1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.51 OF 2008 Jalaram Kirana stores Through its Proprietor - Shri Hariram Monji Thakkar Age: 58 Yrs., occu. Business, R/o Opp. Dr. Bhaskar Hospital, Vazirabad, Tq. and District Nanded. - PETITIONER (Tenant/Orig.Deft.) VERSUS Motilal s/o Chandiram Agrawal Died, through L.Rs. 1A) Ajaykumar s/o Motilal Agrawal Age: 40 Yrs., occu. Business, 2B) Manojkumar s/o Motilal Agrawal Age: 40 Yrs., occu. Business. Both r/o Vazirabad, Tq. and District Nanded. - RESPONDENTS (Lrs. of orig. Plaintiff/Landlord) ***** Mr.P.V.Mandlik, Sr.Counsel with Amol Gandhi, Advocate for Petitioner; Mr.PS Agrawal, Advocate for Respondent. ----- 2 CORAM : K.U.CHANDIWAL, J. DATE : 5th February, 2010. ORAL JUGMENT: 1) Rule. Rule, returnable forthwith. By consent of the parties, the matter is finally heard at admission stage. Original record perused by the parties. 2) Regular Civil Suit No.168/2001 was decreed by learned IInd Joint Civil Judge, Junior Division at Nanded dated 17.4.2003. The Judgment was taken by the tenant before the learned District Judge at Nanded in Regular Civil Appeal No.91/2003 and by judgment dated 23rd December, 2005, the decree of eviction was confirmed. Against the said Judgment, now it is the tenant’s Civil Revision, impugning the findings recorded by both the Courts. 3) The learned Sr. Counsel Mr.Mandlik, while brutally criticizing both the judgments, has indicated that the Court is required to consider the fact that the landlord has subsequently acquired two shops by converting the rooms and has subsequently started his business therein. Consequently, the eclipse created is no more in force. The Sr. Counsel submits that the 3 landlord has four more shops at other areas, of which two shops are acquired on rent in different markets, there was no bona fide requirement for the landlord to seek eviction. 4) As against this, the learned Counsel appearing for the landlord/respondents submits that before both the Courts there was evidence of Medical Officer, which has certified that the landlord has undergone a bye-pass surgery. Similar was the situation in respect of his one of son, while his other son faced the brunt of angioplasty. Thus, it is indicated, all the three earning members in the family of the landlord have become creepled on health ground. The premises in question is just abutting their residence, which will facilitate the activities of the landlord to look the business or to take care without any physical exercise. 5) The learned Counsel for the landlord further submits that the photographs, which are now tendered or the Invitation cards at page 68, tendered before this Court, did not find place in any of the proceedings. The photographs though sought to be produced before the learned District Judge, no procedure, as is required for getting the documents proved, is legally adhered to. 4 6) The learned Sr.Counsel for the tenant contended, in the light of the law declared by this Court, the subsequent development of the landlord, having acquired other premises, will dilute effects of bonafide requirement, as canvassed by the landlord. 7) This contention of the learned Sr.Counsel has been retaliated by the Counsel for the landlord by placing reliance to the Judgment in the matter of Saint Nagjee Purushottam & Co.Ltd. Vs. Vimalabai Prabhulal and Ors. - (2005) 8 SCC 252. In similarly placed situation, the Apex Court observed, the Courts have to take a very pragmatic approach of the matter. Neither can person who has started the litigation sit idle nor an development of events be stopped by him. If while waiting for result of eviction proceedings, landlords or their progeny engage in other activities or business, the same cannot establish that the need for the premises in question is not bona fide. This position enunciated by the Apex Court will prevail on the observation of brother Judge in the matter of Sugarabai Mohamad Siddiq and Ors. Vs. Ramesh Sundar Hankare deceased by L.Rs. - 1997 (2) Mh.L.J. 825. 8) Basically, since the matter revolves in 5 terms of Section 115 of Civil Procedure Code, the scope of the litigation carved out therein also has its pivotal role to look into. This Court has to look into the correctness and legality of the order under challenge. The learned Appellate court at paragraph 12 has discussed the plaintiff’s case while at paragraph 14 has discussed the defendant’s contentions. In paragraphs 15 and 16, the learned Judge has observed, the tenant has not adduced any evidence when the tenant canvassed that the landlord has 4-5 other shops at VIP road. 9) Two shops are in rented premises and the landlord, in the eye of law, cannot be dictated as to in which premise he should carry on his business. The need of the landlord will have a higher pedestal than requirement as translated by the tenant. The landlord’s ownership itself bestows certain rights to him to stake claim to property of his choice. He cannot be dictated to carry his business in a particular shop detrimental to the income or detrimental to his life. The finding recorded by both the courts is in tune with the legal position and available record. The need of the landlord was paramount aspect and consideration, which impressed both the courts, supported with the documents. The invitation card of opening a new shop by landlord 6 is of 2004, while eviction proceedings are pending since 2000. No interference in the order under challenge. Civil Revision Application dismissed. Rule discharged. 10) Heard Mr.Mandlik, learned Sr. Counsel. Time to vacate the shop till 30th November, 2010 granted. The tenant shall furnish a regular undertaking to Registrar of this Court within fifteen days from today, indicating, not to create third party interest; not to part possession and to vacate the premises on 30th November, 2010. (K.U.CHANDIWAL) JUDGE bdv/cra51.08