Chhaganlal L Mehta Owner Of Kirana Shop, Amrutlal L. Mehta Died- Deleted L.Rs Kirit A. Mehta And An v. Nanalal Govinddas Shah Since Deceased - Deleted Through L.Rs. Smt. Pushpaben Nanalal Shah And Other

( 1 ) CRA-37-2017-JUDGMENT

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 37 OF 2017 Chhaganlal Lalchand Mehta (Owner of Kirana Shop Shri. Amrutlal Lalchand Mehta since deceased - deleted)

1) Shri Kirit Amrutlal Mehta, Age : 60 years, Occu.: Business, R/o : Nandurbar, (Balajiwada) Tq. and Dist. Nandurbar

2) Shri. Krishnakant Amrutlal Mehta, Age : 65 years, Occu.: Service, R/o : At post Nadiyad, (Chhagan Damodar ni Khadki, Sallon Bazar), Dist. Kheda, (Gujrath) .. Applicants (Orig. Defendants)

Versus

Nanalal Govinddas Shah since deceased - deleted

1) Smt. Pushpaben W/o. Nanalal Shah, Age : 74 years, Occu. : Nil,

2) Shri. Yatin Aniruddha Shah, Age : 33 years, Occu. : Business,

3) Shri. Manoj Aniruddha Shah, Age : 31 years, Occu. : Nil,

4) Shri. Aashish Aniruddha Shah, Age : 29 years, Occu. : Service, All R/o. : Near Balaji Wada, Nandurbar, Tq. and Dist. Nandurbar (Maharashtra) .. Respondents (Orig. Plaintiffs)

( 2 ) CRA-37-2017-JUDGMENT --- Mr. Ruchir S. Wani, Advocate for applicants Mr. S. V. Natu, Advocate for respondents --- CORAM : SUNIL P. DESHMUKH, J.

DATE : 08-03-2018 ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith. Heard learned counsel for parties finally by consent.

2.

Present applicants were defendants in regular civil suit bearing no. 99 of 2002 instituted by present respondents seeking eviction of the applicants, mainly on three grounds, viz; default, nuisance and bonafide and reasonable requirement of respondents for starting business in suit property. Parties hereinafter would be referred to by their original status in aforesaid civil suit, applicants as 'defendants' and respondents as 'plaintiffs'. 3.

The suit concerns an area of 40 ft. x 40 ft. on ground floor divisible into approximately three portions. 4.

At the outset, learned counsel for parties fairly concede to that controversy narrows down in present revision to bonafide and reasonable requirement of plaintiffs, as suit of the plaintiffs has

( 3 ) CRA-37-2017-JUDGMENT been dismissed on other two grounds and the plaintiffs have not taken exception to the findings on those two grounds by trial court and save default the case on nuisance had not even been argued before appellate court.

5.

Pleadings about premises being required for bonafide and reasonable use of plaintiffs broadly are contained in paragraph no. 5 and about comparative hardship in paragraphs no. 5(A) and 8 of the plaint, reading, thus :

" 5) वादीस दावयातील िमळकत सवतःचे धंदासाठी व वापरासाठी पामािणकपणे व सदावनेने वीजबीरीतया हवी आहे. वादी नं. ३ मनोज हा सुिशिकत बेकार असून तयांस सवतःचया धंदासाठी तसेच वादी नं. २ यतीन यांस सुदा धंदासाठी जागेची िनतांत गरज असून प. वादीचया ताबयातील जागा धंदासाठी पािहजे आहे. वादीचे वाढते कुटुंब असून वादीजवळ एकमेव घर आहे. वादीना जागेची खूपच जररी व आवशयकता आहे. वादीची पिरिसतथीही जेमतेम रोजचया चिरताथर चालिवणयाची सुदा नाही. याउलट प.वादीची आिथरक पिरिसतथी खूपच शीमंतीची असून प. वादीचया ताबयात धंदासाठी दुसरी जागा आहे. तसेच प. वादी कोणतयाही िठकाणी धंदा सुर करणयासाठी जागा घेऊ शकेल अशी प. वादीची ऐपत व पिरिसतथी आहे. आपलया सवतःचया जागेत धंदा करता यावा व चिरताथर चालिवता यावा अशी आंतिरक इचछा वादीची आहे. तसेच दुसरीकडे जागा घेऊन धंदा टाकणयाची वादीची ऐपत व आिथरक पिरिसथती नाही. प.वादीस या जागेची काहीएक आवशयकता व जररी नसून प. वादीकडे दुसऱया जागा उपलबध आहेत. प.

वादीने मुदाम vln~ हेतूने ही जागा ताबयात ठेवली आहे. प.वादीस जागा सोडावी लागलयास तयांस HARDSHIP होणार नाही. िकंवा तयांचे नुकसान होणार नाही. ~ 5 अ) प.वादीने दावा िमळकतीपासून थोडाच अंतरावर तयाच रसतयावर बालाजी वाडाजवळ प.वादीचा नातू शी. िहरलकुमार िकरीटभाई मेहता यांचे नावाने शी.

( 4 ) CRA-37-2017-JUDGMENT गणपत मोतीराम सोनार यांचेकडून िस. स. नं. 259/2, केत 33.4 चौ. मी. चे बांधीव घराची िमळकत ता. 21/7/2003 रोजी रिजसटडर खरेदीखताने िवकत घेतली आहे. ती प.वादीचे ताबे उपभोगात आहे. तसेच प.वािदची विडलोपािजरत िमळकत िस.स.नं. 265/ब/2 केत 9.2 चौ. मी. प.वादीचा मुलगा शी. िकिरटकुमार अमृतलाल मेहता यांचे नावे जरी केली असली तरी ती िमळकत सुदा प.वादीचे ताबयात आहे. प.वादी, तयाचा मुलगा शी. िकिरटकुमार व नातू िहरलकुमार हे सवर एकतीत राहतात व एकतीतच धंदा करतात. पतयकांत ते िवभक कधीही झालेले नसून एकत कुटुंब आहे. सबब प.वादीस या दोनही िमळकती तयाच दावा िमळकतीचे आसपास असलयाने उपलबध आहेत. तयामुळे प.वादीचे वयवसायावर दावा िमळकत सोडावी लागलयास काहीएक पिरणाम होणार नाही िकंवा फरक पडणार नाही.

8.

सदर दावा िमळकत तातपुरती सोय महणून वादीचया पूवारजांनी घरोबयाचे संबंध लकात घेऊन प. वादीस िदली होती. प.वादीची आिथरक पिरिसथती भककम होऊन सुदा व दुसरीकडे घेतलेलया जागा उपलबध असतांना सुदा व प.वादीस सदर जागेची कोणतीही गरज पतयकांत आता रािहलेली नसतांना प.वादी मुदाम vln~ हेतूने सदरची जागा वादीची अडवणूक करणयाचे इरादाने ताबयात ठेवली आहे. वासतिवक वादीचे कुटुंब मोठे व वाढते आहे. वादीना अशया पिरिसथतीत जागेची िनकडीची गरज आहे. ''

6.

These pleadings are countered by defendants by paragraphs 4, 5 and 8 in their written statement, reading, thus: '' 4. दावा कलम 5 मधील मजकूर खरा नाही. वादातील िमळकत वादी यांना धंदासाठी हवी असलयाचे खरे नाही. वादी नं. 2 व 3 यांना सदर भागाची धंदासाठी व इतर कोणतयाही कारणासाठी काहीही गरज नाही. वादीची वादातीत िमळकतीचे पूवर - दिकण भागात पानाची दुकान असून वादी नं. 2 व 3 हेच सदर दुकान चालिवतात. नुकतेच तयांनी सदर दुकान पुनहा नवीन बांधून घेतलेले आहे. तया दुकानात वादी नं. 2 व 3 यांचा धंदा खूपच चांगलया पकारे चालतो. वादी नंबर 4 हा बँकेत नौकरी करतो व सदर नौकरी िह कायम सवरपाची आहे. वादी नंबर 1 हे वयसकर आहेत. तयाच पमाणे सदर पान दुकानाचे मागे महणजेच पिशचमेकडे व या

( 5 ) CRA-37-2017-JUDGMENT वादातील दुकानाचे दिकण - पिशचम भागाकडे दुसरी दुकान असून ती पण वादीचे मालकीची व ताबेविहवाटीतील आहे. पूवी वादी नं. 2 ते 4 यांचे वडील हे सदर दुकानात टेलिरंगचा वयवसाय करीत होते. मात ते वारलयानंतर सदर दुकान बरेच वषारपासून बंद पडलेले आहे. वादी यांना तेथे सवतंत धंदा सुर करणे शकय असूनही तयांनी आजपावेतो तेथे कोणताही धंदा िकंवा वयवसाय सुर केलेला नाही. सबब वादीना सदर भागाची पामािणकपणे गरज असलयाचे महणणे खरे नाही. वादीचे वाढते कुटुंब असलयाचेिह खरे नाही. पतयकांत वादी नं. 2, 3 व 4 यांचे लगही झालेले नाही. वादीचे कुटुंब बरेच वषारपासून आहे तेवढेच कायम आहे. सबब तयांना सवतंत धंदाची गरज असलयाचे अतयंत खोटे आहे. वादीची पिरिसथती गिरबीची असलयाचे व जेमतेम चिरताथर चालेल अशी असलयाचे खरे नाही. वादीना गरज नसलयानेच वादीनी आपसात समजुतीने भाडाची रककम वाढवून व तयापमाणे Standard Rent चा हुकूमनामा करन घेतला असून सदर िमळकत पितवादीकडे भाडाने कायम ठेवलेली आहे व तयानंतर कोणताही बदल झाला नसलयाने वादीना सदर तकार कायदाने घेता येऊ शकत नाही. तयास estoppel चे ततवांचा बाध येतो.

5. पितवादीची पिरिसथती शीमंतीची असलयाचे तसेच तयाचेकडे धंदासाठी दुसरी जागा असलयाचे खरे नाही. पितवादीकडे धंदाची इतर कोणतीही जागा नाही. या पितवादीची धंदासाठी दुसरी जागा घेणेची ऐपत नाही. वादीची तयाचे सवतःचे महणजेच वादातील जागेत धंदा सुर करणयाची व तयादारे चिरताथर चालिवणेची आंतिरक ईचछा असलयाचे खरे नाही. तयाची सवतःची दुसरी दुकान तयाने बंद ठेवलेली आहे. सबब वादी यांस वादातील भागाची गरज नाही व तयाची मागणी bonafide नाही. पितवादीस दुसरी कोणतीही जागा तयाचे धंदासाठी उपलबध नाही. वादीने वादातील भागाचा ताबा मुदाम व vln~ हेतूने रोखुन ठेवलयाचे खरे नाही. पितवादी यांस सदर दुकान सोडावी लागलयास तयास दुसरी जागा उपलबध नसलयाने तयाचा बरेच वषारपासूनचा िकराणा वयवसाय बंद पडेल व तयाची उपासमार होईल. तसेच तयाचे न भरन येणारे नुकसान होईल. मात वादी यांस दुसरा धंदा करणे नसलयाने तसेच तयाचेकडे दुसरी दुकान तयाच भागात उपलबध असलयाने वादीचे मात कोणतेही नुकसान नाही. व तयांस hardship ही होणार नाही. व महणून गरजेचे कारणाने केलेले ताबयाची मागणी रद होणेस पात आहे.

8. दावा कलम 8 मधील मजकूर खरा नाही. वादातील िमळकत या पितवादीस तातपुरती सोय महणून िदलयाचे महणणे अतयंत खोटे आहे. आपसात समजुतीपमाणे

( 6 ) CRA-37-2017-JUDGMENT ठरलेलया भाडाचया नवीन शतीमधयेिह तातपुरती सोय महणून िदलयाचे नमूद करणयात आलेले नाही. उलट भाडे वाढवून जादा उतपन िमळावे या हेतूनेच पितवादी यांस सदर िमळकत भाडाने िदली आहे. इतर तकारीबाबत पितवादीने सिवसतर उतर िदलेले आहे. ''

7.

Learned counsel Mr. Ruchir Wani appearing for defendants/applicants herein contends that in the plaint, according to him, except vague pleading that suit premises are required for business and use honestly and reasonably, nothing further is pleaded giving idea of nature of business to be started. He submits that nor do the plaintiffs refer to premises in their occupation rather, are shy of disclosing that they were already running some business.

8.

He goes on to submit that in the first place, the plaintiffs had been running pan (betel nut) shop and further in evidence it has emerged that the plaintiffs had also been running grocery shop.

9.

He submits, decree on the ground of bonafide and reasonable requirement of suit premises for carrying business on the basis of pleadings as are appearing would hardly be possible to be taken into account under position as would be emerging, from two decisions of this court, namely, Hotel Rosalia Pvt. Ltd. vs. M/s Metro

( 7 ) CRA-37-2017-JUDGMENT Hotels reported in 2001 (2) Mh. L. J. 881 and Sitaram Narayan Shinde vs. Ibrahim Ismail Rais reported in 2005 (1) ALL MR 74, which requires that the plaintiffs should give reasonable idea of the business to be carried on in order to let the defendant meet with pleaded requirement.

10.

Learned counsel contends that having regard to observations of the court in aforesaid two decisions, with a vague case being put forth on the ground of bonafide requirement, suit should not have been decreed. He submits that evidence also discloses that plaintiffs do not have know-how to start business of hotel stated in their evidence. In such a case, it would not be said that plaintiffs' requirement is bonafide and reasonable. He submits that there are no bonafides in fact, for, the plaintiffs are already in possession of betel nut shop and premises where they are running grocery business. Aforesaid apart, according to him, plaintiffs are also in possession of quite a lot of open space. 11.

Mr. Wani submits decision in Hotel Rosalia Pvt. Ltd. vs. M/s Metro Hotels (cited supra), as can be seen, deals with a situation quite similar to the one involved in present matter. In that case as well, with vague pleadings plaintiff had approached the court without giving any information as to nature of business to be

( 8 ) CRA-37-2017-JUDGMENT started and the court having regard to the position had observed that considering the nature of evidence, quality of pleadings will have to be assessed in the light of extent and magnitude of the need sought to be made out. He submits, the court has observed, in order to test whether the requirement is reasonable and bonafide and need being genuine, in contradiction to a mere desire, there should be some indication of the same in the pleadings and in present matter, according to him, there is absolute absence of any indication of nature of business to be carried out. 12.

Learned counsel submits that in said case of Hotel Rosalia Pvt. Ltd. (supra), case of Rajkumar Khaitan vs. Bibi Zubiada Khaitun reported in (1997) 11 SCC 411 had been referred to and the court had found that observations therein ("Rajkumar Khaitan") will have to be read in the light of facts of that particular case. He purports to point to that decision in Hotel Rosalia Pvt. Ltd., a decision by three judge bench J. K. Iron and Steel Co. vs. Britania Biscuits Co. reported in AIR 1979 SC 1652, with regard to importance of pleadings has been referred to. He, therefore, submits that present case is squarely governed by observations as are appearing in paragraphs no. 21 and 22 of decision in the case of Hotel Rosalia Pvt. Ltd. (supra). He also draws attention to paragraph no. 7 of other case (Sitaram Narayan Shinde) relied upon by him. He submits that in present case as well, it can

( 9 ) CRA-37-2017-JUDGMENT hardly be said that the pleadings spell out intensity of need of plaintiffs, depriving in the process, letting defendants' opportunity to deal with and resist the same.

13.

Learned counsel Mr. Wani further urges to consider also that even if it is to be assumed, the plaintiffs require premises for their use and occupation, yet in such a case, having regard to number of members in family and premises in occupation of the parties, it ought to be examined as to whether there can be a decree of partial eviction.

14.

Mr. Wani submits, plaintiffs have not come to the court with clean hands and have kept back vital information. He goes on to submit that the plaintiffs additionally have a 'Wada' where intended hotel business could be started. Had the defendants been given idea of nature of business to be started by plaintiffs, an opportunity would have been available to defendant to meet with plaintiffs' evidence on the point of starting hotel business, however, such an opportunity has been lost. They have been deprived of opportunity at relevant time before court. According to him, the courts have thus committed error in not taking into account such material aspect involved in the matter and in decreeing the suit. All these aspects are required to be considered while dealing with

( 10 ) CRA-37-2017-JUDGMENT present matter on the ground of bonafide requirement. 15.

Learned counsel Mr. Wani submits that courts hitherto have been in error in not properly appreciating that far more hardship would be faced by defendants in the event of eviction. According to him, defendants do not have alternate suitable accommodation available and plaintiffs readily have in their possession a 'Wada' ("वाडा"), which can be utilized by them for starting the claimed business whereas the defendants, as stated above, do not have any such accommodation available. According to him, unwarranted considerations have weighed with the courts about acquisition of property by Kiritkumar son of defendant, who is an educated businessman and has acquired property. Besides defendants have earned goodwill in business in suit premises for several years. On the scale, measure of hardship faced by defendants discernibly outweighs the plaintiffs' discomfort, if any. 16.

He additionally submits that plaintiffs' need is not bonafide also can be seen from that, they had attempted to sell suit property.

17.

Learned counsel Mr. S.V. Natu appearing for plaintiffs - respondents contends that need of plaintiffs being bonafide and

( 11 ) CRA-37-2017-JUDGMENT reasonable, has been properly gauged by courts hitherto on evidence on either side as appearing and adduced in the matter. He submits that the courts have considered relevant material and have appreciated that the plaintiffs require suit premises reasonably and bonafide for running business. He submits, the courts have aptly appreciated that economic and financial condition of defendants is way superior to that of plaintiffs. The defendants have also acquired quite a lot of properties before the proceedings were initiated and even in the interregnum and had not made any efforts to look for suitable accommodation before or during pendency of proceedings. Hardship being suffered by plaintiffs is far more than would be suffered by the defendants.

18.

Mr. Natu submits that thrust of defendants' contentions now appears on that pleadings with regard to bonafide requirement being not specifically referring to any particular business, are deficient, and, as such, suit ought not be decreed on that ground. He submits, the defendants are putting emphasis on two judgments, one in the case of Hotel Rosalia Pvt. Ltd. (supra) and other in the case of Sitaram Narayan Shinde. (supra). He contends that observations appearing in Hotel Rosalia Pvt. Ltd. (supra) are in very peculiar facts of that case, wherein the plaintiffs had undertaken a huge project and had then not referred to any particulars in the

( 12 ) CRA-37-2017-JUDGMENT pleadings. He submits that the court had been faced with situation wherein a big industrial activity was being undertaken and had specifically observed as under :- " If need is for opening of big industrial unit, then considerations would be different in contrast to that where the need sought to be made out is for one or two rooms accommodation may be for the purpose of business or residence. In this case, the need sought to be made out is for 18 rooms located on first floor for running hotel business. The need is not for one or two rooms. Having seen the quality of pleadings extracted from the judgment of the Apex Court, one has to reach to the conclusion that the said pleadings were certainly better than the pleadings found and noticed in this particular case."

He submits that it is in this context, the court had further specifically observed as under:- " Therefore, in my opinion the judgment of the Rajkumar Khaitan's case (cited supra) does not help the petitioner plaintiff considering the facts and circumstances of the present case and the extent of need sought to be made out."

He goes on to submit that thus, it emerges that it has not been the intention of the court to specifically lay down that in each and every case, it is incumbent to refer to the particulars of business intended by landlords in proceedings for eviction on the ground of bonafide need.

19.

Learned counsel further submits that as a matter of fact, decision of supreme court in the case of Rajkumar Khaitan

( 13 ) CRA-37-2017-JUDGMENT (supra) would apply on all fours in present matter where the court had specifically ruled that it is not necessary for the landlords to indicate precise nature of business which they intended to start in the suit premises and further it has been observed that even if nature of business would have been indicated nobody could bind the landlords to start other business in the premises after it was vacated.

20.

He further contends, position admittedly emerges in present matter that plaintiffs, even according to the case of the defendants, were and are involved in business and need the premises bonafide for starting a business, which according to defendants, has emerged in evidence about the same being for running a hotel. He submits that capital or for that matter, knowhow for running the business are not the matters which are relevant to be considered while considering eviction on the ground of bonafide requirement of landlord. He submits that the plaintiffs have specifically referred to that family members of the plaintiffs are increasing and growing. They do not have any other suitable property for starting business. Plaintiff no. 2 has been in dire need of property for starting business. The plaintiffs who now are three brothers, with their growing family members, running betel nut shop in a small area is becoming uneconomical and unviable, while

( 14 ) CRA-37-2017-JUDGMENT larger area could be available. He purports to draw attention to that this position has not been seriously disputed save and except that the plaintiffs have been running a betel nut shop and that evidence would show that they are also running a grocery business. As such, naturally, this establishes that growing family needs business for earning income and income would have to be increased to maintain the family. Thus, the need being bonafide of the plaintiffs, has emerged even according to the case sought to be put forth by the defendants. On that count, according to him, the need being bonafide, emerges indisputably.

21.

He submits that alternate accommodation available, as contended by defendants about 'Wada' being available, has been adequately dealt with by the courts finding that the same would not be suitable for running business. He further draws attention to that it has emerged in evidence that defendants and family members have been engaged in land dealings. In addition to the same, he submits that defendants have purchased quite a few real estates / landed properties in close vicinity which are easily available for business of the defendants. These being the findings on the basis of record, statutory requirements under the law, for eviction of defendants, are amply borne out and stand satisfied and established.

( 15 ) CRA-37-2017-JUDGMENT 22.

He submits that although it had not hitherto been urged at any point of time, an argument as advanced, if it is perceived that plaintiffs' need is bonafide, then in such a case, partial eviction can be considered. He submits that this submission is incompatible with the case sought to be urged hitherto on behalf of the defendants. Evidence shows and establishes that partial eviction for growing and increasing members of family of plaintiffs is not going to solve requirement of need of premises for running business. According to his submission, this gives an intention of intransigent attitude of defendants not to let the plaintiffs have accommodation of their own property.

23.

He submits that the defendants have not only more than adequate but also copiously ample accommodation available. Looking at the businesses they carry on, it is not the case at all that businesses run by the defendants are likely to be stopped absolutely.

24.

He submits that the position is largely settled that when landlord desires to have his own premises needing the same bonafide while the need is not fanciful or whimsical, the need of the landlord should receive its due. According to him, the law has taken ample care to avoid any arbitrary or whimsical act of the

( 16 ) CRA-37-2017-JUDGMENT landlord to evict tenant on this ground. For said purpose, he refers to and relies on a decision of the supreme court in the case of Deena Nath Vs. Pooran Lal reported in 2001 DGLS (Soft.) 843 : 2001 (5) SCC 705. He, also, adverts to that the very same judgment also refers to that interference in the findings of facts is not warranted. 25.

Learned counsel refers to and relies on decision of this court in the case of Goverdhandas Mulchand Agrawal and others Vs. Bherulal Uderam Bagade and another reported in 2005 (Supp.1) Bom.C.R. 643 : 2005 (3) Mh.L.J. 196. He presses the same into service, to counter the argument of the applicants that since there is no know-how or expertise, there is no bonafide need for the same. In said decision, it appears to have been observed that it is not necessary for landlord to plead and prove that he has necessary know-how or expertise as well as financial capability to conduct business. Paragraphs no. 29 and 38 are reproduced below with reference to the same.

" 29. It is also necessary to note that while setting out the need for business premises and testing the reasonableness thereof, it is not necessary for the landlord to plead and prove that he has the necessary knowhow or expertise as well as financial capability to conduct the business. It is ultimately the aspect of need which is relevant. It should not be a mere wish or desire. .............

.............

.............

( 17 ) CRA-37-2017-JUDGMENT

38. I am unable to uphold the view that the deposition of the landlord was insufficient or inadequate. Once the requirement of giving details of the business including sufficiency of capital and investment is not at all necessary, then there is no reason to discard the pleadings and depositions of the petitioners. It is not for the Courts to scrutinize and direct as to how the business is to be managed and conducted. It is not permissible in law for the Courts to go into the aspect of suitability or justifiability of carrying on a particular business from the business premises. " 26.

In present matter, suit property has been claimed by plaintiffs bonafide on the ground that they require the same for business and use stating that plaintiff no. 3 - Manoj is an educated unemployed so is the case in respect of plaintiff no. 2 and the family is growing and they have only the suit property suitable to start and run business, as such, they are in dire need of the same for carrying on business to earn income. Family of the plaintiffs is big and growing. Such is not the case of the defendants. It is plaintiffs' case that defendants have been rich. They have other properties for business and have wherewithal to purchase property at any place. They are financially sound whereas plaintiffs are not in a position to acquire other property.

It has been referred to that the defendant's son has purchased property at a very close place from suit property and are also possessed of ancestral property. The defendants are residing jointly and have been running business jointly. The defendants purport to deny the claims made in respect of the requirement of suit property contending that the plaintiffs have been running a betel nut shop on the south east portion.

( 18 ) CRA-37-2017-JUDGMENT has been contended that plaintiff no. 4 had been working in a bank and plaintiff no. 1 is an old person. Plaintiffs have one shop on the western side wherein father of plaintiffs no. 2 to 4 had been carrying on tailoring business. After his death, the same has been closed. They have denied that terms and conditions with plaintiffs are not good. They have denied that defendants are wealthy persons and they have other properties. It has been contended that their grocery business would come to an end if they are evicted whereas such is not a position of plaintiffs. 27.

Trial court had decided all the issues together and had considered, plaintiffs have proved that they require suit premises reasonably and bonafide and that hardship suffered by plaintiffs would be more in comparison to that of defendants. The plaintiffs are three brothers running betel nut shop which is a small business and that landlord is the best judge of his need and is entitled to decide as to how and in what manner, he should use the premises. The trial court has observed that plaintiffs are three brothers and are owners of the property situated in main market area of the city. The trial court also considered that capital and expertise or knowledge to run the business, is not a requirement to be proved for starting hotel business. The trial court, in this respect had referred to a decision relied on by plaintiffs in the case of Dattatrya

( 19 ) CRA-37-2017-JUDGMENT Laxman Kamble Vs. Abdul Rasul Moulali Kotkunde reported in 1999(2) Mh.L.J.

793. The court had taken note of that the income may not be a criterion to consider bonafide requirement.

28.

Perusal of appellate court's judgment shows that the matter has been considered quite elaborately. Appellate court has considered that the plaintiffs were in possession of eastern side pan (betel nut) shop which has been admeasuring 3' X 4' and shop had been on a platform below the staircase. It has further emerged that three brothers were running pan shop. Manoj is an educated person. The court adverted to that the plaintiffs were of marriageable age and will require to do some business to earn livelihood and running business in a small area would be inconvenient and it is not proper to let plaintiffs sit idle till getting possession of suit property by using small portion available with them for same business.

Appellate court has also considered that even if it is considered that there had been an attempt to deal with the property, inter-alia, the same would hardly affect bonafide requirement of the plaintiffs. Appellate court had gauged, scanning of entire evidence shows that requirement of plaintiffs is genuine and in the circumstances, to force them to earn livelihood by running small business, is hardly going to cater to the needs of the plaintiffs.

( 20 ) CRA-37-2017-JUDGMENT shop in a smaller portion would not reflect upon the need being not bonafide. As far as hardship is considered, the court elaborately dealt with same finding that suggestion on behalf of the defendants of running business in the 'Wada', is not a viable proposition and further that defendants are well placed and have some properties close by. As such, findings recorded on these two aspects are concurrent by both the courts.

29.

Although, the submissions are quite emphatically and persuasively put forth on behalf of applicants, for want of proper pleadings rather the pleadings being deficient, having regard to rulings cited, if it is to be considered that the defendants lost out an opportunity to rebut the claims, yet, the situation as would be emerging, shows that finding by the two courts about need of plaintiffs being bonafide and genuine, are hardly impeachable. 30.

Decision and observations in the case of Rosalia Hotel Pvt. Ltd. (supra) had been rendered in a very peculiar facts and circumstances. Said decision may not be able to hold sway over factual and circumstantial situation in present matter. The analogy sought to be drawn is rather overstretched and may not have relevance beyond that need expressed had been for a hotel.

( 21 ) CRA-37-2017-JUDGMENT 31.

It has emerged that suit premises are situated in the business area of the city. The plaintiffs appear to be running small business on smaller area. During the pendency of litigation, with growth in family, they are forced to carry on some additional business activity.

32.

Looking at ages of the plaintiffs, one will have to consider that their families would be growing and they would be required to carry business to earn livelihood and for such a need, they are demanding possession of suit property. Once need appears to be bonafide and reasonable looking at number of persons as well as that plaintiff's family already is running business in small area, it would hardly be amenable for reconsideration that the need expressed and as established by plaintiffs is not bonafide and/or for that matter reasonable. Plaintiffs appear to require premises bonafide and reasonably for their carrying on business. 33.

As far as know-how and wherewithal for carrying on business is concerned, the situation emerges that it is not hard and fast requirement to gauge that plaintiffs require premises to carry on intended business. As contended on behalf of the respondents - plaintiffs, with reference to supreme court judgment, it is not incumbent to start stated business and it is open for the landlord to

( 22 ) CRA-37-2017-JUDGMENT change the intended business. On this ground although arguments have been advanced, it is difficult to overturn the decisions rendered with reference to the facts and circumstances as are emerging on record. Thus, the civil revision application is not being entertained and same is dismissed.

34.

At this stage, Mr. Ruchir Wani, learned advocate for the applicants seeks six months' time for vacating the suit premises. Learned advocate for the respondents, Mr. Natu, however, resists the request.

35.

However, looking at that tenants are in occupation of suit premises since last 40 years, it may be expedient to grant six months' time to the tenants for vacating the suit premises. After completion of six months period from today, the tenants shall peacefully vacate and hand over the suit premises to the landlords personally and shall not create any impediment, hurdle and hitch, legal or factual and shall not create third party interest in the suit premises of any sort and if any such hurdle arises, the tenants would be solely responsible for the same. The applicants - tenants shall pay monthly compensation to the landlords at the same rate as rent was being paid by them during currency of tenancy. They shall file undertaking to aforesaid effect within a period of twelve

( 23 ) CRA-37-2017-JUDGMENT weeks from today and in case of failure to submit such an undertaking, it is open for the landlords to proceed with execution. 36.

Rule stands discharged.

(SUNIL P. DESHMUKH) JUDGE arp/-