The High Court dismissed a writ petition challenging orders in a suit for recovery of possession. The bench exercised discretion to stay the execution decree for six months, conditional upon an undertaking by the petitioner.
Execution of decree for possession stayed for six months on condition of undertaking and payment of rent.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE
WRIT PETITION NO.1204 OF 2006
Shri Bhaskar Yadavrao Pawar .. ..Petitioner
Versus
Shri Edward Zuran Koyalo .. ..Respondent
Smt.A.H.Ghadge for petitioner
Mr.Nitin Muley i/b G.S.Godbole for respondent
CORAM : P.V.KAKADE, J.
DATE : 12TH APRIL 2006
P.C.:
1. Heard the learned counsel for both the parties.
Perused the record.
2. The Petitioner-tenant has preferred this petition
against the order passed by Addl. District Judge, Palghar
dismissing the appeal and confirming the judgment and
order passed by trial court dated 11.11.2000 decreeing the
plaintiff’s suit for recovery of possession of the suit
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premises.
3. The petitioner is a tenant of respondent in Room
no.3 House No.224. It is the case of the plaintiff that
the petitioner-defendant was monthly tenant of the suit
premises at the monthly rent of Rs.18/= p.m. and the suit
premises was given for residential purpose. It was
alleged by the plaintiff that the defendant was not
residing in the suit premises for the period of three
years prior to the inception of the suit and he had kept
the suit premises closed for last three years. It was
further alleged that defendant get suitable alternative
premises at village Sakwar, Tal. Vasai and defendant had
shifted his residence there. On such and other ground the
suit was sought to be decreed.
4. The defendant contested the suit, inter alia,
denying the allegations made by the plaintiff submitting
that the State Government granted him agricultural land
where he has built home for aged persons and reside there.
However, his married son continuous to reside in the suit
premises which is acquired by him since the year 1964.
5. The learned judge after hearing both the parties
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and on the basis of available evidence found that the
plaintiff had proved that the defendant had not used the
suit premises for the purpose for which it was let out for
last three years prior to the institution of the suit and
has also held that the defendant had acquired suitable
alternate accommodation for his residence and as such the
suit came to be decreed.
. The appeal was carried to the District Court. The
lower appellate court judge after hearing both the parties
concurred with the findings recorded by the trial court
holding that the suit premises was not used by the
defendant for the purpose for which it was let out to him
and it was kept closed for three years. It was also held
that the defendant was acquired suitable alternate
accommodation for his residence and as such the appeal
came to be dismissed. Hence the present petition.
6. At the out set, it may be noted that the learned
counsel for the petitioner brought to my notice the entire
compilation of evidence led by defendant in order to show
that the defendant’s son was residing in the suit premises
for which purpose some correspondence was addressed on the
suit premises was produced. However, it is pertinent to
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note that the son of the petitioner who is said to be
occupying the suit premises is not examined in witness.
In my considered view, he was the best witness to testify
the evidence. Be as it may, the fact remains that it is
admitted as well as evidential position, as can be seen
from the deposition of the defendant himself, that the
land to the extent of 01 Hector 65 Rs granted by the State
Government to the petitioner-defendant at village Sakwar
for cultivating, where he has also built home for aged and
his residence and the said Trust is created by him and
stays there. This aspect itself shows that the said home
for aged is a permanent structure established under
registered Trust under the Bombay Public Trust Act and the
defendant is a President of the said Trust and he is
residing on that property and managing the said Trust.
Under the circumstances, it cannot be said that he
continues to reside in the suit premises. The submission
that his married son is occupying the suit premises is not
supported by cogent and conclusive evidence and therefore,
I do not see any reason why the findings recorded by both
the courts below should be disturbed.
7. Be as it may , the fact remains that it is not fit
case to interfere by virtue of the writ jurisdiction
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contemplated under Article 227 of the Constitution of
India.
8. In the result the petition stands dismissed with
no order as to costs.
9. At this stage the learned counsel for the
petitioner sought some time to vacate the suit premises.
In view of the facts and circumstances, the decree for
possession shall not be executed for a period of six
months from the date of this order on condition that the
petitioner and all adult members of his family shall
furnish undertaking to that effect and shall not create
third party interest in the suit premises and shall
continue to pay the agreed rent during the period of
occupancy. The undertaking to be furnished within two
weeks from the date of this order.
2 issues framed by the court
Whether writ jurisdiction under Article 227 of the Constitution of India warrants interference in a matter of civil appeal regarding recovery of possession.
Whether the High Court should grant a time extension for vacating the suit premises pending execution of the decree.
Shri Bhaskar Yadavrao Pawar
Shri Edward Zuran Koyalo
P.V.KAKADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court