VARDHMAN TRADERS THROUGH PRADIP Vs. SHARIFABEN SHABIRHUSEN

JUDGEMENT

(1.) BY way of the present petition, under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the "Rent Act"), the petitioner - original defendant has challenged the judgment and order dated 17.01.2013 passed in Regular Civil Appeal No. 41 of 2009, by the 4th Additional District Judge, Surendranagar, by which, he has held that the plaintiff - landlady shall suffer greater hardship, if the decree of eviction with regard to the suit premises, which is a godown, is not passed.

(2.) THE brief facts emerges from the record are as under:

(3.) ON the other hand, Mr. V.M.Pancholi, learned advocate appearing for the respondent ­ original plaintiff - appellant ­ landlady has supported the reasons assigned by the learned Appellate Court while considering the case as per the order of this Court, by which, the case was remanded to examine the comparative hardship provided under section 13(2) of the Rent Act. He would submit that the learned Appellate Court has considered all the documents, which were produced before the High Court and were made part of the record of the case and which were produced by both the parties. In his submission, the learned Appellate Court has not committed any error while comparing the hardship between the landlady and the tenant. He has further submitted that the documents, which were produced before the Appellate Court, it is established that the tenant is the owner of other four similar properties like the suit property situated in the city itself. He has further submitted that the suit premises is a godown, in which, the petitioner is not carrying on any day-to-day business and is keeping only the hardware goods. Therefore, it is not the case that, by doing business, the good-will is earned by the tenant by coming on any business from the suit premises. On the contrary the husband of the landlady wanted to start is own business of manufacturing of boxes for sweets, and therefore, the purpose for using the suit premises is totally changed. By drawing the attention of the Court with regard to the ownership of four different properties by the tenant, Mr. V.M.Pancholi, learned advocate for the landlady submitted that the tenant is having four different premises having total area of land about 175 Sq.mtrs. i.e. about 1750 Sq.ft., and therefore, the tenant can shift his goods to any of the properties and use one of the said premises as a godown. He has further submitted that the property belonged to the son cannot be taken into account while considering the hardship between the landlady and the tenant. He has further submitted that even otherwise the son is carrying on business of hardware as per the certificate issued by the concerned authority established under the Bombay Shops and Establishment Act, 1948, which was produced on record of the learned Appellate Court. The intention of the tenant is to start manufacturing unit with regard to the production of boxes for sweets is all together different business who is having a shop of hardware and tools. As far as the property acquired by her husband in 2002 is concerned, the same has been taken into account by both the Courts while considering bonafide requirement of the landlady in the present case. Even it is consider that it is a small size of property of 32 sq.mtrs.