1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 1582 OF 1994 WITH CIVIL APPLICATION NO. 1186 OF 2003 IN WRIT PETITION NO. 1582 OF 1994 Chandbibi Sikandar Tamboli, ) residing at Guruwar Peth, ) Miraj, Dist. Sangli. ).. Petitioner/ (Original Defendant) Versus Krishnabai Sadashiv Kabade, ) residing at Guruwar Peth, ) Miraj, Dist. Sangli. ).. Respondent/ (Original Plaintiff) ­­ Ms A.R.S. Baxi for the Petitioner. Shri U.P. Warunjikar along with Shri Rahul More for the Respondent. ­­ CORAM : A.S. OKA, J DATE : 3RD FEBRUARY, 2010 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioner. By this Writ Petition under Article 227 of the Constitution of India, the Petitioner has challenged a decree passed by the District Court against her under Section 13(l)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ( hereinafter referred to as “the said Act”). 2 2. The suit filed by the Respondent (Original Plaintiff) relates to the residential premises consisting of three rooms on the first floor of the property owned by her. The suit was filed by the Respondent on the ground of bonafide requirement. Later on, the Plaint was amended and the ground of acquisition of suitable residence was incorporated. In the amended plaint, it was asserted that after the suit was instituted, the Petitioner ( Original Defendant ) has constructed a new building and the Defendant has been using the said building. In the Written Statement, various averments made in the Plaint have been denied. An Additional Written Statement was filed in which it was denied that the Petitioner has constructed a new house. In Paragraph 3 of the Additional Written Statement, a very specific contention has been raised by the Petitioner, the English translation thereof reads thus:­ “The Defendant is a Mohmedian and therefore in the property of the Defendant, except the Defendant, no one is concerned. Merely because the Defendant is wife, she does not get any right in respect of movable or immovable property of her husband.” 3. The trial Court dismissed the suit. As far as ground of acquisition of suitable residence is concerned, the trial Court observed that it has come on record that the Petitioner and her husband have constructed the house but the Respondent has not adduced any evidence to show that the vacant possession of the said house is not available to the Petitioner. The Appellate Court in an appeal preferred by the Respondent has interfered and has passed the decree for possession on the ground of acquisition of suitable residence. 3 4. Learned counsel appearing for the Petitioner submitted that the acquisition alleged in the suit was by the husband of the Petitioner and the Petitioner has no right in respect of the said property. She submitted that the evidence on record shows that there are shop premises in the said property acquired by her husband and there are no residential premises available in the said property. She submitted that the vacant possession of any of the premises in the said property of the husband is not available. She submitted that the burden was on the Respondent to prove that not only that the Petitioner has acquired the accommodation but also that the accommodation is suitable for residence in all respects. She submitted that the Respondent has not discharged the burden of proving that the Petitioner had acquired the accommodation and that the accommodation is suitable for residential use. She submitted that there is no finding recorded by the District Court that it is the Petitioner who has made the acquisition. She pointed out that the finding of the Appellate Court that the Petitioner is not telling the truth, is contrary to the evidence on record. She invited my attention to the averments made in the Civil Application No.1186 of 2003 and the documents annexed to the said Civil Application. In the application, it is stated that the husband of the Petitioner had acquired the property by investing all his retirement benefits and the acquisition was for the purposes of starting a business. It is pointed out that the husband of the Petitioner had obtained loan from a co­operative bank for starting the business of LPG Distributorship of Modi Company. However, the said company stopped the business and the bank tried to auction the premises. It is stated that to avoid the auction, the husband of the 4 Petitioner has sold a part of the said property in the year 1998 which admeasures 63.75 sq. meters. Thereafter, another part of the said property admeasuring 37.45 sq. mtrs. was sold to one Nasid Abhhirabhai Shikalgar and thereafter, the husband has repaid the loan. Only after the repayment of the said loan, the Bank re­conveyed the property to her husband. She submitted that the documents annexed to the said application show that the Petitioner has no concern with the property. 5. I have carefully considered the submission. It will be necessary to consider the findings recorded by the trial Court while dismissing the suit filed by the Respondent. While dealing with the Issue No.6 regarding acquisition of the suitable residence, the trial Court noted that the husband of the Petitioner purchased the property bearing C.T.S. No. 4987 in the year 1994 and even the Petitioner had admitted that Vastushanti of the said premises was done four months prior to her deposition. The trial Court noted that the Petitioner contended that the property purchased by the husband of the Petitioner was not suitable for residence as there was a nuisance of abnoxious smell. After referring to the contention, the trial Court recorded the following finding. “.....And hence though it is proved that defendant has built up a new building by carrying out some construction in the building purchased by them, it cannot be said that the defendant is not now in necessity of the suit premises. Plaintiff is thus also not entitled to recover possession at present u/s 13(1)(L) of Bombay Rent Act.” 5 6. Thus, the trial Court accepted the case made out by the Respondent that the house has been built up by the Petitioner and her husband. The trial Court thereafter proceeded to observe that the Respondent/Plaintiff has not established that the vacant possession of the said house was available with the said Petitioner. Thereafter, the trial Court reiterated that though it is proved that the Petitioner has built up a new building by carrying out some construction, it cannot be said that the ground under Section 13(1)(l) is established. The Appellate Court has referred to the deposition of the Petitioner and especially the statement made that some construction has been carried out last year and has come to the conclusion that the Petitioner was not telling the truth. The Appellate Court observed that there are number of shops in the vicinity of the house constructed by the Petitioner but no grievance has been made by any of the shopkeepers regarding nuisance allegedly created by the toilet block belonging to the Municipal Council situated near the said premises. 7. As stated earlier, the Plaint was amended by adding an averment that during the pendency of the suit, the Petitioner has constructed a house. In the Additional Written Statement, there are some denials of the said averments and a vague contention has been raised that the Petitioner will not have any right in respect of the property of her husband. It is pertinent to note that in the Written Statement, there is no specific contention raised that the house has been constructed by the Petitioner’s husband and that the house is not suitable for residential purposes. It will be necessary to consider the evidence of the Respondent. In the evidence, the Respondent deposed about 6 the bonafide requirement. The Respondent stated that the Petitioner was owner of the premises which was at a distance of 150 feet from the suit premises. She referred to an extract of the assessment at Exhibit ­25 and stated that there were shops at the front side of the property and residential premises at the back side. She stated that there are 5 to 6 residential premises inside and one block therein is with the tenant. She deposed that each block consists of three rooms and except one, the remaining blocks are with the Petitioner. She specifically stated that the Petitioner has constructed a building one year back. The Respondent has been cross­examined by the Advocate for the Petitioner. The cross examination from Paragraph 1 upto paragraph 8 is on the issue of bonafide requirement. In Paragraph 9, there is a cross­examination on the aspect of acquisition of the suitable residence. She stated that there are six rooms on the back side of the shops of the property acquired by the Petitioner. She stated that the extract of the premises is in the name of predecessor­in­title of the husband of the Petitioner, and therefore, the same has not been produced. She denied that there was no room standing in the name of the Petitioner. A close scrutiny of the cross­examination shows that her specific assertion in Paragraph 3 of the examination­in­chief that the Petitioner has constructed a building one year back has not been seriously challenged in the cross­examination. It has been brought on record in the cross­examination that there are six rooms in the property acquired which are at the rear side of the shops and in the record of the Municipal Council, the name of the predecessor­in­title of the Petitioner’s husband has been shown. 7 8. The Petitioner stepped into the witness box. The Petitioner stated that she was Muslim by religion and therefore, she has no share in the property of her husband. She stated that her husband has purchased a property which is at a distance of 150 feet from the suit premises and there are shop premises in the property. She stated that there are public latrines at two sides of the premises and that they are not kept clean and that is why the premises are not suitable for residential purposes. As stated earlier, this plea that the premises are not suitable for residential purposes is not at all taken up in the Additional Written Statement. In the cross­examination and in particular Paragraph 15 of the Appellate Court order, the Petitioner stated that “it is true that we had done some construction work last year”. The submission of the learned counsel appearing for the Petitioner was that the said admission may not have been properly recorded. Therefore, I have checked up the record. The record shows that the cross­examination has been recorded by the learned trial Judge in his own handwriting in which it is recorded that “it is true that we have done some construction work last year.” Therefore, that contention cannot be accepted. 9. Thus, while analyzing the case, following conclusions can be drawn. (a) Though the trial Court dismissed the suit, the trial Court recorded a categorical finding that the house has been built upon by the Petitioner and her husband. It is specifically held that it is proved that the Petitioner has 8 built up a new building by carrying out some new construction in the property purchased. The trial Court negatived the ground of acquisition of suitable residence by pointing out that the Respondent has not adduced any evidence before that Court to show that the premises in the other property are vacant. (b) The Additional Written Statement is very vague. The Petitioner has not stated that the property has been acquired by her husband and the house has been constructed by her husband and that the house does not contain any residential premises. (c ) There is no contention that the said house is not suitable for residential purposes. (d) In the cross­examination of the Respondent, it was brought on record that there are six rooms on the rear side of the shop line in the said property which are standing in the name of the predecessor­in­title of the Petitioner’s husband. (e) There is a categorical admission in the cross­examination that “it is true that we had done some construction work last year”. The Petitioner has not chosen to disclose the 9 nature of the said construction and the extent of the construction. On the contrary, a new case was sought to be made out by the Petitioner that the property acquired was not suitable for residence. 10. Thus, a concurrent finding of the Courts below is that the house has been built up by the Petitioner and her husband. The Petitioner has not chosen to disclose the area of the construction carried out and the nature of construction. In the Written Statement, the stand is vague which in the nature of denial and that is why the finding recorded by the Appellate Court is that the Petitioner has not told the truth. As stated earlier, the property is at a close distance of the suit premises. 11. Now turning to the Civil Application No.1186 of 2003, all that the petitioner has contended is that during the pendency of the Petition, a part of the property has been sold by her husband. Assuming that the said contention is true, the same is totally irrelevant as there is a concurrent finding recorded against the Petitioner of the acquisition. The trial Court has rejected the ground of acquisition of a suitable residence only on the ground that the Respondent has not established that any of the premises in the property acquired by the Petitioner are vacant. The said finding which is totally contrary to record has been set right by the Appellate Court. The subsequent sale of the acquired property is not relevant. 10 12. Hence, there is no merit in the Writ Petition and the same is rejected. The rule is discharged with no order as to costs. 13. The Civil Application No.1186 of 2003 does not survive and the same is accordingly disposed of. 14. On the prayer made by the learned counsel appearing for the Petitioner, the decree for possession shall not be executed for a period of 12 weeks from today subject to the Petitioner will not create any third party interests in respect of the suit premises and will not part with the possession of the suit premises. JUDGE ash/