MESSRS. ZAVERCHAND BHURABHAI & COMPANY Vs. DAMABHAI VISHRAM

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is filed by the original defendants to challenge legality of judgment dated November 29, 1986 passed by the Appellate Bench of the Small Causes Court in Appeal No. 527 of 1980 reversing the judgment dated August 11, 1980 passed by the Additional Chief Judge, Small Causes Court. By the impugned judgment, suit instituted by the respondents for recovery of tenanted premises was decreed. The facts giving rise to the filing of this petition are as follows :

(2.) THE petitioners are in occupation of an area admeasuring 246 sq. fit. on the ground floor and an area admeasuring 232 sq. ft. on the first floor of house bearing City Survey No. 1257 situated at Zaveri Bazar, Bombay. The petitioners are carrying on business of silver ornaments in the shop on the ground floor and the premises on the first floor are used for storing material. The premises were let out to the petitioners in the year 1960 for rent of Rs. 385.61. On March 23, 1969, the respondents purchased the house in which the suit premises are situated for a consideration of rupees one lakh. After purchase of the house, on April 8, 1969, the respondents served notice on the petitioners demanding possession on the ground that the premises are required reasonably and bonafide for their occupation. The respondents are carrying on business of jewellery in diamonds and gold articles. The respondents are also Government Valuers for diamonds and the respondents are carrying on their business in house No. 252 which is at a distance of about 500 ft. from the suit premises. The respondents claimed that premises available with them are totally inadequate and insufficient to carry on their business. The ground floor premises are required by them for opening a showroom and the first floor premises for storing material. The suit was resisted by the petitioners claiming that the requirement of the landlords is neither reasonable nor bonafide. The petitioners also claimed that greater hardship would be caused to the petitioners by passing decree of eviction than to the landlords by refusing the same. The parties led evidence, both oral and documentary, before the trial Judge and the trial Judge came to the conclusion that the requirement of the landlords was not established. The trial Court recorded a finding on the issue of hardship in favour of the landlords. The trial Judge, however, dismissed the suit as requirement of the landlords was not established. In appeal preferred by the landlords, the Appellate Bench reversed the finding of the trial Court on the issue of requirement holding that the landlords had proved their requirement and the same was both reasonable and bonafide. The lower appellate Court concurred with the finding of the trial Court on the issue of hardship and passed a decree of eviction against the petitioners. The decree of eviction was not in respect of both the premises on the ground floor and the first floor but was restricted only to the shop premises on the ground floor. The judgment of the lower appellate Court is under challenge.

(3.) IN view of the rival submissions, the question which falls for determination is whether the finding recorded by the lower appellate Court on the issue of requirements is contrary to the evidence on record and is one which can be termed as per se. It is, therefore, necessary to briefly refer to the relevant facts and the finding recorded by the lower appellate Court. It is not in dispute that the petitioners-tenants are in occupation of ground floor shop admeasuring 246 sq. ft. and first floor room admeasuring 232 sq. ft. in house No. 257. The suit premises are situated in Zaveri Bazar which is the principal market for gold, diamonds and silver articles. The respondents are carrying on business as retailers in diamonds and gold in premises situated at House No. 252, Zaveri Bazar, and the premises in occupation of the respondents are an area of 6 ft. x 13 ft. on the ground floor and 28 ft. x 13 ft. on the mezzanine floor. House No. 252 was purchased on February 8, 1956 by a partnership firm of Messrs. Danabhai and Amritlal and this partnership consisted of fifteen partners. On November 15, 1965, the firm of Danabhai and Amritlal was dissolved and the house property went to the share of one Vrajlal and two other partners. The deed of dissolution, inter alia, provided that the partners who are in occupation of different portions of the house would continue to remain in occupation as tenants of Vrajlal and two other partners. On November 15, 1965, the respondents constituted a new firm by name Messrs. Zaveri Danabhai and Bros. and continued as tenants on payment of Rs. 500/- per month in respect of the area of 6x13 ft. on the ground floor and 28x13 ft. on the mezzanine floor. The respondents claimed that the business carried on by them is in diamonds and gold and it is not possible to successfully carry on this business in the area which is totally inadequate. In support of their claim that the area available with the respondents is inadequate, the respondents examined Pravinchandra, respondent No. 2, Sam Rao, an engineer and architect and Natvarlal, who is carrying on business as diamond merchant and jeweller. The trial Court rejected the evidence of Rao on spacious ground that Rao is not a dealer in diamonds and cannot be expected to speak about the area required for running a jewellery shop. The evidence of Natvarlal was also rejected on the ground that though he is a jeweller, he is related to respondent No. 2 and, therefore, no reliance can be placed on his testimony. The lower appellate Court very rightly pointed out that it is not permissible to reject the evidence of Rao merely because he is not a jeweller. Rao was not examined to give a specialised knowledge about the jewellery business but to establish the inadequacy of the area in occupation of the respondents. The evidence of Natvarlal also could not have been rejected merely because he is a relation and, therefore, the lower appellate Court rightly accepted the said evidence to hold that the area available with the landlords is totally inadequate.