1. After the petition was dismissed, the learned counsel appearing on behalf of the Petitioner again mentioned the matter at 5 p.m. and, therefore, at his request, the order was not signed and, thereafter, the Petitioner is permitted to re-argue the case in the interest of justice.

2. Brief facts are that the Petitioner Sharad Murlidhar Shukla was the Original Plaintiff. The Petitioner Nos.2 and 3 have been added as Petitioners in this petition since they have stepped into the shoes of the Petitioner No.1. The Respondent is the original Defendant. The Petitioner No.1 is the original landlord and the Petitioner Nos.2 and 3 have purchased the property from the Petitioner Nos.1 and, therefore, are the new landlords (for the sake of convenience the parties are referred to as “the Original Plaintiff and the Original Defendant” and the Petitioner Nos. 2 and 3 are referred to as “the new landlords”).

3. Brief facts are that the suit was filed initially by the uncle of the Sharad i.e. the Original Plaintiff – Prabhakar for eviction of the tenant from the suit property on the ground of bonafide requirement to have access to his property since existing access has fallen to the share of his brother Dattatraray. During the pendency of the suit, Prabhakar sold his share to Sharad and continued to pursue the suit. However, no amendment was made in the pleadings. It was contended in the plaint that the property consisted of one bungalow (wada) and there was a partition in the year 1975 and one shop and certain residential premises on the first floor came to the share of Prabhakar. In the plaint, it was pleaded that Prabhakar wanted possession of the room which was used as a tailoring shop by the Defendant-Tenant for making a passage for entering in the suit house No. 1041-1B since there was no separate passage for making the entries in this building particularly since the existing passage had gone to the share of Dattatraya. The Trial Court decreed the suit after coming to the conclusion that the bonafide requirement was established and also the Trial Court came to the conclusion that greater hardship would be caused to the landlord and not to the tenant. In appeal, however, the Appellate Court set aside the judgment and order of the Trial Court and dismissed the suit. The Appellate Court came to the conclusion that the bonafide requirement was not established by the Plaintiff. It also held that the greater hardship would be caused to the Defendant and not to the landlord.

4. I have heard both the counsel at length. The learned counsel appearing on behalf of the Petitioners submitted that firstly, that the Appeal Court could not have gone into the genuineness of the partition. In support of the said submissions, the learned counsel has relied on the judgment of the Learned Single Judge of this Court in the case of Yogesh Dattaram Pathak vs. Shrikrishna Shriram Joshi [2003 (Supp.) Bom. C.R. 587]. It was then submitted that the Appeal Court has not taken into consideration the fact that the landlord had not taken into consideration this aspect. It was further submitted that it is a settled position in law that the Court of the tenant could not dictate the landlord regarding his need for bonafide requirement. In support of the said submission,he relied on the judgment of the Apex Court in the case of Meenal Eknath Kshirsagar vs. Traders & Agencies and Another [1997 (1) Mh.L.J. Page 121]. Another judgment of the Apex Court in the case of R.C. Tamrakar and Another Vs. Nidi Lekha [2001(8) SCC page 231). It was submitted that the observation made by the Lower Appellate Court was directly contrary to the observation made by the Apex Court in the aforesaid judgments. It was then submitted that the Defendant- Tenant had admitted in his cross examination that he had not taken any steps for acquiring an alternate premises and also had not made any search in that direction. It was submitted that this Court in the case of Nana Narayan Kamble v