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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 302 OF 1997
Kalyan Ratanchand Shah
since deceased through his legal heirs & Ors. ..Petitioners
V/s.
M/s. Sheshmal Dhiraji, a firm by its prop.
Ghevarchand Kapurchand Jain (Deceased),
through his legal heirs and ors. ..Respondents
WITH
INTERIM APPLICATION NO. 2396 OF 2019
M/s. Sheshmal Dhiraji,
A partnership firm, through its partners ... Applicants
In the matter between:
Mr. Kalyan Ratanchand Shah
(since deceased) through legal heirs
1a. Smt. Rajani Kalyan Shah & Ors. ... Petitioners
V/s.
M/s. Sheshmal Dhirji, Proprietorship firm
through his proprietor & Ors. ... Respondents
----
Mr. P.B. Shah a/w Gunjan Shah i/b K.P. Shah for the Petitioners and
for Respondents in IA/2396/2019.
Mr. G.S. Godbole i/b S.C. Wakankar & Pandurang Gaikwad for the
Respondents and applicant in IA/2396/2019.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 16th FEBRUARY 2021
PRONOUNCED ON : 11th MAY 2021
: JUDGMENT:
1. This is a case where the eviction of the Respondents from the suit premises was sought by filing a suit in the year 1989 Sneha Chavan page 1 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc inter alia on the ground that Ashwin, the son of Plaintiff No.1, who was at the relevant time aspiring for a degree of mechanical engineering and was admittedly engaged in the business of auto spare parts required the suit shop premises. It is an irony of sorts that the Petitioners are yet to succeed in obtaining the possession, although now the son of Ashwin is a mechanical engineer and is said to have joined the business. In this case, as there are several subsequent events on either side, an attempt was made to see whether the parties can amicably settle the dispute. However, inspite of efforts, the parties could not reach a settlement.
2. By this petition under Article 227 of the Constitution of India, the Petitioners are challenging, concurrent orders passed by the courts below, refusing to grant a decree of eviction and possession of the suit premises. The eviction was sought on the ground of reasonable and bonafide personal occupation, change of user and the Respondents/tenants having secured an alternate accommodation, under the Bombay Rents, Hotel & Lodging Houses Rates Control Act, 1947 (Old Act). This petition arises out of a suit of the year 1989.
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3. Late Kalyan Shah and Laxmichand Shah (original plaintiffs) filed Civil Suit No. 1660 of 1989 against M/s. Sheshmal Dhiraji, a partnership firm, through Ghevarchand Jain and others (original defendants) before the Small Causes Court at Pune. The Plaintiffs sought eviction and possession of the suit premises which comprise of a shop and a room on the rear side, bearing House No. 533 at Centre street, Cantonment area, Pune. The suit premises are situated on the ground floor of a three storied building. It may be mentioned that plaintiff No.1 was residing on the second floor while the plaintiff no.2 was residing on the first floor of the said building. The case made out is that the suit premises, were let out to Late Kapurchand Jain, father of Defendant Nos. 2 to 5, somewhere in the year 1969 for business and residential purpose, by the father of the plaintiffs, late Ratanchand Shah. The defendants are running a jwellery shop in the suit premises under the name and style as 'Sheshmal Dhiraji & Sons'. Tenancy month is from 10 th of each English calendar month to 9th of the succeeding month.
4. The Plaintiff Kalyankumar has two sons Ashwin and Ankit. At the relevant time, when the suit was filed, Ashwin was aspiring for a degree in Mechanical Engineering, while Ankit was taking education. Kalyankumar at the relevant time was serving in Sneha Chavan page 3 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc Bank of India at Urli Kanchan Branch. It was the material case made out that Ashwin was engaged in the business of dealership of auto spare parts under the name and style as 'Ankit Sales'. Ashwin used to supply the spare parts to the manufactures of two and four wheeler vehicles. It was contended that Ashwin used to take orders from the auto manufactures by visiting them. At the relevant time, the business had an annual turnover of about Rs.6 to 7 lakhs. It was contended that the plaintiff Kalyankumar intended to resign from his job and assist his son in the said business. It was thus, contended that the suit premises were reasonable and bonafide required by the plaintiffs.
5. It was next contended that defendants have changed the user of the suit premises as the room on the rear side was being used for storing utensils. Lastly, it was contended that the defendants have acquired alternate accommodation at 358, Central street and they have several other premises where they can shift their business. On all these grounds, the plaintiffs sought eviction of the defendants.
6. The suit was resisted by the defendants. It was contended that defendant Nos. 3 and 5 are not the partners of M/s.
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Sheshmal Dhiraji and as such, are not concerned with the suit premises. It was contended that only defendant Nos. 1, 2 and 4 are the partners of the said firm. All other adverse allegations about the alleged bonafide need of the plaintiffs, change of user by the defendants and securing of the alternate accommodation were denied. It was contended that the plaintiffs had earlier filed Civil Suit No. 3770 of 1972 for eviction on a similar ground of bonafide need, which suit was decreed. However, in appeal, the decree was set aside and suit came to be dismissed, which has been confirmed by this court. It was contended that the present suit is brought for similar relief on a different ground of need of son of the plaintiff. It was contended that the locality where the suit premises are situated is mostly having jwellery and other shops and there are no shops dealing with the business of auto spare parts in the said locality. It was contended that the premises are not suitable for the said business as the approach to the premises is through a narrow lane not allowing passage of heavy vehicles. It was contended that the plaintiff is storing the spare parts, in an attic, which can be extended if need be. It was contended that the premises at 358 Center street are tenanted and the defendants have filed a suit for eviction against the tenant. The first floor of the said building has collapsed and the same cannot be reconstructed. In short, it was contended that the Sneha Chavan page 5 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc said premises are not available to be occupied. The defendants pointed out that they have acquired goodwill in the jwellery business of more than 60 years and they would suffer grave hardship, if, evicted. It was denied that there was any change of user. It was contended that the rear room was being used for taking tea and meals and for sleeping at the night for security purpose.
7. On the basis of the rival pleadings, the learned Trial Court framed three issues.
8. The parties led oral and documentary evidence. The plaintiffs examined Kalyankumar Shah (PW-1) and Ashwin Shah (Pw-2). The defendant No.4 Amarchand Jain examined himself as DW-1.
9. The learned Trial Court answered all the issues in the negative and dismissed the suit by a Judgment and Decree dated 14.10.1994. Feeling aggrieved, the plaintiffs filed Regular Civil Appeal No. 12 of 1995 before the learned District Judge at Pune. The learned District Judge by a Judgment and Decree dated 14.10.1996 has dismissed the appeal. Hence, this petition.
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10. It may be mentioned that the Respondents have filed Interim Application No. 2396 of 2019 for production of additional documentary evidence on record, mostly on account of subsequent developments. The application is opposed on behalf of the Petitioners.
11. I have heard Mr. Shah, the learned counsel for the Petitioners and Mr. Godbole, the learned counsel for the Respondents both on the petition as well as Interim Application No. 2396 of 2019. With the assistance of the learned counsel for the parties, I have gone through the record.
12. It is submitted by Mr. Shah, the learned counsel for the Petitioners that the courts below are not justified in refusing to accept the case of reasonable and bonafide occupation as set up by the Petitioners. It is pointed out that the Appellate Court was in error in holding that it was unlikely for the plaintiff Kalyankumar to resign the job and to assist his son in his business. It is submitted that there was sufficient oral and documentary evidence produced to establish that the son of the plaintiff no.1 was engaged in the business of auto spare parts and he used to collect orders by visiting the auto manufactures and thereafter, supply the spare parts. It is submitted that thus, the need of petitioners was reasonable and Sneha Chavan page 7 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc bonafide and the courts could not have refused to accept the same on the ground that under the relevant Development Control Regulations (DC Regulations) the attic can be extended and used for storing of the spare parts. It is submitted that the need as envisaged under the Rent Act is not 'dire need' and landlord cannot be expected to make alterations/ extensions to his existing premises in order to satisfy the need for obtaining of the disputed premises for business. It is submitted that need of the landlord has to be judged with reference to the date of filing of the suit and the subsequent developments, if any, cannot have a bearing on the same as held by the Hon'ble Supreme Court in D. Shasi Kumar v/s. Soundararajan1 . It is submitted that notwithstanding the fact that the original plaintiff no.1 has since expired, the assessment of the ground of bonafide and personal need has to be made with reference to the date of filing of the said suit.
13. It is submitted that the courts below also erred in refusing to uphold the other grounds of eviction. The learned counsel submitted that the Appellate Court has not considered the ground of change of user and the tenant obtaining alternate premises. The learned counsel placed further reliance on the decision in Tukaram Keshav Davare & Ors. v/s. Babulal Motilal 1 (2019) 9 SCC 282 Sneha Chavan page 8 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc Oswal and Ors.2, Smt. Jayashree Vijaysingh Khalate v/s. Husenibhai Abdul Kadar Kayamkhani3, Anil Bajaj and Anr. v/s. Vinod Ahuja 4, Krishna Kumar Rastogi v/s. Sumitra Devi 5, Mohd. Ayub and another v/s. Mukesh Chand6, M/s. Musaji Mohamadali Master and Sons & Anr. v/s. Mr. Gulamali Dadabhai Amreliwala7, Rahabhar Productions Pvt. Ltd. v/s Rajendra K. Tandon8.
14. The learned counsel for the Respondents has supported the impugned judgment and order. It is submitted that the ground of reasonable and bonafide need has not been established on record. It is submitted that, in any event, the need does not subsist in view of the documents which are now sought to be placed on record by virtue of Interim Application No. 2396 of 2019. It is submitted that the locality where the suit shop is situated is mostly having jwellery shops and there are no shops of auto spare parts in the said locality. It is submitted that in any event, the son of the Petitioner No.1 was storing the spare parts till they are delivered to the various auto manufactures in the attic and there is no evidence to show that the business required any shop premises involving a counter sale of any such spare parts. It is submitted that the other grounds about 2 2018 SCC online Bom 6557 3 2017 SCC online Bom 3039 4 (2014) 15 SCC 610 5 (2014) 9 SCC 309 6 (2012) 2 SCC 155 7 2004 SCC Online Bom 1169 8 (1998) 4 SCC 49 Sneha Chavan page 9 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc change of user and the tenant having secured an alternate accommodation are also not established on record. It is submitted that the room on the rear is being used for refreshment and taking meals etc. and for the servants to sleep at the night as the same was required for security purposes. It is submitted that the Petitioners have failed to establish any of the grounds as set forth and no case for interference is made out.
15. I have considered the rival circumstances and the submissions made. According to the Petitioners, the suit premises were let out to M/s. Sheshmal Dhiraji, through its proprietor/vahivatdar Kapurchand Sejmal Jain. According to the Petitioners, M/s. Sheshmal Dhiraji is a Hindu undivided family firm of defendant Nos. 1 to 5.
16. On the contrary, according to the Respondents, the said firm is a registered partnership firm of which defendant Nos. 1, 2 and 4 are the partners. Further according to the Respondents, defendant Nos. 3 and 5 have no concern with the said firm. The Respondents have produced the copy of the registration of the firm which would indeed show that it is a registered partnership firm of which the original defendant nos. 1, 3 and 5 are the partners.
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17. Initially in the suit, the Petitioners had claimed that the suit premises, comprise of a shop. According to the Respondents , the suit premises comprise of a shop along with a room on the rear side. It has come in the evidence of Kalyankumar that Kapurchand had taken the premises for business cum residence. Indisputably, the Respondents are conducting a jwellery shop in the suit premises under the name and style as 'Sheshmal Dhiraji & Sons'.
18. I would first propose to deal with the ground of change of user. Insofar as the said ground of change of user is concerned, the case made out in the plaint is that the Respondents are not conducting the business of jwellery shop and room in the rear was kept vacant, in which they have stored some utensils. It was also claimed that the Respondents have started business in the said room which was for residential purpose which according to the Petitioners is the change of user.
19. On the contrary, it is the case of the Respondents that there is no business of utensils being conducted nor any utensils are stored in the room in the rear. The case is made out is that the said room is being used for taking tea, meals and during the night for sleeping for security purpose. There is no acceptable evidence to Sneha Chavan page 11 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc show that there is any change of user as claimed on behalf of the plaintiffs. There is nothing to show that the Respondents have changed the user of suit premises. On the contrary, there is acceptable evidence that still the Respondents are conducting the jwellery business in the shop and the room in the rear is being used as aforesaid as claimed on behalf of the Respondents. I do not find that the ground about the change of user can be accepted.
20. It was contended on behalf of the Petitioners that the Appellate Court has not considered the ground of change of user. I have gone through the judgment of the Appellate Court. The Appellate Court has considered the same in paragraph 13 and has held that the Petitioners have failed to prove that there is change of user of the suit premises. Be that as it may, on consideration of the pleadings and the evidence on record, the said ground in my considered view cannot be accepted.
21. This takes me to the ground of the reasonable and bona fide occupation by the Petitioners and the ground of the Respondents having secured an alternate accommodation. Before considering these two grounds, it is necessary to deal with Interim Application No.2396 of 2019 filed by the Respondents seeking to Sneha Chavan page 12 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc produce certain documents on record which are based on the subsequent events. The Petitioners have filed a reply to the said application to which the Respondents have filed an affidavit of rejoinder of Mr.Walchand Kapurchand Jain. At the outset it is necessary to note that there are certain disputed questions about the subsequent events, which have been sought to be brought on record by virtue of the said application and the reply. At the outset it is made clear that I am only proposing to consider the documents/circumstances which are either admitted or undisputed which have come on record by virtue of the said application, reply as well as the rejoinder. It is not possible to consider the other disputed aspects, much less in a petition of the present nature.
22. The Respondents by virtue of the said application claim that the Petitioners have obtained certain premises subsequently, which are as under:-
i) Purchase of flat No.7 at Kohinoor Classic, Bhavani Peth by Mr. Ankit Shah under an agreement of sale dated 03.02.2005.
ii) Purchase of shop No.21 'B' wing on the ground floor "Atur Terrace", Nana peth, by Mr. Ashwin Shah along with wife Smt. Tilka Shah under registered agreement dated 04.08.2006.
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iii) Purchase of shop No. 22 by Ashwin Shah at
Mehta Apartment at Bhavani Peth, Pune under an agreement of sale dated 31.08.2007.
iv) Purchase of office premises by Mr. Ankit Shah on the ground floor of a building known as 'Meera Madhav', for carrying on his profession as a Chartered Accountant.
v) Purchase of a flat at Nikhil Apartment, Salisbary Park, Pune by Mr. Ankit Shah.
vi) Acquisition of shop premises on rent by Mr. Ashwin Shah on the ground floor in the building Mehta Apartment, Bhavani Peth, Pune.
23. Insofar as the properties at Serial No.(i) and (v) are concerned they are residential flats and acquisitions of the same may not be relevant as the suit premises are a commercial shop premises.
24. Insofar as the office premises referred to at Serial No.
(iv) are concerned it has come on record by virtue of the reply that they are obtained by Ankit Shah who is a Chartered Accountant by profession and a partner with M/s.Ahuja and Valecha and those premises are obtained by M/s.Ahuja and Valecha on rent.
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25. Now in so far as the shop premises at Serial No.(ii), (iii) and (vi) are concerned, according to the Petitioners, the shop premises at serial No.(ii) and (iii) are used as a godown. Shop No.22 at Mehta Apartment is exclusively used for storing the products of BOSCH Company. There are two other shops bearing Shop No.1 and 12 in Mehta Apartment which are again claimed to be used as godown. The Petitioners however, admit that the Shop No.1 in Mehta Apartment is having a counter.
26. The learned counsel for the Petitioners has placed reliance on the decision of the Supreme Court in D.Shasi Kumar (Supra) in which the Supreme Court referring to its earlier decision in Gaya Prasad V/s. Pradeep Srivastava 9 has held that a landlord should not be penalized for the slowness of the legal system and the crucial date for deciding bona fide requirement of the landlord is the date of the application for eviction. Thus, in my humble view apart from the fact that two out of the six properties are residential and one is an office obtained by M/s.Ahuja and Valecha for carrying on their profession as a Chartered Accountant, the subsequent obtaining of the shop premises in Atul Terrace and Mehta Apartment 9 (2001) 2 SCC 604 Sneha Chavan page 15 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc by the Petitioners cannot enure to the benefit of the defence by the respondents.
27. It has come in the evidence that at the relevant time when the suit was filed in the year 1989, Ashwin who is the elder son of plaintiff No.1 Kalyankumar was aspiring for a degree in Mechanical Engineering which he subsequently obtained in the year 1992. In the year 1994 Ashwin has obtained a diploma in Marketing Management. The case made out is that, even while Ashwin was taking education, he had started business in auto spare parts and used to obtain orders by visiting the auto manufactures and used to give delivery at their site. It has also come on record that he was utilising the attic, on the third floor of the building, for storing the wheel rims about 400 to 450 in number. The said attic is about 125 sq.ft. in area. There is sufficient evidence on record in the form of registration under the Shop and Establishments Act (Exhibit-48), the copy of the registration under the Bombay Sales Tax Act (Exhibit-
49) and Central Sales Tax Act (Exhibit-50) and the documents at Exhibits-51,52 and 53, to show that Ashwin was the sole distributor of wheel rims manufacturer by Yoshika Engineering Pvt. Ltd., Chakan which he used to supply to Bajaj Auto. He was also a distributor of G.B. Rubber Products manufacturer of Metal pointed Sneha Chavan page 16 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc rubber products for Bajaj and Kinetic Honda and the distributor of electrical and electronic components. Thus, there is sufficient evidence on record to show that indeed Ashwin was in the business of dealership and supply of auto spare parts such as wheel rims and certain electrical products and components and he used to store the material to be delivered to the auto manufacturers, in the attic, on the third floor of the building. According to Ashwin he was both a retailer 'on small scale' and wholesaler/distributor. He claims in his evidence that he stopped retailing business because of 'difficulties'. It has further come in his evidence that his father was serving in the Bank and younger brother was studying and he was always required to be out for obtaining orders and for delivery. Thus,, his mother was the only member in the family, who was at home and it was difficult for her to handle every consumer of the goods, visiting the residential premises. It has come in the evidence that he personally used to collect the orders from market and deliver the spare parts accordingly. Precisely, on account of such a case made out, the Respondents claim that the Petitioners had no intention to start a retail business, which requires shop premises for effecting counter sale.
28. It appears that it is not disputed at this stage that the Petitioners have a flourishing business in auto spare parts. Even in Sneha Chavan page 17 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc the rejoinder filed on behalf of the Respondents, it is claimed in paragraph 7 that the Petitioners were only having distributorship of automobile spare parts and they do not require any shop. It is claimed that the business of the Petitioners as distributorship is lucrative and flourishing. However, the claim for reasonable and bona fide occupation is opposed on the ground that during the pendency of the Writ Petition, the Petitioners have acquired several commercial premises/shop premises, as well as residential flats as referred to above. I have already dealt with the said aspect and that contention cannot be accepted for more reasons than one First as indicated earlier some of this properties are residential in nature and one is obtained by partnership on rent of which the Petitioner 1C is a partner and the office premises are obtained by M/s.Ahuja and Valecha for carrying on their profession as Chartered Accountant. That apart as held by the Supreme Court in the case of D. Shasi Kumar (Supra) the bona fide requirement will have to be adjudged as on the date of the filing of the suit, as the landlord cannot suffer on account of the delay in disposal of the eviction claim.
29. It has clearly come on record that the suit premises which are situated on the Center Street/V.P. Road are commercial premises in which the Respondents are carrying on business of Sneha Chavan page 18 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc jewellery shop. The claim of the Petitioners is also opposed on the ground that the locality were the suit premises are situated are mostly having jewellery shops and some other shops and there are no shops dealing with auto spare parts in the said locality. Secondly, the claim is also opposed on the ground that the suit premises are situated in a narrow lane not allowing the passage of any heavy vehicles (which may be required for transport of the auto spare parts) and on the ground that the Petitioners have also obtained several alternate premises as indicated above and lastly on the ground that the Petitioners are only engaged in dealership and not retail sale requiring a shop with a counter. In my considered view none of these grounds can be accepted.
30. It is now well settled that the reasonable and bona fide need as envisaged under the Act, is not to be equated with a 'dire need'. It is further well settled that once the bona fide requirement is shown to exits which is not fanciful, the landlord is the best judge of the said requirement and the need of the premises. Neither the tenant nor the Courts can dictate as to how and in what manner the landlord should exercise such need and requirement. The Courts below in the present case have found that under the D.C. Regulations the attic (Where the Petitioners are storing the spare Sneha Chavan page 19 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc parts) can be extended. The learned counsel for thePpetitioners in my considered view is right, that the landlord cannot be expected to make alterations/extensions so as to satisfy his bona fide requirement.
31. The Courts below have also looked with suspicion on the claim of Kalyankumar (Since deceased) that he would resign his job with Bank of India so as to join his son in the business. This reasoning to my mind has become academic, on account of the subsequent death of Kalyankumar. However, in my considered view the claim of bona fide requirement has to be independently judged on the basis of the requirement of Ashwin for his auto spare parts business, the possibility of Kalyankumar joining the same, notwithstanding. Thus, the Courts below in my considered view were clearly in error in refusing to uphold the ground for the reason that Kalyankumar was unlikely to resign and join the business. The said reasoning to my mind cannot be sustained in view of the overwhelming evidence which shows that the Petitioner is indeed engaged in the business since prior to the date of the filing of the suit and was required to use attic of about 125 sq.ft. for storing the spare parts. The contention that the petitioners are not engaged in any retail business or not intending to start any retail business, also Sneha Chavan page 20 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc cannot be accepted, as it is for the Petitioners to decide as to in what manner the business is to be expanded/conducted.
32. This takes me to the ground based on the dismissal of the earlier suit of the year 1972. It is true in the year 1992 a suit was filed for eviction on the ground of bonafide occupation which was dismissed and that has been confirmed till this Court. It is necessary to note that the present suit was filed in the year 1989 that is after, about 17 years of the filing of the earlier suit inter alia on the ground of the bona fide need of the premises for the business carried out by Ashwin son of Kalyankumar.
33. It is trite that a ground of bona fide need would be a dynamic ground which will be susceptible to change from time to time. The said ground was obviously not available in the year 1972. Thus, in my considered view dismissal of the suit in the year 1972 cannot come in the way of the Petitioners. In such circumstances, the ground of bona fide personal need has to be sustained.
34. This takes me to the ground of the Respondents acquiring alternate accommodation. At the outset it is necessary to note that although the Petitioners by virtue of their reply to the Sneha Chavan page 21 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc Interim Application sought to bring on record, several other premises which have been obtained by the Respondents, during the pendency of the suit (which aspect is disputed by the Respondents in the rejoinder) I only propose to stick to the original ground as made out in the suit namely that the Respondents having certain premises at 358 Center Street. It appears from the pleadings and evidence on record that the only contention raised on behalf of the Respondents dealing with the ground of the Respondents having premises at 358 Center Street is that the said premises were tenanted to one Ibrahim Mohammed and a suit No.1506 of 1988 was filed against the said tenant. It has also come on record that in the said suit the ground that the Petitioners were seeking possession of the suit shop premises was also raised by the respondents seeking eviction of Ibrahim Mohammed Ali. At the relevant time when the present suit and the appeal were decided, the said suit No.1506 of 1988 was pending. It has come on record by virtue of the Interim Application as well as the reply and the rejoinder filed that the suit has been decreed and the possession was obtained from Ibrahim and a plan for construction of a building thereon is already submitted. The said premises at 358 Center Street were said to be about 900 sq.ft. In the rejoinder filed by Walchand Jain it is now contended that the said premises are owned by the defendant No.4 Amarchand Jain Sneha Chavan page 22 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc who has ceased to be a partner of M/s.Sheshmal Dhiraji. Thus, the factum of obtaining of possession of the said premises appears to be not disputed. The only contention is that those premises are owned by Amarchand, who has ceased to be a partner of Respondent No.1- Firm. In this regard it is necessary to note that the defence all along in the suit and the appeal is that the said premises were tenanted and were not available for being occupied by the partnership for its business. Even in the Interim Application no case is made out about obtaining of the possession from Ibrahim, much less about those premises being owned by Amarchand who has allegedly ceased to be the partner of the firm. The later case was for the first time made out in the rejoinder after the Petitioners brought on record in the reply to the Interim Application that possession of the said premises has been obtained.
35. I have carefully considered the rival circumstances in this regard and in my considered view, the Respondents cannot extricate themselves from the situation obtaining out of the possession of the premises at 358 Center Street on the ground of Amarchand having ceased to be a partner of M/s.Sheshmal Dhiraji. In fact it has all along been the case that the defendant Nos.1,2 and Sneha Chavan page 23 of 25 ::: Uploaded on - 12/05/2021 ::: Downloaded on - 12/05/2021 21:55:39 ::: wp 302-97-1.doc 4 were the partners of M/s.Sheshmal Dhiraji, the defendant No.4 being Amarchand.
36. Considering the overall circumstances even the ground of obtaining of alternate premises in my considered view needs to be sustained. Even on the ground of comparative hardship the same has to be answered against the respondents on the ground of the obtaining of the premises at 358 Center Street from the tenant.
37. In the aforesaid circumstances, the Petition is allowed. The impugned judgment and decree is hereby set aside. The suit filed by the Petitioners is decreed as prayed. Rule is made absolute in the aforesaid terms, with no order as to costs.
Interim Application is disposed of accordingly.
38. At this stage, the learned counsel for the Respondents seeks a stay of the present judgment, in order to enable the Respondents to consider further course of action.
39. Mr. Shah, the learned counsel for the Petitioners has opposed the prayer, on the ground that the suit pertains to the year 1989 and the claim for eviction is pending for more than 30 years.
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40. However, considering the present circumstances of the pandemic and the impugned decree being one of eviction and possession, the execution and effect of the present judgment is stayed for a period of three months.
C.V. BHADANG, J.
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