SAVITRABAI BHAUSAHEB KEVATE Vs. RAICHAND DHANRAJ LUNJA

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is directed against the judgment of the High Court of Bombay in Writ Petition 3714 of 1982, dated 17-4-1997. By that judgment the learned single Judge set aside the judgment of the 2nd Addl. Small Cause Court, Pune in Civil Suit No. 1285 of 1979, dated 2-12-1981 as affirmed by the District Court, Pune in Civil Appeal No. 266 of 1982, dated 20-10-1982. The trial Court had decreed the suit filed by the appellants for eviction of the respondent on the ground of bona fide requirement and the said judgment was affirmed by the District Court. These two judgments were set aside by the High Court under Article 227 of the Constitution of India. It is this judgment of the High Court that is challenged in this appeal.

(3.) We shall refer to the facts briefly: The suit premises consist of a shop bearing No. 4 on the ground floor of a house at Pune. The shop was let out by the predecessor-in-title of the appellants, Sri Kevate to the respondent on a monthly rent of Rs. 75/- for running a grocery shop. The said Kevate wrote a letter to the respondent on 8-3-1978 that the respondent had closed the shop for more than a year, and that he was not using the same for the purpose for which it was let out. Later, Shri Kevate sent a registered notice on 27-3-1979 terminating the tenancy w.e.f. 1-4-1979 and asking the respondent to vacate the shop. As respondent failed to vacate the shop, the said Shri Kevate filed the present Civil Suit before the Small Cause Court, Pune under Section 13(1)(g) and (k) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Act). According to him the shop was/is necessary for his son Madhukar to start business. During the pendency of the suit, Shri Kevate expired and the appellants, including the said Madhukar came on record as plaintiffs, being his legal heirs. The parties led oral and documentary evidence in the trial Court. The learned trial Judge by judgment dated 2-12-1981 held that the appellant failed to prove that the shop was closed continuously for more than 6 months prior to the filing of the suit and hence the claim under Section 13(1) (k) was liable to be rejected. However, in regard to the claim for bona fide requirement under Section 13(1)(g), the learned trial Judge held that the requirement of the plaintiff, namely for his son Madhukar to start a business, was a bona fide one. It was also held that the hardship to the appellant's son Madhukar was more than the hardship to the respondent-tenant. The eviction suit was decreed. On appeal, the learned District Judge confirmed the said judgment holding that since the family was already in business, there was no question of the appellant's son Madhukar not having the necessary experience and capital for running business. The learned District Judge also held that the respondent had another shop in Ganesh Peth which was flourishing and, therefore, no hardship would be caused to the respondent if a decree for eviction was passed. When the respondent moved the High Court under Article 227 of the Constitution of India, the learned single Judge of the High Court allowed the writ petition holding that there was no material on record showing as to why the landlord did not occupy a particular shop of his which had fallen vacant in the year 1976. According to the High Court, the landlord's son Madhukar could have started his business in that shop in 1976 if there was really a bona fide need. Inasmuch as the said shop which fell vacant in 1976 was not occupied by the landlord's son Madhukar, the High Court came to the conclusion that the need of the landlord was not bona fide. Accordingly, the judgments of both the lower Courts were set aside and the eviction suit was dismissed.