1 cra512.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.512 OF 2010 Arun Ramkrishna Dhote & others ...Applicants vs. Zodiac Clothing Co.Limited ...Respondent Mr.A.V.Anturkar i/b Mr.P.G.Lad for the applicants Mr.V.A.Thorat, Sr.Counsel with Mr.A.Dasgupta i/b M/s.Jhangiani & Narula & Associates for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 1, 2010 P.C. 1 By this civil revision application under section 115 of the Code of Civil Procedure,1908 the applicants who are original defendants have challenged the concurrent decrees of eviction passed by the Courts below on the ground of bonafide requirement. 2 The suit property is a structure consisting of ground floor admeasuring 2046 sq. ft situated at 10/76 Dr.E.Mozes Road, Worli, Mumbai 400 018. According to the respondent-plaintiff-landlord one Ramkrishna, the predecessor of the applicants was inducted in the suit premises as a tenant. He was carrying on business therein under the name and style of M/s.Asiart Printers as a sole proprietor thereof. The revision applicants are the legal representatives of the said Ramkrishna. The suit was filed on the ground of bonafide need. It was contended that the respondent was carrying on business of manufacturing and sale of garments both for 2 cra512.sxw the sale for market in India and for export. It was contended that at present the respondent was occupying the premises in the building adjoining to the suit premises in which the respondent is having its office. It was contended that apart from the fact that records of the respondent are stored in the said office premises, there was a staff of 285 persons. It is alleged that the business of the respondent was expanding and the respondent needs to engage additional staff and requires additional space for storage of articles. It was contended that the suit premises was suitable for expansion activities of the respondent as the respondent intended to increase the staff strength by 30 to 40 numbers. It was alleged that there will not be any hardship to the applicants as they are not carrying on any business in the suit premises and they have acquired another accommodation for their business in Navi Mumbai. The suit was contested by the revision applicants by filing written statement. They denied that there was a bonafide need in existence of the respondent. The applicants also denied that they are not using the suit premises for business and that they have acquired another premises in Navi Mumbai. The courts below have accepted bonafide need of the respondent. The finding on the issue of the comparative hardship was also recorded in favour of the respondent. 3 The learned counsel for the revision applicant submitted that there are certain fatal admissions given by the witness of the respondent which show that other premises are available to the respondent. He pointed out that the witness examined by the respondent accepted that the respondent is having one administrative office at 10/76, Haines Road, Worli, Mumbai. He pointed out that the respondent was having two subsidiary companies. Out 3 cra512.sxw of the two companies, one company is having a property in Worli which is next to Dr.E.Mozes Road,Worli, Mumbai. The learned counsel pointed out that the witness admitted that in the year 2002-2003, the respondent acquired the company known as Metropolitan Trading Company which is a premises on the second floor of 10/76 of Haines Road, Worli. He pointed out that the witness admitted that the said company is having galas at A to Z Industrial Estate at Lower Parel. He pointed out that there are industrial galas admittedly held by the respondent. He pointed out that the premises on the second floor and fifth floor at 10/76, Haines Road are taken by the respondent-company on leave and licence basis in the year 1997. The learned counsel pointed out that effect of availability of the said premises has not been taken into consideration by the Courts below and hence, the finding on the issue of bonafide requirement is perverse. The learned senior counsel for the respondent supported the impugned Judgments and decrees. 4 I have considered the submissions. The learned counsel for the applicants has taken the Court through the notes of evidence. I have perused the notes of evidence. In the plaint, the respondent has come out with a case that the respondent is occupying the premises in the building adjoining the suit premises. It is stated in paragraph 5 of the plaint that in the said adjoining building, the respondent has staff of 285 persons and there is also the record of the company stored in the said premises. The suit premises admeasures 2046 sq. ft and the requirement of the suit premises pleaded in paragraph 5 is for the purpose of engaging additional staff. It is contended that the business of the respondent was expanding. In the examination-in-chief of one Belthur Mahabala, an officer of the respondent, he 4 cra512.sxw has stated that in the building adjoining the suit premises, the respondent was in occupation of the space admeasuring about 5000 sq. ft in which there was staff of 285 persons. He pointed out that apart from the staff, files and records of the company have been kept in the said premises. He stated that as the premises occupied by the respondent are insufficient, members of the staff have to sit in crammed space. He stated that the respondent was required to engage about 40 persons to cope up with the business. This requirement pleaded is of occupying the suit premises which are abutting the existing the office premises. In the cross examination the witness has stated that office premises abutting the suit premises is in 10/76 Off Haines Road, Worli, Mumbai 400 018. 5 The first admission relied by the counsel for the petitioner is that another company owned by the respondent was having an office at Worli. There is no material placed on record to show that the said premises of a subsidiary company are available to the respondent. The requirement pleaded is of the respondent company. The second admission is that the respondent has taken over another company which is known as Metropolitan Trading Company which is having premises on 2nd floor on the same building 10/76 off Haines Road Worli, Mumbai 400 018. The subsequent admission is that the said second floor premises is taken on leave and licence basis. The said premises are the premises of the company known as Metropolitan Trading Company which is taken over by the respondent. The need pleaded by the respondent company is of having additional office premises for expansion of its business. In the cross examination of the witness examined by the respondent, he has admitted that the office premises of the respondent is on fifth floor of 5 cra512.sxw 10/76 off Haines Road, Worli Bombay. The admission of the said Officer relied upon by the learned counsel for the applicant is that the 5th floor premises are taken by the respondent-company on leave and licnece basis. The admission regarding possession of the industrial galas is not relevant as the requirement pleaded is of having additional office premises in the suit premises which is abutting the office premises of the respondent. Even assuming that now adjoining premises are available to the respondent-plaintiff on second and fifth floor, the same are on leave and licence basis. It is the case of the respondent that it has already 285 staff members and it intends to engage 35 to 40 members who can be accommodated in the suit premises. The Appellate Court in paragraph 12 of the Judgment has noted the admission that the respondent was in possession of second and fifth floor in 10/76 off Haines Road, Worli, Bombay which is a premises taken on leave and licence. The Appellate Court has considered the availability of other show rooms and other industrial galas in possession of the respondent. In paragraph 14 of the Judgment, the Appellate Court has noted that human resources department of the respondent was functioning on second floor in area of 75 sq. ft. In the same paragraph the Appellate Court has considered that on the second floor, there was a Legal department in the area of 75 sq.ft. There is an Accounts Department on the same floor which was started in the year 1984. It is stated that the Accounts Department started with 10 persons and now there are about 40 persons working. It is recorded in the same paragraph that Finance and Marketing Departments are also functioning on the second floor. There is also a reference to the functioning of Investment Department and Electronic Data Processing Department on the second floor. 6 cra512.sxw 6 After considering all the aforesaid aspects and evidence of the witness of the respondent, the Courts below and in particular the Appellate Court has accepted the requirement of the respondent of having the suit premises which is abutting the building 10/76, Off Haines Road in which the respondent is holding office premises on leave and licence basis. The requirement which is established is of setting up office premises for accommodating additional staff members. Perusal of the Judgments of both the Courts below especially the Appellate Court shows that the evidence has been considered in detail. In paragraph 31 of the Judgment, the Appellate Court has held that existing office premises is held by the respondent on leave and licence basis. The Appellate Court has also considered the Audit report which shows that the business of the respondent was expanding. 7 On the issue of comparative hardship, there are concurrent findings. The Appellate Court has considered the admission of the first witness examined by the applicant that printing press in the suit premises has been closed and he has started a photo studio. However, he admitted that he did not possess any document to show that the business of the photo studio was being conducted in the suit premises. The finding is that no document has been produced. The further finding is that admitted photographs on record show that the suit premises was not in use. Document at Exh.21 shows that the printing business has been started by the applicants in Navi Mumbai. The premises which are shown to be available to the respondent for office use are already being used and the said premises are held on leave and licence basis. 8 Hence, there is no reason to interfere with the 7 cra512.sxw concurrent findings recorded by both the Courts below based on appreciation of oral and documentary evidence on record. 9 Hence, I pass the following order : . Revision application is rejected. The decree for possession will remain stayed for a period of 12 weeks from today subject to condition that the applicant will not create third party interest or create third party right in the suit property. JUDGE