WP2194/98 (1) agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2194 OF 1998 Sampat Raosaheb Mahadik & Anr .. Petitioners versus Dhansingh Nandaram Dhawan (since deceased) through his heirs; Smt.Vimal Dhansingh Dhawan & Ors .. Respondents Mr.P.B.Shah for the petitioners. Mr.A.A.Kumbhakoni with Mr.Pratap Patil for respondent Nos.1 to 5. CORAM : A.S.OKA, J. DATE : 23rd September 2010. JUDGMENT: . By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged a decree for possession passed on the ground of acquisition of suitable residence under section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). 2 According to the case of the respondents-plaintiffs, the suit property WP2194/98 (2) which is a plot of land bearing City Survey No.243 situated at Baramati was let out to the 1st petitioner at monthly rent of Rs.30/-. It is alleged that on the suit property a temporary structure was erected by the petitioners and they started residing therein. In the original plaint it was alleged that the 1st petitioner has sublet the suit property to the 2nd petitioner and the 1st petitioner has shifted to Khandoba Nagar. Initially, the suit was filed on the ground of arrears of rent and subletting. The suit was contested by the petitioners. The trial Court held that the suit property which was the open land was let out to the 1st petitioner. The trial Court rejected the contention regarding the subletting. The trial Court recorded a finding that the 1st petitioner has acquired suitable residence. The trial Court held that the 1st petitioner was willful defaulter. The trial Court proceeded to pass a decree for possession. An appeal was preferred by the present petitioners. It appears that during the pendency of the appeal, amendment was permitted to be carried out to the plaint for alleging that the 1st petitioner has constructed his own house at Khandoba Nagar and the 2nd petitioner had acquired premises at Kasaba and has shifted there. An additional written statement was filed by the 1st petitioner during the pendency of the appeal. It is contended that the suit property was taken on lease by the 1st petitioner for composite purpose of business and residence and has carried out WP2194/98 (3) construction of a garage, office and a room on the suit property. It is contended that part of the structure is used as a garage and in the remaining structure there is office and room. It is stated that the 1st petitioner was carrying on business of running a motor garage which is the only source of income for his family. It is stated that 85% of the constructed premises on the suit property was being used for the purposes of business and only one room admeasuring 200 sq.ft was used for residence which is insufficient for his family. It is, therefore, contended that the 1st petitioner along with his sons has acquired a property at Khandoba Nagar and in the two rooms constructed thereon the sons of the 1st petitioner were residing along with the respective families. 3 It appears that on the basis of the amendment, the parties were permitted to adduce additional evidence. Further evidence of both the parties was recorded. The Appellate Court proceeded to confirm the decree on the ground of acquisition of suitable residence. 4 The learned counsel appearing for the petitioners submitted that no case has been made out by the respondents that the suit property was let out for the purposes of residence. He submitted that in absence of any such WP2194/98 (4) case made out by the respondents, the ground of acquisition of suitable residence under section 13(1)(l) of the said Act will have no application. He pointed out the additional written statement filed by the 1st petitioner to the amended plaint and submitted that a specific contention was raised in the written statement that the purpose of letting of the suit property is a composite purpose of business and residence. He pointed out that admitted position is that in the structure erected on the suit property the petitioners are having a garage. He submitted that the burden was on the respondents to prove that the only purpose of letting was residence and as no attempt has been made by the respondents-plaintiffs to prove that the of purpose of letting was residence, ground under section 13(1)(l) is not at all attracted. He invited attention of the Court to the evidence of the witness examined by the plaintiff as well as further evidence of the 1st petitioner. He submitted that even in the further evidence adduced by the plaintiff no case is made out that the purpose of letting was residence. He submitted that the decree on the ground incorporated under section 13(1)(l) of the said Act cannot be sustained. 5 I have given careful consideration to the submissions. Perusal of the judgment of the trial Court shows that an issue was framed being issue No. WP2194/98 (5) 10 on the question whether the 1st petitioner has acquired suitable residence. While dealing with the said issue the trial Court recorded a finding that the 1st petitioner has admitted that he has purchased a vacant plot in Khandoba Nagar in the names of his sons and he also admitted the photographs at Exhibit 48 showing the house constructed on the said plot. The trial Court found that the hut as well as house shown in photographs at Exhibit 48 was admitted to be owned by the 1st petitioner. The learned trial Judge held that house constructed which is shown in photographs at Exhibit 48 is suitable for residence of the 1st petitioner. The trial Court, therefore, held that the 1st petitioner acquired alternative accommodation. However, it was held that it was not shown that the 2nd petitioner had acquired suitable accommodation. 6 The Appellate Court while recording a finding on this aspect noted that in appeal additional evidence in the form of 7/12 extracts at Exhibits 35 to 40 was permitted to be produced and the said documents were admitted by the petitioners. The said documents reveal that land bearing Gat No.210, 20/1 and 168/3 have been acquired by the petitioners.At this stage, it must be noted that in the further evidence of the 1st petitioner which was recorded on 25th August 1992, the 1st petitioner admitted of having purchased a plot in the WP2194/98 (6) names of his sons and having constructed a house thereon. He admitted photographs of the house shown in evidence. The case of the petitioners is that they are real brothers and the tenancy has been acquired by joint family. 8 Though a contention was raised in the additional written statement that the purpose of letting was composite ,the perusal of both the judgments show that the petitioner did not press the contention before both the Courts below that the purpose of letting was not merely residence but a composite purpose of business and residence. The learned counsel appearing for the petitioners relied upon averments made in paragraph 10 of the petition. It is not the case of the petitioners in the petition that the aforesaid contention regarding composite purpose of letting was raised before both the Courts or at least before one of the two Courts and that the same has not been considered. It will be not out of place here to mention that in the reply to the suit notice which is at Exhibit 61, the petitioners admitted that the suit property was let out for the purposes of residence. The correctness of the contents of the reply were admitted by the first petitioner in the cross examination. Thus, in the reply to the suit notice it is the case of the petitioners themselves that purpose of letting was residence. According to the case of the petitioners only one room constructed on the suit property is WP2194/98 (7) being used for residence and there is a garage premises and office. In the circumstances, there is no reason to disturb the concurrent finding of fact recorded by the Courts below that the petitioners have acquired suitable residence. There is no reason to disturb the decree of eviction. Hence, the petition fails and the same is rejected. Rule is discharged with no orders as to costs. 9 The learned counsel appearing for the petitioners prays for continuation of interim relief. The learned counsel appearing for the respondent opposes the same by contending that the structure on the suit property is in dilapidated condition. It is directed that interim relief granted in the petition will continue to operate for a period of four months from today. (A.S.OKA, J)