Shri Shripad Bhaskar Bhagwat v. Smt. Mangal Madhukar Jogalekar

2 Facts, of the case are as under:. Let me refer the parties as per their status in the suit, i.e., plaintifs and defendants. Respondents/plaintifs instituted Regular Civil Suit No.157 of 2010 to recover possession of the suit shop premises on the ground that premises are reasonably and bonafde required for starting an eatery/hotel and arrears of rent. Suit premises are, two shops situated at CTS No.105, Jogalekar Wadi, Ambedkar Chowk, Daund; mentioned in paragraph 1A and 1B of the plaint. Suit shop 1A is admeasuring 382 sq.ft. at ground floor where the defendant no.1 is running grocery shop and shop no.1B admeasuring 332 sq.ft. on the frst floor, where the defendant nos.[2] and 3 are running photo shop. On 6th May, 2010, plaintifs terminated the tenancy and demanded possession of the suit shops, which defendants did not surrender. Plaintifs’ case is that they were running a hotel at Village: Kashti, Taluka: Shrigonda, which they had shut and shifted to Daund. That family members, who are eleven in numbers intent to start hotel in the suit shop premises, which is in the market and thus, it is most ideal location. Plaintifs pleaded their need, is genuine. Plaintifs pleaded, defendants had at their disposal, suitable property at Survey No.105/A-1/22/2/1 having commercial potential and pending suit, defendants sold part of the property to M/s. Chaitanya Developers, for the consideration of Rs.1,12,50,000/-. Thus, it is contended, that if the decree of possession is not passed in favour of the plaintifs, greater hardship would be caused to them. Defendants denied need and requirement of the plaintifs is genuine. They submitted that plaintifs have other properties at Baramati and additionally, have property at Daund being CTS Nos.1826 to 1830 where they are running business of, ‘lodging and boarding’. Contention is that, plaintifs can start their hotel/ eatery in the said property.

3 The learned trial Court upheld the plaintifs’ genuine need and partly decreed the suit. However, decree was refused on the ground of arrears of rent.

4 Heard learned counsel for the parties.

5 Courts below concurrently held that pending suit, defendants/tenants, sold part of their property to M/s. Chaitanya Developers only after seeking permission for its change of user. Finding is rendered, that the, property sold by the defendants, has had commercial potential and it was located in market area. In fact, defendant no.1 admitted in the evidence, that part of the property, i.e., Plot No.1 is yet in their possession. Undoubtedly, evidence of defendant no.1 has established a fact that plot of land (Plot No.2) sold by them, has been also used for construction of shops. To arrive at this fnding, Courts have relied on the evidence of shop inspector, defendant no.1, besides, title documents, in respect of the property CTS Nos.1826 to 1830. As against this, both the Courts, rendered a fnding of fact, that plaintifs have established their reasonable and genuine need for the suit premises. Defendants countered the need of the plaintifs, by contending that plaintifs are in possession of the property CTS Nos.1826 to 1830 where they are conducting business in the name of M/s. Samarth Lodge. However, evidence shows, this property was purchased, by Prabhakar Jogalekar, paternal uncle of Plaintifs Nos.2,[3] and 4 in his name. But, it appears in Municipal record, name of the plaintifs is shown as ‘Manager’ of the Samarth Lodge. Thus, relying on this fact, defendants contended, the plaintifs have adequate and suitable premises, at their disposal for starting the hotel and, therefore, their need for the suit premises is neither reasonable nor bonafde. Yet, the Courts, found that the property CTS Nos.1826 to 1830 was purchased by Prabhakar Jogalekar and although names of the plaintifs are recorded as ‘Manager’ of the said lodge, that itself is not sufcient to infer/hold that it is either owned by the plaintifs and/or it is available for starting hotel over there. Therefore, in consideration of the evidence, Courts below have correctly concluded that the plaintifs/landlords have established their bonafde need for the suit shops for starting Hotel, in interest of eleven family members.

6 In so far as the comparative hardship is concerned, it may be stated that pending suit, defendants have sold out part of the property of commercial potential to Developer for consideration and it has been put to commercial use. Property sold out was in market area of Daund City. Besides, defendants have admitted, part of the property, i.e., plot no.1 is yet available. As against it, in consideration of the fact that plaintifs’ family consists of eleven members but they have no suitable premises to start hotel, the issue as regards the comparative hardship as is, answered against the tenants, cannot be faulted with.

7 The learned counsel for the applicants strenuously argued that Courts below ought to have granted partial decree of eviction in terms of the provisions of Section 16(2) of the Maharashtra Rent Control Act. In my view, taking into account evidence, it cannot be said that Courts below have failed to exercise the jurisdiction by not granting decree in respect of the part of the suit premises.

8 Thus, to be stated that fndings recorded by the Courts below is in accordance with law and it is not sufered from any error of law. Mr. Wakankar, learned counsel for the applicants has rightly relied on the judgment of the Apex Court in the case of Sri Raja Lakshmi Dyeing Works v. to contend that the High Court in revisional jurisdiction should not re-appreciate the evidence as if in the First Appeal and enter diferent fnding though another fnding might also be possible. Paragraph 3 of the cited judgment reads as under;

10 In the result, revision application is dismissed.

11 Mr. Deshmukh, the learned counsel for the applicants, submits that let the eviction decree be stayed for twelve weeks. In view of the facts and the prevailing circumstances, the execution of the decree is stayed for ten weeks. (SANDEEP K. SHINDE, J.)