Bombay High Court
Dayanand Dr. Hasanand Garhwani ... vs Ramesh Tadaram Advani on 2 March, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2185/2012
1. Nankibai Dr Hasanand Garhwani,
aged about 82, Occu. Household. ..Deleted.
2. Dayanand Dr Hasanand Garhwani,
aged about 46, Occu. Business.
3. Chamatkar @ Sunil Dr Hasanand
Garhwani, aged about 44,
Occu. Business.
4. Gyanchand @ Anil Dr. Hasanand
Garhwani, aged 40, Occu. Business.
All R/o Wardha, Tahsil and
Distt. Wardha. ..Petitioners.
..Vs..
Parmanand Toumal Adwani,
aged 72 Yrs., Occu. Business,
R/o Main Road Wardha,
Tah. & Distt. Warhda. ..Respondent.
AND WRIT PETITION NO.2189/2012
1. Nankibai Dr Hasanand Garhwani,
aged about 82, Occu. Household. ..Deleted.
2. Dayanand Dr Hasanand Garhwani,
aged about 46, Occu. Business.
3. Chamatkar @ Sunil Dr Hasanand
Garhwani, aged about 44,
Occu. Business.
4. Gyanchand @ Anil Dr. Hasanand
Garhwani, aged 40, Occu. Business.
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All R/o Wardha, Tahsil and
Distt. Warhda. ..Petitioners.
..Vs..
1. Holaram Hardasmal Chainani,
aged 50 Yrs., Occu. Business.
2. Madhao Hardasmal Chainani,
aged 45 Yrs., Occu. Business.
3. Ramesh Hardasmal Chainani,
aged 43 Yrs., Occu. Business.
4. Chohithram Hardasmal Chainani,
aged 48 Yrs., Occu. Business.
All R/o Main Road, Wardha,
Tah. & Distt. Wardha. ..Respondents.
AND WRIT PETITION NO.2187/2012
1. Nankibai Dr Hasanand Garhwani,
aged about 82, Occu. Household. ..Deleted.
2. Dayanand Dr Hasanand Garhwani,
aged about 46, Occu. Business.
3. Chamatkar @ Sunil Dr Hasanand
Garhwani, aged about 44,
Occu. Business.
4. Gyanchand @ Anil Dr. Hasanand
Garhwani, aged 40, Occu. Business.
All R/o Dayal Nagar, Wardha,
Tahsil and Distt. Warhda. ..Petitioners.
..Vs..
Ramesh Tadaram Advani,
aged 53 Yrs., Occu. Business,
R/o Main Road, Wardha,
Tah. & Distt. Wardha. ..Respondent.
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AND WRIT PETITION NO.2190/2012
1. Nankibai Dr Hasanand Garhwani,
aged about 82, Occu. Household. ..Deleted.
2. Dayanand Dr Hasanand Garhwani,
aged about 46, Occu. Business.
3. Chamatkar @ Sunil Dr Hasanand
Garhwani, aged about 44,
Occu. Business.
4. Gyanchand @ Anil Dr. Hasanand
Garhwani, aged 40, Occu. Business.
All R/o Wardha, Tahsil and
Distt. Warhda. ..Petitioners.
..Vs..
Laxmandas Shaukatmal Adwani,
aged 55 Yrs., R/o Main Road, Wardha,
Tah. & Distt. Wardha. ..Respondent.
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Ms. A.R. Khare, Advocate for the petitioners.
Shri S.V. Purohit, Advocate for the respondent. (..in W.P. Nos.2185/2012 & 2187/2012)
Ms. A.R. Khare, Advocate for the petitioners.
Shri R.L. Khapre, Advocate for respondent No.2. (..in W.P. No.2189/2012)
Ms. A.R. Khare, Advocate for the petitioners.
Shri R.L. Khapre, Advocate for respondent. (..in W.P. No.2190/2012)
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CORAM : Z.A.HAQ, J.
DATE : 2.3.2017.
ORAL JUDGMENT
1. Heard Ms. A.R.Khare, Advocate for the petitioners / landlords, Shri
S.V. Purohit, Advocate for the respondents / tenants and Shri R.L. Khapre,
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Advocate for respondents / tenants in respective petitions.
2. Rule. Rule made returnable forthwith.
3. These four petitions are filed by the landlords challenging the
judgment and decree passed by the learned Principal District Judge by which
the appeals filed by the respondents / tenants in respective cases are allowed,
the judgment and decree passed by the trial Court is set aside and the civil suits
filed by the landlords praying for decree of eviction on the ground of bona fide
need is dismissed.
4. The landlords claimed decree for eviction on the ground that four
blocks occupied by four tenants are required for bona fide use of the landlords
to run their business. Undisputedly, the tenants are running their businesses in
the blocks in question.
The trial Court after exhaustively considering the evidence on the
record concluded that the landlords have proved the case and granted decree.
On appeal by the tenants, the judgment and decree passed by the trial Court is
set aside.
5. It is undisputed that the plaintiff Nos.2, 3 and 4 / real brothers
(landlords) are carrying on their business in rented premises. The contention
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on behalf of the tenants is that the landlords have not been able to show that
there is a threat of their eviction from their landlords. According to the
tenants, the landlords pleaded that the suit premises are required for residence
and for carrying on business, however, the blocks cannot be used for residence
for want of necessary amenities for residence. It is further contended that the
landlords are having another building at a distance of about two kilometers
and in that area also commercial activities are carried on and, therefore, the
landlords can shift to those premises for carrying out their business.
The learned Principal District Judge accepted the contention of the
tenants to the effect that there is no threat of eviction to the plaintiffs from the
rented premises where they are carrying on their business and, therefore, need
as pleaded by the plaintiffs is not genuine. The learned Principal District
Judge has recorded that the landlords have pleaded that four blocks in question
are required for residence and for carrying on business, that the four blocks
cannot be used for residential purposes unless building is converted into a
residential cum shopping complex by constructing a new building after
demolishing the existing building and the plaint is silent about such intention
or purpose.
6. Shri S.V. Purohit, learned Advocate for the tenants has submitted
that the pleadings on behalf of the landlords are not sufficient to enable the
Court to grant decree in favour of the landlords on the ground of bona fide
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requirement. The learned Advocate has relied on the judgment given in the
case of National Textile Corporation Ltd. V/s. Nareshkumar Badrikumar Jagad &
Ors. reported in AIR 2012 SC 264 and the judgment given in the case of
Vasant Mahadeo Gujar V/s. Baitulla Ismail Shaikh and another reported in 2015
(5) ABR 415.
Shri R.L. Khapre, Advocate for the other tenants has submitted that
the landlords have failed to establish that greater hardships would be caused to
them if decree for eviction is not granted and to substantiate the submission,
reliance is placed on the material which is brought on the record in cross-
examination of plaintiff's witness No.1 that the landlords have another building
at a distance of about 2 kilometers and around which commercial activities are
carried out.
7. After examining the material placed on the record of the writ
petitions and going through the judgment passed by the subordinate Courts, I
find that the learned Principal District Judge has committed an error by setting
aside the judgment and decree passed by the trial Court. It is admitted fact
that the plaintiff Nos.2, 3 and 4 (landlords) are carrying on their business in
rented blocks. It is well settled that landlord is the best judge to assess his
need. Neither the tenant nor the Court can dictate the landlord to carry on his
business in a rented premises and deny possession of his own premises
occupied by the tenant. The learned trial Judge had properly considered all
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the aspects and had rightly granted the decree for eviction. The learned
Principal District Judge has not exercised his jurisdiction as an Appellate Court
to examine the legality of the judgment passed by the trial Court but has acted
as an Appellate Authority over the bona fide need of the landlords which is not
permissible. The learned trial Judge having considered rightly all the relevant
aspects the learned Principal District Judge should not have interfered with the
judgment and decree, without recording that the judgment passed by the
learned trial Judge suffered from any perversity, that any relevant and material
evidence was not considered or any evidence is wrongly considered. As the
landlords want to shift their business from rented premises to their own
premises it has to be held that if decree for eviction is not granted, the
landlords will suffer greater hardships. Except for arguing that the trial Court
had not considered this aspect, the tenants have not been able to show that
they have attempted to secure alternate accommodation and inspite of their
efforts they have failed.
The judgments relied upon by the learned Advocate for the tenant
do not assist the tenants, in the facts of the present cases.
In view of the above, I find that the judgment and decree passed by
the District Court is required to be set aside and the judgment and decree
passed by the trial Court has to be restored.
Hence, the following order:
(i) The judgment and decree passed by the Principal District Judge in
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Regular Civil Appeal Nos.105/2009, 106/2009, 125/2009 and 178/2009 on
22nd March, 2012 are set aside.
(ii) The judgment and decree passed by the trial Court in Regular Civil
Suit Nos.196/2003, 195/2003, 198/2003 and 197/2003 on 22nd March, 2010,
23rd February, 2009, 19th August, 2009 and 7th March, 2009 respectively are
restored.
Rule made absolute in the above terms.
In the circumstances, parties to bear their own costs.
At this stage, the learned Advocates for the tenants requested that
this judgment be kept in abeyance for three months. However, in the facts of
the present cases, I am not inclined to consider the request. The request is
rejected.
JUDGE
Tambaskar.
