1 WP 36.1992 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 36 OF 1992 Shivlal S/o Fulchand Shimpi Since deceased – through L.Rs. : i) Vatsalabai Wd/o Shivlal Kapadne (Shimpi), Age : Major, Occ. : Household, R/o : Saraf Bazar, Bhusawal, Dist. Jalgaon. ii) Umakant S/o Shivlal Kapadne (Shimpi), Age : Major, Occ. : Business, R/o : Saraf Bazar, Bhusawal, Dist. Jalgaon. iii) Chandrakant S/o Shivlal Kapadne (Shimpi), Age : Major, Occ. : Business, R/o : Saraf Bazar, Bhusawal, Dist. Jalgaon. iv) Nandkumar S/o Shivlal Kapadne (Shimpi), Age : Major, Occ. : Business, R/o : Saraf Bazar, Bhusawal, Dist. Jalgaon. .... PETITIONERS V E R S U S 1. Satyanarayan S/o Onkardas Agrawal Age : 41 Yrs., Occ. Business, R/o : Balaji Peth, Bhusawal, Dist. : Jalgaon. 2 WP 36.1992 - [ J ] 2. Radheshyam S/o Onkardas Agrawal Age : 43 Yrs., Occ. Agril. & Business, R/o : Saraf Bazar, Bhusawal, Dist. : Jalgaon. 3. Laxminarayan S/o Onkardas Agrawal Age : 38 Yrs., Occ. Agril. & Business, R/o : Saraf Bazar, Bhusawal, Dist. : Jalgaon. .... RESPONDENTS Mr. A.M.Gholap, Advocate for the Petitioners. Mr. B.R.Kedar, Advocate for the Respondents. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 27/09/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. The present respondent no. 1/landlord had instituted a Suit for eviction of the petitioners and possession of the suit premises on the ground that the landlord requires the suit premises bonafide for his own personal use and that the tenant has constructed a permanent structure. The trial Court dismissed the Suit on both the counts. Aggrieved thereby, the landlord preferred Appeal before the District 3 WP 36.1992 - [ J ] Court. The District Court allowed the Appeal and granted decree of eviction in favour of the landlord on both counts. Aggrieved thereby, the petitioners filed the present Writ Petition. 3. Mr. Gholap, the learned counsel for the petitioners strenuously contends that the suit premises was leased to the petitioners way back in the year 1954 for residential as well as commercial purpose and since 1954,the tenant is in occupation of the premises. The suit property was purchased jointly by the plaintiff and defendant nos. 2 and 3 in the year 1966. They had filed a Suit for eviction on the ground of bonafide personal use. The same was dismissed up to this Court. Thereafter, again the instant Suit is filed on the ground of personal bonafide requirement stating that the partition has been effected and the suit premises has been allotted to the plaintiff in partition. Exh. 65 which is relied by the plaintiff to prove the partition, itself shows that the partition was not effected by metes and bounds. As such, the plaintiff would not have any locus standi to file the Suit on the said grounds. The learned counsel further contends that the plaintiff is running business in the premises of his brother. Till date, there is nothing on record to show that the plaintiffs are not being allowed to do the business in the premises of their brother. The Courts have concurrently come to the conclusion that the plaintiff does not require the suit premises for residential purpose. If the eviction on the ground 4 WP 36.1992 - [ J ] of bonafide requirement is being ordered, then the Court has to consider the plea of hardship. The plaintiff is already running his business in the premises of his brother. As such if the decree of eviction is refused, no hardship would be caused to the plaintiff, but the defendants/tenants would suffer more hardship as they have no other place of business in the said city and they would be completely displaced. The learned counsel contends that it is not an object of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 [ For short, ‘ Rent Act ’ ] to displace the tenant from the existing business. 4. The learned counsel further contends that decree of eviction passed by the District Court on the ground that the tenant has constructed a permanent structure, is also erroneous. The said alleged work, as claimed by the plaintiffs even if accepted, would not tantamount to construction of permanent structure. Even an erection of a permanent structure namely bath room would not come within the ambit of Section 13 (1) (b) of the Rent Act. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Ali Saheb Abdul Latif Mulla V/s Abdul Karim Abdul Rahman Mulla and others reported in 1981 Bom. R.C. 278. According to the learned counsel, the District Court has not appreciated the evidence in this regard in correct perspective. 5. Mr. Kedar, the learned counsel for the respondents submits 5 WP 36.1992 - [ J ] that the plaintiff has established both the grounds. The plaintiff has proved the partition. To support the theory of partition, apart from document Exh. 65, even the brother of the plaintiff has been examined, who had proved the partition between the parties. According to the learned counsel, the plaintiff does not own any other premises for running the business. The plaintiff is running the business in his brother’s premises and in view of that, the plaintiff requires the premises to carry on his ancestral business i.e. Sarafi business. Just because the business of the petitioners is established, that can not be the ground to refuse the decree of eviction when the plaintiff has proved his bonafide, genuine and personal need. Though the District Court has come to the conclusion that the plaintiff does not require the premises for residential purpose, but the said premises is not partible. As such, the tenancy can not be segregated between the residential and commercial part. In view of that, the decree of eviction passed, does not suffer from any illegality. 6. The learned counsel further contends that the concept of hardship has been properly considered by the Court. For all these years, there is nothing on record to show that the tenant had made enquiry about the alternate accommodation for running his business. As the plaintiff does not have any other premises for running his business, the hardship has to be presumed in favour of the plaintiff. 6 WP 36.1992 - [ J ] 7. The learned counsel further contends that the decree of eviction on the ground of carrying on permanent construction is also rightly passed. The mason has been examined to prove the said fact. In a commercial premises, a toilet has been erected. Even a notice has been issued by the local authority in that regard. Even the person from the said local authority has been examined to prove the said fact. The same is also proved. 8. This Court in its jurisdiction under Article 227 of the Constitution of India would not re-appreciate the evidence. On the basis of evidence adduced, the Court has held that the partition between the plaintiff and defendant nos. 2 and 3 has been proved. The document Exh. 65 has been taken into consideration to show that the partition has been effected. Even the brother of the plaintiff i.e. one of the defendants has stepped into witness box to prove the said plea. Even after the partition, the notice of attornment has been issued to the tenant and thereafter the tenant has paid rent exclusively to the plaintiff. This itself shows that the tenant had accepted the plaintiff as his landlord. As such, it would not be now open to the tenant to contend otherwise. More over, the said partition has also been proved by documentary as well as oral evidence. Once the said fact is established, the earlier litigation will not be relevant as the premises has been sought for the personal bonafide use of the plaintiff. 7 WP 36.1992 - [ J ] 9. It has also been established that the plaintiff is carrying on business at his brother’s premises, meaning thereby that the plaintiff is not carrying on the business in his own premises. There is nothing on record to show that the plaintiff has some other business premises of his own where he can carry his business. It has also come on record that the suit premises is not partible and the plaintiff bonafidely requires the suit premises for running his business. In such circumstances, the decree of eviction passed in this regard can not be faulted with. Even the concept of hardship has been considered. If the hardship caused to the landlord and tenant is equal, then the decree of eviction shall follow. The fact that the defendants are running established business, can not be a ground to refuse the decree of eviction. The tenant is required to show that he had made efforts and could not find any such premises. The evidence in this regard is lacking. In light of that, even the Court has properly considered the aspect of hardship. 10. As far as the ground of eviction passed on the tenant erecting a permanent structure is concerned, the Court has relied on the evidence of mason, the Commissioner’s report and the evidence of a person from the local authority. The said evidence would not show that some permanent structure has been erected. The evidence shows that the pipe line has been led through almira so that the said premises can be used as a latrine. But, there is nothing on record to show that any 8 WP 36.1992 - [ J ] permanent structure was erected. The said alleged changes made can not tantamount to the erection of permanent structure as is required U/s 13 ( 1 ) ( b ) of the Rent Act and held by this Court in the case of Alisaheb Abdul Latif Mulla [ supra ]. 11. However, as I have already held that the plaintiff succeeds on the ground of personal bonafide requirement, the Writ Petition will have to be dismissed. The Writ Petition as such is dismissed. No costs. 12. At this stage, Mr. Gholap, the learned counsel for the petitioners submits that the petitioners are carrying on their business in the suit premises since the year 1954 and it will be difficult to find alternate accommodation immediately. As such, six ( 6 ) months time be granted for vacating the suit premises. 13. Mr. Kedar, the learned counsel for the respondents opposes the said request. 14. Taking into account the fact that the petitioners are carrying on their business in the suit premises since long time, I feel it appropriate to grant six ( 6 ) months time to the petitioners to vacate the suit premises on the condition that the petitioners submit an undertaking to this Court within the period of two ( 2 ) weeks from today stating that the petitioners would vacate the suit premises on or 9 WP 36.1992 - [ J ] before 30/03/2012 and that the petitioners would not create any third party interest or encumbrance over the suit premises and would pay the rent/damages till 30/03/2012 regularly. 15. Rule is discharged accordingly. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 36.1992 - [ J ]