1 34-wp-7300-2004.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY srj CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7300 OF 2004 Shri Babulal P. Sharma .. Petitioner V/s. Shri Anilkumar G. Patil .. Respondent. Mr. Machindra Patil, for the Petitioner. Mr. Pratap Patil, for Respondent. CORAM : G.S.GODBOLE, J. DATE : 13th SEPTEMBER, 2011. P.C.: 1 Heard the learned Advocates for the parties. 2 The Writ Petition was admitted on 23rd September, 2005 and decree for possession was stayed. Subsequently, the Petition was dismissed for want of prosecution on 4th February, 2011 and was restored on 11th April, 2011. However, the decree was put in execution in the mean time and was executed on 15th April, 2011. Hence, Civil Application No.958 of 2 34-wp-7300-2004.sxw 2011 has been filed by the Petitioner. In the said Civil Application, on 6th May, 2011 and 23rd August, 2011, the following orders were respectively passed:- Order dated 6 th May, 2011:- “(a) Civil Application is filed for restoration of possession. The writ petition filed by the Applicant/Petitioner was dismissed for want of prosecution on 4th February, 2011. Thereafter, the civil application was filed for restoration of the writ petition and interim order which was passed in favour of the Petitioner. The said civil application was allowed on 11th of April, 2011. It is submitted that though order of this Court was pointed out to the Bailiff, he refused to give acknowledgment on the said letter to which the order was annexed and the possession was forcibly taken in spite of the said order passed by this Court. (b) On the other hand, the learned counsel for the Respondent submitted that in fact, the son of the Petitioner had handed over the possession voluntarily in the morning on 15th of April, 2011. (c) Since the possession is already taken, in my view, it would be appropriate if the writ petition itself is heard finally. If the petition is allowed, the possession can be restored back. (d) The Respondent, however, till that time is directed not to create any third party rights or induct any new tenant or start any new business in the said premises. Stand Over to 8th June, 2011. Order dated 23 rd August, 2011:- (a) Perused the order dated 6th May, 2011 passed in this Civil Application. (b) Considering peculiar facts and the said order, the Writ Petition is fixed for final hearing on 3/9/2011 to be taken up at 4 p.m. Advocates may circulate written submissions, if they so desire. Till further orders, injunction in terms of paragraph 4 of 3 34-wp-7300-2004.sxw the order dated 6th May, 2011 to operate.” 3 Therefore, in these circumstances, the Petition is heard finally. 4 Respondent herein is the landlord and the Petitioner is the tenant. Premises are governed by Bombay Rent Act, 1947. Respondents filed Regular Civil Suit No.48 of 1995 filed in the Court of Civil Judge, Junior Division, Alibag for possession on the ground of bona fide requirement as contained in Section 13(1)(g) of the Bombay Rent Act, 1947 for possession of the suit premises ad-measuring one room of 12ft. X 25 ft. The said premises are being used for commercial purposes. The pleading shows that the Respondent/ Plaintiff was running tailoring shop at village Dhernad and wanted to start the said tailoring shop at village Poyand which is a bigger place, having good commercial potential and being a bigger place, the children of the Respondent would be in a position to take better education and Respondent would be in a position to look after his son and wife. 5 Earlier a Suit being Regular Civil Suit No.2 of 1988 had been filed by the Respondent for possession on the ground of bona fide requirement for starting the tailoring shop. That suit was dismissed and Civil Appeal No.116 of 1989 filed by the Respondent was also dismissed by the District Court. 4 34-wp-7300-2004.sxw 6 The Written Statement was filed by the Petitioner below Exhibit 10. It was contended that house no.51 of Gherand containing three rooms had been allotted to the Plaintiff, out of which, one room was suit premises, one room was in possession of the Plaintiff and the third room ad-measuring 15ft x 17 ft was in possession of another tenant- Sohanlal Jain. Evidence was adduced. The Plaintiff examined himself and his brother- PW-2 Vidhyadhar Patil and both of them deposed that only two rooms from house no.51 had been allotted to the Plaintiff and the third room had been allotted to the Vidhyadhar and in which he was running a shop of repairs of radio. PW-4 was examined to prove that the Plaintiff had completed the tailoring course. The Defendant examined himself. 7 On the basis of this evidence, the learned Jt. Civil Judge, Junior Division, Alibag dismissed the suit on 12th July, 1996. The crux of the reasoning on the bona fide requirement appears in paragraphs 10 to 12 of the Judgment and the Trial Court appears to have proceeded on the basis that Plaintiff had failed to prove that he had taken any education in tailoring. On the basis of evidence of the Defendant, it was held that the Defendant is not in a strong financial position to find out suitable accommodation. 8 Civil Appeal No.194 of 1996 was filed by the Plaintiff and the 5 34-wp-7300-2004.sxw same has been allowed by the impugned Judgment and Order dated 16th April, 2004 passed by the learned IInd Ad- Hoc Additional District Judge, Raigad at Alibag. The finding on bona fide requirement and hardship has been reversed after a complete reassessment of the oral and documentary evidence and applying the law applicable and laid down by the various precedents. The Appellate Court has recorded the finding that Poynad is a much bigger commercial place as compared to village Gherand and that the Plaintiff had been allotted only two rooms out of house no.51 and that the third room had not been allotted to Plaintiff. On the question of hardship, the Appellate Court has recorded a finding that the Defendant has been able to acquire residential accommodation at village Poynad and with due efforts, he can also acquire alternate commercial premises. 9 The learned Advocate for the Petitioner submits that the Appellate Court has completely over looked the fact that the Plaintiff is in possession of one room from house no.51 and, hence, the finding on the ground of bona fide requirement is perverse. Reliance is placed on the discussion in that regard in the Judgment of the Trial Court as also the fact that in the notice, the Plaintiff had stated that house no.51 has been alloted to his share. Even on the question of hardship, the learned Advocate for Petitioner contended that the Defendant did not have sufficient resources for acquiring other commercial accommodation and, hence, even on the 6 34-wp-7300-2004.sxw ground of hardship, the finding of the Appellate Court was liable to be set aside. 10 The learned Advocate for Respondent/ Plaintiff submits that the Plaintiff and his brother, both have deposed that only two rooms have been allotted to the Plaintiff from house no.51. One room, even according to the averments made in paragraph 13 of the Written Statement, is in possession of another tenant – Sohanlal Jain. The other room is in possession of the Plaintiff and the third room is the suit premises. The learned Advocate for the Respondent also supports the finding on the question of hardship by pointing out that there is meager income from the agricultural land and Gherand being a small place, the tailoring business carried on at Gherand does not generate income. The learned Advocate for Respondent also relied upon Civil Application No.1649 of 2010, which would stand revived on account of the fact that the main Writ Petition has been restored. The learned Advocate for Respondent pointed out that in the said application, it is pleaded that the Defendant has acquired other additional accommodation. 11 I have carefully considered the rival submissions. The Trial Court has essentially declined to grant decree on the ground that the Plaintiff has not been able to show that he has taken formal training in a 7 34-wp-7300-2004.sxw tailoring school. This finding has been reversed by the Appellate Court. Apart from the fact that for maintaining the suit for possession, seeking eviction for bona fide requirement, said requirement of formal training in tailoring from a training school cannot be read into the provisions of Section 13(1) (g) of the Bombay Rent Act, 1947; even the legal position in this regard is quite clear. For starting the business of a tailoring shop, the Plaintiff/ landlord need not have taken formal tailoring training and in any case, on that ground the suit cannot be dismissed. The Appellate Court has duly considered that the Certificate (Exhibit 31) had been duly proved and, in fact, there is no serious dispute that the Plaintiff is running a small tailoring shop at a small village Ghernad. Since the Respondent/Plaintiff has lost his wife, in this situation, the view taken by the learned Judge of the Appellate Court on independent appreciation of oral and documentary evidence, holding that Plaintiff has proved bona fide requirement cannot be considered to be perverse so as to warrant any interference under Article 227 of the Constitution of India. So far as hardship is concerned, the learned Judge of the Appellate Court has properly applied the legal principles in that regard. The finding recorded by the learned Judge of the Appellate Court in paragraphs 28 to 44 on the question of Bona Fide Requirement hardship are correct on the basis of the evidence on record and there is no perversity in these findings. 8 34-wp-7300-2004.sxw 12 The learned Advocate for the Petitioner also submits that since the earlier suit was dismissed, the Judgment and Decree passed therein would operate as Res Judicata. I do not find any merit in this submission. Even the Trial Court had answered Issue No.4 regarding applicability of principle of Res Judicata against Petitioner/ Original Defendant and the learned Judge of the District Court has concurred with that finding. There is no perversity in the said finding. 13 For the aforesaid reasons, there is no merit in the Petition. Same is dismissed. Rule is discharged with no order as to costs. In view of dismissal of the Writ Petition, Civil Application No.958 of 2011 does not survive and the same is disposed off. Similarly, Civil Application No.1649 of 2010 filed by the Respondent/ landlord also does not survive and also stands disposed off. 14 On the request of the learned Advocate for Petitioner, it is directed that the interim order dated 6th May, 2011 and 23rd August, 2011 passed in Civil Application No.938 of 2011 will continue to operate for a period of four weeks from today. (G.S.GODBOLE, J.)