1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 5194 OF 2005. Madhav s/o Govindrao Mahajan, Aged about 70 years, Partner of “M/s. Govind-Narayan Mahajan” Anaj Bazar, Itwari Nagpur, resident of M-16, Vasant Nagar, Nagpur. ... PETITIONER. VERSUS Rameshkumar s/o Girdharilal Jejani, Aged about 45 years, Occupation – Grain Merchant, Anaj Bazar, Itwari, Nagpur. ... RESPONDENT. --------------------- Shri Anand Parchure with Shri Bhushan Mohota, Advocate for the Petitioner. Shri R.P. Joshi, Advocate for Respondent. ------------------------ CORAM : B.P. DHARMADHIKARI, J. DATED : AUGUST 04, 2010. ORAL JUDGMENT : Heard Shri Anand Parchure with Shri Mohota, learned 2 Counsel for petitioner and Shri R.P. Joshi, learned Counsel for respondent. 2. The petitioner – landlord sought possession of tenanted premises from respondent under Clause 16[1][g] of the Maharashtra Rent Control Act, 1999 on the ground that the premises were required bonafide by him for having a godown for his grain business. The Small Causes Court granted the permission earlier vide its judgment dated 08.08.2003. The respondent – tenant challenged the same in Regular Civil Appeal No. 460/2003. The Appellate Court noticed contentions of tenant that huge area with the landlord was lying un- explained and hence gave opportunity to the petitioner – landlord to bring on record correct position in this respect. The petitioner / landlord then filed an affidavit at Exh.195 and attempted to explain the area in his possession and also is user. He was subjected to cross- examination and additional evidence was also brought on record. After this, the Appellate Court has again delivered a judgment on 13.01.2005 allowing the appeal and that judgment is questioned before this Court. 3. The learned Counsel for petitioner contends that the landlord is the best judge of his need and landlord has pleaded and 3 proved that he has no godown of his own. Fact that landlord is in grain business is not in dispute, and therefore, need for godown is also not in dispute. Such need therefore, cannot be viewed as not bonafide. Contention is, merely because certain portion was not pointed out earlier, its user was not explained earlier, an adverse inference has been drawn against the petitioner, and it has been observed that the unexplained area in possession of petitioner can be put to use as godown. By placing reliance upon several judgments, the learned Counsel for petitioner has attempted to show to this Court that there cannot be any such directions or dictation by tenant or even by any Court of law in the matter and the mode and manner of user of premises belonging to him must be left to the freewill of the landlord. The learned Counsel has invited attention to the judgment delivered by the learned trial Court, evidence then on record, his affidavit at Exh.195 and cross examination in the light thereof. It is contended that there is no cross examination to show that the petitioner is not using the Hall ad-measuring 624 sq. ft. as a rest room and three rooms ad-measuring 330 sq. ft. as office rooms. Contention is, the balance area about 1800 sq. ft. is occupied by verandah and court yard, and though covered, it is not suitable for using as godown. The learned Counsel has urged that there is no other portion in the suit premises pointed out by the respondent – tenant, which can be 4 used as godown and in absence of such demonstration by the respondent / tenant, need of petitioner ought to have been accepted. 4. Learned Counsel for respondent – tenant has pointed out that in written statement itself the tenant has denied the need and also denied that there is no godown with the landlord. The total area in possession of the petitioner was pointed out to be much more and he was called upon to produce relevant maps on record for said purpose. Those maps and documents were never produced. The respondent - tenant produced some documents in that respect on record and because of persuasive value of those document, the Appellate Court of its own gave one more opportunity to the petitioner to substantiate his need. For that purpose the matter was made over to the trial Court and parties led additional evidence. Even while filing affidavit of such additional evidence, complete area and user thereof was not disclosed by the petitioner / plaintiff. This conduct in the light of his cross- examination and other material brought on record is looked into by the Appellate Court to reverse the judgment of trial Court. According to the learned Counsel, there is no jurisdictional error or perversity in the approach of the Appellate Court. As the landlord concealed the material facts, the Appellate Court has found his attitude doubtful and has rightly rejected the application. 5 5. With the assistance of both the learned counsel I, have perused the relevant orders passed by the Small Causes Court as well as the Appellate Court. 6. The landlord approached Small Cause Court with case that area of godown in possession of respondent is 927 sq. ft. He contended that total area was about 1400 sq. ft. and balance was with him. Thus balance left with him was little less than 500 sq. ft. His son stated that total area was 1200 sq. ft. The affidavit Exh.195 filed by the landlord later on revealed that total area was about 4000 sq. ft. and all of it was covered with roof. It was also found that 927 sq. ft. let out to the present respondent as godown in 1983 therefore constituted only 1/4th part of total area. Thus the affidavit disclosed about 2500 sq. ft. to 2800 sq. ft. more in possession of petitioner – landlord. The petitioner – landlord in his affidavit at Exh.195 pointed out that the said area consisted of a Hall and three rooms and the hall was ad-measuring 624 sq. ft. The three rooms are found together to ad-measure 330 sq. ft. Petitioner has stated that he has been using the Hall ad-measuring 624 sq. ft. as a rest room/retiring room, while the three rooms are used as office rooms. This material disclosure has come only after the Appellate Court granted him opportunity and the 6 disclosure even if accepted to be true shows that out of balance 2500 sq. ft. or 2800 sq. ft. of area, the explanation pertains to only about 954 sq. ft. The document at Exh.195 is not on record and has been tendered by Shri Parchure, learned Counsel for petitioner during hearing. Shri Joshi, learned Counsel for respondent has no objection for the same. 7. The Appellate Court has found that this still left 1800 sq. ft. area un-utilized and un-explained. The area is found to be roofed. Before this Court, the learned counsel has contended that the area consisted of a court yard and verandah. Contention is, it does not have complete walls i.e. it is not covered fully by sides and therefore, cannot be used as godown. The contention being raised ought to have found place in the affidavit at Exh.195. The disclosure of this material would have then enabled the respondent- tenant to cross examine him in this respect. Apart from this, the respondent – tenant has brought on record one more fact. He has pointed out that part of the area in occupation of landlord is assessed at concessional rate to property tax by the Nagpur Municipal Corporation as a godown. The landlord was contradicted with the application moved by him for reducing that assessment. The application contains a plea that user of those premises as godown has remained unchanged and hence, hike in 7 property tax is unwarranted. The landlord has denied that document. Tenant then examined an Officer from the Assessment Department and he has proved that application, which has been duly exhibited. The application therefore, brings on record the fact that part of the premises already in in occupation of the landlord are being used as godown. 8. The stand therefore, is petitioner/plaintiff who claims premises bonafidely with grievance that he has no place to use as godown, has concealed more than 2500 sq. ft. of area in his occupation, disclosed it in affidavit at Exh.195, but then chose not to make clean breast of matter by pointing out its proper utilization. The Lower Appellate Court has considered the entire material in paragraph no.9 of the impugned judgment and thereafter has dismissed the suit as filed, observing that the landlord could not substantiate his plea. It is obvious that this finding is based upon the evidence and material on record and cannot be labeled as erroneous or perverse. 9. The case law pointed out by the learned Counsel for petitioner no doubt states that the landlord is the best judge of his need and nobody can dictate him as to how the premises are to be 8 used. However, this law becomes applicable after the need is established. The landlord has to first show that he needs the tenanted premises for a particular purpose. When that need itself is not established, it is apparent that the above case law cannot have any application. 10. I, therefore, do not find any jurisdictional error or perversity in the approach of the Lower Appellate Court. No case is made out warranting interference in exercise of writ jurisdiction. Writ Petition is dismissed. Rule discharged. No costs. JUDGE. Rgd.