1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4729 OF 2009 Hamza Kachwala & Anr. ... Petitioners V/s. Harish Dadoba Thakoor. ... Respondent .................. Shri. V.N. Kantawala i/b M.M. Legal Associates for Petitioner. Shri. P.S. Dani i/b Shri. S.M. Sabrad for Respondent. .................. CORAM : S. C. DHARMADHIKARI, J DATE : 16th June, 2009. P.C. 1. This Writ Petition is directed against the judgment and order of the lower Appellate Court confirming decree of eviction in suit filed under the Bombay Rent Act, 1944. 2. The suit was filed by the Respondent – Original Plaintiff in the year 1992 and eviction of the petitioner was sought on the ground that the premises are reasonably and bonafide required for the use and occupation of the landlord and more particularly to enable his son to commence business therefrom. The premises are admittedly commercial. When the petitioner was inducted as tenant he was a sole proprietor of M/s. Dadar Glass Centre. In the year 1971, he changed the business entity and the sole proprietorship became a partnership firm. The proprietorship discontinued whereas his son and wife joined as partners. Later on, it is alleged that the petitioner and his family migrated to Australia and settled down there and set up their business. He moved out of the partnership business in the year 1989 and the wife and two 2 sons continued to remain partners. These are circumstances indicative of unlawfully subletting and therefore, a decree of eviction has been passed on this ground so also on the ground of bonafide requirement of the landlord. 3. That is how this writ petition. 4. Mr. Kantawala appearing for the petitioner contended that the court below has committed an error apparent on the face of the record in as much as the suit should have been dismissed for non joinder of the necessary party. The sole proprietorship no longer remains in existence and to the knowledge of the landlord the partnership firm was tenant. Some rent receipts was issued in favour of the partnership firm. Not joining the partnership firm and partners as party to the suit was fatal and the suit should have been dismissed on that ground alone. That apart, according to Mr. Kantawala, the need of premises is not at all genuine and bonafide. The son of the plaintiff did not step into witness box earlier. It was the landlord who tried to prove the case. Later on the son also stepped into witness box. However, it is an admitted position that the son acquired Travel Agency Diploma certificate in 1985. However, this is a building of ground plus three upper floors. There are two hotels / lodging business being conducted in the suit building. The son was a partner with the father - landlord. Therefore, the version that the son is going to set up his independent travel agency and for that purpose the premises are required is not something on which eviction order could have been passed. More so, when adjacent premises which are commercial are available in the building. Therefore, on the ground of personal requirement, the decree is vitiated. 3 5. As far as the subletting is concerned, also, there is an error inasmuch as, the partnership firm is established in 1981. Thereafter, sole proprietorship has been converted in the partnership business. It is the same business that has been conducted by the firm and therefore, there is no question of a decree being passed on ground of unlawful subletting. For all these reasons, the orders under challenge be set aside. 6. On the other hand, Mr. P.S. Dani for the respondent supported the said judgment and decree and contended that the entire proceeding would indicate that the petitioners have come with a false case. On several occasions vital documents such as passport have been suppressed and kept back. When it was proved that the tenant migrated to Australia and settled there alongwith his family members, then, the decree passed cannot be said to be bad in law. 7. It is not necessary to discuss the details suffice to state that the court below has referred to the fact that the tenancy has been in vogue since 1960. For some time, as per the amended pleas, the proprietorship concern was carrying on business. However, Defendant No. 1 petitioner before me is on record as tenant. 8. In the written statement all pleas were denied and therefore, the necessary issues were framed. Both the sides led evidence. As far as the reasonable and bonafide requirement for traveling business of the son is concerned, the court below by applying the correct principles and considering the oral and documentary evidence held that he desires to start Travel Agency. He is having International Traveling Diploma certificate. The son has no other premises to carry on his business. While discussing this aspect, the court 4 below has adverted to the fact that the son has joined the father in the Hotel Business. 9. Later on, the son wants to also setup his own independent business. Hence, on the basis of the material produced and by holding that the need and requirement of the landlord is genuine and bonafide the court below committed no error in decreeing the suit. The findings in that above in paragraph Nos. 18 and 19 of the Appellate Court Judgment do not suffer from any perversity so as to call for any interference. Even the greater hardship element is considered and taking into account the property available and the fact that the tenant has moved out and migrated to Australia and even his son joined him thereafter it is held that greater hardship would be caused to the landlord if the eviction decree is refused. 10. In this view of the matter, I am of the opinion that the landlord has proved that the suit premises are reasonably and bonafide required for setting up a Travel Agency Business of the son. The finding in that behalf is not vitiated as continued by Shri. Kantawala. 11. As far as subletting is concerned, upon the admitted material and on the basis of the version of both sides, the lower Appellate Court recorded findings of fact on point No. 5 in paragraph No. 22 to 25 of the order under challenge. The Courts below have concurrently recorded that the petitioner was not honest and truthful while deposing before the court. He had not produced the relevant material and did not divulge necessary information. On the basis of the material produced the court below has held that this is a clear case of subletting. The first defendant, petitioner before me was a tenant. He 5 entered into partnership with his son. Allowing the partnership firm consisting of his son and wife to conduct the business of the tenant means in this case, subletting the premises. The landlord was not informed when the partners were inducted in the premises. This case is not of a family business but a distinct entity i.e. a partnership firm taking over the sole proprietorship activities without the consent of the landlord. 12. In any event, the courts below being satisfied about the requirement of the landlord and holding that it is both reasonable and bonafide passed a decree of possession in favour of the landlord, which in my opinion requires no interference. Resultantly, the Writ Petition fails and is accordingly dismissed. No costs. 13. Mr. Kantawala prays that the ad-interim order be continued to enable the petitioner to challenge this order further. The request is opposed on the ground that the suit was filed in the year 1992 and for all these years the possession has been with petitioner. For all these reasons, the ad-interim order be not continued. 14. The Petitioners are stated to be in physical possession of the premises and have not inducted anybody else in the suit premises. In the light of this statement, the ad-interim order is continued for 8 weeks. S. C. DHARMADHIKARI, J. ndm/wp4729.09