VISHWASRAO BABURAO JAGTAP Vs. KASHINATH BABURAO HABIB

JUDGEMENT

(1.) THIS is a tenant's petition challenging the decree of eviction passed by the 4th Additional Small Causes Judge, Pune dated 28th April, 1987 in Suit No.290/1983 as also the judgment of the Appellate Authority, Eight Additional District Judge, Pune dated 5th April, 1989, dismissing the appeal filed by the tenant petitioner, and confirming the order of the trial Court.

(2.) THE trial Court has passed decree on the ground of bonafide requirement. The undisputed position is that the suit premises are the rooms on the ground floor of the building owned by the respondent landlord, where the petitioner is running his Bakery business. It was the case of the petitioner that the landlord has his tailoring business in the rented premises in another area. That shop is under compulsory acquisition for public purpose and therefore, he needs these premises for setting up his tailoring business. Perusal of the orders of both the Authorities below show that the Authorities below have found that the landlord has to shift his business to some other shop because his shop is under acquisition. The Courts below have also found that the landlord cannot be asked to shift his business to the shop of his son because it is about 5 to 6 kilometers away from the area where the landlord is having his shop presently. However, I find that both the Courts below have not considered the case put-up by the petitioner-tenant that in the building where the suit premises are situated, the landlord has available to him the rooms where he can set up his tailoring business. The learned counsel for the petitioner invited my attention to the deposition of Pramod K.Habib, who is the son of the respondent landlord. He has stated that there are two rooms on the ground floor of the house itself. He has stated that a room admeasuring 10' x 10' was already in existence and the other room has been constructed now. In the submission of the learned counsel for the petitioner both the Courts below have not considered as to how and why the landlord cannot use any one of these two rooms for shifting his tailoring business. The learned counsel for the petitioner also invited my attention to the deposition of Shri Chandrakant Vishwasrao Jagtap, who is the son of the tenant-petitioner. He has stated that "the plaintiff has sufficient accommodation in the suit property for carrying out business of tailoring shop. There is a hall measuring 10' x 15' on the suit property on the first floor. The plaintiff can use this hall for his business of tailoring. One Gaikwad Waidha was having his dispensary on the first floor in the hall. That dispensary was there for 5 to 7 years. There is a hall on the ground floor near the open space. The plaintiff is in possession of both these halls. One Shri Ahir was having Adkitta Karkhana on the ground floor in the room admeasuring 10' x 10'. The plaintiff has constructed a room admeasuring 10' x 10' on the north side of the open space. That room is in possession of the plaintiff. The plaintiff can use that newly constructed room for his business of tailoring."

(3.) THE learned counsel for the respondent submit that the Courts below have found that these two rooms are being used by the landlord for his residential purpose, and therefore, according to him in terms of provisions of Section 25 of the Act, they could not be used for shop purpose. Perusal of Section 25 of the Act shows that any which was being used for non-residential purpose on the date of commencing of the Act, cannot be used for a residential purpose. In so far as present case is concerned, it has come in the deposition of Chandrakant that the room on the ground floor was being used for non-residential purpose, namely, Adkitta Karkhana by one Ahir and that room can be conveniently used by the landlord for his tailoring business. In law there is prohibition on using that room for residential purpose in terms of the provisions of Section 25 of the Act. Perusal of the judgments of both the Courts below shows that this aspect of the matter has at all not been considered by the Courts below. Thus, I find that the material evidence which was relevant in the matter, has been excluded from consideration by the Courts below and therefore, the findings recorded by the both Courts below suffers from non-application of mind and therefore, this is a fit case where concurrent findings of fact recorded by both the Courts below, are interfered with at the hands of this Court, as I find that the material evidence has been excluded from consideration.