SHANKAR PANDURANG PRABHALE SINCE Vs. VINAYCHANDRA VRUJLAL SHAHA

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the judgment and decree dated July 6, 1991 passed by the IInd Additional District Judge, Satara in Regular Civil Appeal No. 447 of 1988. The premises in question are situated in Municipal House No. 671 of Guruwar Path, Satara. The respondent No. 1 purchased the said property some time in the year 1977 with a view to enjoy the same for the personal use and occupation. It is on that premise notice was issued to the original petitioner-tenant terminating his tenancy in the year 1980. In spite of that notice petitioner did not vacate the suit premises. As a consequence of which the respondent No. 1 instituted a suit before the Court of Joint Civil Judge, Junior Division, Satara, on the ground of reasonable and bona fide need and requirement for himself and for his family members. Besides that ground the suit for possession was also instituted on the ground of tenant having caused damage to the suit property. While the said suit was pending, it is stated that, there was partition in the family of the plaintiff in the year 1984 and in that partition the suit property came to the share of the respondent No. 2 herein. After that development the plaint was amended and the respondent No. 2 was impleaded as plaintiff No. 2 Besides impleading the plaintiff No. 2, consequential amendments were carried out. It is averred that the property was purchased on behalf of the joint family members and the suit for possession was instituted for the reasonable and bona fide requirement of the family and since the respondent No. 2 has become the owner of the property, the suit property would be now required for the personal use and occupation of respondent No. 2 for his residence and business purpose. It is not in dispute that the original owner had let out the suit premises to the petitioner for business purpose and the petitioner was carrying on Kirana shop in the said premises. The trial Court on analyzing the evidence on record however, negatived the ground regarding the reasonable and bona fide requirement. Accordingly, the suit was dismissed by judgment and decree dated 13-7-1988. Against this decision the respondents carried the matter in appeal before the District Court. The District Court has reappreciated the evidence on record and has reversed the findings recorded by the lower Court and instead found that the respondents have made out case of reasonable and bona fide requirement of the suit premises. Even on the issue of the comparative hardship, Appellate Court has answered the same in favour of the respondents. Accordingly, the Appellate Court decreed the suit and ordered that the petitioner-tenants to hand over possession of the suit premises to the respondents. It needs to be mentioned that the decree for possession has been granted by the Appellate Court in favour of the respondents only on the ground of reasonable and bona fide requirement. It is this decision which is under challenge before this Court.

(2.) ACCORDING to the learned Counsel for the petitioners, suit was originally filed by the respondent No. 1 and in that suit no mention was made about the fact that the suit premises were purchased on behalf of the joint family. It is, therefore, argued that the suit was filed only by the respondent No. 1 setting up requirement for himself and for his family and that plea as pressed into service in the plaint is unavailable to the respondent No. 2 merely because he has been impleaded as plaintiff No. 2 in the suit. It is contended that the plaintiff No. 2 was obliged to assert about his personal requirement both for residence and for business and also establish that before the Court which has not been done in this case. Learned Counsel further contends that the material on record clearly establishes the position that the respondent No. 2 had other accommodations available to cater to his requirement of business and in such a situation no decree for possession can be ordered. It is contended that in so far as the requirement for residence is concerned, respondent No. 2 has admitted that after institution of the suit he has constructed bungalow admeasuring 1800 sq. ft. It is, therefore, contended that the respondent No. 2 has neither succeeded in establishing the requirement for his residence or for the proposed business. Learned Counsel further contends that the record would clearly indicate that the respondent No. 2 was financially well off and was capable of purchasing and acquiring other premises. Whereas, the petitioners had no means to do so and, therefore, the issue of reasonable and bona fide will have to be answered against the respondents. Learned Counsel further contends that in so far as the issue of comparative hardship is concerned been that finding will have to be reversed because it has come on record that the petitioners have no means to acquire another premises. In these circumstances, it is contended that the decree passed by the Appellate Court requires to be reversed and instead the suit be dismissed as ordered by the trial Court.

(3.) ON the other hand, the learned Counsel for the respondents has contended that the Appellate Court has correctly applied the settled legal position while answering the issues of bona fide and reasonable requirement as well as of comparative hardship in favour of the respondent and no interference with that decision is necessary in exercise of powers under Article 227 of the Constitution of India.