MADHUSUDAN BHIMRAO NANDURKAR Vs. PURUSHOTTAMDAS PRANJIVANDAS SURATWALA

JUDGEMENT

(1.) The petitioners-landlords have challenged the judgment and order passed by the District Judge Solapur reversing the judgment and decree passed by the Civil Judge Senior Division, Solapur. The learned Civil Judge had decreed the suit filed by petitioners-landlords and had directed the respondents-tenants to hand over vacant and peaceful possession of the suit premises.

(2.) The suit premises are two rooms bearing No. 3 and 4 in the Municipal House No. 61-A situated at Goldfinch Peth, Solapur. Regular Civil Suit No. 195 of 1986 was filed by petitioners/original plaintiff for possession of the suit property on the ground of subletting by the respondent No. 1 /original defendant No. 1 in favour of respondent No. 2/original defendant No. 2; on the ground of nonuser of the premises; for causing damage to the suit property; for bona fide requirement of petitioners; for change of user of the premises; and that the premises were required for the purpose of demolition by the Municipal Corporation. Respondent No. 1 is an individual, respondent No. 2 is a partnership firm. On behalf of petitioners five witnesses were examined. Neither respondent No. 1 and nor the partners of the respondent No. 2 stepped in the witness box and on their behalf the accountant of the respondent No. 2 firm, was examined. The learned Civil Judge, after considering the material on record and perusing the evidence led by the parties decreed the suit on the grounds of sub-letting by the respondent No. 1 to respondent No. 2, non-user of the premises, bona fide requirement of petitioners and change of user of the premises. The claim of the petitioners that the premises were required for immediate purpose of demolition was rejected. The learned Civil Judge held that greater hardship would be caused to petitioners if the decree is refused. The learned Civil Judge by the Judgment and Order dated 11 May, 1992 decreed the suit and directed the respondents to hand over vacant possession of the premises. Appeal bearing No. 178 of 1992 was filed by the respondents in the District Court Solapur. The learned District Judge held that there was no subletting by the respondent No. 1 to respondent No. 2 as the premises were initially leased to the joint family consisting o: respondent No. 1 and thereafter it was transferred to family business partnership of respondent No. The learned District Judge held that the respondent No. 2 is protected by virtue of the amendment of the year 1987 to the Bombay Rent Act 1947 which has protected sub-tenancies prior to 1 Feb., 1973. As regards the change of user, the learned District Judge held that there was no change of user and the user continued to be of a shop. The learned District Judge also held that there was no non-user of the premises. As regards bona fide requirement, the learned District Judge held that the petitioners had not proved their bona-fide requirement and therefore, issue of comparative hardship did not arise, however if the issue of bona-fide requirement was proved then the hardship could be caused to the petitioners. On these grounds the learned District Judge allowed the Appeal by judgment and order dated 8 April, 1994 and set aside the judgment and decree passed by the learned Civil Judge. Rule was issued in this writ petition and interim relief was granted.

(3.) Heard Mr. A.B. Tajane, learned counsel for the petitioner and Mr. N.J. Patil, learned counsel for the respondents.