KIRAN K GUJAR Vs. PRADIP B KASAVKAR

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the order passed by the 12th Additional District Judge, Pune dated 19th September, 1998 in Civil Appeal No. 243 of 1994.

(2.) THE petitioners are tenants in respect of premises No. 24, New Bazar, Khadki, Pune. The respondents filed a suit against the petitioners for recovery of possession of the demised premises under section 13 (1) (l) and 13 (1) (g) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act for the sake of brevity ). The trial Court dismissed the said suit holding that neither of the grounds were established by the respondents. The respondents carried the matter in appeal before the District Court at Pune being Civil Appeal No. 243 of 1994. The Appellate Court on the other hand has allowed the appeal only on the ground of reasonable and bona fide requirement by the impugned order dated 19th September, 1998. The Appellate Court has adverted to the relevant pleadings and the evidence on record and opined that the respondents had established reasonable and bona fide need in respect of the suit premises. Even on the issue of comparative hardship, the Appellate Court recorded finding in favour of the respondents. Accordingly, the appeal came to be allowed and the decree for possession was ordered on the ground of bona fide requirement only.

(3.) THE present writ petition takes exception to the aforesaid view taken by the Appellate Court. The main grievance of the petitioners before this Court is that the pleadings as filed before the first Appellate Court were vague and bereft of any details regarding the nature of need set up by the respondents. The petitioners further contend that there is no proper adjudication of the evidence on record and the Appellate Court has not examined the efficacy of the evidence or recorded a clear opinion as to the reason for accepting or rejecting the same. According to the petitioners, the judgment under appeal is quite mudded and it is difficult to discern as to on what basis finding of fact has been recorded by the Appellate Court with regard to the issue of reasonable and bona fide need of the respondents. The petitioners have further demonstrated that they had filed an affidavit before the Appellate Court pointing out certain subsequent events which had occurred during the pendency of the appeal. It is not in dispute that the said affidavit was, however, filed by the petitioners belatedly viz. beyond the time provided by the Appellate Court. Nevertheless, the Court below has not only adverted to the facts and events stated therein, but has also adjudicated upon the same. The grievance made by the petitioners is that having done that, there was no basis for the Appellate Court to record a finding in favour of the respondents especially when the respondents had not countered the position stated in the said affidavit. In that context, the finding recorded by the Appellate Court that, even assuming that the respondents had recovered possession of additional premises, it cannot be said that it is more than the requirement pressed by the respondents, is seriously assailed. The premise on which this finding is assailed is that the same is based on surmise and conjecture and that the respondents had set up a specific case in the plaint filed before the first Court which does not support this position. Reliance has been placed on paragraph 4 of the plaint to buttress the contention that the claim set up by the respondents was very specific that they required the possession of premises to enable the plaintiffs No. 2 and 3 to start a new business so as to enhance the family income of the plaintiffs. The respondents have further stated in the said paragraph that plaintiff No. 3 wants to get married soon and which would call for an additional income which could be only if the business is started in the suit premises. The argument is that when the plaintiffs had approached the Court with this specific case and the fact that the additional premises which became available to the respondents plaintiffs was of similar area viz. admeasuring 40 ft x 10 ft-whereas the suit premises admeasure 55 ft x 10 ft. , it is not possible to comprehend as to how that accommodation cannot be said to have satisfied the need set up by the plaintiffs in the plaint. The petitioners had therefore, made a grievance that the need set up by the respondents before the First Court and which arises for consideration before this Court, has been satisfied by virtue of the fact that the respondents have got possession of the additional premises and instead of utilizing it for the need of plaintiffs No. 2 and 3, has allowed the same to be used for the business in the name of M/s. Kamlesh Fabricators which is stated to be conducted by plaintiff No. 4 who is the married sister. This has been done with purpose. The petitioners, therefore, contend that the need set up by the respondents before the First Court was obviously completely eclipsed, by the event of getting possession of the additional suitable premises and instead of utilizing the said premises to satisfy the stated need has been purposely utilized for some other purpose and for which reason the proceedings which are now pursued by the respondents cannot be said to qualify the test of any subsisting reasonable and bona fide need. In the circumstances, the petitioners submit that the impugned order needs to be set aside and in any case, the matter needs to be remitted to the Appellate Court for further adjudication on the basis of subsequent events which were pressed into service by the petitioners before the Appellate Court, in respect of premises T. S. 52, which is presently used for conducting the business in the name of M/s. Kamlesh Fabricators. Learned Counsel has relied upon decision of the Apex Court reported in T. Sivasubramaniam v. Kashinath Pujary, 1999 (7) S. C. C. 275, and also of this Court in 1979 Bom. R. C. 209.