Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1015 OF 2001
WITH
CIVIL APPLICATION NO. 3436 OF 2001
1. Natwarlal Dahyabhai Shah,
Since deceased through L.Rs.
1A) Jagdish Natwarlal Shah,
Age: 54 years, Occ: Business,
R/o. Block No. 78, Girivihar Society,
Nandurbar - 425 412.
(L.R. brought on record as per Court's
order dated 18.06.2010 in C.A.
No. 8731/2010) ... PETITIONERS
VERSUS
1. Smt. Jadaobai w/o Mishrimal Lalwani,
Since deceased her L.Rs.
1A. Chandanmal Mishrimal Lalwani,
Age: 51 years, R/o. Nandurbar,
Taluka & Dist. Nandurbar.
1B. Mishrimal Hansaji Lalwani,
Age: 76 years, R/o. Nandurbar,
Taluka & Dist. Nandurbar. ... RESPONDENTS
.....
Mr. S.P. Shah, Advocate holding for Mr. Girish Rane,
Advocate for Petitioners.
Mr. V.D. Sonawane, Advocate holding for
Mr. S.P. Brahme, Advocate for respondent No.1A.
.....
CORAM : N.W. SAMBRE J.
DATED : 10TH JUNE, 2014
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ORAL JUDGMENT :
. Heard respective Counsel. The present petitioner-tenant
has questioned the order passed by the Courts below in granting
decree for eviction and possession in favour of the landlady/her legal
heirs under the clause 'bonafide need' as contemplated under
Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House
Rates Control Act (57 of 1947). Hereinafter shall be referred to as
"Rent Act".
2. From the record it appears that Regular Civil Suit No. 81
of 1988 came to be filed by one Smt. Jadaobai w/o Mishrimal Lalwani
on 06/06/1988 against the present respondents praying therein
possession of the property consisting of a shop admeasuring 15 x 30
ft. constructed on C.T.S. No. 435/B and 436/B having Municipal
House No. 1278 within jurisdiction of Nandurbar Municipal Council,
which is locally identified the said property as 'Hat Darwaja Bazar'.
3. The property in question was rented out to respondent
on monthly rent of Rs. 40/- per month.
4. In the proceedings initiated before the learned Civil
Judge, Junior Division, the landlady canvassed bonafide requirement
for her own and her husband, as according to landlady, she is
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staying alongwith her husband, her mother. She further avered that
she intent to establish business in the said premises and as such,
sought decree for the possession of the property in question. The
claim of the landlady was objected by the petitioner by filing written
statement. The petitioner submitted that bonafide need as
canvassed by the landlady is not genuine. He submitted that the
husband of the landlady is engaged in the business of
Savkari/money lending and in relation to other premises in the said
building, the landlady has sought possession on the similar ground.
5. The learned Court of the Civil Judge, Junior Division,
Nandurbar granted decree in favour of the landlady which was
subject matter of the Civil Appeal No.71 of 1995 before the Court of
the Additional District Judge, Nandurbar. The learned Additional
District Judge, Nandurbar passed its judgment on 26/02/2001
upholding judgment of the trial Court ordering grant of possession of
the property in question to the landlady, under Section 13(1)(g) of the
Rent Act.
6. Being aggrieved thereby present petition.
. The petitioner-tenant submits that the suit of the landlady
was decreed by the judgment and decree dated 11/08/1995 wherein
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the learned Joint Civil Judge, Junior Division, Nandurbar ordered the
recovery of possession of the suit premises to the plaintiff from the
defendant. The defendant was directed to deliver the vacant
possession of the suit premises to the plaintiff. The said decree of
the possession is based upon bonafide need as pleaded in the plaint
of that husband of landlady. In support of the said claim of bonafide
need, the husband of the landlady has entered into witness box so as
to depose and justify the need.
. While dealing with the same, the learned trial Court has
framed Issue No.2 thus :
“2. Does plaintiff prove that the suit premises are
reasonably and bonafide required for occupation by
herself?.
and given finding on the said issue in the affirmative.
. While dealing with the above referred issue, the learned
trial Court has observed that the premises in question wherein the
present petitioner is doing business for more than 40 years, the
husband of the landlady Mishrimal has deposed that he has no
source of income and want the suit premises for running wholesale
business of Gur (jaggery). He further stated that he cannot run
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business from the residential premises because it is not the business
area. As such, the learned trial Court has decreed the suit.
. The Appellate Court has also confirmed the said findings
i.e. bonafide requirement pleaded by the landlady for establishing
business by her husband, and as such, confirmed the judgment and
decree passed by the Court below of eviction.
7. The ground that is canvassed by the petitioner in the
present petition is subsequent events qua bonafide need of landlady
or her husband should have been taken into account by the Courts
below. The learned Counsel for the petitioner vehemently urged that
the landlady has expired during pendency of the appeal and legal
heirs of landlady i.e., her husband and her son were brought on
record. During pendency of the present petition, the legal heir
namely husband of the landlady has expired and petition is defended
by only legal heir i.e., son of the landlady.
8. In the light of above, the contention of the petitioner is
that bonafide need of the plaintiff and her husband has extinguished
and as such, the orders passed by the Courts below needs to be
quashed and set aside. In support of this contention, the learned
Counsel for the petitioner has relied upon the judgment delivered by
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the Apex Court in the case of Sheshambal (Dead) Through LRS.
1
versus Chelur Corporation Chelur Building and others . The
Apex Court, according to the petitioner, mandates that subsequent
developments which has direct bearing over the pleadings in the
petition of the bonafide need is required to be looked into and the
same needs to be re-assessed.
9. While responding to the above mentioned submissions,
the learned Counsel for the landlady/land owner has submitted that
both the Courts below have concurrently held that bonafide need of
the landlady/landlord is proved. There is enough evidence available
on record that the shop in question is required for bonafide
occupation of the landlord. In support thereof, the learned Counsel
has placed reliance upon the judgment of the Bombay High Court in
the case of Balwant P. Doshi vs. Shantaben Dhirajlal Shah and
2
another . The learned Counsel further submitted that requirement
of the son has to be taken into account as landlord is best judge of
the situation. The learned Counsel for the respondent further
submitted that the bonafide need as was existing on the date of filing
of the suit needs to be taken into consideration and the subsequent
developments are of hardly any consquences while deciding the
petition. In support of the contention of the respondent, reliance is
1 (2010) 3 Supreme Court Cases 470
2 2002(4) Mh.L.J. 473
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placed in the matter of Dudhasingh Bala Chavan vs. Murlidhar
Gyanba Kudale (since deceased through his legal heirs) Kamal
3
@ Prema Murlidhar Kudale and others .
10. According to the respondent, son who is pursuing the
present proceedings is in need of the premises and as such, the
petition preferred by the petitioner is liable to be rejected. The
learned Counsel further urged that the son who is a legal heir of the
plaintiff landlady enters into the shoes of the plaintiff and as such, the
clause of bonafide need of the plaintiff is inherited by the son and as
such the decree of possession does not call for any interference.
11. From perusal of the pleadings raised by the landlady in
support of her bonafide need as reflected in the suit demonstrates
that bonafide need of landlady namely Smt. Jadaobai and her
husband is pleaded in clear terms. It is stated in paragraph-3 of the
said plaint that the premises in question are required by the landlady
so as to establish business alongwith her husband. There are no
pleadings as regards bonafide requirement of the son.
12. The perusal of evidence of husband of the plaintiff who
has entered into witness box in clear terms admits that other legal
heir namely son who is presently pursuing the petition was not
3 2009(3) Mh.L.J. 571
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staying with the landlady or her husband.
13. The fact remains that the landlady has expired during
pendency of the appeal whereas her husband who was brought on
record as one of the legal heir has expired during pendency of the
present petition. The Apex Court in the matter of Sheshambal
(Dead) Through LRS. versus Chelur Corporation Chelur
Building and others (supra) has laid down parameters particularly
in paragraphs-12,13,15,16 and 17 as regards subsequent
developments to be taken into account while deciding the claim of
the landlord and tenant for bonafide need. The said observation
reads thus :
"13. Neither before the Rent Controller nor before the
Appellate Authority was it argued that the requirement
in question was not only the requirement of the
petitioner owners of the premises but also the
requirement of any other member of their family
whether dependent upon them or otherwise. Not only
that, even in the petition filed before this Court the
requirement pleaded was that for the deceased
widowed owner of the demises premises and not of any
member of her family.
15. The position may indeed have been differentiated
if in the original petition the petitioner owners had
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pleaded their own requirement and the requirement of
any member of their family dependent upon them. In
such a case the demise of the original petitioners or any
one of them may have made little difference for the
person for whose benefit and bonafide requirement the
eviction was sought could pursue the case to prove and
satisfy such requirement.
16. Confronted with the above position Mr.
Vishwanathan made in generous submission. He
contended that the rights and obligations of the parties
get crystallised at the time of institution of the suit so
that any subsequent development is not only
inconsequential but wholly irrelevant for determination
of the case before this Court. Learned counsel sought
to extend that principle to the case at hand in an
attempt to persuade us to shut out the subsequent
event of the death of the original petitioners from
consideration. We regret to say that we do not see any
basis for the submission so vehemently urged before us
by Mr. Vishwanathan.
17. While it is true that the right to relief must be
judged by a reference to the date suit or the legal
proceedings were instituted, it is equally true that if
subsequent to the filing of the suit, certain
developments take place that have a bearing on the
right to relief claimed by a party, such subsequent
events cannot be shut out from consideration. What the
court in such a situation is expected to do is to examine
the impact of the said subsequent development on the
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right to relief claimed by a party and, if necessary,
mould the relief suitably so that the same is tailored to
the institution that obtains on the date the relief is
actually granted .
29. In the light of what we have stated above, we
have no hesitation in holding that on the death of the
petitioners in the original eviction petition their right to
seek eviction on the ground of personal requirement for
the demised premises became extinct and no order
could on the basis of any such requirement be passed
at this point of time ."
14. It is required to be taken a note of the fact that other
legal heir i.e., son is pursuing the present petition. There are no
pleadings in support of the bonafide need of the son. What is
pleaded in the plaint is bonafide need of the husband of the landlady.
The evidence also speaks about the bonafide need of the husband of
the landlady. There is no word in the evidence about the bonafide
need of son.
15. It is worth to observe here that if the legal heir intend to
continue the proceedings much less the proceedings wherein
possession of the property is sought under the clause 'bonafide need'
of the Rent Act, the judgment of the Apex Court cited supra mandate
that the bonafide need of legal heir should be pleaded and
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established. Just because he is legal heir, that does not if-so-facto
given him right to claim the possession of the property on the ground
of bonafide need, that was established by the original plaintiff. In the
eviction proceedings which were initiated for the possession of the
property, the landlady or her husband has pleaded their own
requirement that the premises to be occupied by them for the
purpose of carrying out the business. In the said civil suit or even in
the evidence, there is no whisper about bonafide need of any
member/L.R. of the plaintiff and the claim of bonafide need was
restricted to that of landlady and her husband, who have expired way
back.
15. In view of the above observations, subsequent
developments i.e., death of landlady and death of her legal heir
whose bonafide need was pleaded if taken into account, the
judgment decreeing the suit for possession for bonafide need needs
to be set aside.
16. In that view of the matter, writ petition is allowed. The
judgment and decree passed by the learned Civil Judge, Junior
Division, Nandurbar on 11/08/1995 in Regular Civil Suit No. 81 of
1988 confirming by the Additional District Judge, Nandurbar in Civil
Appeal No. 71 of 1995 by judgment and decree dated 26/02/2001 is
hereby quashed and set aside. Rule made absolute in above terms.
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In the circumstances, there shall be no order as to costs.
17. In view of the final disposal of the petition, civil
application also stands disposed of accordingly.
sd/-
[ N.W. SAMBRE J. ]
Tupe/10.6.14
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-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1015 OF 2001
WITH
CIVIL APPLICATION NO. 3436 OF 2001
1. Natwarlal Dahyabhai Shah,
Since deceased through L.Rs.
1A) Jagdish Natwarlal Shah,
Age: 54 years, Occ: Business,
R/o. Block No. 78, Girivihar Society,
Nandurbar - 425 412.
(L.R. brought on record as per Court's
order dated 18.06.2010 in C.A.
No. 8731/2010) ... PETITIONERS
VERSUS
1. Smt. Jadaobai w/o Mishrimal Lalwani,
Since deceased her L.Rs.
1A. Chandanmal Mishrimal Lalwani,
Age: 51 years, R/o. Nandurbar,
Taluka & Dist. Nandurbar.
1B. Mishrimal Hansaji Lalwani,
Age: 76 years, R/o. Nandurbar,
Taluka & Dist. Nandurbar. ... RESPONDENTS
.....
Mr. S.P. Shah, Advocate holding for Mr. Girish Rane,
Advocate for Petitioners.
Mr. V.D. Sonawane, Advocate holding for
Mr. S.P. Brahme, Advocate for respondent No.1A.
.....
CORAM : N.W. SAMBRE J.
DATED : 10TH JUNE, 2014
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ORAL JUDGMENT :
. Heard respective Counsel. The present petitioner-tenant
has questioned the order passed by the Courts below in granting
decree for eviction and possession in favour of the landlady/her legal
heirs under the clause 'bonafide need' as contemplated under
Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House
Rates Control Act (57 of 1947). Hereinafter shall be referred to as
"Rent Act".
2. From the record it appears that Regular Civil Suit No. 81
of 1988 came to be filed by one Smt. Jadaobai w/o Mishrimal Lalwani
on 06/06/1988 against the present respondents praying therein
possession of the property consisting of a shop admeasuring 15 x 30
ft. constructed on C.T.S. No. 435/B and 436/B having Municipal
House No. 1278 within jurisdiction of Nandurbar Municipal Council,
which is locally identified the said property as 'Hat Darwaja Bazar'.
3. The property in question was rented out to respondent
on monthly rent of Rs. 40/- per month.
4. In the proceedings initiated before the learned Civil
Judge, Junior Division, the landlady canvassed bonafide requirement
for her own and her husband, as according to landlady, she is
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staying alongwith her husband, her mother. She further avered that
she intent to establish business in the said premises and as such,
sought decree for the possession of the property in question. The
claim of the landlady was objected by the petitioner by filing written
statement. The petitioner submitted that bonafide need as
canvassed by the landlady is not genuine. He submitted that the
husband of the landlady is engaged in the business of
Savkari/money lending and in relation to other premises in the said
building, the landlady has sought possession on the similar ground.
5. The learned Court of the Civil Judge, Junior Division,
Nandurbar granted decree in favour of the landlady which was
subject matter of the Civil Appeal No.71 of 1995 before the Court of
the Additional District Judge, Nandurbar. The learned Additional
District Judge, Nandurbar passed its judgment on 26/02/2001
upholding judgment of the trial Court ordering grant of possession of
the property in question to the landlady, under Section 13(1)(g) of the
Rent Act.
6. Being aggrieved thereby present petition.
. The petitioner-tenant submits that the suit of the landlady
was decreed by the judgment and decree dated 11/08/1995 wherein
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the learned Joint Civil Judge, Junior Division, Nandurbar ordered the
recovery of possession of the suit premises to the plaintiff from the
defendant. The defendant was directed to deliver the vacant
possession of the suit premises to the plaintiff. The said decree of
the possession is based upon bonafide need as pleaded in the plaint
of that husband of landlady. In support of the said claim of bonafide
need, the husband of the landlady has entered into witness box so as
to depose and justify the need.
. While dealing with the same, the learned trial Court has
framed Issue No.2 thus :
“2. Does plaintiff prove that the suit premises are
reasonably and bonafide required for occupation by
herself?.
and given finding on the said issue in the affirmative.
. While dealing with the above referred issue, the learned
trial Court has observed that the premises in question wherein the
present petitioner is doing business for more than 40 years, the
husband of the landlady Mishrimal has deposed that he has no
source of income and want the suit premises for running wholesale
business of Gur (jaggery). He further stated that he cannot run
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business from the residential premises because it is not the business
area. As such, the learned trial Court has decreed the suit.
. The Appellate Court has also confirmed the said findings
i.e. bonafide requirement pleaded by the landlady for establishing
business by her husband, and as such, confirmed the judgment and
decree passed by the Court below of eviction.
7. The ground that is canvassed by the petitioner in the
present petition is subsequent events qua bonafide need of landlady
or her husband should have been taken into account by the Courts
below. The learned Counsel for the petitioner vehemently urged that
the landlady has expired during pendency of the appeal and legal
heirs of landlady i.e., her husband and her son were brought on
record. During pendency of the present petition, the legal heir
namely husband of the landlady has expired and petition is defended
by only legal heir i.e., son of the landlady.
8. In the light of above, the contention of the petitioner is
that bonafide need of the plaintiff and her husband has extinguished
and as such, the orders passed by the Courts below needs to be
quashed and set aside. In support of this contention, the learned
Counsel for the petitioner has relied upon the judgment delivered by
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-6-
the Apex Court in the case of Sheshambal (Dead) Through LRS.
1
versus Chelur Corporation Chelur Building and others . The
Apex Court, according to the petitioner, mandates that subsequent
developments which has direct bearing over the pleadings in the
petition of the bonafide need is required to be looked into and the
same needs to be re-assessed.
9. While responding to the above mentioned submissions,
the learned Counsel for the landlady/land owner has submitted that
both the Courts below have concurrently held that bonafide need of
the landlady/landlord is proved. There is enough evidence available
on record that the shop in question is required for bonafide
occupation of the landlord. In support thereof, the learned Counsel
has placed reliance upon the judgment of the Bombay High Court in
the case of Balwant P. Doshi vs. Shantaben Dhirajlal Shah and
2
another . The learned Counsel further submitted that requirement
of the son has to be taken into account as landlord is best judge of
the situation. The learned Counsel for the respondent further
submitted that the bonafide need as was existing on the date of filing
of the suit needs to be taken into consideration and the subsequent
developments are of hardly any consquences while deciding the
petition. In support of the contention of the respondent, reliance is
1 (2010) 3 Supreme Court Cases 470
2 2002(4) Mh.L.J. 473
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-7-
placed in the matter of Dudhasingh Bala Chavan vs. Murlidhar
Gyanba Kudale (since deceased through his legal heirs) Kamal
3
@ Prema Murlidhar Kudale and others .
10. According to the respondent, son who is pursuing the
present proceedings is in need of the premises and as such, the
petition preferred by the petitioner is liable to be rejected. The
learned Counsel further urged that the son who is a legal heir of the
plaintiff landlady enters into the shoes of the plaintiff and as such, the
clause of bonafide need of the plaintiff is inherited by the son and as
such the decree of possession does not call for any interference.
11. From perusal of the pleadings raised by the landlady in
support of her bonafide need as reflected in the suit demonstrates
that bonafide need of landlady namely Smt. Jadaobai and her
husband is pleaded in clear terms. It is stated in paragraph-3 of the
said plaint that the premises in question are required by the landlady
so as to establish business alongwith her husband. There are no
pleadings as regards bonafide requirement of the son.
12. The perusal of evidence of husband of the plaintiff who
has entered into witness box in clear terms admits that other legal
heir namely son who is presently pursuing the petition was not
3 2009(3) Mh.L.J. 571
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staying with the landlady or her husband.
13. The fact remains that the landlady has expired during
pendency of the appeal whereas her husband who was brought on
record as one of the legal heir has expired during pendency of the
present petition. The Apex Court in the matter of Sheshambal
(Dead) Through LRS. versus Chelur Corporation Chelur
Building and others (supra) has laid down parameters particularly
in paragraphs-12,13,15,16 and 17 as regards subsequent
developments to be taken into account while deciding the claim of
the landlord and tenant for bonafide need. The said observation
reads thus :
"13. Neither before the Rent Controller nor before the
Appellate Authority was it argued that the requirement
in question was not only the requirement of the
petitioner owners of the premises but also the
requirement of any other member of their family
whether dependent upon them or otherwise. Not only
that, even in the petition filed before this Court the
requirement pleaded was that for the deceased
widowed owner of the demises premises and not of any
member of her family.
15. The position may indeed have been differentiated
if in the original petition the petitioner owners had
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pleaded their own requirement and the requirement of
any member of their family dependent upon them. In
such a case the demise of the original petitioners or any
one of them may have made little difference for the
person for whose benefit and bonafide requirement the
eviction was sought could pursue the case to prove and
satisfy such requirement.
16. Confronted with the above position Mr.
Vishwanathan made in generous submission. He
contended that the rights and obligations of the parties
get crystallised at the time of institution of the suit so
that any subsequent development is not only
inconsequential but wholly irrelevant for determination
of the case before this Court. Learned counsel sought
to extend that principle to the case at hand in an
attempt to persuade us to shut out the subsequent
event of the death of the original petitioners from
consideration. We regret to say that we do not see any
basis for the submission so vehemently urged before us
by Mr. Vishwanathan.
17. While it is true that the right to relief must be
judged by a reference to the date suit or the legal
proceedings were instituted, it is equally true that if
subsequent to the filing of the suit, certain
developments take place that have a bearing on the
right to relief claimed by a party, such subsequent
events cannot be shut out from consideration. What the
court in such a situation is expected to do is to examine
the impact of the said subsequent development on the
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-10-
right to relief claimed by a party and, if necessary,
mould the relief suitably so that the same is tailored to
the institution that obtains on the date the relief is
actually granted .
29. In the light of what we have stated above, we
have no hesitation in holding that on the death of the
petitioners in the original eviction petition their right to
seek eviction on the ground of personal requirement for
the demised premises became extinct and no order
could on the basis of any such requirement be passed
at this point of time ."
14. It is required to be taken a note of the fact that other
legal heir i.e., son is pursuing the present petition. There are no
pleadings in support of the bonafide need of the son. What is
pleaded in the plaint is bonafide need of the husband of the landlady.
The evidence also speaks about the bonafide need of the husband of
the landlady. There is no word in the evidence about the bonafide
need of son.
15. It is worth to observe here that if the legal heir intend to
continue the proceedings much less the proceedings wherein
possession of the property is sought under the clause 'bonafide need'
of the Rent Act, the judgment of the Apex Court cited supra mandate
that the bonafide need of legal heir should be pleaded and
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-11-
established. Just because he is legal heir, that does not if-so-facto
given him right to claim the possession of the property on the ground
of bonafide need, that was established by the original plaintiff. In the
eviction proceedings which were initiated for the possession of the
property, the landlady or her husband has pleaded their own
requirement that the premises to be occupied by them for the
purpose of carrying out the business. In the said civil suit or even in
the evidence, there is no whisper about bonafide need of any
member/L.R. of the plaintiff and the claim of bonafide need was
restricted to that of landlady and her husband, who have expired way
back.
15. In view of the above observations, subsequent
developments i.e., death of landlady and death of her legal heir
whose bonafide need was pleaded if taken into account, the
judgment decreeing the suit for possession for bonafide need needs
to be set aside.
16. In that view of the matter, writ petition is allowed. The
judgment and decree passed by the learned Civil Judge, Junior
Division, Nandurbar on 11/08/1995 in Regular Civil Suit No. 81 of
1988 confirming by the Additional District Judge, Nandurbar in Civil
Appeal No. 71 of 1995 by judgment and decree dated 26/02/2001 is
hereby quashed and set aside. Rule made absolute in above terms.
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-12-
In the circumstances, there shall be no order as to costs.
17. In view of the final disposal of the petition, civil
application also stands disposed of accordingly.
sd/-
[ N.W. SAMBRE J. ]
Tupe/10.6.14
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