1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO: 4914/2008 (Ashok Gangadhar Shrirao vs. Smt.Ashalata Thakre ) ----------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions & Registrar's orders. ................................................................................................................................... CORAM: B.P.DHARMADHIKARI DATED: 27th November,2008. *** Heard Advocate Kshirsagar for petitioner/original defendant/tenant and Advocate Bhangde for respondent/caveator/plaintiff- landlady. 2. Advocate Kshirsagar contends that though tenancy was not sought to be terminated and possession was not sought on the ground of alternate accommodation, the lower Appellate Court has passed an order even on that count. He states that the premises admeasured about 3000 sq. ft. are available on the ground floor to respondent-landlady and the same can be used for non-residential i.e. commercial purpose. However, still those premises are being used for residential purpose and the premises on first floor which are to be used for residential purpose, were offered to present petitioner as alternate accommodation for shifting his business of hardware. He further contends that earlier in those premises on first floor, a Doctor was having a clinic and that 2 Doctor was requested to vacate the same because son of the present respondent wanted to have his own clinic. He contends that the need put forth to establish in tenanted premises on ground floor a clinic for son and in present facts, the trial Court rejected the need and dismissed the suit as filed. The lower Appellate Court has, however, ignoring all these findings, granted eviction. He states that when the premises on first floor were being offered to present petitioner, the son of the present respondent could have started his clinic in those premises. He further states that the landlady never entered the witness box and her son only was examined. He relies upon the judgment of this Court reported in 1980 Mh.L.J.867 in the case of Nanalal Goverdhanlal & Co. and others vs. Samratbai Shah. 3. Advocate Bhangde for respondent- landlady states that 1980 Mh.L.J . 867 (supra) is overruled by this Court in 1984 Mh.L.J 253 in the case of Nathulal Gangabaks Khandelwal & others vs. Nandubai Khandelwal & others. He further states that the premises on first floor cannot be used for any non-residential purpose and, therefore, son of respondent is not in a position to start his clinic at that place. As earlier a doctor was having his clinic in that premises and premises on first floor cannot be put to non-residential purpose only to accommodate the present petitioner, the landlady offered premises on first floor to the 3 petitioner. He further argues that alternate accommodation was not the ground raised before the trial Court and even Appellate Court has not decreed the suit on that count. He states that availability of alternate accommodation of about 6000 sq.ft. for commercial purpose with present petitioner, is the fact taken into consideration by the lower Appellate court while considering the issue of comparative hardship. 4. After hearing the parties and after perusing the both the judgments with assistance of respective Advocates, I find that the son of landlady who wanted to establish his clinic has entered in witness box and has deposed in support of the suit as filed, Advocate Kshirsagar urged that he has deposed about his own need and has not deposed anything about facts of the case. Bare perusal of both the judgments show that this position and argument is not correct. No material on record is being pointed out by the petitioner to show absence of nexus between the interest of landlord and the need of premises for son. The view taken by learned single Judge in 1980 Mh.L.J.867 (Nanalal & Co. vs. Samratbai) has not been accepted to be of universal application in later Division Bench judgment i.e. 1984 Mh.L.J . 253 (Nathulal vs. Nandubai). The fact of premises available with the present respondent on ground floor being put to residential use by her is not in dispute. She wanted the two shop blocks in 4 possession of the present petitioner to establish a Clinic for her son and the fact that the rooms on first floor vacated by Doctor cannot be put to non- residential use is also not in dispute. It is, therefore, clear that in order to show the bona fides, the premises on first floor were offered to the petitioner. When those premises cannot be legally put to any non-residential use, the son of respondent cannot be expected to have his clinic on first floor. Similarly, no evidence has been brought on record by present petitioner to show that there are mala fides in the matter. The extent of family of present respondent and the need of family has not been brought on record by present respondent to show such mala fides or to prove that she has excess area with her on ground floor. Merely because, the accommodation on upper floors which should have been used for residential purpose is being let out by present respondent for non- residential purpose, that does not mean that the respondent had any grudge against the present petitioner. In fact, there are no pleadings about the mala fides against the petitioner on record. 5. Perusal of Para 44 of Appellate court judgment shows that petitioner accepted availability of alternate accommodation with him for non- residential purposes. This alternate accommodation is considered by Appellate Court only as a facet of issue of comparative hardship. In the circumstances when the judgment of lower appellate Court shows 5 that aspect of comparative hardship has been gone into correctly, I am, therefore, not inclined to interfere in the matter in writ jurisdiction. Writ Petition is, therefore, dismissed. No costs. JUDGE sahare