1 WP 2653.2005 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2653 OF 2005 1. Narendrasingh S/o Bhupendrasingh Sahani Since deceased – through L.Rs. : 1--A : Smt. Manjeetkaur Narinderjitsingh Sahani Age : 48 Yrs.,. R/o : Indira Path, At Kopargaon, Dist. Ahmednagar. 1--B : Miss. Jasminkaur Narinderjitsingh Sahani Age : 22 Yrs.,. R/o : Indira Path, At Kopargaon, Dist. Ahmednagar. 1--C : Mr. Deepiyotsingh Narinderjitsingh Sahani Age : 48 Yrs.,. R/o : Indira Path, At Kopargaon, Dist. Ahmednagar. 2. Sukhdipsingh S/oBhupendrasingh Sahani Age : 39 Yrs., Occ. Business, R/o : Indira Path, At Kopargaon, Dist. Ahmednagar. .... PETITIONERS V E R S U S Tukaram Namdeo Dandavate Age : 65 Years, Occ. Agril., R/o : Rahata, Tq. Rahata, Dist. : Ahmednagar. .... RESPONDENT 2 WP 2653.2005 - [ J ] Mr. S.D.Kulkarni, Advocate for the Petitioners. Mr. S.B.Gorde Patil, Addl.Govt. Pleader for State. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 15/07/2011 JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The present respondent/landlord has filed R.C.S. No. 493 of 1982 against the present petitioners for possession under the provisions of the Bombay Rent Control Act [ For short, ‘ Bombay Rent Act ’ ] on the ground of personal requirement and default. The 3rd Jt. Civil Judge ( J.D.), Kopargaon decreed the said Suit on the ground of bonafide requirement of the landlord. It also held that the greater hardship would be caused to the landlord if decree of eviction is refused. Aggrieved thereby, the present petitioners/defendants filed Appeal bearing R.C.A. No. 149 of 2001 before the District Court, Kopargaon. The Additional District Judge, Kopargaon dismissed the said Appeal and confirmed the Judgment and decree passed 3 WP 2653.2005 - [ J ] by the trial Court. The petitioners have assailed the said Judgment before this Court in the present Writ Petition. 4. The present Writ Petition was admitted by this Court vide Order dated 21/4/2005. Thereafter, on 26/4/2005, this Court framed the following points for determination : “ Whether the defendant/tenant would suffer greater hardship in the event of eviction than the hardship which the plaintiff/landlord would suffer in case decree of eviction being denied ” ? 5. This Court remitted the said point for determination to the Additional District Judge, Kopargaon to decide the said issue and forward the finding to this Court. Pursuant to the said order, the Additional District Judge, Kopargaon vide its Order dated 29/06/2005 decided the said issue in favour of the landlord and held that the greater hardship would be suffered by the landlord if the decree of eviction is refused. The tenant has also raised objection to the said finding. 6. Mr. S.D.Kulkarni, the learned counsel for the 4 WP 2653.2005 - [ J ] petitioners/tenants strenuously contends that : ( i ) the suit premises consist of one ( 1 ) go-down on the basement and a shop on the ground floor. Earlier the residential accommodation which was in possession of the tenant is handed over to the landlord. The petitioners are running their business in the said shop and also using go-down for his business purpose. Greater hardship would be caused to the petitioners if the decree of eviction is passed (ii) the bonafide need has to be genuine and should not be the mere desire of the landlord. The son of the landlord is carrying on his business activity at Sakuri and as such it can not be said that the petitioners requires the premises for bonafide use. The learned counsel relies on the Judgment of the learned Single Judge of this Court in a case of Hotel Rosala Pvt. Ltd. V/s M/s Metro Hotels and others reported in 2001 ( 2 ) Mh.L.J. - 881 (iii) it is a duty cast on the Court to consider the greater hardship. The same is required to be considered in right perspective. The learned counsel relies on the Judgment of the learned Single Judge of this Court in a case of Abdul Raheman @ Iqbal Faiju Khan Pathan ( since deceased ) through L.Rs. - Smt. Saguma and others V/s Kamalaben Mohanlal Shah reported in 1999 ( 2 ) Mh.L.J. - 592 (iv) the subsequent events are required to be considered. In 1984, there were riots in the Ahmednagar city, in which the shop was totally damaged. The petitioners suffered huge loss. Even the assessment of the same was made. The report 5 WP 2653.2005 - [ J ] was submitted by the competent authority about the extent of the loss. The petitioners have not yet received the compensation amount and as such the greater loss and hardship would be caused to the petitioners if decree of eviction is passed. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in a case of Jaiprakash Gupta ( deceased ) through L.Rs. V/s Riyaz Ahmed and another reported in 2010 AIR SCW – 225 (v) the learned counsel further contends that it is also the duty of the Court to consider that whether a decree of partial eviction would suffice the purpose of the landlord. This aspect has not been considered by the Court. This is also required to be considered. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in a case of Yeshwant Prabhakar Kamble V/s Prasad Narhari Karanjkar and others reported in 1998 ( 1 ) Mh.L.J. - 541. 7. The learned counsel further contends that the Court below has not properly appreciated the evidence on record. The northern part of the building has come to the share of the respondent. As such, the respondent would be the owner and landlord of the shop of the ground floor and the half part of the go-down situated in basement. This aspect is not considered by the Court and no decree for eviction could be passed of the part of the go-down of which the respondent is not the landlord. 6 WP 2653.2005 - [ J ] 8. Mr. Gorde Patil, the learned counsel for the respondent/landlord supports the Judgment passed by the Court below and submits that the petitioners have not disputed the ownership and the fact that the respondent is the landlord of the shop and the go-down. The go- down and the shop i.e. the suit premises is owned by the respondent. Even the defendants have not denied about the plaintiffs ownership. The notice was issued ( Exh. 119 and 120 ) prior to the filing of the Suit, the same is also not replied. As such, now, at this stage, the ownership of the respondent over the go-down and shop can not be disputed. 9. The learned counsel for the respondent further contends that the defendants have closed their business. The Shop Inspector’s report is also on record. Even this Court vide Order dated 15/4/2011 in C.A. No. 4773 of 2011 has given opportunity to the petitioners to produce on record the documents, such as payment of octroi, payment to suppliers and other similar documents to show regular on going business, which the petitioners failed to produce. As such, adverse inference deserves to be drawn against the petitioners. It was further contended by the learned counsel that the District Court has considered the issue of hardship, which was referred to him by this Court and has considered all the attending circumstances, such 7 WP 2653.2005 - [ J ] as the landlord does not own any other shop at Kopargaon and the defendants are also running their business at other places in Kopargaon, such as Amrit Traders and also at Yeola. 10. The only point which is to be considered is whether the landlord requires the suit premises for bonafide use and to whom the greater hardship would be caused, so also, whether it is possible to grant decree for partial eviction. 11. With the assistance of the learned counsel I have gone through the Judgments and the evidence adduced. 12. Both the Courts have concurrently held that the landlord requires the suit premises reasonably and bonafidely for his own use and occupation. The jurisdiction of this Court under Article 227 of the Constitution of India to re-appreciate the evidence, is in a narrow compass. This Court would only interfere if the conclusion drawn by the Courts below is perverse. This Court would not interfere if the conclusions drawn by the Courts below are possible and plausible conclusion. 8 WP 2653.2005 - [ J ] 13. It has been observed by both the Courts that the landlord does not possess any other premises in the city of Kopargaon i.e. the place where the suit premises is situated. The son of the landlord is carrying on business of spare parts at Sakuri. The premises is required for the purpose of the carrying on business of his son. Even the tenant could not show that the landlord possesses any other premises in the city or the said town. The proposition as laid down in the Judgment in case of Hotel Rasola Pvt. Ltd. referred supra need not be dilated as the same is settled proposition. Here, in this case, it is the genuine need of the landlord. The son of the landlord does not have any other premises in the said city or town for carrying on his business. In such circumstances, it will have to be held that both the Courts have rightly come to the conclusion about the bonafide need of the landlord. 14. Much emphasis was led on the ground that the greater hardship would be caused to the tenant if the decree of eviction is passed. The proposition in the case of Abdul Raheman referred supra is not disputed. The Courts below on appreciation of evidence have concurrently come to the conclusion that the greater hardship would be caused to the landlord if decree of eviction is not passed. The point for determination about the comparative hardship was also referred by this Court to the District Court. 9 WP 2653.2005 - [ J ] The District Court after evaluating the whole evidence, recorded the finding and has referred the same back to this Court. It has come on record that apart from the disputed suit premises, the plaintiff does not have any other place for starting the business for his son Ramesh. On the contrary, it has come on record that the defendant i.e. the present petitioners are running business at Kopargaon itself i.e. the same city in the name of Amrit Trading Company in another shop and also possess one shop at Yeola. It has also come on record that Manjit Kaur, who is wife of defendant no. 1 is running one Deep-Jyot collection at Kopargaon itself i.e. the city where the suit premises is situated. During the pendency of this Writ Petition, this Court vide Order dated 15/4/2011 in C.A. No. 4773 of 2011 gave an opportunity to the petitioners to produce on record the documents such as payment of octroi, payment to suppliers and other similar documents to show regular on going business. In spite of said opportunity, the petitioners failed to produce the same. As such, an adverse inference is to be drawn against the petitioners. The present respondent has produced on record Shop Inspector’s report, which shows that the licence of the petitioners to run the business at the suit shop is cancelled substantiating the contention that said business is closed. In view of all these circumstances, it can not be held that the petitioners/tenants shall suffer greater hardship if the decree of eviction is passed. On the contrary, the respondent does not have any other 10 WP 2653.2005 - [ J ] premises in the city where the suit premises is situated and his son is required to run business at Sakuri. As such, greater hardship would be caused to the landlord if the decree of eviction is refused. The subsequent event which is sought to be introduced i.e. shop having caught fire and that the compensation not being received by the tenant, will not have any effect on the present proceedings, as it is not shown that the tenant is doing the business at the suit premises and the documents which are filed in the present petition would show that in fact the business is closed. The Shop Inspector’s report is also on record to substantiate the said fact. 15. It has been sought to be contended by Mr. Kulkarni, the learned counsel that even the partial eviction can suffice the purpose. Even if the decree for eviction in respect of shop is passed, that would be sufficient for the landlord and the tenant can be allowed to do the business in godown. The learned counsel contends that even the landlord can not claim the possession of the total godown situated in the basement as the plaintiff would be the owner of only half of the godown. The arguments that the plaintiff is the owner of only half portion of the godown, can not be accepted in view of the fact that the tenant himself in his evidence has stated that he pays rent of Rs. 700/- for the shop and Rs. 300/- for the godown to the landlord. The tenant nowhere contends that he pays rent 11 WP 2653.2005 - [ J ] only for half part of the godown to the landlord. Even the witness of the tenant has admitted that the plaintiff is the owner and the landlord of the suit shop and the godown. More over, when it has come in evidence that the business of the tenant is closed in the suit premises and so also the tenant has got other shop in his occupation for running the business and is running the business in other shops, so also, the plaintiff requires the shop and the godown for the business of his son, it can not be held that the decree of partial eviction could be passed. More over, the tenant has not contended anywhere in his pleadings about this aspect. 16. In light of the above, no case for interference is made out and as such the Writ Petition is dismissed. No costs. Rule is discharged. 17. At this stage, Mr. S.D. Kulkarni, the learned counsel for the petitioners seeks stay of this Judgment for the period of eight ( 8 ) weeks. Taking into account the fact that the petitioners are in possession of the property since long time, the Judgment is stayed for the period of eight ( 8 ) weeks from today. [ S.V. GANGAPURWALA,J. ] KNP/WP 2653.2005 - ( J ) 12 WP 2653.2005 - [ J ]