The petition challenges the order passed by the learned Joint District Judge, Thane dated 21st June, 2002 thereby allowing civil appeal no. 145/1999 filed by the respondent-tenant and setting aside the decree of eviction as passed by the learned Joint Civil Judge, Junior Division, Thane in Regular Civil Suit No. 293/1995 dated 29th July, 1999.

2. The facts in brief giving rise to the present petition are as under:

The original plaintiff is the owner of ground and first floor of a building known as Shrikrupa Building located at Gawand Peth at Thane. The husband of the defendant was the tenant of the plaintiff in respect of two rooms and kitchen with W.C./Bathroom admeasuring 650 sq. ft area on the ground floor on a monthly rent of Rs. 160/-per month exclusive of taxes since March 1974. It is the contention of the plaintiff that the suit premises were given on rent to the husband of the defendant only for residential purposes. The husband of the defendant-tenant died on 17th December, 1993. After the death of defendant's husband she started residing alongwith her two children in the suit premises.

3. It is the contention of the plaintiff that the defendant was working in Murphy Co. at Thane and after accepting the voluntary retirement scheme she started a creche in the suit premises. According to the plaintiff there were 18-20 children in the said creche. It is the case of the plaintiff that on account of this, there was a nuisance to the plaintiff as well as other residents of the Society.

4. According to the plaintiff rent was unpaid since 1st January, 1994. It can be seen from the record that defendant sent a notice dated 15th March, 1994 to the plaintiff requesting for changing rent receipt in her name. However, plaintiff by her reply dated 22nd June, 1994 terminated the tenancy of the defendant. It is further the case of the plaintiff that the defendant had erected permanent structures without her permission as under:

i) North side open gallary is enclosed by iron grills 14' X 4'.

ii) West side open gallary is also enclosed by iron grills 13' X 4'.

iii) The original doors were broken.

iv) East side window covered by iron angles 5' X 2'.

5. It was further the case of the plaintiff that plaintiff was residing alongwith her family members, totally 6 in number. The members residing were the plaintiff herself who was a schizophrenia patient, her divorced daughter namely Rekha Sumant Barve, son of plaintiff namely Yeshwant, his wife, their two school going children. It is the case of the plaintiff that area in their occupation was only 300 sq. ft with common toilet and bathroom and that the said area was inadequate. The plaintiffs, therefore, pleaded for the requirement of the suit premises on the ground of bonafide requirement also. On the basis of the aforesaid contentions, a suit for eviction came to be filed by the plaintiff.

6. The defendant resisted the suit by filing the written-statement. One of the grounds raised by the plaintiff was regarding non-joinder of the necessary parties i.e. her son and daughter. It was the contention of the defendant that plaintiff had deliberately not joined them as respondent. It was further the case of the defendant that though after the death of her husband she attempted to pay rent, the same was not accepted. It was also the further case that even money orders were not accepted and as such defendant was depositing the rent in the Bank. Insofar as starting of crèche is concerned, the same was specifically denied by the defendant. It was her case that she was taking students to the school and bringing them back from school residing in nearby locality, so as to earn her livelihood. She also denied the contention regarding the permanent alteration made to the structure. The contention of the plaintiff regarding bonafide requirement was also denied by the defendant.

7. On these pleadings the suit was tried by the learned trial Judge. After the conclusion of the trial, the l