BALKRISHNA BABASAHEB VISPUTE Vs. VITHAL NANA SALUNKE

JUDGEMENT

(1.) THIS is a Petition filed under Article 227 of the Constitution of India by the Petitioner/Landlord challenging the orders passed by both the Courts below under the Bombay Rent Act. The Petitioner is the owner of the suit premises i.e. a Shop admeasuring 48 sq.ft. in Municipal House No.4248 within the area of Nasik Municipal Corporation in Panchavati. This property was originally owned by Shri Balkrishna Babasaheb Vispute, the father of the present Petitioner Nandu. Balkrishna and Nandu filed a Civil Suit before the trial Court claiming the possession of the suit premises from the Respondent/Tenant on two grounds: (i) default in payment of rent and (ii) bonafide need of the suit premises. The trial Court recorded the findings in favour of Respondent-tenant and dismissed the said suit. The Petitioner carried an appeal against that judgment before the Appellate Court. However, the Appellate Court also dismissed the said Appeal filed by the Petitioner. Hence this Petition challenging the orders passed by both the Courts below.

(2.) THE learned counsel appearing for the Petitioner urged that so far as the ground of bonafide need of the suit premises to the landlord is concerned, in the plaint, it was the case of the landlord that there was a partition of the Joint Family Property on 9th January, 1984. At that partition, the suit premises had been allotted to the share of Nandu. It is claimed in the suit that presently Nandu is doing work of Goldsmith on contract basis in a shop owned by one Shri Shamrao Ramchandra Randhir. It is claimed that Nandu is expert in the work of Goldsmith and that he wants to set up his own business of Goldsmith in the suit premises and therefore, the Petitioner/landlord requires the suit premises bonafide. In the Written Statement, the Respondent/tenant disputed this claim. During the pendency of the suit, on 23rd May, 1988, Balkrishna, the original Petitioner expired. He had made a Will dated 9th January, 1984 bequeathing the property to his son Nandu, the present Petitioner. In the suit, Nandu examined himself and stated that the suit premises were allotted to his share at the oral partition of the Joint Family Property in the year 1984 and that his father had made a Will dated 9th January, 1984 bequeathing the property to him. He stated that his father was also Goldsmith by profession and his shop at the joint family property was allotted to his brother by name Shri Ashok Vispute. He stated that presently he is working in a shop of another person as Goldsmith and that he desirous to start his own business of Goldsmith in the suit premises. The Plaintiff/landlord also examined his brother Ashok who supported the case of the Plaintiff by deposing that after the partition of the joint family property took place, the brothers were residing separately and that the shop of the father had come to his share and the suit premises have been allotted to the share of Nandu which he requires for starting his own shop of Goldsmith. The Plaintiff also examined Shri Shamrao Ramchandra Randhir with whom the Petitioner Nandu is presently working. So far as Respondent is concerned, he only examined himself.

(3.) THE second aspect of the matter, that appears to have weighed with the trial Court for recording its findings against the Petitioner on the question of bonafide need, is that the Petitioner had not stated that he had sufficient capital to open a shop in the suit premises and that he had sufficient means or made arrangement to do so. Now it is to be, seen that the Petitioner had categorically stated in his plaint as also in his deposition, that he wants to start a shop for running Goldsmith business in the suit premises which clearly goes to show that he wants to set up his business of Goldsmith in the suit premises. I really do not know from where the Courts below have got the idea that for setting up the business of Goldsmith in a shop, any capital is necessary, because neither it is the case is made out by the Defendant-tenant in his written statement nor in his deposition nor in the cross-examination of the other witness examined by the Plaintiff any material has been brought on record on this aspect of the matter. Therefore, the finding recorded by the Court below on this aspect of the matter also is without any basis or substance. It is further to be seen here that so far as the Appellate Court is concerned, in paragraph 18 of its judgment, the Appellate Court has observed that if it is the case of the Plaintiff Nandu that the nature of work, which he undertakes, is that of a skilled worker, as an artisan, which does not require any investment, then in that case, in the opinion of the Appellate Court, the Plaintiff-Nandu does not want any independent premises for carrying on his work. The Appellate Court has not disclosed in its judgment as to what is the basis on which the Court is making these observations. Because even for practicing the trade of Goldsmith, a shop is necessary for carrying out the work. Therefore, in my opinion, what has been observed by the Courts below in respect of all the above three aspects of the matter which appears to be weighed with them, in rejecting the claim of the Petitioner-landlord on the ground of bonafide need is without any material or basis on record.