1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5364 OF 1990. 1. Mr. Anil Narsinha Divekar, (since deceased through his L.Rs) 1A. Aneeta Anil Divekar, age: 62 years, Occn.Housewife. 2A. Ritesh Anil Divekar, age 36 years,Occn.Business, both residing at: 1254, Shukrawar Peth Pune 411 030. 3A.Mrs. Vaishali Anilkumar age: 40 yrs, Occn. Housewife. Residing at Canary Height, Raheja Sherwood, Nirlon Compd. Goregaon (E) Mumbai 400 063 ..Petitioner -versus Shri.Moreshwar Raghunath Abhyankar (deceased) through his legal representatives. 1A. Madhav Moreshwar Abhyankar, age: adult, Occn. Business, 1B. Smt Sudha Moreshwar Abhyankar, age:adult, Occn. Business, both r/at : 1432, Shukrawar Peth, Pune 411 002. ..Respondent Mr. Shirish Pitre, for the petitioners. Mr. S.G. Karandikar, for the Respondent Nos lA and lB. 2 CORAM: A.S. OKA, J. DATED:25 th September, 2009. Judgment 1. Submissions of the learned counsel, appearing the parties were heard on the earlier date. Today the petition is kept for dictation of judgment. 2. The petitioners are the legal representatives of the original defendants and the respondents are the legal representatives of the original plaintiff. For the sake of convenience, the parties are hereinafter referred to with reference to their status before trial Court. 3. The plaintiff is the landlord and the defendant was the monthly tenant of the plaintiff in respect of two shop premises on the ground floor of the property bearing House No.1432 at Shukrawar Peth, Pune 411 002. The suit was filed by the plaintiff mainly on the ground of bonafide requirement, non user and acquisition of suitable accommodation. The trial Court decreed the suit on the ground of bonafide requirement as well as on other two grounds. An appeal was preferred by the defendant before District Court. The District Court confirmed the decree on the ground of bonafide requirement and non user. 4. During the pendency of suit, a Court 3 Commissioner was appointed. The Court Commissioner visited the suit premises as well as the premises in possession of the plaintiff. The Court Commissioner found that the plaintiff was in possession of a room admeasuring 17’6” x 12’ on the ground floor. The Court Commissioner found that the plaintiff was in possession of a room admeasuring 7’ x 20’ on the rear side in which old articles were stored. On the first floor, one room admeasuring 13’ 6” x 12” was being used by the plaintiff as a sitting room. Apart from the sitting room, there was a kitchen admeasuring 17’ 6” x 12’ and bed room admeasuring 12’ x 12’ 6” and a passage having width of 2’ 1” x 36’ on the first floor. Thereafter the Court Commissioner visited a shop premises at house 1423 Shukrawar Peth at Pune. The Court Commissioner was told by the defendant who was present there that the shop premises was of his mother. The Commissioner also visited the property bearing house No. 1025, Sadashiv Peth, Pune, in possession of the defendant. He found that it was a R.C. C. structure. It was a shop admeasuring 37’ 6” x 30’ having name board, “Rainbow Corporation”. The Commissioner also visited another property of the defendant at survey No.691 City Survey No. 1892 at Bibvewadi, Pune. The Commissioner found that an 4 area of 55’ x 19’ in the said property was in possession of the defendant. He noted in the report that there was a machinery in the said premises and the defendant informed him that he has purchased the said premises on ownership basis. 5. The learned counsel appearing for the petitioner submitted that the Courts below after having noted that the plaintiff was in possession of total five rooms, the issue of greater hardship has not been properly dealt with by the both Courts and there is no specific finding on the said issue. He submitted that reliance could not have been placed on Court Commissioner’s report in as much as Court Commissioner could not have been appointed to collect evidence. He submitted that the bonafide requirement was not established. He submitted that as the suit premises were let out for non residential use, the finding of non user was not justified. Learned counsel appearing for the respondent supported the impugned judgment and decree. 6. I have carefully considered the submissions. The evidence of the plaintiff discloses that there were five members in his family including himself, his wife, two daughters and a son. When the evidence was recorded respective ages of the daughters and son were disclosed as 5 31, 24 and 26 years respectively. The plaintiff disclosed that after retirement from his employment as Sub Registrar, he started practicing as a Lawyer from 31st January, 1986. He stated that his son is an interior decorator by occupation. He described various other properties held by the defendant. He stated that out of three rooms on the first floor in his possession, one was being used as a bedroom, one is used as a sitting room and the third one is a kitchen. He stated that the room on the ground floor is being used as a bed room of his son. He stated that he does not have any other accommodation for the purpose of his legal profession and even his son has no accommodation for his occupation. In the cross examination he admitted that the second room on the ground floor is used for storage of sundry articles. 7. The defendant stepped into witness box. He admitted that he was the owner of 41.36% portion of the property bearing house No.1025 at Sadashiv Peth, Pune and the rest of the portion is in possession of his father. In the cross examination he admitted that another property bearing No.1423 at Sadashiv Peth, Pune is the property of his mother which was used for business of M/s Rangraj Association. He admitted that the property bearing house 6 No. 1025 at Sadashiv Peth, in which he has approximately 42% share was jointly purchased by him and his father. He stated that area of said property is 1300 sq feet. He stated that there is an office accommodation in the said property and there is a shop on the front side. He admitted that he was holding shed No.7 admeasuring 680 sq. feet at Bibvewadi, Pune. He stated that the other shed bearing No. 8 was standing in the name of his father. He also admitted that he was in possession of shed No.6, but he was not in position to show that he was using it temporarily. Thus, what is brought on record is that the family of the plaintiff landlord consists of five members. The plaintiff is in legal profession and his son is doing business as an interior decorator. The plaintiff is in possession of four rooms, consisting of two bed rooms, one sitting room and a kitchen. He is in possession of another small room admeasuring 7’ x 20’ on the ground floor which is used for storing sundry articles. There is nothing on record to show that the plaintiff or his son is possessing any other premises for their respective profession and occupation. 8. As against this, the evidence on record shows that apart from suit premises, the defendant was having about 42% share in the property bearing No.1025, Sadashiv Peth, 7 Pune. The area of the said property is about 1300 Sq. feet consisting of an office and a shop on the front. The remaining share in the said house is owned by his father. The evidence on record also reflects admitted position that the tenant is in possession of industrial shed No.7 and admeasuring about 680 sq feet and adjoining shed no.8 stands in the name of father of the defendant. The defendant’s mother has an independent business premises. 9. Thus the concurrent finding of fact recorded by both the Courts below is that the plaintiff does not have separate premises for carrying on his legal profession and his son who was an interior decorator does not have independent accommodation for the purpose of his business of interior decoration. The premises in possession of the plaintiff consisting of total five rooms are just sufficient for the residence family of five persons. As stated earlier one small room is being used for storage of sundry articles and old goods which is on the rear side of the ground floor premises. As against this, apart from suit premises, the defendant is in possession of an industrial shed as well as commercial premises in different parts of city of Pune. All these aspects have been considered by the Courts below and the concurrent findings of facts have 8 been recorded on the issue of bonafide requirement and greater hardship. 10. Even if the report of the Court Commissioner is ignored, the aforesaid factual position is borne out from the oral evidence of plaintiff and the defendant. In writ jurisdiction it is impossible to interfere with the findings on the issue of bonafide requirement and comparative hardship. Therefore, the decree passed on the said ground deserve to be upheld . The findings recorded by the Courts below as far as decree on the ground of non-user is concerned, cannot be upheld in as much as taking the findings of the Courts below as it is, the allegation of non user is not at all established. 11. In the circumstances it is not possible to find any fault with the decree for possession passed by the Trial Court on the ground of bonafide requirement and confirmed by the Appellate Court. The Writ Petition is accordingly rejected. Rule is discharged. (A.S. OKA, J)