Sau. Usha W/O Kailash Khandelwar vs Tirupati S/O Ramrao Satyanarayan
2023 Latest Caselaw 2132 Bom

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

                                  WRIT PETITION NO. 239/2023

                               Usha w/o Kailash Khandelwar
                                             Vs.
                           Dr. Tirupati s/o Ramrao Satyanarayan

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. N.D. Khamborkar, Advocate for petitioner
                                  Mr. Kalyan Chiwankar, Adv. h/f Mr. Anand Parchure, Advocate for
                                  Respondent


                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 3rd MARCH, 2023

The petition challenges the judgment and decree dated 28/04/2015 passed by the Jt. Civil Judge, Junior Division, Ballarpur, granting a decree for eviction on the ground of bonafide need, which decree has been confirmed by the learned appellate Court in Regular Civil Appeal No.77/2015, by dismissing the appeal by its judgment 31/12/2021. It is contended by Mr. Khamborkar, learned counsel for petitioner that the need pleaded by the respondent / plaintiff for the suit shop No.2 is illusory and there is no material placed on record to substantiate the need and therefore, the impugned judgments are required to be quashed and set aside.

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2. The learned counsel for the respondent substantiates the plea for bonafide need submitting that the need pleaded by the respondent who was the doctor by profession so also the daughter and son-in-law of the respondent, who are also doctors and the intention to construct multi-specialty hospital in place of the old dilapidated Jyoti Nursing Home admeasuring 3600 sq.ft. was established on record by examining the respondent as well as his daughter Jyoti, who has supplemented the plea of bonafide need. He submitted, that on the contrary, the petitioner has not entered into the witness box at all. She has examined one Mahendra Khandelwal, as her power of attorney and in absence of the relationship between the petitioner and the said Mahendra Khandelwal (DW1) it has not been brought on record that the attorney has any personal knowledge about the affairs and business of the petitioner and therefore, his evidence could only be treated as that of a witness on behalf of petitioner / defendant and not otherwise. He further submits, that already sanction for the construction of a multi- specialty hospital stood granted by the Ballapur Municipal Council. All other tenants in the property in which shop No.2 was situated had already vacated and the construction already stood demolished, which would substantiate the plea of 3 914-wp-239-23.odt

bonafide need of the respondent and therefore, petition needs to be dismissed.

3. The entire property is admeasuring 3600 sq.ft. situated in Survey No.32/1 Ballarpur, in which there was an old Chawl constructed comprising of various units, out of which shop No.2, admeasruing 300 sq.ft., was let out to the petitioner. The impugned judgments indicate that the entire Chawl, being in dilapidated condition, the other tenants have already vacated and rest of the portion has already demolished, which position has also been admitted by Mr. Khamborkar, learned counsel for the petitioner. All that is standing there, is shop no.2. Even the condition of shop no.2 is not good as is indicated from the findings rendered by the trial Court in para 33 (page 62) of its judgment in which it is recorded that even the petitioner / defendant, had filed an application at Exh.145, for repairing of the roof of the shop in which application it is also mentioned that the suit shop was not in a good condition.

4. Insofar as the bonafide need is concerned, the plaintiff has examined himself as well his daughter. The plaintiff is doctor by profession, daughter of plaintiff Smt. Jyoti is also doctor by profession and both have asserted to the need of premises for constructing of a multi-speciality 4 914-wp-239-23.odt

hospital. It is also averred that the son-in-law of the respondent, who is presently attached to Shankara Netralaya, Banglore is also willing to shift to Ballarpur, for rendering his services at the multi- specialty hospital proposed to be constructed. It has also been brought on record that the plan for construction of the multi-specialty hospital (Exhs.19 and 20) have already been sanctioned by the Municipal Council, Ballarpur vide their permission which is at Exh.21, which position is also not disputed by Mr. Khamborkar, learned counsel for the petitioner. The need therefore, on the part of the plaintiff / respondent is manifest on record.

5. As against this, the petitioner for the reasons unknown has not entered the witness box. She has examined one Mahendra Khandelwal, as her witness at Exh.85. However, it is not spelt out as to what relation the said witness had with her or with her business, so as to indicate any knowledge with the said attorney regarding the suit premises, considering which the evidence of Mahendra can only be treated as that of a witness which has rightly been so done by the Courts below. The evidence of Mahendra Khandelwal, as discussed by the Courts below relates to the amount of medicine which used to be taken by the respondent / tenant, price of which used to be adjusted against the rent, and 5 914-wp-239-23.odt

therefore, is not of much assistance on the point of bonafide need. The petitioner / tenant has also examined DW 2 Katramma and DW 3 Brijeshkumar on the point of proving the bank statement which have already admitted by the respondent / landlord. DW 4 Odelu and DW 5 Indira have been examined by the petitioner for proving the medical bills, which also have been admitted by the respondent / landlord as recorded by the learned Trial Court in para 19 (page 56) of the impugned judgment and therefore, evidence of these witnesses also does not reflect any light upon the plea of bonafide need. The evidence of DW 6 Rajesh is for proving the power of attorney in favour of Mahendra. Thus, a perusal of the evidence of DW 1 as tendered across by the learned counsel for the petitioner, does not indicate any relationship between the witness and the defendant of any nature whatsoever, business-wise or otherwise to indicate any knowledge attributable to him regarding the business of the petitioner, so as to enable him to give evidence on behalf of the petitioner.

6. The learned Appellate Court, has also rightly considered the evidence on the record and after considering the need of the respondent, for constructing multi-specialty hospital and the willingness of PW 2 Jyoti and her husband to join 6 914-wp-239-23.odt

the respondent / landlord in running the same, in my considered opinion has rightly confirmed the permission granted on the ground of bonafide need. The question of comparative hardship, in the present context, when the need is demonstrated for the entire premises for the multi-specialty hospital would clearly tilt in favour of the respondent / landlord and therefore, I do not find any reason to interfere in the impugned judgments, insofar as it grants permission for eviction on account of bonafide need.

7. Insofar as the decree for arrears of rent is concerned, the learned counsel for the respondent, upon instructions, makes a statement, that the same would not be executed for which he intends to place on record the pursis under the signature of respondent, considering which list the petition on 8th March, 2023.

JUDGE

MP Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:03.03.2023 17:14