VIBHUTE BROTHERS Vs. BHALCHANDRA BABU ALIAS BABURAO EKHHANDE

JUDGEMENT

(1.) THE petitioners are tenants of seven khans in house No. 758 situated at Akkalkot from the year 1955 onwards. The suit premises are used for running utensils shop. The rent settled between the parties at the time of letting was Rs. 41.75 per month. On September 27, 1976 the landlord served notice on the tenant demanding arrears from November 1, 1974 till end of September, 1976. The tenant sent reply claiming that the tenancy was not monthly but yearly and rent would be paid at the time of Diwali, 1976. The landlord thereafter instituted suit to recover possession and arrears of rent in the Court of Civil Judge, Junior Division, Akkalkot. The possession was sought on the ground of default and bonafide requirement. The landlord claimed that his two sons have grown up and are desirous of starting cloth business in the suit shop.

(2.) THE trial Judge after recording evidence came to the conclusion that the tenant is liable to be evicted on both the counts. The trial Judge did not accept the defence that the tenancy was yearly and therefore provisions of Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act") are not attracted. The trial Judge also held that the requirement made out by the tenant is both reasonable and bonafide and greater hardship would be caused to the landlord by refusing decree than to the tenant by passing the same. The decree passed by the trial Judge was confirmed in appeal by 3rd Extra Assistant Judge, Solapur by judgment dated March 31, 1981, and these judgments are under challenge in this petition filed under Article 227 of the Constitution of India.

(3.) SHRI Ketkar also urged that the courts below were in error in passing decree on the ground of requirement made out by the landlord. It is not possible to accede to the submission for more than one reason. In the first instance the findings recorded by the two courts below on the issues of requirement and hardship are pure findings of facts and based on appreciation of evidence and cannot be disturbed in writ jurisdiction. Secondly, even on merits the findings do not suffer from any infirmity. The landlord claimed that his two sons have grown up and are desirous of starting cloth business in the suit shop. The tenant claimed that the first floor premises are available for running that business. Both the courts rightly held that in a small town like Akkalkot it is not possible to carry on cloth business on the first floor and more so, when the entry to first floor is not from the main road but in a side lane. Shri Ketkar urged that even if the requirement is established the issue of comparative hardship should have been answered in favour of the tenant. The submission is not correct, because evidence indicates that the brothers of the defendant own several shops at Akkalkot and the contention of the tenant that his brothers are separate due to partition between the family members was not accepted by both the courts. In these circumstances, the decree passed by the lower courts is not required to be disturbed.