[Cites 5, Cited by 0]
Bombay High Court
Tribhuvan Tulsiram vs Henry Pereira D/H. Mrs. Martha Pereirra ... on 21 January, 2026
2026:BHC-AS:3293
Digitally
signed by
ANANT 3.WP.1873.2004 (OJ) C.doc
ANANT KRISHNA
KRISHNA NAIK
NAIK Date:
2026.01.22 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
19:49:44
+0530 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1873 OF 2004
WITH
CIVIL APPLICATION NO. 583 OF 2018
1. Tribhuvan Tulsiram
(Deceased through legal heirs)
1.1. Mrs. Saroj Tribhuvan Tulsiram
Age: 73 Occu: Retired/Housewife
Add. :99-A Bazar Road, Bandra (West)
Mumbai 400050
1.2. Mr. Ashok Tribhuvan Tulsiram
Age: 63 Occu.: Retired
Add. : 99-A Bazar Road, Bandra (West)
Mumbai 400050
1.3. Mr. Prakash Tribhuvan Tulsiram
Age: 58 Yrs. Occu.: Retired
Add.:99-A Bazar Road, Bandra (West)
Mumbai 400050
1.4. Miss. Lalita Tribhuvan Tulsiram
Age: 65 Yrs. Occu.: Retired
Add.: Flat No. 404, 4th Floor,
Shayda-E-Hind C.H.S. Ltd. Mandapeshwar,
Opp. I. C. Church, I. C. Colony,
Borivali (West), Mumbai 400103.
1.5. Mrs. Kanchan J. Singh
Age: 62 Yrs. Occu.: Retired
Add.: Flat No. 101, B-Wing, 1st Floor,
Galay Pinnacle, Shahaji Raje Marg,
Jeevan Vikas Hospital Lane,
Vile Parle (East), Mumbai 400057
1.6. Mr. Kailash Tribhuvan Tulsiram
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3.WP.1873.2004 (OJ) C.doc
Age: 60 Yrs., Occu.: Retired
Add. : Flat No. 606, Building No.2,
Akshay, 6th Floor, Vakola. Santa Cruz (East)
Mumbai 400055 ....Petitioners
Versus
Henry Pereira (since deceased)
through heirs and legal representative
1. Mrs. Martha Pereira (since deceased)
W/o. Henry Pereira, 99-A, Bazar Road,
Bandra, Mumbai -400050.
1a. Mrs. Maria Pereira
1b. Mr. Jonathan Pereira
Both residing at: Building No. 14/B,
Ground Floor No. 1082,
Near Post Office, Borivali (West),
Mumbai- 400091
2. Mr. Earnest Pereira, son of Henry
Pereira, residing near Chawl No. 39 of
Maharashtra Housing Board, Bandra
Reclamation, Room No. 514-A, Behind
Meat Market, Bazar Road, Bandra,
Mumbai-400050.
3 Mrs. Janet Patel, married daughter
residing at 105-B, Bazar Road, Bandra,
Mumbai-400050.
4. Mrs. Hazel Denoya
married daughter residing at
Neel Shanti Niketan, 1st Floor,
Opp. Vidyanagari, Kalina, Mumbai ....Respondents
***
Ms. Pratibha Shelake for Petitioners.
Adv. Mehervan R. Irani for Respondent No. 2.
***
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3.WP.1873.2004 (OJ) C.doc
CORAM : M. M. SATHAYE, J.
DATED : 21st JANUARY 2026
ORAL JUDGMENT:
1. This Petition is filed under Articles 226 and 227 of the Constitution of
India, challenging the judgment and decree dated 30/09/2002 passed by the
Appellate Bench of Small Causes Court, Mumbai in Appeal No. 93 of 2001.
By the said judgment and decree, the Appeal filed by the Original
Defendants/Tenants was allowed, thereby setting aside the judgment and
decree of eviction passed by the Small Causes Court, Mumbai dated 20-
23/02/2001 passed in R.A.E. Suit No. 5677 of 1982. By the impugned order
the suit was dismissed. In effect the eviction decree passed by the Trial
Court, has been reserved in appeal and the suit filed by the landlords is
dismissed.
2. Few facts necessary for disposal of this Petition are as under.
2.1. The landlord/original Plaintiff Mr. Trubhuvan Tulsiram filed the
said suit against original Defendant/Tenant-Henry Pereira. The suit
was filed seeking eviction of the tenant from one room admeasuring
10' x 14' on the first floor of building situated at 99-A, Bazaar Road,
Bandra, Bombay-400050, which is the suit premises. The monthly rent
was Rs.35/-. The Suit was filed on the ground of personal and
bonafide requirement as contemplated u/s. 13(1)(g) of the The
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
('Bombay Rent Act' for short).
2.2. The Landlord contended that he has 4 sons and 3 daughters,
out of which 2 sons are married with their wives and other 2 sons are
3.WP.1873.2004 (OJ) C.doc
college going, who will eventually get married. That one daughter is
divorcee. That they all reside together in only one room in his
possession which is insufficient.
2.3. During pendency of the suit, the plaint was amended and the
requirement pleaded for occupation of family members of the landlord
was explained with better particulars. It was contended that landlord
has 10 family members residing in 194 sq. ft area room. That only
wife of tenant is occupying the suit premises.
2.4. Defendant/tenant filed written statement contending inter alia
that Plaintiff is doing plumbing business having employees. That all
family members of landlord do not reside in one room. That apart
from one room on first floor, the landlord has 700 sq ft additional area
in his possession. Requirement is disputed. During pendency of the
suit, the Defendant/Tenant died and his legal heirs were brought on
record.
2.5. The Trial Court on appreciation of evidence decreed the suit
holding that the landlord has proved the bonafide requirement and
also the issue of comparative hardship in favor of the landlord. The
Trial Court ordered the tenants to hand over vacant and peaceful
possession.
2.6. The legal heirs of the Defendant/Tenant filed said Appeal
challenging the decree of eviction, which has been allowed by the
impugned judgment and decree.
2.7. It is in these circumstances that the landlord filed the present Writ
Petition challenging the dismissal of the suit. During the pendency of
3.WP.1873.2004 (OJ) C.doc
the Petition, the landlord expired and the wife of the Original Tenant -
Mrs. Martha also expired and their respective legal heirs are brought
on record.
3. The learned Counsel for the Petitioners submitted that the Appellate
Court has reversed the findings on the ground of bonafide requirement as
well as comparative hardship, mainly on the ground that two rooms on the
terrace of the suit building are not disclosed by the landlords and this
amounts to suppression. She submitted that the alleged rooms on the terrace
are not actually rooms and the evidence on record shows that they are
temporary sheds which are open from all sides and as such there is no
material suppression because sheds cannot be said to be premises available
with the Petitioners for residence. She submitted that pleadings in the
amended plaint as well as the evidence on record clearly establishes that the
requirement as pleaded was proved, however, the same has not been
considered by the Appellate Court. She submitted that despite holding
against the landlords on the ground requirement, the Appeal Court has
proceeded to consider the aspect of comparative hardship, which was not
the requirement under law. She submitted that many times, alternative
premises were offered to Respondents and even amount for old-age home
expenses were offered to wife of tenant but, none of the offers were
accepted. She relied upon the judgment of Narayan Dawal Patil vs. Mohmad
Asgar Mohmad Hanif [(1989) Mah. R.C.J. 290] in support of her submission
that the comparative hardship as contemplated u/s. 13(2) of the Bombay
Rent Act does not mean that the landlord should continue to live in inhuman
conditions only because the tenant may suffer a decree of eviction. She also
relied upon the judgment of C. C. YI (Dr.) Medical Practitioner, Bhiwandi vs.
Smt. Janakidevi Anantlal Gupta & Ors. [2001 (4) Mh.L.J. 114] in support of
3.WP.1873.2004 (OJ) C.doc
her submission that the terrace of the house is being used to satisfy
additional requirement of the landlord by erecting a shed on account of
space-crunch faced by the landlord. That it is nothing but a make-shift
arrangement and similar arrangement was considered by this Court in the
said judgment, holding in favor of the landlord.
4. On the other hand, learned Counsel for the Respondents/Tenants
submitted that area of about 700sq.ft in the form of an enclosed terrace was
not disclosed by the Plaintiffs/ landlords and it amounts to suppression. He
submitted that no notice is issued to that structure and therefore the same
can not be considered as unauthorised. He submitted that the landlord's
witnesses has stated in the evidence that he was paying money to the
Municipal Corporation officer to protect the structure and in such
circumstances it has to be held that the landlord has not come before the
Court with clean hands. He further submitted that the landlord has simply
stated in his evidence that there are 10 members in his family. However, the
number of family members is not supported by any documentary evidence
such as as Ration Card or electoral role and therefore considering the
evidence it is far-fetched to accept that as many as 10 members of the
landlord's family are residing in one room. He submitted that so far as the
premises which was allegedly offered by the landlord to the tenant, they
were at far away places such as Bhayandar and Gorai/Borivali and as such,
it cannot be said that they were suitable for the tenants. He further
submitted that if the evidence on record is considered the the overall the
financial capacity of the landlords is far better then the financial capacity of
the tenants and currently the suit premises is occupied by daughter of the
tenant - Ms. Janet Patel. He submitted that the Appeal Court has considered
the evidence on record, especially the suppression of the additional available
3.WP.1873.2004 (OJ) C.doc
area available as well as the aspect of comparative hardship in proper
perspective and therefore no interference is required in writ jurisdiction.
5. I have considered the rival submissions and perused the record.
6. At the outset, it is necessary to note that admittedly the suit building
is a ground plus one structure along with a terrace. It appears from the
record that there are two rooms on the ground floor and two rooms on the
first floor, out of which one room on the first floor is in the possession of the
landlord and adjoining room on the first floor is the suit premises in the
possession of the tenants. The Plaintiff/landlord - Mr. Tribhuvan (PW1) by
entering into the witness box has clearly denied that the premises in his
possession are more than 700 square feet, as alleged by the Defendants. He
has stated that he erected temporary shed on the terrace in the year 1986
and further stated that the said shed is about 300 sq.ft. A notice u/s. 351 of
the Bombay Municipal Corporation Act (as it was at the relevant time) dated
16/05/1986 issued to the plaintiff/landlord has come on record at Exh.
about construction of the shed on the terrace. The assessment record of the
Municipal Corporation at Exh-Y indicates that the terrace floor is shown as
an AC shade erected with a steel pipe 'open from all sides'. Considering this
evidence, it is clear that the alleged additional area available with the
landlord is a shed which is open from all sides and as such it cannot be said
as rooms available to the landlord. If a given landlord in a city like Mumbai
is forced to use the terrace for accommodating ever increasing family, then
non-disclosure of such terrace area cannot be held as material suppression.
In this respect, the judgment of C. C. YI (Dr.) Medical Practitioner, Bhiwandi
(supra) clearly supports the case of the Petitioners/landlords where this
Court has held that the very purpose of the terrace and its use has been lost
3.WP.1873.2004 (OJ) C.doc
to the landlord and had it not been for the requirement, the landlord would
not have erected the shed and converted the terrace in a make-shift room.
This Court has already taken notice of the fact of the no landlord would like
to lose the beneficial enjoyment of terrace unless he is compelled to do so. I
find that similar view is necessary to be taken in the present matter.
7. So far as the aspect of requirement pleaded by the landlord is
concerned, the Plaintiff/landlord has entered the witness box and stated in
detail the size of his family.
8. I have perused the cross-examination of the witnesses examined on
behalf of Tenant. D.W.-1-Martha Pareira has admitted in cross-examination
that sons of the landlord are residing with him. She has admitted that the
daughter-Lalita of the landlord is married and residing with Plaintiff. She
admitted that the landlord's daughter-Saroj is a widow and she is also
residing with the landlord. D.W.-2-Earnest Pareira also admitted in the cross-
examination that Plaintiff's widow and daughter-Saroj are staying with
Plaintiff and Plaintiff's daughter-Sarita who is unmarried is also residing
with Plaintiff. D.W.-3-Ms. Janet Patel has admitted in cross-examination that
Plaintiff has two daughters and two sons who are residing in the suit
premises. She further admitted that wife of Plaintiff's son-Ashok and son-
Kailash are partly residing in the suit premises. She admitted that two
grandchildren are residing in the suit premises. She further admitted that
unmarried son-Prakash of Plaintiff is also residing with the family of the
Plaintiff. She has also admitted that the landlord's daughter Saroj is residing
with Plaintiff.
9. In the teeth of these admissions, it can not be contended that the
landlord has not produced ration card or other documents in support of the
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size of the family. These admissions are sufficient to hold that the plaintiff
has a large family who requires the suit premises for their accommodation.
10. Turning to the aspect of comparative hardship, this is a peculiar case
where as many as three times, first in February 1987, then in September
1992 and then in April 1995, flats at Bhayandar and Borivali were offered to
the tenant. Not only flats were offered, however, a lump sum amount of
Rs.1,50,000/- was offered by the landlord to meet the expenses of the
tenant's wife Martha at an old age home. Nothing is brought to the notice of
the Court, even remotely indicating that any of these offers were accepted.
In fact, the case of the Respondents/tenants is that the flats were offered at a
far away places and the tenant's wife could not accept it as she was also
suffering from heart ailment. Once again, nothing is brought to the notice of
the Court in support of the alleged medical condition of the tenant's wife.
11. A tenant who was offered alternate premises, stands at an
advantageous position, despite his own lack of effort to find one. The
landlord not just orally, but in the present case, has issued three letters
offering flats at Bhayandar and Borivali. If the tenant does not accept such
advantageous position and insists that offered premises are not suitable and
insists to continue to in the suit premises, then these circumstances will go
against the tenant so far as the aspect of comparative hardship is concerned.
12. Earlier tenant's wife Martha was alive, who was in possession of the
suit premises. As of now, according to learned counsel for the
Respondents/Tenants, only tenant's daughter - Ms. Janet Patel is staying in
the suit premises.
13. This daughter of the tenant is examined as D.W.-3, who has admitted
3.WP.1873.2004 (OJ) C.doc
in the cross-examination that her husband resides in his parents' house,
which is at a distance of 2 minutes walk from the suit premises. She has
admitted that her parents-in-law are not alive. She has admitted that the
rent receipt of that premises stands in the name of father-in-law and her
husband was residing with his parents at the time of death. She has
admitted that the said premises is a one-room kitchen situated on the
ground floor. She has admitted that her brother is staying on leave and
license premises whose name is Earnest. In the teeth of these admissions,
there is no explanation why the daughter of the tenant, having premises of
husband available at a two minutes walking distance from the suit premises,
is occupying the suit premises. The only reason that can be seen is to hold on
to the suit premises and nothing else.
14. In the above facts and circumstances, the appreciation of evidence by
the Appellate Bench about alleged suppression of premises as well as
comparative hardship is perverse. If the finding of the Appellate Court is
allowed to stand, it would amount to miscarriage of justice. Therefore,
interference is necessary in writ jurisdiction.
15. Since the suit is filed way back in 1982 and about 44 years have
already passed, there is no question of remanding the matter to the
Appellate Court, as it would amount to giving unnecessary lease of life to the
litigation. Considering the same, I have gone through the judgment of the
Trial Court, which has considered the evidence on record in detail and has
come to the conclusion that the requirement as pleaded is proved and
comparative hardship lies in favor of the landlord. In my view the
appreciation of the evidence by the Trial Court is in tune with the evidence
on record and settled legal principles.
3.WP.1873.2004 (OJ) C.doc
16. As a result, the Petition succeeds. The impugned judgment and decree
dated 30/09/2002 in Appeal No. 93 of 2001 is quashed and set aside,
thereby dismissing the said appeal, thereby confirming the judgment and
decree of eviction passed by the Trial Court in RAE Suit No. 5677 of 1982.
Respondents are directed to hand over vacant and peaceful possession of the
suit premises to the Petitioners.
17. The petition is accordingly allowed. Rule is made absolute in above
terms. In view of the disposal of the Writ Petition, pending interim
application is also disposed of in above terms.
18. At this stage, learned Counsel for the Respondents make a request for
a grant of time to vacate the suit premises. Subject to the Respondents filing
an affidavit of undertaking in this Court, within two weeks from today,
stating that they are in exclusive possession of the suit premises and they
shall not part with the possession of the suit premises and they will hand
over the possession to Petitioners/landlords within eight weeks from today,
time of eight weeks is granted to vacate the premises.
19. All concerned to act on duly authenticated or digitally signed copy of
this order.
(M. M. SATHAYE, J.)
