1 FARAD CONSTITUTION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 3950/2009 (Dhanesh P. Hingorani ..vs.. Kanhayyalal (Dead) through Lrs P.K.Bundele) -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. CORAM:- B.P. DHARMADHIKARI, J. DATE:- DECEMBER 01, 2009 Heard learned Advocate Shri J.C.Shukla for petitioner and learned Advocate Shri S.D.Malke for respondent. The matter was also heard on 23/11/2009. The contention of learned Advocate Shri Shukla is that the original landlord Kanhayyalal has expired and need pleaded by him was personal and has ceased to be in existence. His further contention is as petitioner tenant has no other place to run the business, the comparative hardship is in his favour and the sons of original landlord or the then original landlord already had/has established grocery business and hence, the suit filed by them deserve dismissal. At this stage of dictation, learned Advocate Shri Shukla has pointed out that the landlord also had one more shop, which was offered to present petitioner by him. Learned Advocate Shri Malke for respondent supports the impugned order and states that as there is no perversity, the concurrent findings need to be maintained. 2 The effort of learned Advocate Shri Shukla to show that the need of landlord has vanished is because of plea in paragraphs 5 and 6 of the plaint. These paragraphs read as under : 5) That, the plaintiff is very old person and he is having two sons with him and he wants to effect the partition of the property during his life time along, for which he want to divide grocery shop in two parts. Hence, the plaintiff also need the premises let out to the defendant for his bona fide need. 6) That, now a days, there are day to day disputes between two sons of plaintiff and their wives regarding the business which has become unbearable to the plaintiff and to avoid further complication and quarrels between them the plaintiff wants to separate the business and divide the same portion of the house where sons of plaintiff are running shop jointly into two parts. The above paragraphs, therefore, show that deceased landlord wanted to effect partition between his two sons and give grocery business to them and for that he also needed the adjacent shops. In any case, the findings in this respect concurrently reached, cannot be labeled as perverse or erroneous. The effort of learned Advocate Shri Shukla is to state that the deceased landlord claimed shop in possession of petitioner for having grocery shop for himself as he wanted to divide grocery shop belonging to him between his two sons. He states that the said existing 3 grocery shop is having two shutters. Such an inference after parties had opportunity to lead evidence and facts are appreciated, cannot be drawn in writ petition and I, therefore find the effort itself improper. The learned counsel for petitioner has placed reliance upon the judgment of Hon’ble Apex Court reported in 2005(7) Supreme Court Cases 224, in the case of Manovikas Kendra Rehabilitation and Research Institute ..vs.. Prem Prakash Lodha, to urge that the need of landlord did not survive for legal heirs. The judgment does not in any way assist the petitioner because there the Hon’ble Apex Court has held that before considering the question of such survival of need, the legal heirs (donee in that matter) ought to have been first brought on record. The learned counsel has also relied upon the judgment of learned Single Judge of this Bench reported in 2001(2) Mh.L.J. 881, in case of Hotel Rosalia Pvt. Ltd. ..vs. M/s Metro Hotels and others, particularly paragraph 22. The said paragraph states that the landlord has to plead all details necessary for claiming relief and in absence of those details, the tenant is not expected to meet the case of the landlord. It has also observed that such details are necessary to prevent the landlord from making out a new case at the time of trial in any manner as he liked and tenant then would get no opportunity and occasion to meet such new case. The finding given by this court in said judgment clearly show that the objection in this 4 respect could have been taken when said new case was sought to be made out at the time of evidence before trial court. Here, I do not find any new case made out and I also do not find that necessary details are not placed on record by the landlord. The last reliance is placed on the judgment of this Court reported in 2002(1) Mh.L.J. 507 in the case of Dulanbi Mirasaheb Belgaonkar ..vs.. Annappa Kurka Devadiga. The said judgment considers Section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The said provision deals with alternate accommodation and observations made in paragraph 2 are in that respect. The judgment has, therefore, no application in the present matter. While considering the question of comparative need, it is not necessary for landlord to show that tenant has secured any alternate accommodation. No case is, therefore, made out warranting any interference in writ jurisdiction. It is clarified that if the landlord/his legal heirs still have any other shop block vacant and petitioner tenant is in a position to take it, it is for the parties to work out necessary arrangement/agreement therefor. The writ petition is accordingly dismissed. No order as to costs. JUDGE Diwale.