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.2653 OF 2009 Ravindra @ Balubhai Ganpat Sansare. ..Petitioner. V/s. Arvindbhai Kemchand Vakilwala. ..Respondent. Mr.R.V.Govilkar for petitioner. Mr.V.A.Thorat for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. No interference in exercise of writ jurisdiction against the concurrent finding of fact recorded by the two Courts below is warranted in the fact situation of the present case. 3. The argument of the Petitioner is that the finding recorded by the Courts below is inconsistent. In that, if it is found that once the ground of non-user of the suit premises for a period of more than six months preceding the date of institution of the suit is answered in favour of the tenant, it 2 necessarily follows that it is not a case of unlawful subletting. Moreso, that finding would come to the aid of the tenant in the context of issue of hardship. However, Courts below have answered the issue of hardship merely on the finding that the Defendant No.2 was not in fact using the suit premises, which finding would be inconsistent with the finding recorded in respect of the ground of non-user. 4. The argument though attractive at the first blush, will have to be stated to be rejected. For, the Courts below, in the first place, considered the ground of unlawful subletting in the context of the oral as well as documentary evidence on record. Although the tenant produced partnership deed, which was objected to by the Plaintiff/landlord, the Courts below on analysing the clauses of the said partnership deed have come to the conclusion that the said partnership deed was camouflage to avoid the consequences under the provisions of Bombay Rent Act of unlawfull subletting. I am in agreement with the said opinion. Clause 2,6, 8 and 11 of the said agreement if read clause by clause or as a whole, leaves no manner of doubt that exclusive possession of the premises was given by the tenant/Defendant 3 No.2, in particular, to Defendant No.4 for consideration for a period of 27 months. The partnership arrangement was namesake arrangement which in fact was nothing but creating license in favour of Defendant No.4, prohibited in terms of Section 13(1)(e) of the Bombay Rent Act. The finding recorded in favour of the tenant on the ground of non-user cannot be of any assistance to the tenant to answer the factum of unlawful subletting, which has been answered by the two Courts below on appreciating evidence on record and in my opinion, in right perspective. The decree of eviction passed against the tenant can be upheld on this singular ground. Even if this Court were to consider ground of bonafide and reasonable requirement pressed into service by the landlord, the answer should be in the negative against the tenant. 5. Insofar as the concurrent finding of fact regarding bonafide and reasonable requirement of the landlord, that is unexceptionable. It has been found as of fact that the landlord has no other premises in his possession, which can be used for his business or office purpose. The landlord has also established that he intends to start his business from the suit premises and he has all the means and ability to do 4 so. In this view of the matter, concurrent finding of fact reached by the two Courts below on this aspect is unexceptional. 6. The question is whether the Courts below have committed manifest error in answering the issue of comparative hardship. Insofar as issue of comparative hardship is concerned, both the Courts below have rightly proceeded on the assumption that it is only the Defendant No.2, who had come forward with the case that he was using the suit premises and would require the same for his business. Indeed, the Appellate Court has recorded that the Defendant No.2 has not produced any document to show that he is running his business in the suit premises after close of business of Panbidi shop in the year 1995. Counsel for the Petitioner has relied on the evidence of the Defendant No.2/tenant, where he has asserted that he has started Polo Boutique business after closure of M.S.Fashions business, which as aforesaid, was conducted by the defendant no.4. In the cross-examination the defendant has restated that position. Indeed, this aspect has not been specifically dealt with by the Appellate Court while considering ground of comparative hardship. However, some error here or there in the Judgment cannot be 5 the basis to interfere in exercise of writ jurisdiction. The Judgment can be upheld as aforesaid even on the single ground of unlawful subletting. Accordingly, the Petition should fail. Hence the same is dismissed. 7. At this stage, Counsel for the Petitioner submits that atleast one indulgence be shown to the Petitioner by granting time to vacate the suit premises. Ordinarily, this request could have been considered and granted. However, having regard to the fact pointed out by the Counsel for the Respondent/landlord that the decree was sought to be executed, however, the Petitioner/defendent No.2 who claims to be in possession of the suit premises was not found present in the suit premises and execution of the decree was caused to be obstructed. If it is so, the question of showing any indulgence to such party does not arise. Hence, that request is rejected. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)