not a mere wish or desire. That apart, admittedly the Plaintiff's
daughter Vimla who is mentally challenged is residing with her and
the need for a self contained room for Vimla cannot be disregarded.
18. The Trial Court has brushed aside this need by holding that
her family members would not keep her away from the available
premises at the cost of her health. There is no rationale for this
reasoning. It is settled that the landlord is the best judge of her
requirement and the Court cannot dictate the manner how and in
what manner he should live. The evidence on record establishes the
bonafide need of the Plaintiff for a self contained room on the
ground floor and the Plaintiff cannot be compelled to go and reside
with the other members of her family. The Plaintiff despite being
owner of the suit premises is forced to use the common toilet
alongwith the other occupants of the building while the Defendant
sa_mandawgad 14/24 CRA 168-22
No 4 is enjoying the benefit of self contained premises. As such the
Plaintiff is deprived of the beneficial enjoyment of her own property.
19. In so far as the requirement of the suit premises for the
accommodation of the Plaintiff's family members is concerned, the
current premises of the Plaintiff is about 400 square feet with
common WC. Admittedly the Plaintiff's daughter Vimla is residing
with her who is mentally challenged. The suggestion given by the
Plaintiff in the cross examination of the Defendant No. 4 reveals that
Leslie- the son of the Plaintiff during the pendency of the
proceedings has acquired possession of another premises from other
tenant and Violet-another daughter of the Plaintiff is occupying
other premises being House no 73/8 of which possession is obtained
subsequent to the filing of the suit.
20. The subsequent event of acquiring possession of other room
has to be demonstrated to have met the requirement of the family
members. The additional evidence led by the Defendant No. 4
merely states that possession of two self contained premises in the
suit property are obtained. To corroborate the same, photographs
were produced which are not exhibited. There is no material to
sa_mandawgad 15/24 CRA 168-22
demonstrate that the two rooms of which the possession has been
obtained is adequate to meet the needs of Leslie and Violet. As laid
down in the case of Gaya Prasad vs Pradeep Srivastava (supra) the
need propounded is required to be completely eclipsed by the
subsequent event. The deposition that possession of other two room
were obtained is not sufficient to conclude that the need has been
completely eclipsed. There has to be evidence on record as to the
area of the other premises, the location, the number of family
members of Leslie and Violet. It also needs to be noted that the
Plaintiff has four daughters and as such there is requirement of
accommodation when they visit their mother. Considering the
evidence on record, in my opinion, the Defendant No. 4 has failed to
prove that the need as propounded by the Plaintiff for
accommodation of her family members is met by acquisition of the
other two premises. I am thus not inclined to accept the finding of
the Trial Court that by subsequent acquisition of the other two
rooms, the need for accommodation of the Plaintiff's family
members has been satisfied.
21. Once it is established that the need propounded by the
Plaintiff is both reasonable and bonafide, the provisions of sub
sa_mandawgad 16/24 CRA 168-22
section (2) of Section 16 of Rent Act come into play. The issue of
greater hardship requires a consideration of all circumstances of the
case including the question whether other reasonable
accommodation is available to the landlord or the tenant. The
availability of other reasonable accommodation is thus one of the
factors to be taken into consideration while assessing the
comparative hardship.
22. In the instant case, the other two rooms of which the
possession was obtained subsequently are stated to be in the
possession of Leslie and Violet. As such it can be concluded that the
said premises are not available to the Plaintiff or Vimla for their use.
In the case of Badrinarayan Chunilal Bhutada vs Govindram
Ramgopal Mundada (2002 AIR SCW 3307) the Apex Court held in
paragraph 7, 8, 9 and 11 as under:
"7. A perusal of the scheme of the Act, so far as the
ground of reasonable and bona fide requirement by the
landlord for occupation of residential or non-residential
premises is concerned, shows that clause (g) of sub-sec.
(1) of S. 13 contemplates a decree for eviction being
passed on proof of availability of the ground according
to law. In spite of a ground for eviction u/S. 13(1)(g)
having been made out, the court deny the relief of
eviction if the issue as to comparative hardship is
sa_mandawgad 17/24 CRA 168-22
answered against the landlord and in favour of the
tenant. Thus in a way S.13(2) acts as a proviso to S.
13(1)(g); the former having an overriding effect on the
latter. The burden of proving availability of ground for
eviction under Section 13(1)(g) lies on the landlord;
the burden of proving greater hardship so as to deprive
the landlord of his established right to seek eviction lies
on the tenant.
8. Sub-section (2) of S. 13 falls more appropriately
within the domain of equitable or social justice. Section
13(2) obliges the Court, in spite of the finding as to
reasonable and genuine requirement having been
arrived at in favour of the landlord, to weigh in scales
placing the hardship which would result to the landlord
in case of denial of eviction in one balance pan and
hardship likely to be suffered by the tenant in case of
his being evicted in the other and then find out
judiciously which way the balance tilts.An empty truism
cannot be hardship. A failure of the landlord to make
out a case for eviction under S. 13(1)(g) is not a
hardship to landlord; so also on a case for eviction
under S. 13(1)(g) having been made out the fact that
the tenant will be liable to be evicted is not by itself
hardship to tenant. A mere wish or desire of the
landlord to acquire possession over the tenancy
premises cannot be said to be a bona fide and
reasonable requirement. Requirement implies an
element of necessity. The necessity is a necessity
without regard to the degree of which it may be. For the
purpose of S. 13(2) the degree of urgency or the
intensity of felt-need assumes significance. It is a
judicious process of finding out, as far as practicable,
and then making a comparative measure of the two
degrees, which is involved in arriving at a finding on
comparative hardship.
sa_mandawgad 18/24 CRA 168-22
9. The family, the business background of the parties,
the availability of accommodation with either parties or
in the township, the extent of direness or pressing
nature of the need for eviction as against the direness of
need or urge of the tenant to continue to occupy or
cling to the tenancy premises, with reasons therefor,
assume relevance. The court may keep in view how the
things would take shape in a reasonably foreseeable
future in either event. The conduct of the parties, their
mutual relationship may also be relevant. In spite of the
availability of ground for eviction being legally
sustainable, for the purpose of deciding the issue as to
comparative hardship, the Court may take into
consideration availability of such other premises with
the landlord, which though not necessarily alternative
to the suit premises, may still be available to
accommodate the proven requirement of the landlord.
The fact that the tenant could have had shifted to other
premises or has missed the opportunity of availing
occupation of other premises or is likely to part with
possession over other premises whereto his business can
be or could have been shifted are all relevant factors for
the purpose of S. 13(2) though may not be relevant for
the purpose of S. 13(1)(g). These are illustrative
factors, incapable of being listed fully and precisely,
which enter into the thinking process leading to
formulation of opinion on comparative hardship.
10. ..............
11. The Act does not lay down any guidelines or
relevant factors based whereon the question of
comparative hardship is to be decided. A slight
indication is given in the first para of S. 13(2) that
regard must be had to (i) all the circumstances of the
case, (in) including the question whether other
reasonable accommodation is available for the
sa_mandawgad 19/24 CRA 168-22
landlord or the tenant. The expression 'other
reasonable accommodation' as employed here does
not mean an accommodation suitable in all respects
as the suit accommodation is. The Legislature has
chosen it appropriate to leave the determination of
issue on sound discretion of the Court."
23. The Apex Court held that the burden of proving greater
hardship so as to deprive the landlord of his established right to seek
eviction lies on the tenant. In that context, if we scrutinize the
evidence on record, the deposition is that Defendant No.4 is a
vegetable vendor and her son was studying in college. That she was
married in the year 1985 and since the year 1986 she is residing in
the suit premises. As regards her matrimonial house, the deposition
initially is that the premises was rented for period of 11 months and
thereafter handed over. On the subsequent date of cross examination
she has deposed that the premises at Santacruz was sold by her
mother in law as it was standing in her name.
24. Pertinently she has deposed that no efforts were taken to
search for alternate premises after service of summons of the suit.
The Trial Court held that the principle of law enunciated in the case
of Sidharam Mulage & Ors vs Bashir Tamboli & Ors reported in
2009(3) Mh.L.J 907 relied upon by the Plaintiff will come into play
sa_mandawgad 20/24 CRA 168-22
only if financial ability of tenant to acquire alternative premises is
brought on record and placed the burden on the Plaintiff. As
indicated above, the Apex Court in the case of Badrinarayan
Chunilal Bhutada (supra) has held that the burden of proving
greater hardship lies on the tenant and as such it was for the tenant
to place on record cogent evidence to demonstrate greater hardship
to deprive the landlord of his established right to seek eviction. The
case of the Defendant No 4 on the ground of comparative hardship
is acquisition of alternate accommodation by the Plaintiff. As already
indicated above the availability of alternate accommodation is one
of the factors to be considered while assessing the issue of
comparative hardship. The evidence on record establishes that the
other two rooms of which the possession was obtained was in
occupation of Leslie and Violet. As such there was no other alternate
accommodation available to the Plaintiff.
25. The Trial Court considered the financial incapability of the
Defendant No. 4 and answered the issue of comparative hardship in
her favour. There is no evidence adduced by the Defendant No. 4 to
establish that any efforts were taken by the Defendant No. 4 to
search alternate accommodation and that in view of her financial
sa_mandawgad 21/24 CRA 168-22
position no alternate accommodation could be acquired by her.
Apart from her bare words that she is vegetable vendor and if the
decree of eviction is passed she will suffer greater hardship, there is
no evidence brought on record to substantiate the same.
26. It is settled that inspite of finding of reasonable and bonafide
requirement in favour of the landlord, the Court is required to weigh
in the scales the hardship of the tenant and the landlord. Viewed in
this context, there is no evidence that there is any alternate
accommodation available to the Plaintiff which will satisfy her need
to reside in a self contained flat on the ground floor. It is not the
case of the Defendant that the Plaintiff is financially capable to
acquiring premises suiting her requirement. It has come on record
that the other buildings are co-owned by the Plaintiff, her four
daughters and her son. On the other hand the Defendant No. 4 has
not placed any material to demonstrate her financial inability to
acquire alternate accommodation. The Trial Court has considered
the case sympathetically on the ground that she is a vegetable
vendor without appreciating that the Defendant No. 4 was married
and was residing after marriage at her matrimonial house Santacruz
with her husband. The Appellate Court has rightly held that the
sa_mandawgad 22/24 CRA 168-22
Defendant No. 4 has not come with a case of matrimonial dispute. It
needs to be noted that the Defendant No. 4 has adopted varying
stands in respect of the matrimonial house at Santacruz that the
same was rented for period of 11 months and thereafter stating that
the premises was sold by her mother in law who was the owner of
the premises. What can be inferred is that the Defendant No. 4 has
suppressed the existence of the matrimonial house at Santacruz.
27. On the issue of comparative hardship, the trial Court held that
there are seven shops in the suit property from which the plaintiff is
collecting rent and hence, the plaintiff has independent source of
income. On the other hand, there is no evidence to indicate the
capacity of Defendant No.4 to acquire alternative accommodation
and as such, the greater hardship would be caused to the Defendant
No.4 as the only roof on her head will be taken away. The Trial
Court failed to appreciate there is no material on record to prove
that the rent of the seven shops was sufficient for the Plaintiff to
acquire another premises. It is well known that the amount of rent
in respect of old tenancies is minimum and it is not possible to
obtain another premises from the rent income.
sa_mandawgad 23/24 CRA 168-22
28. As regards the submission regarding the suppression of
ownership of other buildings is concerned, the contention of Mr.
Shingade was that the Plaintiff is also owner of House Nos. 72, 73
and 74. In the cross examination, the Plaintiff firstly admitted that
apart from the suit premises she is the owner of two other buildings,
which was later retracted by her. There is no suggestion given to her
as to the description of the two buildings. What can be found from
the suggestions given by the Plaintiff in the cross examination of
Defendant No 4 is that House Nos. 71 and 73 are jointly owned by
the Plaintiff, her daughters and her son. It is not the case of the
Defendant No. 4 that the Plaintiff is in possession of the House No.
73. As regards House No. 73/8 the suggestion given was that the
Plaintiff's daughter Violet is in possession of House No. 73/8 and as
such the premises were not available for occupation for the Plaintiff.
Admittedly possession of House No. 73/8 was acquired subsequent
to the filing of the suit. As the House No. 73 was not in possession
of the Plaintiff, it cannot be stated that there was suppression of
material fact which was required to be disclosed for the purpose of
effective adjudication as to the bonafide and reasonable requirement
of the landlord.
sa_mandawgad 24/24 CRA 168-22
29. As regards the submission that subsequently documents have
been obtained to show that the property is being developed, I am
not inclined to consider the same as the documents are not part of
record before the Trial Court and the Appellate Court.
30. In light of the discussion above, I am not inclined to interfere
with the impugned Judgment dated 6th January, 2022. At this stage
learned counsel for the Applicant seeks stay of the order for period
of three months. The suit is of the year 2007 and I am not inclined
to grant stay of three months. The order is stayed for a period of
eight weeks from the date of uploading of the order on the official
website of Bombay High Court.
(Sharmila U. Deshmukh, J.)
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 11/12/2023 21:00:23
