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IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
T.V. NALAWADE, J.
Rasiklal s/o. Revchand Shah - Petitioners.
Versus
Paraskumar s/o. Balchand Thole - Respondents.
CIVIL REVISION APPLICATION NO. 12 OF 2014 WITH CIVIL APPLICATION NO. 5088 OF 2014
Decided on : 13th June, 2014
On availability of alternate premises to the defendants and on the point of greater hardship, the evidence given by defendant No. 1 is not at all convincing. The evidence is not sufficient to discharge the burden which is on the tenant to prove that greater hardship will be caused to him if the order of eviction is made. The evidence of defendant No. 2 shows that 7 to 8 years prior to his deposition i.e. few years prior to the date of suit, he took two premises of the size of 22 x 22 sq. ft. for business. He has also admitted that he has built his own house. His evidence shows that he did not search for other premises for shifting the business from suit premises after learning about the needs of the landlord from the present suit. The evidence shows that the two shop premises acquired by the defendant No. 2 are in the same commercial locality and more constructions are going on in the locality for the purpose of business. His evidence that his wife and other son are doing business in the same locality at different place and the admission given by him that he has taken two premises, this Court holds that there is sufficient evidence to prove that no hardship will be caused to the defendants in the eviction order is made against the defendants.
There are also admissions in the written statement to the effect that defendant No. 3 is doing business at present in the suit premises. Exh. 45 is the lease document under which defendant No. 4 started doing business in the suit premises. This document shows that Shankarlal Shah (defendant No. 1) and Kachan L. Shah were partners of defendant No. 4 concern in the year 1966 when the premises was given on rent basis. Admittedly, defendant No. 1 was not family member of defendant No. 2. Defendant No. 3 was not partner of this firm. The admission given by defendant No. 2 shows that the partnership of 1966 is not in existence and defendant No. 3 is doing the business in the suit premises as the sole proprietor.
1. Admit. Notice after admission made returnable forthwith. By consent, heard both the sides for final disposal.
2. The proceeding is filed to challenge the judgment and decree of R.C.A. No 10/2008, which was pending in the Court of Principal District Judge, Aurangabad. The Principal District Judge has allowed the appeal filed by present respondent/plaintiff against judgment and decree of Rent Suit No. 17/2005, which was pending in the Court of Civil Judge, Junior Division, Aurangabad. The suit of the plaintiff is decreed on the grounds of
bonafide requirement for personal use and subletting by the tenant, the grounds provided under section 16 of the Maharashtra Rent Control Act.
3. The suit was filed in respect of shop premises, which is part of house No. 3-9-47 (old), 3-9-35 (new) situated at Shahaganj, Aurangabad. The plaintiff is landlord and he has contended that the suit property was given to defendant No. 4 - M/s. Ambika Machinery Stores as tenant. It is contended that defendant No. 4 was partnership firm at the relevant time and defendant Nos. 1 and 2 were it's partners. It is contended that defendant Nos. 1 and 2 have inducted defendant No. 3 as subtenant of the suit premises and defendant No. 3 is in possession of the suit premises as sub-tenant. Defendant No. 3 is son of defendant No. 2.
4. It is the case of landlord that in the past, he was cultivating his agricultural land, but as the agriculture was not profitable, he started business. He has contended that for doing the business, he shifted his residential place from Kasabkheda to Aurangabad. He has contended that he has three sons and one son is in service. He has contended that his one son is doing the business in the name of Maharashtra Sales Corporation in a shop premises which is adjacent to the suit premises. He has contended that he is also doing his business somehow in the same premises. He has contended that the other son is doing his business in the name of Aximo Technologies Maharashtra. It is contended that the said son is required to take two premises on rent basis for doing his business. He has contended that he is doing his business in the name of Darpan Distributors. He has contended that he wants the suit premises for doing business for himself and for his sons, for his family.
5. It is the case of landlord that defendant No. 2 has secured shop premises in the same locality in Kasliwal Building and there, the business of the suit premises can be shifted. It is contended that no hardship will be caused to the defendants, if the order of eviction is made against them.
6. Defendant Nos. 1 to 4 filed joint written statement. They denied that plaintiff has started doing the business and he has shifted his residential place to Aurangabad. They contended that the shop premises in which one son of plaintiff is doing the business is a big premises and there, plaintiff can do his own business. They admitted that there is a board of Darpan Distributors, the shop of plaintiff, on the premises of his son. They denied that plaintiff is doing the business in such name. They contended that other son of the plaintiff has his own premises and there, plaintiff can do the business.
7. It is the case of defendants that the suit premises is the only premises available to them for doing the business and it is the only source of livelihood for them. They have contended that since 1968, they are doing the business in the suit premises and they have acquired goodwill of the business there. Defendant No. 2 has admitted that two shop premises are taken in other building, but he has contended that the said business in the name of Akshai Agency is being done by Jitendra Shah and Rajanben Shah as partners (son and wife of defendant No. 2). It is contended that defendant No. 3 is living separate from his mother and brother and defendant No. 3 has no alternate premises.
8. The defendants have denied the case of subletting. They have contended that initially Lalitaben,
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