[1.0] Present Civil Revision Application under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “Bombay Rent Act”) has been preferred by the petitioner herein – original plaintiff to quash and set aside the impugned judgment and order dated 29.04.2000 passed by the learned Appellate Court – learned Joint District Judge, Sabarkantha, at Himatnagar in Regular Civil Appeal No.45 of 1997 by which the learned Appellate Court has allowed the said Appeal preferred by the original defendant – tenant – father of the respondents herein and has quashed and set aside the judgment and decree passed by the learned trial Court dated 30.09.1997 in Regular Civil Suit No.2 of 1996 by which the learned trial Court passed the eviction decree in favour of the petitioner – landlord under Section 13(1)(g) of the Bombay Rent Act i.e. on the ground of bonafide and personal requirement of the suit shop by the plaintiff – landlord. [2.0] That the petitioner herein – original plaintiff – landlord instituted the Regular Civil Suit No.2 of 1996 against the original defendant – tenant for recovery of the possession / eviction decree on the ground of subletting and on the ground of bonafide and personal requirement of the suit shop by the plaintiff. It was the case on behalf of the petitioner – plaintiff that he was the owner of the suit shop and he reasonably and bonafidely required the suit shop for his personal use and occupation for business in as much as he was doing his business in a galla/cabin belonging to the Himatnagar Nagarpalika and that he was in need of a better, more secured and larger premises and that he was in dire need of the suit shop and the defendant was in possession of number of shops for nonresidential premises and therefore, if the eviction decree is passed, the defendant would not suffer any hardship and if the eviction decree is not passed, the plaintiff would suffer greater hardship.
[2.1] The suit was resisted by the defendant by filing the written statement denying the bonafide and personal requirement of the suit premises by the landlord. It was the case on behalf of the defendant that the other four shops are being run by his sons independently and one shop which was run by him was shifted to Revdi Bazar, Ahmedabad and therefore, it was the case on behalf of the defendant – tenant that if eviction decree is passed, he would suffer greater hardship.
[2.2] That the learned trial Court framed issues at Exh.12. To prove the bonafide and personal requirement, the plaintiff himself was examined at Exh.18. He produced documentary evidences to prove that the defendant has other four shops in the Himatnagar Town itself. That the defendant himself came to be examined at Exh.46. He also produced some documentary evidences in support of his case that other shops namely Sabugar Brothers, Sabugar Textiles, Sabugar Emporium, Tavakkal Matching Centre are being run by his sons. That on appreciation of evidence and considering the submissions made on behalf of rival parties, the learned trial Court by judgment and decree dated 30.09.1997 decreed the suit and passed the decree on the ground of bonafide and personal requirement of the suit premises of the plaintiff – landlord by holding that if the eviction decree is passed, the defendant would not suffer any hardship and on the other hand if the eviction decree is passed by the learned trial Court dated 30.09.1997 in Regular Civil Suit No.2 of 1996, the original defendant – landlord preferred Regular Civil Appeal No.45 of 1997 and the learned Appellate Court by impugned judgment and order has allowed the said Appeal by quashing and setting aside the judgment and decree passed by the learned trial Court.
[2.3] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.04.2000 passed by the learned Appellate Court in Regular Civil Appeal No.45 of 1997, the petitioner herein – original landlord – original plaintiff has preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
[2.4] It is required to be noted that during the pendency of the present Civil Revision Application, the original defendant – Mohammed Usman Ibrahimbhai Sabugar has expired and the respondents are brought as heirs and legal representatives of the original defendant – tenant.
[3.0] Shri Girish D. Bhatt, learned advocate appearing on behalf of the petitioner – original plaintiff – landlord has vehemently submitted that the learned Appellate Court has materially erred in allowing the Appeal and quashing and setting aside the judgment and decree passed by the learned trial Court.
[3.1] It is submitted that when on appreciation of evidence the learned trial Court held that the plaintiff has proved bonafide and personal requirement and considering the fact that the original defendant had other four shops in the Himatnagar Town itself and therefore, if the eviction decree is passed, the defendant would not suffer greater hardship, the judgment and decree passed by the learned trial Court was not required to be interfered by the learned Appellate Court.
[3.2] It is submitted that the plaintiff was doing the business only in a small cabin on road belonging to Himatnagar Nagarpalika and therefore, the suit shop was required by him for his better future and for maintenance of his family members and therefore, the plaintiff is in greater need of the suit shop. It is submitted that on the other hand the original defendant had four shops namely Sabugar Brothers, Sabugar Textiles, Sabugar Emporium and Tavakkal Matching Centre and therefore, if the eviction decree is passed, the defendant would not suffer greater hardship. It is submitted that on the contrary by not passing the eviction decree, the plaintiff – landlord would suffer greater hardship. It is further submitted that now even the case on behalf of the original defendant that the other shops are being run by his sons independently and therefore, no eviction decree can be passed is concerned, the same does not survive now when the original defendant has died and other sons who were running the business in other shops are the respondents herein. Therefore, it is requested to allow the present Civil Revision Application and quash and set aside the impugned judgment and order passed by the learned Appellate Court and restore the judgment and decree passed by the learned trial Court.
[4.0] Present Civil Revision Application is opposed by Shri Dave, learned advocate for Mrs. V.D. Nanavati, learned advocate appearing on behalf of the respondents herein – heirs and legal representatives of the original defendant – tenant. Shri Dave, learned advocate appearing on behalf of the respondents herein has submitted that the impugned judgment and order passed by the learned Appellate Court is on reappreciation of evidence which is not required to be interfered by this Court in exercise of powers under Section 29(2) of the Bombay Rent Act.
[4.1] It is submitted that in the facts and circumstances of the case and when it was found that the other shops were being run by the sons of the original defendant independently and when the learned Appellate Court has held that if the eviction decree is passed, the tenant would suffer greater hardship and when consequently the learned Appellate Court has quashed and set aside the eviction decree passed by the learned trial Court, the same is not required to be interfered by this Court in revisional jurisdiction. Therefore, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted and it is an admitted position that the petitioner herein – original plaintiff – landlord was in occupation of a very small wooden galla/cabin belonging to Himatnagar Nagarpalika. Therefore, he required the suit shop for doing business in the suit shop for his better future. On the other hand it has been found that the original defendant had about six shops in Himatnagar Town itself out of which four shops were of his ownership and two other shops were given on rent. It has also come on record that in four shops, the defendant was doing his business in the name and style of Sabugar Brothers, Sabugar Textiles, Sabugar Emporium, Tavakkal Matching Centre. However, it was the case on behalf of the defendant that except one, other shops were being run by his sons independently and so far as one shop i.e. another shop is concerned, the same was shifted to Revdi Bazar, Ahmedabad. However, it is required to be noted and even so observed by the learned Appellate Court that the defendant has failed to prove that the shop of Sabugar Emporium was shifted to Revdi Bazar, Ahmedabad. Considering the aforesaid facts and circumstances, the learned Appellate Court has materially erred in quashing and setting aside the eviction judgment and decree passed by the learned trial Court. When the original plaintiff – landlord was admittedly doing the business in a small cabin/galla belonging to Himatnagar Nagarpalika and on the other hand the defendant had aforesaid suit shop, it can certainly be said that the plaintiff is in bonafide and personal requirement of the suit shop for carrying on business by himself and that if the eviction decree is passed, the defendant would not suffer greater hardship and on the other hand if the eviction decree is not passed the plaintiff would suffer a greater hardship than the defendant.
[5.1] It is also required to be noted at this stage now that during the pendency of the Civil Revision Application, the original defendant who was in possession of the suit premises had expired. It is an admitted position and even as per the case of the original defendant, other four shops namely Sabugar Brothers, Sabugar Textiles, Sabugar Emporium, Tavakkal Matching Centre were being run by his sons independently who are respondent Nos.1/1 to 1/4 herein. Considering the above subsequent development also, it can be said that if the eviction decree is passed, the respondents herein would not suffer any hardship and on the contrary if the eviction decree is not passed, the plaintiff would suffer a greater hardship. Bonafide personal requirement of the plaintiff is proved. However, at the relevant time question was with respect to who will suffer the greater hardship. Now, when the plaintiff is in possession of a small galla/cabin of Himatnagar Nagarpalika and when the respondents herein are having their business in different shops namely Sabugar Brothers, Sabugar Textiles, Sabugar Emporium and Tavakkal Matching Centre, respondents would not suffer any hardship if the eviction decree is passed.
[6.0] In view of the above and for the reasons stated above, present Civil Revision Application succeeds and the impugned judgment and order dated 29.04.2000 passed by the learned Joint District Judge, Sabarkantha, at Himatnagar in Regular Civil Appeal No.45 of 1997 is hereby quashed and set aside and the judgment and decree dated 30.09.1997 passed by the learned trial Court in Regular Civil Suit No.2 of 1996 is hereby restored. The respondents are directed to handover the peaceful and vacant possession of the suit premises to the appellant – original plaintiff – landlord within a period of three months from today. Rule is made absolute to the aforesaid extent. No costs.
(M.R. Shah, J.) menon