MATUMAL RAMAN KUTTAN Vs. MAHENDRA S SHARMA

JUDGEMENT

(1.) THIS Writ petiton has been filed by the tenant who suffered an order of eviction passed by the lower appellate court at the instance of the respondent. The respondents had filed application for eviction under section 13 (1) (g) of the Bombay rents Hotel and Lodging House Rents Control Act 1947, hereinafter called the Act. The appliction for eviction was grounded on the bonafide requirement of the premises for expansion of the existing business of the landlord. The petitioner is running his business of vulcanizing the rubber in one of the rooms in the ground floor of the building, which is having five shope rooms on the ground floor and a first floor. First floor of the building is being used as residential premises of the respondents, It is not in dispute that out of the shop rooms in the ground floor one room is let out to the petitioner and another two rooms are let out to the other tenants and one room is being occupied by the respondent for the business of eatables and soft drinks. The application for eviction of the tenants of other rooms were also filed and it is disclosed in the bar that, that application was also allowed and the appeal is pending. The main reason for eviction sought as stated earlier is for the expansion of the existing business of the respondent. It is come out in evidence that the respondents are financially well of, so as to expand their business. The trial court rejected the application on the ground that there is no bonafide requirement of expansion of business but in the appeal the appellate court took a different view and found that the requirement of expansion, sought by the respondent is bonafide and their eviction was ordered.

(2.) THE learned counsel Shri Thorat took me to the evidence in this case and tried to imprss upon me that on facts what has been stated by the lower appellate court was wrong. But however I am afraid in exercising the jurisdiction under article 227 of the Constitution I cannot go into those questions. It is not legal that after reappreciating the evidence, to decide which of the court, either trial court or the appellate lower court, was right in arriving their respective conclusions. However, mr. Thorat made a point that in any case the lower appellate court's order has been set aside on the ground that the court has not taken into account the significance of sub sec (2) of section 13 of the Act. Sub-section (2) of section 13 of the act mandate on the court that.

(3.) THE learned counsel submits that this aspect of the statuory mandate has not been considered by the lower appellate court in setting aside the trial court's order. I have gone through the lower appellate court's judegment in detail. After going into the judgment I am satisfied that Mr. Thorat was right in assailing the judgment on this ground. No consideration was made by the lower appellate court evaluating the comparable hardship of the landlord on one side and the tenants on the other side before passing an order of eviction. Unless that hardship is weighed by the Court, no order of eviction can be passed, as mandated under sub clause (2) of section 13. On this limited ground alone the lower appellate court's order is liable to be set aside.