Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 7660 of 2008 Smt. Mathurbai Bhimaraj Jain ...Petitioner V/s. Purshottam Rajaram Ekbote ...Respondent Mr. Madhav Jamdar for the petitioner. Mr. Jaydeep S. Das for the respondent. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 28TH JANUARY, 2009 : 28TH JANUARY, 2009 : 28TH JANUARY, 2009 P.C. . Heard Counsel for the parties. 2. Having considered the material on record, I have no hesitation in taking the view that this is not a fit case for interference in exercise of writ jurisdiction. 3. The petition is directed against the concurrent finding of fact recorded by the Courts below on the question of bonafide and reasonable requirement of the landlord as pressed in the Suit filed for possession of two shops in occupation of the petitioner tenant. According to petitioner, the respondent no. 1(a) is working as Engineer with Vijay Hingmire, Builders and getting salary of Rs. 12,000/- per month; whereas wife of respondent no.1(c) Mandar is working as teacher in a school run by Ganesh Pratishthan Trust, Margaon. This 2 is a new case made out in the Writ Petition for the first time, as stated in paragraph 5 at page-36. Assuming this case is to be accepted as it is, the fact remains that the requirement was pressed on behalf of respondent no. 1(a) and respondent no. 1(c). As is found in the impugned judgment, the argument that the respondent no.1(a) and 1(c) are gainfully employed is of no avail. The fact remains that they were in service whereas evidence has been adduced before the Court below that they were well equipped to commence business. Respondent No. 1(a) is a B.com graduate and intends to start business, but was required to carry on agricultural activity for want of place. Similarly, respondent no. 1(c) is a diploma holder in electricals and intends to start repair of electrical apparels and work of wiring. All these aspects have been carefully considered by the two Courts below and eventually found that the requirement pressed into service by the landlords is bonafide and reasonable. With that finding of fact, no interference is warranted. 4. To get over this position Counsel for the petitioner would contend that the landlord moved the Trial Court for possession of the suit premises on the assertion that they had no other option but to start business as the agricultural land owned and possessed by them had been sold. According to petitioner this basis 3 has been disproved during the course of evidence as the plaintiff’s witness has admitted that agricultural land has not been sold. The argument clearly overlooks that, that was not the sole basis for seeking relief of possession on the ground of bonafide and reasonable requirement. The case made out in the plaint was specific that respondent no. 1(a) and 1(c) have sufficient qualification and have decided to start business but for want of sufficient space were unable to do so. The Courts below have accepted that case made out by the plaintiffs. In this view of the matter, there is no substance in the argument that the plaintiffs have not been able to establish the basis on which the relief of possession was pressed into service. 5. Counsel for the petitioner would then contend that the Court below has committed manifest error in recording finding in relation to issue of comparative hardship. My attention was invited to observation in paragraph 20 of the impugned Judgment which deals with the contention that Kirti (DW3) was physically handicapped. What has been glossed over by the petitioner is the finding in the preceding paragraph where the Court has recorded that DW3 has admitted that rented premises for running shop are available within the municipal limits of Pune Municipal Corporation. Once this finding is recorded, it necessarily follows 4 that the issue of comparative hardship will have to be answered against the tenant. It is not the case of the tenant that during the pendency of the proceedings, he made any attempt to find out other premises and was unsuccessful or that he would not be in a position to secure alternative premises in the same locality. On the contrary, as observed by the Appellate Court DW3 has admitted in his evidence that rented premises in the vicinity will be available. Accordingly, no fault could be found with the finding recorded by the two Courts below on the issue of comparative hardship as well. 6. The Counsel for the petitioner would lastly contend that none of the Courts below have addressed the issue of possibility of partial decree which is the mandate of Section 13(1)(g). The argument once again clearly overlooks that the requirement is in respect of two separate shops for starting business intended by Respondent No. 1(a) and 1(c) respectively. Both the shops are separately required. It is not the argument of the petitioner that each shop can be partitioned and the same would be convenient for taking two separate businesses. The area of each shop is only 180 sq. feet. If the same is to be divided into two halves, it would result in only 90 sq. feet left for each of the Respondent no. 1(a) and 1(c) in the respective shops. This being the admitted position, the question of 5 ordering partial eviction does not arise. 7. To get over that position Counsel for the petitioner would then contend that in that case the decree can be restricted to only one shop instead of both the shops. Once again this clearly overlooks that the requirement of the landlord is for two different shops to enable respondent nos. 1(a) and 1(c) to start their respective business. The argument, if accepted would result in a situation that landlord would be forced to conduct two separate businesses in one shop of 180 sq. feet only. That cannot be countenanced. 8. Accordingly, there is no merit in this petition. The same is dismissed. 9. At this stage Counsel for the Petitioner prays that petitioner be granted atleast three years time to vacate as the two shops are used for business purpose by the petitioner and his family members. This request is opposed by the Counsel for the Respondent landlord. According to Learned Counsel for the Respondent, reasonable time to vacate may be granted to the petitioner. He further prays for time to take instructions from his client as to whether they are agreeable for granting any time to vacate the premises. 6 10. The matter be placed under caption ‘direction’ tomorrow only for this limited purpose. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]