Partly allowed

Shri Raju Krishna Dabhane v. Shri Baban Shankar Bane

Bombay HC23 Sept 2013CRA/390/2013

Case brief

AI extract

What is this about?

In this rent control revision, the High Court dismissed the appeal against eviction, finding the landlorder had reasonable need for premises and the tenant failed to secure alternate accommodation. The revision was later disposed of as not pressed after the applicant agreed to vacate by June 30, 2014.

What did the court decide?

The revision is dismissed but disposed of as not pressed; eviction decree suspended until June 30, 2014, subject to an undertaking to vacate and pay arrears.

Shri Raju Krishna Dabhane Vs Shri Baban Shankar Bane — Landlord and Tenant | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL REVISION APPLICATION NO. 390 OF 2013

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Shri Raju Krishna Dabhane

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.. Applicant

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Vs.

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Shri Baban Shankar Bane

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.. Respondent

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Mr. Indrajeet Kulkarni, for Applicant. Mr. Sachindra B.Shetye, for Respondent.

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CORAM : R.G.KETKAR, J . DATE : 23^rd September, 2013

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P.C. :

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. Heard Mr.Indrajeet Kulkarni, learned Counsel for the applicant and Mr.Sachindra Shetye, learned Counsel for the respondent at length.

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By this application under section 115 of the Code of Civil Procedure, 1908 (for short 'C.P.C'), the original defendant has challenged the judgment and decree dated 21/08/2006 passed by the learned Joint Civil, Junior Division, Bhiwandi in Regular Civil Suit No. 518 of 2004 as also the judgment and decree dated 28/11/2012 passed by the learned District Judge – 5 Thane in Civil Appeal No. 166 of 2006. By these orders, the Courts below decreed the suit instituted by the respondent-original plaintiff under section 16(1)(g) of the Maharashtra Rent Control Act, 1999 (for short 'Act'). Whereas the trial Court did not accept the ground raised by the plaintiff under section

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15 of the Act, the Appellate Court decreed the suit also on the ground of default under section 15 of the Act.

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In support of this application, Mr.Kulkarni invited my attention to the assertions made by plaintiff in paragraph 4 of the plaint as also to the paragraph 5(d) of the written statement of the defendant. He invited my attention to the findings of the trial Court recorded in paragraph 10 as also findings of the Appellate Court in paragraph 26. He submitted that during the pendency of the suit, the plaintiff acquired one more room. The plaintiff was in occupation of the two rooms and in view of the subsequent acquisition during the pendency of the suit, the plaintiff is in possession of three rooms. As against this, the applicant- defendant is in possession of one room which is admeasuring 9' x 16' ft. Having regard to his two school going daughters, hardship will be caused to the defendant in case the eviction decree is passed against him. He further submitted that having regard to the financial condition of the plaintiff, the plaintiff can very well acquire alternate premises. Lastly, he submitted that in any case, the partial decree as contemplated under section 16(2) of the Act may be passed.

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On the other hand, Mr.Shetye supported the impugned orders. He submitted that the family of the plaintiff consists of 16 members. He submitted that in paragraph 4 of the plaint, the plaintiff clearly asserted that he has 4 sons. Out of 4 sons, 3 are married and

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one son is yet to get married. Even the grand-son of the plaintiff is of marriageable age. Having regard to the numbers of rooms in his possession namely two rooms, it is insufficient to accommodate 16 members of his family. He submitted that even accepting the case of the defendant that during the pendency of the suit, the plaintiff acquired one more room, notwithstanding that, having regard to number of family members in the plaintiff's family, it cannot be said that the requirement pleaded by the plaintiff is neither reasonable nor bonafide. As far as the issue of hardship is concerned, he submitted that after appreciating the evidence on record, both the Courts have recorded a categorical finding that defendant has not made any efforts to search for another accommodation. Having regard to number of family members of defendant namely 4, hardship will be caused to the plaintiff in case the decree of eviction is not passed.

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I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record. As noted earlier, the plaintiff has asserted that there are 16 members in his family. At the time of instituting the suit, he was in possession of two rooms. The defendant did not dispute that the family of plaintiff consists of 16 members. It was contended that during the pendency of the suit, plaintiff acquired possession of one more room. Even accepting the case of the defendant that plaintiff is in possession of three room, having regard to the number of family

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members in the plaintiff's family, it cannot be said that the need pleaded by the plaintiff is neither reasonable nor bonafide. The Courts below after appreciating the evidence on record have concurrently held that the plaintiff has established his need is both reasonable as also bonafide.

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As far as the issue of hardship is concerned, the family of defendant consists of 4 members. The Courts below have recorded a categorical finding that the defendant has not made any efforts to search for another accommodation. I do not find that the Courts below committed any error in recording that finding.

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As far as the submission of Mr.Kulkarni that in any case, the partial decree deserves to be passed in the present case, having regard to his 2 school going daughters is concerned, I do not find any merit in this submission. As noted earlier, suit premises consists of one room admeasuring 9'x16' ft. In view thereof, it is neither practicable nor feasible to pass a partial decree. I do not find that the Courts below committed any error in passing decree of eviction against the defendant. Mr.Kulkarni was not in a position to show that findings recorded by the Courts below are based upon no evidence or that on the basis of evidence on record, no reasonable or prudent man would have come to the conclusion arrived at by the Courts below. No case is made out for invocation of powers under section 115 of the C.P.C. In the result, the Civil Revision Application fails and the same is

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dismissed.

At this stage, Mr.Kulkarni submits that if reasonable time is given to the applicant for vacating the suit premises and handing over possession of the suit premises to the respondent, he will not press this application. He states that applicant and his family members (four) are in possession and nobody else is in possession of the suit premises. He states that the applicant has neither created third party interests nor parted with possession of the suit premises. He further states that within 4 weeks from today, the applicant will file usual undertaking incorporating therein;

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i) That the applicant and all adult family members are in possession and nobody else is in possession of the suit premises.

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ii) That the applicant has neither created third party interests nor parted with possession of the suit premises.

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iii) That the applicant will hereinafter neither create third party interests nor part with possession of the suit premises.

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iv) That the applicant will hand over vacant and peaceful possession of the suit premises to the respondent on or before 30/06/2014.

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v) That applicant will clear all the arrears of rent, if any,

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within 4 weeks from today and will go on deposing the

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rent in the trial Court on or before 10^th day of the next succeeding month. The respondent-landlord would be at liberty to withdraw the same unconditionally.

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vi) That the applicant will not apply for further extension of

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time for vacating the suit premises.

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Subject to applicant filing undertaking in the aforesaid

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terms within 4 weeks from today, after giving advance copy to the other side, the decree for eviction shall not be executed on or before 30/06/2014.

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In view of the submissions of Mr.Kulkarni, the Civil

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Revision Application is disposed of as not pressed.

Shri Raju Krishna Dabhane v. Shri Baban Shankar Bane

Case brief

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Shri Raju Krishna Dabhane v. Shri Baban Shankar Bane

Case brief

What is this about?

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