( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 3979 OF 1991 WITH Civil Application No. 1648 of 2002 (In Writ Petition No. 3979 of 1991) Vasant Gangaram Bhavsar, .. Petitioner in WP/ Age : 36 years, Applicant in CA Occupation : Business, (Original plaintiff) Resident of 13, Joshi Peth, Jalgaon. versus 1. Satish Cloth Stores, through its proprietor, Dwarkadas Teumal Sindhi, Age : 48 years, Occupation : Business, R/o. 128, Polan Peth, Jalgaon. 2. Ratlami Shev Bhandar, through its proprietor, Shantilal Mishrilal Kothari (Jain), Age : 36 years, Occupation : Business, R/o. 128, Polan Peth, Jalgaon. 3. Rupchand Kalu Shimpi, .. Respondents in WP/ Age : 56 years, Non-applicants in CA Occupation : Tailoring, (Original defendants) R/o. 128, Polan Peth, Jalgaon. ( 2 ) ....................... Mr. V.T. Choudhary, Advocate, for the petitioner / applicant. Mr. S.S. Bora, Advocate, holding for Mr. S.C. Bora, Advocate, for respondent no.1 in WP and CA. Respondent no.2 served in WP (Absent). Respondent no. 3 served in WP (Absent). ........................ WITH Civil Application No. 4934 of 1992 (In Writ Petition No. 3979 of 1991) Satish Cloth Stores, through its proprietor, Dwarkadas Teumal Sindhi, Age : 48 years, Occupation : Business, .. Applicant R/o. 128, Polan Peth, (Respondent no.1 Jalgaon. in WP) versus 1. Vasant Gangaram Bhavsar, Aged : 36 years, Occupation : Business, R/o. 13, Joshi Peth, Jalgaon. ( 3 ) 2. Ratlami Shev Bhandar, through its proprietor, Shantilal Mishrilal Kothari (Jain), Age : 36 years, Occupation : Business, .. Non-applicants R/o. 128, Polan Peth, (No.1 - Jalgaon. Petitioner in WP & 3. Rupchand Kalu Shimpi, Nos.2 & 3 - Age : 56 years, Respondent nos.2 Occupation : Tailoring, and 3 in WP) R/o. as above. ................................ Mr. S.S. Bora, Advocate, holding for Mr. S.C. Bora, Advocate, for the applicant. Mr. V.T. Choudhary, Advocate, for non-applicant no.1. ............................... CORAM : B.P. DHARMADHIKARI, J. DATE : 19TH JANUARY 2011 & 20TH JANUARY 2011 ORAL JUDGMENT : 1. By this petition filed under Article 227 of the Constitution of India, the petitioner / landlord has challenged the ( 4 ) judgment and order passed by the Additional District Judge, Jalgaon, in Civil Appeal No. 283 of 1986, dated 29th July 1991, and also prayed for modifying the judgment and order of the trial court, dated 11-8-1986, delivered in Regular Civil Suit No. 452/1980. 2. The facts show that the petitioner, claiming to be owner of shop admeasuring 20 feet X 10 feet along with its Ota projection on its eastern and southern side, filed Regular Civil Suit No. 452/1980 for possession of suit premises on the ground that he required the same bona fide and also contended that original tenant / respondent no.1 had inducted respondent no.2 as sub-tenant in 1977 and then respondent no.3 also as sub-tenant in the year 1979. He also stated that the respondent no.1 has erected a permanent structure on the suit premises without his consent. Thus, a decree was sought under Section 13(1)(g), (e) and (b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (For short, hereinafter referred to as "Bombay Rent Act"). 3. The trial court recorded a finding of bona fide need in favour of the petitioner, however, found that more hardship would be caused to respondent no.1 and, therefore, did not grant decree on that account. The unlawful subletting of the suit premises was also found to be proved and the raising of ( 5 ) permanent construction was also accepted. Thus, decree was granted under Section 13(1)(b) and (e) only. 4. Aggrieved by the said judgment and decree, the respondent nos.1 and 2 preferred Civil Appeal No. 283/1986 and the learned Additional District Judge, Jalgaon, allowed that appeal on 29th July 1991. The appellate court found that ownership of Ota was not proved by the petitioner and there was no subletting. The petitioner made effort before the appellate court to point out that finding on hardship, as recorded by the trial court, was unsustainable. The appellate court recorded that such contention could not have been entertained in the absence of a proper cross objection. However, it also examined that argument on merits and negatived it. 5. In this background, I have heard Mr. V.T. Choudhary, learned Counsel appearing for the respondent / landlord, and Mr. S.S. Bora, learned Counsel appearing for respondent no.1. Nobody has appeared for respondent nos.2 and 3, though they are served. 6. Mr. V.T. Choudhary, learned Counsel appearing for the petitioner, has pointed out that the petitioner is a commerce graduate and desired to start grocery shop in tenanted premises. ( 6 ) He filed Regular Civil Suit No. 444/1980 for possession of a shop block admeasuring 10 feet X 10 feet against another tenant and in due course, got possession of that portion also. Regular Civil Suit No. 452/1980 was also filed simultaneously for possession of the suit premises which are admeasuring 20 feet X 10 feet and a Ota, as projection. The dimensions of Ota are 3 feet X 20 feet and 3 feet X 10 feet. The learned Counsel for the petitioner states that the petitioner desired to start a grocery shop and hence need has been found to be established by the trial court and appellate court also has not interfered with that finding. According to him, therefore, need is already established. 7. In this situation, the contention is question how to start that shop or in what area the shop should be located and user of tenanted premises for it, are the factors solely in discretion of the landlord and court cannot interfere in the same. The acquisition of possession of adjacent premises admeasuring 10 feet X 10 feet, therefore, cannot be a ground relevant in this respect. The learned Counsel for the petitioner has further urged that when bona fide need has been found to be established, provisions of Section 13, Sub-Section 2, of the Bombay Rent Act also empower courts to order partial eviction and considering the size of shop in possession of respondent no.1 i.e. 20 feet X 10 feet, his eviction from half portion could have been looked into. He has ( 7 ) pointed out this only to show that finding on comparative hardship in favour of respondent no.1 is unsustainable because of non-consideration of these relevant aspects. The discussion by the trial court, in this respect, and also by the appellate court is pressed into service to show that the finding of more hardship being suffered by the tenant, if eviction is ordered, is not based upon evidence on record. The learned Counsel appearing for the petitioner has further stated that the law does not require the petitioner to file cross objection and Order XLI Rule 22 of the Code of Civil Procedure, 1908, permits him to challenge the finding recorded against him by the trial court while supporting other findings in appeal preferred by the respondent nos.1 and 2. 8. While dealing with the aspect of subletting, the learned Counsel for the petitioner has pointed out that the subletting is by induction of respondent nos.2 and 3 on Ota, as mentioned above. He states that the irrelevant dispute about ownership of that Ota has been gone into by the appellate court and the ownership of the petitioner was never in dispute. My attention has also been invited to the document at Exhibit 216 to show that Ota was already in existence when respondent no.1 came in possession of premises as tenant. He further states that effort of respondent no.1 to show that subtenancy in his favour was created prior to 1973, so as to obtain regularization thereof, ( 8 ) as per provisions of Section 15A of the Bombay Rent Act is negated by the court. Thus, when Ota admittedly did not belong to respondent no.1 and induction of respondent nos.2 and 3 upon that Ota is after 1973, the decree for eviction granted on the strength of subletting ought to have been maintained. He highlights that the respondent no.3, the sub-tenant, inducted by respondent no.1, has in fact, entered into witness box and deposed in favour of the present petitioner. According to him, this clinching evidence could not have been overlooked by the appellate court. 9. My attention has also been invited to provisions of Section 4 of the Bombay Rent Act to show that such Ota is covered within definition of "premises" and, therefore, provisions of the Bombay Rent Act are applicable to it. He has also invited attention to Sub-Section 4 to show that when Ota is constructed on land belonging to local authority by a private person, the relationship between such person who constructs and a person inducted on such Ota is regulated by the provisions of the Bombay Rent Act. He has further contended that the material on record clearly shows that the respondent no.2 is occupying portion admeasuring 6 feet X 3 feet while respondent no.3 is occupying portion of Ota admeasuring 3 feet X 3 feet. The exclusive possession of both the respondents is brought on ( 9 ) record. He points out that a wooden shutter has been separately constructed and the closure of the shop of respondent no.2 does not in any way affect the shop of respondent no.1. The learned Counsel for the petitioner, therefore, states that parting of possession by respondent no.1, in favour of respondent nos.2 and 3, has been well established on record and hence, the finding by the appellate court, in this respect, is unsustainable. He has invited attention to relevant discussion in this respect by the trial court. 10. The learned Counsel appearing for the petitioner has further contended that the construction made is for business purposes of respondent nos.2 and 3 and its existence on Ota is already admitted. The construction, therefore, is of permanent nature and as it is without the consent of landlord, provisions of Section 13(1)(b) are attracted and the decree granted by the trial court on that ground could not have been interfered with. 11. My attention has been invited to orders of this Court dated 14-2-2003 passed on Civil Application No. 1648/2002, to demonstrate that subsequent events contained therein are required to be considered by this court. According to the learned Counsel for the petitioner, the respondent no.1 has acquired an independent shop block and hence material factor which weighed ( 10 ) with the trial court, while recording a finding on comparative hardship in his favour, has ceased to exist. An independent shop is now available for doing his business and hence there is no question of his coming on street or rendered without any source of income. He has also invited attention to reply filed on record in this respect by the respondent no.1, to urge that explanation therein, that the said shop block is acquired by the son of respondent no.1, namely, Satish, is hardly of any relevance. According to him, evidence on record clearly demonstrates that the existing business in the shop block by the respondent no.1 is also being looked into by the said Satish only. In this view of the matter, the learned Counsel for the petitioner has urged that this subsequent event has completely eclipsed the difficulty then looked into by the trial court or appellate court. Because of this subsequent event, the finding on comparative hardship needs to be reversed and the decree also needs to be granted to the petitioner, on that count, under Section 13(1)(g) of the Bombay Rent Act. 12. In support of his contention, the learned Counsel for the petitioner has placed reliance upon judgment reported in the case of Suhasini Atmaram Parab & others Vs. B.H. Khatu & others (2003 Bom. R.C. 313). He states that as per law laid down therein, after such proceedings are filed, tenant has to start ( 11 ) looking for other alternate accommodation and here, on record, there is no evidence to indicate that any such search was bona fide undertaken by the respondent no.1. The judgment reported in the case of Kewalchand Nemchand Mehta (Since deceased) through his L.Rs. Vs. Mani Framji Mody (Since deceased) through his L.Rs. and others (2006 Bom. R.C. 605) is also relied upon to urge that the tenant or a court of law cannot impose their wishes in respect of utilization of the premises upon landlord. The recent judgment of the Apex Court, in the case of Seshambal (dead) Through L.Rs. Vs. M/s. Chelur Corporation Chelur Building & others (2010 AIR SCW 1680), is also pressed into service to urge that subsequent events can be looked into by this court. 13. To point out what is reasonable and how bona fide need is to be looked into, the learned Counsel for the petitioner has also invited attention to the judgment of the Honourable Apex Court, in the case of Raghunath G. Panhale (Dead) by L.Rs. Vs. Chaganlal Sundarji and Co. (2000 Bom. R.C. 143). 14. Mr. S.S. Bora, learned Counsel appearing for respondent no.1, has supported the appellate court judgment. He has invited attention to the judgment of the Honourable Apex Court, in the case of Laxman Tatyaba Kankate and another Vs. ( 12 ) Taramati Harishchandra Dhatrak ((2010) 7 SCC 717), particularly paragraph 24, to urge that the appellate court could not have looked into the challenge to a finding on comparative hardship in favour of respondent nos.1 and 2 in the absence of cross objection. 15. On merits, the learned Counsel appearing for respondent no.1 has urged that burden to show that he was owner of Ota was upon the petitioner and that burden has not been discharged. As the petitioner is not owner of Ota, there cannot be any subletting by his tenant, namely, respondent no.1, to other respondents in relation to that Ota. He has also invited attention to provisions of Section 4 of the Bombay Rent Act to urge that the premises belonging to local authorities are exempt from application of the Bombay Rent Act and if allottee of such premises inducts any other person either as a tenant or licensee, such contractual relationship is also exempt from the provisions of the Bombay Rent Act. He has also relied upon judgment of the Honourable Apex Court in the case of Messrs. Bhatia Cooperative Housing Society Limited Vs. D.C. Patel (AIR 1953 (1) Supreme Court 16), to show how said provision has been interpreted by the Honourable Apex Court. The judgment of the Honourable Apex Court, in the case of Parwatibai Vs. Radhika (2003 LawSuit (SC) 540), is also relied upon in this respect. ( 13 ) 16. The learned Counsel appearing for respondent no.1 has invited attention to cross examination of plaintiff to urge that it shows that the plaintiff was paying rent to the Municipal Council and hence provisions of the Bombay Rent Act are not applicable to those premises. Rent receipts at Exhibits 139 to 150 are also relied upon for the said purpose. The finding of the appellate court in this respect is also heavily relied upon. 17. Attention has been also invited to definition of landlord as contained in Section 5(3) of the Bombay Rent Act, with contention that it was never case of the landlord that he was receiving rent from anybody for Ota. In this view of the matter, the learned Counsel appearing for respondent no.1 states that again the contention of subletting cannot be accepted. 18. On permanent structure, the learned Counsel for respondent no.1 has placed reliance on document at Exhibit 216 to show that father of the petitioner is signatory thereto and the respondent no.1 has been inducted in suit premises through that document. The structure alleged to be permanent is in existence on that day and respondent no.1 has purchased that structure along with other furniture by paying Rs. 2,500/- to earlier tenant. The learned Counsel for respondent no.1, therefore, states that ( 14 ) when structure was already in existence on the date of induction of respondent no.1, it is not a subsequent structure which has been erected by him and in any case, the structure cannot be said to be erected without notice or consent of the landlord. He, therefore, justifies the approach of the appellate court even in this respect. 19. The learned Counsel appearing for respondent no.1 has further urged that finding on comparative hardship in favour of respondent no.1, as recorded by both the courts, is a finding on facts and in view of judgment of the Honourable Apex Court, in the case of Mrs. Rena Drego Vs. Lalchand Soni etc. (1998(3) Bom.C.R. 320), even if such finding is erroneous, the same cannot be interfered with unless and until it is shown to be perverse. For the same purposes, judgment of this Court reported in the case of Smt. Mangala w/o. Mahadeo Damodhar Kale & another Vs. Nilkanth Shamrao Nawalkar & another (1999(2) Bom.C.R. 454), is also pressed into service. 20. Attention has been invited to the cross examination of respondent no.1 / tenant by the petitioner, particularly paragraph 13 thereof, to show how search made by the tenant for other accommodation, through his acquittance and one broker come on record. According to the learned Counsel for respondent no.1, ( 15 ) when finding of hardship is in favour of respondent no.1, the said evidence is not that relevant. 21. Coming to Civil Application No. 1648/2002, the learned Counsel for respondent no.1 has urged that the event attempted to be brought on record therein cannot be looked into as pleadings have not been amended. Without prejudice, the learned Counsel for respondent no.1 has urged that the said event is not an undisputed fact which can be looked into by this Court. He states that if this Court is inclined to look into said event, its adjudication in accordance with law is necessary and for that purpose, matter may require a remand. But according to him, in view of affidavit already placed on record by the respondent no.1, the shop block in question is acquired by his son Satish and it is used by said Satish, therefore, cannot be of any assistance to the present petitioner to further his challenge to finding on comparative hardship. 22. The orders passed by this court, on Civil Application No. 1648/2002, on 14-2-2003, reveal that the Civil Application is to be considered at the time of final hearing of Writ Petition and the respondents were directed to file their reply in the meanwhile. Accordingly, the respondents have filed their reply. Perusal of the application reveals that the petitioner has contended that the ( 16 ) respondent no.1 has acquired shop No. 63 on first floor in Phuley Market at Jalgaon on 14-12-1992. It is then stated that the respondent no.1 has started hosiery business under the name and style "S.S.D. Hosiery" and it was inaugurated on 31st December 1992, to which petitioner was also invited. A further event, that sub-tenant, respondent no.2, proprietor of Ratlami Shev Bhandar, also acquired shop premises in Central Phuley Market at Jalgaon, i.e. Shop No.16, is also pointed out therein. Reply dated 3-3-2003 filed by the respondent no.1 shows denial of acquiring Shop No.63 by him. He has stated that the said shop was acquired by Satish i.e. his son and he has no concern with the business of respondent no.1. He has also added, that "I also say that the said shop No.63, it is learnt, has been disposed of by Satish." 23. The learned Counsel appearing for the petitioner has attempted to urge that there is no evidence on record to show that Satish was independent from his father or had any separate source of income. However, it is to be noted that this event has come on record during the pendency of petition i.e. after the parties had led their evidence and adjudication by the trial court and by appellate court. The evidence on record is in relation to the business of respondent no.1 only. He has stated that his son Satish looks after that business. However, taking care of father's ( 17 ) business by son Satish will not make it a business of Satish himself. When respondent no.1 came before this court with specific affidavit, that shop was acquired by his son Satish and Satish is in no way concerned with the business in the shop block, the petitioner could have produced before this court, any material to show that this contention was not correct. No such trouble is thereafter taken by the petitioner. Even the statement of respondent no.1 made above, has not been contradicted. In any case, therefore, there is no clinching material before this Court to show that the acquisition of shop block No.63 by the respondent no.1 as an event relevant for adjudication of the present controversy. The event becomes a disputed event even if contention of the petitioner is to be accepted. The petitioner also has not sought any leave to amend his application as filed before the trial court and hence the event is not being placed before this Court for its consideration in accordance with the procedure prescribed in this respect. I find that the said event is not sufficient to fully eclipse the difficulty looked into by the trial court and the appellate court to hold that the comparative hardship aspect would be more in favour of respondent no.1. The application, therefore, though allowed, cannot be a ground for reversing the finding in that respect reached concurrently by both the courts. ( 18 ) 24. Civil Application No. 4934/1992 is also pointed out to this court, as pending. The respective Counsel state that the said application also needs to be decided at the stage of final hearing. This application is moved by the respondent no.1 and in it, it is urged that the petitioner had filed similar proceedings for recovery of possession of adjacent shop premises against M/s. Sheth Provision Stores and others, vide Regular Civil Suit No. 444/1980. The suit was decreed and Civil Appeal No. 282/1986 filed by M/s. Sheth Provision Stores against it, was dismissed on 2-8-1991. Writ Petition No. 2689/1991 was then filed by the said establishment and it was rejected on 26-8-1991. The Special Leave Petition filed before the Honourable Apex Court also came to be dismissed on 11-10-1991. The petitioner / landlord, in execution, then received possession of those adjacent premises admeasuring 10 feet X 10 feet with annexed 3 feet wide Ota on 18-12-1991. These events are, therefore, stated to be subsequent events which satisfy bona fide need of the petitioner / landlord. The petitioner / landlord has accepted the event but then, has contended that the need has not been fulfilled. It is apparent that two suits were filed simultaneously by the petitioner, vide Regular Civil Suit No. 444/1980 and Regular Civil Suit No. 452/1980, and he sought possession of both the shop blocks on account of his bona fide need. In this situation, receipt of possession of only one shop block which form subject matter of ( 19 ) Regular Civil Suit No. 444/1980 by itself, cannot be held to be sufficient to hold that his need, as pleaded, is wiped out. Again, though the event is not in dispute, the respondent no.1 has not attempted to incorporate that event as part of his pleading. Hence, though Civil Application No. 4934/1992 is taken into consideration and deserves to be allowed, event therein is held to be not sufficient to dismiss the petition as filed. 20TH JANUARY 2011 25. This brings me to consideration of question of comparative hardship. The facts clearly show that the trial court recorded a finding against the petitioner in this respect and by taking recourse to provisions of Order XLI Rule 22 of the Code of Civil Procedure, 1908, effort was made by the petitioner to assail it in Civil Appeal. The appellate court recorded a finding that in the absence of a counter claim