Bombay High Court
Janusingh Sardarsing Chotmuradi ... vs Arun Mahadeo Barse (Since Deceased) on 7 August, 2024
2024:BHC-AS:31552
Gayatri Shimpi 904-IA-9937-2024.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.9937 OF 2024
WITH
INTERIM APPLICATION (ST) NO.7086 OF 2024
WITH
CIVIL REVISION APPLICATION (ST) NO.5174 OF 2024
Janusingh Sardarsing Chotmuradi & Ors. ....Applicants
V/s.
Arun Mahadeo Barse (since deceased) & Ors. ....Respondents
_____________________________________________
Mrs. Sunanda R. Kumbhat a/w Mr. Kunal r. Kumbhat, for the Applicants.
Mr. Sagar Kasar, for the Respondents.
________________________________________________
CORAM : SANDEEP V. MARNE, J.
[
Date : 7 AUGUST 2024.
P.C. :
INTERIM APPLICATION NO.9937 OF 2024
1) This Interim Application is filed seeking condonation of delay in
filing the Civil Revision Application. The Application is not seriously
opposed by the learned counsel appearing for Respondent / Original
Plaintiff.
2) For the reason stated in the application, the same is allowed. Delay
in filing the Civil Revision Application is condoned.
3) Interim Application is disposed of.
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Gayatri Shimpi 904-IA-9937-2024.docx
CIVIL REVISION APPLICATION (ST) NO.5174 OF 2024
4) Revisionary jurisdiction of this Court is invoked under Section 115
the Code of Civil Procedure to set up a challenge to the Judgment and
decree dated 21 September 2022 passed by the Additional District Court,
Malegaon dismissing Regular Civil Appeal No.30 of 2015 and confirming
the decree dated 15 January 2015 passed by the Extra Joint Civil Judge,
Junior Division, Manmad in Regular Civil Suit No.56 of 2007. The Trial
Court, vide decree in RCS No.56 of 2007 has directed the Applicants /
Defendants to handover vacant possession of suit property to the Plaintiff.
5) I have heard Ms. Kumbhat, the learned counsel appearing for
Applicants and Mr. Kasar, the learned counsel appearing for Respondent
- Plaintiff.
6) After having considered the submissions canvassed by the learned
counsel appearing for the parties. It is seen that, though initially eviction
of the Defendants - Tenants was sought on twin grounds of bonafide
requirement and unauthorized an alterations and additions to the suit
premises, the suit came to be decreed only on the ground of bonafide
requirement. Perusal of the plaint would show that the Plaintiff pleaded
presence of large family comprising of two married children 5 grand
children and 4 married daughters. It was pleaded that the suit premises
were required not just for the Plaintiff but also for his 3 grandsons for
their business. The Trial Court accepted the ground of bonafide
requirement and has also held that greater hardship would be caused to
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the Plaintiff and not decreeing the suit than the Defendants. The finding
of the Trial Court have been confirmed that the Appellate Court.
7) Ms. Kumbhat would submit that the Plaintiff suppressed the
factum of securing possession of 3 more premises from other tenants
before filing the suit. She would rely upon Judgment the Apex Court in
Deena Nath Vs. Pooran Lal 1 in support of her contention that Plaintiff is
under obligation to disclose all the premises in his possession while
seeking recovery of possession of tenant premises on the ground of
bonafide requirements. There can be no dispute about this proposition
and possibly Ms. Kumbhat is not entirely wrong in contending that the
Plaintiff did not actually disclose passing of decrees in his favour in
previously instituted suits against 3 other tenants. However, after
considering the overall findings recorded by the Trial Court and the
Appellate Court, I am not inclined to interfere in the concurrent findings
recorded by both the Courts below only on account of Plaintiffs conduct
of alleged suppression. Plaintiff admitted in the cross - examination that
he secured possession of 3 more premises from other tenants before filing
of the suit. The Trial and the Appellate Court have considered the said 3
premises in possession of the Plaintiff while determining the issue of
comparative hardship.
8) What is most striking to note in the present case is the fact that the
Defendants not only posses several properties in addition to the suit
premises, the suit premises are found to be unused by the Defendants by
the Appellate Court by considering the evidence of Engineer from
Maharashtra State Electricity Board. The Appellate Court has
accordingly recorded of findings that the Defendants are actually not
12001 AIR SC 2655
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carrying any business of the suit premises. Though the ground of non-
user was neither raised and as not been accepted, the said aspect is
considered while deciding the issue of comparative hardship. It has come
on record that Defendants posses various properties such as Gat
No.277/278, City Survey No.377/B and City Survey No.920/2.
Additionally, it has come in evidence that in the year 2018, Defendant
Nos. 1A to 1C purchased property adjacent to the suit property by sale
deed dated 12 September 2018.
9) There is no doubt to the position that Plaintiff has a large family of
11 persons comprising of two married children, 5 grand children. After
considering the overall circumstance of the case the Trial and the
Appellate Court concurrently held that the requirement pleaded by the
Plaintiff is bonafide and that the facts and circumstances indicate cause of
greater hardship to the Plaintiff than to the Defendant. The orders passed
by the Trial Court and Appellate Court do not suffer from any palpable
error for this Court to interfere in the same in exercise of revisionary
jurisdiction under Section 115 of the Code.
10) In my view therefore, there is no merit in the Civil Revision
Application. The same is accordingly rejected.
11) In view of the dismissal of the Civil Revision Application all
pending Applications stands disposed of.
[SANDEEP V. MARNE, J.]
GAYATRI RAJENDRA
RAJENDRA SHIMPI
SHIMPI Date:
2024.08.08
12:25:57 +0530
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