1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3584 OF 1994 Rambhau s/o Manik Sonar, died, through L.Rs.: 1A Manoj Rambhau Sonar, age: 27 years, 1B Ratilal Rambhau Sonar, since deceased, through L.Rs.: 1B(i) Yogesh Ratilal Sonar, age: 20 years; 1B(ii) Varsha Ratilal Sonar, age: 29 years; 1B(iii) Punam Ratilal Sonar, age: 19 years; 1B(iv) Shobha Ratilal Sonar, age: 40 years; 1C Meerabai Gopal War, age: 32 years; 1D Bebibai Rambhau Sonar, age: 65 years; All R/o Saraf Bazar, Amalner, District Jalgaon. Petitioners Versus 2 Kanhayalal s/o Jasraj Bafna, age: 57 years, Occ: Trader, R/o Amalner, District Jalgaon. Respondents Mr.L.V.Sangit, advocate holding for Mr.V.J.Dixit, Senior Counsel for the petitioners. None for the Respondent CORAM: R. K.DESHPANDE, J. DATE : 30 th July, 2010. ORAL JUDGMENT: 1 This writ petition is preferred by the landlord challenging the concurrent findings of facts recorded by the Courts below while rejecting the claim of petitioner-landlord for eviction of Respondent-tenant from the suit premises on the ground of bona fide requirement and default in payment of rent. 2 It is not in dispute that the petitioner-landlord was carrying on the business of goldsmith on the first floor of the suit premises, whereas, Respondent-tenant was carrying out his business of goldsmith on the ground floor of the suit premises. It is also not in dispute that when the petitioner purchased the suit premises, he was tenant of the original landlord along with Respondent-tenant in respect of the suit premises. The application was filed for eviction on the ground that petitioner-landlord wanted to start his business of goldsmith in the shop premises situate on the ground floor, which is in 3 occupation and possession of Respondent as tenant. The petitioner-landlord led his oral evidence and Respondent has also examined himself. 3 The trial Court, by its judgment and order dated 05.12.1986, dismissed Civil Suit No.141/85 filed by petitioner-landlord. After taking into consideration the evidence available on record, the trial Court recorded a finding that the petitioner-landlord was running his shop in the premises belonging to one Kadar Ali, which he had vacated 2 to 3 years ago and no explanation was offered for the same. The petitioner-landlord was running his business on the first floor of the suit premises, but there is no evidence brought on record to show that petitioner-landlord cannot run his business on the first floor of the suit premises. The oral evidence led by the landlord has been disbelieved. On the aspect of comparative hardship, the trial Court has recorded a finding that the tenant was running his business of goldsmith on the ground floor of the suit premises for last more than 20 to 30 years and has created goodwill in the area. It has been held that the tenant had no alternate accommodation to run his shop and hence greater hardship would cause to the tenant if decree of eviction is passed. 4 The appellate Court dismissed Regular Civil Appeal No.490 of 1989, by its judgment and order dated 18.01.1994, preferred by petitioner- landlord. The appellate Court concurred with the findings recorded by the trial Court and has held that the landlord has failed to establish his bona fide and legal requirement in respect of suit premises. A further finding is also recorded that the premises, which the landlord has vacated before three years ago, also situates in the market place at a distance of twenty feet from the suit premises and there is only one road between said premises and suit premises. It was held that if the petitioner was in need of the suit premises, he 4 would not have vacated the said shop 2 to 3 years ago. The bona fide requirement pleaded was found to be palpably false. The appellate Court further recorded a finding that if decree of eviction is passed, greater hardship would cause to the tenant rather than the landlord. The theory of the petitioner regarding tenant’s selling gold articles by approaching customers has been disbelieved. With all these findings, appeal has been dismissed. 5 Shri Sangit, learned Counsel for the petitioner, has urged that the Courts below have failed to consider that the petitioner cannot run his shop from the first floor. He has urged that the Courts below have given undue weightage to the fact of landlord vacating the premises 2/3 years ago. He further submits that the tenant was selling the gold articles by approaching the customers door-to-door and hence he was not in need of premises and the business could be easily carried out by the tenant from his residence. 6 The trial Court has considered the question, as to whether the petitioner can run the business of goldsmith from the first floor of the suit premises. The appellate Court has also recorded a finding that the business of the landlord was preparation of gold articles and it could be carried out from the first floor. The question of giving undue weightage to the fact of landlord vacating the premises in his occupation for running his business of goldsmith, pertains to appreciation of evidence. Similarly, the case of the landlord that the tenant was selling articles by approaching the customers has also been taken into consideration by the Courts below. The Courts below have recorded findings of facts and no perversity in recording such findings has been brought to my notice. At any rate, it is a possible view 5 taken by the Courts below, which does not call for any interference by this Court in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution. 7 In the result, there is no substance in this petition. The same is dismissed. No order as to costs. (R. K.DESHPANDE) JUDGE ******* adb/wp358494