[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein – original plaintiff to quash and set aside the impugned judgment and decree dated 30.09.1997 passed by the learned Civil Judge (J.D.), Kheralu in Regular Civil Suit No.76 of 1995 by which the learned trial Court dismissed the said suit and refused to pass the eviction decree which was sought on the ground that the suit premises is required by the plaintiff for its bonafide, personal use as well as the impugned judgment and order 18.11.2000 passed by the learned lower Appellate Court – learned 2nd Joint District Judge, Mehsana passed in Regular Civil Appeal No.106 of 1998 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. [2.0] That the original plaintiff, a Trust registered under the Bombay Public Trust Act is providing library for the people and on the first floor of the suit premises the Trust is also having a library for the aged people. That the western portion of the ground floor has been leased to the defendant at the monthly rent of Rs.150/ which was increased to Rs.200/ per month. That as the library was on the first floor and old aged people and women were facing difficulty in climbing and go to the first floor to library for reading and therefore, the plaintiff Trust instituted Regular Civil Suit No.76 of 1995 against the respondent tenant in the Court of learned Civil Judge (J.D.), Kheralu for recovery of possession / eviction decree mainly on the ground that the suit premises is required by the plaintiff bonafidely and for the benefit of the old aged people as well as the women as they are facing difficulty in going to first floor for reading and library.
[2.1] That the suit was resisted by the defendant by submitting that the need of the plaintiff is not bonafide. It was also submitted that the plaintiffs have other property situated near the bank of Rupen River which is hardly at a distance of 5 minutes from the suit premises and plaintiff is also running the library there. It was also the case on behalf of the defendant that there is another library also in the village and the old aged persons, women and children can also use the same library in the Kheralu town.
[2.2] That the learned trial Court framed necessary issues and accepting the case on behalf of the defendant that as there is another library in the town which can be used by the old aged persons, women and children and the plaintiff itself is having another property which is hardly at a distance of five minutes where the plaintiff is running the library, the learned trial Court dismissed the suit by holding that the plaintiff does not require the suit premises for bonafide use for the old aged persons, women and children as alleged and consequently the learned trial Court dismissed the suit.
[2.3] That being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court dismissing the suit, the original plaintiff preferred Regular Civil Appeal No.106 of 1998 before the learned District Court, Mehsana and the learned Appellate Court – learned 2nd Joint District Judge, Mehsana by impugned judgment and order dated 18.11.2000 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court passed by both the Courts below, the petitioner herein – original plaintiff has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[3.0] Ms. Megha Jani, learned advocate appearing on behalf of the petitioner has vehemently submitted that both the Courts below have materially erred in not passing the eviction decree on the ground that the suit premises is required bonafidely by the Trust for the old aged persons, women and children. Ms. Jani, learned advocate appearing on behalf of the petitioner has submitted that the learned both the Courts below have materially erred in not properly appreciating the fact that the beneficiaries of the library are old aged persons, women and children who were finding it difficult to take benefit of the library which is situated on the first floor. It is submitted that merely because there is another library in the town is no ground to hold that the plaintiff does not require the suit premises bonafidely for the old aged persons, women and children residing in the locality. It is submitted that the finding given by the learned trial Court is absolutely perverse on the bonafide requirement of the suit premises for the benefit of old aged persons, women and children. It is further submitted by Ms. Jani, learned advocate appearing on behalf of the petitioner that the learned trial Court has materially erred in not properly appreciating the evidence led on behalf of the petitioner – plaintiff i.e. deposition of four witnesses examined by the plaintiff that they would be able to use the library if it is situated on the ground floor. Considering the evidence on record both the Courts below ought to have held that the suit premises are bonafidely required by the plaintiff.
[3.1] It is further submitted by Ms. Jani, learned advocate appearing on behalf of the petitioner that both the Courts below have failed to appreciate that the defendant is running a shop in the suit premises and that the defendant has already other shops from where he can run his business in the suit premises. It is submitted that as such the suit premises was leased to original defendant Mahadevmal Tinumal Sindhi who has expired and is survived by four sons who is Hiralal Mahadevmal Sindhi, Jayesh Mahadevmal Sindhi, Nandlal Mahadevmal Sindhi and Asudram Mahadevmal Sindhi and all of them are carrying on their individual businesses from various shops within the periphery of approximately 200 meters of the suit premises. Therefore, it is submitted that if the eviction decree is passed, the respondents herein would not suffer hardship. It is submitted that on the contrary if the eviction decree is not passed, the Trust and the beneficiaries i.e. old aged persons, women and children would face greater hardship.
[3.2] An additional affidavit is filed on behalf of the petitioner affirmed by the Trustee of the Trust pointing out that the library is in existence since 1907 and total number of books in the library are around 17,955/ comprising of 676 books in Hindi, 564 in English, 16479 in Gujarati and 231 books of other languages. It is further stated that over and above the said books, there are 2218 books for women and 7328 books for children. It is further stated that apart from the books, approximately 10 newspapers and 25 journals are subscribed in the name of library. It is further stated that there are 101 lifetime members and members of the library for the year 201112 were around 3625. It is further stated that on affidavit that if the eviction decree is passed and possession of suit premises is given to the petitioner, the same shall be used only for the purpose of library. Therefore, it is requested to allow the present Civil Revision Application.
[4.0] Present Civil Revision Application is opposed by Shri M.N. Bhavsar, learned advocate appearing on behalf of the respondents – heirs and legal representatives of original tenant – original defendant. It is submitted that as such there are concurrent findings of fact given by both the Courts below on bonafide requirement of the plaintiff and the beneficiaries and the same are on appreciation of evidence which are not required to be interfered by this Court in exercise of revisional jurisdiction.
[4.1] It is submitted by Shri Bhavsar, learned advocate appearing on behalf of the respondents that as the petitioner Trust has another premises in which the library is being run which is at the distance of 5 minutes and when it has been found that there is another library in the town which can be used by the old aged persons, women, children etc., both the Courts below have rightly negated the bonafide requirement of the plaintiff and have rightly refused to pass the eviction decree.
Making above submissions, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard learned advocates appearing for respective parties at length and considered and gone through the impugned judgment and order passed by both the Courts below as well as the evidence on record from the Record & Proceedings received from the trial Court and also considered the additional affidavit as well as the reply to the same.
[5.1] At the outset it is required to be noted that admittedly the petitioner Trust is registered under the Bombay Public Trust Act and object and purpose of the Trust is to run the library. It has come on record that the library is in existence since 1907 and total number of books in the library are around 17,955 comprising of 676 books in Hindi, 564 in English, 16479 in Gujarati and 231 books of other languages. It has also come on record that over and above the said books, there are 2218 books for women and 7328 books for children and apart from the books, approximately 10 newspapers and 25 journals are subscribed in the name of library. It has also come on record that there are 101 lifetime members and members of the library for the year 201112 were around 3625. Under the circumstances, it can be said that the object and purpose of the Trust is in the public interest. It is also required to be noted that the petitioner has declared on affidavit affirmed by its Trustee that if the possession of the suit premises is given to it, the same shall be used only for the library purpose. It is also required to be noted at this stage that so far as the original defendant – Mahadevmal Sindhi is concerned, he has died. It has also come on record that the respondents heirs and legal representatives of the original tenant are running their business separately and having their different shops in the nearby locality itself. Considering the aforesaid facts and circumstances, the present controversy in the present Civil Revision Application is required to be considered.
[5.2] The petitioner herein – original plaintiff instituted the suit for recovery of the possession on the ground that the same is required by the Trust for the benefit of old aged persons, women and children as they are facing difficulties in going to first floor and for using the library. Both the Courts below have refused to pass the eviction decree mainly on the ground that Trust is running another library in another premises situated near the bank of Rupen river which is hardly at the distance of 5 minutes. The aforesaid can be said to be hardly a ground for no passing the eviction decree with respect to the suit premises which is required bonafidely for the old aged persons, women and children etc. of the locality. The plaintiff has examined four witnesses who have specifically said that they are facing difficulties in going to the first floor and using the library. Under the circumstances, it appears to the Court that merely because there is another library in the town or in another area and there the old aged people or women can go is no ground to consider the difficulties faced by the old aged persons, women and children of the locality and the beneficiaries of the library. Under the circumstances, the finding given by both the Courts below are perverse and even contrary to the evidence on record. Under the circumstances, both the Courts below have materially erred in not passing the eviction decree on the ground that the same is required bonafide by the Trust for its beneficiaries i.e. old aged persons, women and children etc.
[5.3] As stated herein above, the original tenant who was carrying on the business in the suit shop has expired and his sons – respondents herein are carrying on their individual businesses from various shops within the periphery of approximately 200 meters of the suit premises, the details of which are as under:
1. Rameshwar Readymade which is looked after by Hiralal Mahadevmal Sindhi.
2. Shivsagar Selection looked after by Jayesh Mahadevmal Sindhi.
3. Mahadev Cloth looked after by Jayesh Mahadevmal Sindhi.
4. Depa Mobile and Electrical looked after by Nandlal Mahadevmal Sindhi.
5. Julelal Readymade looked after by Asudram Mahadevmal Sindhi.
Considering the aforesaid facts and circumstances, if the eviction decree is passed, they would not suffer any hardship as they are already having their other premises/shops. On the other hand if the eviction decree is not passed, the beneficiaries of the Trust such as old aged persons, women, children will suffer greater hardship. Under the circumstances, the impugned judgment and order passed by both the Courts below refusing to pass the eviction decree on the ground of bonafide requirement by the Trust for its beneficiaries deserves to be quashed and set aside and eviction decree is required to be passed.
[6.0] In view of the above and for the reasons stated above, present Civil Revision Application succeeds. The impugned judgment and order dated 18.11.2000 passed by the learned lower Appellate Court – learned 2nd Joint District Judge, Mehsana passed in Regular Civil Appeal No.106 of 1998 is hereby quashed and set aside and the Regular Civil Suit No.76 of 1995 is hereby decreed CRA/699/2001 10/10 JUDGMENT and eviction decree with respect to suit premises is passed and respondents herein are directed to hand over the possession of the suit premises to the plaintiff within a period of two months from today and it is observed that the plaintiff shall use the suit premises only for the library purpose. Rule is made absolute accordingly. No costs.
(M.R. Shah, J.) menon