spb/- 1 wp1920-97.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 1920 OF 1997 Smt. Kamalabai Ramnivas Prajapati ... Petitioner. Age 76 yrs, Occ. Business, R/at Survey No. 789, (Org.Defendant No.1) Chinchwad, Gandhi Peth, Pune. Vs. 1 Shri Vasant Baburao Darekar, ... Respondents. Age 56 yrs., Occ. Busiess, R/at Survey No.200/1, Chinchwad, Pune. 2 Shri Vijay Ramniwas Prajapati, Age 37 years, Occ. Service, R/at A.B.C.Housing Society, Near SKF Co., Chinchwad, Pune. --- Mr. P.B. Shah for the Petitioner. Mr. Mandar Limaye i/by R.S.Apte for the Respondent No.1. ----- CORAM : D. G. KARNIK, J. DATE : 06th JANUARY, 2011. ORAL JUDGMENT : 1 This petition filed under Article 227 of the Constitution of India is directed against the judgment and order dated 11th December, 1996 passed by the 11th Additional District Judge, Pune, confirming the decree of eviction passed against the petitioner by the Small Causes Court, Pune in Suit No. 255 of 1990. spb/- 2 wp1920-97.sxw 2 Respondent No.1 is the owner of the property bearing city survey no 789. A portion consisting of four rooms out of the said property was let out by the father of the respondent no.1 to Ramnivas Prajapati prior to the year 1963. Mr. Ramnivas Prajapati died in the year 1975 leaving behind him a widow and a son. Petitioner no.1 is the widow and respondent no.2 is the son of Ramnivas Prajapati. After the death of Ramnivas, rent receipts were issued in the name of his son Vijay – the respondent no.2. On 23rd April, 1987, the respondent no.1 issued a notice, demanding arrears of rent from the petitioner and respondent no. 2. By the said notice, as per the law then prevailing, the respondent no. 1 also terminated the tenancy and demanded the possession of the suit premises. On failure of the respondent no.2 to comply with the notice, the respondent no.1 filed a suit for eviction in which decree for possession was passed. On appeal, the decision of the trial court has been confirmed by the appellate court. That decision is impugned by the present petition. 3 The trial court passed a decree of eviction on the ground of reasonable and bonafide requirement, acquisition of the suitable residential premises by the respondent no.2 -tenant and change of user of spb/- 3 wp1920-97.sxw the suit premises. In view of the fact that an application for standard rent was filed by the respondent no.2 within one month from the receipt of the notice, the trial court declined to pass the decree on the ground of default in payment of rent. On appeal, the appellate court confirmed the decision of the trial court on the ground of reasonable and bonafide requirement, change of user as also on the ground that the respondent no.2, had acquired suitable accommodation for his residence. The appellate court also held that the respondent no.2 was defaulter in payment of rent and passed a decree under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short Bombay Rent Act). 4 Mr. Shah, learned counsel for the petitioner submitted that the tenants had filed an application for fixation of the standard rent within 30 days from the receipt of the notice and had deposited the interim rent as fixed by the trial court. There was a bonafide dispute regarding the standard rent and therefore, the lower appellate court erred in passing the decree of eviction on the ground of default in payment of rent. 5 As regards the acquisition of the suitable premises, he submitted that the suit premises were used for the purpose of business and spb/- 4 wp1920-97.sxw therefore, the provisions of section 13(1)(l) were not attracted as the suit premises were the business premises. As regards the change of the user, he submitted that though premises were initially let out for the purpose of residence but with the consent of the then landlord i.e. the father of the respondent no.1, the tenant Ramnivas had started using the premises for the purpose of business since 1963. Neither the original landlord nor his son -the respondent no.1, had ever objected to the change of user by the tenant and therefore, no decree of eviction could have been passed on the ground of change of user. He further submitted that since the suit premises were business premises and used for the purpose of business, the requirement of respondent no.1 for use the suit premises for the purpose of residence could not be considered as a reasonable and bonafide requirement. According to the respondent no.1 he required only one room for the purpose of business and three rooms for the purpose of residence. As the entire suit premises were used for the purpose of business, the need of the respondent no.1 for the purpose of residence could not be said to be reasonable and bonafide requirement. 6 Coming to the question of the change of user of the suit premises, the respondent no.1 had alleged in the plaint that the suit premises were let out for the purpose of residence, but were illegally and without spb/- 5 wp1920-97.sxw permission of the respondent no.1 or his father they were used for the purpose of business by the respondent no.2. In the additional written statement filed by the petitioner, she has stated that initially the suit premises were taken on rent on the monthly rent of Rs.5/-, but when her husband Ramnivas started using the suit premises for business with the consent of the father of the respondent no.1 the rent was increased to Rs. 8/- per month. According to her, Mr. Ramnivas started using one room for the purpose of business since 1963 and the type of business was changed from provisional store to general store in the year 1983-84. In the written statement it is further stated that the remaining three rooms were continued to be used by Ramnivas alongwith his family for the purpose of residence. The petitioner has, therefore, clearly admitted that initial purpose of letting was residential and even according to her only one room out of four rooms was used for the purpose of business with the consent of the father of the respondent no.1. The contention of the petitioner, therefore, that the suit premises were let out for the purpose of business cannot be accepted. At the most it can be said that no decree for eviction could be passed on the ground of change of user of one room out of the four rooms because firstly there appears to be consent on the part of the respondent no.1 and/or his father for using one room out of the suit premises for business and in any event admittedly no action was spb/- 6 wp1920-97.sxw taken for a period of 40 years since the change of the user of one room. 7 As regards acquisition of the suitable alternative residence, both the courts below have come to the conclusion that the respondent no.2 has acquired suitable residential premises elsewhere. Acquisition of alternate residential premises by the respondent no.2 was not disputed before me. It was however contended that Ramnivas was the original tenant and after his death the petitioner i.e. the mother of the respondent no.2 had inherited the tenancy and therefore, acquisition of an alternate premises by the respondent no.2 could not be a ground for eviction. The rent receipts (Exh.32) which are produced on record show that they stand in the name of respondent no.2. Since the death of Ramnivas, it was the respondent no. 2 who was paying the rent of the suit premises as the petitioner had no independent source of income. The petitioner never objected for transfer of tenancy in the name of the respondent no.2 on death of Ramnivas. Therefore, it cannot be said that the petitioner was the tenant and not the respondent no.2. Since acquisition of the residential premises by the respondent no.2 is not disputed, the decree for possession has been rightly passed by the courts below in favour of the respondent no.1 on the ground of acquisition of suitable residential premises by the respondent no.2. spb/- 7 wp1920-97.sxw 8 As regards the bonafide requirement, the respondent no.1 has claimed that he does not possess any other accommodation. In the cross -examination of the respondent no.1, some questions were put to him regarding ownership of the property bearing no. 4551 and some hissas. It was stated that respondent no.1 was the owner of the property consisting of some parts of S.No.4551 and these premises were not disclosed by respondent no.1 while claiming the possession of the suit premises on the ground of bonafide requirement. The respondent no.1 admitted the ownership of the land bearing S.No.4551 but contended that the said land was vacant and a shed was constructed by an encroacher. In the cross- examination, he specifically denied that he was in possession of any property, S. No. 4551 or its hissas. No independent evidence was adduced by the petitioner to show that the respondent no.1 was in possession of any structure on the property bearing S. No. 4551 or any its hissas (parts). The respondent no.1 in his deposition stated that he had no other premises for residence and therefore, he required the suit premises for the purpose of his residence. The two courts below have concurrently held that respondent no.1 requires the suit premises reasonably and bonafide for his residence. In the absence of any perversity in the concurrent finding of fact recorded by the two courts spb/- 8 wp1920-97.sxw below, no interference is called for in exercise of an extra ordinary jurisdiction of this court under Article 227 of the Constitution of India. 9 In view of what is stated above, it is not necessary to consider whether the lower appellate court was right in setting aside the decree on the ground of default in payment of rent. 10 For these reasons, there is no merit in the writ petition which is hereby dismissed. Rule is discharged with no order as to costs. 11 After this order was pronounced in the open court, Mr. Shah, learned counsel for the petitioner prays for some time for vacating the suit premises. On the petitioner and the respondent no.2 filing an undertaking of themselves and all their family members in the court in the usual form within a period of four weeks from today, the petitioner is granted six months time to vacate the suit premises. In the event the undertaking is not filed within four weeks, the decree may be executed forthwith. [D.G. KARNIK, J.]