JUDGMENT
D.K. Deshmukh, J.
1. By this petition filed under Article 227 of the Constitution of India the petitioner challenges the order dated 27.6.1995 passed by the Division Bench of the Court of Small Causes at Bombay, Bandra Branch, in Appeal No. 105 of 1995. That appeal was filed by the present petitioner challenging the judgment and decree dated 19.1.1994 passed by the Court of Small Causes at Bombay in R.A.E. suit No. 926/3130 of 1984. That civil suit was filed by the present respondent Smt. R.K. Chainani claiming therein that she is the owner of the Flat No. 9 Gulmarg, Charan Kamal Co-operative Housing Society Ltd. plot No. 74, Prabhat Colony, Road No. 6, Santacruz (E) Bombay 55 and that the petitioner is the tenant of the said premises. She claimed that as her husband was in service with the Income Tax Department on his transfer to Vidharba Region in the year 1978 she had to shift to Nagpur. She further claimed that her husband has retired from service in the year 1982. She claimed that she owns no other property at Bombay than the suit flat and that she has decided to settle down at Bombay and therefore she bona fide needs the suit flat for her own occupation.
2. The trial court after appreciating the evidence on record, oral and documentary, recorded a finding in favour of the landlady on the question of bona fide need of the landlady to occupy the suit premises. The trial court also found in favour of the landlady on the question of comparative hardship. The trial court decreed the suit for eviction against the tenant.
3. In the appeal filed by the tenant-petitioner challenging the judgment and decree passed by the trial court the appeal court confirmed the findings recorded by the trial court and dismissed the appeal.
4. It has to be seen here the admitted position is that the landlady’s husband was transferred to Nagpur and therefore the landlady had to shift from Bombay to Nagpur; that initially the husband of the petitioner was occupying the premises at Nagpur as a tenant which were subsequently purchased by him. It is also an admitted position that the landlady’s husband retired as Income Tax Officer Grade I in the year 1982. It was the case of the landlady that that she has decided to settle down at Bombay because she owns the suit premises at Bombay; that Bombay; would be better for Income tax practice of her husband who has retired as Income tax officer; that her son will have better job opportunity at Bombay that all her relatives are settled at Bombay. She also stated that the suit premises were purchased by her from her own income before her marriage and therefore she has sentimental attachment with the suit premises. Additionally the landlady contended that the climate at Nagpur does not suit her husband and that he has suffered heart attack during the pendency of the proceedings before the trial court and therefore from the health point of view of her husband also it is necessary for her to shift from Nagpur to Bombay for settling down at Bombay. It is further to be seen that the trial court on the basis of the evidence on record found that though it was contended by the petitioner-tenant that the son of the petitioner has set up business at Nagpur he could not produce any reliable evidence to substantiate his case. The trial court on the basis of the evidence adduced by the landlady found that she has placed sufficient material on record to establish her bonafide need of the suit premises. It is to be noted here that the Supreme Court in its jugdment in the case of Smt. Prativa Devi v. T.V. Krishnan has observed” The landlord is the best judge of his residential requirements. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner he should live or to prescribe for him a residential standard of their own…. There is no law which deprives the landlord of the beneficial enjoyment of his property”. The same view has been reiterated by the Supreme Court in its judgment in the case of Meenal Eknath Kshirsagar v. Traders & Agencies .
5. The learned Counsel appearing for the petitioner Shri Abhyankar urged only one contention before me. Shri Abhyankar urged that though the appeal court has confirmed the findings of fact recorded by the trial court, the appeal court while doing so did not discuss the evidence on record in detail and the appeal court did not appreciate the evidence on its own and instead the appeal court merely confirmed the findings given by the trial court. In the submission of Shri Abhyankar the appeal court being a court of facts was under a duty to appreciate the evidence on record independently.
6. Shri Manohar learned Counsel for the respondent on the other hand by relying upon the observations of the Supreme Court in its judgment in the case of Girijanandini Devi and Ors. v. Bijendra Narain Choudhary, contended that it is not the duty of the appellate court when it agrees with the view of the trial court, on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Now it has to be seen that a perusal of the judgment of appellate court shows that to begin with it has referred to the evidence that is on record. Thereafter the appellate court had dealt with the contentions raised by the learned Counsel on both sides and thereafter in paragraph 15 of its judgment has observed thus :
After carefully scrutinising and considering all the observations made in the rulings cited by Mr. Vora we are of the view that the requirement of the plaintiff respondent is a bona fide requirement which the plaintiff has already pleaded the facts in the plaint and also proved by her independent oral as well as documentary evidence which is supported by the documents on record.
Thereafter in paragraph 18 of the judgment and appellate court has observed thus :
For the reasons and discussions as above, we are of the view that the learned trial Judge has rightly considered the issue No. 1 on all aspects while giving his finding in favour of the plaintiff holding that the plaintiff requires the suit premises for her personal and bona fide requirement, and we see no reason to disturb this finding of the learned trial Judge. We therefore answer point No. 1 in the negative.
7. It is thus clear from the judgment of the appellate court that the appeal court has referred to the evidence on record and has also dealt with the contentions urged by the learned Counsel for both sides and thereafter the appellate court has observed that it agrees with the conclusions recorded by the trial court. The Supreme Court in its judgment in Girijanandini Devi’s case in paragraph 12 has observed as under:
The trial court as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence but it generally approved of the reasons adduced by the trial court in support of its conclusion are unable to hold that the learned judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice.
It is clear from the observations of the Supreme Court quoted above that it was not necessary for the appellate court to re-appreciate the evidence on record. The contention raised by Shri Abhyankar therefore has no substance. No other point as stated above has been urged before me.
8. It is further to be seen here that this petition is filed under Article 227 of the Constitution of India and it is by now well settled law that this Court in exercise of jurisdiction under Article 227 of the Constitution of India can disturb the concurrent findings recorded by the subordinate courts only in case this Court reaches the conclusion that (1) the findings recorded by the subordinate court are vitiated by error of jurisdiction or (2) that the findings have been recorded in violation of the principles of natural justice or (3) that there is any manifest or apparent error of law. In the present case it has not even urged by the Ld. Counsel for the petitioner that there is any error of law in the findings recorded by the trial court.
9. In the result therefore the petition fails and is dismissed. Rule discharged with no order as to costs.
10. At this stage the learned Counsel for the petitioner requests that despite dismissal of this petition interim orders passed by this Court be continued for a period of eight weeks, obviously in order to enable of the petitioner to approach the higher court. The learned Counsel for the respondent does not oppose the request however submits that the petitioner should file an undertaking in this Court stating that he has not already created any third party rights in the suit premises and that during the above referred period also he shall not create any third party right in the suit premises. In this view of the matter therefore it Is directed that despite dismissal of this petition, interim orders passed in this petition shall continue for a period of eight weeks from today subject to condition that within a period of three days from today petitioner submits an undertaking that he shall not create any third party interest and that he has not already created any such interest in the suit premises as also that he shall not part with possession of the suit premises in favour of anybody but the respondent.
Certified copy expedited
