{"id":121566,"date":"2009-02-13T00:00:00","date_gmt":"2009-02-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sidharam-ganpati-mulage-vs-bashir-elahibaksh-tamboli-on-13-february-2009"},"modified":"2015-10-09T21:48:26","modified_gmt":"2015-10-09T16:18:26","slug":"sidharam-ganpati-mulage-vs-bashir-elahibaksh-tamboli-on-13-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sidharam-ganpati-mulage-vs-bashir-elahibaksh-tamboli-on-13-february-2009","title":{"rendered":"Sidharam Ganpati Mulage vs Bashir Elahibaksh Tamboli on 13 February, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Sidharam Ganpati Mulage vs Bashir Elahibaksh Tamboli on 13 February, 2009<\/div>\n
Bench: A.M. Khanwilkar<\/div>\n
                              1\n\n\n\n\n           IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n\n                 CIVIL APPELLATE JURISDICTION\n\n\n\n\n                                                                  \n                WRIT PETITION NO.4492 OF 1992\n\n    1. Sidharam Ganpati Mulage,                  )\n\n\n\n\n                                          \n    Age 36 yrs., Occ.Business,                   )\n                                                 )\n    2. Sulochana Mallinath Desai,                )\n    Age 31 yrs., Occ.Household,                  )\n                                                 )\n\n\n\n\n                                         \n    3. Sujata Ganpati Mulage,                    )\n    Age 25 yrs., Occ.Household,                  )\n                                                 )\n    Nos.1 to 3 residing at 261\/26,               )\n    A, North Kasba Jahagirdar Wada,              )\n\n\n\n\n                              \n    Solapur.                                     )\n                                                 )\n    4. Jagadevi Ganpatrao Mulage,                )\n                   \n    Age 37 yrs., Occ.Household\n\n    5. Vijayalaxmi Ashok Karjol,\n                                                 )\n                                                 )\n                                                 )\n    Age 39 yrs., Occ.Household,                  )\n                  \n                                                 )\n    Nos.4 and 5 residing at Chinchwad            )\n    Station infront of Jayshri Talkies,          )\n    Pune.                                       )..Petitioners.\n\n    V\/s.\n      \n\n\n    1. Bashir Elahibaksh Tamboli,                 )\n   \n\n\n\n    Age 51 yrs. Occ. Business,                    )\n                                                  )\n    2. Mahmadhusen Elahibaksh Tamboli             )\n    since deceased through his legal              )\n    heirs and representatives:-                   )\n\n\n\n\n\n                                                  )\n    2A. Mumtaj Mahmadhusen Tamboli                )\n        wife, Adult, Occ.Household.               )\n                                                  )\n    2B. Irfan Mahmadhusen Tamboli.                )\n        son, Adult, Occ.: Business.               )\n\n\n\n\n\n                                                  )\n    2C. Arif Mahmadhusen Tamboli,                 )\n        son, Age 16. Occ.Student,                 )\n                                                  )\n    2D. Sharif Mahmadhusen Tamboli,               )\n        son, Age 11, Occ. Student,                )\n                                                  )\n    2E. Arifa Mahmadhusen Tamboli,                )\n\n\n\n\n                                          ::: Downloaded on - 09\/06\/2013 14:20:57 :::\n                                           2\n\n\n\n\n           daughter, Adult, Occ.Household.                    )\n                                                              )\n    Nos.2A to 2E residing at 179                              )\n    West Mangalwar Peth, Solapur 413.                        )..Respondents.\n\n\n\n\n                                                                               \n    Mr.G.S.Godbole for Petitioners.\n\n\n\n\n                                                       \n    Mr.P. M. Mengane for Respondents.\n\n                                          CORAM: A.M.KHANWILKAR,J\n\n                                          DATE : FEBRUARY 13, 2009.\n\n\n\n\n                                                      \n    JUDGMENT :\n<\/pre>\n
    1.        This    Writ Petition under Article 227 of                         the<\/p>\n
    Constitution of India takes exception to the Judgment<\/p>\n
    and    Decree<\/p>\n
                     passed by the District Court of                      Solapur<\/p>\n
    dated    28th    August, 1992 in Civil Appeal                    No.224        of<\/p>\n
    1986     allowing       the     Appeal          preferred           by       the<\/p>\n
    Respondents\/landlords           and       decreeing      the      suit       for<\/p>\n
    possession      with    direction          to   the     Petitioners            to<\/p>\n
    deliver      possession     of    the       suit    premises          to     the<\/p>\n
    Respondents on or before 31st October, 1992.\n<\/p>\n
    2.        Briefly      stated,     the Respondents filed                   Suit<\/p>\n
    being    Regular Civil Suit No.412 of 1980 in the Court<\/p>\n
    of Solapur against the predecessor of the Petitioners<\/p>\n
    Shri     Ganpati       Andappa             Mulage,       the        original<\/p>\n
    tenant-defendant        for recovery of rent and possession<\/p>\n
    of     the    suit    property        being      one     shop       premises<\/p>\n
    admeasuring      5′    x   9′    situated in          Saraf       Bazar        in<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                           3<\/span><\/p>\n
    Solapur city on the ground of bonafide and reasonable<\/p>\n
    requirement        of the Plaintiffs for their personal use<\/p>\n
    and occupation.        The said suit however, was dismissed<\/p>\n
    by the Trial Court on the finding that the Plaintiffs<\/p>\n
    failed      to   establish       that the      suit       premises          were<\/p>\n
    required by them for their own use and occupation and<\/p>\n
    that     greater      hardship        would    be      caused        to       the<\/p>\n
    Petitioners\/tenants,            in    the    event        of      decree        of<\/p>\n
    conviction being passed.\n<\/p>\n
    3.          As<\/p>\n
                     aforesaid, against the said decision, the<\/p>\n
    Respondents\/landlords            carried the matter in                 appeal,<\/p>\n
    which however, succeeded and decree of possession has<\/p>\n
    been     passed      against         the    Petitioners\/tenants                 in<\/p>\n
    relation      to the suit premises.            The Appellate              Court<\/p>\n
    has    reversed the finding recorded by the Trial Court<\/p>\n
    on    both    the counts for the reasons recorded in                          the<\/p>\n
    impugned Judgment.\n<\/p>\n
    4.          Before    I proceed to consider the main                      issue<\/p>\n
    involved      in    the    suit for possession, it                 would        be<\/p>\n
    apposite      to    deal    with the issue           which        arises        on<\/p>\n
    account of subsequent development during the pendency<\/p>\n
    of    the    present writ petition.            It is common              ground<\/p>\n
    that    on    account      of    riot in      the      city,       the      suit<\/p>\n
    premises      were completely gutted due to fire on                         11th<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                                4<\/span><\/p>\n
    October,       2002.        In other words, the                  suit       premises<\/p>\n
    which     were       let    out      to        the    predecessor             of     the<\/p>\n
    Petitioners          are    no    more         in    existence.             In     this<\/p>\n
    context,       the     preliminary point raised on behalf                              of<\/p>\n
    the      Respondents            is     that          the      right         of       the<\/p>\n
    Petitioners\/tenants to pursue the present remedy does<\/p>\n
    not     survive and the Petition should be dismissed                                   on<\/p>\n
    that count alone.<\/p>\n
\n\n\n\n\n                                              \n    5.         To    buttress this argument, reliance has been\n\n    placed\n\n    of       Vannattankandy\n                          \n<\/pre>\n
               on the decision of the Apex Court in the case<\/p>\n
                                          Ibrayi          v\/s.             Kunhabdulla<\/p>\n
    Hajee[(2001) 1 Supreme Court Cases 564.                              My attention<\/p>\n
    is     also invited to the another reported decision                                   of<\/p>\n
    our High Court in the case of Shivram Ladu Nitardekar<\/p>\n
    v\/s.     Alex Fernandes & Ors.[2006(1) Bom.C.R.846] and<\/p>\n
    unreported decision dated 17th December, 2008 in W.P.\n<\/p>\n
    No.376     of        1994.        However,           according              to       the<\/p>\n
    Petitioners\/tenants,              the fact that the suit premises<\/p>\n
    have    been completely destroyed due to fire does                                   not<\/p>\n
    extinguish tenancy as the lease of the suit premises-\n<\/p>\n
    (which    is     a    shop),         was       not   only        lease        of     the<\/p>\n
    superstructure but also of the site.                            In such a case,<\/p>\n
    the    exposition          of    the Apex Court in                 the      case       of<\/p>\n
    T.Lakshmipathi         & ors.        v\/s.       P.    Nithyananda Reddy &<\/p>\n
    ors.     reported in [(2003) 5 SCC 150 will have to                                    be<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                          5<\/span><\/p>\n
    invoked to hold that the Petitioners’ right to pursue<\/p>\n
    the present remedy would still survive.\n<\/p>\n
    6.         Before      examining the above argument we shall<\/p>\n
    advert     to    the stand of the respective party in                      the<\/p>\n
    pleading.           The    Plaintiffs       instituted         suit        for<\/p>\n
    recovery       of    possession of the suit premises on                    the<\/p>\n
    assertion        that       what     was      let      out        to       the<\/p>\n
    Defendant\/tenant was “a shop premises” admeasuring 5′<\/p>\n
    x    9′   on    monthly      tenancy       basis.      In      reply       the<\/p>\n
    Petitioner\/tenant<\/p>\n
    premises       along
\n                          ig    did<\/p>\n
                              with
\n                                       not<\/p>\n
                                      the
\n                                             claim<\/p>\n
                                             site
\n                                                        that<\/p>\n
                                                     beneath
\n                                                                   the<\/p>\n
                                                                    the
\n                                                                             shop<\/p>\n
                                                                             shop<\/p>\n
    premises       was also let out to him.           Now, it is common<\/p>\n
    ground     that the suit premises is fully destroyed due<\/p>\n
    to fire on 11th October, 2002.               The Plaintiffs had no<\/p>\n
    role in the said development.\n<\/p>\n
    7.         Be    that      as it may, the       Petitioners\/tenants<\/p>\n
    moved     a    formal application before this Court                    being<\/p>\n
    Civil     Application No.356 of 2005 praying for liberty<\/p>\n
    to    repair\/restore the suit premises which was gutted<\/p>\n
    in    fire.      That prayer was granted by this Court                       on<\/p>\n
    22nd      August,         2005.      However,     admittedly,              the<\/p>\n
    Petitioners         have    not    availed of     the      said       option<\/p>\n
    sofar.        The    photograph produced by the              Respondents<\/p>\n
    alongwith       affidavit        dated 2nd February, 2009              Exh.X<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                              6<\/span><\/p>\n
    collectively          clearly reveals that whole of the                     suit<\/p>\n
    premises       is     destroyed due to fire.              The portion           on<\/p>\n
    which     suit       premises was standing and the                 structure<\/p>\n
    has     been    razed       to    the     ground,    thereby         becoming<\/p>\n
    permanently          unfit    for the purpose for which it                     was<\/p>\n
    let.      As    aforesaid,         it     is not    the     case       of      the<\/p>\n
    Petitioners          that    the    landlord        was     directly            or<\/p>\n
    indirectly          responsible for the violence committed by<\/p>\n
    the     mob resulting in fire on 11th October, 2002.                            It<\/p>\n
    is    also not the case of the Petitioners\/tenants that<\/p>\n
    there<\/p>\n
    that
\n              was<\/p>\n
             in    such<\/p>\n
                        any express agreement with<\/p>\n
                            eventuality,         the    tenants
\n                                                                the      landlord<\/p>\n
                                                                       would        be<\/p>\n
    entitled to reconstruct and restore the suit premises<\/p>\n
    and     whereupon the tenancy would enure on same                         terms<\/p>\n
    or      otherwise       in    respect        of    the      reconstructed<\/p>\n
    structure.\n<\/p>\n
    8.           Indeed,     the Petitioners have placed reliance<\/p>\n
    on       the        decision       of        the     Apex         Court         in<\/p>\n
    T.Lakshmipathi(Supra).\n<\/p>\n
    T.Lakshmipathi(Supra)                   In this case, the Apex Court<\/p>\n
    while    considering         the     provisions of          “Transfer           of<\/p>\n
    Property       Act” took the view that the tenancy                       cannot<\/p>\n
    be    said     to    have        been    determined       by      attracting<\/p>\n
    applicability          of    the        doctrine     of       frustration,<\/p>\n
    consequent upon demolishing of the tenanted premises.\n<\/p>\n
    Instead,       it    went    on to observe that a lease                   of     a<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                           7<\/span><\/p>\n
    house      or    of    a    shop is a lease      not     only       of     the<\/p>\n
    superstructure          but also of its site.          It is observed<\/p>\n
    that      it would be different if not only the structure<\/p>\n
    but    also the land beneath ceases to exist by an                         act<\/p>\n
    of    nature.        It proceeded to hold on that basis                  that<\/p>\n
    it        is      only        where       the     entire            tenancy<\/p>\n
    premises(structure            and site) are lost and            destroyed<\/p>\n
    the tenancy would cease to subsist.                 In paragraph-24,<\/p>\n
    it is observed thus:\n<\/p>\n
                “24.\n<\/p><\/blockquote>\n
                       We are, therefore, of the opinion that
\n                in the event of the tenancy having been
\n                created in respect of a building standing on
\n                the land, it is the building and the land<\/p>\n
                which    are   both     components   of   the
\n                subject-matter of demise and the destruction
\n                of the building alone does not determine the
\n                tenancy when the land which was the site of
\n                the building continues to exist;     more so
\n                when the building has been destroyed or<\/p>\n
                demolished neither by the landlord nor by an
\n                act of nature but solely by the act of the<\/p>\n
                tenant or the person claiming under him.”\n<\/p><\/blockquote>\n
    I    am    conscious        of the fact that      this       opinion         is<\/p>\n
    rendered        by    the    Apex Court in a matter            where       the<\/p>\n
    decree      for eviction was passed under the                  provisions<\/p>\n
    of     Andhra        Pradesh    Buildings       (Lease,        Rent        and<\/p>\n
    Eviction)        Control      Act, 1960.     In other        words,        the<\/p>\n
    rights and obligations of the parties were controlled<\/p>\n
    by    the provisions of State Rent Act.                  Nevertheless,<\/p>\n
    as    rightly argued by the Respondents, the Court                         has<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                            8<\/span><\/p>\n
    proceeded       to examine the matter only in the                      context<\/p>\n
    of     the provisions of the “Transfer of Property                          Act”\n<\/p>\n
    and     not    in     the      context of     the    efficacy          of     the<\/p>\n
    provisions          of    the    State     Rent   Act.        That       aspect<\/p>\n
    however,       has       been    dealt with specifically               in     the<\/p>\n
    decision of the Apex Court in Vannattankandy Ibrayi’s<\/p>\n
    case(supra)         in    the context of provisions of                   Kerala<\/p>\n
    Buildings(Lease and Rent Control) Act, 1965.                           In this<\/p>\n
    case    also, the shop was completely destroyed due                             to<\/p>\n
    natural       calamity(fire) and it was not pulled down by<\/p>\n
    the<\/p>\n
    reduced
\n            landlord.\n<\/p>\n
                              igHowever,       the    superstructure<\/p>\n
                  to a vacant land after the said calamity, as
\n                                                                                  was<\/p>\n
    in    the present case.           Even in that case, it was                   not<\/p>\n
    the    case     of the tenant that the shop alongwith                         the<\/p>\n
    land    beneath the shop was let out to the tenant.                             In<\/p>\n
    this    decision, in paragraph 20, the Apex Court after<\/p>\n
    analysing       the      divergent       views      expressed          by     the<\/p>\n
    different       High Courts on the subject authoritatively<\/p>\n
    held that there can be no doubt that if a building is<\/p>\n
    governed       by    the State Rent Act, the              tenant         cannot<\/p>\n
    claim    benefit of the provisions of Sections 106, 108<\/p>\n
    and    114 of the Transfer of Property Act.                       It went on<\/p>\n
    to    observe       that due to destruction of the                   tenanted<\/p>\n
    premises       there      is    automatic determination                of     the<\/p>\n
    tenancy.        The      Court in the same paragraph, went                      to<\/p>\n
    examine       the    efficacy of section 108(B)(e)                   and      has<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                          9<\/span><\/p>\n
    held    that it cannot be interpreted to mean that                      the<\/p>\n
    tenant      is entitled to squat on the open land in                    the<\/p>\n
    hope that in future if any shop is constructed on the<\/p>\n
    site    where the old shop existed he would have                    right<\/p>\n
    to    occupy    the    newly-constructed       premises          on     the<\/p>\n
    strength      of    original contract of tenancy.                It     has<\/p>\n
    held    that    the    lease of a shop is the           transfer          of<\/p>\n
    property      for    its    enjoyment and on       destruction            of<\/p>\n
    shop,    the tenancy cannot continue.            Inasmuch as, the<\/p>\n
    tenancy      of shop presupposes a property in               existence<\/p>\n
    and    there<\/p>\n
    property      is<\/p>\n
                    cannot      be subsisting tenancy<\/p>\n
                        not in existence.       It has plainly
\n                                                                where       the<\/p>\n
                                                                          held<\/p>\n
    that    when    the    shop     is    completely    destroyed           the<\/p>\n
    tenancy      right stands extinguished as the demise must<\/p>\n
    have a subject-matter and if the same is no longer in<\/p>\n
    existence,      there      is   an end of    tenancy        for     which<\/p>\n
    reason      Section 108(B)(e) of the Transfer of Property<\/p>\n
    would    have      no application in relation           to     premises<\/p>\n
    governed      by the State Rent Act when it is completely<\/p>\n
    destroyed by natural calamities.             In paragraph-22 the<\/p>\n
    Court analysed the provisions of the Kerala Rent Act.\n<\/p>\n
    Notably, the scheme of that enactment is more or less<\/p>\n
    comparable      to the provisions of the Bombay Rent Act.\n<\/p>\n
    In    paragraph 23, the Court noted that the provisions<\/p>\n
    of    the    State Rent Act clearly show that               the     State<\/p>\n
    Rent    Act is a self-contained Act and the rights                      and<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                         10<\/span><\/p>\n
    liabilities of the landlord and tenant are determined<\/p>\n
    by    the    provisions contained therein and not by                       the<\/p>\n
    provisions        of   the Transfer of Property Act                 or     any<\/p>\n
    other    law.      That the rights of a landlord under                     the<\/p>\n
    general      law are substantially curtailed by the State<\/p>\n
    Rent    Act as the Act is designed to confer benefit on<\/p>\n
    tenants      by    providing accommodation and               to     protect<\/p>\n
    them    from unreasonable eviction.              It has found            that<\/p>\n
    the    protection        given to the tenant in terms of                   the<\/p>\n
    provisions        in the State Rent Act is only in                  respect<\/p>\n
    of    the<\/p>\n
    superstructure<\/p>\n
                 superstructure and upon destruction<\/p>\n
                           the   tenants      right therein           is
\n                                                                        of     the<\/p>\n
                                                                             also<\/p>\n
    extinguished.          The   Court has also added a               word       of<\/p>\n
    caution that the situation would be different where a<\/p>\n
    landlord      himself      pulls down a building governed                    by<\/p>\n
    the    State      Rent    Act.   On careful analysis              of     this<\/p>\n
    decision,      it is noticed that the point in issue                       has<\/p>\n
    been    directly       answered     by the Apex        Court        on     the<\/p>\n
    premiss      that if a building is governed by the                     State<\/p>\n
    Rent     Act,      the    tenant     cannot      claim       benefit         of<\/p>\n
    provisions        of   Section     106,    108    and      114      of     the<\/p>\n
    Transfer      of Property Act.        That is the statement                  of<\/p>\n
    law, which is binding on this Court.\n<\/p>\n
    9.          Counsel      for the Petitioners was at pains                    to<\/p>\n
    persuade me that in Vannattankandy Ibrayi’s case,
\n                                                case the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                               11<\/span><\/p>\n
    Apex     Court has amongst other overruled the                          decision<\/p>\n
    of     our    High       Court       in   the   case      of     Hind       Rubber<\/p>\n
    Industries         (P)     Ltd.           Vs.   Tayebhai         Mohammedbhai<\/p>\n
    Bagasarwalla[AIR               1996       Bom.389];\n<\/p>\n
                                              Bom.389]             Whereas,            in\n\n\n\n\n                                                           \n    T.Lakshmipathi's            case which is a decision subsequent\n\n    in    point       of time, the Apex Court has                  followed          the\n\n\n\n\n                                                          \n    very     same      decision          of   our High Court           as      can     be\n\n    discerned         from     the observations in paragraph-24                        of\n\n    that     Judgment.         Significantly, the attention of Apex\n\n\n\n\n                                              \n    Court        which       was     considering         T.       Lakshmipathi's\n\n    case(supra)\n\n    Vannattankandy\n                         \n                        was    not\n\n                             Ibrayi's\n                                         invited\n\n                                              case,\n                                                    to      the\n\n                                              case which was in\n                                                                     opinion\n\n                                                                               earlier\n                                                                                       in\n                        \n    point    of       time.        However, this      argument            need       not\n\n    detain       us    for    answering the point in                 issue.          The\n\n    question       whether         the    benefit     of        provisions             of\n      \n\n\n    Transfer       of Property Act can be extended to premises\n   \n\n\n\n    governed       by the State Rent Act is concerned, that is\n\n<\/pre>\n
    directly dealt with in the decision of the Apex Court<\/p>\n
    in    Vannattankandy            Ibrayi’s case.\n<\/p>\n
                                             case           That is         not      the\n\n\n\n\n\n    issue    addressed         in     the subsequent decision                   in     T.\n\n    Lakkshmipathi's           case, which is pressed into                      service\n\n    by the Petitioners.              However, the subsequent decision\n\n\n\n\n\n<\/pre>\n
    generally deals with the legal position emerging from<\/p>\n
    the    provisions         of     the Transfer        of      Property          Act.\n<\/p>\n
    Accordingly,         I    would       proceed to answer              the     issue<\/p>\n
    applying      the     principle stated by the Apex Court                           in<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                          12<\/span><\/p>\n
    the case of Vannattankandy Ibrayi and hold that since<\/p>\n
    the suit premises were governed by the State Rent Act<\/p>\n
    and    since the same are no longer in existence having<\/p>\n
    been    destroyed in fire, tenancy of the Defendant                           in<\/p>\n
    the    suit      premises    stood    extinguished.              For      that<\/p>\n
    reason,      the    Petitioners are not entitled to                    pursue<\/p>\n
    the    present remedy.        I am conscious of the fact that<\/p>\n
    by    way of interim direction this Court permitted the<\/p>\n
    Petitioners        to   repair\/restore          the    suit      premises.\n<\/p>\n
    However, admittedly, the Petitioners have not availed<\/p>\n
    of    the<\/p>\n
    interim
\n                 said<\/p>\n
                         direction.<\/p>\n
\n\n                 arrangement\n                                         In any case, that\n\n                                  to be observed by             the\n                                                                         was\n\n                                                                         parties\n                                                                                  an\n                       \n    subject      to the outcome of the present Writ Petition.\n\n    Accordingly,        this    Writ Petition should fail on                    the\n\n    above reasoning.\n      \n   \n\n\n\n<\/pre>\n
    10.         Assuming that the tenancy of the defendant is<\/p>\n
    continued even so the question is whether the finding<\/p>\n
    of    fact recorded by the Appellate Court on the issue<\/p>\n
    of    bonafide      and    reasonable        requirement           of       the<\/p>\n
    Plaintiffs and on comparative hardship can be said to<\/p>\n
    be manifestly wrong, perverse and untenable.                         I shall<\/p>\n
    now proceed to examine that aspect.\n<\/p>\n
    11.         In      the     Suit          for     possession,               the<\/p>\n
    Respondents\/Plaintiffs          have       averred that          the      suit<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                       13<\/span><\/p>\n
    premises      have    been purchased by the        Plaintiffs            so<\/p>\n
    that    it    can be used by them for        business         purpose.\n<\/p>\n
    The    tenant    challenged this claim of the              Plaintiffs<\/p>\n
    being      malafide.    The parties went for trial.               In the<\/p>\n
    examination-in-chief            the       Plaintiffs’           witness<\/p>\n
    Mohamadhusen        Plaintiff    No.2    deposed     that       he     had<\/p>\n
    purchased      the suit premises for doing business.                     He<\/p>\n
    has    stated    that there are 14 members in his                 family<\/p>\n
    and are doing pan business.            They had no other source<\/p>\n
    of    income.    They were unable to meet the expenses of<\/p>\n
    their<\/p>\n
    They
\n               family<\/p>\n
                         from the existing pan<\/p>\n
            require the suit premises for business.\n<\/p>\n
                                                      business         only.\n\n                                                                      He has\n                        \n    stated      that all his brothers were unemployed and his\n\n    son    is also 12 years old.          He has given the          details\n\n    of    14    members in his family consisting of               himself,\n      \n\n\n    his    wife,    brothers, brothers' wife, his three                  sons\n   \n\n\n\n    and    one daughter, five sons' of his brother and                     one\n\n    daughter.       The    Trial    Court however,       proceeded           to\n\n    non-suit      the    Plaintiffs essentially on the              finding\n\n\n\n\n\n    that    the    pleadings      with regard to      the      ground        of\n\n    bonafide      and reasonable requirement were not enough.\n\n    The    Trial    Court found that in absence            of     specific\n\n\n\n\n\n    pleadings      no    amount    of evidence    produced          by     the\n\n    Plaintiffs      would be of any avail.        It has found that\n\n    in    the    plaint the Plaintiffs have         merely        asserted\n\n    that    they required the suit premises reasonably                     and\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:20:57 :::<\/span>\n                                        14<\/span>\n\n\n\n\n    bonafide      for their business.         Such pleadings              caused\n\n    prejudice      to the Defendant as he had no                 opportunity\n\n\n\n\n                                                                             \n    to    know    and meet the case of the            Plaintiffs           about\n\n    their    need being bonafide and reasonable.                    The Trial\n\n\n\n\n                                                     \n    Court    also non-suited the Plaintiffs on the                      finding\n\n<\/pre>\n
    that from the evidence on record it would appear that<\/p>\n
    it was mere desire of the Plaintiffs to have the suit<\/p>\n
    premises      and      element   of     necessity        was      lacking.\n<\/p>\n
    Significantly,          except   this observation,             the     Trial<\/p>\n
    Court    has      not adverted to any part of the                 evidence<\/p>\n
    adduced<\/p>\n
    which
\n                 by<\/p>\n
                       the Plaintiffs to support<\/p>\n
             would support that finding.\n<\/p>\n
                                                             their<\/p>\n
                                                      The later opinion
\n                                                                          claim,<\/p>\n
    of    the Trial Court was without due consideration                          of<\/p>\n
    all    the    materials       on record    and      thus       manifestly<\/p>\n
    wrong.       Indeed,      the finding recorded by              the     Trial<\/p>\n
    Court    that      in    the plaint except stating              that       the<\/p>\n
    Plaintiffs        require the suit premises reasonably                     and<\/p>\n
    bonafide      for      their business no other fact has                  been<\/p>\n
    mentioned-        will    have to be accepted.           The      question<\/p>\n
    is:      whether        the   Plaintiffs     could           have        been<\/p>\n
    non-suited        on the ground of lack of pleadings due to<\/p>\n
    such    averment.         The Appellate Court has dealt                  with<\/p>\n
    that    aspect.        The Appellate Court instead, found the<\/p>\n
    pleadings were adequate to proceed especially keeping<\/p>\n
    in    mind    the evidence adduced by the Plaintiffs                       and<\/p>\n
    admissions        of    the   defendants.    On that           basis       the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                         15<\/span><\/p>\n
    matter    was      examined by the Appellate Court to                   hold<\/p>\n
    that    the requirement of the Plaintiffs was                    bonafide<\/p>\n
    and    reasonable.        The Appellate Court has appreciated<\/p>\n
    the    evidence of the Plaintiffs to arrive at the said<\/p>\n
    conclusion.        The Appellate Court has first noted that<\/p>\n
    the Plaintiffs purchased the suit premises to support<\/p>\n
    the    pan business.        Indeed, the specific business                   is<\/p>\n
    not    mentioned      in    paragraph-4 of       the      plaint,         but<\/p>\n
    generally      the    Plaintiffs      have asserted           that      they<\/p>\n
    wanted    the      suit premises to start          their       business.<\/p>\n
\n\n    Besides,\n\n    business\n                  it\n                         \n                        has    come    in evidence       that\n\n<\/pre>\n
                  in which the Plaintiffs’ family was engaged
\n                                                                   the      only<\/p>\n
    was of pan business.          That fact has been spoken about<\/p>\n
    by     the     Plaintiffs’        witness,      which         has       gone<\/p>\n
    unchallenged.         No    doubt,    the Appellate           Court       has<\/p>\n
    proceeded      on the premiss that the requirement of the<\/p>\n
    premises      for pan business was specifically mentioned<\/p>\n
    in    paragraph-4      of the plaint.         However, some           error<\/p>\n
    here    or there in the Judgment of the Appellate Court<\/p>\n
    cannot    be the basis to overturn the entire                    Judgment<\/p>\n
    especially      when there is enough material to                   support<\/p>\n
    the     ultimate      conclusion,        in    exercise        of       writ<\/p>\n
    jurisdiction under Article 227 of the Constitution of<\/p>\n
    India.       The    fact    remains that the         Plaintiffs           had<\/p>\n
    asserted      that    the suit premises were            purchased           by<\/p>\n
    them    so    that they can start their own               business          in<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                         16<\/span><\/p>\n
    that    premises.        The   questions whether it               is     mere<\/p>\n
    desire of the Plaintiffs without any element of need.\n<\/p>\n
    As     observed      earlier,      the     Trial      Court         without<\/p>\n
    adverting      to the evidence proceeded to hold that the<\/p>\n
    evidence     on record reveals that it was a mere desire<\/p>\n
    of    the   Plaintiffs       and    there      was    no     element         of<\/p>\n
    necessity.         This     view    of     the    Trial        court         is<\/p>\n
    overturned      by    the Appellate Court on analysing                     the<\/p>\n
    Plaintiffs’       evidence.       The view so taken is not only<\/p>\n
    a    possible     view but the only view that ought to                       be<\/p>\n
    taken<\/p>\n
    Court    has<\/p>\n
             on the basis of such evidence.\n<\/p>\n
                    rightly      noted       the\n                                                           The\n\n                                                    relevant\n                                                                    Appellate\n\n                                                                    oral       and\n                        \n<\/pre>\n
    documentary evidence to hold that it would go to show<\/p>\n
    that    no shop in the name of Mohamad or his sons                         was<\/p>\n
    available       to    start    a     pan    shop.        Further,          the<\/p>\n
    Plaintiffs      have     asserted and established               the      fact<\/p>\n
    that they had purchased the suit premises for running<\/p>\n
    pan-supari        business        therein.        Indeed,         in       the<\/p>\n
    cross-examination          the Defendants have suggested that<\/p>\n
    the    existing      pan shop in City Survey No.3317.                      But<\/p>\n
    the    witness     has stated that the said premises                     were<\/p>\n
    insufficient       as both brothers were residing                   jointly<\/p>\n
    and running business of pan jointly.                  The Plaintiffs’<\/p>\n
    witness     has clearly stated that it is not true                       that<\/p>\n
    shop    opposite      to    his    shop    belongs       to     him.         On<\/p>\n
    analysis     of    the     oral and documentary            evidence          on<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                        17<\/span><\/p>\n
    record, the finding reached by the Appellate Court is<\/p>\n
    that    no    other    shop    was standing in      the      name       of<\/p>\n
    Mohamad      Ilahibaksh      Tamboli or his sons        where       they<\/p>\n
    could    run a pan shop.        Sofar as that finding of fact<\/p>\n
    is    concerned,      that    is   unexceptionable.          On     that<\/p>\n
    finding it would necessarily follow that the claim of<\/p>\n
    the    Plaintiffs      for possession of the suit            premises<\/p>\n
    was    not    only    bonafide but also     reasonable           having<\/p>\n
    regard    to    the size of the family of the             Plaintiffs<\/p>\n
    and    their    case    that they were unable to            meet      the<\/p>\n
    expenses<\/p>\n
                  of their family from the present income for<\/p>\n
    which reason wanted to start the business in the suit<\/p>\n
    premises,      obviously      to generate additional           income.\n<\/p>\n
    The    Appellate      Court has noted that the premises                 in<\/p>\n
    possession      of    the landlord is admeasuring 5′ x                9′.\n<\/p>\n
    Taking    overall view of the matter, it is not a                   case<\/p>\n
    of    manifest error or any perverse view taken by                    the<\/p>\n
    Appellate Court.\n<\/p>\n
    12.       As    aforesaid      the view taken on analysis               of<\/p>\n
    the    evidence      and material on record is          a    possible<\/p>\n
    view.     The argument of the Petitioners that                 certain<\/p>\n
    material      facts have not been taken into account such<\/p>\n
    as    admission      of the Plaintiffs that the           Plaintiffs<\/p>\n
    had CS No.3317 in occupation and doing joint business<\/p>\n
    with    his brother and the premises on the first floor<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                           18<\/span><\/p>\n
    over    the shop Mutkeri and the shop next to the                             suit<\/p>\n
    premises      which      also    admeasured 20ft\/15ft.                     In     my<\/p>\n
    opinion,      there      is no substance in              this       grievance.\n<\/p>\n
    The    Appellate        Court has found that               the      Plaintiffs<\/p>\n
    have    no other shop where Mohamed Ilahibaksh                           Tamboli<\/p>\n
    and    his    sons      could    start      a    pan       business.            The<\/p>\n
    evidence         regarding      availability           of     City         Survey<\/p>\n
    No.3317      makes no difference as the Plaintiffs’                           case<\/p>\n
    is that the said premises were insufficient for their<\/p>\n
    family business of pan-supari and therefore, required<\/p>\n
    the<\/p>\n
    over
\n           suit premises.<\/p>\n
\n\n            the\n                           ig      The premises on the first\n\n<\/pre>\n
                     shop of Mutkeri can be no substitute to
\n                                                                                floor<\/p>\n
                                                                                       a<\/p>\n
    pan    shop on the ground floor.                Having regard to                the<\/p>\n
    nature      of business of pan shop, it is                    inconceivable<\/p>\n
    that    the      pan-supari shop on the first                   floor       would<\/p>\n
    fetch      the same business as in the shop if it were to<\/p>\n
    be    on    the    ground floor.        In any case, it                is     well<\/p>\n
    established        position that neither the Court nor                          the<\/p>\n
    tenant      can    dictate      to the landlord as                to     how      he<\/p>\n
    should tailor his requirement.\n<\/p>\n
    13.         Taking      over    all    view      of      the      matter,         as<\/p>\n
    aforesaid        no    interference        in     exercise           of       writ<\/p>\n
    jurisdiction          against the finding of fact recorded by<\/p>\n
    the    Appellate Court which is the final fact                           finding<\/p>\n
    Court,      is    warranted      in the fact situation                   of     the<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                           19<\/span><\/p>\n
    present case.\n<\/p>\n
    14.         The    next question is whether the                  Plaintiffs<\/p>\n
    or    the    Defendants        would suffer     greater           hardship.\n<\/p>\n
    Even    this aspect of the matter has been answered                            by<\/p>\n
    the    Appellate        Court,     keeping    in      mind       the       well<\/p>\n
    established        legal position and applying the same                        to<\/p>\n
    the    fact situation of the present case.                     In the suit<\/p>\n
    as    filed      in    paragraph-4(a),       the      Plaintiffs           have<\/p>\n
    asserted      that      the Defendants have another                 premises<\/p>\n
    where<\/p>\n
    No.3015.\n<\/p>\n
             they<\/p>\n
                       can carry on their business<\/p>\n
                  The Trial Court has answered the said issue
\n                                                                   bearing         CS<\/p>\n
    on    the    finding        that   the Defendant         has      no     other<\/p>\n
    premises      in      his    occupation.      The       fact      that       the<\/p>\n
    Defendant        has    no other premises in            his      occupation<\/p>\n
    cannot      be    the sole basis to answer the issue                     under<\/p>\n
    consideration.           The tenant has not only to plead but<\/p>\n
    also to prove that inspite of his best efforts it was<\/p>\n
    not possible for him to get any other premises in the<\/p>\n
    same locality.          No such case has been made out by the<\/p>\n
    Defendant.         The      Trial Court proceeded on the                 basis<\/p>\n
    that the Plaintiffs nowhere in the plaint assert that<\/p>\n
    greater      hardship        will be caused to them in case                    of<\/p>\n
    refusal      of the decree.         Whereas, the Appellate Court<\/p>\n
    analysed      not      only pleadings, but also              evidence          on<\/p>\n
    record      and    instead      has    taken the        view      that       the<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                         20<\/span><\/p>\n
    original      tenant Ganpati Mulage, after his death                      has<\/p>\n
    left    behind Sidharam Ganpati Mulage as his only                        son<\/p>\n
    who    is residing separately from him.               The      Appellate<\/p>\n
    Court      has    then proceeded to hold that             no     hardship<\/p>\n
    will    be    caused to the legal heirs of              the      deceased<\/p>\n
    tenant who was residing separately from him.                       Even if<\/p>\n
    the    said      reason   by itself may not be            enough,         the<\/p>\n
    question      is    whether the Defendant has             pleaded         and<\/p>\n
    proved      the fact that inspite of best efforts he                      was<\/p>\n
    unable      to    find out another premises in              the      nearby<\/p>\n
    locality.\n<\/p>\n
    Defendant,<\/p>\n
                      In absence of such a case made out by the<\/p>\n
                      question     of   answering        the      issue         of<\/p>\n
    comparative        hardship in favour of the Defendant does<\/p>\n
    not arise.\n<\/p>\n
    15.         Insofar    as the opinion recorded by the Trial<\/p>\n
    Court      that    there is no averment in the plaint                   that<\/p>\n
    the    Plaintiffs      would     suffer greater         hardship,           is<\/p>\n
    misreading of the amended plaint.             Reading the plaint<\/p>\n
    as     a    whole    it   is     obvious    that      the      issue        of<\/p>\n
    comparative        hardship     ought    to be examined            in     the<\/p>\n
    context      of    the finding reached that the               Plaintiffs<\/p>\n
    have    no    other shop premises in the name of                   Mohamad<\/p>\n
    Ilahibaksh        Tamboli    or his son to start a pan                shop.\n<\/p>\n
    It    would      necessarily     follow that       the      comparative<\/p>\n
    hardship      would    be    caused to the       Plaintiffs.              The<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n                                      21<\/span><\/p>\n
    Plaintiffs      cannot    be   told to      acquire       alternative<\/p>\n
    premises    available in the locality.             It was for           the<\/p>\n
    tenant to take steps to find out alternative premises<\/p>\n
    atleast    immediately      after institution of the                suit,<\/p>\n
    which     relates       back    to     year    1980.           In       the<\/p>\n
    circumstances,      the    issue     of    comparative         hardship<\/p>\n
    though    answered by the Appellate Court for different<\/p>\n
    reasons will have to be upheld.\n<\/p>\n
    16.       Accordingly,      this     Petition deserves             to     be<\/p>\n
    dismissed being devoid of merits.             Hence dismissed.\n<\/p>\n
    17.       At    this    stage, Counsel for the            Petitioners<\/p>\n
    submits    that the Petitioners may carry the matter in<\/p>\n
    appeal    before    the Apex Court, for which reason                    the<\/p>\n
    Respondents      ought to maintain status quo as of today<\/p>\n
    with    regard    to the site on which the suit                premises<\/p>\n
    was    standing.       Counsel for the Respondents               submits<\/p>\n
    that the Respondents have no intention to immediately<\/p>\n
    start     any     construction        on      the       said        site.\n<\/p>\n
    Nevertheless,      the Respondents shall maintain                  status<\/p>\n
    quo    as of today of the said site, on which the                     suit<\/p>\n
    premises    were standing for a period of 12 weeks from<\/p>\n
    today.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>
\n            22<\/span><\/p>\n
                (A.M.KHANWILKAR,J)<\/p>\n
                 ::: Downloaded on – 09\/06\/2013 14:20:57 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Sidharam Ganpati Mulage vs Bashir Elahibaksh Tamboli on 13 February, 2009 Bench: A.M. Khanwilkar 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4492 OF 1992 1. Sidharam Ganpati Mulage, ) Age 36 yrs., Occ.Business, ) ) 2. Sulochana Mallinath Desai, ) Age 31 yrs., Occ.Household, ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-121566","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSidharam Ganpati Mulage vs Bashir Elahibaksh Tamboli on 13 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sidharam-ganpati-mulage-vs-bashir-elahibaksh-tamboli-on-13-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sidharam Ganpati Mulage vs Bashir Elahibaksh Tamboli on 13 February, 2009 - 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