Smt.Sarla Ramniklal Mehta (Since ... vs Shri. Dhanrajkumar Daulatchand And Ors
2026 Latest Caselaw 981 Bom

Bombay High Court

Smt.Sarla Ramniklal Mehta (Since ... vs Shri. Dhanrajkumar Daulatchand And Ors on 29 January, 2026

2026:BHC-AS:4778


                                                                   WP 4051-1996 C3.doc



                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                          WRIT PETITION NO. 4051 OF 1996
                                                       WITH
                                        CIVIL APPLICATION NO. 1729 OF 2017

                   1.Smt. Sarla Ramniklal Mehta, (since deceased)
                   through Legal heirs
SNEHA
NITIN              2. Motisagar Tawakley,(since deceased) through
CHAVAN             Legal heirs
Digitally signed
by SNEHA NITIN
                   3. Mrs. Preeti Somy Saran,
CHAVAN
Date: 2026.01.30
17:56:09 +0530
                   4.Mrs. Niti Uday Chandra,
                   5. Miss Namita Motisagar, all of
                   residing Bombay, Indian inhabitants
                   residing at Room No.5, 2nd floor, Anil Niwas,
                                                                         ...Petitioners
                   148, Walkeshwar Road, Bombay-400006
                               Versus
                   1. Dhanrajkumar Daulatchand
                   2. Sheth Vijaysinh Chandrakumar,
                   3. Sheth Sumatilal Bhogilal,
                   4. Surendrakumar Vijaykumar,

                   being the trustees for the time being of Sheth
                   Amichand Pannalal Adishwar Jain Temple
                   Charitable Trust, a trust registered under the
                   Bombay Public Trusts Act, 1950 having its
                   registered Office at 41, Ridge Road, Bombay-400
                   006. (Respondent Nos. 1 to 4 since deceased)
                   through other Trustees.

                   5. His Honour Judge Shri. R.R. Gandhi,
                   Additional Chief Judge, Small Causes Court at
                   Bombay.

                   6. His Hon'ble Judge Shri. N.P. Dalvi, Addl. Chief
                   Judge, Small Causes Court at Bombay, both
                   Respondent Nos. 5 & 6 having their office at
                   Small Causes Court, Bombay.                           ...Respondents

                                                      WITH
                                       INTERIM APPLICATION NO. 336 OF 2025
                                                       IN


                   Sneha Chavan                                                          1


                     ::: Uploaded on - 30/01/2026                ::: Downloaded on - 30/01/2026 22:18:19 :::
                                                   WP 4051-1996 C3.doc



                        WRIT PETITION NO. 4051 OF 1996

Virendrabhai Popatlal Shah                              ...Applicant

IN THE MATTER BETWEEN
1.Smt. Sarla Ramniklal Mehta (deleted since
deceased) through Her legal heirs and Ors.              ...Petitioners
           Versus
Dhanrajkumar Daulatchand (deleted since                 ...Respondents
deceased) through his legal heirs and Ors.

                                  ****
Mr. Nikhil Sakhardande, Senior Advocate a/w Ms. Shubhra Swamy, Mr.
Ativ Patel, Ms. Viloma Shah, Mr. Viraj Raiyani and Mr. Harshad Vyas i/b
M/s. AVP Parnters for the Original Petitioners.

Mr. Prashant Karande a/w Mr. Sudam Patil, Mr. Praful Pawar i/b
Madhusudan Gawde for Respondent Nos. 2, 4 & 7 to 10.

                                     ****

                                    CORAM :    M.M. SATHAYE, J.
                               RESERVED ON :   15th OCTOBER, 2025
                            PRONOUNCED ON :    29th JANUARY, 2026

JUDGMENT :

1. The Petitioners/legal heirs of Tenant are challenging the impugned judgment and decree dated 15.06.1996 passed by the Appellate Bench of Small Causes Court at Mumbai in Appeal No. 238 of 1995. By the impugned Judgment and Decree, the said appeal filed by the Respondents/landlords is allowed, thereby setting aside the Judgment and Decree dated 24.03.1995 passed by a Small Causes Court at Mumbai in R.A.E. Suit No. 274/1060 of 1980. The Trial Court had dismissed the suit, thereby refusing to grant eviction order. The Appeal Court has granted decree of eviction.

2. Room No. 5 on the 2nd floor of a building known as 'Anil

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Niwas' situated at 1/33 Walkeshwar Road, Mumbai-400 006 is the 'suit premises'. The monthly rent of suit premises is Rs.173.79 ps. Apparently, there is some dispute about exact area (sq.ft) of the suit premises. According to amended written statement of the Petitioners it is 3400 sq. ft. According to Respondents' witness, it is about 1500 to 1600 sq ft. Therefore, the area is in possession of the present Petitioners on the 2nd floor is the suit premises.

3. The Respondents/Plaintiffs filed the said suit under the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter will be referred as 'Bombay Rent Act'). Suit is filed contending inter alia that one Mr. Ramniklal Mehta was original tenant, who expired and leaving behind his wife and a daughter, who were original defendants. The case of the plaintiffs in short is that tenancy of the Defendants was duly terminated. That suit notice was duly served, which is replied. The plaintiffs are Public Charitable Trust registered under Bombay Public Trust Act and they require the suit premises for the purpose of the trust. That the Plaintiffs owned a temple and other properties. The Plaintiffs' temple is a very old temple in the vicinity and attracts about 5,000 devotees every day including foreign visitors. The temple is declared as tourist centre by the Government. There are 50,000 to 60,000 Jains residing in the area and several functions are held every year. Therefore, it is necessary to construct kitchen and dining hall to accommodate devotees. Halls are required to be constructed for giving discussions/discourses, library is also required to be constructed. The plaintiffs therefore require suit premises reasonably and bonafidely. It is specifically pleaded that with a view to mitigate the hardship, the Plaintiffs are prepared to provide a flat of about 500 sq. ft to the Defendants.

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4. The Petitioners/Defendants filed written statement and additional written statement contending inter alia that they are not aware whether the charitable trust is registered and put the plaintiffs to proof of being trustees. The averments about temple being old or declared as tourist centre is denied. Case of thousands of visitors and thousands of jains residing in the vicinity/locality is denied. The requirement as pleaded is denied. It is contented that plaintiffs have secured vacant possession from another tenant few years ago and plaintiffs have also kept one room vacant and locked. It is contented that suit is filed to force the defendants to vacate the suit premises to make unlawful gains. It is contented that a big garage on the ground floor is also in possession of the Plaintiffs. It is contented that suit premises is about 3,400 sq. ft. which is not sufficient to accommodate all the defendants and their family members. The case of plaintiffs offering a flat is denied.

5. The Plaintiffs examined Mr. H. M. Shah as PW-1, the Trustee, Mr. B.C. Patrawalla as PW-2, who is an Architect. The defendants examined Mr. Moti Sagar as DW-1, who is son-in-law of original tenant (Husband of Defemdant No. 2 Angela), Smt. Priti S. Sagar as DW-2 and Mr. Kumudchandra Mehta as DW-3, an Architect and Consulting Engineer, in support of their case.

6. The learned Trial Judge framed issues in respect of requirement and greater hardship and has also framed issues regarding plaint being properly signed and verified and whether the plaintiffs are validly appointed trustees of the Trust. The Trial Court on appreciation of evidence held that the plaint has been properly signed and verified and the Plaintiffs proved that they are validly appointed trustees. However, it is held by the Trial Judge that the ground of requirement

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and comparative hardship are not proved and therefore suit came to be dismissed.

7. The Plaintiffs filed the said appeal challenging the dismissal of suit. The Appeal Court though framed point nos. 3 & 4 about proper signing and verification of the plaint and maintainability of the suit and Plaintiffs being validly appointed trustees, the said points were not pressed and therefore, the Appeal Court proceeded to consider the matter on merits on the ground of requirement and comparative hardship. The Appeal Court also held that the suit is maintainable in respect of part of premises demised to the deceased tenant. The Appeal Court on re-appreciation of evidence found that the ground of requirement is made out by the plaintiffs/landlord and the hardship tilts in favour of the landlords and therefore, allowed the appeal thereby decreeing the suit.

SUBMISSIONS

8. Learned Senior Advocate Mr. Sakhardande appearing for the Petitioners/tenants submitted as follows:

8.1. That 6 trustees had filed suit and the trust deed indicates requirement of minimum 5 to maximum 7 Trustees. That appeal is filed by 4 trustees (less than 5) and therefore, is not maintainable.

8.2 That plaintiff is a Public Religious Trust and not Charitable Trust and therefore, the second part of Section 13(1)(g) of the Bombay Rent Act cannot be applied and the aspect of 'reasonable and bonafide' requirement will have to be considered. He invited the Court's attention to various clauses in the Trust Deed in support of his submission. He submitted that distinction will have to drawn between Public Charitable Trust and Public Religious Trust and relied on Section 4(2) of the

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Bombay Rent Act to contend that even the legislature looks at Charitable Trust and Religious Trust differently. He submitted that the Appeal Court has wrongly applied the second part of Section 13(1)(g) considering the object of the Trust. He submitted that Bombay Rent Act, being welfare legislation, the exemption has to be read strictly. He submitted that Public Religious Trust cannot be equated with ordinary landlord.

8.3. Relying on Section 25 of the Bombay Rent Act, he submitted that the conversion of residential premises into non residential is prohibited and therefore the plaintiffs/Trust cannot show reasonableness and bonafide intention by saying that they want a residential premises for use of construction of kitchen, hall for discourses/discussions, library etc.

8.4 He submitted that other premises available with the landlord ought to be considered while concluding about requirement. He submitted that the pleadings were not sufficient to grant decree on requirement.

8.5 He submitted that the Civil Application No. 1729 of 2017 is pending for bringing on record certain subsequent events which has bearing on the issue at hand. Inviting the court's attention to averments in the Civil Application, he submitted that Respondent trust has various premises available with them and the Petitioners have no other premises available and Petitioners have been harassed by the Respondents. He submitted that in view of the subsequent developments, the aspect of requirement as well as comparative hardship requires reconsideration and the matter be remanded for that purpose. He relied upon following Judgments.

(i) Atmaram Ranchhodbhai v/s. Gulamhusein Gulam Mohiyaddin and

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another [1972 SCC OnLine Guj 10 ]

(ii) Shri Cutchi Visa Oswal Derawasi Jain Pathshala, through its Chairman Virchand Koonverji Korani v/s. Shri Cutchi Visha Oswal Derawasi Jain Mahajan, through its Chairman, Popatlal Bharmal Sah & another [ 2004 SCC OnLine Bom 823]

(iii) Nagar Wachan Mandir, Pandharpur v/s. Akbaralli Abdulhusen and Sons and others [ 1994 Mh.L.J. 280 ]

(iv) Shastri Sadhu Anandpriyadasji Guru Shri Mukta- Jivandasji And Anr. v/s. Patel Atmaram Revandas And Ors. [ (1973) Gujrat Law Reporter Vol. XIV 917 ]

(v) K.H. Nazar v/s. Mathew K. Jacob And Others [ (2020 ) 14 Supreme Court Cases 126 ]

(vi) Baba Kashinath Bhinge v/s. Samast Lingayat Gavali And Others [1994 Supp (3) SCC 698]

(vii) Bapubhai Mohanbhai v/s. Mahila Sahakari Udyog Mandir [(1975) 2 SCC 492]

(viii) Nathuram Laxman Fursutkar v/s. Dinanath Pandurang Kadu and Ors. [2020 SCC OnLine Bom 2796]

(ix) Manisha Mahendra Gala And Others v/s. Shalini Bhagwan Avatramani and Ors. [(2024) 6 SCC 130 ]

(x) M. Chinnasamy v/s. K. C. Palanisamy and others [(2004) 6

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Supreme Court Cases 341]

(xi) Sheshambal (Dead) Through LRs. v/s. Chelur Corporation Chelur Building And Others [(2010 ) 3 Supreme Court Cases 470]

9. On the other hand, learned counsel Mr. Karande learned counsel for the Respondent/Plaintiffs submitted as under.

9.1. That pleadings on record clearly establish that Plaintiff/Trust is a Public Charitable Trust. He submitted that the argument about appeal being filed by less than minimum number of trustees is not argued before Trial Court or Appeal Court and the same is being advanced for the first time in this Court under Writ jurisdiction.

9.2. That by amending the plaint and adding paragraph number 4A, the Plaintiffs have provided necessary particulars of the requirements. He submitted that being Public Charitable Trust, the aspect of reasonableness and bonafide is not required to be seen under Section 13(1)(g) of the Bombay Rent Act, second part. He submitted that Plaintiffs' witness has stated about the area in occupation of the Defendants as well as the use of ground floor premises available with trust by jain sadhvis during religious days and the number of such sadhvis may go upto 20. He submitted that therefore, the use and occupation of ground floor premises is already explained. He submitted that the pleadings are supported by evidence led by their witnesses.

9.3. He submitted that the Appeal Court has rightly considered that there is no variance in the pleading and evidence. He submitted that there is no reason to disbelieve the requirement pleaded by the Plaintiffs. He submitted that scheme of the Plaintiff/Trust is produced at 'Exhibit-G' which clearly indicates both religious and charitable purpose

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and therefore, the requirement pleaded is not contrary to object /purpose of the trust.

9.4. He submitted that landlord-Trust is the best judge of its requirement and whether it can construct additional floors is something that the tenant cannot dictate. He submitted that Defendant No. 1 has not come forward to give evidence. That Defendant No. 2A Mr. Moti Sagar who claims that he was getting less income from producing TV serial and documentary, has not brought any passbook or other cogent evidence to show his income. He submitted that the true account of income source as well as assets are not brought before the Court. Witness of the Tenant has not stated anything about steps taken for finding alternative premises. Therefore, the aspect of hardship is rightly considered by the Appeal Court.

9.5. He submitted that Plaintiff/Trust had shown willingness to provide a flat to the Petitioners/Tenants in a new building which will be about 750 to 800 square feet for mitigation of hardship. However, the offer was not accepted. He submitted that the argument about distinction between religious and charitable trust is not pleaded in the written statement nor any issue was framed regarding such contention at Trial Court or Appellate stage and therefore it cannot be considered for the first time in Writ jurisdiction. He further submitted that the bar under section 25 about conversion of residential into non residential purpose is also an argument not advanced before the Trial Court or Appeal Court.

9.6. He submitted that aspect of plaint being signed properly and whether plaintiffs are validly appointed trustees was not pressed by the Petitioners and therefore, they cannot re-agitate the issue in Writ petition.

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9.7. He submitted that the civil application for additional evidence is nothing but an effort to prolong the litigation and the same deserves to be dismissed. He prayed for dismissal of the Writ petition. He relied upon the following judgments:

(i) Ramniklal Pitambardas Mehta vs. Indradaman Amratlal Sheth [AIR (1964) SC 1676]

(ii) M/s Bora Brothers vs. Parshavanath Digambar Jain & Ors. [2002 (2) ALL MR 570]

(iii) S. R. Babu vs. T. K. Vasudevan & Ors. [2001 (4) ALL. MR. 536].

(iv) Raghunath G. Panhale (Dead) By Lrs. vs. Chaganlal Sundarji & Co.

[2000 Bom. R.C. 143]

(v) Prativa Devi (Smt) vs. T. V. Krishnan [(1996) 5 SCC 353]

(vi) Orissa State Financial Corporation and Another vs. Hotel Jogendra [(1996) 5 SCC 357]

(vii) Meenal Eknath Kshirsagar (Mrs.) vs. Traders & Agencies & Another [(1996) 5 SCC 344]

(viii) Maganlal Bhimji Jethabhai & Others vs. Chhaganmal Chaturbhuj & Another [(1987) Mah.R.C.J. 130]

(ix) Shri Noshir Jehangir Postwalla vs Shri Keki Rattanji Postwalla [2000 (4) ALL MR 637]

(x) Nana Narayan Kamble vs. Kashiparasad Nitanma Prasad alias Jahamba Prasad Dube [350 Bom. R. C. 1987]

(xi) Smt. Sulochanabai Kashinath Gujar vs. Smt. Krishnabai Dhaniram Ugvekar & Ors. [2001 (4) ALL MR 45]

REASONS AND CONCLUSIONS

10. I have considered the rival submissions and perused the record.

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11. The first argument advanced on behalf of the Petitioners is about four trustees filing the Appeal and therefore, the Appeal being not maintainable. In this respect, it is material to note that the Trial Court had framed specific issue No. 2A as "Do the Defendants prove that plaint has not been properly signed and verified and therefore, the suit is not maintainable?" On appreciation of evidence, the Trial Court held that the Petitioners/Defendants/Tenants did not prove said issue. This finding of the Trial Court was not challenged by the Petitioners/Defendants and it is only the Respondents/landlord/ Plaintiffs who went in appeal. Therefore, the findings about the maintainability of suit has been accepted by the Petitioners. In appeal, the Petitioners did not press the point nos. 3 & 4 about proper signing and verification of the plaint and maintainability and Plaintiffs being validly appointed trustees. Therefore it is obvious that the Petitioners/Tenants have not agitated this aspect before the Appeal Court. For this reason, the Petitioners are not at liberty to re-agitate the said issue. Therefore, the Judgments of Atmaram Ranchhodbhai (supra), Shri Cutchi Visa Oswal (supra) and Nagar Wachan Mandir (supra) relied upon in support thereof, will not advance the case of the Petitioners.

12. The next argument advanced on behalf of the Petitioners/Tenants is that the Respondents/landlords is a public religious trust and not a public charitable trust and therefore the second part of Section 13(1)(g) cannot be applied and the aspect of 'reasonable and bonafide' will have to be considered. It is argued that distinction between 'religious' and 'charitable' will have to be drawn. Firstly, in the written statement no such distinction is sought to be drawn. The Trial Court after considering the purpose of the Trust being both religious as

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well as charitable has considered the evidence on record. In the Judgment of Shastri Sadhu Anandpriyadasji (supra) relied upon by the Petitioner themselves, it is held by the Division Bench of the Gujarat High Court that it is not open to the Trustees of mixed Trust where some objects are religious and some objects are charitable to maintain suit for possession under 13(1)(g)(2nd part) where Trusts seek possession 'for religious purpose' and the only meaning that can be attributed the words 'for the purpose of trust' is for the charitable purpose. Therefore, even if the purpose of trust is mixed, if the Respondent/Trust is seeking eviction on the ground of 'requirement for charitable purpose' then the suit is very well maintainable.

13. The Appellate Court has considered the scheme of the Trust at 'Exhibit-G' and has found the charitable purpose included in the scheme. Learned Counsel for the Respondent/landlord Trust has taken this Court through various recital in the constitution of the Trust, which indicates that the name of the trust itself is said Amichand Pannalal Adishwar Temple 'Charitable Trust'. Apart from being a trust for advancement and various activities relating to Jain religion, the Constitution also provides for residence of priests and 'charitable purposes for the benefit of Jains'. It also provides for keeping the collection boxes in the temple for 'charitable purposes' and also permits the utilization of income of the trust properties for 'charitable purposes'. Clauses 2, 7, 16 and 18(c) of the trust-constitution can be usefully seen.

14. In that view of the matter, it cannot be said that the Respondent-trust is only religious trust and therefore first part of section 13(1)(g) of the Bombay Rent Act must apply. In fact, since the purpose of Respondent-trust is also charitable, the second part of section 13(1)

(g) of the Bombay Rent Act is applicable. Therefore, what is important

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to be seen is whether the pleaded requirement is for 'purpose of trust'.

15. The Appeal Court has considered occupation of various areas on the ground floor and first floor of the suit building. The Appeal Court has also considered the requirement pleaded for accommodating sadhus, sadhvis, for construction of kitchen and bhojan shala for providing food to the devotees, for use as lecture hall etc. and held it as for the purpose of the trust.

16. The case of the Respondents/Plaintiffs as can be seen from Para 4A of the plaint, is that the temple of the trust is an old temple which is declared as tourist centre and daily thousands of devotees visit including foreign visitors and several functions are held every year and it is necessary to construct kitchen, dining hall to accommodate thousands of persons and halls are to be constructed for giving discussions and library is to be constructed for spreading the message of Jain religion. Having considered the pleadings and evidence, no fault can be found with the manner in which the Appeal Court has considered the requirement.

17. The argument about Section 4(2) of the Bombay Rent Act is that the Legislature intends to make distinction between charitable nature and religious nature. This argument has no merits, in as much as, it is nobody's case that the premises of the Respondent-Trust is exempted. Said Section 4(2) has not been even referred or relied upon anywhere in the written statement or in the arguments before the Courts below. So also, no direction of the State Government, was ever pointed out or argued before the Courts below. In that view of the matter, the judgment of K.H.Nazar (supra) will not advance the case of the Petitioner.

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18. Reliance is placed on Section 25 of the Bombay Rent Act about prohibition against conversion of residential into non-residential premises. Since it is held that charitable purpose exists, this argument about requirement being 'reasonable and bonafide' will have no consequence. Once again it is noted that this argument was not advanced before the Courts below and is not found anywhere in the written statement. The same being taken for the first time in the Writ Petition, can not be considered in the peculiar facts of this case. For this reason, the Judgment of Bapubhai Mohanbhai (supra) and Nathuram Laxman Fursutkar (supra) will not help the Petitioner. In any case, the requirement pleaded includes construction of kitchen and dining hall which cannot be said to be a non-residential purpose and therefore, even on facts, this argument has no merit.

19. The Judgment of M. Chinnasamy (supra) relied upon by the Petitioner was in respect of recounting of votes arising out of election matter. The present case is not even remotely connected with an election issue. In the said Judgment, Hon'ble Supreme Court held that material facts and particulars must be pleaded and evidence at variance with pleading is neither admissible nor permissible. In the present case, both the pleadings as well as evidence are found sufficient to support the case of requirement. It is considered by the Appeal Court and it is held that there is no variance. As such, the said Judgment will not advance the case of the Petitioner.

20. The Judgment of Manisha Mahendra Gala (supra) is relied upon by the Petitioner, in support of the submission that the principle of liberal interpretation of the pleading does not mean that even if a party fails to plead essential legal requirement, same can be implied as pleaded. There is no dispute about this proposition of law. The fact

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which is not specifically pleaded cannot be proved by evidence. However, in the present case, the pleadings as well as the evidence have been found sufficient to support the case of requirement for the purpose of the Trust. As such said judgment will not help the Petitioners.

21. Now let us consider Civil Application No. 1729 of 2017 filed by the Petitioners for bringing on record subsequent events, which are urged to be considered for both issues of requirement as well as comparative hardship.

22. In the said Civil Application, the Petitioners have broadly contended three things. Firstly, it is about alleged availability of premises with the Respondent/landlord. The Petitioners have given a list of properties allegedly available with the Respondent/landlord trust or transferred. Second aspect is about non-availability of alternate accommodation with the Petitioners. Thirdly, it is about the alleged harassment of the Petitioners by Respondent/landlord.

23. The Respondents have filed an affidavit in reply to this Application, contending, inter alia, that the Petitioners cannot be permitted to amend the Petition or lead any additional evidence after a lapse of 24 years from the date of leading evidence. That the Petitioners are trying to introduce a new case under the guise of amendment. That the Petitioners have failed to establish that such evidence was not within their knowledge despite the exercise of due diligence and the same could not be produced at the time of Trial or Appeal. That Petitioners have not explained as to when and how they learnt about the alleged new facts. That the Respondents cannot be compelled to meet new case under Article 227 of the Constitution of India as various disputed questions of fact are involved. That the alleged transfer of

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some of the commercial premises are of very small area compared to the area in possession of the Petitioners and therefore not comparable. The Respondents have categorically denied that any premises are lying vacant. It is contended that re-appreciation of evidence is not permissible under Article 227 of the Constitution of India.

24. Firstly, the averment about harassment to the Petitioners is about alleged threatening calls received by the Petitioners at the instance of the Respondent/landlord in the year 2000-2001. The Application itself states that complaint was filed with the Joint Commissioner of Police of which its copy is produced. In writ jurisdiction, such blanket allegations about threats being given at the instance of Respondents cannot be considered. Petitioners have already taken up the issue with appropriate police authority. The other form of harassment alleged is disruption of water connection and blocking of parking area leading to various police complaints and correspondence with the concerned Assistant Engineer about water connection. From the complaints and communications produced on record it is seen that the alleged harassment is of the year 2001, 2011 or 2014 or 2015. There is no explanation why the Petitioners waited till July 2017 to contend that this has to be considered as additional evidence. It is clear from the Application that necessary complaints and communications have already been made with concerned authorities, including an order from the Court about injunction against the Respondent/landlord for obstructing the parking. Therefore, the case of the Applicants/Petitioners for additional evidence suffers from delay and it is not established that despite due diligence the said additional evidence could not be brought on record.

25. So far as alleged availability of premises with

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Respondent/landlord is concerned, details are given as if the Petitioners are filing a suit. The Application is opposed by the Respondent/trust by contending that the application is filed after lapse of 24 years from the date of leading evidence and Respondents can not be made to face a new trial in writ petition. The Applicants have failed to establish that such evidence was not within their knowledge despite exercise of due diligence. The Petitioners have not explained as to when and how they learned about the alleged new facts. Therefore the Respondent/trust cannot be compelled to meet a new case in Writ Petition under Article 227 of the Constitution of India. When so called availability of other premises was not part of the evidence in the Courts below, it cannot be considered in writ jurisdiction for the first time.

26. In any case, the Respondent/landlord is the best judge of his requirement as held in S. R. Babu (supra), Prativa Devi (supra) and Smt Meenal Eknath Kshirsagar (supra). Requirement is something between a mere desire or wish and a compelling and dire necessity, as held in Raghunath G. Panhale (Dead) By Lrs. (supra).

27. So far as the aspect of non-availability of alternate accommodation to the Petitioners is concerned, it is the case of the Petitioners that the Petitioner no. 3 was only a caretaker in respect of a flat in building by name White House. The Petitioners have produced consent terms in respect of the said White House flat contending that it belonged to one Patel India Pvt Ltd which was let out to the maternal cousin of Petitioner No. 3 - one Mr. Dinnag Mehta and Mainak Mehta. It is contended that said landlord Patel India Pvt. Ltd. filed suit against said maternal cousins for eviction and it has resulted in decree of eviction by consent. It is contended that said maternal cousins are permanently settled in USA. It is contended that Petitioner No. 3 being

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elder sister has been authorized as Power of Attorney to sign the consent terms. It is contended that said Patel India Pvt. Ltd. has paid the amount in favor of said maternal cousins and no monetary consideration is claimed or received by Petitioner No.3. On these averments, it is sought to be contended that the White House premises is not available to the Petitioner No. 3.

28. In this respect, it is necessary to note that Petitioner No. 3 was confronted with the copies of ration card made by Petitioner No. 3 at the White House premises. The stand taken by Petitioner No. 3 was that the ration card was prepared at the instance of maternal cousins 'for making food grains available to servants of maternal cousins'. The Petitioners have annexed copies of various passports of various time period and ration cards having name of Petitioner No. 3 and her husband at the address of suit premises. Relying on such copies, it is contended that Petitioner was never residing in the White House premises and it is not available. Though the consent terms are of the year 2003, after the impugned Judgment and during pendency of the Petition, nothing prevented Petitioner No. 3 from taking a stand while giving evidence that she was in occupation of White House flat in the capacity of caretaker. No such stand was taken. If the Petitioner resided in the suit premises and gave its address for the purpose of passport and ration card, it means that the Petitioner No. 3 misled the rationing authority to believe that she was residing in White House flat. This conduct of Petitioner No. 3 disentitles her from seeking any discretionary and equitable relief.

29. Therefore, such specious stand taken by way of application for additional evidence will not help the Petitioners.

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30. A cursory look at the list of alleged available premises with Respondents, shows that even a whole different survey number is referred. One completely different C.S. No. 159 with Coovarji Mansion and one other building as well as C. S. No. 277 with a different building called Adikunj is also referred and details are given, which is not suit building. So far as the area allegedly available in the suit building is concerned, the Respondents have categorically denied that any area is lying vacant. It is not possible to decide such disputed questions of fact in writ jurisdiction.

31. The law regarding effect of subsequent development on the requirement/comparative hardship is well settled in various judgments of the Hon'ble Supreme Court. In paragraph 17 of Sheshambal v/s Chelur Corporation (supra) (relied upon by the Petitioners), the Hon'ble Supreme Court held that the subsequent developments having bearing on the right to relief cannot be shut out of consideration and in such situation, the Court is expected to examine the impact of such subsequent developments on the right to relief and if necessary, mould the relief suitably so that the same is tailored to the situation, on the date when relief is actually granted.

32. In the circumstances detailed above, none of the alleged subsequent developments is such as to hold that the Respondents/ landlord/ Trust can be denied the decree of eviction, especially in the limited writ jurisdiction of this Court under Article 227 of the Constitution of India. It is not possible to come to a contrary finding on requirement and hardship.

33. This is a peculiar case where right from the stage of pleadings, the Respondent/landlord offered alternate accommodation to the

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tenants and therefore, the aspect of comparative hardship is entirely in favor of the Respondents. From the record it is seen that the Respondents had offered accommodation of 500 sq. ft. in the proposed construction in the plaint itself. Then in evidence during cross- examination, PW-1 Mr. Zaveri offered 750 to 850 sq. ft. area in new building to be constructed. However, these offers were not accepted by the Petitioners on the grounds that less area was being offered and the plan for proposed construction was rejected.

34. There is no evidence to suggest that the Petitioners/tenants tried to secure alternate accommodation and therefore in light of the judgments of Shri Noshir Jehangir Postwalla (supra) and Nana Narayan Kamble (supra) and Smt. Sulochanabai Kashinath Gujar (supra) the plea of greater hardship is liable to be rejected. The argument that other accommodation is not available to the tenant, would be no ground for depriving the landlord of its rights. In the present case, Mr. Karande, learned Counsel for the Respondent-Trust has stated that the offer of alternate accommodation, as given in the Courts below, is still available for the Petitioners to avail. In a case like this, where alternate accommodation is offered to the tenant from Trial Court and the offer remains alive even today, the decree of eviction cannot be resisted on the self-serving ground that the alternate accommodation is not suitable or convenient.

35. In writ jurisdiction, the Court cannot re-appreciate the evidence to come to a different conclusion. In the aforesaid facts and circumstances, the conclusion drawn by the Appeal Court is based on material available on record and is the most probable conclusion. Therefore, this is not a fit case to interfere in writ jurisdiction. No perversity is found in the conclusions drawn and view taken by the

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Appeal Court.

36. Accordingly, the Writ Petition and Civil Application No. 1729 of 2017 are dismissed. In view of dismissal of the Writ Petition, IA/336/2025 taken out by Respondent/landlord for inspection of suit premises, is also disposed of.

37. Rule is discharged. No order as to the costs.

38. At this stage, learned Counsel for the Petitioners seeks continuation of interim stay to the decree of eviction. It is submitted that the Petitioners are protected since long time. Learned Counsel for the Petitioners submits on instructions that presently the Petitioner Nos. 3, 4 and 5 are in possession of the suit premises exclusively. It is submitted that Petitioner No.3 is the constituted attorney for Petitioner No.4.

39. Learned Counsel for the Respondents/landlords opposes the request.

40. Subject to Petitioner No.3 filing an undertaking affidavit for herself and on behalf of the Petitioner No.4 and the Petitioner No.5 also filing an undertaking affidavit, both within a period of 2 weeks from today, that they are in exclusive possession of the suit premises and they shall not create 3rd party interest or induct any third person in the suit premises, time of 8 weeks is granted to vacate the suit premises from today.

41. All concerned to act on duly authenticated or digitally signed copy of this order.

(M.M. SATHAYE, J.)