:1: 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. 7609 OF 2008 PETITION NO. 7609 OF 2008 PETITION NO. 7609 OF 2008 Mr. Hirji Narsi Shah. ... Petitioner. V/s. Mr. Vinayak Mahadeo Pradhan & Ors. ... Respondents. Mr. S.P. Kanuga i/b. Sapna N. Shah for the Petitioner. Mr. P.R. Arjunwadkar for Respondents 1 & 2. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 21ST 21ST 21ST APRIL 2009. APRIL 2009. APRIL 2009. P.C. P.C. P.C. : : : . Rule. Respondent Nos. 1 and 2 waive service. Rule made returnable forthwith by consent. Heard both sides. 2. The Petitioner is the Original Appellant in Civil Appeal No.97 of 2004 and Original Defendant in Regular Civil Suit No.174 of 1991. This is a Suit for possession of the Suit premises on the grounds permissible under the old Rent Act i.e. Bombay Rent Act, 1947. 3. The Trial Court decreed the Suit by the Judgment and Decree dated 21st April 2004 against which the Petitioner - Appellant preferred the above Appeal. 3. It is not in dispute before me that the Suit was filed by the Respondent for possession. The Suit premises :2: are Room No.4 admeasuring 128.25 sq.ft., House No.54, CTS No.66 and more particularly, described in para 2 of the order of the Appellate Court. 4. It if further not in dispute that the Petitioner was inducted as a tenant in the said premises at monthly rent of Rs.36/- per month at the relevant time. 5. The Suit was filed by the Respondents on three grounds. Firstly, that the Petitioner-tenant has acquired suitable alternate accommodation. Secondly, that the Suit premises are not used by him for a continuous period of six months prior to the institution of the Suit without any reasonable cause and thirdly, that by his acts, he has caused wastage and damage to the suit property/premises. 6. The Trial Court negatived the case of the Respondents on the first two grounds but decreed the Suit by holding that the Petitioner is guilty of causing wastage and damage to the Suit premises. 7. The Appellate Court has reversed the finding of the Trial Court on the ground of acquisition of suitable alternate accommodation by the Petitioner. That the Lower Appellate Court did by allowing the cross-objection of the Respondent landlord. The Lower Appellate Court concurred with the Trial Court, as far as the finding on wastage and :3: damage to the Suit property. Thus, Decree of possession was upheld but on different grounds and for distinct reasons. 8. Aggrieved by the orders of the Courts below, the Petitioner - tenant is invoking the jurisdiction of this Court under Article 227 of the Constitution of India. 9. Mr. Kanuga, learned Counsel appearing for the Petitioner contended that the Trial Court has dis-believed the Respondents on the issue of acquisition of suitable alternate accommodation by holding that the premises at Jaffara Building, Dhobi Ali, Thane cannot be said to be the premises acquired by the Petitioner as the same have been acquired by his married son, who is residing therein with his family. The Petitioner cannot be said to be a party to the acquisition nor can it said that the Petitioner can reside with his son in his own right. However, according to Mr. Kanuga, the learned Appellate Judge fell in error in accepting the case of the Respondents for possession on the very same ground by holding that during the pendency of the Appeal, the Appellate Court was informed that the Petitioner has acquired another accommodation in the name of his son admeasuring 550 sq.ft. for the price of Rs.9 lakhs. It is submitted by Mr. Kanuga that the Application for amendment was rejected. Thereafter, no material is produced. Merely because there is no denial by the :4: Petitioner - Appellant does not mean that the alleged alternate premises have been acquired by him and are suitable for his accommodation. Nonetheless, the fact remains that the son of the Petitioner has since expired and the daughter-in-law, who is a widow, is residing in the premises alongwith children. It would be too much to expect from a old man like the Petitioner to go and reside in the house alongwith the widow and children. Therefore, the decree on this ground cannot be sustained and must be quashed and set aside. 10. Mr. Arjunwadkar, learned Counsel for the Respondents on the other hand urges that the Lower Appellate Court has observed in paragraph 10 of its order that the Petitioner is residing at Jaffara Building but his conduct is such that he has acquired another accommodation, which fact, is suppressed from the Court. Even otherwise, he is aged 80 years and therefore, depending upon his son for his daily needs. He is demonstrating as if he is residing in the suit premises but has acquired alternate accommodation for himself which is clear from the affidavit filed by the Respondents in the Lower Appellate Court. 11. I have perused the Petition and the annexures thereto including the Judgment of the Court below. The Court below has proceeded on the basis that the premises put in issue were not just one at Jaffara Building but :5: another premises which are referred to in the affidavit filed by the Respondents before the Lower Appellate Court. The Lower Appellate Court has observed that the Petitioner was residing with his son as is clear from reading of Paragraph 10 of the Order of the Lower Appellate Court. However, the Lower Appellate Court has also adverted to the fact that the Petitioner has been served with the Suit summons at the address at Jaffara Building. It may be that the said premises have been acquired by his son and therefore, cannot be said to be Suitable. However, the fact remains that neither during the course of the proceedings before the Lower Appellate Court nor before me, it could be seriously disputed that another premises have been acquired on 1st July 2005 admeasuring 550 sq.ft. for a price of Rs.9 lakhs. These premises have been purchased after the institution of the Suit. This fact was placed on an affidavit before the Lower Appellate Court. Merely because the Application for amendment was rejected does not mean that there was a dispute raised by the Petitioner - Appellant to the acquisition of these premises. For the Petitioner there are two premises available is what is alleged. The Lower Appellate Court has heavily relied upon additional accommodation admeasuring 550 sq.ft. acquired on 1st July 2005 and referred to in the affidavit filed by the Respondents. This, the Lower Appellate Court has done despite noticing that the Application for amendment has been rejected. :6: 12. Therefore, the limited issue before this Court is whether the Lower Appellate Court was right in reversing the Judgment of the Trial Court by accepting the cross-objections of the Respondents. Prima-facie order of the Lower Appellate Court and more particularly, the reasoning in para 10 does not indicate that the premises are suitable. Whether the Court below was satisfied that the ingredients of Section 13(i)(l) of the Bombay Rent Act, 1947 are proved or not is not clear from the reasoning. If at all the Lower Appellate Court desires to rely upon the affidavit of the Respondents filed in the Appeal, fairness demanded that it should have granted the Petitioner sufficient opportunity to meet the contents of the same. More so, when it has concurred with the Trial Court on the issue of non-user of the premises. Thus, interests of justice demand that the matter needs to be re-looked by the Lower Appellate Court. 13. There is no serious dispute before me that the ground of causing wastage and damage to the suit premises cannot be a reason for directing eviction from the premises. In fact, with his usual fairness, Mr. Arjunwadkar states that no decree of eviction on this ground could have been granted. However, the issue of acquisition of alternate accommodation and whether it is also suitable is something that is in issue and considering that the Petitioner prays for a fresh opportunity to rebut the case of the Respondents atleast :7: by remand to the Lower Appellate Court, I am of the opinion that interest of justice would be subserved if the matter is remitted to the Lower Appellate Court for reconsidering its finding limited to the issue of acquisition of suitable alternate accommodation by the Petitioner. The Petitioner states that he would co-operate in expeditious disposal of the Appeal. The remand to Appellate Court would be in the interest of parties considering the age of the Petitioner and that the Suit is filed in 1991. 14. In these circumstances, the following order would meet the ends of justice :- (i) By consent, the Judgment and Decree of the Trial Court and the Lower Appellate Court on the issue of causing wastage and damage to the premises is set aside. (ii) The Judgment and Decree of the Lower Appellate Court on the point of acquisition of suitable alternate accommodation by the Petitioner is set aside. However, the matter is remitted to the Lower Appellate Court for deciding as to whether the Respondents have proved that the Petitioner has acquired alternate accommodation and whether it is suitable for his occupation. Thus, the issue as to whether the Respondents are :8: entitled to a Decree of Possession u/s. 13(1)(l) of the Bombay Rent Act, 1947 should be re-examined by the Lower Appellate Court. The Appeal and cross-examination before the Lower Appellate Court are restored to its file to this limited extent. (iii) The Respondents can prove this fact by filing an affidavit in the Lower Appellate Court, which shall be done within a period of two weeks from the date of receipt of a copy of this order. (iv) The Respondents shall annexe the relevant and material documents to support the pleas raised by them in their affidavit. It would be open for the Petitioner to file an affidavit in reply and place before the Court below such material as is permissible in law. (v) The Lower Appellate Court to thereafter hear the parties and pass an order afresh without being influenced by any of the observations made earlier. However, it is clarified that the Decree on the Issue of non-user of the suit premises need not be re-opened. In other words, the matter is remitted back only as far as the issue of acquisition of alternate premises by the Petitioner. (vi) All pleas on the applicability of Section :9: 13(1)(l) are kept open. Both sides can raise them afresh and the Lower Appellate Court should proceed on the footing that no opinion is expressed on merits by this Court. 15. Parties to appear before the Lower Appellate Court on 29th April 2009. The Lower Appellate Court would give liberty to file affidavits as above and endeavour to dispose off the matter as expeditiously as possible and within a period of three months from the date of appearance of parties. 16. Rule made absolute in the above terms with no order as to costs. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)