1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4602 OF 2009 Deelip Lakhichand Khiwansara, Age: 50 years, Occ: Business, R/o. Nagar Patti, C.S. No.1200, Dhule, Tq & Dist.Dhule.. .. Petitioner Versus Chandrakant Wamanrao Sonawane, Age: 56 years, Occ: Tailoring, R/o. Land No.4, C.S. No. 1241, Dhule,Tq & Dist. Dhule & Ors. .. Respondents ... Mr. A.G. Godamgaonkar , Advocate for petitioner. Mr. S.P. Deshmukh, Advocate for respondent Nos. 1 to 5. Mr. S.G. Sangle, Advocate for respondent Nos. 6 to 9. ... CORAM : B.R. GAVAI, J. DATE : 8TH DECEMBER, 2009. PER COURT : When the matter was heard by this Court on 17-07-2009, this Court was not inclined to entertain the petition on merits, as such, the learned Counsel appearing on behalf of the 2 petitioner made a categorical statement that the petitioner does not intend to contest the present petition on merits but only restricts the claim in the present petition for grant of certain time to vacate the premises. Only in view of this categorical statement made by the petitioner, this Court issued notice for final disposal. 2. However, after change in assignment, when the matter was listed before another Judge, the petitioner retracted his statement and sought to argue the petition on merits. 3. Now, due to change in the assignment, the matter was again come up before the Judge, who had issued notice. The Court would therefore have been justified in dismissing the petition on this short ground. However, since the petitioner has changed the Counsel through whom, statement was made, when the notice was issued, in order to give fair opportunity to the 3 petitioner, I have heard the learned Counsel for the petitioner. Mr. A.G. Godamgaonkar, learned Counsel for the petitioner submits that the finding regarding bonafide need is not sustainable in law. It is submitted that the plaintiff is in possession of other premises adjoining the suit property where he can start his proposed business. In any case, he submits that the plaintiff alongwith his sons has shifted to Pune and his sons are employed at Pune and as such, bonafide need is no more in existence. 4. The scope of interference in the exercise of extraordinary jurisdiction of this Court under Article 227 of the Constitution of India is very limited. Unless it is found that the concurrent findings recorded by the Courts below are perverse, it is not permissible for this Court to sit as an appellate Court over the said findings. 4 5. Insofar as the findings regarding the petitioner being in arrears of rent is concerned, both the Courts have given findings that the notice below Exhibit-162 is duly served upon the petitioner by Registered Post A.D. In the said notice dated 28-09-1982, it is specifically mentioned that the defendant is in arrears of rent from 01-02-1980 i.e. for period of more than six months. The learned Courts also found that the acknowledgment at Exhibit-162 also established that defendant No. 1 received notice on 30-09-1982. It is also found that in spite of service of notice and due receipt thereof by the petitioner, the defendants did not pay arrears of rent within one month nor deposited the same in the Court. It is found that even after filing of the suit by the plaintiff, the defendants have not bothered to deposit the rent in the Court. In my view, it cannot be said that the findings of both the Courts that the defendants are in arrears of rent is perverse. 5 6. Insofar as the bonafide need is concerned, the learned trial Court has found that from the evidence of Chandrakant, it was established that the suit premises were required for his tailoring business and so also for establishing business of his sons, who had become major. The learned Courts below found that though in the deposition, the defendant stated that the plaintiff has acquired adjoining premises, no evidence in support of the said oral deposition was put forth by the defendants. It has been found that what is necessary for proving bonafide need is reasonable need and not compelling need. 7. Insofar as the contention of Mr. A.G. Godamgaonkar, learned Counsel for the petitioner that the plaintiff's sons are employed in Pune is concerned, apart from the oral submissions made at Bar, there is no material on record either in the pleadings or in the nature of any 6 documentary evidence to support the said contention. The learned trial Court has found that apart from oral testimony of the defendant that the plaintiff has got possession of the adjoining premises, nothing was placed on record to substantiate the said claim. As against this, the learned Courts have found that the documentary evidence at Exhibits - 176, 177, 182, 183, 184, 185, 186 and 187 established that the petitioners were in possession of various premises situated in the heart of the City. Not only that, it has been found that some of the premises owned by the defendants were at the short distance from the suit premises. In view of this specific findings, I do not find any merit in the submission of the learned Counsel for the petitioner that if principle of comparative hardship is applied, same could be in favour of the petitioner. I am constrained to say that on the basis of documentary evidence placed on record, it is courageous to make such bold statement at the Bar. 7 8. In that view of the matter, no perversity is noticed in the concurrent findings recorded by the learned trial Court, so also the appellate Court. Since I find that the plaintiff is entitled to the decree for eviction and possession on the ground of arrears of rent and bonafide need, I do not think it necessary to go into other aspects of the matter. Hence the petition is dismissed with exemplary costs which is quantified to Rs.25,000/- (Rs. Twenty five thousand only). Costs to be deposited before the Executing Court within period of four weeks from today. On deposit of the costs, respondent - plaintiff would be liberty to withdraw the same. (B.R. GAVAI,J.) sut/DEC09/wp4602.09