1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3251 OF 1997 Shriram Murlidhar Gham and others Petitioners versus Manohar P. Kangarlikar Respondent Smt.Anita A. Agarwal for petitioners. CORAM : A.S.OKA, J. DATE : 21st April 2010 JUDGMENT : 1. Heard learned counsel for the petitioners. None appears for the respondent. The petitioners are plaintiffs and respondent is the original defendant. A suit was filed by the petitioners against the respondent under the provisions of Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. The suit premises consists of two rooms on ground floor of the building owned by the petitioners. The suit was filed on the ground of arrears of rent and acquisition of suitable residence. The suit was instituted in July 1991. The suit was contested by the respondent by filing written statement. The Trial Court framed two issues. The first issue is on the ground of default and the second is on the ground of acquisition of suitable residence. One of the allegations was that the respondent has shifted to the quarters provided by his employer. The second ground is that the respondent has acquired a plot on which construction has been 2 made. The Trial Court dismissed the suit. The Appellate Court dismissed the appeal preferred by the petitioner. The ground of arrears of rent was negatived and the ground of acquisition of residence was negatived on the ground that the plot was acquired by the respondent for the benefit of his son and that the son has constructed a bungalow/house on the said plot. 2. Learned counsel appearing for the petitioners invited my attention to the findings recorded by the Courts below. He pointed out that admittedly the plot was acquired by the respondent for a consideration of Rs.5,000/- and the said plot was transferred in the name of his son during pendency of the suit. She pointed out that an application for transfer of the plot in the name of the son was made during pendency of the suit just to circumvent the provisions of the said Act. She pointed out that no evidence has been adduced to show that the house which has been admittedly constructed on the said plot is by the son of the respondent. She pointed out that the respondent did not examine his son to prove that the construction has been carried out by the son. She submitted that all these material aspects were completely ignored by the Courts below. None appears for the respondent. 3. As far as ground of default is concerned, admittedly notice contemplated under section 12(2) of the said Act was not served to the respondent-tenant and, therefore, no fault can be found with the finding recorded by the Courts below on the ground of default. 3 4. As far as second ground is concerned, a perusal of the plaint shows that the acquisition pleaded was of quarters allotted to the respondent by his employer. However, I find that the petitioners adduced evidence on the issue of acquisition of the plot and construction of house by the respondent and even the respondent adduced evidence on this aspect. Therefore, both the parties knew that the ground of acquisition of plot and construction of house thereon was canvassed in the suit. 5. The petitioners examined one Gajanan Bhave as a witness. He was a member of Kalashanti Co-operative Housing Society. He deposed that the respondent was the founder member of the society. He stated that the respondent constructed tenements in the society and it was completed in the year 1993. In the cross examination he stated that the plot in the society stands in the name of respondent's son. He stated that the respondent informed him that he was desirous of purchasing a plot in the name of his son and the son was minor at that time. He stated that on the application made by the respondent, the plot was transferred in the name of his son. The respondent stepped into the witness box. He stated that he had acquired a plot in Kalashanti Co-op. Housing Society for the benefit of his son and the son was minor at the relevant time. He stated that his son has made construction on the plot of a house. In the cross examination he admitted that he was the founder member of said Kalashanti Housing Society and in the year 1978 he acquired the plot by paying price of Rs.5,000/-. He also admitted that he had given address of 4 the suit premises as the founder member and lease deed was executed in his favour. He stated that he has submitted an affidavit to the society that he was not holding any other house or accommodation. He stated that in the year 1992 he applied to the society vide application at Exhibit-58 for transfer of the plot in the name of his son. He stated that in the year 1982 the age of his son was 20 years and he was doing the contract work of electricity. He stated that he executed a lease deed in favour of his son. He stated that he was not aware about the expenditure incurred by his son though he was on talking terms with his son. In the cross examination he stated that the bungalow was constructed by his son in the year 1993. 6. It is pertinent to note that the suit summons was served to the respondent on 18th July 1991 and on 24th September 1991 the respondent filed appearance in the suit. The document at Exhibit-58 is letter dated 9th May 1992 submitted by the respondent to the Chairman of the society for transfer of the membership in respect of plot no.87 in the name of his son. In the letter it is stated that in the year 1978 he had acquired the said plot for the benefit of his son who was minor at that time. He has stated that to facilitate completion of construction on the plot allotted to him by the society, loan was required to be taken and, therefore, his resignation be accepted and his son be made a member. A resolution was passed by the society on 10th May 1992 at Exhibit-59 by which the plot was transferred in the name of son of the respondent. Following admitted facts are borne out from the record viz. :- 5 (i) the respondent was the founder member of the said housing society; (ii) the plot was acquired by the respondent in the year 1978 at the cost of Rs.5,000/-; (iii) an application for transfer of the said plot in the name of the son was made 4 to 5 months after the respondent appeared in the suit; (iv) in the application at Exhibit-58, dated 5th September 1992, the petitioner had stated that for facilitating the completion of construction on the plot, loan was required to be taken. Therefore, as agreed earlier, the plot be transferred in the name of his son. The said application indicates that construction on the plot was in progress and, therefore, it is specifically stated that loan was required to be obtained for completing construction of the house; (v) the respondent stated that in the year 1982 his son was 20 years old. Though a case is made out that the plot was acquired for the benefit of the son in his name, as the son was minor in the year 1978, till 1992, the respondent did not apply for transfer of the plot in the name of his son; (vi) the application for transfer was made 4 to 5 months after the date of appearance of the respondent in the suit where one of the ground was acquisition of suitable residence; (vii) a bald statement has been made that a bungalow was constructed by the son in the year 1993. The respondent specifically stated that he was on talking terms with the son but he was not desirous of examining his son as a witness. 6 7. All this has to be appreciated in the light of the evidence of Gajanan Bhave who stated in his examination-in-chief that "defendant has constructed tenements in the society. It was completed in the year 1993. Sometimes he resides there and sometimes he does not reside there." As stated earlier, even the application for transfer of membership made in the year 1992 by the respondent suggests that the construction on the plot was in progress. There is no cross examination of witness Gajanan Bhave on what he has stated in the examination-in-chief. 8. If all the aforesaid admitted facts are considered, in no case a finding could have been recorded that acquisition of plot and construction of a bungalow thereon was by respondent's son. The only inference which could have been drawn was that in the year 1978 the respondent acquired the plot for cost of Rs.5,000/- and he applied for transfer of the plot in the name of his son in the year 1992. Though during pendency of the suit when construction of the bungalow was in progress, the son has not been examined to substantiate the contention that he had constructed the bungalow. In the circumstances, the findings recorded by the both the Courts below are completely contrary to the admitted facts borne out from the evidence and therefore, this was a case where a decree ought to have been passed on the ground of acquisition of suitable residence as the respondent has not pleaded that the bungalow constructed on the plot is not suitable. 7 9. Hence, the petition must succeed and I pass following order :- A) The impugned judgments and decrees are quashed and set aside; B) Suit No.676 of 1991 stands decreed on the ground of section 13(1) (l) of the said Act of 1947; C) There will be no orders as to costs; D) Time of four months is granted to the respondent to vacate the suit premises; E) Rule is made absolute in the above terms. (A.S.OKA, J.)