Bombay High Court
Santosh Alias Balu Dattatray Bhosale ... vs Jagdish Gopinath Malushte on 23 January, 2024
2024:BHC-AS:5385
901.wp.6220.2004.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6220 OF 2004
Santosh Alias Balu Dattatray
Bhosale And Ors. ...Petitioners
Versus
Jagdish Gopinath Malushte ... respondent
____________________________________
Mr. R. D. Suryawanshi for Petitioners.
Mr. Nikhil Wadikar a/w. Mr. Rohan Sawant, Mr. Sarthak Utangale,
Mr. Vedant Joshi i/b. Utangale & Co., for Respondent.
____________________________________
CORAM : RAJESH S. PATIL, J.
DATED : 23 JANUARY 2024
P.C.:
1. This Writ Petition is filed by original defendants
challenging the concurrent findings recorded by the Trial Court
and First Appellate Court, on the ground of bonafide requirement.
2. The Respondent/Landlord had filed a suit for eviction
as regards the suit premises, which is a shop at Ratnagiri city. The
suit was filed under the Bombay Rent Act for eviction on the
grounds of bonafide requirement, default in payment of rent and
premises is required for repairs. As far as bonafide requirement is
concerned, it was the case of the Respondent/Landlord that the
suit shop is required for conducting business of transport by the
wife of the Landlord. It was further submitted that the Landlord
was a truck driver.
Amol D. Nawale
901.wp.6220.2004.doc
3. The written statement was filed by Defendant No.4, 5 ,
6 and 7, and a separatewritten statement was filed by Defendant
No.2.
4. Evidence was led on behalf of the Plaintiff, by the
Plaintiff himself and one more witness was examined by the
Plaintiff. The Defendants chose not to enter into the witness box.
5. The Trial Court by judgment and decree dated 2 May
1998, decreed the suit on the ground of bonafide requirement.
Being dissatisfied with the judgment and decree passed by the
Trial Court, the Defendants filed an Appeal before the District
Court at Ratnagiri. The District Court Ratnagiri passed judgment
and decree dated 9 July 2004 dismissing the Appeal filed by the
Original Defendants and confirmed the eviction decree passed by
the Trial Court on the ground of bonafide requirement.
6. The present Writ Petition challenges the concurrent
finding recorded by the Trial Court and the District Court, on the
ground of bonafide requirement.
7. It was the case of the Plaintiff that he requires the suit
shop for the purpose of running the business. It was the further
case of the Plaintiff that the Defendant Nos.1 to 5 are running
business in different premises and not in the suit premises. It is
further stated that the Defendant No.6 is running business at
Mumbai and Defendant No.7 has a separate shop premises at Teli
Aali and also at Pethkilla in Ratnagiri City. Therefore, according to
the Plaintiff, there will be no hardship if eviction decree is passed
against the Defendants. Though Defendants filed their written
Amol D. Nawale
901.wp.6220.2004.doc
statements, they have come out with a case that the suit for
eviction against the Defendant Nos.6 and 7, as trespassers would
not be maintainable in the rent court. Therefore, the Trial Court
had no jurisdiction to entertain and decide the suit.
8. It has been recorded in the Appellate Court judgment
that the Defendant No.6 and 7 are the brothers of Original tenant
Dattatraya and their case was that Dattatraya was representing the
Joint Hindu Family. It is an admitted fact that the tenancy was
granted only in the name of Dattatraya. Therefore, if the
Defendant Nos. 6 and 7 have come before the Court as brothers of
Original Tenant Dattatraya, and tried to pay rent to landlord, at
the most their case would be after death of original tenant. Their
case would be that they fall under the definition of Section 5 (ii)
(c) of the Bombay Rent Act. In such a situation, the suit also
against the Defendant Nos. 6 and 7 would be maintainable under
the Rent Act.
9. The fact remains that the Defendants though have tried
to make submission as regards maintainability of the suit and
requirement of the landlord, it is a matter of record that the
Defendants did not enter into the witness box to prove their case.
In fact, written statement is filed only by the Defendant No.2, the
Defendant No.4 and the Defendant No.5 and Defendant No.6. Rest
of the Defendants have chosen not to file their written statements.
The fact that none of the Defendants have entered into the witness
box to prove their case, according to me, the case put forth by the
Defendants is not proved. The Plaintiff by examining himself has
put forth his case. Though the Plaintiff was cross examined by the
Amol D. Nawale
901.wp.6220.2004.doc
Defendants, nothing adverse could be proved against the Plaintiff.
10. There are no reasons shown to entertain the
concurrent findings recorded by both the courts below on bonafide
requirement.
11. The present petition must fail and is dismissed. No
cost.
(RAJESH S. PATIL, J.)
Amol D. Nawale
