1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3020 OF 1991 Mrs. Housabai Popat Sonawane } Deceased through her L.Rs. : } 1-A Popat Lotu Sonawane } Age : Major, Occ. : } R/o : Shivajinagar, Jalgaon, } Dist. : Jalgaon. } 1-B Mangalrao Popat Sonawane } Age : Major, Occ. : } R/o : Shivajinagar, Jalgaon, } Dist. : Jalgaon. } 1-C Mrs.Leelabai Eknath Borse } Age : Major, Occ. : } R/o : Shivajinagar, Jalgaon, } Dist. : Jalgaon. } 1-D Mrs.Kalabai Sitaram Dhangar } Age : Major, Occ. : } R/o : Shivajinagar, Jalgaon, } Dist. : Jalgaon. } 1-E Mrs.Pramilabai Eknath Bagul } Age : Major, Occ. : } R/o : Shivajinagar, Jalgaon, } Dist. : Jalgaon. } .... PETITIONERS V E R S U S Ramesh Rajaram Saindane } Age : 42 Yrs., Occ. : Service, } 2 R/o : 329, Shivaji Nagar, } Jalgaon, Dist. Jalgaon. } .... RESPONDENT Mr. S.D.Karkare, Advocate holding for Mr. P.K.Joshi, Advocate for petitioners. Mr. P.R.Patil,Advocate for respondent. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 17/02/2010 ORAL JUDGMENT : 1. By this petition, the petitioners challenge Judgment dated 6/2/1991 rendered by the 3rd Additional District Judge, Jalgaon in Civil Appeal No. 173 of 1989, whereby and whereunder eviction decree, granted by the trial Court, came to be reversed. 2. Undisputedly, the deceased petitioner was the land-lord and the respondent is tenant in respect of suit premises which are described in the plaint of ejectment Suit (R.C.S. No. 355 of 1988) that was filed in the Court of the Jt. Civil Judge (Jr.Division), Jalgaon. The learned Civil Judge held that the deceased petitioner was entitled to get possession of the building, including the suit premises, for the purpose of demolition as contemplated under section 13 (hh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( For short, ‘ the Bombay Rent Act ’ ). The learned Civil Judge came to the 3 conclusion that necessary certificate was filed by the deceased petitioner as required under section 13 (3-A) of the Bombay Rent Act. The learned Civil Judge came to the conclusion that the decree for eviction could be passed in view of Section 13 (hh), because the building was found in dilapidated condition. The first appellate Court reversed findings of the trial Court on the ground that there was no due compliance of the provisions of section 13 (3-A) of the Bombay Rent Act. 3. It is an explicit fact that while filing the suit for eviction, basically on the ground that possession of the building was required for the purpose of demolition and reconstruction thereof, the deceased petitioner did not file undertaking as contemplated under section 13 (3- A), though a general statement is made in the plaint that the deceased petitioner was ready to give equal portion of the newly constructed house to the respondent. 4. Heard learned counsel for the parties. 5. It is imperative that there was defect in filing of the suit for want of appropriate undertaking as contemplated under section 13 (3- A) of the Bombay Rent Act and, therefore, the civil action was not in keeping with the parameters of the relevant provision. It appears that the deceased petitioner realized the error committed while filing of the 4 suit when the matter was at the appellate stage. The deceased petitioner expressed willingness to file such undertaking in the appellate Court but it was not accepted for the reason that the law requires filing of such affidavit at the time of the institution of the suit. Realizing this legal impediment, counsel for the petitioner seeks liberty to file afresh suit availing the same certificate which was filed along with the suit regarding the condition of the structure of the building. Mr. P.R. Patil invited my attention to the observations in “ Vithoba Pandurang Koli V/s Babu Mahadeo Lavane and another ” (1990 Bom. R.C. - 290 ) . In the given case, this Court held that failure to comply with requirement of section 13 (3-A) of the Bombay Rent Act will entail dismissal of the eviction suit. It is explicit from the language of section 13 (3-A) that the provision is mandatory in nature. It is not necessary to mince the words in order to demonstrate as to how the said provision is of mandatory nature. Suffice it to say, the undertaking as contemplated under section 13 (3-A) ought to be furnished in the required format as contemplated under sub clause (a) to (c) of section 13 (3-A) of the Bombay Rent Act. That was not done by the deceased petitioner while filing of the suit. The expression “ unless ” as used in section 13 (3-A) would make it manifestly clear that at the time of the institution of the suit, the certificate granted by the Tribunal along with necessary undertaking in the manner required ought to have been filed. There was only partial compliance made by the deceased petitioner in as much as the relevant certificate indicating 5 condition of the building was produced along with the plaint but the relevant undertaking was not furnished at the time of institution of the suit. Needless to say, there was inherent defect in the very institution of the suit from its inception and, therefore, the view taken by the first appellate Court can not be regarded as perverse. 6. Considering the fore-going discussion, the petition is dismissed. However, the legal representatives of the deceased petitioner will be at liberty to file afresh suit for eviction on the basis of the same certificate which was produced before the trial Court or if so desire by obtaining afresh certificate having regard to the position of the building at the time of the filing of the suit, which it may be gathered, might have been more worse. They may comply with the relevant provision at the time of the filing of the fresh suit and such suit may be expeditiously decided by the trial court, if so filed. With these observations, the petition is dismissed. Rule discharged. No costs. [ V.R.KINGAONKAR ] JUDGE knp/WP 3020.91