Dismissed

Deelip Pralhad Shisode v. Vinayak Narayan Deshpande

Bombay HC29 Jan 2013CRA/56/2013

Case brief

AI extract

What is this about?

High Court dismissed a civil revision application challenging an appellate order in a retail suit, upholding eviction based on plaintiffs' bona fide residential need and relative hardship, with an eight-week stay on execution. (Note: A stay was granted in para 8, but the main revision was dismissed.)

What did the court decide?

Civil revision application dismissed with a stay on execution of the decree for eight weeks upon undertaking.

Deelip Pralhad Shisode Vs Vinayak Narayan Deshpande — Landlord and Tenant | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.56 OF 2013

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Deelip Pralhad Shisode .. Petitioner

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Versus

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Vinayak Narayan Deshpande & Ors. .. Respondents

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Mr.M.M.Sathaye for petitioner

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Mr.G.S.Godbole i/b. Ameya Deshpande for respondent No.1, 2A to 2C and 3.

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CORAM : S. C. DHARMADHIKARI, J. 29^th January 2013.

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P.C.:

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1] Mentioned not on board. This matter was permitted to be

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mentioned on account of the urgency being made out and particularly that warrant of possession has been issued by the executing court.

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2] This civil revision application is directed against the order passed by the lower appellate court in Civil Appeal No.123 of 2006 dated 2^nd November 2012 allowing the appeal and reversing the judgement and decree dated 28^th April 2006 of the trial court in R.C.Suit No.1284 of 2000.

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3] In all fairness Mr.Sathaye learned Advocate appearing for applicant states that the issue of reasonable and bonafide requirement of landlord original plaintiff survives for consideration. It survives for consideration in the light of the order passed and noted by the lower appellate court. Therefore, he submits that as far as that issue is concerned, on

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the point of bonafide requirement, the learned Judge of lower appellate court has erred in reversing the decree of trial court dismissing the suit in its entirety. There are more than one plaintiffs. As far as Suresh is concerned, it has come on record by virtue of his admission that he has acquired premises of his

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own and is residing therein. He has also admitted in the said

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deposition that he is unaware as to whether original plaintiff

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No.1 has premises of his own at Gangapur Road. He further feigns ignorance with regard to its location and whether it is nearby bus stand and market. As far as the original plaintiff No.2 is concerned, it is stated that the assertion is that he has his own residential premises in Nasik. . But as far as Suresh, plaintiff No.3 is concerned, he admits that he has an independent flat in Swanand Apartment. The railway station, bus stand and market are nearby. It is stated that all the plaintiffs can reside therein. If these are centrally located premises and suitable for all the plaintiffs, then, there is no point in throwing out the defendant from the premises and particularly when he has built a small business therein. In such circumstances, the only reason that the lower appellate court has given to refuse to confirm the decree of the trial court and reversing it, is that plaintiff No.2 has to set up a business therein.

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4] It is submitted that at no stage that the plaintiffs averred

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that the premises are let out only for residence. With all these reasons and when hardship would be caused to the petitioner, courts below should have considered alternative submission viz., that the petitioner can be called upon to hand over vacant and peaceful possession of the premises in part and in the remainder he can carry on the business. That would have met the requirement of evaluating comparative hardship, according to Mr.Sathaye.

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5] Mr.Godbole supported the judgement of the lower

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appellate court and contended that there is no merit in this application and it deserves to be dismissed because the plaint averments ought to be read in their entirety. So read, it is not that the lower appellate court was influenced only by the applicant carrying on the business from the suit premises. Equally, there is no merit in the contention that the plaintiffs have their premises or flat. That flat which is stated to be

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independent and belonging to one of the plaintiffs, Suresh, is in no way adequate for residence of all family members, which include five sons who are all of marriagable age and, therefore, the revision application has no merit and should be dismissed.

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6] With the assistance of learned Counsel for both sides, I have perused the judgement of the lower appellate court. The lower appellate court has in the judgement noted that the issue

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survived for its consideration is that of the bonafide and reasonable requirement of the respondents – original plaintiffs.

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It may be that the lower appellate court has referred to the conduct of the petitioner in setting up a business in the suit premises. But what has essentially been noted by the Court below is that in the deposition of witnesses the plaint averments have been confirmed. The two plaintiffs, Vinayak and Suresh

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Deshpande, who stepped in to the witness box on behalf of the original plaintiffs stated that they have large families. The families consist of sons who are of marriagable age. The

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property was purchased by registered sale deed of 23^rd February 2000. One of the plaintiffs Suresh was working in Hindustan Aeronautics Limited and was on the verge of retirement. He

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retired in the year 2002. He is residing in the premises which are a makeshift residence in a plot which belongs to his sister. However, that is a three bed room flat wherein all plaintiffs and their families cannot be accommodated. If that is what is noted by the lower appellate court and on that point, there is no real cross examination, then, one fails to understand as to how it can be urged that the fatal admissions in the evidence have not been taken into consideration or rather discarded. The lower appellate court has scrutinised the evidence on record and particularly of plaintiffs. It has taken deposition of Suresh as a whole and by adverting to the same, the lower appellate court has come to a conclusion that the version of original plaintiffs has not been falsified.

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7] On the other hand, the deposition of applicant Deelip has

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been adverted by the lower appellate court. If the suit premises

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have been let out in 1960 and his father set up a business therefrom, what has been urged on his behalf was that the entire premises including open space was let out to them by the earlier landlord and they are enjoying the same. The business carried on is their only source of income and their real assertion appears to be that of hardship and not much stress was laid on the point of bonafide requirement of the plaintiffs. That it was reasonably and bonafide by the plaintiffs has not been seriously disputed, if one peruses the deposition of the said Deelip in its entirety. Therefore, it is not as if something new was considered by the lower appellate court, as has been urged. If

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the family has been increasing and there are more sons of marriagable age, then, it is not as if in the absence of pleadings or averments that the court below is precluded from taking note of the assertions made during the course of deposition of parties. It was not required to adopt hyper technical approach and insist on amendment of pleadings so as to point of as to

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how many sons are of marriagable age, how their need increased and whether it is subsisting. Suffice it to state that once the lower appellate court has taken note of the fact that the premises have not been let out by the predecessor in title of the present respondents, still, the instant suit came to be filed in the year 2000 and upon a remand it has been finally decided in

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This is not a matter where both on the point of bonafide requirement and relative hardship the courts below have committed an error apparent on the face of record, leave along any perversity. On the other hand if the separate accommodation of each plaintiffs is considered, even then, that was held to be insufficient to accommodate a large family. I do

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not feel that the learned Judge has committed an error even while recording findings on the point of relative or comparative

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hardship. This is not a case where any division of property, possibly so as to allow the applicant before me to carry on a business activity from part thereof. Once the assertions in the plaint are that the premises are being used for residence by the

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original landlord and even now they are required for the same user and that is established and proved, does not mean that the applicant carries on business therefrom and, therefore, they partake the character of either commercial or composite use. It may be that the petitioner has carried on business or equally his predecessors for years together but considering that the family of the original plaintiffs is large and requires the premises which are let out to the petitioner in their entirety, then, even on the point of relative hardship no interference is necessary with the order under challenge.

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8] For the reasons aforesaid the civil revision application has no merits and it is dismissed.

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9] At this stage it is submitted by Mr.Sathaye that this order

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be stated for eight weeks and the decree passed by the Court may not be executed and enforced so as to enable the applicant

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to obtain a copy of this order and consider challenging the same

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in higher court. This request is not seriously opposed. On petitioner filing an undertaking in usual terms within two weeks from today, the decree passed by the lower appellate court for in possession in favour of the respondents shall not be enforced and executed for eight weeks from today.

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(S. C. DHARMADHIKARI, J)

Deelip Pralhad Shisode v. Vinayak Narayan Deshpande

Case brief

What is this about?

What did the court decide?

Deelip Pralhad Shisode v. Vinayak Narayan Deshpande

Case brief

What is this about?

What did the court decide?

What the court decided

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