( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 68 OF 1993 Shri Rajendrasing Khushalsing Mahendra (Sikh), R/o Adarsha Nagar, Mundala Mala, Zilla Peth, Jalgaon PETITIONER VERSUS Shri Vivek Kashinath Patil, R/o c/o Sau. Shakuntala Kashinath Patil, Adarsha Nagar, Zilla Peth, Jalgaon. RESPONDENT .... Mr. S.P. Deshmukh, advocate for the petitioner. Mr. G.V. Wani, advocate for the respondent. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th July, 2010] ORAL JUDGEMENT : 1. This petition is filed by the tenant against eviction decree rendered by the trial Court and confirmed by the first appellate Court. 2. The suit tenament is a part of house situated on plot No. 437/1 and 438/2B within the vicinity of village Mehrun, Taluka and District Jalgaon. The suit tenament ( 2 ) comprises of three (3) rooms admeasuring 10 feet x 10 feet. There is no dispute about the fact that the petitioner was inducted in the suit tenament as a tenant somewhere in the year 1972. The agreed rent was Rs. 70-/ p.m.. The tenament was leased out for residential purpose. The tenancy month commences on first day of English calender year. The tenament was leased out to the petitioner by father of the respondent. 3. The respondent filed suit for eviction of the petitioner alleging that he became owner of the suit tenament on account of family partition which was effected on 11th May, 1988 between himself, his father and the mother. He was allotted 2100 sq.feet area on western side of the plot wherein the suit tenament and another tenament is located. The another tenament was in possession of a tenant by name Shri Kalantri. The petitioner was served with notice of attornment on 12th May, 1988. The case of the respondent is that he bonafidely and reasonably required the suit tenament for his personal use and occupation. He wanted to shift his office in one of the front room, wanted to utilize another room as bed room and the third room as a store room. He submitted that he was separately conducting practice as a legal practitioner. His father used to run office in the tenanted premises situated in ( 3 ) Jilha Peth locality. His mother was residing separately in Adarshnagar locality i.e. in the proximity of suit tenament. He was residing alongwith the mother in the congested and inadequate accommodation and that too at her mercy. He, therefore, called upon the petitioner (tenant) to vacate the suit tenament, as per notice dated 9th December, 1988. The petitioner allegedly gave false reply to notice and declined to vacate the suit tenament. The petitioner, however, alleged that though there was no real partition between the respondent and his parents, yet, artificial device of so called partition memo was prepared in order to put forth false claim for the purpose of claiming eviction. The petitioner alleged that father of the respondent had filed a suit in the past which ended in a compromise and, therefore, such device was invented by the respondent and his parents in order to file the suit. It was contended that previously, the rent of the suit tenament was Rs. 65/- on account of compromise between the petitioner and father of the respondent in the earlier suit (R.C.S. No. 507/1974). The petitioner further denied that the suit tenament was required by the respondent for bonafide and reasonable personal use and occupation. The petitioner alleged that the respondent was having other accommodation, including the parents’ house wherein he was residing and that ( 4 ) the alleged requirement is not at all bonafide. It was contended that the requirement put forth by the respondent is not genuine, but is invented in order to oust the petitioner and his family members from the suit tenament. It was further contended that the petitioner was likely to suffer more hardship as compared to the respondent if eviction decree would be passed. ON basis of these pleadings, the petitioner sought dismissal of the suit. 4. The learned Civil Judge decreed the suit. The petitioner preferred civil appeal No. 131/1991. The first appellate Court dismissed the appeal. Hence, the petition, challenging the concurrent findings of both the Courts as regards bonafide requirement of the respondent for the accommodation which prompted the eviction decree. 5. Heard learned counsel for the parties. 6. The petitioner is dealing in transport business. The respondent is an advocate by profession. It has come on record that father of the respondent was also a practicing advocate. His father is no more. Admittedly, his father used to run office in the tenanted premises situated in Jilha Peth ( 5 ) locality at Jalgaon. His father died in or about 2001. Since then, the said tenanted premises are in possession of the respondent. It is undisputed fact that the respondent is the only son to his parents. It is also an undisputed fact that just across the road from short distance of the suit tenament, there is residential house owned by the family members which was allegedly allotted to mother of the respondent in a partition which was purportedly effected in the year 1988. 7. Clinching question is as to whether it was genuine partition between the respondent and his parents or that was only a pretext to claim the suit tenament on ground of personal and bonafide requirement of the respondent. It is important to notice that father of the respondent, who too was an advocate, had entered into compromise with the petitioner in the earlier round of litigation of suit (R.C.S. No. 507/1974). His father was the original landlord who had created tenancy rights in favour of the petitioner. His father was unable to claim the suit tenament for personal and bonafide requirement because of the legal impediments such as the previous compromise arrived at in the previous suit (R.C.S. No. 507/1974) as well as due to the fact that running the office in another tenanted premises which was apparently ( 6 ) spacious as compared to the suit tenament. The ground of bonafide requirement was put forth by the respondent for the reason that he was in need of shifting his office and residence therein. The partition between the respondent and his parents was not brought about by any registered document as such. The respondent claimed that there was oral partition between himself and the parents in the month of May, 1988 and it was subsequently reduced into writing vide the memorandum dated 11th May, 1988. The copy of memorandum of partition was placed on record. It has come on record that father of the respondent had constructed new house property in Adarshnagar locality in 1985-86 which consisted of four (4) rooms. The respondent and his wife alongwith the parents were residing in the said premises. The alleged partition was effected in the month of May, 1988 and immediately thereafter, the attornment notice was issued to the petitioner on next day i.e. 12th May, 1988. The suit was filed on 12th January, 1989 i.e. within few months period thereafter. The chronological events would show that soon after the preparation of the memorandum of partition, the respondent aimed at bringing about eviction of the petitioner and, therefore, on very next day, the attornment notice was issued and the termination notice was also issued so as to determine the tenancy rights w.e.f. 13th ( 7 ) December, 1988. The speed with which the respondent acted after preparation of memorandum of partition will itself show that the purpose of bringing about such document was to remove the difficulty which father of the respondent could have faced in filing of the suit for eviction and also to prepare some material to give a gloss to the demand for the suit tenament. 8. The evidence on record reveals that the half portion of the house property which comprises of identical three (3) rooms tenament was sold by the respondent to another tenant, namely, Shri Kalantri during pendency of the suit. In fact, he had filed two (2) separate suits for eviction against the petitioner and said Shri Kalantri. The suit against Shri Kalantri was disposed of because of such sale transaction. Thus, during pendency of the suit (R.C.S. No. 45/1989) which was filed on similar grounds against Shri Kalantri, by his own act, the respondent gave go-bye to the additional demand for the another tenament. This aspect of the matter has not been properly appreciated by both the Courts below. The record further reveals that the petitioner's family members comprise of his brother, father, wife and other members. It has also come on record that the petitioner is not a well-off person. The requirement spelt out by the respondent in para-5 of the ( 8 ) plaint is that he was in need of the suit tenament for his office and residence. He asserted that for the similar purposes, he required the premises of another tenant, namely, Shri Premraj Meghraj Kalantri. He wanted one of the rooms from that tenament to use as library in a room whereas another room was sought for the purpose of dining hall and the third room was required for kitchen. Hence, his need was shown in respect of all the six (6) rooms. He has not explained why he was constrained to curtail the need to the extent of only three (3) rooms which are in possession of the present petitioner. As stated earlier, the subsequent developments go to show that the office premises held by his father have come into his possession. 9. It does not stand to reason that his father was not allowing him to practice in the same office. He admitted during the course of cross-examination that there was common library for himself and his father. The library was in the office which was in the tenanted premises situated in Jilha peth locality. Needless to say, he was having free access to the said library and impliedly the office of his father. 10. The petitioner has brought on record further ( 9 ) intervening development. It appears that the residential house which is allegedly transferred in name of mother of the respondent is constructed with third floor wherein more space is made available for use of the respondent and his family members. Faced with these difficulties, learned counsel for the respondent would submit that the respondent knows about his bonafide requirement and needs better than anyone else. He invited my attention to certain observations in "Gaya Prasad v. Pradeep Shrivastava" 2001 (2) Mh.L.J. 581. The Apex Court held that crucial days for deciding the bonafides is the date of application for eviction by the landlord. It is observed that if every subsequent development during the post petition period is to be taken into account for judging the bonafides of the requirement pleaded by the landlord, there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. At the same time, the Apex observed : "The subsequent events to overshadow the genuineness of the need must be of such nature and dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events." ( 10 ) 11. It is but natural that the subsequent events, if any, are relevant in order to determine whether the bonafide requirement put forth by the landlord has vanished due to passage of time and due to the happenings during the intervening period. In the present case, the very claim of the respondent does not appear to be need-based because that was on the foundation invented needs under pretext of the so called partition between himself and his parents. Reliance is also placed on "Ismailbhai Gulam Hussain v. Additional Collector and others" 2006 (4) Mh.L.J. 695 and "M/s Musaji Mohamadali Master & another v. Mr. Gulamali Dadabhai Amreliwala (deceased through L.Rs.) & others" 2005 (2) ALL MR 320. In "Ismailbhai Gulam Hussain" (supra), it is observed that the tenant cannot force to start using particular premises for non-residential purposes. It is further observed that desire of the landlord to have office of his firm or establishment in his own building cannot be labelled as malafide. In "M/s Musaji Mohamadali Master & another" (supra), a Single Bench of this Court dealt with scope of Article 227 of the Constitution of India in the context of the concurrent findings of two (2) Courts, particularly in the matter pertaining to eviction under section 13 (1) (g) of the Bombay Rents, Hotel and Lodging ( 11 ) House Rates (Control) Act, 1947. The Hon'ble Single Judge held that it is for the landlord to prove the need and it is not for the Courts to substitute its own view and to find out whether the need of the landlord is bonafide or not. The question of bonafide and reasonableness is essentially to be determined on the basis of the evidence that is led by the parties. The Hon'ble Single Judge further observed : "As this petition is filed under Article 227 of the Constitution, this Court cannot act as an appellate Court and re-appreciate that entire evidence and then record a different finding than that has been recorded by the learned ADJ. I am aware of the fact that this Court cannot convert itself as an appellate Court under the guise of finding an error apparent on the face of the record. An error apparent on the face of the record must be an apparent error which does not require detailed long drawn process of arguments and appreciation of evidence. The parameters of the exercise of jurisdiction of the High Court in petition under Article 226 or 227 of the Constitution, is clearly demarcated by catena of judgements of the Apex Court since last five decades or so. The first such judgement of the Apex Court is the landmark judgement reported in AIR 1955 SC 233; 215 & 233; AIR 1958 SC 398; AIR 1967 SC 1. Then came the judgement of the Apex Court in the case of ( 12 ) Babhutmal Ostwal Vs. Laxmibai reported in AIR 1975 SC page 1290; AIR 1996 SC 137; 2002 (4) SCC 388; (2003) 6 SCC 641; 2003 6 SCC 675 and finally (2004) 3 SCC 682." 12. There cannot be duality of opinion about legal proposition that ordinarily, in the exercise of jurisdiction under Article 227 of the Constitution, this Court will not re- appreciate the evidence. It is also not a debatable proposition that the interference by the writ Court is permissible only when there is an error apparent on the face of record, or perversity or arbitrariness noticed from the judgements of the Courts below. IN the present case, it appears that both the Courts below did not properly address the issue regarding the bonafide requirement of the respondent vis-a-vis the genuineness of the theory of partition. The respondent being the only son to his parents, ordinarily, there could not be a serious reason for the alleged partition and if at all it was a genuine partition, in the normal course of human conduct, such speedy action on part of the respondent was rather not in keeping with the human nature, particularly of the only son who could have been mentally disturbed due to segregation from his parents. The surrounding circumstances go to show that the memorandum of partition was a device to carve ( 13 ) out grounds for the parties claiming eviction against the tenants. The Courts below did not discuss about conduct of the respondent in giving up the claim for another tenament and effecting the sale in favour of another tenant. The learned counsel for the petitioner seeks to rely on certain observations in "Avinash V. Mhapankar vs. Prabhakar S. Kelkar and others" 2001 (4) Mh.L.J. 220. In the given case, the Hon'ble Single Judge came to the conclusion that though there were concurrent findings of the civil Court and the District Court, yet, the ground of bonafide requirement had been eclipsed in view of subsequent development, namely, that the landlord got possession of another block who had left the premises. In the instant case, father of the respondent was having the office premises which are now with the respondent after demise of his father. There is more space available in the adjoining premises which stand in the name of his mother. Another tenament was sold to Premraj Kalantri. These subsequent developments have impacted the alleged bonafide requirement which has been completely over-shadowed. In "M.M. Quasim v. Manohar Lal Sharma and others" (AIR 1981 S.C. 1113), the Apex Court held that plea that the landlord has unfettered right to re-enter premises of his choice could be maintainable. In view of the legal position discussed ( 14 ) hereinabove and the peculiar fact situation obtained in the present case, the following inferences are irresistible. a) That, the respondent (landlord) and his parents prepared artificial device of so called memorandum of partition in order to surmount the legal impediment which could have deterred father of the respondent from filing of the suit for eviction due to earlier terms of settlement in the previous suit; b) The subsequent development indicated absence of genuine bonafide and personal need of the respondent which is reflected due to the transfer of the three (3) rooms' tenament in favour of another tenant - Shri Premraj Kalantri; and c) The subsequent developments have eclipsed the bonafide and personal requirement put forth by the respondent. 13. For the reasons aforestated, the impugned judgements are unsustainable. The petition deserves to be allowed. Hence, the petition is allowed. The impugned judgements are set aside. The suit be deemed as dismissed, with no order as to costs. ( 15 ) 14. In view of disposal of this writ petition, the civil application No. 8336/2010 stands disposed of. [V.R. KINGAONKAR] JUDGE NPJ/wp68-93