JUDGMENT
S.C. Pratap, J.
1. This is defendants’ revision application challenging concurrent orders of the two courts below setting aside dismissal of the plaintiff’s suit for default and restoring the same, holding that the plaintiff had made out sufficient cause in that behalf.
2. The litigation has had a chequered career, in the process keeping unresolved till now the otherwise deserving claim of the plaintiff for possession of the suit premises on the ground of reasonable and bona fide requirement thereof for personal use and occupation. The redeeming feature, however, is that the dispute is being brought to an end by an amicable understanding and commendable co-operative spirit between the parties along with the assistance of their respective Counsel. I will, however, revert thereto in due course.
3. Suit, being R.A.E. Suit No. 391/3077 of 1978, was filed in the year 1978 for possession on the ground of reasonable and bona fide requirement of the suit premises for personal use and occupation. Plaintiff’s evidence commenced in February 1982 and her further evidence including cross-examination was recorded some time in November 1982. However, on the next adjourned date in June 1983 the suit was dismissed for default The plaintiff thereupon took out notice, being Notice No. 5735 of 1983, for setting aside this dismissal. Case was that she was seriously suffering from infective hepititus—commonly known as jaundice—and had more than one relapse in that behalf. This was supported inter alia by affidavit of Dr. Kusum Shah who had treated the plaintiff. In these restoration proceedings, the defendants filed in September 1984 an application for cross-examination of Dr. Kusum Shah. The Court rejected this application. Defendants’ revision therefrom, being Revision Application No. 22 of 1985, was also rejected but with liberty to apply again, if so advised, to the trial Court for cross-examination of the doctor and with an observation that if application was so made, the trial Court will apply its mind and decide the same. The defendants, however, did not file any such application. The trial Court proceeded further with the restoration proceedings and by its order dated 8th August, 1985 set aside the dismissal of the suit for default and restored the same. Defendant’s appeal therefrom, being Appeal No. 530 of 1985 was dismissed by the Appellate Court in November 1985. The defendants then preferred Writ Petition No. 5084 of 1985 to this Court. Puranik, J., allowed the said petition, set aside the orders of the courts below and remanded the proceedings to the trial Court with a direction for cross-examination on commission of the plaintiff’s doctor on payment of all expenses thereof by the defendants. The commission work was expedited and thereafter the suit, if restored, was directed to be heard and decided within a period of two months.
4. On remand aforesaid, Dr. Kusum Shah was cross-examined on behalf of the defendants. There was also further evidence inter alia by way of affidavits. Considering and appreciating the evidence on record, the trial Court by its judgment and order dated 10th January, 1986 and for reasons stated therein, allowed the plaintiff’s application, set aside the order dismissing the suit for default and restored the same. In Revision Application No. 18 of 1986 therefrom by the defendants, the Appellate Bench reconsidered and re-appreciated the evidence and concurred with the trial Court that there was sufficient cause for setting aside the order of dismissal of the suit for default and for restoring the same. The revision application was consequently rejected. Hence this revision against revision.
5. Hearing Mr. Navin Parekh for the petitioners-defendants and Mr. V.H. Gumaste for the respondent-plaintiff and going through the judgments of the two courts below, I find no merit in this revision. The courts below have given their own goods reasons in support of the inference and conclusions drawn and the ultimate order passed. There is no doubt whatsoever that the plaintiff was at the relevant time suffering from infective hepatitis i.e. jaundice. There is also no doubt that she was under the treatment of Dr. Kusum Shah. The plaintiff had more than one relapse of jaundice. The evidence of the plaintiff and that of Dr. Kusum Shah is intrinsically the truth. And the Court below have rightly accepted the same. It is unfortunate that a pre-eminently deserving case for setting aside the order of dismissal of the suit for default should have nevertheless lingered on for more than three years lending some support to the observation of the Appellate Bench that the defendants’ effort was to somehow protract the litigation. I find myself in complete agreement with the reasoning and conclusion of the two courts below. Besides, the existence or non-existence of sufficient cause is a question of fact and we have here concurrent findings thereon in favour of the plaintiff based upon the trial courts consideration and appreciation of the record and the Appellate Courts reconsideration and re-appreciation thereof. This court has hardly any jurisdiction in a revision application to reopen a question of fact based on appreciation appreciation of evidence. But even if this Court were to enter into that exercise, I would have to hesitation in concurring with the orders passed by the two courts below. These orders are pre-eminently just and fair. There is no defect of jurisdiction nor any question of law involved. This is not a case warranting interference. The impugned others well deserve to be upheld and these are accordingly upheld.
6. After arguments qua restoration proceedings were completed, Counsel on either side submitted that the parties have now settled the entire dispute in the instant suit on terms just fair and reasonable to them both and it was, therefore, not necessary to send back the proceedings for further trial (from the stage left) of the suit with all the attendant inordinately long time and substantial costs involved in this process. It was submitted that this Court itself should bring this litigation to a final close. Counsel for the defendants submitted that the defendants now withdraw unconditionally their hereto before denials of the suit claim and their defences to the suit and accept and admit the plaintiff’s claim for possession of the suit premises on the ground of her reasonable and bona fide requirement thereof for personal use and occupation Counsel further submitted that the defendants should, however, be granted time to vacate the suit premises till 30th June, 1990. To this grant of time, the plaintiff Counsel has no objection.
7. Be all that as it may, this Court was nevertheless gone into the record. Considering and appreciating the same, this Court finds and is satisfied that the plaintiff does require the suit premises reasonably and bona fide for personal use and occupation for herself, her husband and their children. The suit premises belong to the plaintiff and were and are intended for personal use and occupation for herself and her family. They could not, however, earlier occupy because of the exigencies of service of the plaintiff’s husband when working in the Indian Air Force. This perforce took him to the place of postings. The plaintiff also used to be with her husband. Even while in service, he was suffering from mental illness. He was required to be hospitalised every six month. For the same reason he was not fit and not required to fly and was given ground duties. Ultimately, he had to retire on medical grounds. The family having no other accommodation in Bombay, they had perforce to stay with the plaintiff’s maternal uncle one Hariharan who was residing with his own family in a small flat admeasuring about 550 sq. ft. comprising two rooms and a kitchen. With no alternative premises and compelled to stay with her entire family with her maternal uncle Hariharan, the plaintiff requested the defendants to vacate and hand over possession of the suit premises. Indeed, the suit premises were given to the defendants only because it was a public limited company and consequently expected to honour its assurance and given possession to the plaintiff when she was in need thereof and required the same as has now been case. Unfortunately that was not to be so, compelling the plaintiff to fill the instant suit. Still, further, the plaintiff had an oath deposed that though a graduate, she has no gainful employment and no source of income save and expect not more than Rs. 150/- per month on an average from private tutions plus her husband’s pension of Rs. 500/- per month. They have two children, a son and a daughter who was studying. She has further disposed that the suit premises were required for her personal use and occupation but because of exigencies of her husband service, immediate occupation was not possible; that neither she nor her husband has any other premises in Bombay and that except her father, she does not have any one on whom she can rely for support.
8. From all these tell-tale facts and circumstance, irresistible inference and conclusion is that the plaintiff requires the suit premises reasonable and bona fide for personal use and occupation by herself, her husband and children and that if possession is not awarded, they would suffer far, far greater hardship than the defendants which is Public Limited Company and which stands in a comparatively far, far better financial position. Thus, even de hors the settlement between the parties, I find the plaintiff’s claim to be even otherwise well justified and well deserved. I am more than satisfied that the plaintiff requires the suit premises reasonably and bona fide for personal use and occupation for herself and her family. I am further satisfied that if possession is not awarded to her, the plaintiff would suffer far greater hardship than defendant-company.
9. The defendants consent to plaintiff’s suit being but request time till 30th June, 1990 to vacate the suit premises. The plaintiff agrees to time being accordingly granted to the defendants but subject to undertakings. The Board of Directors of the defendants have also passed a resolution in July, 1986 inter alia authorising their officer to give undertaking on behalf of the defendant-company to hand over possession of the suit premises to the plaintiff by 30th June, 1990. The defendants-company’s authorised officer Mrs. Shakuntala Darira as also the defendants’ employee (one Narasimhan Ramesh) presently in occupation of the suit premises have also filed in this Court affidavit as follows :
1. The petitioners give an undertaking to this Court that they would vacate the suit premises and hand over quiet, vacant and peaceful possession thereof to the respondent by 30th June, 1990.
2. The petitioners give a further undertaking to this Court to pay to the respondent compensation for use and occupation of the suit premises at the rate of Rs. 800/- per month till such time as the petitioners vacate the said premises and hand over possession thereof to the respondent. This compensation will be paid by the petitioners to the respondent on or before the 10th of every current month.
3. The petitioners give a further undertaking to this Court not to part with possession of the suit premises in favour of any third party, nor create any right, title and/or interest therein, nor alienate or encumber the same.
4. The petitioners state and declare that the suit premises are presently occupied by their employee one Ramesh Narasimhan who has also affirmed the present affidavit containing the undertakings herewith and who agrees to abide by the said undertakings.
5. The petitioner-company gives a further undertaking to this Court that they will not put in occupation of the suit premises any of their other employees without first filing in this Court the Company’s undertaking as also the undertaking of the other employee who is proposed to be put in possession of the suit premises, the said undertaking inter alia being to the effect that the Company and the other employee proposed to be put in occupation will abide by the aforesaid undertakings and will hand over possession to the respondent by 30th June, 1990.
6. In the event of there being any breach of the aforesaid undertakings the respondent-decree holder will be at liberty to forthwith proceed to execute the decree with further liberty to move this Court for proceedings in contempt.
7. Mrs. Shakuntala Darira on behalf of the petitioners and Mr. Narasimhan Ramesh who is occupying the suit premises, above-named do hereby state on solemn affirmation that what is stated in paras 1 to 6 is true to our knowledge.
Solemnly affirmed at Bombay ) 1. Sd/-
aforesaid this 3rd day of ) (by Mrs. Shakuntala Darira
on September, 1986 ) behalf of the petitioners as
per the authority given in
resolution dated 24th July
1986 passed by the Board
of Directors.
2. Sd/-
(by Narasimhan Ramesh who is
occupying the suit premises.)"
10. In all facts and circumstances, the following order is passed by consent of the parties:
(a) Plaintiff's suit, being R.A.E. Suit No. 391/3077 of 1978 for possession of the suit premises is decreed.
(b) The statements and undertakings in the aforesaid affidavit filed in this Court on behalf of the defendant-company and their employee Narasimhan Ramesh are accepted by this Court. In terms thereof, they are granted time to vacate the suit premises and hand over possession thereof to the plaintiff latest by 30th June, 1990 subject to the following terms and conditions :
(i) The defendants shall pay to the plaintiff on or before the 10th of every current month a sum of Rs. 800/- per month as compensation for use and occupation of the suit premises till such time as the defendants are in use and occupation thereof and hand over possession to the plaintiff.
(ii) The defendants shall not part with possession of the suit premises in favour of any third party nor create any right, title and/or interest therein nor alienate or encumber the same.
(iii) Save and except their employee Narasimhan Ramesh presently occupying the suit premises, the defendants shall not put in occupation of the suit premises any of their other employees without first filing in this Court the defendant Company’s undertaking as also the undertaking of the other employee proposed to be put in possession of the suit premises, the said undertaking inter alia being to the effect that the defendant-company and the other employee so proposed to be put in possession will abide by the undertakings of the defendant company as embodied in their affidavit supra filed in this Court and will hand over possession of the suit premises to the plaintiffs by 30th June, 1990.
(c) In the event of any breach by the defendant-company and/or its employee of any of the conditions and/or undertakings in the affidavit supra, the plaintiff will be liberty to forthwith proceed in execution and obtain possession of the suit premises and/or arrears of compensation with further liberty to move this Court for proceedings in contempt.
11. The impugned orders of the two courts below are confirmed. The suit is, by consent of the parties, decreed in terms aforesaid. In view of the amicable settlement between the parties of the entire dispute, there will be no order as to costs throughout.
12. Order accordingly finally disposing of the revision application as also the suit.