1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1893 OF 1994 Smt.Parvatibai Channappa Dadde. ) deceased by heirs. ) A) Shri Channa Mallappa Dadde, ) 50 yrs.Occ.Service. ) B) Sow. Jayasri Gurulingappa Shille ) Major. Occ.Household work ) r/o 49/12 Bhawanipeth, Kadam Post, ) Hanuman Nagar, Solapur. ).Petitioners. Vs. Zakirhussain A. Majid Waddo ) 32 yrs. Occ.nil, ) R/o 279 Muslim Pachhapeth, ) Solapur. )..Respondent. Mr.S.A.Kumbhakoni for petitioner No.1(B). CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 26, 2009. DATE : FEBRUARY 26, 2009. DATE : FEBRUARY 26, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the Petitioner No.1(B). 2. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the 5th Additional District Judge, Solapur dated 25th October, 1993 in Civil Appeal No.244 of 1990, whereby the Appellate Court reversed the view taken by the Trial Court in dismissing the suit for possession preferred by the 2 landlord and instead, decreed the same and ordered delivery of possession of the suit premises to the landlord on the ground of personal and bonafide requirement of the landlord for his use and occupation-cum-residence as well as business. Indeed, the claim of the landlord did not find favour with the Trial Court. However, each of the aspect dealt with by the Trial Court has been considered by the Appellate Court before overturning the final decision of the Trial Court. The Appellate Court has taken into account the fact that suit property was purchased by the landlord on 8th December, 1983 and thereafter, the suit came to be filed upon issuance of notice eventually on 4th August, 1985. The Appellate Court has noted that this is a strong circumstance to indicate that the need of the landlord was bonafide. The Appellate Court has then dealt with the argument of the tenant that the landlord had purchased the property with full knowledge that there was sitting tenant. In other words, it was a case of speculative deal by the landlord. The Appellate Court has examined even this aspect and rejected that argument of the tenant having regard to the material on record. The Appellate Court then proceeded to examine the evidence, which suggested that the property was 3 purchased by the landlord for his residential and non-residential purposes. The landlord had informed the tenant that he was presently unemployed and intended to start bakery business for which he had sufficient means. In that, he had gold ornaments given to him by his father-in-law. He is also in position to avail of loan facility from the bank, of which he was a member to the extent of Rs.5,000/- and that the capital for running business would be between Rs.15,000/- to Rs.20,000/-. Considering all these aspects, the Appellate Court took the view that the requirement of the landlord was not only bonafide but reasonable. Suit premises are admeasuring only 5 ft. x 12 ft. The tenant was running floor mill in the said premises. Suffice it to observe that every point raised on behalf of the tenant and considered by the Trial Court has been dealt with by the Appellate Court extensively in the impugned Judgment. The finding reached on analysis of the evidence by the Appellate Court with regard to the point in issue is a possible view. It is not a case where the opinion is manifestly wrong or perverse as such. It is founded on material on record. The finding of fact recorded by of the Appellate Court therefore, will bind this Court. It is well established position that merely because any other view can be 4 taken on the basis of same evidence by itself cannot be the basis to interfere in exercise of writ jurisdiction or to overturn finding of fact recorded by the lower Court. Even in relation to the issue of comparative hardship, the Appellate Court has dealt with every detail to hold that greater hardship would be caused to the landlord in case of refusal of decree for possession. The Appellate Court has rightly adverted to the exposition of the Apex Court in the case of Mst.Bega Begum and ors V/s. Abdul Ahad Khan Mst.Bega Begum and ors V/s. Abdul Ahad Khan Mst.Bega Begum and ors V/s. Abdul Ahad Khan reported in AIR 1979 SC 272 reported in AIR 1979 SC 272 reported in AIR 1979 SC 272 to answer the issue of comparative hardship against the tenant. 3. Taking over all view of the matter, no interference in exercise of writ jurisdiction is warranted. 4. The argument of the Petitioners before this Court that landlord was in possession of some other premises and that he was engaged in business alongwith his father has already been dealt with by the Court below and rejected. The view taken in that behalf as aforesaid is a possible view. In any case, merely because landlord was earlier engaged in business alongwith his father, that cannot preclude him from starting his own business, when he has intention to do 5 so. It is well established position that the requirement need not be a dire necessity, but it is enough for the landlord to establish that it is more than desire to start the business. As a matter of fact, as has been rightly found by the Appellate Court, the landlord not only filed suit for possession with immediate dispatch after purchase of the property, but has also shown his willingness to sell of the gold ornaments received by him from his father-in-law and to take loan from the bank of which he is a member. Indeed, it is well established position that it is not necessary for the landlord to make such arrangement at the time of institution of suit itself. The material on record clearly establishes that the landlord has four members in his family for which purpose he was pressing for possession of the suit premises for his own use and occupation for residence as also for starting his business. 5. Accordingly, this Petition is devoid of merits. Hence dismissed. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)