JUDGMENT
S.C. Dharmadhikari, J.
1. This petition under Article 227 of the Constitution of India is directed against the judgment and order dated 10-2-1987 in Civil Appeal No. 65 of 1984. The judgment under challenge affirms the decree in Regular Civil Suit No. 323 of 1979 dated 27-6-1983 of IInd Joint Civil Judge, J.D., Dhule.
2. The proceedings are under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short the Bombay Rent Act). The petitioners are original plaintiffs whereas respondents are original defendants. The suit property is C.T.S. No. 1893 and 1824 belonging to the petitioners.
3. It is common ground that respondents are tenants of the ground floor premises which consists of three rooms, ota and godown. It appears that initially two rooms and godown was let out to the father of the respondents. The rent was fixed at Rs. 100/- per month. Then the third room was also let and monthly rent was increased to Rs. 160/-. In April, 1979, respondent took one more room adjacent to his premises from one Dekhabhai and claimed tenancy over it. The rent of the said room was fixed at Rs. 50/- per month. Thus, the respondent became tenant of the whole premises at Rs. 210/- per month.
4. There is no dispute that respondents run a shop under the name of Bhairulal Nandkishor and Company in the suit premises.
5. Regular Civil Suit No. 323 of 1979 was laid in the Court of IInd Joint Civil Judge, Junior Division on 17-8-1979 by the petitioners. The allegations in the plaint are that respondents have carried out permanent alterations in the suit premises by affixing doors at the brink of the ota and thus converted ota portion in a room. It was also alleged that respondents have damaged ceiling portion of the premises. In substance, petitioners invoked Section 108(O) of the Transfer of Property Act, 1882. Another ground put forward was that respondents were in arrears of rent and education cess since 1-6-1967 at the rate of Rs. 160/- per month till 30-4-1979 and for additional room from 1-5-1979 at Rs. 50/- per month. This amount was demanded but respondents did not pay the same. Hence, a notice was issued but respondents forwarded only Rs. 4600/- and thus they are defaulters.
6. It was alleged that respondents are running business in the name of Bangad Traders in Uday building bearing C.T.S. No. 4747 at Dhule. This Uday building is permanent construction and respondents can very well conduct their business from these premises. It was contended that the respondents are not in need of the suit premises for their business. Instead, they have inducted other persons in these premises and thus there is sub-letting and profiteering on their part.
7. It was alleged that petitioner No. 1 Govardhandas was previously serving in Maharashtra Vegetables. His services were terminated on 1-1-1979. It was pleaded that petitioners No. 1, 2 and 4 want to run some business and for which they have no premises. They are in need of the premises for their business. It is alleged that southern portion of the suit property is in possession of petitioner No. 3 and he has a separate shop in the same. It is alleged that rest of the petitioners are not on cordial terms with Hukumchand. They want to start a separate business.
8. On the aforesaid grounds, the relief of possession of the suit premises along with damages in lieu of rent was claimed by the petitioners.
9. Respondents appeared in response to the suit summons. They filed a written statement at Exhibit 25. They denied that petitioners have got no business of their own. It was also denied that respondents do not conduct any business in the suit premises. On the other hand, respondents are in possession of the suit premises since last 30 years as tenant and they deal as grain merchant and commission agent and Pakka Adtya in various commodities. It was specifically contended that respondents have total turnover of Rs. 2 crores and are having very prosperous business. After tracing the events leading to creation of tenancy rights in their favour, respondents denied that they have carried out any alterations or caused damage to the suit premises. They denied that they are defaulters inasmuch as rent upto date has been paid. There was some adjustment pleaded about quantum of rent. It was contended that C.T.S. No. 4747 is located in residential area and there is no shop of foodgrains in the locality. It was denied that the respondents are carrying business from the same. It was contended that the premises (in C.T.S. 4747) are not suitable for business nor are the respondents carrying any business from the premises. The requirement of the petitioners was denied. It was contended that petitioners want to dispose of property C.T.S. 1824 after getting possession. The allegations of sub-letting were denied.
10. It was contended that petitioners have more than sufficient premises in their possession. On the other hand, respondents are in need of the premises. They have acquired goodwill from the business conducted therein. They will be put to greater hardship in case of eviction. For all these reasons, it was submitted that the petitioner’s suit be dismissed with costs.
11. In view of the pleadings, trial Court framed necessary issues vide Exhibit 26.
12. Insofar as the findings of arrears of rent and default, permanent construction and sub-letting, petitioners are accepting the judgment and decree of the Courts below. They are not claiming eviction on these grounds. The only ground pressed is reasonable and bona fide requirement of the petitioners qua the suit premises. Arguments have been canvassed before me by learned Counsel for both sides only on this issue. All other grounds for eviction have thus been given up by the petitioners.
13. On the point of reasonable and bona fide requirement in respect of the business premises, trial Court framed Issue No. 6. Issue No. 7 was with regard to hardship. Issue No. 6 was answered in the negative by holding that petitioners have failed to prove that they require the suit premises reasonably and bona fide for personal occupation and for business. On the issue of hardship (Issue No. 7), the trial Court held that it does not survive but assuming it survives, greater hardship would be caused by passing a decree for eviction rather than by refusing to pass it. These findings of the trial Court are affirmed by the lower appellate Court. They survive for my consideration.
14. Shri Agrawal, learned Counsel appearing for the petitioners, contended that the Courts below have erred in recording a finding against the petitioners on the issue of reasonable and bona fide requirement in respect of the suit premises. He submits that the findings are vitiated by error apparent on the face of record inasmuch as Courts below have approached the said issue by ignoring mandate of Section 13(1)(g) of the Bombay Rent Act. He submits that whenever need is put forward of such premises, then the Courts are required to consider as to whether the same is genuine, reasonable and bona fide. This aspect has to be considered on the touchstone of the requirement of the landlord. In other words, it is for the landlord to decide as to how he wants to conduct his business and he is sole judge of the same. It is not open for the tenant to suggest that the landlord can very well conduct his business from other premises or in some other manner or modify it suitably so as not to cause eviction of the tenant from business premises.
15. Shri Agrawal submits that in the plaint, it has been specifically contended by the petitioners that petitioner No. 1 has been terminated from the services by M/s Maharashtra Vegetables. Therefore, petitioners No. 1, 2 and 4 have to carry on some business. They have no place for doing so. They have contended that the relations between the petitioners No. 1 to 4 are not cordial. Even the wives are not getting along with each other. Petitioner No. 2 and 3 are married. Petitioner No. 2 has one daughter. Petitioner No. 4 has stopped his education. Since four years he has no job. He also wants to do some business. Petitioner No. 2 has some experience in the business of commission agency, etc. Insofar as petitioner No. 3 Hukumchand is concerned, he has set up independent business from C.T.S. No. 1843 (front portion of southern side in the premises admeasuring 11×18) in the name and style of Gajanan and Company. It is an adat shop. The market licence is also standing in his name. Municipal records also depict only the name of petitioner No. 3. Thus, petitioner No. 3 Hukumchand has made arrangement for his shop and conducting a business therefrom. He has also managed a godown for himself. However, no arrangement has been made for any business premises or godown insofar as petitioners No. 1, 2 and 4. Since the needs of the family are increasing, it is necessary that petitioners to do some business and, for that purpose, they require the suit premises. According to Shri Agrawal, this pleading is enough for the purpose of demonstrating reasonableness of the requirement. It is genuine and bona fide as well. It is pointed out additionally that respondents orally assured that suit premises would be vacated by them but no compliance was made of such assurance and thereupon notice dated 6-7-1979 was addressed terminating their tenancy rights.
16. It is pointed out that the respondents are deliberately and with ulterior motives avoiding vacating the promises. They have premises at C.T.S. 005 (near Prabhakar Talkies) admeasuring 14×15. It is in these circumstances that the premises were claimed.
17. Shri Agrawal invites my attention to para 5 of the written statement where it is stated thus :
The defendants state and submit that the defendants are in possession and occupation of the premises CTS No. 1843 and 1824/2 qua a tenant since about last 30 years. The defendant deal as grain merchants, commission agent and pakka adatiya as well in various commodities, such as oil cake, rice, wheat, jaggery, bajara, gram-dal, etc. The defendants have got total turnover of about Rs. one to two crores per year, which evidences the huge extent of business and the corresponding need for the sufficient premises. The defendants have got very prosperous business and even the younger generation of defendants is likely to multiply the existing business.
18. In para 13 of the written statement, paras 9, 10 and 11 are dealt with but there also it is not denied that property C.T.S. 4747 is belonging to the respondents. Insofar as para No. 12 of the plaint is concerned, the written statement proceeds to only deny the assertion and further statement that petitioners intend to dispose of premises C.T.S. 1824 after recovering possession from the respondents for a huge price. Respondents are raising an issue in this para about enhancement of rent and as to how petitioners have got more than sufficient premises in their possession.
19. Shri Agrawal submits that apart from contending that the plea of alleged bona fide and reasonable requirement is only excuse for evicting the respondents, there is no denial of the averments contained in para 12 of the plaint. It is contended by respondents that previously substantial and sufficient portion was in actual physical possession and enjoyment of the petitioners. It is contended that claim for bona fide and reasonable requirement is false, fictitious and frivolous. No additional premises are required is the last contention in this para of the written statement.
20. Inviting my attention to the pleadings, Shri Agrawal contended that neither is the requirement denied nor is it stated that it is not bona fide and reasonable. He submits that this being the state of pleadings, the Courts below could not have answered the issue in the negative. The findings are, therefore, vitiated by errors apparent on the face of record. It could also be safely termed as perverse.
21. In support of his contentions, Shri Agrawal places strong reliance upon decisions of the Hon’ble Supreme Court reported in Smt. Ramkubai since deceased by L.Rs. and Ors. v. Hajarimal Dhokalchand Chandak and Ors., AIR 1999 SC 3089; Akhileshwar Kumar and Ors. v. Mustaqim and Ors., AIR 2003 SC 532; Dwarkaprasad v. Niranjan and Anr., 2003(4) Mh.L.J. (SC) 226 = AIR 2003 SC 2024; Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada, AIR 2003 SC 2713; Raghunath G. Panhale (dead) LR.s v. Chaganlal Sundarji and Co., AIR 1999 SC 3864; Savitri Sahay v. Sachindanad Prasad, AIR 2003 SC 156; Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkune and Anr., 1999(2) Mh.L.J. (SC) 793 = AIR 1999 SC 2226.
22. Shri Agrawal submits that once the aforesaid aspects become clear then applying the principles laid down in the aforesaid decisions, this Court should exercise its powers and quash and set aside the impugned orders. He submits that merely because one of the plaintiffs is assisting the other in the business, it does not mean that for establishment of independent business, the ground of reasonable and bona fide requirement cannot be pressed into service. Ultimately, a party may require the premises belonging to him for his own business or for setting up business of one of the family members. He submits that this being the position and the fact of respondents having huge turnover and premises of their own even on hardship, the finding of the Courts below is liable to be interfered with.
23. On the other hand, Shri P.M. Shah, learned Senior Counsel appearing for respondent, submits that this is not a fit case for interference in limited jurisdiction of this Court under Article 227 of the Constitution of India. He invites my attention to the well settled principles in exercise of jurisdiction under Article 227 of the Constitution of India. He submits that this Court is not a Court of Appeal. This Court cannot substitute its views in place of that of the Courts below. He submits that this Court can interfere in concurrent findings only when it is of the view that they are vitiated by errors apparent on the face of record or are perverse. He submits that there is no error of jurisdiction pointed out. He invites my attention to the grounds in the writ petition, which according to him, do not make out any case of interference by me in my jurisdiction under Article 227 of the Constitution of India. He submits that insofar as the findings are concerned, no scrutiny is required by this Court. In his submission, by very nature, findings on the issue of bona fide requirement are essentially findings of fact. They are final and require no disturbance or interference.
24. Shri Shah submits that the entire attempt of the petitioner is to have reassessment and re-appreciation of evidence on record. Even if two opinions are possible on such re-assessment and re-appreciation, well settled principle is that this Court should not interfere.
25. Alternatively, he submits that by passage of time, the entire requirement of the petitioners qua the suit premises is not subsisting. Assuming that they require the premises now, it is open to them to institute a fresh suit as that would be a distinct cause of action. The thrust of the submissions is that the order passed by lower appellate Court on 10-2-1987 being impugned and the petition having been placed before this Court after a lapse of more than 17 years, then this Court should not exercise its powers under Article 227. Without prejudice to this submission, Shri Shah invites my attention to the averments in the plaint and more particularly para 12 from them. He has taken me through the judgments of the Courts below, and more particularly, the findings rendered therein on this issue. He submits that the premises which are belonging to respondents are situated far away and not fit for the business carried on by them. For all these reasons, he submits that the present petition be dismissed.
26. In support of these contentions, Shri Shah relies upon the following decisions :
1. (1977) 4 SCC 587, India Pipe Fitting Co. v. Fakruddin M.A. Baker and Anr. 2. (1975) 1 SCC 858, Bathumal Raichand Oswal v. Laxmibai R. Tarta and Anr.
27. Before deciding the controversy, it will be appropriate to refer to some settled principles. Rent Control legislation is aimed at checking and controlling exploitation of tenants by unscrupulous landlords. However, the said legislation strikes a balance insofar as rights of both. Such legislations and laws do not take away the rights of the landlord to apply for possession of the tenanted premises. The grounds on which possession can be sought are enumerated in Section 13 of the Bombay Rent Act. Sub-section 1(g) thereof reads as under :
13.(1) ………
(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held [or, where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or].
It is clear that the landlord even when letting out business premises can resort to the aforesaid provision. This aspect has been subject matter of several decisions. For the present it is sufficient if a reference is made to 2003(4) Mh.L.J. (SC) 226 = AIR 2003 SC 2024, Dwarkaprasad v. Niranjan and Anr. —
“Normally, the rent legislations are meant for the benefit of the tenants but the rent statutes contain exceptions in favour of the landlord which give him a right to evict the tenant, the most important being to ensure that he gets payment of rent regularly and promptly and that in case the tenanted premises is required by him for his personal need, he is able to get its possession from the tenant. So the provision regarding eviction of tenant to meet the personal requirement of the landlord with respect to the premises is a provision for the benefit of the landlord. The key words which are required to be interpreted are : ‘For occupation by himself occurring in Section 13(1)(g) of the Act. Such a provision cannot be construed strictly so as to confine it to the requirement of the landlord alone and it can be extended to include the requirement of members of landlords’ family.”
28. As to what are the parameters for applying this provision is also by now well settled. Reference can usefully be made to two decisions namely : AIR 2003 SC 2713, Badrinarayan Chunilal Bhutada v. Govindram Ramgopal Mundada and AIR 1999 SC 3864, Raghunath G. Panhale (dead) by LRs. v. Chaganlal Sundarji and Co.
29. It is also necessary to note that while setting out the need for business premises and testing the reasonableness thereof, it is not necessary for the landlord to plead and prove that he has the necessary knowhow or expertise as well as financial capability to conduct the business. It is ultimately the aspect of need which is relevant. It should not be a mere wish or desire. Similarly, it is well settled that merely because a litigation is pending for considerable length of time, it should not necessary be considered that the need and requirement pleaded has either been lost or rendered redundant and unnecessary. It has to be judicially accepted that litigation in Indian Courts takes considerable length of time. Merely because it consumes lot of time, it does not mean that the suits filed by landlords for possession on the ground of reasonable and bona fide requirement ought to be thrown out straight away at the stage where the present matter has reached. It will not be proper if I refuse to scrutinize judgments rendered by the Courts below in my jurisdiction under Article 227 of the Constitution of India merely on the ground that more than 17 years have elapsed after the date of delivery of appellate judgment. It would not be just and fair to deprive the petitioners of adjudication on merits because, the petition is pending in this Court for no fault on their part. Initially, that petition was filed before the main seat i.e. Bombay Bench of this Court. Later on, upon jurisdiction of the district being transferred and vesting in Aurangabad Bench, the petition was transferred from Bombay to Aurangabad. Before this Bench, it has remained pending. It has not been either withdrawn nor any direction is sought that the petition ought to be disposed of without any adjudication on merits as it has become infructuous. Even before me apart from oral submission of Shri P.M. Shah, learned Senior Counsel, nothing has been produced on behalf of the respondents which would indicate that the petitioners requirement and need does not service any longer. On the other hand, Shri Agrawal reiterates the said requirement. He submits that it subsists even today. Hence, in peculiar facts and circumstances of this case, it is not possible to accept the contentions of Shri Shah that the petition ought not to be adjudicated on merits. I find much substance in the contentions of Shri Agrawal that petition having been admitted and kept pending for 17 long years, fairness and justice requires that it be disposed of on merits.
30. Equally tenable is the contention of learned Senior Counsel appearing for respondents that the petition does not disclose any grounds by which it could have said that the concurrent findings require interference at the hands of this Court in its jurisdiction under Article 227 of the Constitution of India. No particular form of pleading has been prescribed by law for such petition. By its very nature, the jurisdiction is supervisory and power of this Court is to oversee and supervise the functioning of Courts and Tribunals subordinate to it. When such applications are made, in pleadings, it is not necessary to elaborate the challenge to the judgment and decree extensively. The grounds in this case are eloquent enough. It is clearly stated therein that the appellate Court erred in holding that the petitioner’s requirement is not bona fide and reasonable. Grounds (D) and (E) assail appellate Court’s judgments as being vitiated by error apparent. In my view, considering the facts and circumstance, this was enough. Elaboration of these grounds is always left to the Counsel and Advocates during the course of arguments. It is not as if that respondents contend that the submission of the learned Counsel appearing for petitioners do not elaborate the aforesaid grounds. On the other hand, the arguments proceed on the basis that petitioners desire reappreciation and reassessment of materials on record which is not permissible in the limited jurisdiction of this Court. Hence, it is not possible to hold the contention that the petition deserves to be dismissed because it does not contain sufficient grounds.
31. Now coming to the main issue, the lower appellate Court has affirmed the finding of the trial Court on bona fide and reasonable requirement and relative hardship.
32. The lower appellate Court has referred to depositions of the witnesses examined on behalf of the petitioners. The lower appellate Court has mainly relied upon the fact that the petitioners are participating in the business of petitioner No. 1 i.e. Govardhandas. It has not disbelieved the fact which has come on record that the individual relationships have not been cordial, more so, between the family members of Hukumchand and Purushottam as well as sons of Govardhandas. The Courts below have proceeded on the basis that the parties are carrying on business or participating jointly under the banner Gajanan and Company. The Courts below have proceeded on the footing that it is necessary for the petitioners to point out when substantiating their need and requirement for business premises a plan or blue print of the proposed business. According to the Courts below if such plan of intended business together with the proposed investment is not produced, the Court cannot consider the need and requirement.
33. The Courts below have proceeded on the footing that it is not clear whether all the petitioners/plaintiffs are likely to withdraw from the business they are presently carrying on. The Courts below proceeded on the basis that it should be demonstrated that other petitioners are compelled to commence fresh business. They have also to show that they are likely to withdraw from the existing business to start new business. For that purpose, they are supposed to show reasons such as loss suffered by Association in the existing business. On this basis, the Courts below hold that absence of such particulars would render the alleged requirement and need as not genuine and reasonable. The lower appellate Court says that the requirement even would not be bona fide once aforesaid aspects are not present.
34. This, more or less, is the approach of the trial Court as well. I need not refer to the discussion in detail but make a reference only to paragraphs 32 to 38 of the trial Courts judgment.
35. The trial Court was in obvious error in holding that one of the plaintiffs having expired and other plaintiffs being plaintiff No. 1 not coming and deposing before the Court on oath about his requirement, para 12 of the plaint is not substantiated. It is well settled that the landlord need not personally step into the witness box. The approach that merely because this plaintiff does not step into the witness box, the Court cannot consider the requirement of the other plaintiff is also not sound in law. The trial Court has scrutinized the evidence of plaintiff No. 1. By terming the said witness star witness and commenting adversely upon his deposition, the trial Court observes that the three lines in the deposition are not sufficient to indicate the need much less reasonableness and bona fides thereof. The said deposition is reproduced in para 43 of the trial Court’s judgment.
36. I am unable to uphold the findings of the Courts below for obvious reasons. The law on the point by now is well settled. Firstly, it is not necessary for the landlord personally to enter the witness box. This is clear from a decision of the Supreme Court reported in AIR 1999 SC 3089, Smt. Ramkubai since deceased by L.Rs. and Ors. v. Hajarimal Dhokalchand Chandak and Ors., to which my attention is invited by Shri Agrawal. Secondly, it is also not necessary now for the landlord to produce any record or adduce evidence of the investment which is likely to be made by him in the business proposed to be commenced in the premises. This aspect also is absolutely clear from the decision of the Supreme Court namely : 1999(2) Mh.L.J. (SC) 793 = AIR 1999 SC 2226, Dattatraya Laxman Kamble v. Abdul Rasul moulali Kotkune and Anr. The third fallacy in the approach of the Courts below is that merely because at some stage or the other, the landlords have jointly established business, one of them cannot become independent and, therefore, is not entitled to ask for possession. Insofar as business premises are concerned, the approach of the Court ought to be out on the lines indicated in the decision of the Supreme Court namely; AIR 2003 SC 532, Akhileshwar Kumar and Ors. v. Mustaqim and Ors. On similar lines is the approach indicated in AIR 1999 SC 3864, Raghunath G. Panhale (dead) by L.Rs. v. Chaganlal Sundarji and Co.
37. If one peruses the decisions referred to above carefully and the principles laid down therein, then it is absolutely clear that the impugned judgment and orders suffer from an apparent error. The law ought not to be the one applied but the one enunciated in the above decisions. This has always been the principle and law for cases of bona fide requirement.
38. I am unable to uphold the view that the deposition of the landlord was insufficient or inadequate. Once the requirement of giving details of the business including sufficiency of capital and investment is not at all necessary, then there is no reason to discard the pleadings and depositions of the petitioners. It is not for the Courts to scrutinize and direct as to how the business is to be managed and conducted. It is not permissible in law for the Courts to go into the aspect of suitability or justifiability of carrying on a particular business from the business premises.
39. It is erroneous to assume that business of Gajanan and Company being a joint family business and there being no partition or there being no evidence demonstrating any differences or quarrels, the petitioners are disentitled to file suit and claim eviction of the respondents on the ground of reasonable and bona fide requirement. As indicated above, the business of joint family need not continue as such and members can go their separate ways even if it is not proved that there is partition or separate residence. The emphasis appears to be on this aspect only. The Courts below have been influenced to great extent by the joint family carrying on business under the trade name and style Gajanan and Company. It is only uninfluenced by this aspect that the Courts below have termed the plaint averments on this issue as not disclosing reasonable and bona fide requirement of the suit premises. In the fact situation, it was not necessary to aver and prove partition. In the fact situation, it was not necessary to lead evidence on disputes and differences. Once the aspect of independent business being set up is noticed then the need could be termed as reasonable and bona fide. This is all the more clear from the averments in the plaint in this case.
40. I find much substance in the contentions of Shri Agrawal that the plaint averments and more particularly, those in para 12 have not been denied at all. There is much substance in the contentions of the petitioners that petitioners No. 1, 2 and 4 want to run some business and for which they have no premises. The petitioner No. 2’s son also was to be established. Merely because for some time all the petitioners were part of one business namely : Gajanan and Company, it does not mean that they cannot have independent business of their own. More so, when they say that the needs of family are increasing. Adverting to the materials on record, in my view, it was enough for the petitioners to plead that they require the premises in the aforesaid circumstances and in their oral testimony reiterate them. In my view, therefore, in the light of the plaint allegations and the written statement to which I have detailed reference above, it is clear that the need of the petitioners in respect of the suit premises was bona fide and reasonable.
41. Once the aforesaid conclusion is reached, then what remains for consideration is whether what should be transgressing limits I interfere in my jurisdiction under Article 227 of the Constitution of India with the judgments and orders of the Courts below. In this behalf, reliance placed by Shri Shah, learned senior Counsel on the decisions in Bathumal’s case and the decisions subsequent thereto as well as the latest view of the Apex Court is not appropriate. In all these decisions, the well settled principles which have to be borne in mind while exercising this jurisdiction under Article 227 have been set down and reiterated. It is not as if I am unaware of the same. However, when I find that the Courts below have not decided the matter on the touchstone of equally well settled principles of law in determining the issue of bona fide requirement, then I would be failing in my duty if I do not interfere with them. Ultimately; I am not re-appreciating the entire evidence and arriving at a different conclusion. From the approach of the trial and lower appellate Court demonstrated above, it appears to me very clear that their findings are vitiated by errors apparent on the face of record and are perverse as well. Considering the plaint averments and the written statement, it was not permissible for the Court to answer the issue in the negative. The Courts below have not even adverted to the same. While adverting to the same in bits and pieces, the Courts below have ignored the fact that pleadings which are necessary on this issue are already on record. The issue was framed in the light of these pleadings only. Once there is a vague denial or it has never been denied by the respondents that the requirement as pleaded is totally absent, then in my view, it was not permissible to discard the version of the petitioners. The same has been discarded by going into aspects which are not germane or relevant. On the other hand, in view of the law laid down by Apex Court, it is clear that factors such as; financial capacity, investment, blue print or plan of business, absolute proof of necessity for setting up independent business or separation from joint family business are not at all to be taken into consideration while examining and scrutinizing the requirement. More particularly, in the facts and circumstances of the present case, they were not at all decisive. Hence, it is not possible to agree with the submissions of Shri Shah that while exercising my jurisdiction under Article 227 of the Constitution of India, I am either re-appreciating or re-appraising the material on record or arriving at a different conclusion merely because another view is possible. Hence, the law laid down in the decisions relied upon by Shri Shah would not be applicable in the peculiar facts and circumstances of the present case. Ultimately, no general rule can be laid down and is not laid down but everything depends upon facts and circumstances of each case.
42. In the light of conclusion reached by me namely; that the petitioners have proved that their requirement is bona fide as well as reasonable, then all that is left now is the issue of comparative hardship. The law on this point is well settled. Comparative hardship is an aspect which has to be tested on the degree of necessity. Burden is on the tenant. (See AIR 2003 SC 2713, Badrinarayan Chunital Bhutada v. Govindram Ramgopal Mundada). In paras 9, 10 and 11 of this decision, this is what is stated :–
9. The family, the business background of the parties, the availability of accommodation with either parties or in the township, the extent of direness or pressing nature of the need for eviction as against the direness of need or urge of the tenant to continue to occupy or cling to the tenancy premises, with reasons therefor, assume relevance. The Court may keep in view how the things would take shape in a reasonably foreseeable future in either event. The conduct of the parties, their mutual relationship may also be relevant. In spite of the availability of ground for eviction being legally sustainable, for the purpose of deciding the issue as to comparative hardship, the Court may take into consideration availability of such other premises with the landlord, which though not necessarily alternative to the suit premises, may still be available to accommodate the proven requirement of the landlord. The fact that the tenant could have had shifted to other premises or has missed the opportunity of availing occupation of other premises or is likely to part with possession over other premises whereto his business can be or could have been shifted are all relevant factors for the purpose of Section 13(2) though may not be relevant for the purpose of Section 13(1)(g). These are illustrative factors, incapable of being listed fully and precisely, which enter into the thinking process leading to formulation of opinion on comparative hardship.
10. The provisions of the Act do not bar a partial eviction being ordered rather contemplate a partial eviction specifically – which would of course depend on answer to the question whether it would be enough to dislodge the tenant from only a part of the premises in his possession, and to what extent, to satisfy the proved requirement of the landlord associated with consideration of comparative hardship. If the Court is satisfied that the ends of justice would be met if the tenant is not called upon to vacate the entire tenancy premises but only a part of it, then the Court may order partial eviction so that the requirement of the landlord is satisfied and the tenant is also not deprived of his running business activity. Inasmuch as Section 13(2) entails the consequence of the landlord being denied decree of eviction, wholly or partly, in spite of his having proved reasonable and bona fide requirement within the meaning of Section 13(1)(g), the burden of proving availability of grounds under Section 13(2) of the Act is on the tenant. It is expected of the parties to raise necessary pleadings, and the Court to frame an issue based on the pleadings so as to enable parties to adduce evidence and bring on record such relevant material as would enable the Court forming an opinion on the issue as to comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the Court may discharge its duty by taking into consideration such material as may be available on record.
11. The Act does not lay down any guidelines or relevant factors based whereon the question of comparative hardship is to be decided. A slight indication is given in the first para of Section 13(2) that regard must be had to (i) all the circumstances of the case, (ii) including the question whether other reasonable accommodation is available for the landlord or the tenant. The expression ‘other reasonable accommodation’ as employed here does not mean an accommodation suitable in all respects as the suit accommodation is. The Legislature has chosen it appropriate to leave the determination of issue on sound discretion of the Court.
43. In my view, on the aspect of comparative hardship also, the Courts below have not applied these principles at all. The landlord, after having discharged his burden, it was for the respondents to demonstrate the hardship. It is clear that on their own showing their existing business is a flourishing one. They have premises belonging to themselves in the city. It is clear that these premises are available and it is not their case that the same are totally incapable of being used for business. The surroundings with regard to the alternate premises reflect a situation of some decades back. Now, the localities arc developed. Therefore, adat and commission agency business is something which can be very well established from the premises available to the respondents. In this behalf, the assertion in the plaint and written statement assumes significance. Insofar as submissions in para 13 of the written statement are concerned, there is absolutely no doubt that C.T.S. No. 4747 are available very much to the respondents. Shri Agrawal rightly contends that the issue of hardship in para 40 of the trial Court’s judgment is not answered in the light of the principles laid down in the aforesaid decision of the Supreme Court. The premises are business premises. The averments in the written statement do not demonstrate that C.T.S. No. 4747 are not business premises. On the other hand, these premises are used for business of M/s Bangad Traders. Shri Shah has been unable to demonstrate as to how these premises are unsuitable for the business of the respondents. It has not been their case that the premises are exclusively in a residential area. On the other hand, the Courts below failed to appreciate that the entire area where C.T.S. No. 4747 is situated is not a residential area. Insofar as respondents goodwill from the suit premises is concerned, that could not be a factor in the facts and circumstances of the present case, because, with their capacity and finances, it is possible for them to shift the business. It is material at this stage to note that at one stage there was an assurance given of vacating the premises. This could not have been fact the situation had other premises being not available or suitable for the respondents. Hence, in my view, applying the principles in the aforesaid decision, it is clear that greater hardship would be caused to the petitioners if the decree of eviction is refused. The findings of the trial Court on this issue instead of lending any support to the respondents would show that hardship would be caused to the petitioners herein. Hence, I answer issue No. 7 also in favour of the petitioners.
44. As a result of the aforesaid discussion, petition is allowed. Rule made absolute in terms of prayer Clause (A). Regular Civil Suit No. 323 of 1979 is decreed. It is directed that petitioners are entitled to recover possession of the suit premises, more particularly, described in para 1 of the plaint from the respondents defendants. Decree be drawn accordingly. In the circumstances of the case, there will be no order as to costs.
45. At this stage, Mr. Barde, learned Counsel appearing for respondents, prays for time to vacate the premises. Shri Agrawal leaves the matter to the Court. In my view, interest of justice would be subserved if time to vacate premises is granted to the respondents. Accordingly, time is granted to vacate till 31-3-2005 on the condition that respondents file an undertaking within a period of ten days from today in this Court that :
a) They are in possession of the said premises. b) They alone are carrying on business therefrom. c) They will pay rent in respect thereof till date of handing over vacant possession to the petitioners herein. d) They will not induct any third party or part with possession, in any manner, till expiry of the time stipulated above. Needless to observe that if the undertaking is not furnished, petitioners will be entitled to execute the decree in accordance with law.