Smt. Gunawanti Vijay Oswal vs Smt. Shashikala Vilasrao Paygude
2022 Latest Caselaw 6087 Bom

      IRESH SIDDHARAM   Digitally signed by IRESH
                        SIDDHARAM MASHAL
      MASHAL            Date: 2022.07.02 11:04:06 +0530




                                                                                 26.264.22 cra.doc

ISM
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                          CIVIL REVISION APPLICATION NO. 264 OF 2022

         SMT. GUNAWANTI VIJAY OSWAL                                              ....APPLICANT

                  V/s.

         SMT. SHASHIKALA VILASRAO PAYGUDE                                        .....RESPONDENT

         Mr. Tejas D. Deshmukh Advocate for Applicant

                                                 CORAM :   NITIN W. SAMBRE, J.

                                                 DATE:     JUNE 30, 2022.

         P.C.:

         1)       Heard Mr. Deshmukh, counsel appearing for the Applicant-

tenant. Suit for eviction being R.C.S. No. 171/2012 came to be

decreed on 20/07/2015. Said Judgment was confirmed in Appeal

being RCA No. 459/2015 passed by learned District Judge, Pune. As

such, this Revision.

2) Contentions of counsel for the Applicant are, Suit premises

were occupied by partnership firm which fact was well within the

knowledge of Plaintiff-land lady. In the aforesaid background,

partnership firm so also all the partners were necessary party to the

Suit. His next claim in the Revision is, that the cause of bonafide

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need is not properly established as but for oral evidence and the

licence under The Maharashtra Shops and Establishment Act of the

son of the Plaintiff, other relevant material is not brought on record.

3) If the aforesaid submissions are appreciated, fact remains that

Plaintiff has come out with a case that present Applicant was not

tenant in the Suit premises whereas Applicant is claiming that it was

partnership firm who was carrying out business in the suit premises.

4) Once the Plaintiff has discharged its initial burden by

establishing that the Applicant was tenant, burden shifts on the

Applicant to prove that partnership firm was tenant in the Suit

premises which the Applicant has failed to.

5) Apart from above, oral evidence of land lady so also other

material on record in the form of licence of the shop of son of

Respondent Plaintiff so as to demonstrate that he is carrying out

business is sufficient enough to establish that son of the land lady

was carrying out business and he was in bonafide need of the

premises which are in possession of the Applicant.

6) In the afoersaid background, I hardly see any reason which

warrants interference in the concurrent findings recorded by both the

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Courts below.

7) At this stage, in response to Court's query, counsel for the

Applicant-Judgment Debtor submits that Applicant, if granted time

of 6 months to vacate the Suit premises, he shall surrender vacant

possession.

8) To the aforesaid extent, issue notice to Respondents, returnable

on 14/07/2022.

9) In addition to court notice, applicant is at liberty to serve the

respondent by registered post A.D./Speed post and file affidavit of

service to that effect before the returnable date.

10) If the service is not completed within stipulated period,

Applicant will cease to have any relief on the aforesaid issue.

11) Mr. Deshmukh assures that on the next date, he shall furnish

an undertaking of the Applicant that the Suit premises shall be

handed over to Decree Holder by 31/12/2022 in proper condition and

during such period, he shall not be creating any third party interest,

charge and tenancy in the Suit property.

[NITIN W. SAMBRE, J.]