Dismissed

Manohar Harishchandra Mane v. Raghunath B. Patil

Bombay HC17 Sept 2013CRA/878/2012

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision application challenging a decree for possession of a room in a chawl. The tenant claimed bona fide need for the premises based on family requirements. The court held the lower courts correctly found the need reasonable and rejected the landlord's slum area defense as the land was not listed in notifications.

What did the court decide?

Civil Revision Application No. 878 of 2012 dismissed. Stay of execution proceedings granted subject to filing undertaking.

Manohar Harishchandra Mane Vs Raghunath B. Patil — 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. 878 OF 2012

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Manohar Harishchandra Mane

.. Applicant

Vs.

Raghunath B.Patil

.. Respondent

Mr.R.S.Datar, for Applicant. Mr.R.D.Mishra, for Respondent.

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CORAM : R.G.KETKAR, J . DATE : 17^th September, 2013

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P.C. :

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. Heard Mr. R.S.Datar, learned Counsel for the applicant

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and Mr.R.D.Mishra, learned Counsel for the respondent at length.

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By this Civil Revision Application filed 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 16/08/2006 passed by the learned Judge, Court Room No. 19 of the Court of Small Causes at Bombay in R.A.E Suit No. 867/1441 of 2002 as also, the judgment and decree dated 20/06/2012 passed by the Appellate Bench of the Court of Small Causes at Bombay in Appeal No. 646 of 2006. By these orders, the Courts below decreed the suit instituted by the respondent on the ground of bonafide and reasonable requirement. The Courts below also answered issue of hardship in favour of the

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respondent. The parties shall hereinafter be referred to as per their status before the trial Court.

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The plaintiff instituted suit against the defendant for recovery of possession of room No. 1 in Gopikunj Chawl sitaute at Nehru Nagar, Kanjur Marg, (E), Mumbai 400 0042 (for short 'the suit premises'). In paragraph 2 of the plaint, the plaintiff asserted that the suit premises is reasonably and bonafidely required by him for the use and occupation of himself and his family members. The plaintiff at present is occupying room in chawl admeasuring 30' x10' sq. ft and there are 5 members in his family. The plaintiff has two sons and one of the sons is Sudhanva Patil who is married. Sudhanva's wife is also staying with the family. It is further asserted that there is only one living room and his son along with his wife is residing along with the plaintiff and other members of the family. The case of the plaintiff is that it is very difficult to accommodate such a large family in the present accommodation of the plaintiff. The plaintiff also came out with the case that he was working in 'Standard Batteries' and retired long back. The plaintiff is totally blind and is not in a position to work. He has no funds to acquire any other premises.

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The defendant resisted the suit by filing the written statement and in paragraph 5, it was asserted that the plaintiff is occupying not only ground floor admeasuring 30' x10' sq.ft but also occupies first floor structure admeasuring 30' x10' sq.ft. The defendant

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contended that plaintiff is in possession to more than 700 sq.ft carpet area. The rest of the contentions as regards to the bonafide requirement were denied. It was further contended that the suit premises is situated in slum area. The suit is not maintainable for want of permission under section 22 of the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 (for short 'the Act').

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The trial Court framed the necessary issues and the parties led oral as well as documentary evidence. After considering the evidence on record, the trial Court decreed the suit. Aggrieved by that decision, the defendant preferred appeal which was dismissed by the Appellate Bench of Court of Small Causes at Bombay. It is against these decisions, the defendant has instituted this Civil Revision Application.

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In support of this application, Mr.Datar invited my attention i) paragraph 2 of the plaint ii) paragraph 5 of the written statement iii) the portion of cross examination of P.W.1 Raghunath Balkrishna Patil (plaintiff) which is to the following effect.

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“In Patil Niwas I am occupying only one premises. It is true that the room occupied by me in Patil Niwas is one plus one premises. The premises in Patil Niwas is 30' x 10' in area. It is not true the premises in Patil Niwas may have similar area as that of ground floor in the upper portion. It is possible that for my premises in Patil Niwas in upper portion there is a galary. In the upper portion of the premises in Patil Niwas one person can comfortably stand. It is not true I have made a false statement that I am residing in the premises which is 30' x 10' in areas. It is not true I am occupying premises more

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than 700 sq.ft in carpet area. It is not true the premises occupied by me is sufficient for myself and my family. It is not true I have made a false statement that I require suit premises for myself and my family members.

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My son by name Sudhanva has temporary job. It is true that my son Sudhanva is working out of India. It is true that today my son Sudhanva is on leave and therefore has come to Bombay. I do not know whether my son Sudhanva is having handsome salary in foreign country. It is not true my son Sudhanva is having separate block in Bombay and is residing with his family members. It is not true my son Sudhanva and his wife are not residing with me. It is not true that I have made false statement that I am residing with five members in my premises in Patil Niwas.”

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On the basis of the above extracted portion,

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Mr.Datar submitted that plaintiff clearly admitted that he is in possession of the ground floor admeasuring 30' x10' sq.ft as also first floor admeasuring 30' x10' sq.ft . He further admitted that one of his sons Mr.Sudhanva is working out of India. He therefore submitted that the need pleaded by the plaintiff is neither reasonable nor bonafide. He also relied upon the decision of this Court in case of Tarachand Vs. Durgashankar reported in 2004 (Supp.) Bom.C.R, 333 and in particular paragraph 8 thereof.

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Mr.Datar further submitted that in any case, the suit premises is declared as a “slum area” under the provisions of the Act, and since no permission, as required under section 22 thereof is obtained, the suit is not maintainable. He therefore submitted that the impugned orders are liable to be interfered and this application requires consideration.

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On the other hand, Mr.Mishra supported the impugned orders. He submitted that both the Courts after appreciating the evidence on record have concurrently held that the plaintiff has established his requirement as bonafide as also reasonable. The Courts below also answered the issue of hardship in favour of the plaintiff. While considering the issue of hardship, the Courts below also took into account acquisition of residence by the defendant being flat 201, Yogeshwar Apartment, Bhandup. He further submitted that the land beneath the suit premises is not declared as a “slum area”. The said finding is recorded by the Courts below after considering the evidence on record. He therefore, submitted that no interference is called for. 10. I have considered the rival submissions made by the learned Counsel appearing for the parties. I have also perused the material on record.

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As noted earlier, the plaintiff has instituted the suit on the ground that he requires the suit premises reasonably for use and occupation of himself and his family members. The Courts below after appreciating evidence on record have held that family of the plaintiff consists of 5 members which includes 2 married couples. The Courts below also considered that the plaintiff is in occupation of the ground floor admeasuring 30' x 10' sq.ft and first floor admeasuring 30' x10' sq.ft. After considering the area in occupation of the plaintiff, the trial Court held that even after taking into account the area in possession is

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about 700 sq.ft., the plaintiff is the best judge of his requirement and if he is contending that the said premises are insufficient for his use and occupation, it cannot be said that requirement of the plaintiff is neither reasonable nor bonafide. It was further observed that the area 700 sq.ft cannot be said to be much enough to say that there is no requirement at all. The said finding was confirmed by the Appellate Court. Relying upon the admissions given by the plaintiff in the cross examination extracted hereinabove, Mr.Datar submitted that one of the sons of the plaintiff Mr. Sudhanva is working out of India. Thus, the requirement of Mr. Sudhanva cannot be taken into account. It is not possible to accept this submission. The extracted portion of the cross examination clearly shows that the plaintiff has deposed that his son has temporary job and is working out of India. He has further denied that his son Sudhanva and his wife are not residing with him. Having regard to the number of family members of the plaintiff and area presently in occupation, it cannot be said that plaintiff has not established his requirement as bonafide and reasonable. The Courts below after appreciating evidence on record have concurrently held that having regard to the area in possession of the plaintiff, it cannot be said that the need of the plaintiff is neither genuine nor bonafide. It is also material to note that submission made by Mr.Datar that 'since one of the sons of the plaintiff is working out of India, his need cannot be taken into account', was neither raised in the trial Court nor in the

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Appellate Court. With the assistance of the learned Counsel appearing for the parties, I have perused the appeal memo. Even, in the appeal memo, no such ground is raised by the defendant. For the above reasons, I am satisfied that plaintiff has made out the case of bonafide and reasonable requirement.

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Coming to the other ground namely the property in question is declared as a “slum area”, the Courts below after appreciating the evidence on record, have categorically recorded a finding that the land beneath Gopikunj Chawl where the suit premises is situate is not declared as a slum. In particular, the Appellate Court considered the Government Notification dated 05/11/1985. In that notification, C.T.S No. 1279 admeasuring 1009.4 sq.mt. was declared as a slum area and on that land, Shivasadan Kalame Chawl is situated. The Appellate Court observed that the suit premises is situated in Gopikunj and not in Shivasadan Kalame Chawl. The said finding is purely a finding of fact based upon appreciation of evidence on record.

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Mr.Datar relied upon the decision of this Court in case of Tarachand supra. In that case, this Court observed in paragraph 8 as under:

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“It is obligatory for the landlord to disclose in the pleadings and in his evidence the fact that he owns other premises which were capable of being utilized for the requirement pressed into service in the suit filed against the tenant and to further disclose and explain that inspite of those acquisition and ownership of other premises, the requirement which is pressed into service against the

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tenant would still survive. It is only then the landlord would be entitled to invoke this ground and would succeed in establishing his need to be bonafide and reasonable.”

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In the present case, the defendant alleged that apart from suit premises, the plaintiff has other premises. He however, failed to produce any evidence on record. The Courts below have considered this aspect. As noted earlier, even after accepting the case of defendant, that plaintiff is in possession of the ground floor admeasuring 30' x10' sq.ft as also first floor admeasuring 30' x10' sq.ft, it cannot be said that requirement pleaded by the plaintiff is neither genuine nor reasonable.

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In view of the above, 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 dismissed.

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At this stage, Mr.Datar orally applies for continuation of the ad-interim order dated 01/11/2012 for a period of 6 weeks from today. He further states that the defendant and all the adult family members residing with him will file usual undertaking in this Court within a period of 2 weeks from today after giving advance copy to the other side incorporating therein;

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i) that the applicant is in possession of the suit premises and nobody else is in possession

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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 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 go on regularly paying rent during this period.

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v) that in case, within a period of 6 weeks from today, defendant does not get suitable order from the higher Court, he will hand over vacant and peaceful possession of the suit premises to the respondent.

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Subject to applicant filing undertaking within a period of

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2 weeks from today in the aforesaid terms, the execution proceedings

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filed by the respondent shall not proceed further, for a period of 6 weeks from today.

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Order accordingly.

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(R.G.KETKAR, J.)

Manohar Harishchandra Mane v. Raghunath B. Patil

Case brief

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What did the court decide?

Manohar Harishchandra Mane v. Raghunath B. Patil

Case brief

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