1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 97/2008 Surajmal Panalal Anecha Since deceased His L. Rs. 1 Smt. Gitabai Surajmal Anecha, (Since deceased) 2 Chandrakant Surajmal Anecha Age : 62 years Occupation : Business, R/o House No. 92/560, L.I.G. Scheme, HUDCO Colony, Savedi, Ahmednagar 3 Ramkishan Surajmal Anecha, Age : 56 years, Occupation : Business, R/o House No. 625, Anecha Niwas, Navnitnagar, HUDCO, Savedi, Ahmednagar. 4 Goind Surajmal Anecha, (Since deceased) through L.Rs. 4(a) Smt. Pushpabai w/o Govind Anecha, Age : 45 years, Occu. Household, R/o Civil HUDCO, Ahmednagar. 2 4(b) Sau. Lina w/o Kailash Vyas, Age : 30 years, Occupation : Household, R/o Near Adarsh Kiran Shop, Shop No. 15, Manjabi Phata, Hadapsar, Pune 28. 4(c) Moonna Kailash Dange, Age : 26 years, Occupation : Household, R/o 625, Anecha Niwas, HUDCO Colony, Tarakpur, Ahmednagar. 5 Ishwar Surajmal Anecha, Age : 38 years, Occupation : Business, R/o Flat No. 786, Building No. 129, Navnit Nagar, HUDCO, Savedi, Ahmednagar. 6. Smt. Vijaya Hastimal Ojha, Age : 48 years, Occupation : Household, R/o C/o Jay Ambe Iyam Works, Bhagaram Bhimaji Tak, 336, Vandarwadi, Pune-16. 7 Smt. Nirmala w/o Hastimal Mavani, Age : 45 years, Occupation : Household, R/o House No. 3223, Halwai Galli, Ahmednagar. ...Applicants. 3 versus Kumar Hiralal Bhandari, Age : 59 years, Occupation : Business, R/o Parsha Khunt, Halwai Galli, Ahmednagar. Through General Power of Attorney, Subhash Hiralal Bhandari, Age : 62 years, Occupation : Business, R/o Parsha Khunt, Halwai Galli, Ahmednagar. ..Respondent. Shri R.N. Dhorde, Advocate for applicants. Shri L.B. Pallod, Advocate for respondent. CORAM : K.U. CHANDIWAL, J. Date : 3 rd February, 2010 ORAL JUDGMENT :- 1. Heard respective counsel extensively. The matter is finally heard at admission stage. Rule. Record is perused. 2 This is tenant’s revision application to challenge the judgment and order recorded by learned Adhoc District Judge – 1, Ahmednagar in Regular Civil Appeal No. 466/1985. 3 Mr. Dhorde the learned Advocate appearing for petitioner, 4 canvassed that the findings recorded by appellate court are erroneous and contrary to the record while the findings recorded by the learned trial Court is based on the sound principles of law. The learned trial court, according to him, has assessed comparative hardship and premises allegedly acquired by tenant’s family to be not sufficient for the tenants growing family. 4 As against the same, the counsel appearing for the landlord has informed, factual details also needs attention. The tenant Surajmal expired on 13 rd November, 1991. His wife expired on 08 th November, 1995. The tenant Surajmal has four sons and three daughters. The daughters are married. The sons have five properties and consequently according to the learned counsel Mr. Pallod, the decree in terms of Section 13(1)(l) of the said Act is just and needs no interference. The scope of this court in revision is limited. This court will have to be persuaded with jurisdictional error or with error of law committed by the learned appellant court, as has been enunciated in judgment of Pothina Narasamma versus Marupillaammaji and others (2006) 9 Supreme Court Cases 749. 5 The learned counsel for tenant Mr. Dhorde has placed reliance to 5 the judgment of this Court reported in 1984 Mh.L.J. 834 Shankar Nana Waychal and others versus Mohan Ganesh Date and another under the Bombay Rents, Hotel and Lodging House Rates Control Act, (57 of 1947) and particularly Section 13(1)(l). In that case, this Court held, acquisition of independent residence by the tenant’s son or relative cannot be a ground for eviction of tenant. It was observed, the acquisition of a suitable residence so as to attract applicability of Section 13(1)(l) of the Act; must necessarily be by the tenant and not by any other person who is related to the tenant. If the accommodation has been acquired by the sons of the tenant, that can not be a ground for evicting the tenant under section 13(1)(l) of the said Act. 5 The learned counsel also placed reliance to the judgment in the matter of Anandi D. Jadhav versus Nirmala Ramchandra Kore and others 2000 Vol. 102(2) Bom. L. R. 491 (SC). The Apex Court held, definition of ‘tenant’ is too exhaustive to include any member of the family residing with tenant. Such members of his family who were residing with the tenant at the time of his death, or in their absence any heir of the deceased tenant, as may be decided in default of agreement by the Court, would become tenant only on 6 his death. 6 The above referred judgment will not be applicable to be coined with the same force and velor as in the instant case, the tenant Surajmal and his wife are no more as indicated herein above. 7 Now the fact remains, there is evidence of the landlord as well as son of the tenant Ramkisan at Ex. 113. In his evidence, Ramkisan has explicitly stated, except defendant no. 7 Nirmala; nobody resides in the suit premises. The learned judge, on analysis of evidence placed in the form of Ex. 90 and Ex. 144 of the voters’ list found that Nirmala the married daughter is residing at Navnit nagar with her son while voters’ list at Ex. 144 illustrates none of member of family of the tenant reflected to be occupying suit premises. 8 The learned judge also had occasion to peruse Ex. 108. The details of the rationing authority wherein at serial no. 764, family members of Nirmala or her son are indicated wherein name of Nirmala daughter of tenant is indicated to be residing at Navnitnagar. This piece of evidence was sufficient for the learned judge to accept contention of the landlord that 7 Nirmala was not residing at suit premises. 9 It is pertinent to note, Nimala the lady contemplating to reside in the suit premises, did not step in witness box to canvass about her need or her occupation thereof. 10 It is brought on record that the family of the defendant have five houses viz. House no. 625 in HUDCO colony, house no. 92/560 in HUDCO colony, house plot no. 746 situated in building No. 729 of Navnitnagar and one house in Ganje galli. 11 It was also canvassed by the landlord through P.W. 1 that defendant no. 6 Vijaya was residing at Dhankavadi, Pune having proved through Ex. 88. 12 It is held by the learned judge that the legal representatives of original defendant i. e. defendants no. 2 to 5 were residing at Navnitnagar, HUDCO, Ahmednagar. It is pertinent that Nirmala or for that purpose, original tenant Surajmal never pleaded that the suit house was occupied by Nirmala or any of the legal representative of said Surajmal. In absence of their being pleading and in absence of evidence from the alleged occupant 8 Nirmala, the learned appellate court was justified in reversing order of learned trial judge and decreeing eviction proceeding. 13 I do not see any illegality or error in the order under challenge. No interference warranted. Civil Revision Application rejected. Order is stayed for a period of two months. [K.U. CHANDIWAL, J.] tsk/cra97.08