IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.4286 OF 1991 PETITION NO.4286 OF 1991 PETITION NO.4286 OF 1991 Shri Vithal Bansi Bankar & Ors. ... Petitioners Vs. Shri Badrinarayan Jagannath ... Respondent Sarda Mr. V.S. Gokhale, Advocate for Petitioner. Mr. P.B. Shah, Advocate for Respondent No. 1A to 1E. WITH WITH WITH WRIT WRIT WRIT PETITION NO.5239 OF 1990 PETITION NO.5239 OF 1990 PETITION NO.5239 OF 1990 Shri Badrinarayan Jagannath Sarda ... Petitioner Vs. Shri Vithal Bansi Bankar ... Respondent Mr. P.B. Shah, Advocate for Petitioner. CORAM CORAM CORAM : A.M. KHANWILKAR, J : A.M. KHANWILKAR, J : A.M. KHANWILKAR, J. DATE DATE DATE : 8TH JULY, 2008 : 8TH JULY, 2008 : 8TH JULY, 2008 P.C. P.C. P.C. :- :- :- 1. Heard learned Counsel for the parties. 2. Perused the relevant pleadings and documents on record to which reference was made by the learned Counsel for the parties during the course of the argument. 2 3. In the present Writ Petitions, concurrent view taken by the two Courts below for passing decree of eviction against the petitioner-tenant on the ground that the tenant has acquired alternate suitable accommodation within the meaning of Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is questioned. On the basis of the pleadings and the evidence on record, the Courts below have concurrently found that admittedly the tenant acquired new bungalow in Co-operative Housing Society in the year 1976, and was put in possession of said bungalow. That fact is reinforced from the evidence such as Invitation Card of performance of Vastu Shanti issued by the petitioner-tenant. Besides, the petitioner-tenant in his evidence has deposed that he purchased bungalow for Rs.1,05,000/- in the year 1976. If the petitioner- tenant had purchased the said bungalow, obviously that accommodation was a suitable accommodation in contrast to the suit premises entitling the landlord decree of eviction. 4. The only question raised on behalf of the 3 petitioner, is that, although the said bungalow was acquired in the year 1976, however, on account of dispute with the owner thereof, the sale transaction was cancelled in the year 1980, on account of which the petitioner vacated the bungalow and handed over the possession back to the owner. 5. To substantiate the above plea, the learned Counsel for the petitioner has invited my attention to the agreement Exhibit "G" to the present petition dated 5th March 1980 which records the fact that there was dispute between the petitioner and Mr. Murlidhar Ladkat which was amicably settled on understanding that purchase agreement of 1976 is cancelled and the petitioner would hand over the possession to the owner. The argument though attractive, clearly overlooks the finding of fact recorded by the two Courts below to the effect that besides the oral testimony of the petitioner in this behalf, no other evidence or cogent documentary evidence was produced by the petitioner to substantiate his defence. In that, before institution of the suit in the year 1984, the petitioner had in fact vacated the bungalow and was not in possession of any other premises. 4 The Courts below have also recorded that the petitioner did not examine any member of the Sant Dnyaneshwar Co-operative Housing Society or owner from whom the petitioner purchased the bungalow to substantiate his stand. There is no infirmity in this concurrent finding recorded by the two Courts below. 6. Learned Counsel for the petitioner, however, relies on Paragraph No.5 of the deposition to contend that the cancellation deed dated 5th March, 1980 has been placed on record by the petitioner, which has not been considered by the two Courts below. Paragraph No. 5 of the petitioner’s deposition, reads thus : "5. After the cancellation of the agreement, I returned back the possession to the original owner. I have produced the copy of the agreement which was subsequently cancelled. It is signed by myself, Shri Ladkat the owner and the witnesses. I received back my consideration. I returned it back in the year 1980. I deny that we are in occupation of that bungalow and we are residing there at present. The plaintiffs are not in need of any additional accommodation. I will be put to more hardship. Even if the plaintiff vacated the rented premises in execution of the decree passed against them, they will not require any additional accommodation for their use." 5 7. Even on liberal reading of the aforesaid deposition, all that can be observed in favour of the Petitioner is that he has made reference to the cancellation of transaction by producing the document. However, the contents of the said document were not proved by the Petitioner. Obviously, for that reason, the document now produced at Exhibit "G" to the petition at page 60 has not been exhibited by the trial Court. Even the Roznama relied upon by the Petitioner does not support the stand of the petitioner that the document at Exhibit "G" (cancellation deed) has been exhibited and proved by the Petitioner. The petitioner is not in a position to point out that the document Exhibit "G" has been duly proved or that the same can be treated as admissible in evidence. Thus understood, no fault can be found with the conclusion raised by the two Courts below, in taking the view that the petitioner has failed to substantiate his plea that he had already vacated the said bungalow in the year 1980. In absence of that evidence, it would follow that the Petitioner continued to be in possession of the said bungalow during the relevant period and more so on and after 6 institution of the suit in September, 1984. 8. In this view of the matter, the conclusion that the petitioner has acquired alternate suitable accommodation within the meaning of Section 13(1)(1) of the Act is inevitable. Thus understood, there is no infirmity either in the approach of the lower Courts or the conclusion recorded by the lower Courts on the point in issue. Accordingly, the petition preferred by the tenant being Writ Petition No.5239 of 1990 will have to be rejected. 9. As the decree on the ground of Section 13(1)(1) of the Act passed by the two Courts below has been confirmed by this Order, it is not necessary to burden this judgment with the question of correctness of the opinion recorded by the lower Courts on the ground of bonafide requirement under Section 13(1)(g) of the Act, which has been raised by the landlord-Petitioner in Writ Petition No.4286 of 1991. 10. Accordingly Writ Petition preferred by the landlord is disposed of without going into the questions agitated therein by the landlord. 7 11. At this stage, learned Counsel for the petitioner- tenant in Writ Petition No.5239 of 1990 prays that tenant be granted three years time to vacate the suit premises. This request however, is opposed by the learned Counsel for the respondent- landlord. The respondent- landlord in all fairness however, submits that the landlord may not oppose if the tenant continued to enjoy the premises maximum upto one year from now, subject to filing usual undertaking in this Court. Accordingly, the execution of decree shall not be proceeded further for a period of one year from today, on condition that the tenant shall file usual undertaking as well as all adult and family members staying with the tenants in the suit premises within four weeks from today, failing which the landlord will be at liberty to take steps for execution of the decree in accordance with law. 12. Both petitions are disposed of. ( A.M. KHANWILKAR, J.) A.M. KHANWILKAR, J.) A.M. KHANWILKAR, J.)