Presented on : 22/01/2007

Registered on : 24/01/2007
Decided on : 07/02/2024
Duration : 17 Y 00M 16D

IN THE COURT OF THE 5th ADDITIONAL JUDGE,

SMALL CAUSES COURT AND JOINT CIVIL JUDGE,
SENIOR DIVISION, PUNE.
(PRESIDED OVER BY S. A. Bajaj)

CIVIL SUIT No. 31/2007

CNR No.: MHPU03-000058-2007
EXH.No. 251.

Shri. Ali Jafari,

Age: Adult, Occ.: Business
Proprietor,
Radiant Builders,
Having office at Napier Road,
Pune 1 ….Plaintiff
Versus

01. M/s. Rashid Khodadad & Co.

A partnership firm,
Duly registered as per the
Indian Partnership Act, 1932,
Bearing registration no. M-28173
Having its office at-
11, Moledina Road, Pune.

02. Mr. Gustasp Rashid (Died)

03. Mr. Furz Gustasp Rashid

Age: 60 years, Occupation-Business
Partner of M/s Rashid Khodadad & Co.
R/at: ‘Arman’ 3, Stavley Road, Pune 411 001.
 2] Judg. in Civil Suit No.31/2007

04. Mr. Khurhid Russi Irani

Age: 63 years, Occupation-Business
Partner of M/s Rashid Khodadad & Co.
R/at: 39C, The Sind Hindu Co-op. Hsg.
Society Ltd., Lullanagar, Pune 411

05. Mr. Bezon Dinkoo Chenoy

Age: 54 years, Occupation-Business
Partner of M/s Rashid Khodadad & Co.
R/at: El-Cid, 13-A, Ridge Road,
Mumbai – 400006.

06. Mr. Shohli Dinkoo Chenoy

Age: 51 years, Occupation-Business
Partner of M/s Rashid Khodadad & Co.
R/at: 8/III, Thackers House,
2418, East Street, Pune – 411 001.

07. Mrs. Silloo Dara Bacha, (Died)

08. Mr. Yohan Russi Irani (Retired Partner)

Age: 37 years, Occupation-Business
Partner of M/s Rashid Khodadad & Co.
R/at: C/1, 603, Sunshree NIBM Road,
Pune-411048

09. Hindustan Petroleum Corporation Limited, (Deleted)

Pune Regional Office – Retail, 1, Raja Bahadur
Motilal Road, P.O. Box 90, Pune 411 001. ….Defendants

Ld. Advocate for the Plaintiff : Shri. B. S. Bhogal

Ld. Advocate for the Defendants: M/s. Karnik & Karnik Asso.

JUDGMENT
(Delivered on the 07th day of February 2024)

This is suit for eviction, possession and injunction.

 3] Judg. in Civil Suit No.31/2007

01] The plaintiff's case, in short, is that, all that piece and
parcel of sub-divided freehold plot admeasuring 16315.55 Sq.fts.
being sub-divided eastern portion of Plot no. 11, Moledina Road,
Corresponding G.L.R.S. no. 390/251 within the limits of Pune
Cantonment Board as described in para 1-A, out of which
admeasuring 1250 Sq.ft. approximately bounded by east street
towards east, Moledina Road towards north, Sterling Center
building towards west and part of the same property towards
South within the limits of Pune Cantonments Board as described
in para 1-B is the suit property. He is the proprietor of the firm
M/s. Radiant Builders, while defendant no.1 is a partnership firm
and defendant no.2 to 7 are the partners of defendant no.1 firm
and as such they are entitled for the day to day conduct and
business of defendant no.1 firm. He has acquired right, title and
interest in the suit premises by virtue of registered sale deed from
erstwhile owner M/s. H. J. Enterprises. The defendants are in
possession of the suit premises as a monthly tenant since last
several years at Rs. 225/- per month. There is relationship of
landlord and tenant between plaintiff and defendants.

02] It is further submitted that the defendants have made

permanent construction without permission of landlord in the suit
premises. He requires the suit property for his bonafide
requirement. The defendants have caused nuisance and annoyance
to him and neighbouring occupiers. The defendants have changed
the use of suit premises without his permission therefore, he issued
a legal notice on 31/10/2006 informing the defendants that the
 4] Judg. in Civil Suit No.31/2007

tenancy in respect of suit premises is terminated and he further

called upon the defendants to handover the vacant, peaceful
possession of the suit premises. The defendants replied the notice
on 15/11/2006 and merely demanded certain documents, which
were supplied. The defendants have not vacated the suit premises
hence, he has filed this suit and prayed that by decreeing the suit,
defendants may be directed to handover vacant, peaceful
possession of the suit premises to him and the defendants may be
directed to pay mesne profit from the date of institution of the
present suit till the possession of the suit premises is received by
him.

03] The defendant nos. 1 and 2 have filed its written

statement vide Exh.22 and additional written statement vide
Exh.100. Defendant nos. 3,4 and 5 have adopted written statement
filed by defendant no.1 and 2 by way of pursis at Exh. 67,68 and
62 respectively. Defendant no.4 has filed additional written
statement vide Exh. 101. Defendant no. 6 to 8 did not appear
despite service of suit summons hence, suit has been proceeded as
an ex-parte against them. Defendant nos. 1 to 5 have denied the
contents of the plaint. They have submitted that they are in
possession of not only property premises of 1250 sq.ft. but also
they are tenant of land with super structure at the monthly rent of
Rs. 322/- per month since 1940. The earlier landlord had never
issued the rent receipts, though they have paid the rent. They have
various divisions carrying on business in the tenanted premises
since long back such as petrol division, tiles division, asbestos
 5] Judg. in Civil Suit No.31/2007

division, transport division and cement division.

04] They have further submitted that their livelihood

depends on the business activities carried out day to day with the
permission of earlier landlord. The plaintiff does not require the
suit premises and it is his business to purchase, sale or lease out
the said premises. The earlier landlord had given permission to
them to carry on any business in the tenanted premises. Though,
petrol is their main business, distributing other petroleum products
as dealer of H. P. C. L. The plaintiff is having property at Napier
Road, Sterling center and Allar Radoant therefore, plaintiff will not
suffer any hardship if, decree is refused and they will suffer more
hardship if, possession decree is passed in favour of the plaintiff.
The defendants have prayed to dismiss the suit with compensatory
costs of Rs.5,000/-.

05] The then Ld. Presiding officer has framed issues on

24/06/2014, which I have reproduced here along with my findings
following the reasons are as under:-

Sr. Issues Findings

Nos.
1 Does the plaintiff prove that the Yes.
defendants are tenant in the suit premises
as described in plaint para 1B at the
monthly rent of Rs.225/- and there exists
relationship of landlord and tenant in
between them ?
2 Does the plaintiff prove that the Yes.
defendants are not using the suit premises
for the purpose for which it was let ?
 6] Judg. in Civil Suit No.31/2007

3 Does the plaintiff prove that the Yes.

defendants have carried out many
structural alterations of permanent nature
in the suit premises without his written
consent ?
4 Does the plaintiff prove that the act of the Yes.
defendants is a constant source of
nuisance and annoyance to him and
adjoining neighbourers ?
5 Does the plaintiff prove that the Yes.
defendants have committed the breach of
terms and conditions of the tenancy ?
6 Does the plaintiff prove that he requires Yes.
the suit premises reasonably and bonafide
for his business ?
7 Does the plaintiff prove that the Yes.
defendants have illegally and
unauthorizedly added diesel pump when
the suit premises was rented only for
petrol pump and have changed it’s use ?
8 Does the plaintiff prove that the Yes.
defendants have caused damage to the
suit premises/property ?
9 Does the plaintiff prove that the No.
defendants are trying to create third party
interest in the suit premises ?
10 To whom the hardship will be caused, if To plaintiff, if
the decree is passed or refused to pass ? the decree is
refused.
11 Whether plaintiff is entitled for the Yes.
possession of the suit premises as
claimed ?
12 Whether plaintiff is entitled for the No.
injunction prayed ?
13 Whether plaintiff is entitled for the mesne Yes.
profits as claimed ?
 7] Judg. in Civil Suit No.31/2007

14 Whether suit is maintainable in the Yes.

present form ?
15 Whether this court has jurisdiction to Does not
entertain, try and decide the present suit ?
survive.

16 What order and decree ? Suit is partly

decreed.

REASONS
06] During the pendency of the suit the plaintiff by
amendment impleaded the Hindustan Petroleum Corporation Ltd.
as defendant no. 9. The defendant no. 9 also filed written
statement. After completion of the evidence of the defendant nos.
1 to 8, the plaintiff applied for deletion of defendant no.9 from the
suit, which came to be allowed and the name of defendant no.9
came to be deleted. Thereafter, the plaintiff again applied for
deletion of pleading and prayer against defendant no.9. Notice
came to be issued to defendant no.9 but it did not appear despite
service of notice. Other defendants did not take objection to delete
the pleading and prayer against defendant no. 9. Hence, the same
came to be deleted. During the pendency of the suit defendant no.
2 and 7 have been died while defendant no. 8 has retired and
defendant no. 3 to 6 are only surviving partners of defendant no.
1.

07] In order to prove his claim, the plaintiff Shri. Ali Jafari
has given his evidence by way of an affidavit of evidence
(Exh.115). Thereafter, closed his evidence by filing pursis vide
Exh.161. The plaintiff has filed original site plan of the suit
 8] Judg. in Civil Suit No.31/2007

property (Exh. 170), original letter dated 04/10/2007 sent to

plaintiff in his name by the defendant no. 9 (Exh. 171), Copy of
notice dated 31/10/2006 (Exh. 172), certified copies of below
mentioned documents in Spl. Civ. Suit no. 651/2005 viz. roznama
(Exh.208), plaint (Exh. 207), say Exh. 63 filed by defendant no. 8
to the interim injunction application (Exh. 209), written statement
and reply Exh.69 to interim injunction application by defendant
no. 7 (Exh. 210), reply Exh.75 filed by defendant no. 09
(Exh.211), reply Exh. 78 filed by defendant no. 6 (Exh.212),
written statement and reply Exh.82 to interim injunction
application filed by defendant no. 12 (Exh. 213), reply Exh. 104 of
defendant no. 7 to the application by defendant no. 12 Exh. 101
(Exh. 214), pursis Exh.107 by and on behalf of defendant no. 6
(Exh. 215), pursis Exh. 108 by and on behalf on defendant no. 8
(Exh.216), pursis Exh. 109 by and on behalf on defendant no. 9
(Exh. 217), reply Exh.110 on behalf of plaintiff to the application
filed by defendant no. 12 and pursis Exh. 108 by and on behalf on
defendant no. 8 (Exh. 218), affidavit Exh. 111 in support of Exh.
110 of plaintiff pursis Exh. 108 by and on behalf on defendant no.
8 (Exh. 219), adjournment application Exh. 112 filed by defendant
no. 6 and 9, pursis Exh. 108 by and on behalf on defendant no. 8
(Exh. 220), adjournment application Exh.113 filed by defendant
no. 8 (Exh. 221), application Exh. 114 filed by plaintiff for taking
matter on board (Exh. 222), application Exh. 115 filed by plaintiff
to reissue summons (Exh. 223), court summons Exh. 116 of
defendant no. 10 with bailiff report (Exh. 224), court summons
Exh. 117 to defendant no. 13 (Exh. 225), adjournment application
 9] Judg. in Civil Suit No.31/2007

Exh. 122 filed by plaintiff (Exh. 226), application Exh. 123 filed by
plaintiff for reissue of summons (Exh. 227), application Exh. 125
filed by plaintiff for reissue of summons by RPAD (Exh. 228),
reply Exh. 128 filed by defendant no. 12 to the application dated
18/12/2006 filed by plaintiff (Exh.229), application Exh. 129 filed
by defendant no. 12 for setting aside “No say order” (Exh.230),
affidavit Exh.131 filed in support of Exh. 129 (Exh.231),
application Exh. 130 by defendant no. 8 for setting aside “No say
order” (Exh.232), reply Exh.136 filed by defendant no. 8
(Exh.233), application Exh.141 filed by plaintiff to withdraw the
suit (Exh.234) in support of his case.
On the other hand defendants have given evidence of
Mr. Danesh Russi Irani by way of an affidavit of evidence
(Exh.177), thereafter closed their evidence by filing pursis vide
(Exh.239). Defendants have filed original ten rent receipts
(Exh.187 to 196 respectively), letter issued by partner of H.J.
Enterprises on 05/09/1988 (Exh.197), original Memorandum of
agreement dated 27/04/1948 (Exh. 198), original covering letter
dated 04/02/1971 along with original memorandum of
understanding dated 30/12/1970 (Exh. 199), certified copy of
agreement for dealership with H.P.C.L. dated 03/08/2011 and
16/11/2011 (Exh. 200 and 201 respectively), verified copy of
partnership deed of admission cum retirement (Exh. 202), certified
copy of plaint of Special Civil Suit no. 651/2005 (Exh. 207),
certified copies of consent terms dtd 22/08/2008 (Exh. 208 to 234
respectively), in support of their defense.
 10] Judg. in Civil Suit No.31/2007

The plaintiff has filed his synopsis and short notes of

argument below Exh.242 and 250. Heard Ld. Advocate Shri.
Bhogal for the plaintiff and Ld. Advocate Smt. N. D. Agarwal for
the defendants. Perused record.

As to Issue no. 1 :

08] Ali Jafari (P.W.1) has stated in his affidavit of evidence

that he is the plaintiff in the present matter and he is conversant
with the facts of the case. The suit relates to the property out of all
that piece and parcel of sub divided free hold plot admeasuring
16315.55 sq.ft. being sub-divided eastern portion admeasuring
16315.55 sq.ft. of plot no. 11, Moledina Road, Corresponding
G.L.R.S. no. 390/251 within the limits of Pune Cantonment Board,
out of all that piece and parcel of structure admeasuring 1250
sq.ft. approximately forming part of the suit property which is
bounded by East Street towards east, Moledina Road towards
north, Sterling center building towards west and part of the same
property towards south is the suit property.

09] He is the proprietor of the firm M/s. Radiant Builders

II. Defendant no.1 is the partnership firm and defendant nos. 2 to
7 are the partners of defendant firm and as such they are entitled
for the day to day conduct and business of defendant no. 1 firm.
He has acquired right, title and interest in the said property
including the suit premises by virtue of the registered sale deed
from erstwhile owner M/s. H. J. Enterprises. His name is duly
mutated on the G.L.R. extract of Pune Cantonment Board. His
 11] Judg. in Civil Suit No.31/2007

Predecessor in the title has duly informed the defendants

regarding the transfer of the suit property in his favour and also
informed the defendants to tender the rent of the suit premises
directly to him thereafter. Hence, the relationship between himself
and defendants is that of landlord and the tenant. The defendants
are in possession of the suit premises as a monthly tenant since last
several years and the monthly rent of the suit premises is
Rs. 225/-.

10] The defendants witness Mr. Danesh Russi Irani (D.W.1)

has stated in his affidavit of evidence that he is one of the partner
of defendant no.1 partnership firm and he is aware of the facts of
the case. Defendant no.1 firm was formed on or about 1940 and it
is the tenant of the office admeasuring 1250 sq.ft. East Street,
Pune. The suit premises being a commercial property, the then
landlords had permitted defendant no.1 firm/its then
partners/sister concerns to carry on any lawful business in the suit
premises. Therefore, since on or about 1940, defendant no.1 firm
and its sister concerns have been carrying on business of tiles,
transports, cement, asbestos etc. with the consent and knowledge
of the landlords. He has further submitted that in the year 1970
the then partners of defendant no.1 firm for the sake of
convenience intended that the business of the petrol pump on the
said land be continued by its sister concern- Rashid Khodadad
(Petrol department) and Company. Accordingly, the then partners
of defendant no.1 for sought prior permission of the erstwhile land
owner Mrs. Shirin Master to permit the sister concern of defendant
 12] Judg. in Civil Suit No.31/2007

no.1 for i.e. Rashid Khodadad (Petrol department) and Company

to carry on the said petrol business for which Mrs. Shirin Master
agreed for the assignment of tenancy to Rashid Khodadad (Petrol
department) and Company. Hence, defendant no.1 became the
tenant of the land on or about 1970, the dealership agreement
with the Oil Companies for running the petrol pump were being
executed by defendant no.1 firm. The said land is not the subject
matter of the present suit. There were two separate tenancies in
favour of defendant no.1 firm, one for the suit premises and other
land for the office, the rent for the suit premises in the year 1974
was Rs.208/- and rent for the land was Rs.83.20/-, which
subsequently increased to Rs.230/- and Rs.92/- respectively.

11] So far as, relationship of landlord and tenant is

concern it is not denied by the defendants. However, the
defendants in addition to the suit premises admeasuring 1250
sq.fts., also claiming that they are tenant in adjacent land. In cross
examination of defendants witness Mr. Danesh Irani has admitted
that Rashid Khodadad & Company i.e. defendant no. 1 is the
tenant and it pays the rent to the plaintiff since inception. He has
further admitted that the plaintiff became owner of the suit
premises in September 2006, after purchase of the suit building
described in para 1-A of the plaint. This witness has also admitted
the boundaries of suit premises as mentioned para 1-B of the
plaint. This witness has further admitted that adjacent to the suit
shop there is open land admeasuring 4000 sq.fts. which is also
given on rent. He has further deposed that the boundaries as
 13] Judg. in Civil Suit No.31/2007

mentioned in para 1-B includes the said land. In such

circumstances, the plaintiff has proved that the defendants are
tenants in the suit premises as described in plaint para 1-B at the
monthly rent of Rs.225/-and there exist relationship of landlord
and tenant in between them. Hence, I answer Issue no.1 in the
affirmative.

As to Issue no. 2,3,4,5,7 and 8 :

12] It is has came in the evidence of plaintiff that the

defendants are not using the suit premises for the purpose for
which it is let. The main business of the defendants is that of
distribution of petrol and they are dealers of Hindustan Petroleum
Corporation Ltd.. The defendants have carried out many structural
alterations of permanent nature without any consent from the
plaintiff or his predecessors in title. The defendants have closed
the road by erecting foundations of generators, placing generators
and shed and ota and had created obstruction and has
permanently closed the access road leading from main road to
internal passage and the approach leading to the basement of the
plaintiff’s and other properties. It has further came in his evidence
that the defendants have recently placed a new underground tank
for storage of petrol without permission of the plaintiff and
predecessor in title. The defendants have also illegally constructed
a loft inside the premises without any permission or authority from
the plaintiff or predecessors in title.
 14] Judg. in Civil Suit No.31/2007

13] It has further came in the evidence of the plaintiff that

there are so many restaurants and other commercial
establishments, clinics, offices in adjoining building in the same
premises and in the vicinity of the said petrol pump run by the
defendants and it has become a potential danger to the gas
cylinders and other fire equipments of the said restaurants and
also has become a threat to the life of the people working and
carrying their business activities there and also it has become a
threat and danger to the life of the customers of the said
restaurants, clinics, offices in adjoining buildings in the same
premises. Due to petrol pump always there remains huge queue of
two wheelers and four wheelers vehicle at all the times during the
day which creates obstruction to the traffic and such a queue of
vehicles is resulting into congestion of traffic and thereby causing
drastic air and noise pollution which is hazardous to the health of
the neighbors therefore, the defendants are causing nuisance and
annoyance to the adjoining neighbors as the adjoining neighbors
have repeatedly complained to him.

14] It has further came in the evidence of plaintiff that

only structure of the suit premises was let out to Rashid Khodadad
and Company. The defendants have substantially encroached the
open land, appurtenant to the said structure without any authority
from the plaintiff or his predecessor in title and it blocks the
ingress and egress to the owner, landlord and basement. The
defendants have also erected a small structure or cabin on the
open land adjoining the suit premises. The defendants have
 15] Judg. in Civil Suit No.31/2007

illegally and unauthorized allowed several other companies /

persons / parties to operate from the suit premises as well as for
other business activities such as Laser Wheel Alignment &
Balancing, Cement Sales, Tiles Sales etc. in order to carryout such
other business activities have made material alterations in the
premises which in turn has badly affected the structural stability of
the suit premises as the structure is quite old. It has further came
in the evidence of plaintiff that the defendant is a dealer of
Hindustan Petrol Corporation Ltd.. The suit premises was rented
only for petrol pump and now, in addition to petrol the defendants
have illegally and unauthorizedly added diesel pump for
distribution of diesel and underground tank without his
permission. Thus, the defendants have committed breach of terms
and conditions of the tenancy.

15] The defendants in their written statement and their

witness in affidavit of examination in chief have denied the
allegations made by the plaintiff but in cross-examination he has
given material admissions. He has admitted that after letting the
premises, loft is constructed and it is made from steel pillars and
teak wood. He does not know whether permission for construction
of loft was taken or not from the landlord. In the year 1970 they
constructed washroom admeasuring 6ft x 10ft by bricks having
two doors and one window. No written permission was taken from
landlord to construct the washroom. Washroom is the permanent
structure. He has further admitted that initially when the suit
premises was given on rent, there were two underground petrol
 16] Judg. in Civil Suit No.31/2007

storage tanks and there were two petrol dispensing units. Initially
only petrol was to be sold. Now, there are three storage tanks.
Third storage tank is added in the year 2004-2005. Now, there are
six dispensing units. The permission of landlord is not taken for
installing third tank. Last dispensing unit was installed in the year
2007. He has further admitted that for installing dispensing unit, it
requires to create foundation. Permission of landlord is not taken
to install additional dispensing unit. The tanks are the permanent
structures.

16] He has further admitted that there was passage

between petrol pump and sterling center which was having width
of 10 feet. He has further admitted that they have put generators
in the area of passage and therefore, the passage is closed. Initially
in the year 1998, small generators were put and again in the year
2002 larger generators are put there. Now, the passage cannot be
used. The permission of landlord is not taken to close passage by
putting generators. He has further admitted that the suit premises
is situated in thickly population area, surrounding by commercial
and residential area and the boundary of petrol pump is extended
touching to the main road. The suit property is having road from
two sides. There is no boundary wall between the road and petrol
pump. At the most two to three cars can remain in the area of the
suit premises. During peak hours there remains 10 to 15 cars
waiting for their turn in queue for filling petrol. The waiting
vehicles remains on road. At the most 15 to 20 two wheelers can
remain in the area of suit premises. During peak hours there may
 17] Judg. in Civil Suit No.31/2007

another about 15 two wheelers remains on road. He has further

admitted that during the peak hours the vehicles waiting on road
obstructs the traffic and also cause difficulty in parking vehicles to
adjoining shops. He has further admitted that when petrol tankers
came on suit premises, it causes obstruction to traffic. It takes
about one hours to empty one tanker of petrol or diesel. While
decanting from tanker the underground tank certain amount of
vapor fumes are released in the air. The said fumes are highly
inflammable. If, mobile phone is used at petrol pump, it may
caught fire. If, somebody smokes, it may also caught fire. When the
fuel is filled in vehicle some vapor fumes is released.

17] The material admissions given by the witness of the

defendant in his cross-examination support the case of the plaintiff
and therefore, the plaintiff has proved that the defendants are not
using the suit premises for the only purpose for which it was let,
they have carried out many structural alternations of permanent
nature in the suit premises without consent of the landlord, their
act is a constant source of nuisance and annoyance to the plaintiff
and the adjoining neighbors, they have unauthorizedly added
diesel pump when the suit premises was rented only for petrol
pump and thereby changed its use, they have caused damage to
the suit premises and have committed the breach of terms and
conditions of the tenancy. Hence, I answer issue no. 2,3,4,5,7 and
8 in the affirmative.
 18] Judg. in Civil Suit No.31/2007

As to Issue no. 6 and 10 :

18] It has came in the evidence of the plaintiff that the suit
premises is reasonably and bonafide required by the plaintiff for
setting up his business office and other activities or his family
members. The scope and nature of business of the plaintiff and his
family members is getting expanded day by day therefore, they
reasonably and bonafide required the suit premises for their day to
day expanding business activities. The nearby areas of the suit
property have touched sky and hence, he cannot afford to
purchase or acquired any premises in the nearby vicinity of the suit
property. The defendants have acquired suitable alternative
premises in the vicinity and is carrying out its business activities
over there without any difficulty or problem and they do not need
the suit premises at all. Therefore, the need of the plaintiff is
bonafide. It has further came in the evidence of plaintiff that the
real sister of the plaintiff viz. Ms. Fatima Jafari alongwith her son
and unmarried daughter have came from Mumbai towards the
plaintiff and shifted at Pune permanently as her husband has been
died. The plaintiff’s sister is dependent on the plaintiff for her
maintenance and support. The plaintiff has taken the responsibility
to settle down his sister and her children to create permanent
source of income for her therefore, the suit premises is also
required for developing it for creating permanent source of income
for his sister and her children. Hence, the said premises is also
required for the bonafide need and requirement of the plaintiff’s
sister and her children. No hardship would be caused to the
 19] Judg. in Civil Suit No.31/2007

defendants if the decree of eviction is passed in favour of the

plaintiff.

19] The defendants in their written statement and their

witness Mr. Danesh Irani has denied in his affidavit of examination
in chief that the plaintiff requires the suit property for bonafide
need of plaintiff and his family members. In the evidence of the
defendants it has came that the plaintiff does not required the suit
premises and it is his business to purchase, sell or lease out the
said premises the plaintiff is having property at Napier Road,
Sterling center and Allar Radoant and the petrol pump is the only
source of their income and the plaintiff will not suffer any
hardship if, decree for possession is refused.

20] In the cross-examination of the plaintiff, it has came

that he has purchased property admeasuring 9700 sq.ft. vide
G.L.R. no. 327, in the year 1981, he has place of office at Sterling
Center, Camp, Pune admeasuring 900 sq.ft., he has development
right in property S. No. 74 and 137 of Hadapsar, he owned about 1
and half acre land at Undri, Pune, he has joint venture right in
S. No. 4 of Kondhwa, he has 7 Acre land stock in trade at Pisoli.
Though, the defendants have also denied the bonafide need of the
suit premises of the plaintiff, their witness has given material
admissions in his cross-examination. He has admitted in his cross-
examination that defendant no.1 has one petrol pump at Koregaon
Park over the area about 6000 Sq.ft. and has also office in the said
area. The said petrol pump is within the area of Pune Camp. There
 20] Judg. in Civil Suit No.31/2007

are two large size storage underground tanks and one small size
storage underground tank. The area of Koregaon Petrol pump is
profitable area. He has further admitted that in the year 2005
there were talks between the plaintiff and partners of defendant
no.1 to surrender the tenancy in favour of the plaintiff. It could be
that the plaintiff is required the suit premises for his personal
bonafide requirement. He has further admitted that if defendant
no.1 is evicted from the suit premises, no much hardship will be
caused to defendant no.1. He has further admitted that the
plaintiff will suffer greater hardship if the decree of eviction is
refused.

21] So, the defendants themselves have admitted that the

defendant no.1 has another petrol pump business at Koregaon Park
and it could be there the plaintiff is required the suit premises for
his personal bonafide requirement. The defendants have not
denied the plaintiff’s bonafide requirement of the suit premises.
The defendants have further admitted that if, defendant no.1 is
evicted from the suit premises, no much hardship will be caused to
the defendant no.1. It shows that the defendants have no much
necessity of the suit premises. The defendants have admitted that
the plaintiff will suffer greater hardship if the decree of eviction is
refused. In such circumstances, the defendants themselves have
admitted the claim of plaintiff for bonafide requirement of the suit
premises and the plaintiff will suffer greater hardship if decree is
refused. Hence I answer issue no. 6 in the affirmative and issue no.
10 accordingly.
 21] Judg. in Civil Suit No.31/2007

As to Issue no.9 and 12 :

22] The plaintiff has pleaded that recently he has came to

know that the defendants are likely to create third party interest in
the suit premises. But, the plaintiff has not filed any document
regarding the source of information as stated above. The plaintiff
has not produced any evidence to show that the defendants ever
tried to create third party interest in the suit premises. The plaintiff
has became owner of the suit premises on the basis of registered
sale deed executed by M/s. H.J. Enterprises in his favour on
05/09/2006 and his name has been recorded on G.L.R. extract of
Pune Cantonment Board. Therefore, the plaintiff’s contention that
the defendants are trying to create third party interest in the suit
premises, does not appear believable. Hence, no need to grant
permanent injunction as prayed by the plaintiff. Hence, I answer
Issue no. 9 and 12 in the negative.

As to Issue no. 14 :

23] The defendants have stated in their written statement

(Exh. 22) that the suit is not legally maintainable in view of
various statutory provisions. But they have not brought before the
court as to how and under what provisions of law the suit is not
maintainable. Hence, there is no substance in the submission of
the defendants that the suit is not maintainable. The suit is
between the landlord and tenant filed under the relevant
provisions of Rent Act. Hence, the suit is maintainable as filed.
Hence, I answer issue no. 14 in the affirmative.
 22] Judg. in Civil Suit No.31/2007

As to Issue no. 15 :

24] On perusal of record it shows that defendant nos. 3

and 4 filed application to return the plaint vide Exh. 119 on the
ground that the suit property is situated in the area of Pune
Cantonment therefore, this court has no jurisdiction. However, the
said application has been dismissed on 16/07/2014 and this court
has recorded finding that this court has jurisdiction to entertain,
try and decide the present suit. Apart from this defendant no.9
had submitted in its written statement (Exh. 112) that it is the
State under the Constitution of India an if, the plaintiff wants to
claim any prayer against it then the same needs to be filed before
the Civil Judge, Senior Division, District Court, Pune. As such the
Small Cause Judge has no jurisdiction to try and entertain suit of
the plaintiff against it. Now, the plaintiff has got deleted the name
of defendant no.9 and pleading as well as prayer against
defendant no. 9 from this suit. Hence, the dispute of jurisdiction of
this court no more remains. Hence, issue no. 15 does not survive,
therefore, I answer issue no. 15 accordingly.

As to Issue no. 11 :

25] The material available on record shows that the

plaintiff is the owner of suit property since its purchase from
M/s. H.J. Enterprises on 05/09/2006 by way of registered sale
deed. The defendant no. 1 is partnership firm and other
defendants are its partners. The suit premises is in possession of
the defendants since 1940 on the basis of tenancy given by
 23] Judg. in Civil Suit No.31/2007

Predecessor in title of the plaintiff. Initially there was petrol pump

run by the defendants thereafter, the use of the suit premises is
extended by creating more dispensing units for selling diesel
without permission of the landlord. The plaintiff has also proved
that defendants have made permanent changes in the suit
premises without permission of the landlord and caused damages
to the suit premises. The plaintiff has also proved that the act of
the defendants causing nuisance to the plaintiff and neighbourers
of the suit premises. The plaintiff has also proved that he requires
suit premises for his bonafide. The plaintiff has also proved that
the defendants have breached the terms and conditions of the
tenancy.

26] On perusal of copy of notice (Exh.172) it shows that

the plaintiff asked and demanded the possession of the suit
premises due to the above said reasons but the defendants have
not handed over the possession of the suit premises hence, the
plaintiff is entitled to the possession of the suit premises under the
provisions of Maharashtra Rent Control Act. Therefore, I answer
issue no. 11 in the affirmative.

As to Issue no. 13 :

27] It is held that the plaintiff is entitled to get the

possession of the suit premises. The plaintiff has sought possession
of the suit premises by issuing notice on 31/10/2006, but the
defendants did not comply with the notice hence, the plaintiff has
filed this suit. In consequence of decree of eviction of the
 24] Judg. in Civil Suit No.31/2007

defendants from the suit premises, the plaintiff is entitled to the

mesne profit as per the provision of Order 20 Rule 12 of C.P.C.
Hence, I answer Issue no. 13 in the affirmative.

As to Issue no. 16:

28] During the pendency of the suit defendant nos. 2 and 7

have been died, defendant no. 8 has been retired and the name of
defendant no.9 has been deleted and defendant no. 3 to 6 are only
surviving partners of defendant no. 1. It is held that the plaintiff is
entitled to the possession of the suit premises and to the mesne
profit but he is not entitled to the relief of permanent injunction
hence, the suit is liable to be partly decreed against defendant no.
1 and 3 to 6. The plaintiff is entitled to the mesne profit therefore,
it is necessary to order separate inquiry for mesne profit. The
plaintiff is also entitled to the costs of the suit. In answer to issue
no. 16, I pass the following order.

ORDER

1] Suit is partly decreed with costs against defendant no.1 and

defendant nos. 3 to 6.
2] Defendant nos. 1 and 3 to 6 are directed to vacate the suit
premises as described in para 1-B and to deliver its
peaceful possession to the plaintiff within four months from
the date of this order.
 25] Judg. in Civil Suit No.31/2007

3] Separate inquiry for mesne profit is ordered.

4] Decree be drawn up accordingly.
Sd/-
Place : Pune. ( S. A. Bajaj )
th
Date : 07/02/2024 5 Addl. Judge, Small Causes Court
and Jt.C.J.S.D. Pune.
 26] Judg. in Civil Suit No.31/2007

CERTIFICATE
I affirm that the contents of this PDF file order are same word for word
as per original order.

Name of Steno : Vishal Khirid, Stenographer [Grade-II]

Court Name : S. A. Bajaj

5th Addl. Judge, Small Causes Court
and Jt. C.J.S.D.Pune.

Order date : 07/02/2024

Order signed by
Presiding Officer on : 07/02/2024

Order uploaded on : 07/02/2024