Diwakar Govind Bhanage vs Dhananjay Bandoba Dige

D.K. Deshmukh, J.—This is a petition filed under Article 227 of the Constitution of India challenging the order dated 31.3.1992 passed by the 3rd Additional District Judge, Kolhapur, in Regular Civil Appeal No. 61 of 1991. By that judgment, the learned Judge allowed the appeal and set aside the judgment passed by the 3rd Joint Civil Judge, Senior Division, Kolhapur. dated 31.12.1990 in Regular Civil Suit No. 494/1988. By the Judgment dated 31.12.1990, the 3rd Joint Civil Judge had dismissed the Regular Civil Suit No. 494/1988 filed by the present respondent. The Appellate Court has passed a decree of possession, in favour of the respondent and against the petitioner.

The civil suit was filed by the respondent under the provisions of the Bombay Rent Act contending that the petitioner is his tenant in a building situate on City Survey No. 355 E Ward, Station Road, Kolhapur. The petitioner is a tenant of shop premises admeasuring 11'' x 22''. The only ground on which the decree has been passed by the Appellate Court is that the respondent-landlord bona fide needs the premises for his own business. The plaintiff-respondent claimed in the plaint that City Survey No. 355, on which a building has been constructed, was owned by a partnership firm by name M/s. Bandu Nemanna Dighe. The respondent was a partner of the firm along with his 3 brothers and one sister. He claimed that in 1985, there was a partition of the firm properly and the respondent retired from the firm. As a result of the partition, the building was divided into two equal parts, north-south division, and the portion on (he west was allotted to his brother Narendra and the portion on the east came to the share of the respondent. Thus, according to the respondent, as a result of the partition dated 26.7.1985, he is the sole owner of that part of the building where the suit shop is situate. The respondent claimed in the suit that, apart from this suit property, he does not own any other property and therefore for setting up his shop, he needs the suit premises. He stated that after the partition of the partnership business, he is not doing any business. He stated that he has the necessary finance and know how to start the business in grocery. He stated that the suit shop is suitable for starting his grocery business. The petitioner in his written statement denied the claims made by the respondent and claimed that a shop adjoining the suit shop admeasuring also 11'' x 22'' was held by one tenant Bandre and that the respondent-landlord has secured possession of that shop from the tenant and is presently running his business in those premises and therefore he does not need the suit premises for his own use.

At the trial, the respondent examined himself, In support of his case, he also examined one Suresh Vasudev Shinde. The defendant examined himself. The Trial Court, after appreciating the material on record.'' by judgment dated 31.12.1990, held that the landlord has not been able to prove his bona fide requirement of the suit shot and therefore dismissed the suit. The Appellate Court, however, disturbed the finding of fact recorded by the trial Court and allowed the appeal.

Shri Apte. learned Counsel for the petitioner, submitted that there was no justification for the Appellate Court to disturb the finding of fact recorded by the trial Court which was based on appreciation of the evidence on record. He submitted that so far as the portion of the building owned by the respondent is concerned, there is a frontage of 30''. According to Shri Apte, the respondent-landlord admittedly has acquired the shop in possession of the tenant Bandre which has 11� of frontage. He further pointed out that the landlord has also in his possession a frontage of ''8'' and therefore, out of 30'' of frontage, the landlord already has 19'' of frontage in his possession. He pointed out that when it is established on record that out of 30'' of frontage, when the landlord has in his possession frontage of 19'', it cannot be said that for starling his business of retail, he needs the suit shop. Shri Apte submitted that this aspect of the matter has not been properly appreciated by the Appellate Court. He further pointed out that it was brought on record that the partnership firm of which the respondent-landlord was a partner, had leasehold rights in a godown admeasuring 2.000 square feel which is nearby the suit shop. In the submission of Shri Apte. this aspect of the mailer has also not been properly appreciated by the Appellate Court. In the submission of Shri Apte, the order of the Appellate Court suffers from non-application of mind and therefore it violates the principles of natural justice and hence it is liable to be set aside.

Shri Dalvi, learned Counsel appearing for the respondent, urged that though it is true that the frontage is 30'' and the respondent-landlord is having 11'' of that in his occupation, the respondent cannot use 8'' of frontage because the wall necessary for partitioning the premises of the respondent and his brother Narendra has not yet been constructed. He further urged that the premises which were being used as godown are not suitable for business.

Now, it is to be seen that it is an admitted position that the respondent has already started his business in the shop which he received from the tenant Bandre. It is the case of the respondent-landlord that he needs the suit shop for starling retail business because he has started wholesale business in the premises that he received from Bandre. It is also not disputed that out of 30'' of frontage which is available to the suit building which has fallen to the share of the respondent, 19'' of frontage is available to the respondent. However, perusal of the judgment of the Appellate Court shows that this aspect of the matter has not been properly appreciated by the Appellate Court. In paragraph 13 of the judgment, the Appellate Court has observed:

The said firm is in possession of Western half building admeasuring 100 x 30 ft. The plaintiff would also require promises equal lo that of the said firm for running same business. It has not been pleaded in para 15 of the plaint that plaintiff requires promises of 30 x 30 ft for running business.

I enquired from Shri Dalvi, learned Counsel appearing for the respondent, to point out to me as lo what is the material available on record for saying that the plaintiff would requite premises equal to that of the firm of the brother of the landlord for running the business. As has been pointed out by the Appellate Court itself, in the plaint, it is the case of the landlord that he will need an area admeasuring 30'' x 30'' for his business. After scanning the deposition of the plaintiff-landlord, Shri Dalvi was not in a position to point out to me anything which would suggest that the plaintiff or any witness examined by the plaintiff had at any time claimed that he needs an area admeasuring 100'' x 30'' for running his business. It is further to he seen that the Appellate Court, in paragraph 16 of its judgment, has referred to this aspect of the matter and has given two reasons for saying that 8'' of frontage in addition to the shop that the landlord has secured from tenant Band re is not sufficient for the need of the landlord, namely, (1) that some of this area is covered by walls and (2) that between the shop received from tenant Bandre and 8'' space with the landlord, the suit premises are situated. So far as the first reason is concerned, it is contrary lo the material on record, as it is nowhere claimed by the landlord that the 8'' space is not available to him and so far as the second reason is concerned, the petitioner -tenant had given an offer to shift to those premises admeasuring 8'' x 11'' so that the landlord gets 22'' frontage but the landlord declined that offer. In my opinion, had the landlord accepted the offer, he would have had 22'' frontage which would be enough for his business. In my opinion, therefore, Shri Apte is right in saying that the judgment the Appellate Court has taken into consideration material which is not available on record, and that the observations of the Appeal late Court are not based on the material on record. So far as the godown premises are concerned, perusal of the deposition of the plaintiff-landlord himself shows that the said godown premises are held on leasehold rights by the firm of which the landlord was a partner and the plaintiff has stated on oath that when the property of the firm was partitioned, this godown was not subjected to partition. Perusal of the deposition of the plaintiff shows that the godown is situated in a locality where there are commercial establishments. The landlord has stated that these premises arc vacant. However, perusal of paragraph 18 of the judgment of the Appellate Court shows that it has held that the godown has gone lo the share of the brother of the plaintiff when it is not even the case of the plaintiff that the godown has gone lo the share of his brother. This clearly shows non-application of mind on the part of the Appellate Court. The trial Court, after appreciating the material on record, had recorded the finding that the plaintiff has available lo him enough premises for starting his own business. The Appellate Court, however, has not given any cogent reasons for disturbing that finding of fad recorded by the trial Court. As pointed out above, the judgment of the Appellate Court suffers from non-application of mind. It is further to be seen that so far as the aspect of comparative hardship is concerned, the Appellate Court in paragraph 31 of its judgment has observed that the petitioner-defendant owns a big building and therefore there will be no hardship caused to him. The Appellate Court while making this observation ignored the deposition of the defendant-petitioner that this is a residential building and that it is fully occupied by tenants who arc using it for residential purpose. Thus the finding of the Appellate Court on the ground of comparative hardship also suffers from non-application of mind. In my opinion, there was no justification for the Appellate Court to disturb the finding of fact recorded by the trial Court.

In the result, therefore, the petition succeeds and is allowed. Rule made absolute in terms of prayer Clause (a) with no order as to costs.