1 wp 4781 of 1994.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4781 OF 1994 Yusuf Balabhai Shaikh ..Petitioner Vs. V.B.Patil ..Respondent WITH WRIT PETITION NO.4784 OF 1994 Yusuf Balabhai Shaikh ..Petitioner Vs. Kishor Anandrao Thomake and ors. ..Respondents WITH WRIT PETITION NO.4775 OF 1994 Yusuf Balabhai Shaikh ..Petitioner Vs. Ramchandra Ganpat Shinge and ors. ..Respondents WITH WRIT PETITION NO.4794 OF 1994 Yusuf Balabhai Shaikh ..Petitioner Vs. Mallappa Shankar Mungali ..Respondents 2 wp 4781 of 1994.sxw WITH WRIT PETITION NO.4791 OF 1994 Yusuf Balabhai Shaikh ..Petitioner Vs. Rajaram Maruti Gangadhar ..Respondent WITH WRIT PETITION NO.4788 OF 1994 Yusuf Balabhai Shaikh ..Petitioner Vs. Baburao Parasharam Dhanawade and ors. ..Respondents WITH WRIT PETITION NO.4796 OF 1994 Yusuf Balabhai Shaikh ..Petitioner Vs. J.M.Dayas D/H. Mariya J. Dayas and ors. ..Respondents ......... Mr.M.J.Patil, for petitioner (in all petitions). Mr.Vijay Killedar, for respondent in W.P. No.4794 of 1994. Mr.M.L.Patil, for respondent in W.P.No.4781 of 1994. Mr.A.M.Kulkarni, for respondent no.1 in W.P.No.4784 of 1994. Mr.G.S.Godbole i/b.Ms.Pallavi Dabholkar, for respondent no.5(i). Mr.Vijay Killedar, for respondent no.1 (B,C & D) in W.P.No.4791 of 1994. Mr.G.M.Savagave, for respondent no.2 in W.P.No.4796 of 1994. ......... 3 wp 4781 of 1994.sxw CORAM: A.S.OKA, J. DATE : 15th OCTOBER, 2010. JUDGMENT : Heard learned counsel for the parties. 2] These petitions arise out of seven different suits filed by the petitioner who is the landlord. The suits were filed on the ground of bona fide requirement. The petitioner is the owner of a theater situated on municipal plot No.268 admeasuring 70 feet x 120 feet. Identical suits were filed in the year 1981 against the respondents in the writ petition. The respondents were holding different premises as tenants in the same property in which the theater is situated. 3] The contention of the petitioner in the plaint is that for about 35 to 40 years the theater has been in existence. It is stated that in view of the provisions of the Maharashtra Cinemas (Regulation) Rules, 1966 (hereinafter referred to as “the said Rules”), various facilities and amenities are necessary to be provided in the premises of a Cinema Hall. It is pointed out that without verifying whether there are separate passages available to the members of public for entry and exit, whether there is a sufficient waiting space available to the members of public and whether there are adequate number of toilets available for the members of public, the erstwhile Kolhapur State granted permission to run the 4 wp 4781 of 1994.sxw theater. It is alleged in the plaint that the premises on the western side have been let out by the petitioner to the tenants. It was contended that it was the only theater in the city of Jaysingpur and, with the passage of time, there has been enormous increase in the population in the city. It was contended that now the rules are strictly implemented and instructions have been issued to the Petitioner by the Health Officer of the Zilla Parishad, Divisional Magistrate, Kolhapur, Executive Engineer, P.W.D., Kolhapur to strictly implement the rules. It is alleged that in case of failure on the part of the petitioner to comply with the requirements of the rules, the licence may not be renewed. 4] By amending the plaint it was contended that as per the Cinematograph Act, a particular width of the theater has to be maintained and for maintaining the said width, the possession of the premises of respondents was required. It was stated that the existing screen was not sufficient to show 70 mm Cinematographic films and, therefore, the width of the screen is required to be expanded. It is contended that unless the capacity of theater is increased, running the theater for earning profit was not possible. The said amendment was made in the year 1986 during the pendency of the suits. The suits were contested by the respondents by filing written statements as well as additional written statements. The plea of bona fide requirement was denied by the respondents. It was stated that all the relevant facilities 5 wp 4781 of 1994.sxw are available in the theater. 5] The parties adduced evidence. The trial court held that bona fide need has been established. The trial Court recorded the finding on the issue of comparative hardship in favour of the petitioner. Therefore, the trial Court decreed the suit. The trial Court relied upon the said Rules of 1966 and held that various authorities have issued letters to the petitioner calling upon him to fulfill various requirements. The learned trial Judge also held that the requirement made out by amending the plaint as regards the widening of screen and increasing the sitting capacity has been established. 6] The Appellate Court, by more or less identical judgments, has interfered with the findings on the ground of bona fide need. The Appellate Court held that the theater complies with all the requirements of the Rules and as per the evidence of a witness examined by the petitioner namely the District Health Officer, maintaining Varandah of a particular size is not necessary. The Appellate Court observed that the map drawn by the Commissioner shows that there was an open space on the northern side which can be used by the audience as a shelter in the rainy season. Apart from this, the Appellate court held that the pleading regarding the bona fide requirement is vague. As far as the prayer for renovation/extension of the theater is concerned, the Appellate court observed that there is no evidence to show that any provision has 6 wp 4781 of 1994.sxw been made by the petitioner of the funds which are required for extension. It was held that only a revised plan is produced and the genuine desire of the petitioner to carry out the renovation is not established. 7] Learned counsel for the petitioner in support of the petitions has made detailed submissions and has taken the Court through the pleadings. He submitted that the notices and requisitions issued by various authorities were placed on record which show that additional area was required for making compliance with the Rules. He submitted that the authorities called upon the petitioner to comply with the requirement of providing passages or Varandah as well as providing adequate number of toilet blocks. He submitted that for complying with the requirements and for the purposes of making the theater in conformity with the rules, the possession of the premises which are in possession of the respondents is required to be taken. He submitted that the Appellate Court could not have gone into the question of requirements provided in the rules and that the bona fide need was established by the various requisitions made by the statutory authorities. As far as the requirement of widening the screen and enhancing sitting capacity is concerned, he submitted that the requirement pleaded was also of expanding business or making it profitable and it was established that for keeping pace with the changing times, the facility of having 70 7 wp 4781 of 1994.sxw mm screen for showing cinematographic films is necessary. He placed reliance on the decisions of the Apex Court in the case of (1) R.V.E. Venkatachala Gounder Vs. Venkatesha Gupta and others, (2002) 4 SCC 437, (2) Sait Nagjee Purushotham & Co. Ltd Vs. Vimalabai Prabhulal and others, (2005) 8 SCC 252, (3) G.C.Kapoor Vs. Nand Kumar Bhasin and others, (2002)1SCC 610, (4) Goverdhandas Mulchand Agrawal and others Vs. Bherulal Uderam Bagade and another, 2005(3) Mh.L.J. 196 and (5) Mahadev Shriniwas Naik Vs. Ratanchand Anandram Doshi and ors., 2004 (2) Mh.L.J. 190. He submitted that the Courts cannot normally disbelieve the bona fide requirement pleaded by the landlord. He submitted that the need pleaded of expansion of business and to make the business profitable is also a bona fide need as held by the Apex Court. Lastly, he submitted that if this Court is not inclined to interfere, the order of remand should be passed to enable the petitioner to amend the plaint and to lead further evidence to substantiate the bona fide need. 8] Learned counsel for the respondents in the writ petitions supported the impugned judgment and order. 9] I have given careful consideration to the submissions. I have perused the pleadings and notes of evidence. I have perused the findings recorded by the Courts below. The requirement pleaded in the plaint can be decided in two parts. The first requirement which is set out 8 wp 4781 of 1994.sxw in the paragraph 2 of the plaint is on the basis of instructions/requisitions issued by the Health Officer of the Zilla Parishad, the District Magistrate, Kolhapur and the Executive Engineer, P.W.D., Kolhapur. In short, the requirement pleaded is that the theater must be in conformity with the requirements set out in the requisitions issued by the authorities. The second part of the requirement is some of renovation of the theater, expansion of the size of screen and increasing the sitting capacity. It must be noted here that seven suits were simultaneously filed by the petitioner against the seven different tenants holding tenements of different size. The suit premises are located in different parts of the larger property around the Cinema hall. The defendants in the suits are carrying out business in the respective suit premises. The trial Court came to the conclusion that the petitioner must comply with the said Rules. The Appellate Court has made a reference to the requisitions issued by the various authorities and has come to the broad conclusion that it is not necessary to comply with the requisitions. A finding is recorded that though the requisition is made, Varanda is not necessary in view of the deposition of the District Health Officer of the Zilla Parishad. As far as the first requirement is concerned, the material finding recorded by the Appellate court is in later part of paragraph 18. The learned District Judge has held that :- “Even if it is held that the plaintiff is required to provide a separate Varandah for the audience 9 wp 4781 of 1994.sxw as a shelter in rainy season, the plaintiff has not made out a specific case in the plaint regarding the area or the portion which is going to be converted into Varandah. He has not pleaded in the plaint as to in which area he is going to construct a Varandah and how much area is required by him to provide Varandah to the audience as a shelter in the rainy season. The plaintiff has merely pleaded that it is necessary to provide a Varandah, latrines, urinals for gents and ladies separately. The pleading of the plaintiff is vague and omnibus which does not lead to an interference, as to exactly where he is going to construct Varandah, urinals and the latrines and how much area is required for the same.” (underline supplied) 10] In the light of the above findings, the averments in the plaint are required to be perused. Apart from the fact that the averments in the paragraph 2 are vague in as much as it does not set out for what purpose the suit premises of each tenants are required. As set out earlier, the suits were filed simultaneously against the seven tenants and in the plaint there are no averments as to why possession of a particular premises is required. There is no specific pleading that the possession of a specific premises is required either for construction of Varandah or for construction of additional urinals or for making additional place available to the members of public. It is not necessary to plead evidence, but, surely it is necessary to plead exactly for what purpose 10 wp 4781 of 1994.sxw individual premises of the tenants are required. The examination-in-chief of the original plaintiff runs into six paragraphs. Paragraph nos.2 and 3 of the said deposition read thus:- “2. There are Government rules and regulations in respect of cinema theater. Varandah is required for the spectators. So also, separate exit and entrance are required for the spectators. There are no requisite number of urinals, in my theater-building. In case of failure to provide above said amenities my licence will not be renewed by District Magistrate, and District Health Officer Executive Engineer, P.W.D. and the Collector, are the inspecting authorities. I have received directions from the Collector, Executive Engineer, P.W.D. and Health Officer to provide above said facilities, I have produced photo copies of the letters sent by Collector and other authorities. 3. I am intending to increase number of seats so also I am intending to construct water storage tank. I am intending to fix wider screen. I am unable to provide above said facilities and to do intended work, in the premises which is in my possession. So for that purpose, I require possession of suit premises. I have got prepared plan of intended work. I have produced the same.” 11] In the entire deposition, it is not stated for what purpose the suit premises are required and only vague statements are made. In absence 11 wp 4781 of 1994.sxw of pleadings and material particulars which are indicated above, the Court could not have passed a decree in respect of all the suit premises on the ground of bona fide requirement pleaded by the petitioner. Even if what is set out in paragraph no.2 of the plaint and paragraph no.2 of the deposition of the plaintiff is accepted as correct, it is impossible to pass a decree on the ground of bona fide need in respect of all the suit premises as the original plaintiff has not pleaded for what purpose he is going to utilise the different suit premises which are seven in number. 12] As far as the second part of requirement is concerned, it is true that the Appellate Court could not have considered the question whether sufficient funds were available for carrying out renovation. However, in paragraph 3 of the deposition all that original plaintiff has stated is that he intended to increase the number of seats, he intended to construct a water storage tank and to fix a wider screen. It is not his case that he wanted to reconstruct the theater. He has not pleaded as to which premises out of seven tenements are needed for the purpose of construction of water storage tank and which premises are needed for fixing a wider screen. As stated earlier, all the seven suits were filed simultaneously. 13] The plaint as well as the deposition of the plaintiff lacks material particulars required to be pleaded on both counts. Though the courts 12 wp 4781 of 1994.sxw below have made a reference to re-construction of theater, that has not been pleaded either in plaint or in the examination-in-chief. The finding of fact which is quoted above cannot be faulted with. The said finding is based on the averments made in the plaint and the deposition of the plaintiff. It is not necessary to deal with the finding recorded by the Appellate court as regards the requirement of the Rules, in view of the fact that for all these years from the year 1981, admittedly, the theater is functioning. There is no action taken against the Cinema hall either of closure or non-renewal of the licence. The suit is of the year 1981. As the finding on the issue of bona fide requirement recorded against the petitioner is being confirmed, it is not necessary to deal with the other issue regarding comparative hardship. The decisions relied upon by the petitioner lay down the settled principles of law. But in the present case, the requirement pleaded both in the plaint and the deposition is very vague and it is impossible to pass a decree on the basis of such a plea on the ground of bona fide requirement. 14] Learned counsel for the petitioner has made a prayer for passing an order of remand of the matter on the ground that the petitioner can amend the pleadings and lead further evidence. The suits were filed in the year 1981 i.e.29 years ago. With the passage of time, the circumstances might have materially changed. In case of change of circumstances due to passage of time, the petitioner can always file fresh 13 wp 4781 of 1994.sxw suits seeking possession of suit premises on the available grounds including bona fide need and, therefore, it is not necessary to pass an order of remand. There is no merit in the Writ Petition. Writ Petitions are rejected. However, the impugned judgment and decree will not prevent the petitioners from filing fresh suits for the same relief in case of the change in circumstances. Rule issued in the petitions is discharged with no order as to the costs. [A.S.OKA, J.]