1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 146 OF 2007 Aminabai Abbasbhai Bohari & Ors. .......Appellants Verus Santoshkumar Mohanlal Lodha & Ors. ........Respondents Mr.M.M.Sathaye, adv.forpetitioners. Mr.N.R.Bubna, adv.for respondents. Coram: Smt.R.P.SondurBaldota, J. Dated : 27 th August, 2008. P.C. : 1. This Civil Revision Application is filed to challenge the correctness and legality of the judgment and order dated 17th July, 2004 passed in Reg.Civil Appeal No. 7 of 1996 by the District Court-Nashik confirming the eviction decree against the revision applicants. The respondents are the original plaintiffs-landlords and the applicants are the heirs and legal representatives of one AbbasBhai Bohori who was the tenant. He died pending the appeal proceedings. Then the applicants were brought on record as his heirs and legal representatives. The applicants will hereinafter be referred to as the `tenants' and the respondents as the `landlords. 2 2. The landlords filed Reg.Civil Suit No.11 of 1985 against AbbasBhai seeking eviction decree on the ground of default in payment of rent causing permanent alterations to the demised premises and acquisition of suitable alternate accommodation. The demised premises consists of Rooms No.25, 26 and 62 out of Municipal House No. 1184, serial no. 157/C situated within the municipal limits of Manmad, Taluka-Nandgaon, District-Nashik. The landlords examined one of them i.e. Respondent no.1 in support of their case, whereas, Abbasbhai instead of examining himself examined his constituted attorney, who is also his relative. By the judgment and order dated 30th November, 1995, the suit was decreed on the ground of acquisition of suitable alternate accommodation by AbbasBhai and he was directed to hand over possession of the demised premises within a period of 2 months from the date of the order. The claim of the landlord as regards default in payment of rent and causing permanent alterations to the demised premises, was rejected by the trial court. Aggrieved by the said eviction decree, AbbasBhai filed Reg.Civil Appeal No. 7 of 1996 in the district court. As already mentioned above, during the pendency of the appeal, AbbasBhai died and the revision applicants -tenants have been brought on record as his legal heirs. By the impugned judgment and order, the decision of the trial court came to be confirmed. Thus, there is concurrent finding of the two courts that the tenants have acquired suitable alternate accommodation for residence, and as such the landlord is entitled to decree of eviction against them. This concurrent finding is challenged in the instant appeal. 3 3. The challenge to the impugned order is essentially on two grounds, firstly, that the demised premises being let out for composite purposes i.e. for residence and for shop, Section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as `the Rent Act' ) is not applicable. Secondly, that there is no evidence on record to show that property no.158/159 are acquired by the tenants subsequently, which are suitable alternate accommodation to them. 4. At para-2 of the plaint, the landlord states that Rooms No.25, 26 and 62 in Municipal House No.1184 was let out to AbbasBhai for the purpose of residence on the municipal rent of Rs.56/-. At para-2(c), the landlord sets out the ground for acquisition of alternate premises by the tenant, Abbasbhai. It is stated therein that Abbasbhai had acquired several premises in Manmad camp area and city on rent. At some places, he has constructed residential premises with all the facilities. He also constructed a house near his shop. Since, he has several residential premises in his possession, there is no need for him to retain the demised premises. In the written statement, the averment in the plaint that the three rooms were let out to Abbasbhai for residence has not been dealt with at all. Therefore, the only inference that can be drawn on the reading of pleadings is that, it is an admitted fact that the demised premises were let out to Abbasbhai for the purpose of residence. As regards the 4 ground of acquisition of alternate accommodation, the written statement contains bare denials. 5. The landlord reiterated in his evidence that Abbasbhai has been using the demised premises for residence. There is no cross-examination of the landlord on this evidence. It is not even suggested to him that the three rooms had been let out to Abbasbhai for composite purposes i.e. for residence as well as commercial purposes. On the contrary, towards the end of the cross-examination, the suggestion which has been given to the landlord is that the three rooms which are being used by Abbasbhai for his residence as he has no other place of residence, except the suit premises. Thus, it is seen that there is not even so much as an whisper in the cross- examination of the landlord about the composite tenancy in respect of the three rooms. Abbasbhai had not examined himself but was content to examine his constituted attorney. The constituted attorney in his deposition, does not describe the purpose of the tenancy or the manner in which it is being used, instead, he has asserted that Abbasbhai has been residing in the suit property. Mr.Sathaye, learned counsel for the revision applicants draws the attention of the court to one admission in the cross-examination of the landlord. On the question put in cross-examination, respondent no.1 admitted that he cannot state what were the circumstances and the terms on which the demised premises were let out to Abbasbhai. With this admission, Mr.Sathaye submits that the claim of the suit premises being let out for 5 the purpose of residence alone, should not be accepted. Since, there is no dispute as regards the purpose of tenancy in the Written Statement, it must be deemed that when the parties went to trial, it was on admission that the demised premises were let out for the purpose of residence. The admission pointed out in the cross- examination would have been of some relevance, had there been denial in the Written Statement that the premises were out for the purpose of residence. Then there would also have been an issue framed as the purpose of tenancy would have been a disputed fact. However, there is no issue framed in this regard. In any case, the admission by respondent no.1 is required to be looked at in the facts and circumstances of the case. As seen from the evidence, at the time of filing of the suit, respondent no.1 was a minor. The premises have been let out by his grandfather. Consequently, he has admitted in forthright manner that he is not aware of the circumstances at which the demised premises were let out to Abbasbhai and the terms of tenancy. However, this admission is already seen to be irrelevant in the facts of the case. Therefore, the claim of the tenants that the demised premises were let out for the composite purpose and as such Section 13(1) (l) of the Rent Act is not applicable, has no force. 6. As regards, the grant of alternate suitable accommodation, the evidence of the landlord is as follows :- Abbasbhai has acquired several places in the city of Manmad on ownership basis as well as on tenancy. He is the owner of the property 6 at House No.158, 159 which is situated at a distance of about one furlong from the demised premises. That property consists of a chawl and it is used for the purpose of residence. There are seven blocks in the chawl, each block consisting of two rooms. There are facilities of light, water and toilet available to the chawl. The landlord produced the assessment list in respect of the property which is at Exhibit-52. The landlord referred to one more property of Abbasbhai being House no. 1038 situate at Bohari compound, Manmad. This property consists of three rooms and a shop. According to the landlord, Abbasbhai had been residing in House no. 1038. The landlord referred to third premises of Abbasbhai being property no. 1719 on which Abbasbhai had a shop. Appellant no.2 deposed that Abbasbhai had constructed a house behind the shop at property no.1715. The cross-examination of the landlord on the acquisition of several premises is limited to giving suggestions that the statements made are false. Perusal of the evidence of the constituted attorney of the tenant shows that it is not disputed that House No.158/159 are owned by Abbasbhai. He states that the property is jointly owned by him alongwith Abbasbhai. He further deposed that there have been tenants on the property since prior to his acquisition and that the rooms have been in possession of the tenants. He however, did not give the particulars as regards the tenancies in respect of the rooms in that property. In order to establish his claim, that there are no premises in this property available to him for residence it was expected that he would give particulars of the tenants on the property, the tenure of their tenancy etc. This witness, has however not given even 7 the name of a single tenant on that property. The trial court in its judgment has dealt with the evidence of the parties on the acquisition of the premises, consisting of the depositions and the assessment lists at Exhibit-52 and 55. It is observed that the assessment list Exhibit-52 and 55 of the property no. 158/159 shows that the property stands jointly in the name of Abbasbhai and his constituted attorney. There are 8 rooms in the chawl and in the year 1984-85 there were tenants residing in 7 of the rooms. The eighth room had been in possession of the owners i.e. Abbasbhai and his constituted attorney. The list at Exhibit-55 shows that in the year 1988-89, rooms no.5 and 6 were closed. This means that these two more rooms were available to Abbasbhai for the purpose of residence. The trial court has further observed that since as per the tenants own witness the rooms are occupied by the tenants, the premises cannot be said to be not suitable or not habitable. Since these premises are clearly available to the tenants, it is not necessary for this court to go into the availability of the two other rooms pointed out by the landlord in his evidence. The lower appellate court has appreciated the very evidence before the trial court to hold that there is suitable alternate accommodation acquired by the tenant. The appellate court has further taken note of the Voters list at Exhibit-53 which indicates that the tenant has been residing in the house constructed by him at property no. 1038. In view of the availability of the suitable alternate accommodation at premises no. 158/159 and the actual residence of the tenant at the premises no.1038, the lower appellate court has accepted the landlords' 8 contention and confirmed the decree. Both the concurrent findings having arrived at on the basis of the inferences from the pleadings and the evidence brought by the parties before the court. The inferences and findings are fully supported by the pleadings and the evidence. Therefore, they are not required to be interfered with. 7. Mr.Sathaye, has made an attempt to argue that the pleadings in the plaint as regards the acquisition of alternate accommodation are vague, and therefore, both the courts ought to have held that the ground of acquisition of alternate accommodation is not available for want of sufficient particulars. The same arguments were advanced before the lower appellate court also and it has been rightly held by the lower appellate court that pleadings need not contain the evidence. There is sufficient foundation laid down in the plaint for the ground of acquisition of alternate premises by the tenant on which the evidence could be led at the time of trial. Ideally, the plaint should have mentioned the details as regards the alternate accommodation available to the tenant. However, since there is a ground made out in the plaint, for want of details alone, the ground cannot be rejected outright. The tenant has had sufficient opportunity to meet the claim by cross- examining the witness of the landlord and by bringing in his own evidence. Therefore, I find no substance in the contention that the pleadings on this ground is vague. 9 8. Lastly Mr.Sathaye, submitted that if the court is not inclined to upset the concurrent findings of the two courts below, the tenants should be granted time of one year to vacate. This submission is seen to be reasonable and following order is passed. 9. The Civil Revision Application is dismissed. The time granted to the applicants to vacate the demised premises is extended by one year from the date of this order. The applicants to file an Undertaking to the effect, that they shall vacate the demised premises within a period of one year from today. The Undertaking to be filed within a period of two weeks from today. In the event of failure to file the Undertaking within two weeks, the order as regards the extension of time will stand vacated. [Smt.R.P.SondurBaldota, J]