ORAL JUDGMENT

This is a petition by the original plaintiffs who filed a civil suit no. 2296 of 1976 in the court of 2nd Additional Judge, Court of small Causes at Pune for possession of the suit premises consisting of 4 khans situated on the ground floor and two khans situated on the 1st floor of the building at Gurwar Peth, Pune. Admittedly the tenant was running a business of hotel in the premises on the ground floor and the first floor premises were leased out for residence.

2. The plaintiffs sought possession of the entire premises on several grounds including on the ground of bonafide personal requirement. Inasmuch as the counsel Shri Jakhadi, appearing for the petitioners has restricted his submissions only on the issue of bonafide personal requirement and hardship; it is unnecessary to deal with other aspects discussed in the judgments of both the courts below.

3. So far as the case regarding bonafide reasonable requirement and hardship to the landlord is concerned, the learned Judge of the trial court held that the premises on the 1st floor are for residence and the plaintiffs were staying in the pot-mala, which caught fire and the plaintiffs were required to construct a shed in the open land as their belongings were burnt in the fire. The learned Judge of the trial court also found that the defendants do not appear to be using the 1st floor premises for residence and they had residential premises elsewhere. The learned Judge of the trial court therefore has held that as the premises on the 1st floor are not required by the defendants for residence possession thereof can be given to the plaintiffs without causing any hardship to the defendants.

4. So far as the requirement of the hotel premises are concerned the trial court found that the plaintiff is a hawker. The plaintiffs father was a poojari. However, he had no liking in the business and he was always residing outside Poona, and it is after fathers death he came to stay at Pune. He had no sufficient fund to start any new business. Even the business run by the plaintiff was running at losses. The plaintiff admits that he is a poojari and could not start any business. The learned Judge of the trial court therefore held that it can very well be held that the requirement of the plaintiff is not bonafide and reasonable to have business premises. However the learned Judge held that the plaintiff cannot be compelled to work as poojari till death. The plaintiff is selling cups and saucers on a small scale. therefore the requirement of the plaintiff cannot be said as malafide. The defendant was having business premises elsewhere. He sold the running business and started working as a manager of Surana and afterwords purchased the running business i.e. the suit premises. The learned Judge also held that though the plaintiff no.1 is not having much of business experience of selling cups and saucers he cannot be compelled to continue it. As such the learned Judge held that the plaintiffs need in bonafide and reasonable.

5. On the issue of hardship the learned Judge held that admittedly the business of hotel run by the defendant is not running in profit. It is not known whether all the sons of defendant are assisting him in running the hotel, and defendant is 55 years of age of now depend upon his sons. The learned Judge felt that some hardship is likely to be caused to the defendant but comparative hardship is more the landlord. It is on this reasoning that the learned Judge decreed the suit by his judgment and decree dated 29th November 1979.

6. Being aggrieved by the said judgment and decree of eviction the tenant-filed Civil Appeal no. 127 of 1980 to the District Court at Pune. The Ld District Judge Pune upheld the decree of the trial court on the ground of reasonable and bonafide requirement of the landlord so far as the 1st floor residential premises are concerned. However, regarding the premises on the ground floor wherein the defendant was running a hotel, the learned Judge referred to the admission of the plaintiff no.1 which is as under:.

"I cannot be pursue my business. My business is running in loss, as I am not a professional businessman. By birth I am a pujari. I cannot start

any profession."

and held that this evidence is sufficient to conclude that the plaintiff no.1 did not require ground floor shop premises for his business. Other plaintiffs were not examined. The learned Judge, therefore held that the need of the plaintiffs being the business premises on the ground floor is not reasonable and bonafide. Ultimately the learned 2nd Extra Assistant Judge, Pune by his judgment and order dated 18.6.1982 allowed the appeal partly. He confirmed the decree of possession is so far as the first floor premises are concerned. He further directed that the plaintiffs willnot be entitled to any right of ingress or egress through ground floor premises, and they will have to make suitable arrangement for that

purpose effecting suitable construction if necessary.

7. Being aggrieved by the said judgment and decree of the appeal court, the original plaintiffs have preferred this petition. Shri Jakhadi, the learned counsel for the petitioners, stated that the decree passed by the trial court was just and proper and the appeal court erred in reversing the part of the decree. Shri Jakhadi also submitted that as of today, the first floor premises are not in existence and defendant has also given possession of the ground floor premises to someone else and in the ground floor premises there is no hotel business but some telephone booth in being operated by some third party.

8. After having read the judgment of the appeal court I find that the appeal court had enough jurisdiction to reappreciate the evidence on record and come to its own conclusion. On the basis of the material on record it cannot be said that the conclusion reached by the learned Judge of the appeal court is perverse or not such, which no reasonable person could reach. In these circumstance I find it difficultts interfere with the finding of fact in writ jurisdiction.

9. So far as the submission regarding the present situation and that the defendant has parted with possession is concerned, it is always open to the landlord to proceed against the defendants on the allegednew grounds of cause of action accruing to him filing suit and the plaintiff landlord will obviously be at liberty to proceed accordingly. Those aspects cannot be decided or adjudicated upon in these proceedings.

In the result petition fails and the Rule is discharged. These shall be no order as to costs.