agk WP333­93 (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.333 OF 1993 Ramesh Dattatraya Bagde .. Petitioner versus Gangadhar Krishna Taralekar & Ors .. Respondents Mr.R.A.Thorat for the petitioner. Mr.Prathamesh Bhargude i/by Mr.A.V.Anturkar for respondent No.1. CORAM : A.S.OKA, J. DATE : 13th September 2010. JUDGMENT: . Heard learned counsel appearing for the petitioner. The petitioner tenant has challenged concurrent decrees passed by the Courts below under section 13(1)(hhh) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). 2 With a view to appreciate the submissions made by the learned counsel appearing for the petitioner, it will be necessary to briefly refer to the agk WP333­93 (2) facts of the case. The suit property is a land bearing City Survey No.385 at Somwar Peth in Satara. The suit property consisted of 9 khans including staircase. The petitioner was inducted as tenant in respect of the suit premises. The allegation in the plaint is that the suit premises was used carelessly by the petitioner and therefore the entire building is in dangerous and dilapidated condition. Reliance is placed on notice dated 8th August 1977 issued by the Satara Municipal Council calling upon the respondent landlords to demolish the building. The suit for eviction was filed by the respondents in the year 1980 on the basis of the said notice. Apart from the ground under section 13(1)(hhh), the respondents prayed for possession on the ground of bona fide and reasonable requirement and arrears of rent. The suit was contested by the petitioner by filing written statement. The petitioner denied that the building in which suit premises is situated is in dilapidated condition. It is contended that in the earthquake of 1967 a wall of the building developed a crack and in fact the respondents received compensation from the State Government for carrying out repairs. It is stated that the petitioner decided to carry out repairs and brought construction material worth Rs.1,100/- and infact started the repairs. It is contended that the respondents prevented the petitioners from carrying out the repairs and therefore the material procured by the petitioners got agk WP333­93 (3) wasted. It is alleged that one of the close relative of the respondents is an employee of the Municipal Council and by taking his help, the respondents have procured a notice of demolition from the Municipal Council. The other grounds in suit were denied in the written statement. 3 The 1st respondent (1st plaintiff) stepped into witness box. The respondents also examined one Dattatraya Ramchandra Tope who was brother-in-law of the respondents and who was employed with Satara Municipal Council. The petitioner examined himself. 4 As stated earlier, only the Courts below have passed a decree only under section 13(1)(hhh) of the said Act. Though the other grounds were negatived, the respondents did not challenge that part of the decree. 5 The learned counsel appearing for the petitioner has taken the Court through the impugned judgments and notes of evidence. He submitted that the notice of demolition issued by the Municipal Council was not even produced before the trial Court and that the same was produced for the first time before the Appellate Court. He submitted that the notice admittedly related to only a part of the building and not the entire building in which the agk WP333­93 (4) suit premises are situated. He submitted that after the alleged notice was served in the year 1977, the respondents waited to file the suit till 29th September 1980 and in fact the entire building survived even till the disposal of the appeal by the District Court. He submitted that the notice was not proved by the respondents as the same was not produced before the trial Court and in absence of production of the said notice, the trial Court could not have passed a decree. He submitted that for years the building has survived which shows that the notice was not legal and proper and was obtained by the respondents through their brother-in-law who was admittedly an employee of Satara Municipal Council. 6 I have given careful consideration to the submissions. It is true that the notice issued by the Satara Municipal Council was not produced before the trial Court. However, the notice was referred to and relied upon in the plaint and in the written statement the said notice was not disputed and all that was contended by the petitioner was that a close relative of the respondents being in the employment of the Municipal Council, the notice has been procured. However, along with an application for leading additional evidence, a certified copy of the notice was produced before the Appellate Court and the respondents were permitted by the Appellate Court to adduce agk WP333­93 (5) evidence. At this stage, it must be noted that before the Trial Court, the respondents examined their brother in law Dattatraya who was an employee of the Satara Municipal Council. He deposed that the western side wall of the suit house has collapsed due to percolation of the water from the bathroom of the respondents. In the cross examination he admitted that he was employed with the Municipal Council, Satara. He denied the correctness of the suggestion that he had asked respondents to make an application to the Municipal Council. In the examination-in-chief of the petitioner he stated that there is a brook at the western side of the suit house having width of 25 ft and there is constant water in the brook. He stated that due to water, the wall of the suit premises was damaged which subsequently collapsed. He deposed that though he had brought construction material for the construction of the wall, the respondents did not give any permission to carry out repairs. He himself stated that walls of the house were having cracks due to earthquake in the year 1967. In the cross examination he admitted that a portion on the western side of the suit house has collapsed to the extent of one and half khans. He stated that due to percolation of the water from the bathroom, a portion of the suit building has been damaged and there are cracks from top to bottom due to earthquake. It must be stated here that learned counsel appearing for the petitioner submitted that agk WP333­93 (6) admittedly the suit was filed by the respondents against the another tenant on the same ground which has been dismissed. However, that is of no consequence as in the present case there is concurrent finding of fact recorded by the Courts below that the suit building was in dilapidated condition. The service notice under section 195 of the Maharashtra Municipalities Act is admitted. In the deposition of the petitioner himself there are admissions to indicate that there is an extensive damage to the suit house. Moreover, the brother in law of the respondents against whom the allegation was made by the petitioner was examined on oath and also deposed regarding the precarious condition of the suit building. Though he was subjected to cross examination, nothing could be brought on record to show that he was instrumental in getting the notice issued. The petitioner has not examined any expert or any officer of the Municipal Council to establish that the structure of the suit house is not dilapidated. 7 What is established on evidence before both the Courts below is that the condition of the suit house is dilapidated and dangerous and therefore it is required to be pulled down. The fact that the suit house has survived for some years cannot defeat the ground of eviction under section 13(1)(hhh) of the said Act. agk WP333­93 (7) 8 This is not a case where interference can be made with the concurrent findings of fact recorded by the Courts below. There is no merit in the writ petition. The petition is rejected. Rule is discharged with no orders as to costs. 9 On the prayer made by the learned counsel appearing for the petitioner, interim stay granted by this Court will continue to operate for a period of twelve weeks from today subject to same terms and conditions. (A.S.OKA, J)