kbp 1 5926-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5926 OF 1991 Mrunalini Bhalchandra Parandare (since deceased through Lrs. ..Petitioners Vs. Jayashree Kamalakar Likhite (since deceased through Lrs.) ..Respondents WITH WRIT PETITION NO.2956 OF 2002 Mrunalini Bhalchandra Purandare ..Petitioner Vs. Jayashree Kamalakar Likhite (Since deceased through Lrs.) ..Respondent ....... Mr.S.S.Kulkarni, for petitioners (in both petitions). Mr.Venkatesh Shastry, for respondent nos.1A to 1B. (in both petitions) ....... CORAM : A.S.OKA, J.. DATE : 23 rd SEPTEMBER, 2009. JUDGMENT : 1] These petitions can be conveniently disposed of by a common judgment. The petitioners in both the petitions are the legal representatives of the original kbp 2 5926-91.sxw plaintiff. Original plaintiff was the landlord. The respondents are the legal representatives of the defendant (original tenant). The dispute relates to the suit premises which is a room admeasuring about 168 sq. feet. The case of the plaintiff was that the defendant was in arrears of rent from 1 st May, 1984 to 31 st October, 1984 apart from arrears of eduction cess, taxes and other charges. A notice of demand was issued by the plaintiff on 10 th November, 1984. The case of the plaintiff was that the defendant had acquired a suitable premises in April, 1984 bearing house No.21/3, Sadashiv Peth, Pune which was more than sufficient and suitable for the residence of the defendant. The trial court decreed the suit on the ground of arrears of rent. The trial Court negatived the other two grounds viz. nuisance and annoyance and acquisition of suitable residence. The trial Court dealt with the case of the plaintiff that the defendant acquired suitable residence in the form of House No.21/3 which is a bungalow. The trial Court negatived the ground by holding that though the defendant is shown to have acquired one half share in the said house property, the premises on the first floor were occupied by the tenants and there was nothing on record to show that the defendant has actually obtained the possession of the premises. 2] An appeal was preferred against the decree by the defendant. In the said appeal, the plaintiffs contended that the decree ought to have been passed on the ground of nuisance and annoyance as well as acquisition of suitable residence. While dealing with the plea, the appellate court noted that though kbp 3 5926-91.sxw the defendant filed a suit for recovery of possession of the property bequeathed under the will of her father, it cannot be said that the defendant has acquired a suitable residence unless it is shown that the defendant has actually received the possession of the property. 3] It must be stated here that the appellate court interfered with the decree passed on the ground of arrears of rent and dismissed the suit by allowing the appeal preferred by the tenant. The Appellate Court decided the appeal on 30 th March, 1991. The writ petition no.5926 of 1991 has been filed for challenging the said decree of the Appellate Court. The cross-objection of the plaintiff was dismissed. A fresh suit was filed by the plaintiff for eviction of defendant. The fresh suit was filed in the year 1994 on the ground that after the Writ Petition No. 5826 of 1991 was filed by the plaintiff, in the year 1994 the defendant obtained actual possession of the house property i.e.H.No.21/3, Sadashiv Peth, Pune. In the said suit it was contended that the defendant had occupied the said premises. The subsequent suit was dismissed by the trial Court by holding that the earlier suit was filed on the same ground and the same has been dismissed. An appeal was preferred by the petitioner before the District Court. The District Court accepted the the fact that the defendant received possession of the house property on 21 st March, 1994. Though the District Court did not agree with the findings of the trial Court as regards maintainability of the suit, it was observed that since the writ petition No.5926 of 2001 previous suit was pending, kbp 4 5926-91.sxw the ground of acquisition of suitable residence need not be considered. Therefore, the appeal came to be dismissed. Writ Petition No.2956 of 2002 has been filed for challenging the judgment and decree passed in the subsequent suit. 4] In Writ Petition No.5926 of 1991 an affidavit of the petitioner has been placed on record for setting out the fact that the defendant obtained possession of six rooms through the Court from the tenant and since then, she is in possession of the said six rooms. The fact of filing subsequent suits is also brought on record by the said affidavit. 5] The learned counsel appearing for the petitioner submitted that in the first suit only reason for which the ground of acquisition of residence was negatived was that though under the will the house property was allotted to the share of defendant, the actual possession of the property was not obtained by her. He submitted that the view taken by the courts below in the first suit on the issue of acquisition of property is erroneous. He invited my attention to the findings recorded by the appellate court and submitted that the appellate court should not have interfered with the findings recorded by the trial court while relying upon the decision which does not arise out of the provisions of the Bombay Rents, Hotel and Lodging House Rents Control Act (hereinafter referred to as the “Bombay Rent Act”). He submitted that the decree should not have been set aside as there was no compliance with the demand notice within the stipulated time. He kbp 5 5926-91.sxw also invited my attention to the findings recorded by the appellate court while dealing with the appeal arising out of the subsequent suit filed by the petitioner.The learned counsel appearing for the respondent supported the impugned judgment and decrees and submitted that no interference was called for. 6] The ground of acquisition of suitable residence was held against the plaintiff in earlier suit on the ground that though the tenant was allotted a house accommodation bearing no.21/3, Sadasiv Peth, Pune, she was actually not in possession thereof. As stated earlier, the suit premises are residential premises consisting one room situated at Sadashiv Peth, Pune. In the subsequent suit, the trial court negatived the ground of acquisition of residence by applying principles of res-judicata. In the appeal preferred by the plaintiff, the first point framed by the appellate court was on the issue of acquisition of suitable residence. The second point was on the bar created by the principles of res- judicata and the third point was whether the suit was tenable. As far as the issue of res-judicata is concerned, the appellate court observed that the same does not survive. As far as the tenability of the suit is concerned, the appellate court observed that if the subsequent suit was decree, the writ petition which is pending in this Court (Writ Petition No.5926 of 1991) will become infructuous. The appellate court observed that the plaintiff ought to have got the subsequent events incorporated in the writ petition itself, and therefore, the second suit was kbp 6 5926-91.sxw not tenable. 7] As far as the aspect of acquisition of suitable residence is concerned, following findings are recorded by the appellate court while dealing with the subsequent suit:- i. The plaintiff produced the certified copies of possession receipt and bailiff’s report at Exh.64 and Exh.65 which clearly reflect that the defendant received the possession of house property consisting six rooms on 24 th March, 1994. ii. The copies of documents produced by the plaintiff were not disputed by the defendant tenant. iii. It cannot be disputed that the tenant received the possession of her own property consisting six rooms. iv. The tenant contended that the suit property is already let out to one partnership firm and it is not in her own possession. But, no evidence has been adduced in support of the said contention and in fact, the defendant did not step in to the witness box. 8] After recording the aforesaid findings, the appellate court did not pass a decree on the ground that the writ petition arising out of the earlier suit is pending. Hence, the findings of fact recorded by the court below in the first suit is that by virtue of will of her father, the tenant become the owner of the six kbp 7 5926-91.sxw rooms in the house property situated at Sadashiv Peth, Pune, but, the actual possession thereof was not obtained by the tenant. The findings of fact recorded in the second suit is that in the year 1994, the defendant tenant obtained possession of the said house. 9] It will be necessary to consider the additional affidavit filed in the earlier petition by the legal Representatives of the plaintiff. The said affidavit has been filed on 19 th January, 2009 and the said affidavit shows that a copy thereof was served to the advocate for respondent. Paragraph 3 of the said affidavit reads thus:- 3. I say that, being aggrieved by the impugned judgment and order the deceased petitioner had preferred present petition before this Hon’ble Court. I say that, during the pendency of the present petition in the month of March 1994 the Respondent obtained possession of six [6] rooms through Court from tenants and since then the Respondent is in possession and actual occupation of the said premises situated at 21/3, Sadashiv Peth, Pune and since then the Respondent is not occupying and/or using the suit premises and has kept the suit premises locked since March 1994. There is no reply filed to the said affidavit. In any event, in the subsequent suit the tenant did not dispute that in March, 1994 she obtained the possession of six kbp 8 5926-91.sxw rooms which were allotted to her under the will executed by her father. The only defence in the subsequent suit was that she had already let out the said rooms to a partnership firm. Thus, the fact that during the pendency of the first writ petition, the respondent acquired the possession of six rooms is brought on record in Writ Petition No.5926 of 1991 and the said fact is not disputed by the tenant. There is no cross petition filed for challenging the findings recorded by the courts below which are subject matter of challenge in these two writ petitions. Therefore, the only conclusion which can be drawn is that the tenant acquired the possession of six residential rooms in the same locality of Sadashiv Peth, Pune, where the suit premises is situated. The suit premises consist only one room. Therefore, the newly acquired accommodation is certainly suitable to the tenants. As stated earlier, all the subsequent events are brought on record of writ petition No.5926 of 1991 by an affidavit, and there is no reply filed to the affidavit placed on record. While exercising power of superintendence, this court cannot ignore the admitted fact of the tenant obtaining possession of six rooms during the pendency of the writ petition. It is also pertinent to note that the specific case of the plaintiff in the earlier suit was that out of the first floor premises in the acquired house, the defendant tenant had already acquired the possession of two rooms. In paragraph 8 of the decision of the trial court, the finding appears to be that the plaintiff established that the defendant obtained two rooms, but it is not proved that the same were not suitable. Now the tenant kbp 9 5926-91.sxw has admittedly acquired possession of six rooms. In the circumstances, a case is made out for passing the decree on the ground of acquisition of suitable residence. 10] As far as the ground of arrears of rent is concerned, a findings of fact has been recorded by the appellate court that when the notice of demand was served there was already an excess payment made by the tenant. It is not possible to interfere with the said finding of fact. 11] Hence, I pass the following order:- (a) Rule issued in Writ Petition No.5926 of 1991 is made absolute in terms of prayer clause “b”. It is clarified that the decree for possession is on the ground of acquisition of suitable residence. (b) In view of the order passed in Writ Petition No.5926 of 1991, Writ Petition No.2956 of 2002 does not survive and the same is disposed of. Though a case is made out for passing the decree in the second writ petition, no order is passed as the decree for possession is already passed in Writ Petition No. 5926 of 1991. (c) On the prayer made by the learned counsel appearing for the tenant, the decree for possession shall not be executed for 12 weeks from today, subject to the condition that the respondents will not create any third party rights and shall not part with the possession of the suit premises. kbp 10 5926-91.sxw ( A.S.OKA, J. )