1. The present Civil Revision Application u/s.29(2) of the Bombay Rent Act has been preferred by the petitioner herein - original plaintiff to quash and set aside the judgement and decree dated 30/11/1985 passed by learned Civil Judge (J.D.), Gandevi in Regular Civil Suit No.221 of 1978, by which, learned Trial Court has dismissed the said suit preferred by the petitioner herein - original plaintiff and has refused to grant eviction decree against the respondent herein - original defendant on the ground of bonafide and personal requirement of the original plaintiff - landlord. That the petitioner herein - original plaintiff has also prayed to quash and set aside the judgement and order dated 08/02/1991 passed by learned Assistant Judge, Valsad at Navsari in Regular Civil Appeal No.28 of 1986, by which, learned Appellate Court has dismissed the said appeal preferred by the petitioner herein - original plaintiff confirming the judgement and decree passed by learned Trial Court dismissing the suit.
2. That the petitioner herein - original plaintiff instituted Regular Civil Suit No.221 of 1978 against the respondent herein - original defendant - tenant in the Court of learned Civil Judge (J.D.), Gandevi for recovery of possession on the ground that the plaintiff required the suit premises for his personal and bonafide requirement and the defendant has acquired the suitable accommodation. That the suit was resisted by the original defendant by filing written statement at Exh.11. It was specific case on behalf of the original defendant that he is carrying on the business of selling stationary in the suit premises and rear portion is used for residence for himself and his family members consisting of seven persons. Therefore, it was submitted that even if the plaintiff required the suit premises bonafidely, in that case also, if eviction decree is passed, tenant would suffer grater hardship. Learned Trial Court framed the issues. Thereafter, on appreciation of evidence, learned Trial Court held that the defendant has not acquired alternative suitable accommodation as prayed and even if it is considered that the plaintiff required the suit premises bonafidely, in that case also, the defendant would suffer greater hardship. Learned Trial Court also considered whether the rear portion is given to the plaintiff. However, considering the situation of the suit property and there was no way to go to there except front portion where the defendant is carrying on business of selling stationary and area is 8 to 10 fts and even partial decree is also not possible and, therefore, learned Trial Court dismissed the suit by judgement and decree dated 30/11/1985. Being aggrieved by and dissatisfied with the judgement and decree dated 30/11/1985 passed by learned Civil Judge (J.D.), Gandevi in Regular Civil Suit No.221 of 1978, the petitioner herein - original plaintiff preferred Regular Civil Appeal No.28 of 1986 before learned District Court, Valsad and learned Assistant Judge, Valsad at Navsari by impugned judgement and order dated 08/02/1991 dismissed the said appeal by confirming judgement and decree passed by learned Trial Court.
Being aggrieved by and dissatisfied with the judgement and order passed by both the Courts below, the petitioner herein - original plaintiff has preferred the present Civil Revision Application u/s.29(2) of the Bombay Rent Act.
3. Mr.Sanjanwala, learned senior advocate appearing on behalf of the petitioner herein
- original plaintiff has vehemently submitted that both the Courts below have materially erred in not passing eviction decree on the ground that the petitioner herein - original plaintiff - landlord, who is aged about 85 years, required the suit property bonafidely for his personal use. It is further submitted that as premises, which was occupied by the plaintiff at Village: Kalavad was required to be vacated as there was decree passed against the plaintiff and he was compelled to vacate the suit premises and occupy his own premises and, therefore, learned Appellate Court ought to have held that the suit property is required by the plaintiff for his bonafide requirement. It is submitted that as such learned Trial Court had specifically held in favour of the original plaintiff that bonafide requirement is proved. It is submitted that learned Trial Court has refused to pass eviction decree solely on the ground of hardship. Mr.Sanjanwala, learned senior advocate appearing on behalf of the petitioner herein - original plaintiff has further submitted that even some portion from the rear side be given to the plaintiff, who is aged about 85 years so he can stay there. By making above submissions, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Mr.B.Y.Mankad, learned advocate appearing for Mr.Jayesh Patel, learned advocate appearing on behalf of the respondent herein - original defendant - tenant. It is submitted that even learned Trial Court refused to pass eviction decree by holding that if eviction decree is passed, the tenant would suffer greater hardship. It is submitted that learned Appellate Court has specifically held that bonafide requirement of the original plaintiff is not proved. It is submitted that both the Courts below have concurrently held against the petitioner herein - original plaintiff and has refused to pass eviction decree on the ground that personal requirement of the petitioner herein - original plaintiff - landlord is not proved. By making above submissions, it is requested to dismiss the present Civil Revision Application.
5. Heard learned advocates appearing on behalf of the respective parties at length and considered and gone through judgment and orders passed by both the Courts below as well as entire evidence on record and the records and proceedings of the case, which is received from the learned Trial Court.
6. At the outset, it is required to be noted that there are concurrent findings of facts given by both the Courts below in refusing to pass eviction decree against the original defendant - tenant and in favour of the original plaintiff- landlord on the ground of bonafide and personal requirement of the original plaintiff - landlord. It is required to be noted that as such even learned Appellate Court has held that bonafide requirement of the original plaintiff - landlord is not proved. It is required to be noted at this stage that learned Trial Court though held that there is bonafide and personal requirement of the suit premises by original plaintiff-landlord, however on the ground of hardship learned Trial Court has refused to pass eviction decree against the original defendant - tenant. Considering the provisions of the Bombay Rent Act for recovery of possession by landlord on the ground of his bonafide and personal requirement not only landlord is required to prove that suit property is required by him for his personal and bonafide use but even the Court has to consider the comparative hardship between the landlord and tenant and, therefore, in a given case, even if bonafide requirement of the landlord is proved, in that case also, the Court may refuse to pass eviction decree if the Court is satisfied that if the eviction decree is passed tenant would suffer grater hardship than the landlord. In the present case, learned Trial Court has specifically held that if the eviction decree is passed in favour of the landlord on the ground of his personal requirement, tenant would suffer greater hardship. It is also required to be noted that learned Trial Court also considered whether a partial decree can be passed and rear portion of the suit property can be given to the landlord or not. However, considering the situation of the property, even to go to rear portion, there is no other way and one has to go through front portion, which is having width of 8 to 10 fts., in which, the defendant is running stationary shop and, therefore, learned Trial Court has held that partial decree is not possible.
It is required to be noted that according to the petitioner he wants suit premises for himself only, against which, defendant has submitted that there are seven members in his family and it is reported that one member is suffering from mental diseases since many years. Considering the aforesaid facts and circumstances of the case, it appears to this Court that if eviction decree is passed against the original defendant - tenant, original defendant would suffer greater hardship than the original plaintiff. Under the circumstances, no illegality has been committed by the learned Trial Court in refusing to grant eviction decree on the ground of bonafide and personal requirement of the suit premises of the plaintiff.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. No costs.
[M.R.SHAH,J] *dipti Top