Bombay High Court
Lidwin Joseph Fernandes vs Corsini Santos on 12 August, 2024
2024:BHC-AS:32550
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.311 OF 2021
WITH
CIVIL REVISION APPLICATION NO.312 OF 2021
Ladwin Joseph Fernandes & Anr. ....Applicants
V/S
Corsini Santos & Ors, ....Respondents
________
Mr. Ram Upadhyay a/w Mr. Anuj Pande i/b M/s. Law Competere
Consultus for the Applicants.
Ms. Eventa A. Gonsalves a/w Mr. Reyden L. Gonsalves for Respondents.
__________
CORAM: SANDEEP V. MARNE, J.
DATE : 12 AUGUST 2024.
P.C.:
1 These Civil Revision Applications are filed challenging concurrent
findings of the Trial Court and the Appellate Bench of Small Causes Court
decreeing R.A.E. Suit No.786 of 2011 and R.A.E. Suit No.787 of 2011 and
directing the eviction of Applicants/Defendants from the suit premises on
the ground of bonafide requirement.
2 I have heard Mr. Upadhyay, the learned counsel appearing for
Applicants and Ms. Gonsalves, the learned counsel appearing for
Respondents/landlords.
3 The sheet-anchor of submissions of Mr. Upadhyay is filing and
dismissal of previous RAE & R Suit No.308/955 of 1984 and RAE & R
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Suit No.956 of 1985 by landlords against the tenant on the ground of
acquisition of suitable alternate residential accommodation. Inviting my
attention to paragraph 5 of the Plaint in RAE Suit No.786 of 2011 he
would submit that since previously instituted RAE & R Suit Nos.308/955
of 1984 and 956 of 1985 have been dismissed under provisions of Order 9
Rule 8 of the Code of Civil Procedure, 1980, (Code), fresh suit is barred
under provisions of Order 9 Rule 9 of the Code. In this regard, he has relied
upon judgment of Division Bench of Gujarat High Court in GEB vs.
Saurashtra Chemicals, MANU/GJ/0262/2003.
4 There can be no dispute to the position that if a suit is dismissed
under provisions of Order 9 Rule 8 of the Code, fresh suit for same cause of
action cannot be filed. However what Mr. Upadhyay misses is the point that
the fresh suit is not on the ground of acquisition of suitable alternate
residential accommodation. The fresh suit has been instituted on altogether
different ground of bonafide requirement of the landlords. Therefore it
cannot be said that RAE & R Suit No.308/955 of 1984 and RAE & R Suit
No.956 of 1985 and current suits being RAE Suit No.786 of 2011 and
RAE Suit No.787 of 2011 were filed on the same causes of action. Since the
causes of action for filing both the suits is altogether distinct and different,
reliance of Mr. Upadhyay on provisions of Order 9 Rule 9 of the Code is
completely misplaced. The argument therefore is stated only to be rejected.
5 So far as the ground of bonafide requirement is concerned, both the
courts below have concurrently held that the Plaintiff-landlords have
proved their bonafide requirement as well as cause of greater hardship to
them. The findings of fact recorded after appreciating the evidence on
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record do not warrant any interference in exercise of revisionary jurisdiction
under section 115 of the Code. It is also a matter of fact that the possession
of the suit premises were already recovered in July 2024.
6 I therefore do not find any reason to entertain Revision Applications.
Both the Revision Applications are accordingly rejected.
(SANDEEP V. MARNE, J.)
7 After the order is pronounced, Mr. Upadhaya would request for stay
of the decrees of the Trial Court and Appellate Bench for a period of four
weeks. However since possession of the suit premises is already lost in
execution proceeding, I do not see any reason why the decrees passed by the
Trial Court and Appellate Bench are required to be stayed. The request is
accordingly rejected.
(SANDEEP V. MARNE, J.)
Digitally
signed by
SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.08.14
14:34:21
+0530
