1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 904/2009 (Shrikumar Uddhaorao Kalamkar VERSUS Shrenik Chandansa Bhure) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.A. Mohta, counsel for the petitioner. Shri A.S. Chandurkar, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 8, 2009. Both the Courts have concurrently held that the suit premises were required by the respondent-landlord for bona fide purposes though the Courts had held that the respondent had not succeeded in proving that the petitioner was a habitual defaulter. The petitioner has impugned the judgment passed by the 2nd Joint Civil Judge (Junior Division), Washim on 16.04.2007 as also the judgment passed by the District Judge, Akola at Washim on 14.01.2009 upholding the judgment passed by the 2nd Joint Civil Judge (Junior Division), Washim directing the petitioner to deliver vacant possession 2 of suit shop to the respondent-plaintiff and also pay the arrears of rent for the period from 01.05.2001 to 31.05.2004. The Court had also directed an enquiry into mesne profits under Order XX Rule 12 of the Code of Civil Procedure. I have heard the learned counsel for the parties and have perused both the judgments. It is clear, on a perusal of the same, that the Courts were justified in recording the finding in regard to bona fide need of the respondent-landlord. Both the Courts concurrently held that the respondent- landlord was the owner of the suit property. Though a objection was raised on behalf of the petitioner that the suit property was not exclusively owned by the respondent and was a joint family property, the Courts considered the evidence of the respondent/ landlord as well as the evidence of the petitioner's witness in his cross-examination, which showed that the petitioner had no knowledge as regards the oral 3 partition, by which the suit shop was finally allotted to the respondent. The Courts further found that the petitioner had not entered the witness box and his brother Dipak,his Power of Attorney holder,had clearly admitted that he had no personal knowledge about the oral partition. The Courts found that in the present case, there was nothing on record to indicate that the other co-sharers had objected to the claim of eviction of the petitioner,even assuming that the property was the joint family property. Though the Courts recorded a categorical finding that the suit property belonged to the respondent alone, the Courts proceeded to add that the respondent being a co-sharer was entitled to institute a suit for eviction without joining the other co-owners as parties. The finding, recorded by both the Courts on the ownership of the respondent over the suit property, is a pure finding of fact, which cannot be interfered with, in exercise of the extra ordinary writ jurisdiction. 4 Though the Courts had concurrently held that the petitioner was not a habitual defaulter in paying the rent, the Courts were justified in holding that the respondent- landlord was entitled to possession of the suit property on the ground of bona fide need. Both the Courts scanned the evidence tendered by the parties on record to hold that the other premises owned by the respondent-landlord were in possession of the tenants and the house belonging to the landlord was a residential house and the landlord could not have started a grocery shop for his sons in the residential premises. The Courts considered the evidence tendered on behalf of the respondent- landlord to find that the son of the landlord, by name Amit, had studied only up to Xth standard and since he was a major, the landlord intended that Amit runs a grocery and food-grains shop in the premises. Both the Courts held that there was no 5 other shop premises available for the landlord to start the said business. On the ground of comparative hardship, the Courts found that the hardship to the landlord would have been greater if the suit for possession on the ground of bona fide need was dismissed, as compared to the hardship, which would have been caused to the tenant on grant of a decree for possession. On this aspect, the Courts took into consideration that the petitioner's son Pradip was residing at Risod and was doing a business of clothes at Risod. The Courts further found that the two sons of Subhash, the son of the petitioner, were also running a shop in the name of Aishwarya Dresses, at Washim. These two sons of the son of the petitioner were separated from Subhash in the year 2001 and 2004. It was also observed that one of the shops belonging to Subhash was vacant and could have been utilized by the petitioner for running his 6 business. The Courts also considered the fact that the petitioner was 82 years of age in the year 2006 and, actually, the son of the petitioner by name Subhash was running the suit shop since the year 1962. Since Subhash had purchased two shops in the year 1995 & 1997 and one of the shops was available and vacant for doing business, the Courts held that the comparative hardship to the respondent-landlord would be greater if the decree of eviction was denied to him. The finding recorded by both the Courts on the issue of comparative hardship is also a pure finding of fact, which is based on a proper appreciation of the material evidence produced by the parties on record. The findings recorded by both the Courts are extremely just and proper and call for no interference in exercise of the extra ordinary writ jurisdiction. 7 The writ petition is, therefore, dismissed with no order as to costs. JUDGE APTE