DIWAKAR GOVIND BHANAGE Vs. DHANANJAY BANDOBA DIGE

JUDGEMENT

(1.) THIS is a petition filed under Article 227 of the Constitution of India challenging the order dated 31.3.1992 passed by the 3rd Additional District Judge, Kolhapur, in Regular Civil Appeal No.61 of 1991. By that judgment, the learned Judge allowed the appeal and set aside the judgment passed by the 3rd Joint Civil Judge, Senior Division, Kolhapur, dated 31.12.1990 in Regular Civil Suit No.494/1988. By the judgment dated 31.12.1990, the 3rd Joint Civil Judge had dismissed the Regular Civil Suit No. 494/1988 filed by the present respondent. The Appellate Court has passed a decree of possession, in favour of the respondent and against the petitioner.

(2.) THE civil suit was filed by the respondent under the provisions of the Bombay Rent Act contending that the Petitioner is his tenant in a building situate on City Survey No.355 E-Ward, Station Road, Kolhapur. The petitioner is a tenant of shop premises admeasuring 11' x 22'. The only ground on which the decree has been passed by the Appellate Court is that the respondent-landlord bona fide needs the premises for his own business. The Plaintiff-respondent claimed in the plaint that City Survey No.355, on which a building has been constructed, was owned by a partnership firm by name M/s Bandu Nemanna Dighe. The respondent was a partner of the firm along with his 3 brothers and one sisters. He claimed that in 1985, there was a partition of the firm property and the respondent retired from the firm. As a result of the partition, the building was divided into two equal parts, north-south division, and the portion on the west was allotted to his brother Narendra and the portion on the east came to the share of the respondent. Thus, according to the respondent, as a result of the partition dated 26.7.1985, he is the sole owner of that part of the building where the suit shop is situate. The respondent claimed in the suit that, apart from this suit property, he does not own any other property and therefore for setting up his shop, he needs the suit premises. He stated that after the partition of the partnership business, he is not doing any business. He stated that he has the necessary finance and know-how to start the business in grocery. He stated that the suit shop is suitable for starting his grocery business. The petitioner in his written statement denied the claims made by the respondent and claimed that a shop adjoining the suit shop admeasuring also 11' x 22' was held by one tenant Bandre and that the respondent-landlord has secured possession of that shop from the tenant and is presently running his business in those premises and therefore he does not need the suit premises for his own use.

(3.) SHRI Apte, learned counsel for the petitioner, submitted that there was no justification for the Appellate Court to disturb the finding of fact recorded by the trial Court which was based on appreciation of the evidence on record. He submitted that so far as the portion of the building owned by the respondent is concerned, there is a frontage of 30'. According to Shri Apte, the respondent-landlord admittedly has acquired the shop in possession of the tenant Bandre which has 11' of frontage. He further pointed out that the landlord has also in his possession a frontage of 8' and therefore, out of 30' of frontage, the landlord already has 19' of frontage in his possession. He pointed out that when it is established on record that out of 30' of frontage, when the landlord has in his possession frontage of 19', it cannot be said that for starting his business of retail, he needs the suit shop. Shri Apte submitted that this aspect of the matter has not been properly appreciated by the Appellate Court. He further pointed out that it was brought on record that the partnership firm of which the respondent-landlord was a partner, had leasehold rights in a godown admeasuring 2,000 square feet which is nearby the suit shop. In the submission of Shri Apte, this aspect of the matter has also not been properly appreciated by the Appellate Court. In the submission of Shri Apte, the order of the Appellate Court suffers from non-application of mind and therefore it violates the principles of natural justice and hence it is liable to be set aside.