Asha Vijay Karande v. Sheela John Pitamber And ORS.

2023:BHC-AS:37044 1/24

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.

OF 202 Mrs. Asha Vijay Karande.

Aged 57, Occ : Vegetable Vendor., Residing at - 257, J. P. Merchant House., Bazar Road, Bandra (W), Mumbai - 400 050.

] ] ] ] ]...Applicant.

VERSUS

1.Sheela John Pitambar, Age 71 years, Occ. Housewife, Residing at Mezzanine Floor, House No.71, Bazar Road, Bandra (W), Mumbai - 400050.

] ] ] ] ] 2.Shri. Rajaram Ramu Gudu (Since deceased)) (Smt. Savitribai wd/o Rajaram Ramu Gudu) (Deceased) ] ] ] ] 2(1)Mrs. Rekha Keshav Hajare.

(Since deceased) ] ] 2(1)(a)Mr. Keshav Babu Hajare, Age 67 years, Occ : Self Employed.

2/4, Swapna Sagar Society, Bapusaheb Vishnu Juvekar Marg, Friend Colony, Bhandup (E), Mumbai - 400 042.

] ] ] ] ] ] 2(1)(b)Mr. Prashant Keshav Hajare, Age 38 yeares, Occupation : Service, 2/4, Swapna Sagar Society, Bapusaheb Vishnu Juvekar Marg, Friend Colony, Bhandup (E), Mumbai - 400 042.

] ] ] ] ] ] 2(1)(c)Mrs. Smita Rajesh Mhatre, Age 35 years, Occupation : Housewife, Sarvodaya Datta Tower, A-Wingh, ] ] ]

2/24 Room No. 102, Motha Goan, Reti Bunder Road, Dombivali (W) 421202.

] ] ] 2(1)(d)Mrs. Mannisha Kishore Karande, Age : 33 years, Occupation : Housewife, Shivasadan Bulding, Room No.6, Ground Floor, Ratnabai Compound, Shivaji Nagar, Mulplease check email from Ladyship.und Check Naka, Thane (W).

] ] ] ] ] ] 3.Mrs. Surekha Bhanudas Pawar, Age : Adult, Occ : Housewife, Mumbai Devi Colony Road, Bholenath Nagar, Chawl, A/1, Room No.13, Diva - 400 612.

] ] ] ] ] 4.Mrs. Usha Shivaji Pote, Age : Adult, Occ : Housewife, Plot No. 75, Sector-C Varsha Nagar, Vibhag Vikhroli, Parkside, Mumbai - 400 079.

] ] ] ] ] 5.Deleted.

] 6.Deleted.

] 7.Mrs. Pinky Manoj please check email from Ladyship.Shinde, Aged About 32 years, Residing at 18/365, Ratna Sindhu, Off. M.H.B. Colony, Gorai Road, Borivali (w), Mumbai - 400 091.

] ] ] ] ] 8.Mrs. Ashiwini Ajay Mane, Aged about 29 yrs, residing at Flat No.

501, 5 floor, A wing, Daffodil Apartent, Natasha Park -1 CHS, Mira Road (East), Mumbai - 401 107.

] ] ] ] ] 9.Deleted.

]...Respondent.

--- Mr. Mahendra Shingade, Advocate for the Applicant. Mr. R.A. Thorat,Senior Advocate a/w Ms.Pratibha Shelke i/by Mr.Ramanand G. Sikhwal, Advocates for the Respondents.

3/24 ---

CORAM

:SHARMILA U. DESHMUKH, J.

DATE :NOVEMBER 30, 2023.

JUDGMENT. :

1. Rule. Rule made returnable forthwith and heard finally with the consent of parties.

2.

The revisional jurisdiction of this Court has been invoked against the judgment dated 6th January, 2022 passed by the Appellate Bench of the Small Causes Court, at Mumbai, decreeing the suit for eviction by reversing the judgment and decree of dismissal by the trial Court. For the sake of convenience, parties are referred to by their status before the trial Court. 3.

RAE Suit No.659 of 2007 was instituted by the plaintiff seeking ejectment of the original-Defendant on the ground of reasonable and bonafide requirement and nuisance. During the pendency of the proceedings, the original-defendant expired and his wife was brought on record and after her death, her four daughters were brought on record. The revision-applicant is one of the daughters of the original tenant and arrayed as Defendant no 4 in the suit and the Respondent Nos.2 to 9 are the other legal heirs.

4/24 4.

The suit premises is situated on the ground floor of House No 71 located at Bazar Road, Bandra, Mumbai. The case of reasonable and bonafide requirement pleaded is that the Plaintiff is an old lady aged about 75 years and suffering from various ailments. That, the premises where she is residing is situated on the second floor/mezannine floor and does not have self contained toilet and bathroom and she is required to use the common toilet situated on the ground floor. That, there is no lift facility in the building and due to her ill health she has been advised not to exert herself. That, the suit premises situated on the ground floor is self contained room and suitable for her residence.

The other requirement pleaded was that her current premises consisting of one room, kitchen and common WC bathroom was inadequate to accommodate herself, her unmarried daughter Vimla and her daughter Phyllis who is a widow and residing with her alongwith her two children. That, by reason of lack of accommodation her son Leslie was residing in Mira Road which is in district Thane and was facing difficulty to travel to his work place at Uran from Mira Road. The ground of nuisance pleaded was that there was blockage of common drainage line by the defendant causing nuisance to the occupants of the building.

5/24 5.

After being brought as legal heirs of original Defendant, written statement dated 14th July, 2012 was filed by the Defendant Nos.1 to 4 adopting the written statement filed by the originaldefendant. The defence was that plaintiff and her son Leslie have assigned development rights in the suit property to a developer. That, the Defendant No.4 (present revision-applicant) with her children were residing in the suit premises alongwith original defendant at the time of his death and as such she is entitled to tenancy rights. It appears that subsequently the written statement came to be amended to plead that the plaintiff has acquired possession of two premises in the same vicinity. By virtue of a decree passed in RAE Suit No.297 of 2007 possession of self contained premises admeasuring more than 600 square feet has been obtained and there is another other self contained premises situated on ground floor of House No.73/8 of which possession has been obtained by the Plaintiff, which is not being used by the plaintiff.

6.

The parties went to trial and the Plaintiff examined herself and her daughter Phyllis whereas the Defendant No. 4 examined herself. The Trial Court by judgment dated 15th February, 2016

6/24 dismissed the suit. As to the bonafide requirement of the family members of the Plaintiff, the Trial Court disbelieved that Phyllis was residing with her mother and further held that as she is working she cannot be said to be dependent on her mother. The Trial Court observed that the case put by the Plaintiff in the cross examination of Defendant No. 4 is that the Plaintiff's son Leslie has acquired the room from another tenant and house No. 73/8 is used by Plaintiff's daughter Violet for residence and as such the requirement of some of the family members was met. The Trial Court considered the admission of the Plaintiff that she has two other buildings and the suggestion given in the cross examination of Defendant No. 4 is that House No. 73 is jointly owned by Plaintiff, her daughters and her son,which facts were suppressed in the plaint. 7.

As regards the bonafide requirement of the Plaintiff herself, the Trial Court held that her family members would not keep her away from the available premises at the cost of her health. On the issue of comparative hardship, the Trial Court held that the financial capability of the tenant to acquire alternative premises was not brought on record. That, the Defendant No. 4 - a widow is a vegetable vendor having two children and if she is evicted greater

7/24 hardship will be caused to her. The issue on ground of nuisance was answered in the negative.

8.

As against the dismissal of the suit, Appeal No. 27 of 2016 was preferred. The Appellate Court held that the Plaintiff's requirement for her use was bonafide and reasonable considering that she is required to use the staircase to use the common toilet. The Appellate Court did not accept the Plaintiff's case of requirement of residence for her daughter Phyllis. On the point of comparative hardship, as regards the ownership of House Nos. 72, 73 and 74 the Appellate Court held that there is no evidence to show existence of other ground floor premises in either building co-owned by the Plaintiff being self contained premises. The Appellate Court held that the Defendant No. 4 had married in the year 1984 and her husband expired in the year 1997. That, there is no case of matrimonial dispute and that she is having alternate accommodation being her husband'

s house at Santacruz. The Appellate Court observed that admittedly there is no evidence to show that she made any attempt for securing alternate accommodation after institution of suit. On the issue of nuisance, the finding of the trial court was upheld and the Appellate Court decreed the suit on ground of bonafide

8/24 requirement.

9.

Heard Mr. Shingade, learned Advocate appearing for the Applicant, Mr. Thorat, learned Senior Advocate appearing for the Respondents.

10. Mr. Shingade, learned counsel for the defendant no.4, has pressed into the service two submissions that there were alternate premises obtained by the plaintiff in the same locality and that there was suppression of the ownership of other properties i.e. building Nos.72, 73 and 74 by the plaintiff. He has invited the attention of this Court to the plaintiff's admission in the cross-examination that she has got two more buildings in addition to the suit building. He submits that after having admitted thus, the plaintiff has sought to retract the admission. According to him, the Plaintiff has suppressed the fact of ownership of other buildings and as such is not entitled to decree for eviction. He contends that the case of the Defendant No 4 as regards the development of the property by the Plaintiff is substantiated and would draw attention to the documents issued by the planning authority for permission to develop.

11. Per contra, Mr. Thorat, learned Senior Advocate for the

9/24 Respondent No.1 submits that the settled position in law is that the landlord is the best judge of his requirement and the Court cannot dictate the manner in which he is required to use the premises. Drawing attention of this Court to the cross-examination of DW-1, he submits that DW-1 has admitted that the plaintiff is residing in mezzanine floor i.e. on second floor in a single room and that there is no toilet facility inside the plaintiff's room and that the plaintiff is using common toilet alongwith the others. He would further submit that no efforts were made by the defendant no.4 to acquire any alternate premises after the filing of the suit and as such, the Appellate Court has rightly decreed the suit.

He submits that the acquisition of other premises is a subsequent event and the requirement on the date of institution of the suit is required to be considered. In support of his submissions he relies upon the decision of the Apex Court in the case of Minal Eknath Kshirsagar vs. Traders and Agencies and Anr. reported in 1997 (1) Mh.L.J. (SC 121) and in the case of Gaya Prasad Vs.

(2) Mh.L.J.

12. Considered the submissions and perused the record.

10/24

13. The ejectment of the tenant was sought on the ground of Plaintiff'

s as well as her family members reasonable and bonafide requirement and nuisance. The suit has been decreed on the ground of reasonable and bonafide requirement and it is not necessary for this Court to consider the issue of nuisance. Before adverting to the facts of the case it may be profitable to refer to the statutory provision of the Maharashtra Rent Control Act, 1996 ("Rent Act") governing the recovery of possession contained in Section 16 of the Rent Act. Section 16(1) (g) provides that the landlord may recover possession of the premises if the Court is satisfied that the premises are reasonable and bonafide as required by the landlord for occupation for himself or by any person for whose benefit the premises are held.

Sub-section (2) of Section 16 provides that no decree for eviction shall be passed on the ground specified in clause (g) of sub section (1) if the Court is satisfied that having regard to all the circumstances of the case, including the question whether other reasonable accommodation is available for the landlord or tenant greater hardship will be caused by passing the decree than by refusing to pass it.

14. The case of reasonable and bonafide requirement was for the

11/24 Plaintiff herself as she required the suit premises which was self contained room on the ground floor as due to her old age and medical ailments she is facing difficulty in using the staircase to use the common WC and bathroom and secondly for the requirement of her family members as her current residence was inadequate to accommodate her two daughters, her grand children and her son.

15. If we peruse the cross examination of the Plaintiff, her case about her medical condition has not been shaken. She has admitted that she owned two more buildings in addition to the suit building, which admission was later retracted. The Defendant No. 4 in her cross-examination has admitted that the suit premises is one single self contained room admeasuring 550 sq.ft. having WC and bathroom facility inside. She has admitted that the plaintiff is residing on the mezzanine floor i.e. second floor in a single room and there is no toilet facility inside the plaintiff's room and that the plaintiff is using common toilet alongwith the others.

16. In so far as the need of the suit premises for residence of Plaintiff'

s family is concerned, the case of her daughter Phyllis residing with her has been disbelieved by the Trial Court as there

12/24 was no document to show that she was residing in the suit property after her marriage, which finding cannot be faulted as the documentary evidence indicates that the addresses given in Aadhar card as well as in her children's educational institution is that of her matrimonial house. The Trail Court held that the other two premises of which possession was acquired subsequently are in possession of Leslie and Violet and as such the need of the family members has been satisfied.

17. The suit was instituted in the year 2007 and the crucial date for evaluating the reasonable and bonafide requirement of the landlord is the date of institution of the suit for eviction. As held by the Apex Court in the case of Gaya Prasad vs Pradeep Shrivastava (supra), the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. Applying the law laid down by the Apex Court to the facts of the present case, the requirement pleaded was of the Plaintiff herself and her family members. As regards the Plaintiff's own requirement, the evidence on record establishes the reasonable and bonafide requirement of

13/24 the suit premises for her own occupation as due to her old age and medical condition she is facing great difficulty while residing in her current residence which is not a self contained premises and being situated on the second floor compels the Plaintiff to use the staircase each time she has to use the common toilet situated on the ground floor. The need of the Plaintiff is an absolute and pressing need and not a mere wish or desire. That apart, admittedly the Plaintiff's daughter Vimla who is mentally challenged is residing with her and the need for a self contained room for Vimla cannot be disregarded.

18. The Trial Court has brushed aside this need by holding that her family members would not keep her away from the available premises at the cost of her health. There is no rationale for this reasoning. It is settled that the landlord is the best judge of her requirement and the Court cannot dictate the manner how and in what manner he should live. The evidence on record establishes the bonafide need of the Plaintiff for a self contained room on the ground floor and the Plaintiff cannot be compelled to go and reside with the other members of her family. The Plaintiff despite being owner of the suit premises is forced to use the common toilet alongwith the other occupants of the building while the Defendant

14/24 No 4 is enjoying the benefit of self contained premises. As such the Plaintiff is deprived of the beneficial enjoyment of her own property.

19. In so far as the requirement of the suit premises for the accommodation of the Plaintiff's family members is concerned, the current premises of the Plaintiff is about 400 square feet with common WC. Admittedly the Plaintiff's daughter Vimla is residing with her who is mentally challenged. The suggestion given by the Plaintiff in the cross examination of the Defendant No. 4 reveals that Leslie- the son of the Plaintiff during the pendency of the proceedings has acquired possession of another premises from other tenant and Violet-another daughter of the Plaintiff is occupying other premises being House no 73/8 of which possession is obtained subsequent to the filing of the suit.

20. The subsequent event of acquiring possession of other room has to be demonstrated to have met the requirement of the family members. The additional evidence led by the Defendant No. 4 merely states that possession of two self contained premises in the suit property are obtained. To corroborate the same, photographs were produced which are not exhibited. There is no material to

15/24 demonstrate that the two rooms of which the possession has been obtained is adequate to meet the needs of Leslie and Violet. As laid down in the case of Gaya Prasad vs Pradeep Srivastava (supra) the need propounded is required to be completely eclipsed by the subsequent event. The deposition that possession of other two room were obtained is not sufficient to conclude that the need has been completely eclipsed. There has to be evidence on record as to the area of the other premises, the location, the number of family members of Leslie and Violet. It also needs to be noted that the Plaintiff has four daughters and as such there is requirement of accommodation when they visit their mother. Considering the evidence on record, in my opinion, the Defendant No.

4 has failed to prove that the need as propounded by the Plaintiff for accommodation of her family members is met by acquisition of the other two premises. I am thus not inclined to accept the finding of the Trial Court that by subsequent acquisition of the other two rooms, the need for accommodation of the Plaintiff's family members has been satisfied.

21. Once it is established that the need propounded by the Plaintiff is both reasonable and bonafide, the provisions of sub

16/24 section (2) of Section 16 of Rent Act come into play. The issue of greater hardship requires a consideration of all circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant. The availability of other reasonable accommodation is thus one of the factors to be taken into consideration while assessing the comparative hardship.

22. In the instant case, the other two rooms of which the possession was obtained subsequently are stated to be in the possession of Leslie and Violet. As such it can be concluded that the said premises are not available to the Plaintiff or Vimla for their use. In the case of Badrinarayan Chunilal Bhutada vs Govindram Ramgopal Mundada (2002 AIR SCW 3307) the Apex Court held in paragraph 7, 8, 9 and 11 as under:

"7. A perusal of the scheme of the Act, so far as the ground of reasonable and bona fide requirement by the landlord for occupation of residential or non-residential premises is concerned, shows that clause (g) of sub-sec.

(1) of S. 13 contemplates a decree for eviction being passed on proof of availability of the ground according to law. In spite of a ground for eviction u/S. 13(1)(g) having been made out, the court deny the relief of eviction if the issue as to comparative hardship is

17/24 answered against the landlord and in favour of the tenant. Thus in a way S.13(2) acts as a proviso to S. 13(1)(g); the former having an overriding effect on the latter. The burden of proving availability of ground for eviction under Section 13(1)(g) lies on the landlord; the burden of proving greater hardship so as to deprive the landlord of his established right to seek eviction lies on the tenant.

8. Sub-section (2) of S. 13 falls more appropriately within the domain of equitable or social justice. Section 13(2) obliges the Court, in spite of the finding as to reasonable and genuine requirement having been arrived at in favour of the landlord, to weigh in scales placing the hardship which would result to the landlord in case of denial of eviction in one balance pan and hardship likely to be suffered by the tenant in case of his being evicted in the other and then find out judiciously which way the balance tilts.An empty truism cannot be hardship. A failure of the landlord to make out a case for eviction under S. 13(1)(g) is not a hardship to landlord; so also on a case for eviction under S. 13(1)(g) having been made out the fact that the tenant will be liable to be evicted is not by itself hardship to tenant.

A mere wish or desire of the landlord to acquire possession over the tenancy premises cannot be said to be a bona fide and reasonable requirement. Requirement implies an element of necessity. The necessity is a necessity without regard to the degree of which it may be. For the purpose of S. 13(2) the degree of urgency or the intensity of felt-need assumes significance. It is a judicious process of finding out, as far as practicable, and then making a comparative measure of the two degrees, which is involved in arriving at a finding on comparative hardship.

18/24

9. The family, the business background of the parties, the availability of accommodation with either parties or in the township, the extent of direness or pressing nature of the need for eviction as against the direness of need or urge of the tenant to continue to occupy or cling to the tenancy premises, with reasons therefor, assume relevance. The court may keep in view how the things would take shape in a reasonably foreseeable future in either event. The conduct of the parties, their mutual relationship may also be relevant.

In spite of the availability of ground for eviction being legally sustainable, for the purpose of deciding the issue as to comparative hardship, the Court may take into consideration availability of such other premises with the landlord, which though not necessarily alternative to the suit premises, may still be available to accommodate the proven requirement of the landlord. The fact that the tenant could have had shifted to other premises or has missed the opportunity of availing occupation of other premises or is likely to part with possession over other premises whereto his business can be or could have been shifted are all relevant factors for the purpose of S. 13(2) though may not be relevant for the purpose of S. 13(1)(g).

These are illustrative factors, incapable of being listed fully and precisely, which enter into the thinking process leading to formulation of opinion on comparative hardship.

10. ..............

11. The Act does not lay down any guidelines or relevant factors based whereon the question of comparative hardship is to be decided. A slight indication is given in the first para of S. 13(2) that regard must be had to (i) all the circumstances of the case, (in) including the question whether other reasonable accommodation is available for the

19/24 landlord or the tenant. The expression '

other reasonable accommodation' as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The Legislature has chosen it appropriate to leave the determination of issue on sound discretion of the Court."

23. The Apex Court held that the burden of proving greater hardship so as to deprive the landlord of his established right to seek eviction lies on the tenant. In that context, if we scrutinize the evidence on record, the deposition is that Defendant No.4 is a vegetable vendor and her son was studying in college. That she was married in the year 1985 and since the year 1986 she is residing in the suit premises. As regards her matrimonial house, the deposition initially is that the premises was rented for period of 11 months and thereafter handed over. On the subsequent date of cross examination she has deposed that the premises at Santacruz was sold by her mother in law as it was standing in her name.

24. Pertinently she has deposed that no efforts were taken to search for alternate premises after service of summons of the suit. The Trial Court held that the principle of law enunciated in the case of Sidharam Mulage & Ors vs Bashir Tamboli & Ors reported in 2009(3) Mh.L.J 907 relied upon by the Plaintiff will come into play

20/24 only if financial ability of tenant to acquire alternative premises is brought on record and placed the burden on the Plaintiff. As indicated above, the Apex Court in the case of Badrinarayan Chunilal Bhutada (supra) has held that the burden of proving greater hardship lies on the tenant and as such it was for the tenant to place on record cogent evidence to demonstrate greater hardship to deprive the landlord of his established right to seek eviction. The case of the Defendant No 4 on the ground of comparative hardship is acquisition of alternate accommodation by the Plaintiff. As already indicated above the availability of alternate accommodation is one of the factors to be considered while assessing the issue of comparative hardship. The evidence on record establishes that the other two rooms of which the possession was obtained was in occupation of Leslie and Violet. As such there was no other alternate accommodation available to the Plaintiff.

25. The Trial Court considered the financial incapability of the Defendant No. 4 and answered the issue of comparative hardship in her favour. There is no evidence adduced by the Defendant No. 4 to establish that any efforts were taken by the Defendant No. 4 to search alternate accommodation and that in view of her financial

21/24 position no alternate accommodation could be acquired by her. Apart from her bare words that she is vegetable vendor and if the decree of eviction is passed she will suffer greater hardship, there is no evidence brought on record to substantiate the same.

26. It is settled that inspite of finding of reasonable and bonafide requirement in favour of the landlord, the Court is required to weigh in the scales the hardship of the tenant and the landlord. Viewed in this context, there is no evidence that there is any alternate accommodation available to the Plaintiff which will satisfy her need to reside in a self contained flat on the ground floor. It is not the case of the Defendant that the Plaintiff is financially capable to acquiring premises suiting her requirement. It has come on record that the other buildings are co-owned by the Plaintiff, her four daughters and her son. On the other hand the Defendant No. 4 has not placed any material to demonstrate her financial inability to acquire alternate accommodation. The Trial Court has considered the case sympathetically on the ground that she is a vegetable vendor without appreciating that the Defendant No. 4 was married and was residing after marriage at her matrimonial house Santacruz with her husband. The Appellate Court has rightly held that the

22/24 Defendant No. 4 has not come with a case of matrimonial dispute. It needs to be noted that the Defendant No. 4 has adopted varying stands in respect of the matrimonial house at Santacruz that the same was rented for period of 11 months and thereafter stating that the premises was sold by her mother in law who was the owner of the premises. What can be inferred is that the Defendant No. 4 has suppressed the existence of the matrimonial house at Santacruz.

27. On the issue of comparative hardship, the trial Court held that there are seven shops in the suit property from which the plaintiff is collecting rent and hence, the plaintiff has independent source of income. On the other hand, there is no evidence to indicate the capacity of Defendant No.4 to acquire alternative accommodation and as such, the greater hardship would be caused to the Defendant No.4 as the only roof on her head will be taken away. The Trial Court failed to appreciate there is no material on record to prove that the rent of the seven shops was sufficient for the Plaintiff to acquire another premises. It is well known that the amount of rent in respect of old tenancies is minimum and it is not possible to obtain another premises from the rent income.

23/24

28. As regards the submission regarding the suppression of ownership of other buildings is concerned, the contention of Mr. Shingade was that the Plaintiff is also owner of House Nos. 72, 73 and 74. In the cross examination, the Plaintiff firstly admitted that apart from the suit premises she is the owner of two other buildings, which was later retracted by her. There is no suggestion given to her as to the description of the two buildings. What can be found from the suggestions given by the Plaintiff in the cross examination of Defendant No 4 is that House Nos. 71 and 73 are jointly owned by the Plaintiff, her daughters and her son. It is not the case of the Defendant No. 4 that the Plaintiff is in possession of the House No.

73. As regards House No. 73/8 the suggestion given was that the Plaintiff'

s daughter Violet is in possession of House No. 73/8 and as such the premises were not available for occupation for the Plaintiff. Admittedly possession of House No. 73/8 was acquired subsequent to the filing of the suit. As the House No. 73 was not in possession of the Plaintiff, it cannot be stated that there was suppression of material fact which was required to be disclosed for the purpose of effective adjudication as to the bonafide and reasonable requirement of the landlord.

24/24

29. As regards the submission that subsequently documents have been obtained to show that the property is being developed, I am not inclined to consider the same as the documents are not part of record before the Trial Court and the Appellate Court.

30. In light of the discussion above, I am not inclined to interfere with the impugned Judgment dated 6th January, 2022. At this stage learned counsel for the Applicant seeks stay of the order for period of three months. The suit is of the year 2007 and I am not inclined to grant stay of three months. The order is stayed for a period of eight weeks from the date of uploading of the order on the official website of Bombay High Court.

(Sharmila U. Deshmukh, J.)