WP4889/94 (1) agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4889 OF 1994 Abdul Hameed Bahaduri (since deceased) through his legal representatives; Ali Hasan Abdul Hamid & Ors. .. Petitioners versus Mustaque Ahmed Siddique Madoo (since deceased) through his legal representatives; Smt.Safiya Mustaque Ahmed Siddique & Ors. .. Respondents Ms.Snehal Ratnakar i/by Mr.P.K.Dhakephalkar for the petitioners. CORAM : A.S.OKA, J. DATE : 23rd September 2010. JUDGMENT: . The petitioners are the defendants in the suit filed by the respondents. The suit was filed for possession of the premises on the 1st floor more particularly described in the plaint. According to the case of the respondents, the predecessor of the petitioners was monthly tenant in respect of the suit premises at monthly rent Rs.50/- per month excluding the WP4889/94 (2) education cess. A suit for eviction was filed by the respondents on various grounds. Initially, the suit was filed on the ground of arrears of rent and bona fide requirement. During the pendency of the suit, the plaint was amended and ground of acquisition of suitable residence under section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act) was made out. The petitioners filed a written statement denying various averments made in the plaint. The trial Court decreed the suit on the ground of arrears of rent, bona fide requirement and acquisition of suitable residence. The petitioners preferred an appeal before the District Court. The Appellate Court negatived the grounds of bona fide requirement and arrears of rent but confirmed the decree only on the ground of acquisition of suitable residence under section 13(1)(l) of the said Act. 2 The learned counsel appearing for the petitioners has taken the Court through the pleadings, evidence and judgments of the Courts below. The learned counsel submitted that the main ground of bona fide need was negatived by the Appellate Court and the decree is only on the ground of acquisition of suitable residence. She pointed out evidence of the 1st petitioner and the statement of the 1st petitioner in the evidence that ten WP4889/94 (3) years back he has constructed a temporary house of 10 ft X 10 ft which was not in existence. Relying upon evidence of witness Krishna examined by the petitioners, she submitted that even assuming that there was acquisition of suitable residence, the petitioners proved that accommodation was not suitable. The learned counsel, therefore, submitted that the decree on the ground of acquisition of suitable residence could not been passed by the Courts below. 3 I have carefully considered the submissions. In the cross-examination of the 1st petitioner he admitted that he along with the 2nd petitioner were holding a plot at village Khoni-Katai. He denied that there was house in existence on the said plot. When the receipt of payment of taxes was shown to him in cross-examination, he admitted that ten years back he had erected a temporary structure admeasuring 10 ft X 10 ft. He admitted that he was holding two plots in village Khoni. He admitted that he had made construction on a plot held by him in the village. To show that the house erected by him was not habitable, the petitioners examined witness one Krishna who was secretary of the concerned village panchayat. In the suit of the year 1985, the witness was examined in the year 1992. The witness stated that he inspected the house after receiving witness summons and WP4889/94 (4) stated that rear side wall has collapsed. He stated that the house was not habitable and some articles are kept therein. In the cross-examination he admitted that he was unable to state whether the ceiling of the house was of cement sheets or iron sheets. He stated that he was unable to tell in what state the house was. When a suggestion was given that after repairs are carried out the house can become habitable, he stated that opinion can be given only by the engineer. 4 It is pertinent to note that the 1st petitioner admitted that he had carried out construction on a plot in village Katai-khoni. Moreover, he admitted that a house admeasuring 10 ft X 10 ft was constructed by him ten years back. He tried to contend that the house was not in existence. The said contention is falsified by evidence of witness Krishna examined by the 1st petitioner. Moreover, the 1st petitioner did not state in evidence that the house constructed by him was not fit for residence. The petitioner did not adduce any evidence to show that the said house was not fit for residence. 5 Under such circumstances, both the Courts below have recorded a finding of fact that there is acquisition of suitable residence by the petitioners. No interference is possible with the said finding of fact in writ WP4889/94 (5) jurisdiction of the Article 227 of the Constitution of India. Petition is rejected. Rule is discharged with no orders as to costs. On the prayer made by the learned counsel appearing for the petitioners, it is directed that interim relief granted on 1st December 1994 will continue to operate for a period of twelve weeks from today. (A.S.OKA, J)