DINKAR MAHADEO SHINDE Vs. DHONDIBA PANDURANG GHODKE

JUDGEMENT

(1.) THIS writ petition is filed against the order passed by the Extra Assistant Judge, Satara, dated 11th of March, 1982, in Civil Appeal No. 266 of 1980. Respondent No. 1 original plaintiff filed civil suit No. 433 of 1975 against the petitioner who was original and also against respondent Nos. 2 and 3 who were original defendant Nos. 1 and 2 for eviction under the Bombay Rent Act. The suit premises consist of a shop wherein the original defendant No. 1 was a tenant running a grocery shop. It appears that defendant No. 2, the nephew of defendant No. 1, subsequently started conducting the business and dealing independently. In the year 1970 respondent No. 1 plaintiff purchased the suit premises. Thereafter, he filed Regular Civil Suit No. 93/1971 against the original defendant Nos. 1 and 2 for eviction. However, it appears that the said suit was withdrawn on 10th December, 1973, with permission to refile the same on the same cause of action. Subsequently, it appears, that there was some compromise between the landlord-plaintiff and defendant No. 2 and both of them mutually agreed to share the premises by dividing the same. One portion was occupied by defendant No. 2 who was conducting his grocery shop and the other portion was occupied by the landlord-plaintiff. After the said settlement, vide Exh. 59 the landlord-plaintiff leased out the suit premises to defendant No. 2 by a lease-deed dated 16th June, 1974, effective from 1st June, 1974, for a period of eleven months. Thereafter, by a sale-deed dated 16th June, 1975, defendant No. 2 sold the good-will of the said running business to defendant No. 3. After the said transfer by defendant No. 2 in favour of defendant No. 3 vide Exh 49, the landlord-plaintiff filed the present suit being Civil Suit No. 433 of 1975 before the Civil Judge, Junior Division, Wai, District Satara, for eviction of defendant Nos. 1 to 3 from the suit premises. In the said suit the main contention of the plaintiff was that the present suit premises was required by him for his bonafide personal use and, therefore, he was entitled to get a decree in his favour under the Rent Act. It was further contended on behalf of the landlord-plaintiff that the defendant No. 2 had sub-leased the suit premises to defendant No. 3 and, therefore, on that ground also he was entitled for a decree of eviction against all the defendants. The learned Civil Judge, Junior Division, Wai, after going through all the evidence and contention of the landlord-plaintiff dismissed the said suit by his judgment and order dated 19th of September, 1980. Against the said decision the landlord-plaintiff appealed before the learned Extra Assistant Judge, Satara, being Civil Appeal No. 266 of 1980. The learned Extra Assistant Judge, Satara, by his judgment and order dated 11th March, 1982 reversed the finding of the trial Court and passed a decree of eviction against the defendants. Against the said judgment and decree dated 11th of March 1982 passed by the learned Extra Assistant Judge in Civil Appeal No. 266 of 1980, the petitioner-defendant No. 3 has preferred the present writ petition.

(2.) MR . Dhakephalkar, the learned counsel, appearing on behalf of the petitioner submitted that on both the counts on bonafide personal requirement as also on the count of sub-leasing, the finding of the lower Appellate Court is erroneous as it has committed an error apparent on the face of the record. It was contended that the lower Appellate Court wrongly proceeded on the footing that defendant No. 2 was only a statutory tenant due to the efflux of time.

(3.) IT was pointed out by the learned counsel for the petitioner that the lease-deed Exh. 59, dated 16th June, 1974, which was to be effective from Ist June, 1974, for eleven months would have expired on 1st May, 1975. However, from para-5 of the plaint it is clear that the landlord-plaintiff terminated the tenancy of defendant No. 2 by notice dated 11th August, 1975, and therefore, while the said lease was effective, defendant No. 2 vide Exh. 59 sold the good-will of his business to defendant No. 3 on 16th June, 1975. According to him, therefore, at the time of the sale of the good-will defendant No. 2 was a contractual tenant and in that case this finding of the lower appellate Court will have to be set aside. Apart from that, he also relied on the recent decision of the Supreme Court in Chandavarkar Sita Ratna Rao v. Ashalata, AIR 1987, Supreme Court 117, Mah.RCJ. 1987(1), in which it was held :-