The Appellate Court rightly adverted to the fact that there is nothing on record to show that the petitioners have made efforts to find out alternative accommodation for their residence and could not get one. Reliance was placed on paragraph No. 14 of the defendants evidence which reads thus:
"14. It is true that the plaintiff has offered me an alternative accommodation of one room admeasuring 10 x 12 with balcony, with bathroom W.C. combined, in the same suit premises having separate entrance. I am not prepared to accept the offer of the plaintiff regarding the above said alternate accommodation. I tried to find out the alternative accommodation for my residence from June, 1980 near Pratap Talkies, S.T. Workshop, Near Highway at Murphy Company. It is not true to say that I did not search an alternate accommodation for my residence after receiving the notice from the plaintiff."
From the evidence it is obvious that no positive evidence has been adduced by the defendants that getting alternative premises in the same locality or the same city was impossible. If that be so, then applying the principle enunciated by the Apex Court in MANU/SC/0313/1978 : [1979]2SCR1 in the case of Ms. Bega Begum & others v. Abdul Ahad Khan (dead) by L.Rs. and others, the Court will have to answer the issue of comparative hardship against the petitioners-tenants and in favour of the respondent-plaintiff landlady.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 4457 of 1991
Decided On: 28.08.2002
Gaur Chandra Basu and Anr. Vs. Ruchira Ashok Sonde and Anr.
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation: 2002(1) ALLMR 312
1. This petition under Article 227 of Constitution of India takes exception to the judgment and decree passed by the VIIIth Additional District Judge, Thane dated 17th August, 1991, in Civil Appeal No. 236 of 1988. The premises in question is flat No. 4 consisting of 3 rooms and kitchen in Vasant Bahar Co-operative Housing Society Ltd. at Maharshi Karve Road, Thane. This flat was purchased in the joint names of the respondent No. 1 (hereinafter referred to as the respondent) and her mother. The petitioners were inducted in the said premises as tenants on monthly basis. The respondent gave demand notice to the petitioners on 6th May, 1981 claiming arrears of rent and also terminating the tenancy. Thereafter, respondent filed suit in the Court of Joint Civil Judge, Junior Division, Thane being R.C.S. No. 1213/1981 for possession of the suit premises on the ground of arrears of rent, reasonable and bona fide requirement, acquisition of suitable alternative residential accommodation by the tenants, nuisance and annoyance. The trial Court by judgment and decree dated January 7th 1988, dismissed the suit and negativated all the grounds pressed into service by the respondent plaintiff. Against that decision, respondent-plaintiff carried the matter in appeal before the District Court, being Civil Appeal No. 236 of 1988. The Appellate Court has allowed the appeal and directed the petitioners to hand over the possession to the respondent, but only on the ground of reasonable and bona fide requirement. It is this decision which is the subject matter of the challenge in the present writ petition under Article 227 of the Constitution of India.
2. According to Mr. Oak, the learned Counsel for the petitioners the Appellate Court has clearly exceeded its jurisdiction in decreeing the suit in favour of the respondent. He submits that there is no pleading whatsoever in the plaint making out a cause for reasonable and bona fide requirement. Whereas, the averments in plaint would only suggest that the respondent had merely expressed her desire to occupy the suit premises. Learned Counsel further contends that however, during the course of evidence the respondent brought on record certain new materials which were not pleaded in the plaint and the Appellate Court accepted the same grounds to hold that the respondent has established her requirement was reasonable and bona fide. Learned Counsel, therefore, contends that what is proved during the evidence is not pleaded and, if that be so, the said evidence will have to be ignored and no decree can be passed in favour of the respondent on the said ground. In support of this contention he has placed reliance on the decisions of this Court reported in MANU/MH/0165/1975 : 1974 Mh.L.J. 774 Ganpat v. Rameshwar & another MANU/MH/0432/1979 : 1979 Mh.L.J. 545 Sukhadeo K. Ghatode v. Laxmibai D. Mohoril, and on the decision of the Apex Court in the case of T. Sivasubramaniam & others v. Kashinath Pujari & others, reported in MANU/SC/0532/1999 : AIR1999SC3190 . He submits that the plaintiff-landlady was expected to not only set out her need in the plaint but was also obliged to establish the same during the trial. According to him, in the present case there is absolutely no pleading with regard to the matter which found favour of the Appellate Court to decree the suit against the petitioners. Learned Counsel further contends that both the pleadings as well as evidence adduced by the respondent would only indicate that the plaintiff had mere desire and there is no sincere need to occupy the suit premises. Therefore, he submits that, in such a situation, no decree for possession can be made on the ground of bona fide requirement, having regard to the law enunciated by the Apex Court in Rahabhar Productions Pvt. Ltd. v. Rajendra K. Tandon, MANU/SC/0245/1998 : [1998]2SCR470 and Raghunath G. Panhale (Dead) by L.Rs. v. Changanlal Sundarji & Co., MANU/SC/0657/1999 : AIR1999SC3864 . Learned Counsel further contends that the Appellate Court, in any case has completely gone overboard in reversing the findings returned by the trial Court, for it has not considered the entire evidence in its proper perspective nor analysed the same before overturning the finding of fact returned by the trial Court. On the other hand, decision of the Appellate Court is utterly confused as the Appellate Court has answered both the issues of reasonable and bona fide requirement as well as comparative hardship together. He submits that the evidence on record would not permit the Court to take the view that has been taken by the Appellate Court. According to the learned Counsel, the findings of fact recorded by the Appellate Court on the issue of reasonable and bona fide requirement cannot be sustained in law. He further submits that even the finding of fact returned by the Appellate Court on the issue of the comparative hardship suffers from the same error and it will have to be obliterated from the record. He contends that the Appellate Court has not considered the crucial fact that the respondent was in possession of premises at Khar, Mumbai and, it has come in evidence that the respondent had another premises at Bandra and her husband was having premises at Dadar. If that be so, it would be preposterous to evict the tenant as the issue of comparative hardship will have to be answered against the respondent.
3. On the other hand, Mr. Apte, the learned Counsel for the respondent contends that it is not a case of no pleading relating to the ground of reasonable and bona fide requirement as contended, but at best the averments in the plaint can be described as vague. He contends that the entire plaint will have to be read as a whole. Moreover, in paragraph No. 4, it is clearly averred that the respondent required the suit premises for her personal use, occupation as well as for the family. He submits that, no doubt, the expression used in the plaint is "desires", however, the Court would not give literal meaning to that word. Whereas, considering the pleadings as a whole, contends Mr. Apte, the respondent has set out the reasonable and bona fide requirement on the basis of which possession of the suit premises was pressed into service. Learned Counsel further contends that, the petitioners in their written statement have not made any grievance either about the lack of pleadings in the plaint relating to this ground nor relating to the vagueness of the pleadings or that there was no cause of action for instituting the suit on the ground of reasonable and bona fide requirement in the present case. He has relied on paragraph No. 7 of the written statement to contend that the petitioners had clearly understood the case set out by the respondent-plaintiff with regard to this ground and also contested the case of the respondent, therefore, it would be inappropriate to non suit the respondent particularly when the trial Court had framed issue and the petitioners also allowed the evidence adduced by the respondent to be let in during the trial without any demur and that the matter was tried and decided by the Court below on the basis of such materials which came on record. To buttress this contention he has placed reliance on the decision of the Apex Court reported in MANU/SC/0043/1987 : [1987]2SCR805 Ram S. Gupta (dead) by L.Rs. v. Bishun Narain Inter College & others, and Baba K. Bhinge v. Samast L. Gavali & others, as well as MANU/SC/0004/2001 : 2001(2) S.C.C. 355, (paragraph No. 5) and of this Court reported in 2001(4) All.M.R. 601. He submits that there was sufficient pleading as well as evidence brought on record during the trial so as to decisively answer the subject issue in favour of the respondent. He has further pointed out that what is relevant to note is that the case made out by the plaintiff during the evidence, in particular in paragraph Nos. 3, 4, 7 & 8 of the examination in chief, has not been challenged by the petitioners during the cross-examination. If that be so, there is no reason to doubt the bona fide and reasonable requirement of the respondent-plaintiff and no fault can be found with the conclusion reached by the Court below to answer the issue against the petitioners tenants. He submits that even if there are some errors here and there in the reasoning or the discussion of the Appellate Court that should not be a reason to interfere with the decision of the Appellate Court in exercise of the powers under Article 227 of the Constitution of India. To support this contention he has placed reliance on the decision of the Apex Court reported in M.M. Amonkar v. Dr. S.A. Johar, MANU/SC/0328/1984 : [1984]2SCR646 and Jagdish Prasad v. Angoori Devi, MANU/SC/0312/1984 : [1984]3SCR216 . He therefore, submits that this is not a case where the Appellate Court has returned finding of fact in the absence of any material on record in support of such a finding. According to him, the conclusion reached by the Appellate Court if can be supported on the basis of material on record, the Court should be loath to interfere with the same, in exercise of writ jurisdiction under Article 227. Learned Counsel, further contends that in so far as the issue of hardship is concerned, the Appellate Court has dealt with the relevant factors that are required to be taken into account for considering this issue in paragraph No. 33 of the judgment. He submits that it has come on record that the respondent has no other premises of her own, particularly in the locality of Thane. He submits that the respondent was staying at Khar in a rented premises and she had no other premises of her own except the suit premises. He further submits that it has come on record that alternative premises could be secured by the petitioners within the locality as well as city of Thane. Learned Counsel further contends that the Appellate Court even rightly adverted to the financial position of the petitioners and if that is taken into account, it is not possible to suggest that any hardship will be caused to the petitioners if the decree for possession was passed. In the circumstances, learned Counsel contends that the conclusion reached by the Appellate Court on the issue of reasonable and bona fide requirement as well as the issue of comparative hardship needs no interference.
4. Having considered the rival contentions I shall first advert to the plea that there is no pleading and that the respondent has not set out the need in the plaint as filed. It will be useful to advert to paragraph No. 4 of the plaint. On reading of the said paragraph as a whole, it is not possible to accept the grievance made that there is no pleading about the ground of reasonable and bona fide requirement as such. The relevant portion of paragraph No. 4 reads as; "The plaintiff further submits that many of her nearest relatives are residing in Thane in the same locality where the suit premises are situate and the plaintiff had therefore taken the suit premises for her personal use and occupation and for the use of her family members". The later part of paragraph No. 4 then goes on to explain as to why the plaintiff did not immediately occupy the suit premises after purchase as she was at the relevant time studying and attending lectures at the Institute of Science, Wilson College, Sofia College and G.S. Medical College. It is further averred that she has completed her studies, and therefore, she wanted the suit premises. The relevant averments read thus:
"The plaintiff submits that her education is now completed and her father has also expired and the difficulties due to which the plaintiff and her parents were not able to occupy the suit premises in the year 1972 are now over. The plaintiff is now married and has two children and she therefore desires to occupy her own flat viz. the suit premises. The plaintiff therefore submits that the suit premises are reasonably and bona fide required by her for occupation by herself and her family members and the defendant is liable to be ejected from the suit premises under section 13(1)(g) of the Bombay Rent Act."
On reading paragraph No. 4 as a whole, it is not possible to countenance the grievance made that there is no case of bona fide and reasonable requirement set out in the plaint. No doubt, the expression used in the plaint is "desires", however, that expression cannot be read in isolation, but will have to be read along with other assertions made in the plaint. Understood thus, it is not possible to accept the grievance that there is no pleading about the bona fide and reasonable requirement. At best it is possible to say that the pleading is vague relating to the material particulars. Nevertheless, it is seen that the petitioners did not make any grievance about that in the written statement filed before the trial Court or at any stage of the trial. Obviously therefore, it would necessarily follow that the petitioners understood the case of the respondent. Be that as it may, the petitioners have merely denied that the requirement of the respondent was reasonable and bona fide. That the parties went for trial on the basis of such pleading, and the trial Court also framed issue with regard to the reasonable and bona fide requirement. Moreover, the parties examined their respective witnesses. What is relevant to note is that the respondent-plaintiff entered the witness box and deposed with regard to the reasonable and bona fide on the basis of which decree for possession was sought. It is relevant to advert to paragraphs 3, 4 and portion of paragraph No. 8 which has come during the examination in chief of the respondent-plaintiff. The same reads thus:
"3. I was married in the year 1976. I have two issues, one son and one daughter. My son is aged about 9 years and daughter is aged about 5 years. We had purchased the said flat at Thane only because our relatives are in Thane. My maternal aunt viz. Sushila Kathade is also residing in one and the same society. My three maternal uncles are also residing at Thane at Ram Maruti Road, Thane which is just near the suit building. My maternal sister viz. Sangita Chandrachud is also residing at Thane. She is also residing in the same society.
4. I am serving as a Chemist in National Hospital, Mahim, Bombay. My husband is also serving at Dombivli and Ambarnath in Acharya Chemicals as a Production Officer. My mother-in-law is aged about 76 years who is residing with us. She is always sick. There is no other member in our family to look after my children. So we need the suit premises bona fide for our personal use and occupation. If the possession of the suit premises is handed over to me, my relatives can look after my children and also my mother-in-law. If the possession of the suit premises is handed over to us, it will be more suitable for my husband because Ambarnath and Dombivli are nearer to Thane and he will be also able to look after my children. It is not true to say that we not purchased the suit premises for other source of earnings.
8. ........The suit premises is in the heart of city. The suit flat is consisting of 3 rooms, kitchen and two balconies. The area of the suit flat is 700 sq.ft. The said flat is near New English School, Thane. The suit flat is very convenient for all the purposes. Market, Railway Station, etc. are near the suit flat."
5. What is relevant to note is that at no point of time any objection was taken by the petitioners for adduction of this evidence being outside the pleading. In other words, it was allowed to be let in . The parties had obviously understood each others case very well. What is striking in this case is that though the above said case was made during the evidence by the plaintiff, but there is absolutely no cross-examination on this aspect. The inevitable consequence of that is that the defendants have virtually conceded the case set out by the plaintiff relating to the factum of her reasonable and bona fide requirement as has come during the evidence. It is not possible for this Court to find out reason as to why there was no cross-examination on this material aspects. Suffice it to note that the conclusion reached by the Appellate Court while answering the issue of reasonable and bona fide requirement in favour of the respondent, therefore, cannot be doubted.
In the fact situation of this case I have no hesitation in rejecting the grievance made by the petitioners that there was absolutely no pleading or no evidence adduced to establish the factum of bona fide and reasonable requirement. Reliance is placed by the Counsel for the petitioners on the decisions reported in MANU/MH/0165/1975 : 1974 Mh.L.J. 774 and MANU/MH/0432/1979 : 1979 Mh.L.J. 545 and MANU/SC/0532/1999 : AIR1999SC3190 , (supra) contending that it is obligatory on the part of the landlord to set out the need in the plaint, failing to do so no decree can be passed in favour of the landlord. To my mind, these decisions are clearly distinguishable ones. In as much as, in the decision reported in MANU/MH/0165/1975 : 1974 Mh.L.J. 774 in paragraph No. 4 thereof, the Court has noted that there was absolutely no details in the application as to whether the premises were required for his residence or for his business or for godown or for any other purpose. Besides even in the evidence nothing was brought on record. That is not the case at hand. In the present case, clear assertion has been made that the premises are required for residence of the plaintiff and for her family members and evidence in support of that plea is adduced. Even the decision reported in MANU/MH/0432/1979 : 1979 Mh.L.J. 545 would be of no avail as that decision has followed the principle enunciated in the earlier decision of this Court referred to above. Much reliance was placed on the decision of the Apex Court in T. Sivasubramaniam case (supra) to contend that mere desire of the landlord was not sufficient to accept the claim of bona fide and reasonable requirement. Relying on paragraph No. 4 of the said judgment it is argued that the landlord must set out his need in its petition and establish that such a need is bona fide. As observed earlier, in the present case the plaintiff has clearly pleaded about the need in the plaint and has also adduced evidence in support of her case during the trial. May be further details have come on record during the evidence which were not specifically pleaded. However, to my mind, the present case would be governed by the principle enunciated by the Apex Court in MANU/SC/0043/1987 : [1987]2SCR805 , where the Apex Court has observed that if the parties go for trial having understood each others case very well and allowed the evidence to be let in, then the plaintiff cannot be non-suited on the ground of vagueness in pleading. Applying that principle to the case on hand, the grievance made before this Court by the petitioners is unacceptable.
6. The next argument advanced on behalf of the petitioners that the evidence adduced on behalf of the plaintiff will have to be ignored, because there is no pleading in that behalf. There is no substance in this grievance. As observed earlier, the decisions of the Apex Court in MANU/SC/0043/1987 : [1987]2SCR805 , clearly deals with this aspect of the matter. It is not possible to say that any prejudice has been caused to the petitioners by adduction of that evidence by the respondent. As is seen from the record, the petitioners did not take any objection for letting in of the said evidence, but contested the matter having fully understood the case of the respondent. What is relevant to note is that the petitioners did not think it necessary to challenge the evidence of the respondent. In this view of the matter, the issue of reasonable and bona fide requirement will have to be answered in favour of the respondent. Therefore, no fault can be found with the conclusion reached by the Appellate Court in this behalf.
7. That takes me to the other grievance made by the petitioners that the materials on record would only indicate that the respondent had only expressed her "desire" to get possession of the suit premises. Even this contention is devoid of merits. As is seen from the pleadings as a whole and the evidence that has been adduced by the respondent plaintiff, positive case regarding bona fide and reasonable requirement has been made out. The Appellate Court, therefore, was right in answering the said issue in favour of the respondent-plaintiff.
8. The learned Counsel for the petitioners, however, contends that the other witness examined by the plaintiff has conceded that the plaintiff has a rented block at Bandra. On the other hand the learned Counsel for the respondent has rightly pointed out that the plaintiff has clearly accepted the position in her evidence that she is presently residing in rented premises at Khar, Mumbai. Interestingly, the fact that the respondent has another premises at Bandra is not put to her during the cross. If that question was put to her and she had failed to offer any explanation then it would have been a different matter. To my mind, version coming from P.W. 2 that respondent had premises at Bandra would be of no avail. Moreover, as rightly contended by the respondent, there is no much distinction while mentioning the locality of Khar and Bandra for which reason the P.W. 2 must have described it as "Bandra" instead of "Khar". It is therefore, not possible to overturn the conclusion reached by the Appellate Court on the factum of reasonable and bona fide requirement having been established by the respondent-plaintiff. If that be so, then respondent-landlady cannot be denuded of her right to occupy the suit premises which are owned by her. The Apex Court in the decision reported in MANU/SC/0240/1966 : [1966]3SCR868 M. Padmanabha Shetty v. K.P. Papiah Shetty, has taken the view that when the landlord is in need of the premises he has purchased and owned by him for his personal use the Court cannot doubt the bona fide and reasonable requirement of the landlord. Understood thus, there would be no occasion for this Court to doubt the reasonable and bona fide of the respondent which is found to have been established by the Appellate Court below.
9. Next grievance made on behalf of the petitioners is about the approach adopted by the Appellate Court of not analysing the matter in its proper perspective and failed to deal with each of the finding of the trial Court. The Counsel for the respondent rightly contends that though the judgment of the Appellate Court is possible to be criticized as not happily worded but that by itself cannot be a ground for interference under Article 227 of the Constitution. There is force in this contention. To reassure myself as to whether the conclusion reached by the Appellate Court can be sustained. I have examined the pleadings as well as the evidence on record and I have no hesitation to hold that the view taken by the Appellate Court is a possible view and cannot be branded as perverse or manifestly wrong. I have already adverted to some of the such materials which are already on record. Merely because the judgment of the Appellate Court is not happily worded that cannot be the basis to exercise writ jurisdiction under Article 227. Reliance is rightly placed on the decision of the Apex Court reported in MANU/SC/0328/1984 : [1984]2SCR646 to contend that the scope of jurisdiction under Article 227 is limited to seeing that the subordinate courts functions within the limits of its authority. The jurisdiction cannot be exercised as the cloak of an appeal in disguise. That the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as a Court of appeal. To my mind, since there is sufficient material on record to uphold the ultimate conclusion reached by the Appellate Court, I would affirm the ultimate conclusion of the Appellate Court.
10. That takes me to the issue of comparative hardship. The Appellate Court has dealt with that aspect in paragraph Nos. 33 and 34 of its decision. The position that emerges from the record is that the respondent has no other premises of her own. The respondent is presently staying in a rented premises at Khar, Mumbai. Besides, it has come on record that alternative premises were available in the locality and in the same city. Even the financial position of the petitioners has been discussed. The Appellate Court rightly adverted to the fact that there is nothing on record to show that the petitioners have made efforts to find out alternative accommodation for their residence and could not get one. Reliance was placed on paragraph No. 14 of the defendants evidence which reads thus:
"14. It is true that the plaintiff has offered me an alternative accommodation of one room admeasuring 10 x 12 with balcony, with bathroom W.C. combined, in the same suit premises having separate entrance. I am not prepared to accept the offer of the plaintiff regarding the above said alternate accommodation. I tried to find out the alternative accommodation for my residence from June, 1980 near Pratap Talkies, S.T. Workshop, Near Highway at Murphy Company. It is not true to say that I did not search an alternate accommodation for my residence after receiving the notice from the plaintiff."
From the evidence it is obvious that no positive evidence has been adduced by the defendants that getting alternative premises in the same locality or the same city was impossible. If that be so, then applying the principle enunciated by the Apex Court in MANU/SC/0313/1978 : [1979]2SCR1 in the case of Ms. Bega Begum & others v. Abdul Ahad Khan (dead) by L.Rs. and others, the Court will have to answer the issue of comparative hardship against the petitioners-tenants and in favour of the respondent-plaintiff landlady. However, there is one aspect which the Appellate Court has glossed over namely, by virtue of the later part of sub-section (2) to section 13 of the Act, the Court was obliged to examine as to whether there was any possibility of passing a partial decree. The Apex Court in the case of Rahman Jeo Wangnoo v. Ram Chand & others, reported in MANU/SC/0362/1977 : [1978]2SCR380 has observed that the provision such as section 13(2) of the Act mandates the Court to consider whether partial eviction as contemplated therein should be ordered or the entire holding should be directed to be evicted. The Apex Court further observed that the Court must proceed on the footing that the absence of a specific pleading under the said proviso does not stand in the way of the obligation of the Court to act in compliance with the mandate of the statute. No doubt that decision was in respect of provision pertaining to the Jammu & Kashmir Houses and Shops Rent Control Act, but the requirement under the said Act is more or less similar to one under sub-section (2) of section 13 of the Bombay Rent Act. Ordinarily, therefore, I would have remitted the matter to the Appellate Court for examining this aspect. In the present case, however, it will not be necessary to remand the matter to the Court below. This so because the plaintiff had filed an application before the trial Court Exhibit 74, and as rightly pointed out by the learned Counsel for the petitioners, an unconditional offer was made by the respondent to the petitioners to retain portion of the suit premises being one room in the northern side of the flat admeasuring 12 x 10 feet with one balcony admeasuring 10 x 6 feet and the bathroom and W.C. admeasuring 12 x 3.5 feet attached to it by way of alternative accommodation. It is not in dispute that the said premises though part of the suit premises has a separate entrance. The portion of the cross-examination of defendant which is referred to above would also indicate that position, for that was the suggestion made to the defendant even during evidence. If this be so, it is clear from the material on record that there is a distinct possibility of passing of a partial decree in respect of the part of the premises only and no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises. It is, therefore, not necessary to remand the matter for examination of that aspect. With regard to this position Mr. Apte Counsel for respondent, however, contends that in the present case the defendant did not avail of the said offer and the Court need not consider making of partial decree in such a situation. This submission does not commend to me. As observed by the Apex Court in Rahman case (supra) that the provision does not stand in the way of "obligation of the Court" merely because of the absence of the pleadings by the parties. It necessarily follows that the Court will proceed to pass such partial decree even if it is unacceptable to the tenant. It is for the tenant to avail of the partial decree or to give up even that part of the premises and vacate the entire premises, for I have already upheld the conclusion of the Appellate Court that greater hardship will be caused to the landlady if decree was to be refused. Therefore, merely because the petitioners have refused the offer made by the respondent-plaintiff that would not absolve the Court from its obligation of making decree in respect of the part of the premises, even when there is sufficient material to show that no hardship would be caused to either party if such a decree was to be passed. It is not the case of the respondent that any hardship was to be caused to her if such a decree was to be passed, as she had herself made the offer regarding that portion of the suit premises as alternative accommodation to the defendants.
11. In the circumstances, this writ petition would partly succeed. The decree passed by the Appellate Court stands modified to the extent that the petitioners-tenants would be entitled to retain one room on the northern side of the flat admeasuring 12 x 10 feet with one balcony admeasuring 10 x 6 feet and the bathroom and W.C. admeasuring 12 x 3.5 feet attached to it; the decree passed by the Appellate Court with regard to the remaining portion of the suit premises is maintained as it is. Accordingly this writ petition partly succeeds in the above terms. It is needless to mention that the premises that will be allowed to be retained by the petitioner on the northern side will be provided with separate entrance as was offered by the respondent-plaintiff and suggestion to that effect made to the defendant during the cross-examination referred to above. Rule made absolute in the above terms with no order as to costs.
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