1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3201 OF 1992 Narayandas Ramkisan Malani (deceased) and others Petitioners versus Smt.Kamlaben Mahadeoprasad Pandya & others Respondents Mr.S.R.Page for petitioners. Mr.V.S.Gokhale i/by B.P.Apte for respondents 1A and 1B. CORAM : A.S.OKA, J. DATE : 26th February 2010 PC : 1. The petition was taken-up for final disposal. I have heard submissions of the learned counsel for the parties. The petitioners are the original plaintiffs and the respondents are the original defendants. The suit relates to a premises on the ground floor of a building more particularly described in paragraph 1 of the plaint. The petitioners had inducted the predecessor of first respondent as tenant in respect of the suit premises. The present suit was filed by the petitioners seeking possession of the suit premises under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the said Act"). It was alleged that second and third petitioners were desirous of carrying on business of sale of grocery. It is alleged that the said business is carried on by many merchants in Ganpati 2 Peth area where the suit premises is situated. The suit is contested by the original first defendant by filing written statement. The Trial Court passed a decree for eviction by holding that bona fide requirement has been proved by the petitioners. Issue of comparative hardship was decided in favour of the petitioners. An appeal was preferred by the first respondent for challenging the said decree. The Trial Court had negatived the finding of arrears of rent. To that extent the petitioners had preferred cross objections. The Appellate Court by the impugned judgment and decree has set aside the decree passed by the Trial Court and the suit has been dismissed. The cross objection was also dismissed. 2. Detailed submissions were made by the learned counsel for the petitioners as well as respondents. They have taken this Court through the findings recorded by the Trial Court as well as the Appellate Court. While dealing with the submissions, this Court noticed that in the impugned judgment of the District Court points were framed in paragraph no.9. In paragraphs 10, 11 and 12, the learned District Judge has referred to the nature of the evidence adduced by the parties. Paragraphs 13 onwards up to paragraph 23 refer to the submissions made by the learned counsel appearing for the parties on facts as well as on law. The only finding recorded by the Appellate Court appears to be in paragraph 24 of the judgment. A perusal of paragraph 24 of the judgment shows that what is recorded therein can hardly be called as a legal finding. As stated earlier, in major part of the judgment only the submissions are 3 reproduced. Paragraph 24 shows that there is no consideration of oral and documentary evidence on record and the Appellate Court has jumped to the conclusion that the Trial Court has committed an error by recording a finding on issue of the bona fide requirement in favour of petitioners. The Appellate Court was the final Court of facts and surely this is not the way in which an appeal could have been decided. 3. The learned counsel appearing for the petitioners as well as learned counsel for the respondents pointed out that the writ petition is of the year 1992 which arises out of a suit filed in the year 1976. They submitted that with the passage of time, there are subsequent events taken place. The learned counsel for the respondents submitted that there are subsequent events which has result of eclipsing the bona fide requirement. Both the learned counsel seek permission to lead further evidence on the basis of subsequent events. As the first Appellate Court has not performed its duty, in any event, a finding will have to be invited from the first Appellate Court. The parties want to place subsequent events on record by amending the pleadings. It is desirable that by keeping the petition pending, the parties can be permitted to appear before the Trial Court and the parties can be permitted to amend the pleadings relating to the ground of bona fide requirement and issue of comparative hardship. The parties can be permitted to lead additional evidence. The Trial Court can record a finding which can be certified by the Appellate Court. The said findings can be considered by this Court at the time of final hearing of the writ petition. It must be stated here that the 4 only issue which survives for consideration is whether a decree can be passed on the ground of bona fide requirement. 4. Hence, I pass following order :- A) The parties are directed to appear before the Trial Court on 12th April 2010 at 11.00 a.m.. It will be open for the petitioners to apply for amendment of the plaint for incorporating the subsequent events relating to ground of bona fide requirement. After permitting the amendment of the plaint, on formal application being made by the legal representatives of the defendant, the Trial Court will permit the legal representatives to amend the written statement for incorporating the subsequent events and also for dealing with the amended plaint; B) The Trial Court will permit the parties to lead further evidence on the basis of amendments carried out. After hearing the parties, the Trial Court will record a finding on the issue of bona fide requirement and comparative hardship. The finding shall be recorded on considering the evidence which is already on record and which will be adduced in terms of this order. The said finding shall be recorded on or before 31st August 2010. The finding shall be forwarded to the District Court. The District Court shall certify the said finding after hearing the parties; C) The finding of the District Court shall be submitted to this Court on or before 10th December 2010. The registry will supply copies of findings 5 to the advocates on records for the parties. It will be open for the parties to file objections to the findings by filing affidavits; D) The writ petition shall be placed for directions on 20th December 2010; E) Record and proceedings of the Courts below shall be transmitted forthwith along with writ of this order. The same be sent along with a special messenger. (A.S.OKA, J.) 6 mst FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2218 OF 2009 IN WRIT PETITION NO.3201 OF 1992 Narayandas Ramkisan Malani (deceased) and others Petitioners versus Smt.Kamlaben Mahadeoprasad Pandya & others Respondents Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr.S.R.Page for applicants. Mr.V.S.Gokhale i/by B.P.Apte for respondents 1A and 1B. CORAM : A.S.OKA, J. DATE : 26th February 2010 PC :- 1. Heard learned counsel for the parties. The civil application is allowed in terms of prayer clauses (b) and (d). (A.S.OKA, J.)