1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4186 OF 1993 Shri Kiran Gundopant Suryawanshi, ) Aged 42 years, Occupation – Service, ) Residing at Dapodi, Pune – 12. ).. Petitioner ( Org. Plaintiff/landlord) Versus Shri Jaysunder B. Pillay, ) Since deceased through heirs and legal ) representatives : - ) 1a) Ratnamala Jaysunder B. Pillay, ) W/o. Smt. Jaysunder B. Pillay, ) adult, Indian Inhabitant, residing at ) Bhikan Sheat Kate Building, ) S.T. Road, Opp. Municipal School, ) Dapodi, Pune – 12. ) 1b) Shri Deoraj Jaysundaram Pillay, ) adult, Indian Inhabitant, residing at ) Karmel School, Vadgaon Sheri, ) Nagar Road, Gavade Chawl Gulli No.4, ) Pune. ) 1c) Shri Salveraj Jaysundarm Pillay, ) adult, Indian Inhabitant, residing at ) S.T. Colony, Pune – 27. ) 1d) Shri Ratnaraj Jaysundaram Pillay, ) adult Indian Inhabitant, residing at ) Bhikan Sheat Kate Building, ) S.T. Road, Opp. Municipal School, ) Dapodi, Pune – 12. ) 1e) Shri Shantiraj Jaysundaram Pillay, ) adult Indian Inhabitant, residing at ) Bombay Colony, Near Piping Station, ) Dapodi, Pune – 12. ) 2 1f) Smt. Jaimala Shayamkant Pandhre, ) adult Indian Inhabitant, residing at ) Chirag Apartment, Dapodi, Pune -12. ) 2. Shri Shamkant K. Pandhare, ) Aged 38 years, Occupation – Service, ) Residing at Pawan Peth, House No.461, ) Dapodi, Pune – 12. ).. Respondents (Org.Defts. Nos.1 and 2- Tenants ) -- Shri P.J. Thorat i/by Shri R.A. Thorat for the Petitioner. Shri N.V. Bandiwadekar for Respondent Nos. 1(a) to 1(e). -- CORAM : A.S.OKA, J. DATE : 24TH FEBRUARY, 2010 ORAL JUDGMENT : . The Petitioner ( Original Plaintiff/landlord ) has challenged the concurrent decrees passed by the Courts below by which the suit filed by him for eviction of the Respondents from the suit premises has been dismissed. 2. The suit relates to a residential premises let out by the Petitioner to the 1st Respondent. The allegation in the suit is that the Petitioner requires the suit premises for bona fide and personal use. The second allegation is that the Respondent No.1 has unauthorizedly sublet the suit premises to Respondent No.2. The third allegation is that the 1st Respondent/Tenant has acquired a residential block consisting of 6 rooms 3 in the house of Bhikanseth Kate. The Trial Court negatived all the three grounds under Sections 13(1)(e), 13(1)(g) and 13(1)(l) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 ( hereinafter referred to as “the said Act”.). The District Court has confirmed the decree by dismissing the Appeal of the Petitioner. 3. The learned counsel appearing for the Petitioner submitted that the suit summons as well as a notice of Appeal preferred by the Petitioner was served to the 1st Respondent in the premises of Shri Kate. He submitted that the Courts below especially the Appellate Court has committed an error by putting burden on the Petitioner to examine the said landlord Shri Kate. He submitted that in fact the burden was on the 1st Respondent especially when he was residing in the premises of Shri Kate. He submitted that it was for the 1st Respondent to examine Shri Kate to defeat the ground of acquisition of suitable residence. As far as the ground of subletting is concerned, he pointed out that when the suit was filed, the 1st Respondent was residing in the premises of Shri Kate and the 2nd Respondent who is alleged to be the son-in-law of the 1st Respondent was found to be in possession of the suit premises. He submitted that the burden was on the 1st and the 2nd Respondents to show that in what capacity the 2nd Respondent was occupying the suit premises. He submitted that the Petitioner has discharged his burden by proving that a person other than the tenant was residing in the suit premises. He placed reliance on a decision of this Court in the case of Radhabai Krishnanand Vernekar v. 4 Courawwabai Sharnappa Bukka & Ors., [ 2001(3) Bom.C.R. 228 ]. He submitted that the Appellate Court was unnecessarily impressed by the fact that the 2nd Respondent is no longer in possession of the suit premises. He submitted that the subletting need not subsist till the date on which the suit is decided. He placed reliance on the decisions of the Apex Court in the cases of Gajanan Dattatraya v. Sherbanu Hosang Patel & Others ( AIR 1975 SC 2156 ) and Raghunathi & Anr. v. Raju Ramappa Shetty, ( AIR 1991 SC 1040). He submitted that even the ground of bona fide requirement was proved by the Petitioner. He submitted that the Courts below have committed an error by dismissing the suit as well as the Appeal. The learned counsel appearing for the legal representatives of the 1st Respondent supported the impugned judgment and decrees. He invited my attention to an additional affidavit filed by the Respondent No.1(e) for bringing on record certain subsequent events. 4. I have given careful consideration to the submissions. Perusal of the judgments and decrees of the Courts below shows that the same are based on consideration and appreciation of the oral evidence on record. Nevertheless in view of the submissions made by the learned counsel appearing for the Petitioner, I have gone through the notes of evidence and pleadings of the parties. As far as acquisition of suitable residence is concerned, the case of the Petitioner was that the 1st Respondent has acquired a premises in a chawl of one Bhikansheth Kate. The Petitioner stated in his examination-in-chief that the 1st Respondent obtained six 5 rooms on rent from the said Shri Kate and that he has sublet the suit premises to the 2nd Respondent. He stated that the 2nd Respondent was residing in the suit premises for two years from 1986 and thereafter the suit premises has been kept lock. Reliance has been placed on the voters’ list. In the cross-examination, a suggestion was given to the Petitioner that the premises are not acquired by the 1st Respondent. A suggestion was given that the 1st Respondent, elder son along with his wife and children were residing in the premises of Shri Kate and that the said son has acquired the premises of Shri Kate. Correctness of the said suggestions was denied by the Petitioner. The 1st Respondent stepped into the witness box. He deposed that the 2nd Respondent was his son-in-law. He stated that his elder son was residing separately from him. Surprisingly in the cross- examination, I find that no suggestion was given to the 1st Respondent that the premises in the building of Shri Kate have been taken by him on rent. On the contrary, in the cross-examination, it was brought on record that his elder son was residing along with his wife and daughter in the said accommodation and he got the said accommodation under the scheme of M/s. Telco. It was not put to the 1st Respondent that he himself had taken the said premises on rent. In the cross-examination, there is no challenge to the version that the examination-in-chief that the 2nd Respondent is his son-in-law. In the cross-examination, the Petitioner stated that he has given his gas cylinder to his son and instructed to the Gas Agency that the cylinder should be delivered to his son. 6 5. Thus, so far as the acquisition of suitable residence is concerned, the Courts below have found that the same has not been proved. As stated earlier, it is not even suggested in the cross-examination of the 1st Respondent that he has acquired the accommodation from Shri Kate. 6. As far as the allegation of subletting in favour of the 2nd Respondent is concerned, it is not in dispute that the 2nd Respondent is the son-in-law of the 1st Respondent. It is the case of the Petitioner himself that the 2nd Respondent stayed in the suit premises for a period of two years. In the case of Radhabai Krishnanand Vernekar (supra), this Court had dealt with a case where a person who was a stranger to the tenant was found staying in the suit premises. The 2nd Respondent who is admittedly the son-in-law of the 1st Respondent is shown to have been in possession of the suit premises and even according to the case of the Petitioner, he was in possession for few years. Considering the fact that the 2nd Respondent is the son-in-law of the 1st Respondent, mere possession of the 2nd Respondent and that too for a brief period of three years will not be sufficient to draw an inference of unlawful subletting or transfer of the suit premises by the 1st Respondent in favour of the 2nd Respondent. 7. As far as the ground of bona fide requirement is concerned, again there are concurrent findings of fact recorded by the Courts below. The case made out by the Petitioner is that his family consisted of his wife, 7 son, daughter and his father and that they were residing in a two room tenement. The Courts below found that in the pleadings, it was pleaded that the parents of the Petitioner were residing at Kolhapur and they were occasionally coming to Pune. Moreover, the Courts below found that the Petitioner has not pleaded the extent of premises in his possession. The Trial Court also found that initially the Petitioner was residing at Kothrud and that he vacated the said premises. The additional affidavit filed by Respondent No.1(e) also deals with this aspect. It is pointed out therein that during the pendency of this Writ Petition, another tenant of the Petitioner has handed over the possession of the two rooms to the Petitioner. 8. In view of the concurrent findings of fact recorded by the Courts below, no interference is called for. The Writ Petition is rejected. Rule is discharged with no orders as to costs. (A.S.OKA, J) ash