1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.3431 of 2009 1. ISHWARI TRADERS, THR. PROP. AND 3 ORS R/O WARDHAMAN NAGAR BEHIND WAREHOUSE, NAGPUR 2. ISHWARIBAI W/O LAXMANDAS KAMWANI R/O WARDHAMAN NAGAR BEHIND WAREHOUSE, NAGPUR 3. VINOD S/O LAXMANDAS KAMWANI R/O WARDHAMAN NAGAR BEHIND WAREHOUSE, NAGPUR 4. SUSHIL S/O LAXMANDAS KAMWANI R/O WARDHAMAN NAGAR BEHIND WAREHOUSE, NAGPUR .. PETITIONER/S VERSUS 1. PRAVIN S/O SOMESHWAR MANURKAR AND ANR R/O MASKASATH CHOWK, SAMBHAKASA RD, ITWARI, NAGPUR 2. SHANTAGBAI WD/O SOMESHWAR MANURKAR R/O MASKASTH CHOWK, SAMBHAKASA RD, ITWARI, NAPGUR .. RESPONDENT/S 2 Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri D.G. Paunikar, Advocate for Petitioners. Shri Anand Gode, Advocate for R- 1. Coram : R.C. Chavan, J. Dated : 21 st August, 2009 1. This petition by the persons claiming to be legal representatives of the original tenant takes exception to the concurrent findings of the learned Additional Judge of Small Causes Court, Nagpur, and the learned District Judge-8, Nagpur, holding that tenants Laxmandas and Savitribai, who were running the business under the name of style of “Ishwari Traders”, had sublet the premises to original defendant Nos.4 and 5, i.e. “Adarsh Agency”, through their proprietors and partners – Chandanbhai and Shyambhai – and that the premises were not used by the tenants for the purpose for which they were let as also that the landlord needed the premises bona fide for his own use. 2. I have heard the learned counsel for the petitioners. 3. The learned counsel for the 3 petitioners states that the burden to prove all these things was on the landlords and the landlords had not discharged the burden. He pointed out that the premises of “Dinesh Traders” had become available to the landlords during the pendency of the suit and, therefore, the need of the landlord was satisfied. It is not for the tenants to decide as to what is the need of the landlords. It is for the landlords to choose which premises they need for their business. 4. The learned counsel for the petitioners also contended that there is a partition between the two plaintiffs, i.e. Pravin and Shantabai, heirs of original landlord Someshwar. This is hardly material, since both the legal representatives of Someshwar have joined in seeking possession of the premises. 5. The learned counsel for the petitioners next submitted that the subletting or non-user has not been proved, since no evidence was tendered by the landlords for proving such subletting or non-user. In this context, the learned counsel for the respondent- landlords pointed out from the cross- examination of Laxmandas that Laxmandas had even contradicted his own written statement and his affidavit in evidence. 4 Laxmandas refused to identify persons in the photographs at the premises as Chandanbhai or Shyambhai. Laxmandas admitted that he had undergone angiography before ten years, and since then he used to stay in his house and did not go to the shop. He admitted that the partnership with Savitribai was dissolved in the year 1994 and there is no board of “Ishwari Traders” on the suit premises. He has not been able to show by his evidence that the premises were indeed used for the purpose of business of “Ishwari Traders”, though he denied subletting of the said premises to Chandanbhai or Shyambhai on rent. 6. Shaymbhai was examined at Exhibit 64 and admitted that he had the original registration certificate of his business under the Shops and Establishments Act. He and Chandanbhai were two partners of “Adarsha Agency”. He admitted that the photographs showed himself and Chandanbhai in the shop. Yet, he had cheek to say that “Adarsha Agency” was not doing the business in the suit block. He admitted that he had received the summonses on the same address, i.e. of the suit block. Now with this evidence, it was for the defendants to clarify as to how Shyambhai and Chandanbhai were doing business in the shop, which was let out to Laxmandas and Savitribai for doing the 5 business in the name and style of “Ishwari Traders”. 7. Therefore, it cannot be said that the Courts below erred in holding that subletting or non-user by the tenants was proved and ordering ejectment of tenants on these grounds. 8. The petition has no merit and it is, therefore, dismissed. Judge. pdl