1 wp4597 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4597 OF 1994 Rameshbhai Vithalbhai Vyas ...Petitioner vs. Kantilal Manilal Desai ...Respondent Mr.Rahul Walvekar for the Petitioner Mr.R.A.Thorat i/b Mr.Sameer Bhalekar for the respondent CORAM : A.S.OKA,J. DATE : AUGUST 5, 2011 ORAL JUDGMENT: 1 The respondent is a tenant in respect of room no.7 in a chawl situated in Mumbai. The respondent has acquired a self contained flat consisting of three rooms. The question in this petition is whether the acquisition by the respondent amounts to acquisition of suitable residence within the meaning of section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947 (hereinafter referred to as the said Act). 2 The respondent is the tenant of the petitioner in respect of the room no.7 in Building (Chawl) `A , House no.42/6, Shri Chandra Bhuvan Estate, Marve Road, Malad (West), Bombay-400064 (hereinafter referred to the as the suit premises) described in paragraph 1 of the plaint. A suit for eviction was filed by the petitioner against the respondent on various grounds. Later on amendment was carried out 2 wp4597 to the plaint for incorporating the ground for eviction under section 13(1)(l) of the said Act by contending that the respondent has acquired a flat no.1112 in the building known as Nilanjana situated at Marve Road, Malad (West), Mumbai 400 064. Additional written statement was filed by the respondent for dealing with the amended plaint. The respondent denied that he has acquired the said flat no.1112 (hereinafter referred to as the said flat). The respondent contended that the said flat was acquired by his eldest son who is residing therein with his wife and two children out of his own funds. It was contended by the respondent that the flat was acquired in the name of his wife. It was contended that the respondent has a younger son and a younger daughter who are of marriageable age and the suit premises will not sufficient for them. 3 The trial court framed various issues. In this petition, we are concerned with issue no.11 which was framed by way of additional issue on the ground of acquisition of suitable residence. Before the Trial Court a contention was raised by the respondent that the said flat was acquired by his son in the name of his wife. The Trial Court disbelieved the said case and it was held that the acquisition of the said flat was by wife of respondent and the family of the respondent was staying in the said flat. The trial Court held that the said flat was suitable and therefore, a decree for eviction was passed under section 13(1) (l) of the said Act on the ground of acquisition of suitable residence. An appeal was preferred by the 3 wp4597 respondent against the decree before the Appeal Bench of Court of Small Causes. Before the Appeal Bench, the learned counsel representing the respondent specifically stated that the Court should proceed on the footing that the acquisition of the said flat was by the respondent himself. Thus, it was admitted by the Respondent that he acquired the said flat. The Appeal Bench framed points for determination. The Appellate Court came to the conclusion that said flat was not suitable accommodation within the meaning of section 13(1)(l) of the said Act and therefore, the decree passed by the Trial Court was set aside. 4 The learned counsel for the petitioner submitted that before the Trial Court the respondent came out with a case that acquisition of the flat was not by him but was by his son. He pointed out that in the Appeal, the said case was given up. He submitted that in the written statement it was never the case made out by the respondent that the said flat was acquired by him, but it was not suitable. He, therefore, submitted that after having given up the stand that the acquisition was by his son, the respondent could not have come out with a case that though he has acquired the said flat but it was not suitable. He, therefore, submitted that the finding of the Appellate Court on the issue of suitability is even otherwise perverse. 5 The learned counsel for the respondent submitted that as the acquisition by the respondent himself is not proved, a decree could not have been passed under section 13(1)(l) of the said Act. He 4 wp4597 submitted that in any event while deciding the point of suitability, the Court is required to consider the needs of family of the tenant and the size of his family. He submitted that an enquiry has to be made for determining whether the accommodation acquired by the tenant is suitable to satisfy the needs of his family. He submitted that reasonable need of the tenant and his family members has to be considered and mere comparison of area of newly acquired accommodation with the area of the suit premises by itself may not be sufficient to hold that a particular accommodation is suitable. He submitted that the respondent has a large family which is the fact pleaded in the written statement. He pointed out that the suitability is to be tested considering the large size of the family of the respondent. He pointed out that the respondent has three sons and two daughters and the Appellate Court has noted that the eldest son has got married. He, therefore, submitted that considering these important aspects, the acquisition of the said flat consisting of only three rooms by no stretch of imagination can be suitable. He placed reliance on following decisions of this Court in support of his contention. Sl. no. Particulars Name of the parties 1 Bombay Law Reporter V.67 (690) Krishnaji Dattatraya Bapat Vs.Dr.Shankar Ramchandra Abhyankar 2 Bombay Law Reporter V.76 (240) Prabhakar Raghunath Dixit vs. B.S.Kothare 5 wp4597 3 1985 (1)Bom.C.R.100 Shankar Nana Waychal & Ors.vs.Mohan Ganesh Date & Anr. 4 1991(2)Bom.C.R.455 Saharabegam Sikandar Shaikh & Anr.Abdul Ali Mamaji Tejani & Anr. 5 2002(1) Mh.L.J.507 Dulanbi Mirasaheb Belgaonkar Vs.Annappa Kurkadevadiga 6 2006(4) Bom.C.R.561 Dharma Bhika Patil vs.Tarabai Anand Bhoir 7 2006(1) Bom.C.R.359 Vishwanath Govind Lagu vs.Usha Laxman Barve 8 1990 Mah.R.C.J.155 Parviz Engineer vs.Behram Dadabhai and other. 6 I have given careful consideration to the submissions. As stated earlier, the ground of acquisition of suitable residence was added by way of amendment to the plaint. The respondent filed additional written statement to the amended portion of plaint. In paragraph 3 of the additional written statement, the respondent stated thus : 3 Without further prejudice to the aforesaid the defendant referring to paragraph 8(a) and (c) of the plaint denies that he has acquired and/or has been allotted suitable accommodation at flat no. 1112 in the building Nilanjana as alleged. The defendant denies that he has been residing with his family member continuously as alleged. The defendant denies that he has lost protection of Rent Act and rendered himself liable for 6 wp4597 eviction under section 13(1)(l) as alleged. The defendant states that he is residing in the suit premises. The defendant denies that the suit premises are lying vacant unoccupied and unused as alleged. The defendant states that the said premises were taken by his eldest son who is residing there with his wife and to children out of his own moneys in the name of his mother. The defendant states that he has his younger son and younger daughter who are of marriageable age and the accommodation of the suit premises and the said premises are insufficient for the entire family. (Underline added) 7 So there is no specific case made out by the respondent that though the said flat was acquired by him, it was not suitable or that it was by way of additional accommodation and not by way of alternative accommodation. The emphasis in the written statement is on the statement that the acquisition is not by him but by his eldest son from his own funds. Perusal of the Judgment of the trial Court shows that a specific contention was raised by the respondent that the acquisition by his eldest son is in the name of his wife. In the Appeal preferred by the respondent, a submission was made on behalf of the respondent that by taking that the acquisition of the said flat is by the respondent, the Court should consider the issue of suitability. In paragraph 8 of the Judgment, the Appellate Court has noted thus : 7 wp4597 8...Mr.Shah told us that taking the acquisition of Nilanjana flat to be by the appellant, the Court should consider as to whether it is suitable in the sense the said word is understood under the provisions of section 13(1)(l) of the Bombay Rent Act. (underline supplied) In paragraph 11 of the Judgment the Appellate Court has stated thus : 11 In view of the fact that the appellant himself that this stage wanted us to proceed on the basis that the Nilanjana flat was acquired by him and he wanted us on that assumption to consider the aspect of suitability, one should have thought that was the end of the matter and we could proceed further. But Mr.Karia countering Mr.Shah s contentions told us it was now no more then to the appellant even to make any concession like that. Mr.Karia told us that now the appellant cannot be allowed to change his case. We do not think that we own agree with this submission. If the case law has it, that an acquisition even by a member living with the tenant can be considered to be the acquisition by the tenant, in certain circumstances and depending on facts, we do not think there can be any impediment in our way or even in the way of the tenant to ask us to proceed 8 wp4597 on the assumption that Nilanjana flat was his acquisition. If he had taken a stand to the contrary earlier, the Court can at the most say that regard being had to the state of evidence, the tenant perhaps should have made a clean breast of the facts rather than waiting to do so at the appellate stage... (underline supplied) 8 Thus, now it is not open for the respondent to contend that the acquisition of the said flat was not by him. The aforesaid statements recorded by the Appellate Court show that the respondent had taken up a stand during the trial which was completely untrue. The stand was that the acquisition was by his son. After scrutiny of evidence, the Trial Court rejected the said stand and held that the acquisition was by the respondent s wife. In the Appeal preferred by the Respondent, a stand was taken that he himself had acquired the said flat. The fair stand before the Trial Court would have been that he had acquired the said flat but it is merely by way of additional accommodation. However, that was not done. The Appellate Court has noted that the eldest son of the respondent was working as a T.V.Technician. The Appellate Court also noted that the second son of the respondent is a Chartered Accountant and the third son is a Commerce Graduate. The Appellate Court has noted in the Judgment that the domestic gas supply and milk supply to the respondent is being made at the address of the said flat. The Appellate Court has also noted the admitted fact that the said flat is a 9 wp4597 self contained flat situated on 11th floor of the building Nilanjana which is just across the road in front of the suit premises. In paragraph 22 of the Judgment, the learned Appeal Bench has noted the fact that the domestic gas supply and milk supply to the respondent was being made at the address of the said flat. 9 The learned counsel for the respondent has relied upon the decision of the Division Bench in the case of Krishnaji Dattatraya Bapat (supra) which holds that the suitability has to be determined considering the needs of the tenant and his family. He also relied upon the decision in case of Prabhakar Raghunath Dixit (supra) wherein this Court has held that mere comparison of the area of the suit premises and the area of the acquired premises is not sufficient and reasonable need of the tenant is to be considered. The Court observed that the issue cannot be considered only on the basis of the comfort or attractiveness of the existing dwelling house compared with that of alternative accommodation. It was held that the Court has to consider the merits of each dwelling house. The other Judgments relied upon by the respondent are on the issue of acquisition about which there is no dispute in the present case. The specific case of the respondent made out on oath during the trial is that his married son has acquired the flat from his own funds. Thus, even according to the case of the respondent, when the said flat was acquired, his eldest son was in position to acquire a flat in the city of Mumbai. Moreover, it is brought on record 10 wp4597 that second son of the respondent is a Chartered Accountant and the third son of the respondent is a Commerce Graduate. The suit premises is a room in a chawl and on the other hand the said flat is a self contained flat on 11th floor in a newly constructed building. The domestic gas supply and milk supply of the respondent has been transferred to the address of the said flat. All these aspects are certainly relevant for determining the issue of suitability. It will be necessary to make a reference to the paragraph 22 of the Judgment of the Appellate Court. In paragraph 22 the Appellate Court has observed thus : 22...Perhaps with this view in mind the Respondent adduced evidence to show that the appellant has been residing at Nilanjana premises alongwith his family that he has his domestic gas connection over there, that he is getting regular milk supply there and that the electoral rolls on record show his address at Nilanjana premises. In so far as the electoral rolls are concerned, it may be mentioned that while the Respondent has produced electoral rolls showing the appellant s address in Nilanjana Apartment, the appellant on his part has produced electoral roll to show to the contrary. Therefore, that evidence is not decisive in arriving at a conclusion for the Respondent. But more important is the fact that when the Court deals with the question of residence of the appellant on present facts, the most important fact to 11 wp4597 be borne in mind is the fact that Nilanjana premises is situated very near the suit premises and in fact is for all practical purposes just across the road. For all one knows it should be structurally much better than the suit premises. It appears to be appellant s own case that his kitchen has been shifted over there. That being so, looking to the close proximity of the two premises, the finding that the domestic gas connection and the milk supply is being made in Nilanjana premises does not in so fact lead to the conclusion of the suit premises having been rendered surplus. Regarding being had to the composition of the family of the appellant, his case that he is using the suit premises has to be understood in its proper perspective... 10 It is true that reasonable need of the tenant has to be considered. However, going by the logic adopted by the Appeal Bench, the respondent can be said to have acquired suitable resident only after he acquires a premises of 5 to 6 rooms. Therefore, the view taken by the Appellate Court on the issue of suitability is completely erroneous and contrary to the record. The Appellate Court has not at all noted that the stand taken by the respondent at the time of recording of evidence has been expressly given up in the Appeal and it was never the case of the respondent before the Trial Court that he had acquired the said flat as additional accommodation. Hence, the finding on the issue of suitability will 12 wp4597 have to be quashed and set aside and the decree passed by the Trial Court will have to be restored. 11 Hence, I pass the following order : i) Impugned Judgment and Order dated 7th April 1994 is quashed and set aside and the decree passed by the trial Court is restored. ii)The respondent is granted time of three months to vacate the suit premises subject to condition that the respondent will not create any third party rights and will not part with possession of the suit premises. iii)Rule is made absolute on above terms with no order as to cost. JUDGE