Shri. Shyamsundar Chandmal ... vs Shri. Gulabraoji Tukaramji Maske
2016 Latest Caselaw 3457 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR




                                                                                               
                                                                    
                     CIVIL REVISION APPLICATION NO. 20 OF 2016


                Shri Shyamsundar Chandmal Zanwar,




                                                                   
                aged about 67 years, Occ. Business,
                R/o. Ram Mandir Ward, Main Road,
                Bhandara.                                                      APPLICANT
                                                                               Org. Deft.




                                                  
                                        ...VERSUS...
                             
             Shri Gulabraoji Tukaramji Maske,
             aged about 85 years, Occ. Jeweler,
             R/o. Narkesari Ward, Bhandara.                          RESPONDENT
                            
                                                                       Org.Pltff.
     -------------------------------------------------------------------------------------------
     Shri K.B.Zinjarde, Advocate, for Applicant
     Shri P.S.Chawhan, Advocate for Respondent 
      

     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE :29 JUNE, 2016 .

ORAL JUDGMENT

1] On 9th March, 2016, this Court had passed an

order as under;

"Heard Shri Zinjarde, the learned counsel appearing for the applicant-tenant. He submits that the need putforth was of the grandson of the non-applicant/ landlord, but neither the grandson nor his father has entered the witness-box to depose that they intend to start the business of jewellery. The lower Appellate Court has acted upon the so-called admission in para 28 of its judgment about existence of alternate accommodation available to the applicant-tenant. The learned counsel further submits that there is no such admission given by the applicant-tenant.

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Issue notice for final disposal of the matter, to the non-applicant, returnable on 4-5-2016.

In the meantime, there shall be stay to the execution of the decree".

The respondent has appeared in response to the notice of

this Court.

Admit.

Heard finally by consent of the learned counsels

appearing for the parties.

2] Both the Courts below have recorded concurrent

finding that the bonafide requirement has been established

by the landlord. Shri Zinjarde, the learned counsel for the

applicant submits that the landlord is aged about 85 years

and the need put forth is of the grand son, who is presently

taking education. Neither the son nor the grand son has

entered the witness-box to depose the requirement by

subjecting themselves to cross examination. He has invited

my attention to the provision of Section 114, illustration (g) of

the Evidence Act, which states that the evidence which could

be and is not produced would, if produced, be unfavourable

to the person who withholds it. According to him, in view of

the non examination of son or the grand son, an adverse

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inference is required to be drawn as contemplated by the

said provision.

3] It is obvious that the respondent is the owner of

the suit property and doing the jewellery business. The shop

block in question is adjacent to the business shop which is

being run by the respondent-landlord. The requirement is for

expansion of the family business, which is being run by the

respondent and the connected business by the son. The

plaintiff has entered the witness-box and has stated that the

grand son has completed the education and would be

engaged in the business.

3] In view of the findings of fact recorded by the

Courts below, no jurisdictional error is made out. The

revision application is dismissed.

4] At this stage, Shri Zinjarde, the learned counsel

appearing for the appellant after taking instructions from the

appellant, who is personally present before this Court, makes

a statement that if a period of three months is granted, the

appellant shall undertake to vacate the suit premises.

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In view of this, the appellant is granted time upto

30th September, 2016, to vacate the premises, subject to

filing an undertaking to that effect within a period of two

weeks from today. If such undertaking is not furnished, the

executing Court shall proceed to execute the decree.

                              ig                                      JUDGE
                            
     Rvjalit