1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3387 OF 1996 1 Satishkumar Kantilal Doshi 2 Bipinkumar Kantilal Doshi 3 Nitinkumar Kantilal Doshi ...Petitioners vs. 1 Tarabai Anant Nimbkar 2 Ashok Anant Nimbkar 3 Nilkanth Anant Nimbkar 4 Latabai Anant Nimbkar ...Respondents WITH WRIT PETITION NO.2538 OF 1995 1 Smt.Tarabai Anant Nimbkar (since deceased through L.Rs.) 2 Ashok Anant Nimbkar 3 Nilkanth Anant Nimbkar 4 Latabai Anant Nimbkar ...Petitioners vs 1 Satishkumar Kantilal Doshi 2 Bipinkumar Kantilal Doshi 3 Nitinkumar Kantilal Doshi ...Respondents Mr.S.G.Deshmukh for the petitioners in W.P.No.3387 of 1996 and for respondents in W.P.No.2538 of 1995 Mr.Rahul Kate for therespondent no.3 in W.P.NO.3387 of 1996 and for the petitioners in W.P.No.2538 of 1995 CORAM :A.S.OKA,J. DATE : MAY 7, 2010 JUDGMENT : 1 These cross petitions can be disposed of by a common Judgment as both the petitions arise out of a same suit. For the sake of convenience, the parties are hereinafter referred to with reference to their status before the trial Court. 2 2 The suit relates to the suit premises admeasuring 46.18 sq. meters in house no.37, Ward no.3 within the municipal limits of Baramati. The suit premises consists of two rooms having 3 khans each and also a tin shed annexed to the western room. According to the case of the plaintiffs, their predecessor had let out the suit premises to Dr. Balkrishna Nimkar the father of the original defendant. It is alleged that the suit premises were let out for conducting the medical practice. It is alleged that after demise of the original tenant- Dr.Balkrishna, the original defendant continued medical practice in the suit premises. For a period of more than one year prior to institution of the suit, he stopped practicing. The allegation is that the original defendant used to let out the suit premises to hawkers for keeping their goods. The allegation is that there was a change of user and suit premises is being used for sale and repairs of TVS manufactured Mopeds. The allegation is that there is a construction of permanent nature made by the defendant in the suit premises. Bona fide need of the plaintiffs is pleaded on the ground that they have started production of electrical bulbs in industrial estate at Baramati and they need the suit premises for selling the said products manufactured by them. The suit was contested by the legal representatives of the defendant on various grounds. The trial Court decreed the suit on the ground of change of user and negatived all other grounds. An appeal was preferred by the defendant. In the said appeal cross objection was filed by the plaintiffs. Both the appeal and cross objection was dismissed by the District Court. Writ Petition no. 2538 of 1995 has been preferred by the legal representatives of the original tenant-defendant. Writ Petition no.3387 of 1996 has been filed by the plaintiffs. 3 3 The learned counsel for the legal representatives of the defendant-tenant submitted that distinction made by the trial Court and the Appellate Court between trade and business is artificial and the same is not sustainable in law. He submitted that the interpretation put by the learned Judges of the Courts below to section 6 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) is completely erroneous. He submitted that there is no material on record to show that the suit premises was let out only for the purpose of conducting medical practice. He submitted that just before the institution of the suit, the plaintiffs purchased the property and there was no evidence adduced on record to show as to what was the purpose of letting the suit premises. He, therefore, submitted that the finding of the Courts below on the issue of change of user is erroneous. 4 In support of the writ petition no.3387 of 1996, the learned counsel for the plaintiffs submitted that the case of bonafide requirement was established. The 1 st plaintiff has started business of manufacturing the electrical bulbs in an industrial estate and the suit premises was necessary to enable the second and third plaintiffs to sell the bulbs manufactured by the first plaintiff. He invited my attention to the finding on this aspect by the Courts below. He submitted that nothing was brought on record to show that other premises were available to the plaintiffs for carrying on the activity of sale of the bulbs. He submitted that the negative burden could not have been casted on the plaintiffs to prove that there was no other premises available. He invited my attention to the finding 4 recorded by the Appellate Court on this aspect. He submitted that merely because the suit premises is in dilapidated condition is no ground to deny the decree of eviction on the ground of bonafide requirement. He submitted that there was no requirement under clause (g) of section 13 (1) of the said Act to prove that the plaintiffs had resources to conduct a new structure. He submitted that as far as issue of permanent construction is concerned, it is an admitted position that huge iron girder has been fixed by the tenant in the suit premises and the same has been rested on the wooden column forming part of the suit premises. He submitted that this is the admitted position which is sufficient to come to the conclusion that the defendants have carried out construction of permanent nature. The learned counsel for the defendant supported the findings of both the Courts on all other grounds except the ground of change of user. 5 I have carefully considered the submissions. The specific case made out in the plaint is that the suit premises was let out to the father of the defendant for the purpose of carrying on medical practice. It is alleged that for a period of one year prior to the institution of the suit, the use of the suit premises as a dispensary was stopped and thereafter, the defendant started a show room for sale of TVS Mopeds as well as for sale of spare parts of the Moped. As far as the change of user is concerned, the stand taken in the written statement is that the premises was taken for business and for residence. There is a bald denial of the allegation that the show room of Mopeds has been started. Thus, the stand taken is that the premises was not let out for the medical practice but for the purpose of business and residence. Under section 6(1) of the said Act, the 5 provisions of the said Act are applicable to the premises let out for various purposes such as residence, trade, business, storage etc. The Courts below have noted an admitted position which is revealed from the evidence of Nilkanth  the son of original defendant that he has been using the suit premises for sale and service Centre for Silver Plus and Explorer two wheelers manufactured by Enfiled India Company. Thus, as the time of recording evidence, no case was made out by the legal representatives of the defendant that the premises was being used for residence. The stand taken is that the suit premises is being used for trade of selling of two wheelers. Reliance is placed on the shop Act licence to prove that the legal representatives were carrying on business of sales of auto parts. In fact, it is an admitted position that the name of the deceased defendant was also mentioned in the licence. The explanation of the said Nilkanth is that it is by mistake. The theory of mistake has not been accepted by both the Courts below. A distinction between the trade and business has been made by section 6(1) of the said Act. The said provision indicates that the trade and business are different purposes of letting. That is how the Courts below made a distinction that medical practice is included in business and the sale of two wheelers amounts to user for trade. Therefore, the Courts below have recorded a concurrent finding that the user of the premises has been changed. That is how the clause (a) of section 13 (1) of the said Act is attracted. There is no ground to disturb the concurrent finding on this issue. 6 Now turning to the issue of bonafide requirement, it is stated that the first plaintiff has set up a manufacturing unit of bulbs in an industrial estate and 6 there is no premises available for sale of bulbs in the city. That is the requirement pleaded in the plaint. This requirement was pleaded by way of amendment. The Courts below have dealt with the evidence on this aspect. The Courts below noted that the plaintiffs came out with a case in the evidence that the suit premises is in dilapidated condition. It is true that only on that ground the ground of bonafide requirement could not have been negatived. The finding of the Appellate Court as well as the trial Court is that there was no evidence adduced by the plaintiffs to show that they have no sale depot available for sale of the bulbs. It is pointed out that that the alleged requirement was very much there on the date of institution of the suit in the year 1982. The same was pleaded by way of amendment in the year 1992. This aspect has been considered along with an admitted position that the suit premises are in dilapidated condition. Therefore, a concurrent finding of fact has been recorded that the bonafide requirement has not been proved. There is no reason to find fault with the said finding. 7 As far as issue of construction of permanent nature is concerned, what has been alleged is that an iron girder has been installed in the suit premises by demolishing a part of the wall on the eastern side. It is alleged that a window has been fixed and door frame of door has been removed. The Courts below have considered the nature of the changes carried out which are reflected from the Commissioner s report. The finding of the Courts below is that the wooden frame which was in damaged condition has been removed and iron girder has been put to support the structure and to prevent its collapse. Thus, the finding is that for beneficial use and enjoyment of the premises, the work 7 has been carried out. There is no material placed on record to show that the girder cannot be removed without damaging the main structure. Therefore, it is not possible to interfere with the concurrent finding that the ground of permanent construction is not established. Hence, the petition filed by the plaintiffs must fail. At the same time, the petition filed by the legal representatives of the defendant will have to be dismissed by confirming the decree on the ground of change of user. 8 Writ Petition no.3387 of 1996 is dismissed. Rule is discharged with no order as to costs. 9 Writ Petition no.2538 of 1995 is dismissed. Rule is discharged with no order as to costs. 10 The decree for possession shall not be executed for a period of three months from today. JUDGE 8