JUDGMENT B.P. Dharmadhikari, J.
1. By this writ petition under Articles 226 and 227 of Constitution of India, the petitioners - tenants challenge the order dated 7-9-f987 passed by the Rent Controller, order dated 19-1-1990 passed by the appellate authority and the order dated 31-3-1993 passed in review. The Rent Controller granted permission to present respondent No. 2 to terminate the tenancy of petitioners on the ground of bona fide requirement and said order of Rent Controller has been maintained in appeal as also in review.
2. Respondent No. 2 filed application before the Rent Controller under Clause 13(3)(vi) and (vii) of C.P. and Berar Letting of Premises and Rent Control Order, 1949 (hereinafter referred to as Rent Control Order), on or about 26-11-1980 and sought permission to terminate the tenancy of present petitioners in relation to western half of his House No. 9-B or in the alternative of entire house. He contended that the premises were required by him to start a business of his own and also for residing along with his family. The application was opposed by the present petitioners, however, the Rent Controller after appreciating the evidence adduced, granted permission under Section 13(3)(vi) of Rent Control Order. As already stated above, the appeal preferred by the present petitioners was dismissed on 19-1-1990 and its review sought by them was also dismissed on 31-3-1993.
3. Heard Shri Daga, learned Counsel for the petitioners and Shri Chandurkar, learned Counsel for respondent No. 2.
4. At the outset, Shri Daga, learned Counsel invited attention to the fact that on 10-10-2005, the petitioners have filed a pursis pointing out that respondent No. 2 has entered into an agreement of sale with them and as per that agreement, he has agreed to sale the western half portion belonging to him to the petitioners for valuable consideration of Rs. 17,51,000/-. He states that out of total consideration, the amount of Rs. 6,01,000/- is also paid to the said respondent by the petitioners and stamp duty of Rs. 1,48,840/- is also paid on agreement of sale by the petitioners. Today, the petitioners have moved application for amendment of writ petition pointing out these events and it is contended that as respondent No. 2 has agreed to sale the property in question to the petitioners, the bona fide need of respondent No. 2 does not survive and writ petition, therefore, should be allowed.
5. Shri Daga, learned Counsel for the petitioners has further contended that the authorities below have ignored the pleadings as made by the landlord before the Rent Controller. He contends that the premises were sought for establishing one business while in evidence entirely different business i.e. Medicine shop has been asserted and the permission has been granted on that count. He argues that there was variance between the case pleaded and the evidence adduced and as such the Court below could not have considered the need to be bona fide need. He further contends that this was specifically pointed out to appellate Court but the appellate Court has again ignored it. It is his grievance that even review Court did not go into the variance at all and refused to exercise the jurisdiction available to it only on the ground that the Courts below have concurrently granted permission to the landlord.
6. As against this, Shri Chandurkar, learned Counsel for respondent No. 2, in reply, has contended that the order of Rent Controller as also order of appellate authority show consideration of the case as pleaded by the landlord and as such the question of variance between the pleading and proof as sought to be raised does not really fall for consideration. He states that the fact that suit premises belong to respondent No. 2 is not in dispute, the fact that respondent No. 2 is residing with his father and needs suit premises for staying away along with his family from the family of his father is also not in dispute and the fact that son of respondent No. 2 is carrying on his business in public land is also not in dispute. According to him, in view of these undisputed facts, the permission as granted needs to be maintained. He further added that though the agreement of sale is entered into between the parties, respondent No. 2 is disputing the same on some grounds which are not relevant for consideration in this matter and respondent No. 2 is not ready and willing to specifically perform said agreement and to execute the sale agreement in favour of the petitioners. The need as pleaded still survives and subsequent events are therefore not relevant.
7. After hearing both the counsel, it is apparent that at present the petitioners are not the owner of suit premises. The need as pleaded by respondent No. 2 - landlord is not satisfied because respondent No. 2 has not received the possession of suit premises from the petitioners. It is not the case of the petitioners that after the agreement of sale between parties, the petitioners cease to be tenant. Thus, in this background, mere execution of agreement of sale cannot render the application moved by respondent No. 2 before the Rent Controller infructuous. The subsequent events pointed out by the petitioners, therefore, have got no bearing on the merits of the present petition. The application for amendment moved by the petitioners vide Civil Application No. 6614 of 2005 is allowed, the necessary amendment be carried out by the petitioners forthwith. However, as the events pointed out are not relevant, it is not necessary to call for any reply from respondent No. 2 in relation to it.
8. Coming to arguments of learned Counsel for the petitioners about variance between the pleadings and proof, when the application as filed by respondent No. 2 before the Rent Controller is seen, respondent No. 2 has stated that business is the vocation of life opted by him from the date he attained majority and his father was a Hakim and carries on business in various herbs and synthetic medicines in Itwari. He has also mentioned that his late grand-father was also in the same business and respondent No. 2 himself was carrying on business in Kirana shop which he closed down due to losses. He was doing business of stationary on a Thela in the eastern side land situated adjacent to the House No. 9-B. He has further given details of his family members and has stated that he and his family wanted to reside separately from his father and on that count also needed the portion of House No. 9-B belonging to him. In this background, when the order of Rent Controller is looked into, Rent Controller has found that though there is some variance in the pleadings and proof adduced, the same is not fatal to the application moved by respondent No. 2. The Rent Controller has found that in the application as moved, suit premises were sought for starting stationary business and in oral evidence, landlord deposed that he wanted to start Dawai shop. The Rent Controller has also found that the landlord wanted to have his medicine shop on the ground floor and wanted to have his residence on first floor and the second floor i.e. top floor was to be used as godown. The Rent Controller has also considered the shop and size of family of landlord and has also found that son of landlord is also doing business of Maniari in the adjacent lane. The landlord clearly stated that he wanted to provide some space of ground floor for his son also. After considering all these facts, the Rent Controller granted the permission. This ground about variance and proof was also raised before the appellate authority and the appellate authority has found that family of landlord was in business of medicine and the son was also running a stationary business. It also has considered the intention of landlord to stay separately from his father. After considering the entire application as filed before the Rent Controller, it has found that the application was filed about seven years back before the deposition of landlord was recorded and during that period, the son of landlord became major and if landlord wanted to have the Medicine shop in part of the premises and a stationary shop for his son in the remaining portion, there was no variance which could be treated as fatal to the case of the landlord. When the matter went up before the Reviewing Authority, the Reviewing Authority has again considered this aspect and has found that as there was no new material or error apparent pointed out to it, review petition was not maintainable.
9. The application filed before the Rent Controller by the landlord reveals that the family of landlord was doing business as Hakim earlier and the landlord himself had started a Kirana shop in rented premises which he closed down. It is also on record that his son was doing the business of General stationary in lane adjacent to the Suit house. The perusal of orders reveal that Rent Controller himself inspected the premises and found the son of landlord doing business in public lane. In this background, merely because one type of business was disclosed while approaching the Rent Controller in pleadings, it cannot be said that the landlord does not have bona fide need of premises because in evidence he has deposed about the other type of business. The business as pleaded and the business as deposed to be carried out in premises in possession of petitioners and the bona fides of respondent No. 2 in this respect are not doubted by the petitioners - tenants and no cloud was cast upon it by bringing any other material on record. There is no provision in the Rent Control Order which mandates that the landlord must start the business for which he got permission from the Rent Controller after the tenant vacates the premises. Thus, the argument about variance between pleadings and proof as advanced by Shri Daga is totally irrelevant for deciding the aspect of bona fide need in the present case.
10. I find that the authorities below have correctly appreciated the facts and circumstances and there is no perversity or jurisdictional error in the matter. No case is, therefore, made out for interference in writ jurisdiction. Writ Petition is accordingly dismissed. Rule is dismissed. Rule is discharged. No order as to costs.