1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2298 OF 1994 WITH CIVIL APPLICATION NO. 3512 OF 1994 IN WRIT PETITION NO. 2298 OF 1994 Shri Dattatraya Krishna Wagh, ) since deceased by his heirs and legal ) representatives - ) 1. Smt. Kalawat Dattatraya Wagh, ) Aged 65. ) 2. Shri Ramakant Dattatray Wagh, ) Aged 46. ) 3. Shri Balasaheb Dattatraya Wagh, ) Aged 39. ) 4. Shri Sarjerao Dattatraya Wagh, ) Aged 27. ) All residing at 95, Shukrawar Peth, ) Solapur, District : Solapur. ).. Petitioners Versus 1. Vishwanath Krushnath Habib, ) Since deceased through his heirs and ) legal representatives : ) 1a) Smt. Nilabai Vishwanath Habib, ) 1b) Shri Anil Vishwanath Habib, ) 1c) Shri Arun Vishwanath Habib, ) 1d) Shri Sharad Vishwanath Habib, ) 2 1e) Shri Sangeeta Vishwanath Habib, ) all R/a 175/36, Bhawani Peth, ) Near Baraskarwada, Solapur. ) 2. Shri Dhondappa Shankarappa Hakke, ) Since deceased by heirs and legal ) representatives : ) 2a. Daryappa Dhondippa Hakke, ) Aged 35 yrs., ) 2b. Shri Suresh Dhondappa Hakke, ) Aged 29 years. ) 2c. Shri Tamma Dhondappa Hakke, ) aged 27 years, ) All residing at Mane Vasti, ) Budhwar Peth, Samant Chowk, ) Solapur, Dist. Solapur. ).. Respondents -- Shri Satyajeet Mirajkar i/by Shri K.Y. Mandlik for the Petitioners. -- CORAM : A.S.OKA, J. DATE : 31ST MARCH, 2010 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioner. The Petitioner is the 2nd Defendant in a suit filed by the 1st Respondent. For the sake of convenience, the parties are hereinafter referred to as per their status before the Trial Court. 3 2. According to the case of the Plaintiff, he is owner of Municipal House No.95 Shukrawar Peth, Solapur. One room on the ground floor of the said house admeasuring 10’ x 10’ was let out by the Plaintiff to the 1st Defendant for running a shop. It is stated that towards the eastern side of the suit premises, there is a room in possession of the Plaintiff. It is stated that he first floor premises of the house is in possession of the Plaintiff. The case of the Plaintiff is that he has four sons. It is his case that the first three sons are not interested in taking education and the said sons are interested in the business of the Plaintiff of selling school note books, accounts books, registers and office files, etc. The allegation in the Plaint is that the 1st Defendant who was the tenant has unlawfully transferred the suit premises to the 2nd Defendant-Petitioner. The suit has been filed on the ground of bonafide requirement and subletting. It was contended that as the three sons of the Plaintiff are not interested in taking education and as they are interested in the business of the Plaintiff, the suit premises was needed for the purposes of expansion of business. 3. The suit was contested by the 1st Respondent by filing a Written Statement. He denied to have transferred the suit premises to the 2nd Defendant. He pleaded that in the year 1948, there was an oral partnership between himself and the 2nd Defendant and in the partnership they had started tailoring business in the year 1948. It is stated that he himself was paying the rent. The Trial Court held that bonafide need has been established by the Plaintiff. An issue of comparative hardship was 4 answered in favour of the Plaintiff. The Trial Court held that the Plaintiff has established the subletting by the 1st Defendant in favour of the 2nd Defendant. An appeal was not preferred by the 1st Defendant tenant, but the present Petitioner-2nd Defendant preferred an Appeal. The Appellate Court reversed the finding of the Trial Court on the ground of unauthorized subletting. The Appellate Court disbelieved the case of unauthorized transfer in favour of the 2nd Defendant. The Appellate Court observed that the 1st and the 2nd Defendant were earlier carrying on business in the partnership. Thus, the decree on the ground of subletting was set aside but the decree on the ground of bonafide requirement was affirmed. 4. The learned counsel appearing for the Petitioner invited my attention to the Civil Application No.3512 of 1994 filed by the Petitioner-2nd Defendant for bringing on record the subsequent events. The said application was ordered to be heard along with the Petition. It is stated by the 2nd Defendant in the said application that the Plaintiff was the owner of house property No.9-A, Goldfinch Peth, Solapur, at a distance of 400 to 500 feet away from the suit premises. It is stated that the said house No.9-A was situated in commercial area. It is pointed out that the said House No. 9-A consisted of an area of 2000 sq. ft. consisting of two floors and the Plaintiff was using the ground floor for his residence and the 1st floor was kept vacant. It is submitted that by the Sale Deed dated 30th June, 1994, the said house No.9-A has been sold by the Plaintiff to third party. A prayer in the Civil Application is for taking into consideration the 5 subsequent event of sale of house in June, 1994. There is a reply filed to the said Civil Application by the Plaintiff denying that the House no.9-A was situated at a distance of 400 to 500 feet away from the suit premises. It was contended that the House No.9-A was purely a residential house. It was pointed out in the reply that the three sons of the Plaintiff are married and are having the children. It is pointed out that as the premises bearing House No.9-A is insufficient to accommodate the grown up family members of the Plaintiff, the House No.9-A was sold. 5. The learned counsel appearing for the Petitioner-2nd Defendant submitted that the fact that the House No.9-A was sold by the Plaintiff is not denied. He submitted that the said house was situated in a business locality in the city of Solapur and the total area of 2000 sq. ft. on the ground floor and the first floor was in possession of the Plaintiff. He submitted that the sale of property by the Plaintiff shows that the need pleaded by the Plaintiff is not at all a genuine need. He submitted that even otherwise, the bonafide requirement was not established. He, therefore, submitted that the decree for possession cannot be sustained. 6. I have given careful consideration to the submissions. It must be noted here that the 1st Defendant is admittedly the tenant in respect of the suit premises. Even according to the case of the Petitioner-2nd Defendant, he is not claiming any tenancy right in respect of the suit premises and in fact it was his case that there is no subletting or transfer of 6 tenancy by the 1st Defendant in his favour. Thus, the Petitioner-2nd Defendant who is not a tenant is not claiming any right, title or interest in respect of the suit premises as the finding of the Appellate Court is that the transfer of tenancy in favour of the Petitioner-2nd Defendant is not established. 7. Apart from the fact that the tenant has not chosen to challenge the decree, as the submissions are made on merits, I am considering the said submissions. It must be noted here that the present suit has been filed in the year 1985. The case made out by the Plaintiff is that his family consisted of wife, three sons, one daughter-in-law and one daughter. His case is that the shop premises in his possession admeasures 15’ x 20’ and there is a room on the first floor above the shop premises. His case is that in the room on the first floor, the work of preparing registers and note books including the work of cutting and stitching has been carried out. It is stated that cutting machine requires area of 6’ x 10’. It is stated that the creping machine, punching machine and corner cutting machine require an area of 10 x 10 feet. The case made out in the evidence that out of three sons, one son is married and two sons and one daughter are unmarried. The findings of the Court below that the three sons of the Plaintiff are working in the said shop premises. The requirement pleaded in the year 1985 is on the basis that the three sons of the Plaintiff have joined him in the business and therefore, it is necessary to expand the business. 7 8. In the Civil Application, reliance has been placed by the Petitioner on the Sale Deed dated 30th June, 1994 in respect of a house property which is stated to be at a distance of 400 to 500 feet from the suit premises. The contention of the Petitioner is that the premises sold under the Sale Deed were located in the business locality. The reply of the Plaintiff is that now all the three sons are married and the said house No.9- A was used by the family for the purposes of residence. As all the three sons have got married and now they having children, the said premises were found to be insufficient and, therefore, the same was sold. 9. The requirement pleaded by the Plaintiff is that the existing business premises are insufficient and therefore, for expansion of the business, he needed the suit shop premises which is situated in the same building abutting the premises premises held by the Plaintiff. 10. The case made out by way of reply to the Civil Application is that the House No.9-A which was sold was a residential house which was occupied by the Plaintiff, his three sons and their families. When the requirement of the landlord was pleaded for possession of suit premises situated adjacent to the business premises held by him for expansion of the existing business, a tenant cannot be heard to say that the premises were available to the landlord in another building which is away from the suit premises. Moreover, there is a serious dispute raised in the reply by 8 contending that the House no.9-A was a residential house. 11. The requirement which is pleaded and accepted by the Courts below is that the three sons of the Plaintiff were already helping the Plaintiff in his business and therefore, there was a genuine need to expand the business and, therefore, additional premises in the same building were required. The business carried on by the Plaintiff is in a room on the ground floor admeasuring 15’ x 20’ and in a room above the said room on the first floor. The case of the Plaintiff is that the first floor premises is for manufacturing the registers, note books, etc. The Courts below have accepted the requirement of three sons of the Plaintiff. After the three sons of the Plaintiff joined him in the business, it is impossible to say that the need pleaded of occupying the abutting premises is not bonafide. The learned counsel appearing for the Petitioner tried to submit that the area of the suit premises is only 60 sq. feet which will not satisfy the need of the Plaintiff. It is not for the Defendant-tenant to judge what is the requirement of the Plaintiff - landlord. The Plaintiff needs additional premises abutting the existing business premises for expansion of his business. There are concurrent findings of the Courts below on the existence of bonafide requirement. It is not possible to disturb the said findings. 12. As far as the comparative hardship is concerned, the Appellate Court found that the son of the 1st Defendant was a permanent resident of 9 Mumbai and he has purchased a house. There are concurrent findings on the issue of comparative hardship. It is not possible to interfere with the said concurrent findings. 13. There is no merit in the Writ Petition. The Writ Petition is rejected. The rule is discharged with no order as to costs. 14. Civil Application No.3512 of 1994 is accordingly disposed of. (A.S.OKA, J)