M/S. Sheshmal Dhirji vs Mr. Kalyan Ratanchand Shah Decd ...
2021 Latest Caselaw 7449 Bom

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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

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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.

      Sneha Chavan                                                       page 2 of 25



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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

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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.

      Sneha Chavan                                                   page 4 of 25



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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

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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.

      Sneha Chavan                                                     page 6 of 25



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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

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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

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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

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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.

    Sneha Chavan                                                         page 10 of 25



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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

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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

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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.

    Sneha Chavan                                                      page 13 of 25



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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.

    Sneha Chavan                                                       page 14 of 25



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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

    Sneha Chavan                                                     page 24 of 25



                                                         wp 302-97-1.doc

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.

    Sneha Chavan                                                page 25 of 25