1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 1961 OF 1993 Dr.Madhav Hari Sarode Since deceased through his legal representative Shri.Anant Alias Shivaji Madhav Sarode, Age : 34 years, Occ : Business, R/o 214, Navi Peth, Jalgaon : 425 001. ..Petitioner V/s 1. Principal, Sahakar Prashikshan Kendra, at Housing Society, Plot No.22, Behind District Court, JALGAON-425 001. 2. Chairman, Maharashtra Rajya Sahakari Sangh Pune, At Near Central Building, Sahakar Bhavan, Pune-138/1996). ..Respondents ......... Mr. G.V. Wani, advocate for petitioner. Mr. V.D. Hon, advocate for respondent no.1. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 23rd June, 2010. ORAL JUDGMENT : 1. By this petition, the petitioner challenges judgment and order rendered by the IInd Additional District Judge, Jalgaon in Civil Appeal No.201/1989. By that judgment, the learned Additional District Judge allowed the appeal preferred by the respondents and 2 was pleased to set aside the eviction decree granted by the trial Court. 2. The dispute relates to a tenanted house property bearing Municipal No.217 situated in ward no.30 at Jalgaon. The suit premises were let out to the respondents on 15th July, 1972. The agreed rent was Rs.340/- per month along with taxes and legally permissible increases. The case of the deceased lardlord was that the respondents committed default in payment of rent. They caused damage to the suit premises. They have acquired alternative accommodation. He desired to use the suit premises so as to accommodate his patients and shift his residence to the ground floor. He was suffering from diabetes and blood pressure. His son was taking education in medical faculty and was married a few months before filing of the suit. The suit premises were therefore, bonafidely required for needs of his son, for himself and for his medical profession. The respondents denied all the material averments made by the deceased plaintiff (petitioner). They submitted that the grounds stated in the eviction suit were far fetched and carved out of imagination. The trial Court came to the conclusion that there was no bonafide requirement nor any other valid ground was mentioned by the petitioner except availability of alternative accommodation to the respondents. The trial Court, 3 therefore, decreed the suit on single ground, namely, that tenant had acquired alternative accommodation as contemplated under Section 13(1) (l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, "Bombay Rent Act"). The respondents preferred appeal, which came to be allowed. The first appellate Court held that requirement of alternative accommodation is not a ground for passing the decree and such ground is available only in case of residential premises, whereas the suit premises were let out for commercial purpose. Admittedly, the respondents are running a training institute and the accommodation was let out for such purpose. 3. Heard learned counsel for the parties. I have gone through the judgments of both the Courts below. 4. Mr. Wani strenuously argued that the first appellate Court committed patent error while dismissing the suit. He would submit that the bonafide requirement of the landlord was duly established. He would further submit that the respondents have acquired alternative accommodation and as such, eviction decree passed by the trial Court is well justified. He contended that the suit premises are not being used for running the training institute and that the respondents have simply kept the same un-used. He 4 urged, therefore, to allow the Petition and grant eviction decree. On the contrary, Mr.Hon supports the impugned judgment. 5. So far as the ground of bonafide requirement is concerned, the trial Court as well as first appellate Court have concurrently held that the petitioner failed to establish the requirement. The house property is sufficiently big and the deceased-petitioner was residing on the second floor thereof. Only a part of the house property is let out to the respondents. The contention of the deceased-petitioner was that he was suffering from high blood pressure and diabetes and as such was unable to climb the staircase to reach the upper storey. He, therefore, desired to shift the residence to the ground floor. One can not be oblivious of the fact that the deceased petitioner was a medical practitioner. He was running consultancy as psychiatric. It is worthwhile to notice that the deceased plaintiff is not alive. I have perused his statement recorded by the trial Court, from the paper book which was temporarily made available, and noticed that there was no sufficient material spelt out in the context of the additional requirement for his son. At the relevant time, son of the deceased petitioner was taking medical education. The son of the deceased- petitioner did not enter the witness box. Obviously, there is no material on record to infer any particular requirement of the 5 deceased petitioner's son, who has continued the present petition. Under these circumstances, the concurrent findings of the Court below need not be disturbed and are un-assailable. 5. Coming to the next submission of Mr.Wani, it may be gathered from sub clause (1) (l) of Section 13 of the Bombay Rent Act that ground would be available only when the premises are let out for residential purpose and a tenant has acquired some other premises for his residence. Sub clause (1) of section 13 reads as follows :- Section 13(1) :- Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied- (a)........ (b)........ .......... (l) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted to suitable residence." In "Bhavarlal Sukhlal Soni, since deceased by his heirs and legal representatives Narmadabai etc V/s Lakshminarayan Deo Public Trust Swaminaryan Mandir (AIR 6 1994 Bombay 175)", a Division Bench of this Court held that clause (l) of sub-sec (1) of Section 13 applies only to the premises let out for residence. The object being to make available to landlords all residential premises really not needed by the tenants due to building, acquiring or being allotted a "suitable residence." 6. The eviction can not be sought only because the respondents have acquired certain premises for expansion of their commercial or institutional activities. The findings of the first appellate court are, therefore, legal and proper. No interference is called for in the exercise of extra ordinary jurisdiction of this Court. 7. In the result, the Petition fails and is accordingly dismissed. No costs. (V.R.KINGAONKAR) JUDGE gas/wp1961.93