MUSAJI MOHAMADALI MASTER Vs. GULAMALI DADABHAI AMRELIWALA

JUDGEMENT

(1.) ONE Ghulamali Dadabhai, the original plaintiff, instituted Regular Civil suit No. 438/1978 against the petitioner/original defendant for possession of the shop premises situated at 1817, Polan Peth Jalgaon, having an area of 13/1/2 x 20 1/2. The parties to the proceedings will be referred to as "the plaintiff and "defendant" and the premises would be referred to as "shop premises". The plaintiff- Ghulamali Dadabhai died during the pendency of the suit and his heirs and legal representatives were brought on record and they are representing the estate and prosecuting the proceedings. It is not disputed that the suit premises are in possession of the defendant who is a partnership firm carrying on business in the name and style as M/s. Musaji Mohammed Master and Sons. The plaintiff filed suit for recovery of possession of the shop premises under the provisions of the Bombay Rents, Hotel and Lodging House rates Control Act, (hereinafter referred to as "the Act"), mainly on two grounds, i. e. default and bona fide requirement. In order to appreciate the controversy involved in the matter, resume of facts will be necessary.

(2.) THE litigation between the plaintiff and the defendant entered into Court three and half decades back. Earlier, the plaintiff sought possession of shop premises for bona fide requirement for his son's personal occupation and after long drawn litigation, the plaintiff could not secure the possession as yet though there is decree in favour of the plaintiff now.

(3.) INITIALLY, the plaintiff filed Regular civil Suit No. 214/1971 for bona fide requirement of the shop premises on the ground that his son Abdul Hussain requires the same for carrying on the business. He is married therefore, he is residing separately and the shop premises which is in possession of the defendant is being required for him to carry on the business. In that suit, it was contended that the shop premises is in possession of the defendant as a monthly tenant, at the rate of Rs. 50/- per month. It is contended that the plaintiff had purchased the suit premies from its erstwhile owner vide registered sale deed dated 29th September, 1967 and from that date, he became the owner of the shop premises. The defendant is in possession of the premises as a tenant of erstwhile owner. As the defendant has not paid the rent after the plaintiff purchased the premises, the Plaintiff issued notice on 25th march, 1971. On receipt of the notice, the defendant tendered rent on 31 st March, 1971. As the suit shop is required for use and occupation of the plaintiff's son-Abdul hussain who is also assisting the plaintiff in the business of Shoe Mart. It is stated that the premises are required for carrying on business of Abdul Hussain and after possession is received, new premises will be constructed and the ground floor will be used as a shop premises and first floor will be used for the purpose of residence. However, the plaintiff could not succeed to establish the bona fide need. Therefore, the Civil Court dismissed the said suit by the judgment and decree dated 10th September, 1976. Unsuccessful plaintiff carried the appeal to the District Court being Regular Civil Appeal no. 251/1973. The said appeal came to be dismissed by the Appellate Court on 7th august, 1976. Thus, ended the first round of litigation.