MAHADEO BHIMRAO WAGH (SINCE DECEASED) THR. LRS. SMT. INDU SUBHASH PATIL AND ORS.versusHAIDER ALI SULTAN (SINCE DECEASED) THR. LRS. NISARALI HAIDERALI AND ORS.

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       varsha             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                            CIVIL REVISION APPLICATION NO. 41 OF 2019


                     Mahadeo Bhimrao Wagh (since decased) … Applicants
                     through Lrs Smt. Indu Subhash Patil and
                     Ors
                                   vs.
                     Haider Ali Sultan(since deceased) through … Respondents.
                     Lrs Nisarali Haiderali and Ors

                     Mr. Chandrakant Chavan a/w. Mr. Ashfaque Dasulkar for
                     Applicants.
                                                 CORAM : GAURI GODSE, J.
                                                 DATED : 23rd SEPTEMBER 2026
                     ORDER:
        Digitally
        signed by
        VARSHA
VARSHA VIJAY
VIJAY   RAJGURU
RAJGURU Date:
        2026.09.28
                     1.    This civil revision application is preferred by two of the
        10:52:19
        +0530


                     legal heirs of the original defendant. Though five of the heirs

                     have been shown as the revision applicants, learned counsel

                     for the applicants submits that he has filed his Vakalatnama

                     only for applicants nos. 1 and 2. It is shocking that, without a

                     Vakalatnama for all, the applicants are shown as revision

                     applicants. Learned counsel for the applicants seeks to justify

                     the filing of the revision application on behalf of the five parties


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with a Vakalatnama only for two of the applicants by submitting

that in the appeal court all the applicants were shown as

appellants and two of them were also arrayed as respondents;

hence, he has continued with the same title.

2.    I have perused the papers of the application. Respondent

Nos. 11 and 12 are also shown as applicant nos. 3 and 5. As to

applicant no. 4, he is shown as deceased. The title of the civil

revision application gives an impression that the revision

application is filed on behalf of all five applicants who are heirs

and legal representatives of the deceased defendant. It is

clarified that this civil revision application is filed only on behalf

of two of the heirs, i.e. applicant nos. 1 and 2. The remaining

two heirs of the defendant have not challenged the decree of

eviction.

3.    Both the courts have concurrently passed a decree on

the ground of personal bonafide requirement of the landlord

and non-user by the defendant.

4.    Learned counsel for the applicants submits that the

landlord has not come with clean hands and has not pleaded


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the availability of premises with the landlord. He relies upon the

relevant averments in the plaint and the written statement. He

further submits that there is no specific pleading as to whether

the premises were required for commercial use or residential

use. The suit premises is commercial. Hence, the findings

recorded regarding the landlord’s large family for residence

could not be considered by the court as a bona fide

requirement for seeking eviction. So far as the ground of

hardship is concerned, he submits that the landlord has

sufficient premises available. However, the defendant had no

premises except the suit premises. Hence, the issue of

hardship is also wrongly decided in favour of the landlord.

5.    Learned counsel for the applicants further submits that

the findings recorded on the ground of non-user lack

supporting evidence and are not based on the evidence

produced by the defendant. He submits that on 31 st July 2001,

the landlord granted permission to the defendant to carry out

repairs. He submits that the landlord's permission itself shows

that the defendant was in actual use of the suit premises. He

also relies upon the electricity bills to show that the premises

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were in use. He submits that the defendant has examined an

officer from the electricity department to prove that the

electricity connection and the bills were raised for use in the

suit premises. Learned counsel for the applicants therefore

submits that the decree on both grounds would not be

sustainable, and the impugned judgment and decree would

warrant interference by this Court.

6.    I have perused the papers of the civil revision application.

The plaintiff has pleaded personal bonafide requirement on the

ground of the large family of the plaintiff. Nothing is on record to

show that the suit premises are commercial premises, and the

pleadings show that they were used for commercial purposes.

The plaintiff has pleaded that his family consisted of seven

sons, three of whom were married, and that one son had two

minor sons and one daughter. The other son was also married

and had one son. The third son was also married and had two

daughters. The plaintiff has further pleaded that his four

unmarried sons and three married sons, along with their wives

and children, were residing with the plaintiff in the premises

available to them, as described in paragraph no. 1 of the plaint.

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7.    The plaintiff has pleaded that, on the land owned by him,

he constructed a C.C.I sheet structure admeasuring about

1300 square feet, which was partitioned into two identical parts

admeasuring 650 square feet. The defendant occupied an area

of 650 square feet on the eastern side, where he was carrying

out the business of manufacturing wooden boxes. The plaintiff

has further pleaded that he and his family were residing in

three rooms each admeasuring 10’ x 20” square feet and three

rooms as described in paragraph no. 5 of the plaint. The

plaintiff therefore contended that considering the large family of

around 17 members, he required the suit premises for their

personal use. The plaintiff has thus pleaded that the premises

available to him were grossly inadequate for his large family

and that he therefore required the suit premises.

8.    The defendant pleaded that other premises were

available to the plaintiff; however, nothing on record shows that

the premises were sufficient for a large family of 17 members.

Both courts thus considered the plaintiff's requirement and

accepted the plaintiff’s plea that the suit premises were

required for the bona fide use of the plaintiff. During the

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pendency of the suit, two more members were added to the

family, in view of the birth of two grandsons during the

pendency of the appeal. The appeal court has therefore

confirmed the trial court’s findings on the ground of the

plaintiff's personal bona fide requirement.

9.    So far as hardship is concerned, the defendant has not

pleaded and proved that he made any attempt to acquire any

suitable premises and was not successful in obtaining any

suitable premises after the suit was filed. It is a well-established

legal principle that, to seek the benefit of hardship, the

defendant must plead and prove that he attempted to acquire

suitable premises and was unsuccessful. In the absence of any

such pleading and supporting evidence, both courts have

rightly held that the hardship would be caused to the plaintiff,

considering the plaintiff's large family. I therefore do not see

any reason to interfere with the concurrent findings recorded on

the bonafide requirement of the plaintiff.

10.   So far as non-user is concerned, both courts considered

the oral and documentary evidence exhaustively. It is held that


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the evidence did not show that the premises was being used.

Considering the evidence on record, both courts recorded the

finding of fact that the premises were covered with dust and the

door had not been opened for years, as pleaded by the plaintiff.

The defendant's certificate of registration of shop, challans and

rent receipts and the oral evidence were discussed by both the

courts and it was held that the statement of electricity bill

produced on record in respect of consumption of electricity

itself showed that there was not enough consumption of

electricity for running and manufacturing wooden boxes, which

would show that the premises were not used. The certificate

under the Maharashtra Shops and Establishment Act, 1948

was valid for only six months, which the defendant admitted in

cross-examination. Hence, the non-renewal of the certificate

was considered an important aspect in concluding that the

premises were not being used. Thus, both courts disbelieved

the oral and documentary evidence produced by the defendant

and held that, during the relevant period between March 2001

and September 2001, the premises were not being used for the

purpose for which it was let out. In view of the concurrent

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findings of fact recorded based on the oral as well as

documentary evidence on record, the impugned judgments and

decrees granted on the ground of bonafide requirement and

non-user would not warrant any interference by this court.

11.   I do not find any jurisdictional or any other manifest error

in the reasons recorded by both the courts warranting any

interference in exercise of power under Section 115 of the Civil

Procedure Code.

12.   The Civil Revision Application is therefore dismissed. The

pending civil application is disposed of as infructuous.



                                                 (GAURI GODSE, J.)




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