1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7430 OF 2010 M/s Rangaswami Nasappa Kathare A registered partnership firm through partners .. PETITIONER VERSUS Maheshdas s/o Shankardas Vaishnav .. RESPONDENT Mr. M.V. Deshpande, advocate for the petitioner. Mr. N.K. Kakade, advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 5 th OCTOBER, 2010. PER COURT : 1 Heard learned counsel for the respective parties. 2 Petitioner is raising exception to the concurrent order passed by the courts below in respect of eviction from the suit premises. The petitioner herein / original defendant is a tenant in respect of suit premises. Respondent / original plaintiff presented suit being Regular Civil Suit no. 183/2008 claiming recovery of possession of business premises for personal bonafide requirement under section 1(1)(g) of the Maharashtra Rent Control 2 Act, 1999. It is the contention of the plaintiff that he is a member of the joint family consisting of 4 to 5 brothers. After the brothers got separate, the plaintiff was allotted the suit property and some other property. Plaintiff in order to meet his own liability was required to dispose of the other property and has saved certain amount out of the consideration received for starting some business. According to him, the income derived by him out of his own occupation as priest of the temple is not sufficient to satisfy the needs of the family. Defendant has opposed the claim on the ground that plaintiff has other premises available and this is not the only premises wherein he can start his business. According to defendant, plaintiff has no expertise to run the business nor he is from business community. It is also contended that if the decree of eviction is directed, greater hardship would be caused to the defendant. Trial court after considering the contentions raised by both the parties recorded finding that the plaintiff has established his bonafide requirement and as such directed eviction of the petitioner / defendant. Judgment and order passed by the trial court was subjected to appeal in Regular Civil Appeal no. 2/2010 which was heard and dismissed by the Principal District Judge, Nanded vide his order dt. 22-7-2010. 3 I have perused the judgment recorded by both the courts below and 3 heard arguments advanced by learned counsel for the respective parties. It is urged by learned counsel for the petitioner / original defendant that the trial court has not paid attention to contentions as regards hardship caused to the plaintiff is lesser and proceeded to decide the matter. The first appellate court has not properly dealt with the issue of burden of establishing hardship and blindly confirmed the order passed by the trial court. I have perused the judgment recorded by both the courts below. Trial court has considered the aspect of burden of establishing comparative hardship. It is the contention of the defendant that on the basis of pleadings and evidence, inference can be drawn that the plaintiff holds alternate premises wherein he can start the business. However, plaintiff has denied the contention. Trial court found on the basis of the pleadings and evidence that the defence raised by the defendant based on burden of comparitive hardship is not worthy consideration. Relying on the judgment in the matter of Meenal vs. Traders and Agencies reported in 1997(1) Mh.L.J. 121 trial court has proceeded to record that the the landlord can make choice as to which premises are suitable for his use and it is not the concern of the court to dictate the landlord as to in what manner and how he should adopt his choice. It is also not necessary for the plaintiff in order to claim recovery of possession of the disputed premises to demonstrate that he possesses 4 expertise to conduct the business. Here in the instant matter, plaintiff contends that he intends to start business and that sufficient funds are available with him. Findings recorded by the trial court have been upheld by the first appellate court. The first appellate court has also dealt with the evidence lead by the parties and considered all the contentions raised in appeal. I do not deem it necessary to disturb the concurrent findings recorded by both the courts below. In exercise of extra ordinary jurisdiction conferred under Article 227 of the Constitution of India, no interference is called for in the instant petition. Petition is devoid of substance hence stands rejected. 4 Learned counsel for the petitioner contends that he is running business in the suit premises since many years and he may be granted sufficient time to find out alternate premises. Learned counsel for the respondent has opposed the contention and in the alternate stated that at the most a period of nine months shall be granted for vacating the suit premises. Considering the facts and circumstances of the case, I deem it appropriate to grant further time of 12 months to defendant / petitioner herein for vacating the suit premises. Defendant / petitioner herein shall furnish usual undertaking that he will continue to pay the rent and will not create third 5 party interest in respect of the suit premises and will maintain the suit premises in proper and habitable condition. On furnishing such undertaking, the petitioner shall be continued to remain in occupation of suit premises for a period of 12 months. Petitioner shall hand over the vacant possession after lapse of period of 12 months from today. Petitioner shall furnish the undertaking within a period of 4 weeks from today. In the event of failure to furnish the undertaking, respondent / original plaintiff shall have liberty to get the decree executed. 5 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp7430.10.odt