1. This Petition is filed challenging the impugned judgment and decree dated 05/03/1993, passed by the Appellate Bench of Small Causes Court at Mumbai in Appeal No. 101 of 1987 arising out of judgment and decree dated 06/11/1986 in R.A.E. Suit No. 1247/6504 of 1975 passed by Small Causes Court, Mumbai in the said Suit. During the pendency of the Petition, the Petition was amended and the Order dated 6/04/2016, passed by the Small Causes Court, Mumbai confirmed by Order dated 28/11/2016 by the Appellate Bench of Small Causes Court, Mumbai in Appeal No. 34 of 2016, came to be challenged. By the said impugned Judgdments/Orders, the Petitioners’ suit for eviction of Respondents, under provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short “the Rent Act), is dismissed.

2. Shorn of unnecessary details, few facts necessary for disposal of the petition are as under.

                   2/1) The Petitioners are landlords and Respondents are tenants in respect of Flat No. 1A situated on 1st floor, Alvorada building situated on plot no. 317, Off. St. Roques Road, Bandra (W), Mumbai -400050, which is the subject matter property (hereinafter referred to as “the suit flat”). It is a three bedroom, hall, kitchen flat with 3 WCs and bathrooms, having two separate entrances.

                   2/2) Original Plaintiffs Mrs. Bertha and Mr. Ross, a mother son duo, filed the said Suit against original Defendants-Mr. Baldwin and Mr. Yusuf, seeking their eviction from the suit flat on the ground of bona-fide requirement and illegal subletting.

                   2/3) The suit came to be decreed ex-parte on 28/04/1976. When the ex- parte decree was sought to be executed, it was obstructed. The ex-parte decree was set aside and suit was restored. Parties led evidence and by Judgment and Decree dated 06/11/1986, the Small Causes Court dismissed the suit. The Plaintiffs filed appeal challenging the dismissal. By judgment and decree dated 05/03/1993, the Appeal also came to be dismissed.

                   2/4) The Plaintiffs filed the present Writ Petition challenging the said Order of Appeal Court. During the pendency of the Petition, Petition No. 1, Smt. Bertha expired and Petition No. 1A and 1B were impleaded as her legal heirs.

                   2/5) On 04/02/2010, this Court heard the Writ Petition alongwith pending Applications and Petitioners were permitted to amend the plaint incorporating additional pleadings. Parties were directed to appear before the Trial Court. The Defendants were permitted to file additional written statement. Parties were directed to adduce additional evidence only on the issue of bona-fide requirement and comparative hardship. The Trial Court was directed to record a finding on the issue of bona-fide requirement and comparative hardship after considering the original evidence and additional evidence and the finding was directed to be certified by Appeal Court after hearing the parties. The finding certified by the Appeal Court was called in this Court and it was directed that after such finding is received, the Petition shall be considered thereafter.

                   2/6) Accordingly, the Petitioners amended the Plaint. Additional written statement was filed by Defendant No. 1 after remand. Petitioner no. 2 – Mr. Ross examined himself. Petitioner No. 2C, Mr. Yohann (son of Petitioner no. 2) also entered witness box and examined himself. Wife of Defendant No. 1- Bernadette Rita Mary D’Souza examined herself as DW1. One more witness was examined as DW2, who is a officer of energy company. A medical officer from the hospital is also examined as DW3.

                   2/7) The Trial Court after considering the evidence and hearing the parties held against the Petitioners on the issue of bonafide requirement and comparative hardship by its order dated 06/04/2016 and the findings were sent to the Appellate Bench.

                   2/8) The Appellate Bench thereafter heard the parties on the issue of bonafide requirement and comparative hardship and confirmed the findings of the Trial Court, under its order dated 28/11/2016. The findings were then submitted to this Court.

                   2/9) During pendency of the petition, Petitioner No. 2 also expired and the Petitioner No. 2A to 2C are brought on record. Further, Respondent No. 1 also expired and Respondent No. 1A to 1E are brought on record.

                   2/10) In these circumstances, the parties are present before the Court for final hearing.

SUBMISSIONS

3. The learned Counsel Mr. Kapse for the petitioners submitted as under.

                   3/1) That Petitioner No.2’s son - Yohann got married in 2007 and the suit flat was and is bona-fide required for occupation of Yohann with his family. That Yohann has entered witness box to assert his requirement. That wife and daughter of Respondent No. 1 Tenant has a flat in Bella Rose building which they sold. He submitted that after remand, Petitioner No.2 Ross and his son Yohann both have entered witness box. That the Trial Court as well as Appeal Court has considered events prior to remand which are not relevant in view of the remand permitted by this Court and evidence being led thereafter. He submitted that events prior to 2007 (the year in which Yohann got married) can not be considered.

                   3/2) He submitted that both the Trial Court and Appeal Court have entered into aspects which are totally internal affairs of the landlord’s family, such as, who is occupying which flat available in the building, whether a particular flat allotted internally to a family member should or should not be, whether such family member can induct licensee. He submitted that both the Courts below have considered the evidence on record as if dictating terms to the landlord, which is not permitted under law.

                   3/3) It is submitted that assuming that leave and licence agreement relied upon by Yohann is not proved, it has otherwise not come on record as to whether Yohann had any other flat available. He submitted that the ground floor flat No. GB allotted to Petitioner No.2’s daughter – Erika, being given on leave and licence has been held against the landlord unnecessarily.

                   3/4) He further submitted that the letters dated 22.10.1974 (Exh.Q) and 25.01.1975 (Exh.R) produced on record clearly indicated the communication between Respondent No.1 (Tenant-Mr. Baldwin) and his mother and from the said letters, it can be clearly seen that Respondent No. 2 was illegally inducted as a sub-tenant.

                   3/5) That in earlier round, the Appeal-Court had held in paragraph 50 that landlords would suffer more hardship.

                   3/6) He relied upon the Judgments of:

                   i) Kanahaiya Lal Arya Vs. Md. Ehshan & Ors. in Civil Appeal arising out of SLP (C) No. 21965 of 2022, Order dated 25/02/2025.

                   ii) A. Mahalakshmi Vs. Bala Venkatram deceased through Legal Heirs and Anr. [(2020) 2 SCC 531].

4. Per contra, learned senior Advocate Mr. Shah appearing for the Respondents, submitted as under.

                   4/1) That concurrent findings about bona-fide requirement and sub-letting do not require any interference. That factual aspects can not be re- considered.

                   4/2) That in view of clause (g) of the order of the High Court by which the mater was remanded, the Courts below were obliged to consider the evidence which was already on record as also the additional evidence adduced by parties after remand. That evidence can not be restricted to only post remand evidence.

                   4/3) That the premises available with the landlord at the American Express Bakery building was non disclosed / suppressed. That when tenancy / licence agreements are executed by the landlord, after Yohann’s marriage, it can not be said that the requirement is bona-fide.

                   4/4) That the case of birth right of Erika sought to be asserted for flat no. GB, is not available under Christian Law.

                   4/5) That before remand, while filing evidence affidavit, need has been pleaded for Petitioner No.1 alone.

                   4/6) That the case of Yohann occupying premises on leave and licence basis is not proved. That leave and licence documents executed by Emil on behalf of Erika for flat No. GB in May 2009 and November 2010 and in another leave and licence documents dated 1.02.2014, there is a declaration given by Petitioner No.2 that Erika is herself a tenant of said flat and Petitioner No.2 is the owner. That therefore it can not be said that flat no. GB is Erika’s flat. If this flat is let out after Yohann’s marriage, it means requirement is not bona fide.

                   4/7) That Petitioner No.1 has passed away in March 2008, after the need for Yohann arose. That Yohann admitted in cross examination that Petitionr No.1 resided in American Express Bakery building which was owned by her till death. So these premises were available.

                   4/8) That assuming without admitting that bonafide need is held as proved, even then the factor of comparative hardship tilts in favour of Respondents. That Petitioners have number of properties available with them and presently only Respondent No.1’s old wife and 65 years old unmarried daughter are occupying.

                   4/9) That Respondent No.2 was staying temporarily in the suit flat as a guest and Respondent No.1 never parted with the possession. That there is no evidence to show that Respondent No.2 was in exclusive possession. That Respondent No.1 and his family always kept control over suit premises. That even when Respondent No.1 and his wife were away, brother-in-law and mother-in-law of Respondent No.1 kept control over suit premises. That letters dated 22.10.1974 and 25.01.1975 were produced from ill-gotten custody and contents thereof are nothing but a son suggesting something to his ailing mother and mere use of word ‘tenant’ can not be held as proof of unlawful tenancy.

                   4/10) He relied upon following case laws in support of his submissions:

                   (i) Puri Investments Vs. Young Friends and Co. and Others [(2022) SCC Online SC 283] dated 23 February 2022 to content that scope of interference under article 227 of the Constitution of India is restricted and High Court can not sit in appeal and interference is possible only in limited circumstances as shown in para No.14 thereof.

                   (ii) Hanuman Mishrimal Oswal Vs. Chandrakant Bhagwantrao Chavan [(2015) SCC Online Bom 4944].

                   (iii) Ram Murti Devi Vs. Pushpa Devi and Ors [(2017) 15 SCC 230].

5. Mr. Kapse, learned counsel for the petitioners, submitted in rejoinder, that if the oral evidence is considered as a whole, it can not be said that any premises were suppressed. That place in Coover Mansion is a tenanted premises and therefore there is no question about its disclosure. He submitted that a solitary statement from evidence of Petitioner No.2 Ross can not be taken out of context to be held against landlord.

REASONS AND CONCLUSIONS

6. I have considered the rival submissions and perused the record.

7. So far as the ground of illegal sub-letting is concerned, both the Courts below have concurrently held that unlawful sub-letting is not proved by the Petitioners. After going through the reasons stated in paragraph Nos.14 to 29 of the Trial Court’s judgment and paragraph Nos.14 to 45 of the Appeal Court’s judgment, the view taken and conclusion drawn by the Courts below are found to be based on material available and no case for interference is made out. Admittedly, the Respondent No. 2 has expired during the pendency of the Suit, sometime in 1985/86. As such, the claim of the Petitioners on the ground of unlawful sub-letting is rightly rejected by the Court below. Hence there is no need to consider judgment of Ram Murti Devi (supra) relied upon by the Respondents in support of ground of sub- letting. For the same reason, the judgment of A. Mahalakshmi (supra) will not be helpful to the Petitioners.

8. However, so far as the ground of bona fide requirement and comparative hardship is concerned, the situation is completely different.

9. This Court (Coram : Shri. A.S. Oka, J.) by the Order dated 04.02.2010 permitted the Petitioners to amend the plaint in view of subsequent developments. This Court considered that suit was filed in 1975 and the writ petition was pending since 1993. One of the request made by filing interim application was to seek permission to add pleadings about requirement of Petitioner No.2’s third son – Yohann, who got married on 26.12.2007. It was urged that the suit premises are bona fide required for his occupation with his family, as he has no independent accommodation of his own. This Court found that instead of adopting the course of driving the Petitioners/landlords to file fresh suit on the basis of subsequent events, amendment can be permitted and the Trial Court as well as Appeal Court can be directed to give fresh finding thereon. Accordingly, the Petitioners were permitted to amend their plaint and incorporate additional pleadings. Respondents were permitted to file additional written statement. Parties were permitted to lead additional evidence only on the issue of bona fide requirement and comparative hardship. Findings were called from the Trial Court, duly certified by the Appeal Court.

10. It is not disputed that Order dated 04.02.210 is not challenged by any party and both the sides acted upon it. Admittedly, the case was remanded only on the ground of bona fide requirement and no other.

11. When the facts are considered in the light of said order dated 04.02.2010, it is clear that parties have proceeded for a trial on the ground of bona fide requirement, on fresh pleadings and fresh evidence. Even if the order granting remand directs the Trial Court to consider existing evidence as well as additional evidence, since the consideration of requirement was permitted to be added for Petitioner No.2’s son Yohann, the requirement in and around his marriage date (December, 2007) assumes importance and the evidence will have to be considered in that perspective. Existing evidence is obviously relevant for the other issue of illegal sub-letting.

12. The impugned Judgment and Decree is on the year 1993. The law regarding bona fide requirement has thereafter evolved. Let us consider that evolution.

                   12/1) In Prativa Devi (Smt.) Vs. T.V. Krishnan [(1996) 5 SCC 353], the Hon’ble Supreme Court has held that the landlord is the best judge of his residential requirement and he has complete freedom in the matter. It is also held that it is no concern of the Court to dictate to Landlord, how and in what manner he should live or to prescribe for him, a residential standard of his own. It is held that there is no law which deprives the landlord of the beneficial enjoyment of his property.

                   12/2) In Minal Eknath Kshirsagar Vs. Traders And Agencies [(1996) 5 SCC 344], the Hon’ble Supreme Court has laid down that landlord is the best judge of his residential requirement and though there is availability of alternate accommodation, it is not decisive irrespective of its suitability.

                   12/3) In Raghunath G. Panhale Vs. Chaganlal Sundarji and Co. [(1999) 8 SCC 1], the Hon’ble Supreme Court explained that ‘reasonable requirement’ is something between ‘mere desire or wish’ and ‘compelling or dire or absolute necessity’

                   12/4) In Gaya Prasad Vs. Shri. Pradeep Srivastava [(2001) 2 SCC 604], the Hon’ble Supreme Court held that need of the landlord is to be seen on the date of filing suit, unless the same is shown to have been completely eclipsed/extinguished by subsequent events. In the present case, since the amendment is permitted by this court and both the parties have participated in the post amendment trial, we will have to see the requirement of landlord as it existed on the date of amendment from the perspective of requirement of Yohann.

                   12/5) In Ismailbhai Gulam Hussain Vs. Additional Collector [(2006) 4 Mh.L.J. 695], the learned Single Judge of this Court was considering whether the tenant can question the motives of joint owners and question partition deed amongst the landlord. This Court was also considering whether tenant can call upon Rent Control Authorities, to undertake such exercise. In that context, this Court relied on the Judgment of the Apex Court in Lingala Kondala Rao vs. Vootukuri Narayana Rao [(2003) 1 SCC 672]. In this Judgment, the Hon’ble Supreme Court has held that in an eviction suit between landlord and tenant, the motive behind execution of document conferring title on the landlord cannot be allowed to be gone into, so long as the document has been executed and registered in accordance with law, and the transaction is otherwise legal.

In the present case, though there is no transaction or document among the Petitioners’ family members, but it is seen from the oral evidence that there is certain understanding between the landlord’s family about which flat is kept for which person. This case appears to be consistent from oral evidence and therefore, in my view under rent-jurisdiction, the Courts below were not justified in entering into arena of individual ownership among the landlord’s family members.

                   12/6) In Deep Chandra Juneja Vs. Lajwanti Kathuria (Smt.) (dead) Through Legal Heirs [(2008) 8 SCC 497], the Hon’ble Supreme Court re- iterated that landlord is the best judge of his requirement and Courts have no concern to dictate how and in what manner he should live.

                   12/7) In Maganlal s/o Kishanlal Godha Vs. Nanasaheb s/o Udhaorao Gadewar [(2008) 13 SCC 758], the Hon’ble Supreme Court held that in landlord-tenant litigation, which is prolonged over a period of time, neither the person who started litigation can sit idle, nor any development of events can be stopped. In the present case, Yohann got married and his requirement is pleaded.

                   12/8) This court in the case of Ismail Bhai (supra) has further held that the choice of accommodation is therefore subjective choice of the landlord and the Court or Tenant cannot force the landlord to start using a particular floor of the suit building for particular purpose.

                   12/9) In recent judgment of Hon’ble Supreme Court in Kanahaiya Lal Arya (supra), similar views are re-iterated.

13. It is therefore, clear from the above observations of the Hon’ble Supreme Court and this Court, that landlord is the best judgment of his requirement and it is for the landlord to decide how to use the available premises with him. It is neither for the Court nor the tenant to dictate terms to the landlord. Requirement may not be a dire necessity.

14. In the light of the above settled legal position, now let us consider how the Trial Court and Appeal Court has considered the aspect of bona-fide requirement.

                   14/1) I have perused the reasons given by the Trial Court as well as Appeal Court after remand.

                   14/2) It is necessary to note at the outset, that the Trial Court and Appeal-Court, both have appreciated evidence on record, in a mixed/fused manner, not separating the same pre-remand and post-remand. Relevance of the evidence on the time-scale, is something that the Court is obliged to consider and appreciate. It can not be accepted that just because this Court in clause (g) of order dated 04/02/2010 directed ‘evidence already on record and additional evidence’ to be considered, the Trial Court and Appeal-Court was permitted to fuse it without going into time-relevance. This Court had clearly indicated in paragraph 5 of the order dated 04/02/2010 that instead of driving the landlord to file a new suit, it is desirable that amendment is permitted with additional evidence to avoid multiplicity of proceedings. Courts below have simply ignored the purpose of remand. It has mentioned that flats available with the landlord are leased out (viz. flat no. 2A from L&T to Mushran to Chugani and flat No. 1B from Army to Mewavala to Jeemani), without discussing the relevant dates. Assuming that the Petitioners leased out a particular flat available with them, before they were permitted to amend the plaint pleading requirement of Yohann, the same will have no effect on the requirement of Yohann.

                   14/3) In Sheshambal (dead) through LRs. v/s Chelur Corporation Chelur Building and Ors. [(2010) 3 SCC 470], the Hon’ble Supreme Court has observed in paragraph 17 that subsequent events having bearing on the right to seek relief can not be shut out from consideration and the Court is expected to ‘examine the impact of such subsequent development’ on the right to relief and if necessary, mould the relief suitably so that the same is tailored to the situation on the date of grant of relief.

                   14/4) It is settled position of law, that in the proceedings under the Rent Act seeking eviction, subsequent events and its effect on the relief claimed are material consideration for the purpose of decision at Appellate stage. Development in the lives of landlord can not be expected to come to a standstill during pendency of eviction proceedings, especially in view of delay in legal system. There can be myriad of subsequent developments and situations. Therefore, to decide the impact of subsequent development, it is obvious that such effect has to be seen in the facts of each case and no straight jacket formula can be adopted. It is beyond dispute that unless the requirement is completely eclipsed / extinguished, suit for eviction can not be dismissed.

                   14/5) In present case, there is subsequent development of increase in the family of the landlord. New requirement for son- Yohann has emerged. Amendment is permitted. Additional evidence is permitted. Therefore its time-relevance assumes importance.

                   14/6) The Appellate Court has held that one bed room in Coover Mansion is available. Yohann is married with a wife and a son. It is not for the Court to tell that a landlord’s family member, who has his own family must occupy one available room.

                   14/7) Additionally, the reasons are clearly in the nature of dictating terms to the landlord and not letting the landlord decide about his own requirement. It also seems from the reasons given by the Trial Court and Appeal Court after remand, that internal arrangement of available premises amongst the family members of the Petitioners, as emerging from the evidence, is sought to be doubted. Documents executed by the Petitioners’ family members are looked into as if the Court was deciding dispute amongst the Petitioners' family members.

                   14/8) Therefore I find the reasons given by the Trial Court and Appeal Court perverse in view of above factual position and settled legal position. The findings given by the Trial Court and Appeal Court are found to be based on appreciation of evidence against the established position of law. Therefore this is a fit case for interference only on the ground of bona-fide requirement. For the said reason in the peculiar facts of this case, the judgment of Puri Investments (supra) will not help the Respondents.

15. Considering that the parties are litigating since 1975 when the suit was initially filed and further considering that this Petition has been pending in this Court since last 32 years (from 1993), during which parties were sent to the Courts below for reconsideration on the ground of bona-fide requirement and comparative hardship, in my view, again relegating the parties to the Courts below will amount to ‘giving unnecessary lease of life’ to the litigation. Therefore, I deem it appropriate to consider the ground of bona fide requirement, on the basis of available evidence. Having said that, it is imperative for this Court to record objective satisfaction about said ground.

16. Admittedly, the Petitioners’ family is owner of Alvorada building consisting of seven flats spread over ground, 1st, 2nd & 3rd floors. There is no dispute that ground floor flat No.GA and second floor flat No.2B are in possession of tenants and no serious arguments are advanced in respect of these two flats from the Respondents’ side.

17. Suit premises are situated on first floor being flat No.1A.

18. The contentious issues revolve around flat No.GB on ground floor, flat No.1B on first floor, flat No.2A on second floor and flat No.3A on the third floor. Now let’s consider facts about these flats.

19. Petitioner No.2 Ross has entered into witness box after remand. He has stated as follows. That third floor flat No.3A is flat of Mr. Neville Carvalho who is brother of Petitioner No.2 Ross. That this flat is being permitted by uncle Neville to be occupied by Petitioner No.2’s son Mr. Yvan (not Yohann) and his family. That Flat No.2A on second floor was originally occupied by Larson & Tourbo Ltd. However, it is presently occupied by Petitioner No.2’s eldest son Mr. Emil and his family. Flat No.1B on the first floor is occupied by another tenant Mr. Jeemani for past several years. Flat No.GB on the ground floor was originally occupied by Voltas Ltd. However, it is a flat of Petitioner No2’s daughter Erika who is married and presently residing in USA, who indents to return to India. Petitioner No.2’s 3rd son Yohann does not have premises of his own. He was residing in leave and license premises. That suit flat No.1A is required bona fide for occupation of Petitioner Nos.2’s 3rd son Yohann and his family. Petitioner No.2 has given details of his family size, stating that there are 15 family members including himself and his wife, 3 sons, 3 daughters-in-law, one daughter, son-in-law and 5 grand-children. On the date of affidavit of evidence (29/01/2014) after remand, Petitioner No.2 was 75 years old, having all his sons grown up with their own families.

20. Petitioner Nos.2’s 3rd son Yohann also entered into witness box after remand and stated as follows. That he is forced to reside with his family at Coover Mansion along with his parents. After his marriage in December 2007, he requires independent residential premises to be occupied by himself and his family. That before marriage, he had taken residential premises at Park Avenue Building, Parel on leave and license basis from Smt. More for a period between September 2007 till July 2008. That since the licensor was not willing to continue leave and license, he was required to take another residential premises in Om Residency, Parel on leave and license basis from August 2008 to June 2009. That after this license period was over, he tried to get another premises on leave license but could not succeed and they had no option but to return to reside to Coover Mansion as his wife was expecting child by then. That he has acquired 1/3rd share of his grand mother (deceased Petitioner No.1 Bertha) in the suit building and as such he is co-owner of suit building and he requires suit premises flat No.1A bona fide for himself and his family, which consists of wife and son.

21. Both Petitioner No.2 Ross and his 3rd son Yohann have stated in their affidavit in examination-in-chief that Petitioner No.2’s daughter Erika (sister of Yohann) has a flat on ground floor No.GB. The cross-examination of Petitioner No.2 Ross and his 3rd son Yohann does not indicate that the case of bona fide requirement is shaken substantially.

22. The admissions given by Yohann in the cross-examination about not being able to produce documentary evidence about taking residential premises on leave and license basis, has been held against Yohann to mean that his bona fide requirement is not proved. Also certain leave and license documents executed for flat No.GB which are executed by brother Emil as Power of Attorney of Erika, in favour of third-party, has been held against the landlord. According to the Trial Court and Appeal Court, there is no evidence indicating that flat No.1GB is allotted to Erika or owned by her. Accordingly to the Courts below, Petitioner No.2 Ross is the owner.

23. The aforesaid assertions made by Petitioner No.2 Ross and his 3rd son Yohann in the witness box, about non availability of premises in suit building, in my view, is sufficient to establish their bona fide requirement. The internal arrangement of landlords’ family about premises available with them, such as, flat No. 3A considered to be of Petitioner No.2 Ross’s brother Neville or flat No.GB considered to be of Petitioner’s daughter Erika, is a matter of internal arrangement of landlords’ family and tenant can not question in the same. The tenant cannot dictate to the landlord how landlords’ own premises are to be considered amongst family members or how the same is to be distributed.

24. If landlord’s family’s internal arrangement appears to be consistent to the Court in view of oral deposition of witnesses, the same needs to be accepted for the purpose of arriving at finding regarding bona fide requirement and availability of the premises. There is no dispute that flat No.2A on the second floor is occupied by Emil at his family. It is also to be noted that flat on 3rd floor is occupied by Yvan and his family, though it is considered as flat of his uncle Neville. This means, in other words, that as between Petitioner No.2 Ross and his brother Neville, Petitioner No.2 Ross cannot claim even flat No.3A as absolutely available. There is also no dispute that flat No.1B on the same floor as suit premises, is occupied by a tenant.

25. The contention of the Respondent-Tenant that the flat Nos.GB, 1B and 2A have been let and re-let by landlords during pendency of the suit and therefore, the requirement is not bona fide, has no merit, in as much as, size of the Petitioners’ family must be seen. All the sons and daughter of Petitioner No.2 Ross are grown up persons with their own families. Petitioner No.2 has given details of his family size, stating that there are 15 family members including himself and his wife, 3 sons, 3 daughters-in-law, one daughter, son-in-law and 5 grand-children. He has also stated that when his brother Neville returns from USA, he will have to ask his son Yvan to vacate the flat on the 3rd floor, which brother Neville has been good enough to permit to Yvan to occupy. In my view, there is no reason to disbelieve either Petitioner No.2 Ross or his 3rd son Yohann who had entered into witness box and had asserted their requirement.

26. The argument advanced on behalf of Respondents is that the two leave and license agreements executed Emil on behalf of Erika for flat No.GB are dated May 2009 & November 2010, as well as another leave and license agreement of February 2014 where there is a declaration by Petitioner No.2 that Erika herself is tenant of said flat. That if Petitioner No2 Ross is the owner, the said flat No.GB being given on license after need for Yohann arose, itself shows that Yohann’s need is not bona fide. This argument is based on an assumption that tenant can decide as to which flat is to be considered by the landlord as held for benefit of which family member. In view of series of Hon’ble Supreme Court decisions (listed and considered above), it is none of the tenant’s business to dictate to landlord as to how the premises available with the landlord are to be treated amongst the family members. If the family of the Petitioners is treating flat No.GB as given to their daughter Erika (may not be as a birth-right), who is letting it out for earning income therefrom, the same cannot be objected by the tenant. Landlord cannot be forced to use a particular flat to satisfy the need of other son. How the property of the landlord is to be treated amongst his sons and daughters is entirely the business of landlords’ family and Tenant cannot intermeddle in the same. In that view of the matter, the leave and license documents, evenif executed after Yohann’s marriage, will have no material bearing on the aspect of bona fide requirement and therefore the argument based thereon is rejected.

27. It is argued on behalf of the Respondents that Petitioner No. 1- Bertha passed away in March 2008 and Yohann has admitted in his cross- examination that his grandmother- Bertha resided in American Express Bakery Building till her death. It is further argued on behalf of the Respondents that the landlords have not disclosed the premises available at American Express Bakery Building and therefore, the suit must fail for non- disclosure / suppression about available premises. It is therefore submitted that said premises are available with the landlord's family.

28. Perusal of cross examination of Yohann shows that he has not admitted that his grandmother was residing in American Express Bakery building; in fact, he has stated that she was residing in ‘Coover Mansion’ at the time of her death where Petitioner No. 2 is staying with his family.

29. In this respect, it is also material to note that after remand, Petitioner No. 2-Ross entered witness box and has clearly stated that the building known as American Express Bakery situated at Clare Road, Byculla is a factory business premises where originally his mother - Petitioner No. 1- Bertha resided. He has stated that it is now occupied by the bakery workers/staff and as such not available to satisfy the bonafide need of son- Yohann. He has produced BMC extract of the said building, which are exhibited as Exh. 79 and 80. He has further stated that the said premises are not suitable, as the same is factory / business premises. In view of such clear statements made by the landlord after remand, it cannot be said that the Petitioners have not disclosed / suppressed available premises and therefore the said argument of Respondents has no merit and the same is rejected. Therefore in these peculiar facts, the judgment of Hanuman Mishrimal (supra) will not help the Respondents.

30. In view of the aforesaid facts and circumstances, in my view, the Petitioners have proved their reasonable and bonafide requirement. Therefore, it is now necessary to consider the aspect of comparative hardship.

31. About comparative hardship, it is necessary to consider the evidence led by Respondent No. 1’s wife – Mrs. Bernadette. She has examined herself as constituted attorney of Respondent No. 1-tenant. She has admitted in her cross-examination that all her sons are citizens of America. That she has good relations with her sons. One is in Texas, other is in Philadelphia, one daughter in law is a dentist. Another son is a CEO of famous science company. That one of his sons was managing the affairs regarding flat no. 404 at Bella Rose, who had given power of attorney to her. She has admitted that the said flat has been disposed off ‘by her’ on 06/12/2006. She has also admitted that in her passport ‘class ARC’ is mentioned by American immigration. She has also admitted that she has ‘a bungalow at Goa’ which is purchased as ‘holiday home having ground plus first floor’ which lies vacant. She has further admitted that her sons provide for finance to her. It is therefore clear that tenant is a well-placed person having a holiday home at Goa and who has sold a flat available at Bella Rose of which he/she had full control in the nature of power of attorney given. If a tenant sells a residential property available with him/her during pendency of the suit, the said fact in my view will go against the tenant so far as comparative hardship is concerned.

32. In this respect, it is material to note that the Petitioners had produced on record a letter written by the Respondent No. 1 (Baldwin) – Tenant to his mother dated 25/01/1975, from Abu Dhabi where he was was working at that time. In the said admitted and exhibited letter, Respondent No. 1 had stated as under:

                   “ xxx Everybody with a rented flat is doing this today. Bunny and I are doing can do the same thing to our landlord - Ross Carvalho, if we want to, i.e. we can collect a big purgree and get another family to come in and he will not be able to do a thing about it.”

                   (emphasis supplied)

If not anything else, this clearly shows that since beginning, the intention of the tenant was to retain benefits of the suit premises with a conviction in mind that - landlord will not be able to do anything about it. This speaks volumes about the intention of the tenant.

33. Overall, the Respondent/Tenant is comfortably placed, both financially and property-wise, titlting the comparative hardship against the Tenant.

34. It is the case of the Respondents that the daughter of Respondent No.1 is spastic, who moves around in wheelchair and for whom the suit premises are required to be retained. The wife of Respondent No. 1 has stated in her evidence (post remand) that certain church, school and the community therein are helpful and required for her spastic daughter, who herself is about 51 years old as on the date of deposition. So far as this aspect is concerned, it certainly has a material bearing on the issue of comparative hardship. However, in my view, the said aspect cannot completely tilt the consideration in favor of the Respondent No. 1. It is because the Respondent has at her disposal a vacant vacation home, her sons are well-placed in America who are admittedly assisting her financially. Also a flat of which control was available with Respondent’s wife has been sold during pendency of the suit. The medical condition of daughter of Respondent No. 1 is not stated to be recent and she has been stated to be spastic since beginning. Therefore her condition was well known when flat at Bella Rose was sold. Considering the circumstances overall, in my view, 3 months time to vacate can be granted to the Respondents.

35. In the aforesaid facts and circumstances, in my view, the Petition must succeed on the ground of bona fide requirement. The Petition is accordingly allowed. The impugned judgments and orders dismissing the suit, are set aside, only to the extent of ground of personal and bonafide requirement. The Respondents and their family members are directed to vacate and handover peaceful possession of the suit flat to the Petitioners within a period of 3 months from upload of this order. It is clarified that after expiry of 3 months from upload of this order, this eviction order shall become executable.

36. Rule is made partly absolute in above aforesaid terms. No order as to the costs.