ash 1 wp-1643.97rj.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 1643OF 1997 Jagdish Waman Patil & Ors. .. Petitioners. Vs Dilip harishchandra Gawad & Ors. .. Respondents -- Shri S.D. Thokade for the Petitioners. Shri V.S. Paradkar for the Respondents. -- CORAM : A.S. OKA, J DATE ON WHICH SUBMISSIONS WERE HEARD : 21ST DECEMBER, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 11TH MARCH, 2011 JUDGMENT : . By this Petition under Article 227 of the Constitution of India, the Petitioners who are the original defendants have challenge the decree of eviction passed in a suit filed by the predecessors of the Respondent Nos. 1 to 4 which is confirmed in an appeal preferred by the Petitioners before the Appeal Bench of the Court of Small Causes. 2 The predecessors of the Respondent Nos.1 to 4 filed a suit for eviction. The suit for eviction was in respect of a residential Block on the 1st floor on the South Side of House No.58-59 situated at Gaothan Lane No.4, J.P. Road, Andheri (West), Mumbai – 400 058. The said block is hereinafter ash 2 wp-1643.97rj.sxw referred to as “the said suit premises”. It is stated that the original 1st Defendant Waman Shankar Patil was the monthly tenant in respect of the suit premises. The present Petitioners are the legal representatives of the said Waman Shankar Patil ( deceased 1st Defendant ). The suit was filed under the provisions of the Bombay Rent Hotel, Lodging and House Rates (Control) Act, 1947 ( hereinafter referred to as “the said Act of 1947”) on the ground of causing nuisance and annoyance, bonafide requirement, acquisition of a suitable residence, non user of the suit premises for a period of more than six moths and unlawful subletting of the suit premises to the original Defendnat No.6 ( Respondent No.9 in this Petition ). It was contended in the suit that the predecessors of Respondent Nos.1 to 4 ( Original Plaintiffs ) was in occupation of the residential premises admeasuring only 425 sq. ft. which was not sufficient for meeting the requirements of the original Plaintiff. It was alleged that in May 1978, the 1st Defendant ( predecessor of the Petitioners ) left the suit premises with members of his family and all his belongings and since then, the suit premises has been kept locked. It is alleged that the original Plaintiff that the original 1st Defendant -tenant has built a house at Madh island and has shifted his residence there along with members of his family. It is stated that the residential accommodation at the disposal of the 1st Respondent was having an area of more than 1000 sq. ft. It is stated that though the 1st Defendant was not using the suit premises for the purpose for which it was let out, the 1st Defendant was sending strangers to occupy the suit premises on temporary basis and was indulging in ash 3 wp-1643.97rj.sxw profiteering. It was alleged that the Defendant Nos.2 to 5 were illegal sub- tenants in respect of the suit premises. It was alleged that the conduct of the 1st Defendant was causing nuisance and annoyance. 3. The suit was contested by the 1st Respondent by filing a Written Statement. He denied the allegations made in the Plaint. It was contended that the original Plaitniff had let out a vacant premises to Mrs. Prabha Thakur in the year 1975. it was alleged that the said premises was available to the plaintiff as the said Thakur had shifted elsewhere. It was contended that the original 1st Defndant had not acquired a suitable accommodation at Madh island but was holding a property at Madh island which was an ancestral property. It is stated that the ancestral property consisted of an agricultural land and a shack. It is contended that the said property was available to the 1st Defendant from his birth being ancestral property. It was contended that the said property was out of the limits of City of Bombay being situated beyond Versova Crick. It was contended that the 1st Defendant was suffering from paralysis for about 8 years and he had shifted to the house at Madh island on medical advise as he was unable to climb staircase for reaching the suit premises which was on the 1st floor. In the additional Written Statement filed by the legal representatives of the original 1st Defendant, it was contended that the particulars of the alleged bonafide need were not pleaded. It was contended that the 1st Petitioner was married and was now residing with his wife in the suit premises. ash 4 wp-1643.97rj.sxw 4 After the parties adduced the evidence, the Trial Court decreed the suit by passing a decree for possession on the ground of bonafide need, acquisition of a suitable residence, non user for a period of more than six months by the 1st Defendant and unlawful subletting in favour of the Original Defendant No.5. An appeal was preferred against the said decree before the Appeal Bench of the Court of Small Causes. The Appeal Bench confirmed the decree on the aforesaid grounds. Both the Courts denied the decree on the ground of causing nuisance and annoyance. 5 Learned counsel appearing for the Petitioners submitted that the decree on the ground of acquisition of suitable residence was totally unsustainable inasmuch as the property at Madh island was an ancestral property of the original 1st Defendant and the said property was not acquired after coming into force of the said Act of 1947. He submitted that under Section 13(1)(l) of the said Act of 1947, a decree can be passed on the ground of acquisition of suitable residence provided the acquisition is after coming into force of the said Act of 1947. He submitted that apart from the fact that Clause (l) of Section 13(1) was not applicable, the premises at Madh island cannot be said to be suitable as what was in existence was a shack. He submitted that Madh island is away from the City of Bombay and, therefore, the same was not at all suitable. He invited attention of the Court to the averments in the plaint and submitted that the plaint was devoid of material ash 5 wp-1643.97rj.sxw particulars as far as ground of bonafide need is concerned. On the ground for bona fide need, he invited attention of the Court to the averments made in the Civil Application No. 2924 of 1997. He submitted that a tenant of the 1st Defendant by name Smt. Prabha Thakur was occupying one block in the said building acquired a flat on ownership basis at Andheri and in December, 1996, the said tenant had shifted to the flat along with her fixtures and furnitures. He pointed out that the block in possession of tenant had fallen vacant and the 1st to 4th Respondents inducted another person in the said block. He submitted that the alleged bona fide need does not survive. He urged that even the case of subletting is not proved. 6 He submitted that as the Petitioners were under a bona fide impression that it was not necessary to adduce any evidence to show that the deceased 1st Defendant was suffering from paralysis. The said evidence could not be produced. He submitted that along with the application for leave to produce additional evidence, the said evidence has been produced. He pointed out that some correspondence was received at the address of the suit premises which could not be produced and copies of the correspondence have been annexed to the application. He submitted that if the additional evidence is taken into consideration, none of the grounds will survive. He submitted that apart from the fact that now the premises has become available to the 1st to 4th Respondents, in absence of any material particulars, the decree could not have been passed on the ground of bonafide need. He ash 6 wp-1643.97rj.sxw submitted that even assuming that there was non-user for a period of more than six months, the same was on account of attack of paralysis suffered by the 1st Defendant and due to the fact that the 1st Defendant was forced to shift to the premises at Madh island. He submitted that the decree was totally unsustainable. 7 The learned counsel appearing for the 1st to 4th Respondents supported the impugned judgment and decree. 8 I have given careful consideration to the submissions. As the learned counsel appearing for the Petitioners has made submissions on the basis of the evidence on record, I have perused the notes of evidence. 9 The first issue will be regarding the ground of acquisition of suitable residence. In the plaint, there is a specific assertion that the 1st Defendant has built a house at Madh island and has shifted his residence there and has gone to reside in the said house along with the members of his family. It is alleged that the 1st Defendant shifted to the said house in May, 1978. The suit was filed in November, 1979. In the original Written Statement of the 1st Defendant, the contention raised is that the property at Madh island was an ancestral property consisting of an agricultural land and a shack. It was contended that as the 1st Defendant was suffering from paralysis, from time to time, he was forced to stay in the shack at Madh island ash 7 wp-1643.97rj.sxw for medical treatment as he was unable to climb staircase leading to the suit premises on the 1st floor. The original Plaintiff stepped into the witness box. He stated that the 1st Defendant and his family members shifted to his premises at Madh island having area of more than 1000 sq. ft. and from May, 1978, the suit premises have been kept lock. A suggestion given to the Original Plaintiff in the cross examination is that he had seen the place of the 1st Defendant at Madh island when he accompanied the Court bailiff for serving the suit summons. The original Plaintiff stated that he was not aware as to who was the owner of the land. It is pertinent to note that in the cross-examination of the Plaintiff, no suggestion was given as regards the nature and area of the premises at Madh island. In the cross-examination, it was brought on record that the original 1st Defendant died in the premises at Madh island. 10 The 1st Petitioner examined himself. He deposed in September, 1993. He is the eldest son of the original tenant- 1st defendant. In the year 1993, he disclosed his age as 35 years. Hence in 1978 his age must be about 20 years. He produced a copy of the City Survey Map of the property at Madh island standing in the name of his uncle. He stated that the property at Madh island was an ancestral property. He stated that the property at Madh island was in possession of his brother and main portion of the house was in possession of his uncle. He denied that his father had shifted to Madh island. He stated that this father used to frequently visit the premises at ash 8 wp-1643.97rj.sxw Madh island for treatment. In the cross-examination, he admitted that his father i.e. the 1st Defendant died in the premises at Madh island. He stated that the property at Madh island known as “Shram Vihar” was in the name of his grand-father and after the death of his grand-father in the year 1968, the property devolved around the three sons of the grand-father including the 1st Defendant. He stated that his father was occupying a Padavi in the said property admeasuring 18 x 14 ft. In the cross-examination, he admitted that the entire property of “Shram Vihar” is owned by his father and his uncle. 11 It will be necessary to advert to the findings recorded by the Courts below on this aspect. The fact that the 1st Defendant was holding a property on Madh island along with his brother is not disputed. The fact that the property was inherited by him in the year 1968 after demise of his father is also an admitted position from the evidence of the 1st Petitioner. The Trial Court noted that in the cross-examination of the Plaintiff, a suggestion was given that since the 1st Defendant was not keeping fit, he shifted to Madh island but his son Jagdish continued to occpy the suit premises. Thus, by the said suggestion, it was sought to be suggested that the entire family of the 1st Defendant shifted to Madh island but only Jagdish continued to stay in the suit premises. The learned Trial Judge has observed that though a ration card of the 1st Petitioner was produced before the Court showing the address of the suit premises, the same was issued in the year 1989 i.e. ten years after filing of the suit. The learned Judge observed that ash 9 wp-1643.97rj.sxw the original ration card of the deceased 1st Defendant was not produced. As far as the Appellate Court is concerned, the entire evidence on this aspect has been considered. The Appellate Court noted that the admitted position is that the suit summons of the suit was served on the 1st Defendant at the premises at Madh island property. It is noted that the 1st Defendant died at the address of Madh island and on the death certificate, permanent address of the 1st Defendant is shown as “Shram Vihar”, Patil Wadi, Madh island, Malad, Mumbai. The Appellate Court also considered the fact that all the notices taken out during the pendency of the suit were also served at the address of the Madh island. The Appellate Court observed that the ration card produced by the Petitioners contained the name only of the 1st Petitioner which was issued during the pendency of the suit. The Appellate Court also observed that the medical papers of the alleged illness of the 1st Defendant were not placed on record and, therefore, the ground that on medical advise the 1st Defendant shifted to Madh island cannot be accepted. 12 It is pertinent to note that the 1st Defendant did not dispute that he was having premises at Madh island. The 1st Petitioner admitted that the house property was joint property of the 1st Defendant and his brother. There was no evidence adduced on record to show that the property was an ancestral property. There was no evidence adduced to show that the house “Shram Vihar” on the said property was in existence prior to coming into force of the said Act of 1947. The burden to prove that the acquisition of the ash 10 wp-1643.97rj.sxw said property was prior to coming into force of the said Act of 1947 was on the Petitioners or their predecessors. The said burden has not been discharged. The Petitioners did not come out with the exact area and the nature of the residential premisese at Madh island. However, concurrent finding of fact is that the suit summons and the notices of the applications taken out in the suit were served to the 1st Defendant at the address at Madh island. Moreover, the suggestion given to the Plaintiff in the cross- examination was that except his son Jagdish, the 1st Defendant and his family shifted to Madh island on account of the alleged ilness of the 1st Defendant. The 1st Defendant died in the premises at Madh island and his permanent address on the death certificate is that of the building “Shram Vihar” at Madh island. The ration card showing the names of the 1st Defendant and his family members was not produced. Only a ration card in the name of the 1st Petitioner taken out during the pendency of the suit at the address of the suit premises was produced. As stated earlier, the case of the Plaintiff is that the 1st Defendant shifted to Madh island in the year 1978 along with his family. The 1st Petitioner who is his eldest son must be hardly 20 years of age at that time. A ration card in the name of the 1st Petitioner was taken out in the yar 1989 at the address of the suit premises 10 years after the instititon of the suit. It cannot be disputed that the 1st Defendant had a house at Madh island in Mumbai. He died in the same house. The death certificate shows that the said house is in Mumbai. There is no ash 11 wp-1643.97rj.sxw evidence adduced that the house at Madh island was not suitable to the 1st Defendant. 13 In the circumstances, it is not possible to find fault with the concurrent findings of fact recorded by the Courts below on the issue of acquisition of sutiable residence. As the concurrent decree for possession will have to be maintained on the ground of acquisition of suitable residence, it is not necessary to deal with the other grounds. Along with the application for additional evidence, the medical certificates of the 1st Defendant of the years 1981 and 1983 are sought to be produced. Even assuming that at such belated stage, the additional evidence can be permitted, the said documents will not affect the finding on the issue of acquisition of suitable residence. 14 Hence, there is no merit in the Petition and the same is rejected. Rule is discharged with no orders as to costs. 15 Time of three months is granted to the Petitioners to vacate the suit premisese subject to condition that they will not create any third party rights in resepct of the suit premises and they will not part with possession thereof. JUDGE