( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 33 OF 2009 1. Govindrao s/o. Sadanand Tandle .. Applicants Deceased through his L.Rs. 1A. Smt. Prayagbai w/o. Govindrao Tandle, Aged 75 yrs., Occ. Household, R/o. Visawa, Block No.12, Kalpana Housing Society, Bansilal Nagar, Aurangabad. 1B. Vinayak s/o. Govindrao Tandle, Aged 50 years, Occ. Service as Professor at Guru Govindsingji Medical College and Hospital, Gurudwara Road, Nanded. 1C. Ravindra s/o. Govindrao Tandle, Aged 45 years, Occ. Service As Clerk in the office of the Executive Engineer, Minor Irrigation, Implement Guarantee Scheme Division, Khokadpura, Aurangabad. 1D. Sunil s/o. Govindrao Tandle, Aged 40 years, Occ. Business, R/o. C/o. Anjali Medical & General Stores, Devpriya Building, Railway Station Road, Aurangabad. 1E. Prashant s/o. Govindrao Tandle, Aged 35 years, Occ. Business, R/o. Handloom Cloth Stores, Supari Hanuman Road, Aurangabad. ( 2 ) Versus 1. Babulal s/o. Parashram Patel .. Respondent Deceased through his L.Rs. 1A. Sow. Vijaya w/o. Harkishan Tambkuwala, Aged 60 years, Occ. Household, R/o. Supari Hanuman Road, Aurangabad. 1B. Sow. Kishori w/o. Jivanlal Patidar, Aged 52 years, Occ. Household, R/o. Supari Hanuman Road, Aurangabad. 1C. Satish s/o. Babulal Patel, Aged 55 years, Occ. Service, R/o. Supari Hanuman Road, Aurangabad. 1D. Vinod s/o. Babulal Patel, Aged 48 years, Occ. Service, In the Bank, R/o. Supari Hanuman Road, Aurangabad. 1E. Pramod s/o. Babulal Patel, Aged 45 years, Occ. Business, R/o. Supari Hanuman Road, Aurangabad. Shri S.S. Choudhari, Advocate for the applicants. Shri R.R. Mantri, Advocate for respondent Nos. 1A to 1E. CORAM : P.R. BORKAR,J. DATED : 24.09.2009 ( 3 ) ORAL JUDGMENT :- 1. This Civil Revision Application is preferred by the original tenant who has suffered decree of eviction at the hands of the Rent Controller, Aurangabad, in Case No. 1985/ARC/89, decided on 12.07.2007, which judgment and order is further upheld in Rent Appeal No.8 of 2007, by the Principal District Judge, Aurangabad, on 01.01.2009. 2. The facts giving rise to this appeal may be stated as follows:- . The present applicants are legal representatives of original defendant Govindrao Tandale, who was admittedly tenant occupying shop premises and a room admeasuring in all 20'5" x 12'3", situated at Aurangabad. The property is described in paras 1 and 2 of the plaint. The respondents are legal representatives of original plaintiff landlord Babulal Patel. The suit for possession is filed under the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (for short "Hyderabad Rent Act"). As per ( 4 ) para 3 of the plaint, original plaintiff Babulal Patel had three sons, namely, Satish, Vinod and Pramod. Satish was doing agricultural operations, Vinod was serving in Bank and younger son Pramod, who was then 37 years of age, was said to be educated unemployed. Pramod has completed electrical course. He was unemployed and jobless for 1 and 1 1/2 years prior to filing of the suit. According to Babulal, he had sufficient funds and he wanted to engage his younger son Pramod in business and suit premises were suitable for the same. Therefore, the plaintiff wanted the suit premises for his younger son. The plaintiff has no shop in residential house. The suit is also filed in respect of adjoining shop premises. It is further stated that the plaintiff has two grandsons, namely, Sanjay s/o. Satish Patel, aged 22 years and Ajay s/o. Satish Patel aged 20 years. The elder grandson Sanjay Patel had passed B.Com. course and Ajay was studying in B.Com. II year. It is stated that elder grandson Sanjay was jobless and unemployed and therefore the plaintiff wanted to establish him by way of his own business and for that purpose the suit premises is required. 3. The suit was resisted by the defendant Govindrao ( 5 ) Tandale by filing written statement. It is contended that the defendant is old tenant, running shop for years in the premises. He earned vast goodwill. The shop is the main source of income of livelihood for him. His family is dependent on the same. He would suffer irreparable loss if he is evicted. On the other hand the plaintiff is affluent and rich person. He has agricultural land and one of his son is in service and he is also getting income from rental amount. So, prayer was made for dismissal. 4. The Rent Controller discussed the evidence in detail. It is argued that the issue of hardship was not considered by the Controller. In the District Court, request was made to remand the matter as there was no issue of hardship framed and decided by the Rent Controller. However, the District Court has come to a conclusion that the suit was pending for 22 years in the Trial Court. After completion of evidence of both side, issue could not be framed. Normally, the said objection should have been taken at the earliest possible opportunity. It is also observed that in the written statement there was no whisper regarding alternate accommodation being available to the landlord. So, the ( 6 ) Appellate Court decided to consider the issue of hardship on the evidence already available on record. The District Court in para 9 of the judgment has considered that Pramod was still unemployed, though he had passed D.C. The grandson of plaintiff by name Sanjay had passed B.Com and another son Ajay was taking education in B.Com. II year. Sanjay could not get employment. So, he completed LL.B. and he is practicing advocate. He is not having office and shop premises is required for his grand son Sanjay for office. 5. The plaintiff examined Sanjay. Sanjay stated that since he could not get service, he completed LL.B. and was practicing at the time of his deposition. He completed LL.B. in the year 1987. He further stated that the suit house described in plaint is three storied building and there are two shops on the ground floor. They are given on rent. There is one big hall on first floor and on the third floor there are three rooms. In the said three rooms his uncle and his two brothers are residing. They are using the big hall on the first floor for their sitting and sleeping. There is no office for meeting his clients. In all 18 persons are in the family. Three room premises in the Dagad Galli are in ( 7 ) dilapidated condition and litigation was pending between his father and grand father regarding said property. 6. Tenant - Prashant Tandale, who is examined on behalf of the defendant has admitted that the house in Dagad Galli is in dilapidated condition since previous 10 - 12 years. He further stated that he had resigned from the service of S.T. Corporation and was running the shop in question. They were also having Ashwini Departmental Store in the name of his brother, but that was already closed when the evidence was recorded. It is further admitted in the cross-examination that Sanjay, Ajay and Pramod are members of the family. Sanjay Patel is practicing advocate and he used to sit on Ota along with his client or used to sit in the shop premises in the dispute. Sanjay has no separate office. Considering these circumstances, the District Court has come to a conclusion that plaintiff would suffer more hardship, and that there is bona fide requirement, and so he dismissed the appeal. 7. At the time of arguments before this Court, the learned advocate for the applicants relied upon case of ( 8 ) Sanjaykumar S/o. Govindlal Agrawal V/s. Keshavlal s/o. Banduchand Shah, 2001 (1) ALL MR 703. Their Lordships considered Section 15 (3a) (iii) of the Hyderabad Rent Act. Before I consider the citation, I may reproduce Section 15 (3a) (iii) of the Hyderabad Rent Act, which is as under :- “15 (3) (a) A landlord may subject to the provisions of clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the house - (i) x x x x x (ii) x x x x x (iii) in case it is any other non-residential house, if the landlord is not occupying for purpose of a business which he is carrying on a non-residential house in the city, town or village concerned, which is his own or to the possession of which he is entitled. (iv) x x x x x “ . As per Sub-section (1) Section 15, a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of said section. In the case of Sanjaykumar (Supra), this Court relied upon case of Division Bench of this Court in Shantabai alias Jadhavbai w/o. Keshrimal Kabra V/s. Modonlal s/o. Mansukhlal Kabra & ( 9 ) Anr., 1977, ILR, Bombay Series 1334. In that case, the Division Bench observed that the landlord must show that he was carrying on some business in presenti, for which he did not have any accommodation by way of non-residential premises available in his own right. That might happen when, for instance, the landlord is doing his business at his place of residence, or in non-residential premises of which he is merely in permissive occupation and to the possession of which he is not entitled as of right. It is held that the landlord must be already carrying on business. The argument that cases in which the landlord proposes to start a new business should also be held to be covered by the said provision was negatived by observing that such construction is not not contemplated by plain terms of clause (iii) of sub-section 3 (a) of Section 15 of the Hyderabad Rent Act. 8. Following the said case of Shantabai (Supra), in Sanjaykumar (Supra), following observations are made in paras 12 and 13 :- “12 .................. in the present case, the landlord has come before the Court contending that he wanted to start new business ( 10 ) and, therefore, he required the suit premises, and that very aspect of the case is fully dealt with in the ruling of the Division Bench in the matter between Shantabai alias Jadhavbai V/s. Modonlal (Supra). 13. In such circumstances, the reasoning given by the learned District Judge, for rejecting the claim of possession of the petitioner, on the ground that the petitioner was not having running business when he made claim and he wanted to start new business and, therefore, his case does not fall under the provisions of clause “iii” of sub-section 3 (a) of Section 15 of the Hyderabad Rent Act, must be confirmed.” 9. Adv. Shri R.R. Mantri for respondent No. 1A to 1E fairly conceded that the ratio laid down in the case of Shantabai (Supra) is not overruled but he stated that in the case of Sanjaykumar (Supra), there was mere desire to start business. In this case, it is argued that within one year after making application to Rent Controller, Sanjay became advocate and started practice. Admittedly, Sanjay had no office of his own and therefore the view taken by the Rent Controller and the District Court that premises are required bona fide for starting business should be accepted and upheld and this appeal be dismissed. He also argued that this point is raised for the first time after 23 years. It does not appear that the ground made out by the respondent landlord is ( 11 ) covered by any other provision of the Hyderabad Rent Act. The ratio laid down in the case of Shantabai (Supra) as reiterated in the case of Sanjaykumar (Supra) is binding on this Court. Now it is very clear from the recital of para 3 of the plaint that when application was made to the Rent Controller, family had no business of its own, but the plaintiff intended to start business for Pramod who was third son of original plaintiff Babulal. It is also said that premises would be required also for business to be started for Sanjay who had completed B.Com and was jobless and unemployed. So, when the application was made, ground under Section 15 (3a) (iii) of the Hyderabad Rent Act, was not available. Adv. Shri Mantri argued that the ground must be available on the date on which the Rent Controller is deciding the application. In my opinion, this is not correct view. 10. The learned advocate Shri S.S. Choudhari also relied upon case of Govind Vishwanath Bansode and Anr. V/s. Manika Gangaram Bansode and Ors., 2008 (5) ALL MR 555 for proposition that party cannot be allowed to adduce evidence against his pleadings. In this case though the evidence ( 12 ) cannot be said to be contrary to the pleadings, the evidence is regarding subsequent development regarding which there are no pleadings even by way of amendment. 11. In the facts and circumstances, in my opinion, the Civil Revision Application must succeed as the ground on which the eviction sought was not available when original application was made. In the circumstances, this Civil Revision Application is allowed. The judgments and orders passed by the Rent Controller, so also the District Court in the appeal are hereby set aside. In the circumstances the parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/SEP09/cra33.09