{1} cra23107.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.231 OF 2007 Champalal s/o Chunnilal Bora, age: 63 years, Occ: Business, R/o Adat Bazar, At present Yeshwant Colony, Aurangabad Road, Ahmednagar. Petitioner Versus 1 Girdharilal Ghevarchand Bothara (deceased), through his L.Rs.: 1A) Smt.Arunabai Ghirdharilal Bothara, age: 50 years, Occ: Household, R/o 2299/2300, Adate Bazar, Ahmednagar. 1B) Jawaharlal Girdharilal Bothara, age: 55 years, Occ: Business; 1C) Sudhir Girdharilal Bothara, age: 50 years, Occ: Business, Both R/o Pitale Nagar, Gultekadi, Market Yard, Pune. 1D) Mrs.Namitabai Sanjay Parakh, age: 52 years, Occ: Household, R/o Nandgaon, Dist.Nashik. 1E) Mrs.Bijibao Prakashlal Runwal, age: 46 years, Occ: Household, R/o Jalna, Tq. & Dist. Jalna. 1F) Sagar Girdharilal Bothara, age: 25 years, Occ: Business; {2} cra23107.odt 1G) Rohit Girdharilal Bothara, age: 23 years, Occ: Business, Both R/o 2299/2300, Adate Bazar, Ahmednagar. 2 Ramnibai Chandratan Zanwar, (deceased through her L.Rs.) 2A Rajratan Chandratan Zanwar, age: 50 years, Occ: Petrolpump, 2B Devratan Chandratan Zanwar, age: 45 years, Occ: Petrolpump, Both R/o Bhingar (Camp), Irani Road, Bhingar. Respondents Mr. V.S.Bedre, advocate for the petitioner. Mr. N.S.Jaju, advocate for respondents no.1A, 1F & 1G. Rest of the respondents served. CORAM : R.M.BORDE, J. Reserved on : 28 th April, 2011 Pronounced on: 03 rd May, 2011. ORAL ORDER: 1 Petitioner – tenant is raising exception to the judgment and decree passed by III Ad hoc Additional District Judge, Ahmednagar in Regular Civil Appeal No.239/1986, decided on 08.07.2005, whereby the appeal presented by respondent-landlord came to be allowed and petitioner tenant / ori.def.no.2 is directed to hand over vacant possession of the suit premises to the {3} cra23107.odt landlord. 2 Revision petitioner is a tenant, whereas Respondent No.1 represented by his legal representatives, are the landlords. Respondent No.2 (deceased), through her legal representatives is co-defendant i.e. Defendant no.1. The suit relates to Municipal House No.2308/9 CTS 3132 and an area comprising of shop premises to the extent of 45 x 35 feet was let out to defendant no.1 at the rate of Rs.55/- per month. The tenancy was monthly tenancy. Plaintiff claims possession of the tenanted premises for starting business for his son Sudhir. According to him, Sudhir has no business premises and he (Sudhir), being an educated unemployed, needs possession of the premises for starting business. As against this, it is also contended that defendant does not require suit premises for running the business. Son of defendant no.1 is running a petrol pump and other businesses. It is alleged that defendant no.1 has sublet the premises to defendant no.2, who is running business in the name and style as H.D. Trading Company. Plaintiff, as such, claims recovery of possession of the suit premises for the reason that those are required for bona fide purpose i.e. for setting up business for his son as well as on account of defendant no.1 having sublet the premises to defendant no.2 and as such, plaintiff is entitled to recover possession thereof. 3 Defendants caused appearance and resisted the suit {4} cra23107.odt by filing written statement. Defendant no.1 – Respondent No.2 herein opposed the suit controverting the contentions raised by the plaintiff in respect of bona fide requirement. It is contended by defendant no.1 that a rent note has been got executed from him by defendant no.2 by making misrepresentation and fraud. It is also contended by defendant no.1 that she is a tenant in respect of the premises and she is carrying out business in partnership with defendant no.2 and the suit premises, in respect of which she is a tenant, is used for carrying out partnership business. 4 Defendant no.2 has also presented written statement and opposed the relief claimed by the plaintiff. 5 The trial Court, after recording evidence of the parties, came to the conclusion that the plaintiff has failed to establish his case, as such, dismissed the suit. 6 Plaintiff, being aggrieved by the judgment and decree passed by the trial Court, preferred an appeal to the District Court, which came to be heard and disposed of by III Ad hoc Additional District Judge, Ahmednagar, who was pleased to allow the same, thereby reversing the judgment and decree passed by the trial Court in Regular Civil Suit No.495/77. 7 Petitioner – tenant/ori.def.no.2 presented a writ {5} cra23107.odt petition challenging the judgment and decree passed by the first appellate Court, being Writ Petition No.2815/2005. This Court, after hearing the parties, was pleased to allow the writ petition by an order dated 28th April, 2005 and remitted the matter back to the first appellate Court to decide the same afresh after hearing all the parties concerned and by assigning the reasons for recording the conclusion. While rendering decision, the learned Single Judge of this Court observed that the Additional District Judge, shall decide the appeal on the basis of available material and facts only. 8 The appeal was taken up for consideration by the III Additional District Judge, Ahmednagar, who, after extending an opportunity of hearing to the parties, was pleased to decide the same by judgment and decree dated 08.07.2005. The first appellate Court, while allowing the appeal, was pleased to quash and set aside the decree passed by the trial Court and directed eviction of the tenant out of the suit premises. 9 I have heard arguments advanced by learned Counsel for respective parties and perused the judgments of the Courts below as well as record and proceedings of the matter. 10 It is urged by the Counsel appearing for petitioner – tenant that the first appellate Court has exceeded in its jurisdiction in taking into consideration the subsequent events and {6} cra23107.odt thereby granting decree of eviction in favour of the landlord. It is contended that while disposing of the writ petition, the learned Single Judge of this Court has specifically directed to decide the appeal on available material and facts only and as such, it was not open for the first appellate Court to take into consideration subsequent events, which were placed on record by the landlord, so as to support grant of decree of eviction. It is also contended that the first appellate Court has committed material irregularity in reversing the decree passed by the trial Court and holding that the landlord needs premises for his bona fide requirement for starting business for his son. 11 The landlord sought recovery of possession of the business premises for the reason that he needs the premises for his son Sudhir who wants to start a new business. It was pointed out by the landlord to the first appellate Court that the litigation in respect of eviction initiated in the year 1977 is protracted and the appeal was taken up for consideration by the first appellate Court in 2005. The landlord – appellant before the first appellate Court disclosed to the first appellate Court certain new developments and events occurred during pendency of the litigation. It was pointed out that two sons are born to the plaintiff after filing of the suit and they have attained majority. The suit premises are also required for starting business by his two sons, who were born during pendency of the suit and who have attained majority. This {7} cra23107.odt is a circumstance pointed out by the landlord apart from bona fide need exhibited by him for recovery of possession of the suit premises for starting new business by his son Sudhir. 12 The first appellate Court has referred to the developments taken place during continuance of the litigation and has also considered the issue of bona fide need exhibited by the landlord for recovery of possession of business premises. The first appellate Court has not traversed beyond the directives given by the learned Single Judge while disposing of the writ petition and has not adverted to any new evidence apart from the evidence placed on record by the parties. However, it cannot be said that the first appellate Court is precluded from referring to the developments, those have occurred during continuance of the suit and those were pointed out by the landlord. The first appellate Court has equally taken into consideration the evidence placed on record by the parties on the issue of bona fide requirement. The first appellate Court has dealt with the reasoning recorded by the trial Court and has also, in paragraph 23 of the judgment, has demonstrated as to how the observations made by the trial Court in respect of landlord having other business premises, which could be utilised for starting business by his son Sudhir are erroneous. It is observed by the first appellate Court that the trial Court, in its judgment, has referred to House Nos.2299 and 2300 and observed that those are owned by father of plaintiff and his uncle. Although {8} cra23107.odt these two houses belong to the family and there are two shops and godowns therein, however, the partnership business in the name and style as “Fulchand Harakchand and Sons” and “Fulchand and Brothers” are being carried out in the premises. Merely because Sudhir, his one of the son, is a partner of the firm, does not mean that he is precluded from starting a new business. The documents, namely a licence under the Shops Act refers to ownership of Rajendra, Zumbar, Vandana Zumbar and Kantabai Zumbarlal with whom plaintiff has no concern. The document at Exhibit-91, which is a certificate issued under Shops Act, with reference to House No.1634, which is owned by Sampatlal Nainsukh, with whom plaintiff has no concern. So also the document at Exhibit-93 is a license issued under the Shops Act, which is in the name of Nainsukh, Girdharilal, Zumbarlal and Nanakchand. However, plaintiff does not have any exclusive possession or entitlement to the shop. Thus, the document at Exhibit-93 cannot be used for discarding the case put up by the plaintiff in respect of his bona fide need. The license under Shops Act at Exhibit-94 is in the name of four persons including plaintiff. This shop also does not exclusively belong to the plaintiff nor in his possession. The plaintiff would be justified in requiring possession of the business premises for starting a new and independent business for his son Sudhir and it is the plaintiff who is the best judge of his requirement and it is not for the tenant and even for the Court to pass any judgment in that regard. The first appellate {9} cra23107.odt Court has considered all the documentary evidence as well as the contentions raised by the parties concerned and has passed a reasoned order holding that the landlord has proved his case in respect of bona fide requirement for recovering possession of the business premises. 13 The first appellate Court has also considered further developments, in the sense, that the firm, of which petitioner herein – original defendant no.2 was a partner, stands dissolved. Legal heirs of original defendant no.1 have entered into compromise with plaintiff and admitted his claim. It is revealed from record that defendant no.1, while opposing claim of the plaintiff, has contended in her written statement that the premises were let out to her i.e. defendant no.1. The rent note is executed between plaintiff and defendant no.1. It is also recorded in the rent note that the shop premises are given on rent to defendant no.1 and defendant no.1 is running a business in partnership with defendant no.2 in the suit premises. It is the case of defendants that tenancy was created in favour of defendants and business premises were used by the partnership firm, of which defendants no.1 and 2 were partners. It is brought on record that the firm H.D. Trading Company, of which defendants no.1 and 2 were partners, has been dissolved and in its place some other firm brought into existence and defendant no.2 claims to be running business as a parter of newly constituted firm. The fact, however, {10} cra23107.odt remains that the tenancy was created in favour of defendant no.1, who was a partner of H.D. Trading Company, which was running business in the suit premises as partnership firm, of which defendants no.1 and 2 were partners, stands dissolved and newly constituted firm is not represented by defendant no.1, in whose favour tenancy was created. Defendant no.2 cannot legally claim himself to be tenant of the plaintiff. On this count also, the first appellate Court has drawn support for his conclusion while passing decree in favour of plaintiff – landlord. I do not find that the reasons recorded by the first appellate Court are erroneous. The landlord is prosecuting the litigation initiated in the year 1977 for securing possession of tenanted premises. After lapse of about 44 years, at least, he is entitled to recover possession of his own premises. 14 As far as bona fide need of the landlord is concerned, it is for the landlord to assess his need and he is the best judge of his requirement and it is not for the tenant to dictate as to which premises he should occupy. Reliance can be placed on the judgment in the matter of Sara Rauf and another Vs. Durgashankar Ganeshlal Shroff, reported in 2007 (4) Mh.L.J. 129. Reference can also be made to a judgment in the matter of Dwarkaprasad Vs. Niranjan & another, reported in AIR 2003 SC 2024. The words appearing in Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1948, “for {11} cra23107.odt occupation by himself” cannot be construed strictly so as to confine it to the requirement of landlord alone. The requirements of members of the family can also be taken note of and the landlord would be justified in seeking recovery of possession of the premises for the bona fide need of the members of family. The Apex Court, in para 15 of the judgment, has observed thus: “The key words which are required to be interpreted are: ‘For occupation by himself’ cannot be construed strictly so as to confine it to the requirement of the landlord alone and it can be extended to include the requirement of members of landlords’ family. In the present case, the plaintiff landlord has pleaded right from the beginning that he constitutes a joint family with his mother and brothers and sisters. It is also in evidence that the plaintiff holds the property for the benefit of the entire family. All the brothers and sisters including mother of the landlord live with him as members of the joint Hindu family. It is his obligation to settle his younger brothers in business as it is his obligation to settle his children in business. Therefore, he can legitimately seek eviction of a tenant by pleading that he deeds demised premises to settle his son and his younger brothers in business. This being the legal position, the conclusion is inevitable i.e. The plaintiff-landlord must succeed and a decree for eviction is liable to be passed in his favour for the entire demised premises.” 15 Reliance can also be made to a judgment in the matter {12} cra23107.odt of Akhileshwar Kumar and others Vs. Mustaqim and others, reported in AIR 2003 SC 532. It is observed therein that: “Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts, then choosing the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust upon its own choice on the needy. Of course, the choice has to be exercised reasonably and not whimsically.” 16 While exercising revisional powers conferred on this Court under Section 115 of the Civil Procedure Code, it would be inappropriate to probe into the questions of facts. The scope of exercise of revisional powers is very restrictive. In this regard, reliance can be placed on the judgment of the Apex Court in the matter of Patel Valmik Himmatlal & others Vs. Patel Mohanlal Muljibhai, reported in (1998) 7 SCC 383. While referring to the provisions of Bombay Rent Act, the Apex Court has ruled that, “the mere fact that a different view is possible on reappreciation of the evidence cannot be a ground for the High Court to substitute its own findings while exercising revisional jurisdiction.” 17 In the matter of Ram Dass Vs. Davinder, reported in (2004) 3 SCC 684, it has been ruled by the Apex Court that, “the High Court cannot reappreciate the evidence while exercising {13} cra23107.odt revisional jurisdiction.” In the reported matter, the judgment recorded by the High Court by upsetting the concurrent findings of the authorities below on reappreciating the evidence, has been set aside by the Apex Court. 18 For the reasons set out above, I am of the view that no interference is called for in the order passed by the first appellate Court. Revision Application is devoid of substance. 19 Revision Application stands rejected. 20 Learned Counsel for petitioner – tenant prays for grant of six months’ time for vacating suit premises. Petitioner – tenant is granted six months’ time to vacate suit premises on furnishing an undertaking to the Court within a period of six weeks from today. R.M.BORDE JUDGE ******* adb/cra23107