1999(2) ALL MR 1


Narayan Pakirasa Basude (By Lrs) Vs. Gulabchand Manikchand Shah

Writ Petition No. 2227 of 1990

14th January, 1999

Petitioner Counsel: Mr. P. S. DANI
Respondent Counsel: Mr. P. M. MENGANE

Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.13(1)(g) - Bona fide requirement - Commercial premises - Landlord having cloth shop but discontinuing business and taking up a job - After retirement he intending to set up same business and not having any other premises - Held merely because some thirty years before landlord was not successful in running business his need now for carrying on said business could not be said to be actuated with any ulterior motive. (Para 2)


JUDGMENT :- This writ petition filed under Article 227 of the Constitution of India is directed against the concurrent judgment and decree passed by the two courts below on the ground that the plaintiff-landlord needs the premises in question bonafide and reasonably. The trial court decreed plaintiff-landlord's suit for eviction on 30th September, 1986. The judgment and decree passed by the trial court was carried in appeal by the defendants which was dismissed by IV Addl. District Judge, Solapur on 31-1-90. The present writ petition at the instance of petitioner No. 1B Suresh Narayan Basude has already been dismissed vide order dated 13-2-98. The respondent Gulabchand Manikchand Shah (hereinafter referred to as landlord) filed a suit for eviction against the tenant Narayan Pakirasa Basude who died during the pendency of the suit and his legal representatives were brought on record. In the suit for eviction, the landlord averred that the tenant was occupying the suit premises on the monthly rent of Rs. 65/-. The suit premises are required by the landlord for his own occupation for doing the business to maintain himself and his family. A notice was also issued to the tenant before filing the suit. It was also averred in the plaint that landlord has no other place to carry on his business and therefore, greater hardship would be caused to him if decree for eviction was refused. The defendants filed written statement and set up the plea that they are tenants in the suit premises for the last many years and the business which they are carrying in the suit premises is their only business and source of livelihood. It was also averred by the defendants that they have acquired goodwill of their business in the suit premises and if they are evicted from the premises in question, they would suffer greater hardship. Both the parties led evidence and the trial court after recording the evidence held that the landlord has been able to establish his reasonable and bonafide necessity and that if decree for eviction was not passed, landlord would suffer greater hardship. The appeal court maintained the said finding.

2. Mr. Dani, learned counsel for petitioner urged that in the suit premises, the landlord used to carry on the business of clothes upto the year 1951 and since he was not successful in the business, he rented out the said premises and joined service and therefore, the requirement of the premises in question on the same ground smacks of malafide and therefore, the courts below erred in granting decree for eviction.

3. I am not at all persuaded by the contention of the learned counsel for petitioner. The suit premises are commercial premises and were let out to the tenant for running cloth shop. It is true that the landlord carried on the business in the said shop for 5/6 years upto the year 1951 but later on he joined the service and let out the said premises. The landlord has retired from service and after his retirement, decided to restart the business. There is no evidence that landlord has any other premises to run the business. It has also come on record that the landlord is well-versed with the cloth business which he wants to run in the disputed premises. Merely because, about 30 years before, the landlord was not successful in running the business, it cannot be said that now if the landlord wants to run the business in the disputed premises, the need is actuated with an ulterior motive. The fact is that the landlord has retired from service and he is experienced in running the cloth business and he has no other premises for that purpose. Taking all these facts and circumstances into consideration and the available evidence, the concurrent finding recorded by the two courts below that the premises in question are required reasonably and bonafide by the landlord do not suffer from infirmity and is concluded on facts after due appreciation of evidence on record. No other point was argued. The judgment and decree passed by the courts below therefore, does not deserve any interference by this court under Article 227 of the Constitution of India.

3A. Writ Petition is accordingly dismissed. Rule is discharged. No costs.

Petition dismissed.