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Govindrao Narayanrao Prabhu Vs. Shankarrao Maruti Gawali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 3407 of 1983
Judge
Reported in1986(1)BomCR114
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)
AppellantGovindrao Narayanrao Prabhu
RespondentShankarrao Maruti Gawali
Appellant AdvocateAshok C. Agrawal and ;Anita A. Agrawal, Advs.
Respondent AdvocateMohan Pungaliya, Adv.
Excerpt:
.....in law - petitioner to retire in near future and would lose such accommodation - petition by tenant liable to succeed as finding of trial court perfectly justified having arrived at after consideration of relevant facts. - - this ought have been borne in mind by the learned appellate judge, which he failed to do. in my opinion, the finding of the trial court on the question of comparative hardship was perfectly correct having been arrived at after consideration of the facts relevant to the determination of that question......that would be caused to the respondent if a decree for possession were refused. the learned trial judge by his judgment and order dated 28th of september, 1981 dismissed the suit by holding against the respondent on all grounds. it may be added that the respondent had also pleaded in the trial court that the petitioner had acquired suitable alternative residence which ground was also pressed in support of the claim for possession of the suit premises. the learned trial judge had held against the respondent on all the grounds.3. the respondent preferred an appeal, being civil appeal no. 903 of 1981, which was heard and allowed by the learned extra joint judge of pune by his judgment and order dated 6th august, 1983. while so allowing the appeal, the learned appellate judge found.....
Judgment:

R.A. Jahagirdar, J.

1. Civil Suit No. 1935 of 1979 had been filed by the respondent in the Small Causes Court at Pune against the petitioner who is his tenant, for possession of one room consisting of 1 1/2 Khans. The said room will hereinafter be referred to as 'the suit premises'. The petitioner is the tenant of the said room for several years on a monthly rent of Rs. 20. The respondent filed a suit as aforesaid on the ground, among others, that he required the suit premises reasonably and bona fide for his own use and occupation.

2. The petitioner resisted the suit by contending that the respondent's need was neither reasonable nor bona fide and that greater hardship would be caused to him if a decree for possession were passed than the hardship that would be caused to the respondent if a decree for possession were refused. The learned trial Judge by his judgment and order dated 28th of September, 1981 dismissed the suit by holding against the respondent on all grounds. It may be added that the respondent had also pleaded in the trial Court that the petitioner had acquired suitable alternative residence which ground was also pressed in support of the claim for possession of the suit premises. The learned trial Judge had held against the respondent on all the grounds.

3. The respondent preferred an appeal, being Civil Appeal No. 903 of 1981, which was heard and allowed by the learned Extra Joint Judge of Pune by his judgment and order dated 6th August, 1983. While so allowing the appeal, the learned Appellate Judge found fault with the reasoning of the learned trial Judge who had held that the accommodation which was available to the petitioner during the pendency of the suit was available to him only for a limited period and, therefore, if a decree for possession were passed greater hardship would be caused to the petitioner. Aggrieved by the order passed by the learned Appellate Judge the tenant has approached this Court under Article 227 of the Constitution of India.

4. Mr. Agrawal, the learned Advocate appearing in support of the petition, had no difficulty at all in showing the utter erroneous nature of the judgment given by the learned Appellate Judge. In order to understand and appreciate the perversity of the finding given by the learned Appellate Judge it will be proper to remember that the petitioner had with him accommodation given by him by virtue of his service. There was evidence in the trial Court, which evidence has not been disbelieved by the learned Appellate Judge, that the accommodation which was available to the petitioner was so available to him only upto June 1982. The learned trial Judge had considered this aspect of the case and rightly found that the accommodation which was available to the petitioner could not be taken into consideration while deciding the question of comparative hardship. The trial Court, as already mentioned above, passed the decree of the dismissal of the suit on 28th of September, 1981. Within nine months thereafter, admittedly, the petitioner was to retire and was going to lose the accommodation that was in his possession.

5. The learned Appellate Judge says that under law the trial Court should have considered the question of the availability of alternative accommodation on the date on which he was called upon to pass the decree in the suit. It may be so. But the learned Appellate Judge forgot that the accommodation which was available technically on the date on which the learned trial Judge was called upon to pass the decree was available to the petitioner only for a short time after the decree was passed by the learned trial Judge. A Court can not only consider but is bound to consider whether the accommodation that is available to either of the parties is a perilous accommodation which may become unavailable within a short time from the date on which the Court is considering the merits of the case. If it is found that within a short time the accommodation that is available to a party will cease to be available to that party, then that factor has got to be taken into consideration while judging the comparative hardship of the parties before the Court. The learned Appellate Judge proceeded mechanically and thought that since on 28th of September, 1981 the petitioner had in his possession the accommodation which had been given by his employer, the Court of first instance ought to have necessarily passed a decree for eviction.

6. What is surprising and almost shocking is the fact that the learned Appellate Judge refused to take note of the subsequent development in law. That the petitioner was to retire and lose the accommodation in his possession was a development subsequent to the decision of the trial Court. Therefore, even if the trial Court had passed a decree for eviction, the Appellate Judge would have been justified in reversing the decree for eviction that might have been passed by the trial Court in the instant case. On the other hand, the learned Judge reversed the process and held that the trial Court should have passed a decree for eviction because on the date on which the trial Court passed the decree the petitioner had it his possession some other accommodation. I am constrained to say that this reasoning is on the verge of being perverse.

7. The factors which had to be considered while deciding the question of comparative hardship included the factor of availability of alternative accommodation. The availability of alternative accommodation does not mean availability at a particular point of time, but over a period of time. This ought have been borne in mind by the learned Appellate Judge, which he failed to do. When the trial Court found, on the evidence which was led before it, that the alternative accommodation that was available to the petitioner was only upto a particular point of time, then naturally that question had to be borne in mind while deciding the question of comparative hardship. In my opinion, the finding of the trial Court on the question of comparative hardship was perfectly correct having been arrived at after consideration of the facts relevant to the determination of that question.

8. The Appellate Judge was wholly unjustified in mechanically applying the test of the availability of alternative accommodation on the date on which the Court is called upon to pass a decree. As I have already mentioned above, in a given case the Appellate Court is required to consider the subsequent developments and if on the date on which the Appeal Court is called upon to pass a decree for eviction it is noticed that greater hardship but is bound not to pass a decree for eviction. In the present case, the entire has been reversed by the learned Appellate Judge. I have no hesitation in holding that there is a patent error of law in the judgment of the learned Appellate Judge.

9. Mr. Pungaliya, the learned Advocate appearing for the respondent, has, however, contented that there is evidence to show that the petitioner continues to have alternative accommodation and the decree passed by the learned Appellate Judge could be confirmed on that ground. However, that is not the finding of the learned Appellate Judge, namely that the petitioner on the date on which the learned Appellate Judge passed the decree for eviction had with him accommodation in addition to the suit premises. Mr. Pungaliya prays that the matter be remanded to the Court of first instance or even to the appeal Court below to enable the respondent-landlord to produce evidence to the effect that the petitioner is having additional accommodation. It is impossible to grant this prayer in a petition under Article 227 of the Constitution especially when no such attempt was made in the Appeal Court itself.

10. In the result, this petition must succeed. The decree passed by the learned Extra Joint of Pune on 6th of August, 1983 in Civil Appeal No. 903 of 1981 is set aside and the decree passed by the learned Judge of the Small Causes Court, Pune, on 28th of September, 1981 in Civil Suit No. 1935 of 1979 is restored.

On the facts of this case, however, there will be no order as to costs.


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