1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.4185 of 2009 (Devidas A. Jhamnani v. Dr. Suresh V. Chandak) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri R.M. Bhangde, Advocate for Petitioner. Shri S.V. Purohit, Advocate for Respondent. Coram : R.C. Chavan, J. Dated : 8 th October, 2009 This petition is directed against the concurrent findings of the learned Additional Judge, Small Cause Court, Nagpur, and the learned District Judge-10, Nagpur, holding that the petitioner is liable to be evicted in order to satisfy bona fide need of the respondent/plaintiff. The respondent/plaintiff is a Radiologist and had sought possession of a shop block, which was occupied by the petitioner, on the ground floor of the building. 2 After the suit was filed, two developments had taken place. The first development was that the first floor of the building, occupied by the Bharat Sanchar Nigam Limited as a tenant of the respondent/plaintiff, became vacant. Thus the entire first floor was available to the respondent. The second development was that the plaintiff’s son Nakul completed his MBBS degree course and proposed to join his father’s practice. Both these aspects are not pleaded. It is the grievance of the learned counsel for the petitioner that the respondent was obliged to explain, after the premises became available, as to how his need still continued by raising appropriate pleadings and then tendering evidence in respect of the need of Nakul. He has also a grievance that the respondent could take his mammography room, for which possession was sought, to the first floor, since there is nothing to show that such examination room could not be on first 3 floor. Therefore, he assails the judgments of the Courts below. He places reliance on the judgment of the Supreme Court in M.M. Quasim v. Manohar Lal Sharma and others, reported at AIR 1981 SC 1113, where the Court observed in para 18 of the judgment as under : “18. ,,, When examining a case of personal requirement, if it is pointed out that there is some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be absent. To reject this aspect by saying that the landlord has an unfettered right to choose the premises is to negative the very raison d’etre of the Rent Act. ...” The Court had disapproved the approach of the Appellate Judge that it was for the plaintiffs to decide whatever they think fit and proper and it was not for the defendant to 4 suggest as to what they should do. The Court observed that when examining a case of personal requirement, if it was pointed out that there was some vacant premises with the landlord which he can conveniently occupy, the element of need in his requirement would be sent. The learned counsel for the petitioner made available for my perusal sketches showing existing and proposed user. Now here the entire ground floor of the building is occupied by the landlord’s clinic, except block in possession of the petitioner. There are ultrasound room, chamber, waiting room and reception room, etc. The landlord has stated that he wants the shop in possession of the petitioner for setting up mammography room and extension of dark room. Now expansion of dark room would be in adjacent shop block, which is already in the possession of the landlord. Just behind the dark room is the 5 x-ray room and there are two toilets. Now it is easy for the petitioner to suggest that mammography room could be shifted to the first floor without realizing the hardship that it would involve in the Radiologist being required to shuffle between ground and first floors depending on the type of examination that patient was to undergo. It cannot be said that need of the landlord is unreasonable or that the Courts below were wrong in accepting that need. The learned counsel for the petitioner also relied on the judgment of the Supreme Court in Maqboolunnisa v. Mohd. Saleha Quaraishi, reported at (1998) 9 SCC 585, where too the additional premises had become available to the landlord. Those premises were a shop on the ground floor itself adjacent to the demised premises. Availability of the first floor of a building to a doctor, whose substantial part of the clinic is ground floor, 6 cannot be equated to availability of adjacent shop, as found in the case of Maqboolunnisa. Thus there is no error in the view taken by the Courts below. The Courts have to realize that lives of litigants do not remain frozen for the duration of a lis and just as old needs abate, new ones arise. If the Courts do not take these changes in account, landlords would be perpetually found chasing a mirage. As for the need of Nakul, the son of the landlord, the learned counsel for the petitioner has a serious dispute that Nakul had stated that it was not true to say that he could open the clinic on the first floor, whereas the learned Judge had observed that Nakul had denied that “they” could open the clinic on the first floor, and had misread the evidence. If a son, who is to join the practice of his father, denies that he could open a clinic on the first floor and if the Judge paraphrases it to be 7 denial of both father and son, there is nothing seriously wrong. Such hairsplitting is improper. Since the view concurrently taken by the Courts below is proper, no interference is called for. The petition is, therefore, dismissed. Judge. pdl