1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2428/2007 M/s. All India Handloom House and others ..vs.. M/s. Ibrahim Brothers and others WITH Writ Petition No. 2442/2007 M/s. S. V. Kedary & Co. and others ..vs.. M/s. Ibrahim Brothers and others -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM: R. V. MORE, J. DATED : 11 th April, 2008 1. Heard Mr. S. P. Dharmadhikari, learned counsel for the petitioners and Mr. A. S. Agrawal, learned counsel for the respondents in both the petitions. 2. These are the tenants' petitions against the eviction decree under the Maharashtra Rent Control Act, 1999. The respondents in both the petitions are one and the same. 3. The suit premises bearing Municipal Corporation House No. 13, situated on main road Sitabuldi, Nagpur is purchased by the respondents/landlords under the registered sale deed dated 21.06.1985. The premises comprises of the ground and the first floor. Two shops are located on the ground floor. The Eastern side shop is in occupation of the 2 petitioners in Writ Petition No. 2442/2007 on monthly rent of Rs. 2100/- and Western side shop is in possession of the petitioner in Writ Petition No. 2428/2007 on monthly rent of Rs. 2100/-. There is no dispute that the respondents/ landlords are the tenants in the premises of one Shrikrishna Mahajan and they are running business of Medicines, gift articles and artificial jewellary. 4. The respondents/landlords filed two separate suits being Regular Civil Suit No. 612/2003 and Regular Civil Suit No. 613/2003 against the petitioners respectively for decree of ejectment and possession on the ground of unlawful sub- letting by the tenants and bonafide and reasonable need of the landlords. 5. Both, the trial Court as well as the lower appellate Court, concurrently held that the respondents/landlords have proved that they require the suit premises bonafidely and reasonably. The issue of comparative hardship also was answered in favour of the respondents/landlord. The lower 3 appellate Court, however, refused the decree on the ground of illegal sub letting of the suit premises by the petitioners/ tenants. 6. Mr. Dharmadhikari, learned counsel for the petitioners, submitted that the respondents in para 8 of the plaint made out the case that they need the premises for bonafide use and occupation for separate business of their sons by name Haseeb Nawaz and Naushad Nawaz. Mr. Dharmadhikari, thereafter, relied upon the provisions of Section 15 of the Indian Partnership Act, 1932 and submitted that property of the respondent/Firm required to be held and used by the partners exclusively for the purpose of their business and thus the judgment of both the Courts, granting decree on the ground that the respondents required the suit premises for the bonafide use and occupation for separate business of their sons, are illegal. 7. Per contra, Mr. Agrawal, learned counsel for the respondents supported the impugned judgment and decree. 4 8. The respondents claimed possession of the suit premises on the ground of bonafide and reasonable requirement not only for the occupation and for separate business of their sons but also claimed possession of the suit premises for shifting of their business from the rented premises to the suit premises. 9. The trial court, while dealing with the respondents' requirement, in para 20 held that the partnership has no legal entity and its need has to be considered as need of all partners. It was further held that when the partners claim possession of the suit premises for their sons then need of such sons can be taken as need of the Firm. This finding was recorded by the trial Court as the petitioners did not bring anything on record to show contrary intention of the partners. The trial Court also held that the respondent-Firm is doing the business in the rented premises and under these circumstances, the respondents' need for the suit premises can be said to be sufficient to claim ejectement and 5 possession against the petitioners/tenants. The issue of the comparative hardship is also considered by the trial Court in para 25 of the judgment. The trial Court observed that the petitioners/tenants have not searched any other accommodation in spite of the fact that the respondent-firm is carrying on the business in the rented premises and claimed the premises for their business and business of their sons. It was further observed that no hardship would be caused to the partners of the petitioner-Firm inasmuch as they have their business in other firm name also. 10. Keeping in view these findings, the trial Court decreed the suit on the ground of bonafide and reasonable need. 11. The petitioners in both the petitions preferred separate appeals namely Regular Civil Appeal No. 359/2006 and 360/2006. The appeals were disposed of by the lower appellate Court by common judgment. The lower appellate Court in para 14 considered the respondents' need to 6 establish independent business of sons of its partners. The lower appellate Court also considered the case of the respondents that they require the suit premises reasonable and bonafidely as they want to shift their business from rented premises to the suit premises. The lower appellate Court taken into consideration the area of the rented premises in possession of the respondent-Firm and the rent, which the respondent-Firm is paying to its landlords, to hold that the respondents succeeded in proving reasonable and bonafide need. 12. In para 18, the lower appellate Court also considered the issue of hardship. The lower appellate Court held that the petitioners/defendants in both the petitions are the members of one family. The partners of the petitioner- Firm are also owners of Maharashtra Handloom Pvt. Ltd. Sitabuldi, Nagpur, Vidarbha Emporeum, Mahal, Nagpur, All India Handloom House, Sitabuldi, Nagpur and S.V.K. & Company, Sitabuldi. In view of these facts, the lower 7 appellate Court answered the issue of comparative hardship in favour of the respondents-landlord and consequently dismissed both the appeals filed by the petitioners by common order, which are impugned in the present writ petition. 13. The trial Court as well as the lower appellate Court concurrently found that the respondents are entitled to possession of the suit premises on the ground of bonafide and reasonable requirement. Both the Courts below, as stated above, appreciated the evidence on the record in correct perspective. The bonafide and reasonable requirement of respondents are held to be proved not only on the ground that all the partners of the respondent-firm required the premises for their separate business but also on the ground that the respondents are entitled to decree of eviction for the purpose of shifting their own business from the rented premises to the suit premises. In this regard, it is worth to note that son of the partner of the respondent-Firm, in his 8 cross-examination, stated that the respondent-Firm will vacat=e the tenanted block if they shift to the suit premises. I find no error or perversity in the approach adopted by both the Courts below to enable me to interfere in the present writ petitions. 15. In the light of the above discussion on the factual and legal facets of the matter, I dispose of the petitions by passing the following order:- Both the writ petitions are dismissed with no order as to costs. However, in the peculiar facts and circumstances of the case, the petitioners in both the petitions are granted six month's time from today to vacate the suit premises, subject to filing of usual undertaking in this Court within a period of three weeks from today. JUDGE kahale