{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.39 OF 2008 Shriram Radhakisan Agrawal Age-81 years, Occ-Agriculture R/o Chopda, Bhai Kotwal Road, Chopda, Dist-Jalgaon APPLICANT VERSUS Smt. Chandrabai w/o Shamlal Agrawal (Since Deceased) Through Legal Heirs Manishkumar Suryakant Agrawal Occ-Education, Age-26 years, R/o Chopda, Dist-Jalgaon (M.S.) Near Shani Mandir, Main Road Chopda, Dist-Jalgaon RESPONDENT ....... Mr.B.R.Warma, Advocate for the applicant Mr.R.R.Mantri, Advocate for the respondent ....... [CORAM : A.V.POTDAR, J.] RESERVED ON : 21 st April 2010 PRONOUNCED ON : 29 th April 2010 JUDGMENT: 1. By the present Civil Revision Application, the applicant {2} / original defendant has assailed the judgment and decree dated 31.03.2006 passed by the Additional District Judge, Amalner in Regular Civil Appeal No.35/1991 whereby the learned Additional District Judge has allowed the appeal by setting aside the judgment and decree dated 25.02.1991 by which the Civil Judge, Junior Division, Chopda had dismissed the Regular Civil Suit No. 61/1979. 2. By consent of the parties, the revision application is heard finally at the stage of admission itself. 3. It appears that the original plaintiff Smt Chandrabai Shamlal Agrawal (who expired during the pendency of the litigation), was the owner of the two storied building situated in CTS No.2289 within the limits of Chopda Municipal Council. The present applicant is the monthly tenant, residing / occupying the said premises. The original land lady had filed suit for eviction of the tenant from the said tenanted premises in the year 1979 bearing Regular Civil Suit No.61/1979 on the grounds viz, i) causing nuisance (Section 13 (1) (c) ii) for bona fide requirement u/s 13 (1) (g) iii) The tenant has carried out permanent construction in the tenanted premises without consent of the land lady, u/s 13 (1) (b) iv) the tenant is a willful defaulter in paying the rent and v) the tenant has acquired a suitable accommodation u/s 13 (1) (l) of the Bombay Rent Act. {3} 4. It further appears that the present applicant/ original defendant, contested the said eviction suit by filing written statement, which was twice amended as the plaint was amended. In the said written statement, the original defendant / applicant had denied the grounds raised by the plaintiff / land lady on which the eviction was claimed. After framing of the issues, the parties lead evidence before the trial court. The trial court was not satisfied with the evidence lead on behalf of the plaintiff / land lady and hence dismissed the suit. The said decree of dismissal was challenged by the land lady / original plaintiff by filing Regular Civil Appeal No.35/1991 before the Additional District Judge, Amalner. During the pendency of the said appeal, original appellant / land lady expired. Before she expired, she had bequeathed the suit house in favour of present respondent /appellant in the Regular Civil Appeal No.35/1991, who continued the said appeal after the demise of the original plaintiff. 5. It further appears that the First Appellate Court, vide judgment and order dated 31.03.2006, set aside the judgment and decree passed trial court passed in RCS No.61/1979 and allowed the appeal. Though the Regular Civil Appeal is allowed by the first appellate court, yet the finding recorded by the trial court on the issues of i) willful defaulter in payment of rent; ii) tenant carried out permanent constructions in the tenanted premises without consent of the original owner and iii) original owner is in need of {4} the tenanted premises for bona fide requirement, were upheld. The First Appellate Court observed that the issues, tenant causing nuisance to the property and the tenant has acquired suitable accommodation for his residence, are proved by the original owner. These findings of the First Appellate Court are impugned in the present revision application. 6. Admittedly, respondent to the present civil revision application has not filed any cross objection in respect of the findings recorded by the First Appellate court, against him. 7. In this background, heard learned counsel for the applicant and respondent. Also perused the judgments passed by both the courts below. 8. During the course of submissions, it is submitted by the learned counsel for the applicant that section 13 (1) (c) of the Bombay Rent Act deals with nuisance caused to neighbouring occupants by the tenant, while the evidence before both the courts below indicates that the entire property is occupied by the applicant / defendant and hence question of causing nuisance to the neighbouring occupants does not arise. The findings arrived at by the first appellate court in respect of tenant causing nuisance is based on evidence that 18 flower pots were kept by the applicant / defendant in the tenanted premises, which caused damages to the tenanted property. As per the evidence, which is accepted by the {5} First Appellate Court, the water given to the plants in the said flower pots caused damage to the property as the wooden beams, on which the first floor rests, got rotten. This evidence is discussed on point No.3 in para 23 and 42 and based on the reports of 3 commissions at Exhibit-73, 158 and 163 read with the oral evidence lead before the trial court. These commissions’ reports are not under dispute. According to learned counsel for the applicant in this premise, the observations of this Court in the matter of “Gulam Husain Mirza V/s Laxmidas Premji Alias Sagar Premji & Another” reported in 1984 (1) Bom.C.R. 520, referred and relied on in the judgment of the First Appellate Court will not be attracted. 9. As against this, according to learned counsel for the respondent, the observations of the trial court about application of section 13 (1) (c) of the Rent Act, are not correctly applied. On the contrary, provisions of section 13 (1) (a) of the Bombay Rent Act read with section 108 (o) of the Transfer of Property Act will apply to the findings recorded on the point No.3, about the damages allegedly caused to the tenanted property. 10. For the sake of clarity, section 13 (1) (a) of the Bombay Rent Act and Section 108 (o) of the Transfer of Property Act, are required to be reproduced here, which read thus - “13 (1) Notwithstanding anything contained in this Act {6} but subject to the provisions of section 15 and 15A, a landlord shall be entitled to recover possession of any premises of the Court is satisfied - a) that the tenant has committed any act contrary to the provisions of clause (a) of section 108 of the Transfer of Property Act, 1882; 108. Rights and liabilities of lessor and lessee- In absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, of such of them as are applicable to the property leased: (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted or commit any other act which is destructive of permanently injurious thereto;” 11. Considering the legal aspect, the findings of facts recorded by the first appellate court in paragraphs No.23 to 42, do not appear to be perverse, however, only the approach of the first appellate court that section 31 (1) (c) of the Rent Act will apply, is not correct, on the contrary, section 13 (1) (a) of the Rent Act r/w section 108 of the Transfer of Property Act, will apply to the facts of the present case. The finding recorded by the first appellate court clearly indicates that the applicant / defendant has not used the {7} tenanted premises as an ordinary prudent person and hence the submissions of the learned counsel for the applicant, in this behalf, cannot be accepted. 12. While arguing on the findings on the point of acquisition of suitable accommodation my attention is drawn towards the finding recorded on the points No.7 and 8 by the first appellate court. Point No.8 is in respect of acquisition of a suitable accommodation while point No.7 is in respect of hardships caused to the applicant or to the respondent. It is asserted that the first appellate court has recorded finding on point No.7 in affirmative that hardships will cause to the applicant / defendant, however, finding is recorded on the point No.8 on the question of suitable accommodation of the applicant / defendant that suitable accommodation is acquired by the applicant /defendant and on this count, allowed the appeal. According to learned counsel for the applicant / defendant, the findings on points No.7 and 8 are contrary to each other. 13. Learned counsel for the applicant / defendant placed reliance on the observations of this Court in the judgment reported in 2006 (4) Bom.C.R. 561 in the matter of “Dharma Bhika Patil V/s Tarabai Anant Bhoir”. In the said judgment, this Court has observed that alternate accommodation was acquired by the wife of the defendant consisting of one room and kitchen and this accommodation was not suitable for the residential {8} accommodation for a large family. It is further observed that perusal of the evidence shows that the tenant has four sons and 3 daughters. One son is yet to be married. Tenant is staying with his wife, other married sons and daughter in laws in the suit premises, which also consists of one room and a kitchen and hence it is held that it cannot be said or suggested that the tenant has acquired suitable alternate accommodation and hence the contentions of the land lord are not sustainable that the defendant has acquired suitable accommodation. 14. Learned counsel for the applicant / defendant also placed heavy reliance on the observations of the Apex Court in the judgment reported in 2000 (3) Bom.C.R. 6 in the matter of “Anandi D.Jadhav (dead) by L.Rs. v/s Nirmala Ramchandra Kore and others”. It is observed in the said judgment that the son of the tenant built house and is residing therein, however earlier sons were living with the tenant, mother and tenant mother did not contribute for the construction of the house and hence it is held that the mother has no legal right to live in the house constructed by the sons. Moral obligation of sons to maintain their mother cannot be enlarged to legal duty to provide her residence in house along with their family. In the premise, it is held that the requirement of section 13 (1) (l) are not satisfied. 15. Learned counsel for the applicant / defendant also relied on the observations of this Court in the judgment reported {9} in 1985 (1) Bom.C.R. 100 in the matter of “Shankar Nana Waychal & others V/s Mohan Ganesh Date & another”. It is observed in the said judgment that for application for section 13 (1) (l), the tenant himself must acquire alternate suitable residence. Acquisition of a suitable residence 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 sons of tenant, that cannot be made a ground for evicting the tenant under section 13 (1) (l) of the Bombay Rent Act. 16. Learned counsel for the applicant further relied on the judgment of this Court reported in 2005 (6) Bom.C.R. 134 in the matter of “Vamanrao Vishwanath Falke V/s Anusaya Rangrao Patil”. It is observed in the said judgment that suitable accommodation means all occupants heirs of original tenant must be in a position and or have right to occupy said accommodation. There is material on record that premises acquired by defendant in the name of his wife and hence cannot be termed as suitable alternate accommodation acquired by the tenant. 17. According to learned counsel for the applicant, considering the observations in the rulings cited supra, it is clear that the evidence must establish and indicate that suitable accommodation is acquired by the tenant himself, which is lacking in the present case. Therefore, according to the learned counsel for the applicant, the observations of the lower appellate court in {10} paragraph No.66 to 77 are contrary to the ratio laid down in the above cited judgments. 18. According to the learned counsel for the respondent, considering the limited scope of revisional jurisdiction of this Court, unless any perversity is brought to the notice of this Court in respect of the findings of the First Appellate Court, no interference is required in the decree passed. 19. Considering the appreciation of the evidence it is not disputed that the applicant / defendant has kept 18 flower pots in the balcony. It is also not disputed that the tenanted premises is old styled and even the construction is old one and hence provisions of section 13 (1) (a) of the Rent Act r/w section 108 (o) of the Transfer of Property Act will apply for the acts of the applicant / defendant and hence there appears no perversity in the conclusion drawn by the first appellate court. 20. Causing hardship is a relative term in respect of bona fide requirement for personal use and from that sense not related to acquisition of a suitable accommodation as compared to bona fide requirement. 21. While recording finding on point No.8, evidence before the trial court was discussed by the first appellate court in para 66 to 77 of the impugned judgment and has drawn a conclusion that {11} construction of CTS No.2445/1, which is alleged to be suitable alternate accommodation of the tenant, was acquired by the applicant and not individually by sons of the applicant. These findings are not perverse. Facts discussed in the ruling cited and relied upon by the learned counsel for the applicant clearly establish that in the facts and circumstances of the case, the evidence of acquisition of a suitable accommodation was not sufficient to hold that the accommodation was acquired by the tenant himself, however was acquired by his relatives. In the premise, the ratio laid down in the judgments cited supra is not applicable to the facts of the present civil revision application. 22. Before parting with the judgment, though it is not challenged yet it is worth to be noted that the observations in the judgment of the first appellate court that plaintiff / respondent has joined judicial service and reported at the place of his posting and hence now he will not cause any hardship, are not proper. Though the respondent has joined judicial service and has reported at the place of his posting, yet his head quarter is a temporary detachment from the tenanted property and cannot be said that now the land lord / plaintiff / respondent is not in need of the tenanted premises. 23. Consequently, as nothing is brought on record to interfere with the findings recorded by the first appellate court and as the findings are not perverse, no interference is required by this {12} Court in the order impugned. Accordingly, the civil revision application, which is sans merits, stands rejected with no order as to costs. 24. Time of 6 months is granted to the applicant / defendant / tenant, to vacate the suit premises. [A.V.POTDAR, J.] drp/B10/cra39-08