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2022 DIGILAW 1332 (BOM)

Abdul Gani v. Dilip Gopaldas Duwani

2022-05-06

ROHIT B.DEO

body2022
JUDGMENT 1. The petitioner is the plaintiff in Regular Civil Suit 195/2013, which is instituted against respondent 1 Mr. Dilip Gopaldas Duwani, seeking decree of eviction, possession and mesne profits qua the shop block 7, situated on plot 190, Jamnalal Bajaj Ward, Bhandara ("Suit Block"). 2. The petitioner - who shall be hereinafter referred to as the landlord - sought eviction of the respondent 1 - who shall be hereinafter referred to as the tenant, on the ground that the Suit Block is needed for the personal bonafide use of the landlord, and that the tenant is irregular in payment of rent. 3. The learned Joint Civil Judge, Junior Division, Bhandara ("Trial Court") decreed the suit vide judgment dtd. 25/1/2016 and directed the tenant to deliver the vacant possession of the Suit Block to the landlord. 4. The judgment and decree of the Trial Court was assailed by the tenant in Regular Civil Appeal 19/2016, which came to be allowed by the District Judge - 1, Bhandara ("Appellate Court"), vide judgment dtd. 16/8/2018. 5. Aggrieved, the landlord is invoking writ and supervisory jurisdiction. 6. Pleadings: The landlord contended that his father Mr. Sheikh Hasam owned several properties and after Mr. Sheikh Hasam expired, Regular Civil Suit 197/1994 was instituted seeking partition. The landlord was granted 2/9th share. The tenant was a party to the partition suit, and symbolic possession of the Suit Block was given to the landlord. The landlord then contended that after instituting certain ill advised proceedings, the suit for eviction is instituted. The landlord is a retired employee of the Maharashtra State Road Transport Corporation. The landlord receives honorarium of Rs.550.00 (Rupees Five Hundred Fifty) per month and is not entitled to pension. The landlord is interested in starting general stores to augment the monthly income, and needs the Suit Block. The daughter of the landlord is married and settled at Nagpur. The landlord further contended that the defendant is irregular in payment of rent. The tenant resisted the eviction claim by filing written statement. The tenant denied every allegation in the suit plaint. The defendant claimed that the rent was duly sent through Money Orders which the landlord did not accept, and therefore, the tenant started depositing the rent in the bank. The tenant contended that he has a joint family to support. The tenant resisted the eviction claim by filing written statement. The tenant denied every allegation in the suit plaint. The defendant claimed that the rent was duly sent through Money Orders which the landlord did not accept, and therefore, the tenant started depositing the rent in the bank. The tenant contended that he has a joint family to support. The joint family is entirely dependent upon the income generated from "Ganpati Metal Work" which the tenant runs from the Suit Block. 7. Evidence adduced by the parties: The landlord stepped into the witness box and the affidavit in lieu of the oral examination-in-chief is broadly on the lines of the plaint averments. In cross-examination, the landlord deposed that he is aged 70 years and has suffered a cardiac arrest. The landlord denied the suggestion that he is advised bed rest. The landlord accepted that on the rear side of the Suit Block, he has constructed a building in which two shop blocks are situated on the first floor and space is left open on the ground floor. The landlord volunteered that the shop blocks are constructed for the benefit of his daughter. The landlord accepted that one of the two shop blocks is let out to Mr. Jadhav and the other is vacant. The landlord further accepted that the house at Kazi Nagar in which he is residing with his wife, is owned by his wife and that in the said house, there are two tenants from whom Rs.800.00(Rupees Eight Hundred) is received as monthly rent. The daughter of the landlord also stepped into the witness box. She asserted that her father does not receive pension, that he is not in a position to climb stairs and that out of the two shop blocks which are constructed at the rear side of the Suit Block, one shop is let out to a friend's son. In the cross-examination, landlord's daughter Ms. Shabana accepted that the landlord is aged 75 yrs and he has suffered paralytic stroke. She denied the suggestion that due to advanced age, her father - landlord is not keeping well. The tenant stepped into the witness box and emphasized that on the first floor of the nearby building, the landlord owns two shop blocks let out to Mr Jadhav and Mr. Shamsuddin. She denied the suggestion that due to advanced age, her father - landlord is not keeping well. The tenant stepped into the witness box and emphasized that on the first floor of the nearby building, the landlord owns two shop blocks let out to Mr Jadhav and Mr. Shamsuddin. The tenant then contended that at Bhandara, the landlord owns residential house, portion of which is let out. The tenant asserted that the rental income is sufficient for the livelihood of the landlord. In the cross-examination, the tenant denied the suggestion that he is the owner of the residential house and claimed that the house is owned by his sister. The tenant denied the suggestion that alternate accommodation is available on the same street where the Suit Block is located and the tenant can shift his business to such alternate premise. The brother of the landlord Mr. Abdul Nabi deposed as DW 2. It appears that DW 2 Mr. Abdul Nabi is examined on the aspect of the payment of rent although he has also supported the tenant by asserting that the two shop blocks which are available on the first floor, are let out by the landlord. Mr. Abdul Nabi claims that the landlord has residential house at Kazi Nagar and portion thereof is occupied by two tenants, who cumulatively pay monthly rent of Rs.3,000.00 (Rupees Three Thousand). It appears that the brother of the landlord DW 2 Mr. Abdul Nabi is motivated presumably in view of the earlier litigation concerning the partition of the property left behind by Mr. Sheikh Hasam. In the cross-examination, the credibility of deposition of DW 2 is shaken. Substantial part of the deposition, if not the entire deposition, is not supported by any documentary or other corroborative material. The witness, who is the brother of the plaintiff, in his anxiety to support tenant, denied that in view of the age and heart ailment, his brother - the landlord is not advised to climb up and down the stairs. 8. The judgment of the Trial Court: The learned Trial Court held the bonafide need of the landlord proved. The witness, who is the brother of the plaintiff, in his anxiety to support tenant, denied that in view of the age and heart ailment, his brother - the landlord is not advised to climb up and down the stairs. 8. The judgment of the Trial Court: The learned Trial Court held the bonafide need of the landlord proved. The learned Trial Court noted the well entrenched position of law that ordinarily, the landlord is the best judge of the need and that considering the age and heart ailment of the landlord, the need is not satisfied by the two shop blocks which are constructed on the upper floor of the adjoining building. The learned Trial Court recorded a finding that while the landlord admitted that Rs.800.00 (Rupees Eight Hundred) per month are received as rent from the tenants in the residential house, the said amount is grossly inadequate to meet the day to day expenditure. One of the questions which fell for consideration was, whether the assertion by the landlord that he does not receive pension and that an integral aspect of the bonafide need is the requirement to augment the monthly income. The learned Trial Court considered the said aspect thus: "13. From the above evidence it is clear that plaintiff has a source of income. However, it is necessary to see whether such income is sufficient for plaintiff to maintain himself and his family. The plaintiff has merely admitted getting rent from Jadhav but no specific question was put to plaintiff regarding the amount that he receives towards such rent. The plaintiff admitted getting rent of Rs.800.00 from the tenants in his house. But the amount of Rs.800.00 is very meager and is totally insufficient for anybody's maintenance. Moreover the plaintiff has stated specifically that it is the second month of tenancy of Jadhav. Thus from evidence of plaintiff it is clear that he has given his shop to Jadhav on rent in year 2015. This in fact shows that the plaintiff is in need of the money and for that he gave his shop to Jadhav on rent. Plaintiff was not cross-examined on any specific amount of pension which he might allegedly be getting. 14. The plaintiff as well as his PW 2 Shabana specifically denied that plaintiff gets the pension. This in fact shows that the plaintiff is in need of the money and for that he gave his shop to Jadhav on rent. Plaintiff was not cross-examined on any specific amount of pension which he might allegedly be getting. 14. The plaintiff as well as his PW 2 Shabana specifically denied that plaintiff gets the pension. The defendant's witness DW 2 Abdul Nabi submitted in his cross-examination that the plaintiff is getting Rs.7000.00 as pension. However there is no documentary evidence on record to prove this submission of DW 2 Abdul Nabi. Thus plaintiff may be getting certain income but that does not appear to be sufficient for him to maintain himself. 15. The plaintiff has also claimed that he is aged and wants to run business in the suit property. The P.W. 2 Shabana, who is daughter of plaintiff, also submitted in evidence that the plaintiff cannot use stairs thereby suggesting that he cannot use his other two shops as they are on upper floor. The Ld. Advocate for the plaintiff argued that the plaintiff is old and heart patient. Thus the suit property is most convenient for the plaintiff and that plaintiff will suffer more hardship if his prayer is refused. 16. The plaintiff is aged and admittedly a heart patient. It is the submission of the defendant that due to these health reasons plaintiff cannot carry on any business and hence has no bonafide need. The plaintiff's meager income is already discussed above. His heart disease may prove obstacle for him to run any business on the upper floor shops as for carrying on business he will have to take stairs daily which will be improper for his health." On the aspect of comparative hardship, the learned Trial Court, held that it was for the tenant to search for alternate accommodation since the landlord had secured symbolic possession and had issued notice expressing the intention of terminating the tenancy. The learned Trial Court further held that the business of the tenant can be shifted elsewhere and that the aged landlord is not expected to search suitable place to start the proposed stores. In conclusion, the learned Trial Court held the landlord entitled to decree of eviction, as noted supra. 9. Judgment of the Appellate Court: The learned Appellate Court recorded a finding that the landlord is not a trustworthy witness. In conclusion, the learned Trial Court held the landlord entitled to decree of eviction, as noted supra. 9. Judgment of the Appellate Court: The learned Appellate Court recorded a finding that the landlord is not a trustworthy witness. Such finding was recorded on the premise that in the affidavit, the age of the landlord is mentioned as 74, while in the cross-examination, the landlord deposed that he is 70 years. The learned Appellate Court then noted that the two shops are situated on the upper floor of the adjoining building and the need of the landlord to start general stores can be satisfied from the vacant shop on the upper floor. The learned Appellate Court was alive to the heart ailment of the landlord. However, the learned Appellate Court offered a gratuitous advise to the landlord that even if it is assumed that the landlord cannot climb up stairs, then the empty space which is available on the ground floor can be utilized. On the aspect of comparative hardship, the learned Appellate Court held that the question of determining comparative hardship arises only after the landlord proves bonafide need. The learned Appellate Court then proceeded to observe that it is highly improbable that the landlord "in the evening of his life" and having no son, has desire to start general stores. The learned Appellate Court answered the issue of comparative hardship in favour of the tenant on the premise that the tenant is carrying on business in the Suit Block since 1988 and there is nothing on record to show that alternate accommodation is available to the tenant. The entire family of the tenant is dependent on the earnings, is the finding recorded by the learned Appellate Court. 10. Submissions : Mr. N.S. Khubalkar, the learned counsel for the landlord would submit that the learned Appellate Court committed grave error in interfering with the well reasoned judgment of the learned Trial Court. Mr. N.S. Khubalkar would submit that the judgment impugned flies in the teeth of the well settled principle of law that the landlord is the best judge of his need and that the Court cannot supplant its view as regards the need of the landlord. Mr. N.S. Khubalkar would argue that it was not permissible for the learned Appellate Court to advise the landlord how to organize his business affairs. Mr. N.S. Khubalkar would argue that it was not permissible for the learned Appellate Court to advise the landlord how to organize his business affairs. The finding rendered by the learned Appellate Court that the need can be satisfied by using the empty space behind the Suit Block or the vacant shop on the first floor ignores that the landlord is not in a position to climb the stairs and the empty space is not an alternative accommodation, as is assumed. Mr. N.S. Khubalkar would submit that while the need must be bonafide and muster an objective scrutiny. The choice of the suitable premises to satisfy the need must be necessarily left to the subjective satisfaction of the landlord. Neither the tenant nor the Court can advise much less dictate, as to the manner in which, the landlord ought to satisfy the need. Mr. N.S. Khubalkar would submit that the findings recorded that if decree of eviction is refused, the landlord shall not be put to hardship, dangerously borders on perversity. Mr. N.S. Khubalkar would submit that such finding is recorded, inter alia on the assumption that the landlord can set up the general stores business either in the empty space or then on the upper floor shop block. Anticipating to the argument likely to be canvased on behalf of the tenant that the landlord is guilty of suppression of material facts, Mr.N.S. Khubalkar would invite my attention to certain observations of the Apex Court in M.M. Quasim vs. Manohar Lal Sharma and Others, (1981)3 SCC 36 to buttress the submission that non-disclosure cannot ipso facto entail rejection of the eviction claim. Mr. N.S. Khubalkar would then rely upon the observations of a learned Single Judge in Chandrashekhar S. Gadgil and Others Rameshprasad s/o. Madhavprasad Shukla and Another, 2019(1) All M.R. 353 ("Chandrashekhar Gadgil") which articulate that mere suppression of existence of properties cannot per se entail dismissal of the landlord's case. Mr. Mr. N.S. Khubalkar would then rely upon the observations of a learned Single Judge in Chandrashekhar S. Gadgil and Others Rameshprasad s/o. Madhavprasad Shukla and Another, 2019(1) All M.R. 353 ("Chandrashekhar Gadgil") which articulate that mere suppression of existence of properties cannot per se entail dismissal of the landlord's case. Mr. N.S. Khubalkar would submit that the findings recorded by the learned Trial Court are consistent with the material on record and while the learned Appellate Court could have re-appreciated the material on record to arrive at independent findings, and indeed was expected to do so, findings arrived at by the learned Appellate Court are vitiated, due to manifestly improper and erroneous application of the well entrenched principles of law to the proved facts, and therefore, inference in writ or supervisory jurisdiction is permissible, nay is a must. The learned counsel for the tenant Mr. S.V. Bhutada would support the judgment impugned. Mr. S.V. Bhutada would submit that whether the property, the details of which were not disclosed in the plaint, is suitable or not, the landlord was duty bound to disclose the details in the plaint and then satisfy the Court that the alternate property is not suitable. While Mr. S.V. Bhutada fairly has no quarrel with the well entrenched principle of law that the landlord is the best judge of his need, Mr. S.V. Bhutada would emphasize that the need must be genuine and bonafide and not a ruse or camouflage to secure eviction. Mr. S.V. Bhutada would submit that the case pleaded by the landlord is in essence the need to augment monthly income. The proposed general stores business is not the end but the means, the end being the augmentation of the income. The extension of the submission is, that the landlord having admitted to the receipt of the monthly rent from the tenants other than the defendant - tenant, the need pleaded is rendered vulnerable. Mr. S.V. Bhutada would heavily rely on the decisions of learned Single Judges of this Court in Narendra Gulabrao Zade vs. Shiocharan Ghashiram Gupa since deceased through LRs Smt. Radhabai Shivcharan Gupta and another, 2010 SCC OnLine Bom 1596 ("Narendra Zade") and Vasant Mahadeo Gujar vs. Baitulla Ismail Shaikh and Anr, 2015 SCC OnLine Bom 4470 ("Vasant Gujar"). Mr. S.V. Bhutada would then submit that neither the approach nor the findings of the learned Appellate Court can be branded perverse. Mr. S.V. Bhutada would then submit that neither the approach nor the findings of the learned Appellate Court can be branded perverse. The learned Appellate Court did not err in holding the suppression of facts against the landlord, is the submission. Mr. S.V. Bhutada would argue that in exercise of supervisory jurisdiction, it would be impermissible to interfere with the plausible view of the learned Appellate Court. Mr. S.V. Bhutada would then submit that even if it is assumed that the findings recorded by the learned Appellate Court suffer from any perversity, the judgment will have to be set aside and the matter remitted. Mr. S.V. Bhutada would submit, that if the bonafide need of the landlord is accepted, the matter may be remanded to the learned Appellate Court to render findings on the aspect of comparative hardship and feasibility of the satisfaction of the need by directing partial eviction. This consideration cannot be done by the High Court in exercise of supervisory jurisdiction, is the submission canvased. Mr.S.V. Bhutada would then argue that in any event, with the passage of time, subsequent events must have occurred and remanding the matter will facilitate the fact finding Court to assess the impact of the subsequent events. Such submission is canvased without disclosing the alleged subsequent events. 11. Consideration: The law is well settled and the fair approach of the learned counsel obviates the need to discuss the settled principles elaborately. The well entrenched position of law is that the landlord is the best judge of the bonafide need. The bonafide need is subject to an objective scrutiny. However, once the case of the landlord that the premises is needed for bonafide need is held established, even if alternative premises are available, the choice to occupy a particular space is a subjective exercise. Neither the tenant nor the Court can advise the landlord much less command him to organize his personal or business affairs in a particular manner. The landlord cannot be given a gratuitous advise, neither by the tenant nor by the Court, that the need can be satisfied without disturbing the possession or residence or business of the tenant. Neither the tenant nor the Court can advise the landlord much less command him to organize his personal or business affairs in a particular manner. The landlord cannot be given a gratuitous advise, neither by the tenant nor by the Court, that the need can be satisfied without disturbing the possession or residence or business of the tenant. The inconvenience or loss suffered by the tenant is not decisive in the sense that while such inconvenience or loss will have to be appreciated along with the other relevant factors while determining the issue of comparative hardship, the inconvenience or loss of the tenant has no bearing on the aspect of bonafide need of the landlord. It is strenuously and painstakingly urged by Mr. S.V. Bhutada that the suppression of the properties, other than the Suit Block, is of immense significance. Mr. S.V. Bhutada has argued, as noted supra, that the duty of the landlord to first disclose every property available and then explain why the alternative property is not suitable, is judicially recognized. Mr. N.S. Khubalkar has a contrarian view. Mr. S.V. Bhutada has heavily relied on two decisions of the learned Single Judges of this Court in Narendra Zade and Vasant Gujar, to buttress the submission that the landlord is duty bound to disclose every available property irrespective of the fact whether the property is or is not suitable. Narendra Zade (supra) decided petition preferred by the landlord challenging the reversing judgment of the appellate authority which held the landlord dis-entitled to permission to determine the tenancy on the premise, inter alia, that the landlord did not disclose that he owned other properties within the municipal limits of the town. The tenant contended that the suppressed house property is situated at Rajapeth in which certain portion was occupied by tenant Mr. Mohansingh Thakur, who was allowed to continue as tenant on upward revision of rent. The tenant contended that the failure of the landlord to disclose the residential property at Rajapeth is fatal to the case of the landlord. In rebuttal, the landlord contended that the property at Rajapeth is not suitable since the landlord is in possession of the first floor and would like to shift to the ground floor. Tenant Mr. Mohansingh Thakur occupied the ground floor portion of the Rajapeth property. The landlord further contended that Mr. In rebuttal, the landlord contended that the property at Rajapeth is not suitable since the landlord is in possession of the first floor and would like to shift to the ground floor. Tenant Mr. Mohansingh Thakur occupied the ground floor portion of the Rajapeth property. The landlord further contended that Mr. Mohansingh Thakur has vacated the occupied portion and the landlord has constructed/converted the portion into shop block. The learned Single Judge noted that the Rajapeth property was not disclosed in the application filed before the Rent Controller. The learned Single Judge held that since the effect and implication of the Rajapeth property is not considered by the authorities below, the decree of eviction cannot be made in favour of the landlord, who is free to initiate fresh proceedings in accordance with law. Vasant Gujar (supra) refers to Narendra Zade and Tarachand Hassaram Shamdasani vs. Durgashankar G. Shriff and Ors, 2004 (Suppl.1) Bom. C.R. 333 and while the discussion and consideration of the question of suppression is not taken to the logical end, it does appear that one of the considerations which persuaded the learned Single Judge to hold against the landlord was the suppression of property other than the tenanted premises. I am not inclined to accept the broadly stated proposition canvased by Mr. S.V. Bhutada, that suppression of property is ipso facto fatal. The decisions supra and the observations therein cannot be read or understood as statutory provisions. Every observation in the decision does not constitute its ratio. In my view, even if the landlord does not disclose a particular property in the application seeking eviction, if the property is disclosed by the tenant or comes on record during the course of the evidence at a stage which would give an opportunity to the rival parties to address the Court on the effect and implication of the existence of such property, there may not be any prejudice caused to the tenant. The test, in such a situation, will be whether prima facie, the property which is not disclosed is a suitable and feasible alternative to the suit property. If the answer is in the affirmative, the burden to demonstrate that the property which is not disclosed is not a suitable in the context of the need pleaded, shall be on the landlord. If the answer is in the affirmative, the burden to demonstrate that the property which is not disclosed is not a suitable in the context of the need pleaded, shall be on the landlord. In Chandrashekhar Gadgil, the learned Single Judge has considered the aspect of non-disclosure of properties by the landlord thus: "19. The contention raised on behalf of the applicants regarding suppression of existence of other properties owned by the respondents is sought to be supported by the Counsel on behalf of the applicants by placing reliance on the judgments of this Court. It is contended that when the Court finds that the landlord has not disclosed the existence of other properties, an adverse inference needs to be drawn and the suit for eviction needs to be dismissed only on that ground. A perusal of the judgments of this Court in the case of Tarachand (supra) and Vinod (supra) relied upon by the applicants, show that this Court found the landlord who have suppressed vital information regarding other properties not only owned but in possession of the landlord and that such properties were suitable to satisfy the bona fide need sought to be projected by the landlord while seeking eviction of the tenant. In that context, this Court found that non disclosure of such relevant information by the landlord was a serious matter and on that ground an adverse inference was drawn against the landlord. An overall view of the facts of the case was taken by this count while finding that the case of bona fide need was not made out. In that context it was held the tenant was put to prejudice, particularly in support of his contentions regarding comparative hardship suffered by him. 20. In the present case, the applicants brought on record material to show that there were at least three properties owned by the respondents, which were not disclosed by them while seeking eviction of the applicants from the suit property. One such property was plot no.6 at Kadbi Chowk, Nagpur, (erroneously written as 'Talvi chowk' in the impugned judgment and order) the others being ancestral property at Sibabuldi and agriculture lands owned by the respondents. On this aspect, the witness appearing on behalf of the respondents was extensively cross examined. One such property was plot no.6 at Kadbi Chowk, Nagpur, (erroneously written as 'Talvi chowk' in the impugned judgment and order) the others being ancestral property at Sibabuldi and agriculture lands owned by the respondents. On this aspect, the witness appearing on behalf of the respondents was extensively cross examined. The material that came on record demonstrated that the aforesaid property situated on plot no.6 at Kadbi Chowk was purchased by the respondents on 30/7/1992 and that a tenant was in occupation of the same. At the time of filing of suit for eviction in the present case, the said property was occupied by a tenant. It also came on record in a proceeding initiated by the respondents and as per the compromise that was entered into between the parties before this Court, in the year 2007, the tenant vacated the aforesaid property situated on plot no.6 at Kadbi Chowk. The ancestral property at Sitabuldi, Nagpur was a house property and remaining properties were agricultural lands. 21. The question that needs to be considered is, whether the respondents had other properties which were available at the time when the suit for eviction was filed in the present case and more particularly whether such properties were suitable for the need that was projected by the respondents in the suit for eviction filed by them. In the material that has come on record it is found by the Courts below that even when the tenant vacated the aforesaid property situated on plot no.6 at Kadbi Chowk in 2007, it was still not available to the respondents because the lease of the suit properties was not renewed by the Nazul Department. Apart from this, the respondents had specifically pleaded and placed evidence and material on record regarding the extent of land required for satisfying the bona fide need for which the suit for eviction was filed against the applicants. There is nothing to show that such need would have been satisfied by the aforesaid property situated on plot no.6 at Kadbi Chowk, quite apart from the fact that it was not available with the respondents when the suit for eviction was filed. The other property being ancestral house property at Sitabuldi, Nagpur would not be of any use to the respondents for the specific need that they had projected while filing the application for eviction. The other property being ancestral house property at Sitabuldi, Nagpur would not be of any use to the respondents for the specific need that they had projected while filing the application for eviction. The remaining properties being the agricultural properties could not have been considered by the Courts below for the aforesaid case of bona fide need for which the respondents had filed the suit for eviction. 22. The Court below has dealt with this aspect of alleged suppression by the respondents and the claim by the applicants that adverse inference ought to be drawn against the respondents. It is found by the Courts below that in view of the material that had come on record, there was nothing to show that even if those properties were to be taken into consideration it could be said that they were available and suitable for the requirement of the respondents. Thus, it cannot be said that such finding rendered by the Court below was either illegal, perverse or suffered from material irregularity." In my view, considering the irrefutable factual position that the landlord is a senior citizen with an existing heart ailment, the shop on the first floor, was not, and is not suitable to start general stores nor is the open space available on the ground floor of the building of any utility. The learned Appellate Court committed grave error of law in recording a finding that the landlord can set up business either on the first floor or then at the open space. The learned Appellate Court first came to the conclusion that alternate premises are available and then found that the need of the landlord is not bonafide. The proper approach ought to have been to objectively assess the need of the landlord and if the need is proved then to leave the choice to the subjective decision of the landlord as regards choice of premises. The error in applying the principles of law to the facts on record is sufficient for this Court to interfere with the judgment impugned. Mr. S.V. Bhutada is at pains to emphasize the restricted scope of the jurisdiction under Articles 226 and 227 of the Constitution of India. The submission is that ordinarily findings of fact which are recorded by the learned Appellate Court ought not to be interfered with by the High Court in exercise of writ or supervisory jurisdiction. Mr. S.V. Bhutada is at pains to emphasize the restricted scope of the jurisdiction under Articles 226 and 227 of the Constitution of India. The submission is that ordinarily findings of fact which are recorded by the learned Appellate Court ought not to be interfered with by the High Court in exercise of writ or supervisory jurisdiction. It is submitted that the High Court must be loath to act as an appellate Court under the garb of exercising writ or supervisory jurisdiction. The submission, as a proposition of law, is unexceptionable. However, one well recognized situation in which the High Court can and should interfere with finding of fact is if the finding is arrived at on the basis of unsustainable or manifestly erroneous legal premise. Such finding cannot be appropriately considered as finding of fact. In the present case, I am satisfied that learned Appellate Court committed grave error in not applying well recognized principles of law to the proven facts. The submission that the matter be remanded does not impress me. In my considered view, the question of hardship can be answered on the basis of facts on record. The question is answered by the learned Trial Court in favour of the landlord and I agree. The tenant was put on notice. He could have, but did not, make efforts to secure alternate accommodation. The learned Appellate Court committed grave error in observing that since the landlord can shift business at the vacant shop on the upper floor, he shall not suffer hardship. The learned counsel Mr. N.S. Khubalkar has rightly pressed in service the decision of the Apex Court in Bhimanagouda Basanagouda Patil vs. Mohd. Gudusaheb, (2003) 3 SCC 101 to buttress the submission that even if there is some hardship to the tenant, the same can be mitigated by granting reasonable time to vacate. It is axiomatic that if a businessman is evicted, he is bound to suffer some decree of hardship. However, once the landlord proves bonafide need, decree of eviction cannot be denied ipso facto on the premise that the business of the tenant shall suffer or the goodwill will be adversely affected by the forced relocation. The landlord having established the need, in the ordinary course, the scale must tilt in his favour unless the tenant makes out a strong case of greater hardship. The landlord having established the need, in the ordinary course, the scale must tilt in his favour unless the tenant makes out a strong case of greater hardship. In the present case, there is no material on record to suggest that the business in steel utensils cannot be shifted to some other location. The tenant has made no efforts to search for an alternate space. The landlord on the other hand, cannot be expected considering the age and the heart ailment to run from pillar to post looking for premise to set up the general stores. As noted supra, it was to augment the income that the landlord considered starting the general stores and it would be unfair to expect the landlord to secure premises on rent on the ground floor when the Suit Block can be made available by ordering eviction of the tenant. The submission that the feasibility of partial eviction will have to be addressed by the fact finding Court is noted only for rejection. It is true that the Court is expected to consider the aspect of partial eviction, but then, such exercise need not be ordered as a ritualistic formality. Considering the need pleaded and the nature and area of the Suit Block, partial eviction is ruled out, and therefore, the tenant too does not appear to have invited the Court to explore partial eviction as a golden mean. The submission that subsequent events must have occurred is neither here nor there. What are the subsequent events are left to speculation. It is well settled that unless the need of the landlord is totally obliterated, the relevant point is the institution of the proceedings. In any event, in the absence of pleadings and factual foundation, the speculative submission that some subsequent events must have occurred is noted only for rejection. 12. I am satisfied that case is made out for this Court to interfere with the judgment impugned. 13. The petition is allowed. 14. The judgment and decree dtd. 16/8/2018, rendered by the learned District Judge-1, Bhandara, in Regular Civil Appeal 19/2016 is set aside and the judgment and decree of the learned Trial Court is restored. 15. The respondent - tenant shall vacate the tenanted premises within the next six months.