CHANDRAKANT BHALCHANDRA NALAVADKAR Vs. HIRALAL MULCHAND SHAH

JUDGEMENT

(1.) The petitioners-plaintiffs Nos. 2 and 3 are owners of an open plot of land which originally belonged to a Hindu Joint family. The respondent-defendant was admittedly a lessee of this piece of land, having taken it on lease for a period of 11 years from 1st June, 1960. Exhibit 55 is the lease. The original landlords asked to return of the plot as they required it for erection of a building thereon by a notice dated 17th February, 1971, as the period of lease was to expire on 31st May, 1971. Exhibit 78 is another notice given on 3rd September, 1971. This is after the period of the lease had expired. The tenant denied that the landlords needed the open plot.

(2.) The plaintiffs case is that by virtue of a partition dated 29th January, 1972 the plot in question fell to their share, and after having given a notice dated 31st January, 1972 they filed a suit for possession on 21st March, 1973 in which it was alleged that the plot in question is situated in the midst of the business locality at Pune and the plot was needed bona fide for the business of plaintiffs Nos. 2 and 3 who were the sons of plaintiff No. 1. Plaintiff No. 1, however, died during the pendency of the suit. The suit is, therefore, a simple suit for possession on the ground of bona fide and reasonable requirement for the erection of a new building as contemplated by section 13(1)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter the Bombay Rent Act). The defendant himself has constructed a structure on the open plot, which according to him cost a sum of Rs. 50,000/-, and he is carrying on business in these premises. The defendant denied that the petitioners bona fide and reasonably required the premises for erecting a new building. According to him, the plaintiffs did not have sufficient funds nor had they submitted any plan to the Municipal Corporation nor had they prepared any estimate of costs. The partition itself was challenged by the defendant.

(3.) The trial Court held that the plaintiffs bona fide and reasonably required the premises for erection of a new building as the building was necessary for business as well as residential purposes. The trial Court noticed that the permission granted by the Municipal Corporation was not renewed after 1976. It found that by raising a structure on the plot the plaintiffs would be in a position to accommodate other members of the family also and the requirement appeared to be reasonable and bona fide. The business which was intended to be started in the new premises, according to plaintiff No. 1 was their stationery business and the business of a printing press, and though admittedly the petitioners did not have a printing press the trial Court took the view that this did not make the requirement unreasonable or not bona fide. It appears that a part of the plot is occupied by one Mulik against whom also, subsequent to the suit against the defendant, proceedings were taken. The trial Court held that though the plaintiffs would be entitled to get possession of the suit premises under section 13(1)(i) of the Bombay Rent Act they would not get possession till a decree for possession was obtained against Mulik. The trial Court held that the tenancy had expired by efflux of time and no question of legality of the notice arose. In the suit arrears were claimed. The defence was that amounts were sent from time to time but money orders were refused by the plaintiffs. The trial Court, therefore, held that the though the plaintiffs would be entitled to a decree for Rs. 1,555/- they would not be entitled to any costs in respect of this claim. As already observed, a conditional decree for possession was made by the trial Court.