Date : 26/07/2012 1.00. Present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein – original defendant (now heirs and legal representatives of the original defendant) to quash and set aside the impugned judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.1672 of 1994 dtd.27/9/2000 as well as the impugned Judgement and Order passed by the learned Appellate Bench of the Small Causes Court at Ahmedabad in Regular Civil Appeal No. 217 of 2000 dtd.3/10/2001, by which the learned Appellate Bench has dismissed the said appeal preferred by the original defendant – tenant confirming the judgement and decree passed by the learned Small Causes Court at Ahmedabad passing eviction decree under section 13(1)(l) of the Bombay Rent Act on the ground that the tenant had acquired alternative suitable accommodation. 2.00. That the respondent herein – original plaintiff instituted HRP Suit No.1672 of 1994 against the original defendant – tenant in the Small Causes Court at Ahmedabad for recovery of the possession / eviction decree on the ground of arrears of rent as well as on the ground that the tenant had acquired alternative suitable accommodation at Gandhinagar.
2.01. The suit was resisted by the defendant by filing Written Statement at Ex.10 submitting that he is not in arrears of rent as well as specifically denying that he had acquired alternative suitable accommodation at Gandhinagar. Though it was the specific case on behalf of the plaintiff that the tenant had purchased the house at Gandhinagar by obtaining loan from GPO, the defendant denied the same.
2.02. That the learned trial court framed the Issues at Ex.15.
2.03. Both the parties led evidence, documentary as well as oral. The original plaintiff produced documentary evidences to prove that the defendant purchased one house at Gandhinagar after obtaining loan from GPO, and therefore in the cross-examination the defendant – tenant had no alternative but to admit the fact of purchasing one house at Gandhinagar, which was also suitable for his family members. However, it was the case on behalf of the defendant – tenant that he had already sold the house which was purchased by him at Gandhinagar and therefore, at the time of filing of the suit, the tenant was not in occupation and possession of the another property and therefore, it was contended on behalf of the tenant that no eviction decree can be passed under section 13(1)(l) of the Bombay Rent Act on the ground that the tenant had acquired alternative suitable accommodation.
2.04. That the learned trial court negatived the above and held that as the tenant had acquired alternative suitable accommodation by purchasing a house at Gandhinagar which was also suitable (even as admitted by the tenant), merely because the same was sold by the defendant, the same is no ground to deny eviction decree under section 13(1)(l) of the Bombay Rent Act and consequently by judgement and decree dtd.27/9/2000, the learned Small Causes Court decreed the suit by passing eviction decree under section 13(1)(l) of the Bombay Rent Act and directed the defendant – tenant to vacate the suit premises.
2.05. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned Small Causes Court at Ahmedabad in HRP Suit No.1672 of 1994 dtd.27/9/2000, the original defendant - tenant preferred Regular Civil Appeal No. 217 of 2000 before the Appellate Bench of the Small Causes Court at Ahmedabad and by the impugned Judgement and Order dtd.3/10/2001 the learned Appellate Bench of the Small Causes Court at Ahmedabad has dismissed the said appeal by confirming the judgement and decree passed by the learned trial court.
2.06. Being aggrieved by and dissatisfied with the Judgement and Orders / decrees passed by both the courts below, the original defendant has preferred the present Civil Revision Application under section 29(2) of the Bombay Rent Act.
2.07. During pendency and final disposal of the present Civil Revision Application, original defendant has expired and therefore his heirs are brought on record as petitioners.
3.00. Mr.S.P. Hasurkar, learned advocate appearing on behalf of the petitioners – heirs and legal representative of the original defendant – tenant has vehemently submitted that both the courts below have materially erred in passing decree under section 13(1)(l) of the Bombay Rent Act on the ground that the tenant had acquired alternative suitable accommodation. It is submitted that as such and it is an admitted position that at the time when the suit was instituted, the tenant had already disposed of / sold the house purchased at Gandhinagar and therefore, the tenant was not in occupation and possession and/or owner of another property and therefore, no eviction decree can be passed under section 13(1)(l) of the Bombay Rent Act.
3.01. Mr.S.P. Hasurkar, learned advocate appearing on behalf of the petitioners has further submitted that even both the courts below have not properly considered and appreciated the fact that even the property / house which was purchased at Gandhinagar was away from the place where the defendant – tenant was serving i.e. GPO, Mirzapur, Ahmedabad and therefore, as alleged alternative accommodation situated at Gandhinagar, which was 25 to 30 KMs away from Ahmedabad, cannot be said to be alternative suitable accommodation acquired by the tenant and therefore, no eviction decree could have been passed by both the courts below under section 13(1)(l) of the Bombay Rent Act.
No other submissions have been made.
By making above submissions and relying upon above decision, it is requested to allow the present Civil Revision Application and to quash and set aside the impugned Judgement and Orders passed by both the courts below.
4.00. Present Civil Revision Application is opposed by Ms.Tanuja Kachchhi, learned advocate appearing on behalf of the original plaintiff – landlord. It is submitted that as such it was the specific case on behalf of the plaintiff from the very beginning and so stated in the plaint that the tenant had purchased one residential house at Gandhinagar, after obtaining loan from GPO, however the defendant specifically denied the same. It is submitted that however, as the defendant was confronted with the documents of purchase of house at Gandhinagar during the course of the evidence, then and then only the defendant – tenant admitted the fact of purchase of residential house at Gandhinagar. It is submitted that in the cross-examination the defendant has specifically admitted that the house which was purchased by him at Gandhinagar was suitable for his family. Therefore, it is submitted that as the tenant had acquired alternative suitable accommodation at Gandhinagar, which was suitable for the defendant and his family members, merely because subsequently the tenant sold the same and/or merely because at the time of filing the suit, the tenant had sold the said alternative accommodation, the same is no ground not to pass eviction decree under section 13(1)(l) of the Bombay Rent Act. It is, therefore, submitted that no illegality has been committed by the courts below in passing eviction decree under section 13(1)(l) of the Bombay Rent Act on the ground that the tenant had acquired alternative suitable accommodation.
By making above submissions it is requested to dismiss the present Civil Revision Application.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned Judgement and Orders and decrees passed by both the courts below as well as evidence on record from the record and proceedings received from the learned trial court.
6.00. At the outset, it is required to be noted that as such there are concurrent finding of facts given by both the courts below that the tenant had acquired alternative suitable accommodation and thereby the plaintiff is entitled to eviction decree under section 13(1)(l) of the Bombay Rent Act.
The finding of fact given by both the courts below are on appreciation of evidence which are not required to be interfered with by this Court in exercise of revisional jurisdiction.
6.01. Even otherwise, considering the impugned Judgement and Order and decree passed by both the courts below as well as evidence on record, this Court is satisfied that the courts below have not committed any error and/or illegality in passing eviction decree against the tenant under section 13(1)(l) of the Bombay Rent Act on the ground that the tenant had acquired alternative suitable accommodation.
6.02. It is required to be noted that from the very beginning it was the case on behalf of the plaintiff that the defendant – tenant has acquired alternative suitable accommodation - residential house consisting of two rooms and a kitchen at Gandhinagar by taking loan from his department – GPO. However, despite the above, initially the defendant – tenant denied that he had purchased house at Gandhinagar by obtaining loan from his department. Even In the Written Statement also the tenant denied the fact of having acquired alternative suitable accommodation and purchasing house at Gandhinagar. However, during the evidence, when he was confronted with the documentary evidences of purchasing house at Gandhinagar having two rooms and a kitchen, which is larger than the suit premises, the defendant tenant was constrained to admit the fact of having purchased one residential house at Gandhinagar. This shows the conduct on the part of the tenant and his bonafides. In the cross-examination he has also specifically admitted that house at Gandhinagar purchased by him was consisting of two rooms and a kitchen and it was larger than the suit premises and he has also admitted that in the said house his family could be suitably accommodated. However, it was the case on behalf of the defendant – tenant that after purchasing the house at Gandhinagar, he sold the said house for a sum of Rs.1 Lac and at the time of filing of the suit, he was not the owner of any other property and therefore, no eviction decree under section 13(1)(l) of the Bombay Rent Act can be passed. Therefore, the short question which is posed for consideration of this Court is, Whether in a case where tenant had acquired alternative suitable accommodation and after acquiring the same, he had sold the same, and alternative suitable accommodation was not available at the time of filing of the suit, can eviction decree be passed under section 13(1)(l) of the Bombay Rent Act on the ground that the tenant had acquired alternative suitable accommodation?
6.03. It is required to be noted that it was never the case on behalf of the defendant – tenant that as alternative accommodation - house which was purchased by him at Gandhinagar was away from Ahmedabad and the same was not suitable for him since he was serving at Mirzapur, Ahmedabad, he has sold the house purchased by him at Gandhinagar. It is also required to be noted that he had purchased the house at Gandhinagar for a consideration of Rs.58,000/- after obtaining loan from his department and subsequently he has sold it for the consideration of Rs.1 Lac. As stated above, it has come on record that the house purchased by the tenant at Gandhinagar was consisting of two rooms and a kitchen and it was larger than the suit premises.
Even the tenant has also specifically admitted that the house purchased by him at Gandhinagar was suitable for his family members. Therefore, merely because after obtaining alternative suitable accommodation the tenant had sold the same and the same was not in occupation and possession of the tenant at the time of filing of the suit, the same is no ground not to pass eviction decree under section 13(1)(l) of the Bombay Rent Act. Considering Section 13(1)(l) of the Bombay Rent Act, if it is found that the tenant has acquired, built, acquired vacant possession or has been allotted a suitable residence after coming into operation of the Bombay Rent Act, landlord is entitled to eviction decree. Section 13(1)(l) of the Act does not provide that such acquisition of alternative accommodation must be continued on the date of institution of the suit. Moment it is found that the tenant had acquired suitable accommodation as provided under section 13(1)(l) of the Bombay Rent Act, after coming into force of Bombay Rent Act, irrespective of the fact whether at the time of institution of the suit the tenant is in occupation and possession of the alternative accommodation or not, eviction decree under section 13(1)(l) of the Bombay Rent Act can be passed. On fair reading of Section 13(1)(l) of the Bombay Rent Act it can be said that moment tenant had built, acquired vacant possession of or has been allotted a suitable residence, right is accrued in favour of the landlord to seek eviction decree under section 13(1)(l) of the Bombay Rent Act. Under the circumstances, merely because after acquiring alternative suitable accommodation tenant had sold it and the same was not available at the time of institution of the suit, the same is no ground not to pass eviction decree under section 13(1)(l) of the Bombay Rent Act. Under the circumstances no illegality has been committed by both the courts below in passing eviction decree against the defendant tenant under section 13(1)(l) of the Bombay Rent Act.
6.04. Now, so far as the submission of Mr.Hasurkar, learned advocate appearing on behalf of the petitioners that both the courts below have not considered the suitability of alternative accommodation i.e. the house purchased by the defendant - tenant was at Gandhinagar and the defendant was serving at Mirzapur, Ahmedabad and therefore the suit premises is nearer to his office, and, therefore, the alternative accommodation at Gandhinagar cannot be said to be suitable is concerned, it is required to be noted that it was never the case on behalf of the tenant before the learned trial court that the house purchased by him at Gandhinagar was not suitable and therefore, he sold the same. It was also never the case on behalf of the defendant tenant before the trial court that the house which was purchased by him at Gandhinagar cannot be said to be suitable as it was 25 to 30 KMs away from Ahmedabad. On the contrary, as stated above, as such the tenant denied the fact of purchase of house at Gandhinagar and only when he was confronted by the plaintiff with the documents during the course of evidence, the tenant was constrained to admit the fact of purchase of house at Gandhinagar and thereafter it was the only case on behalf of the defendant that as the house purchased by him at Gandhinagar was already sold, eviction decree cannot be passed under section 13(1)(l) of the Bombay Rent Act.
Even considering the Judgement and Order passed by both the courts below it appears that the learned trial court has considered the aforesaid contention in para 8 of the judgement and it is observed and held that Gandhinagar and Ahmedabad is more or less a suburb of Ahmedabad and frequent bus service is available at the concessional rate and therefore, accommodation at Gandhinagar is equally suitable.
Even otherwise, if the contention on behalf of the petitioner that though he had earlier acquired alternative suitable accommodation but sold the same subsequently and at the time of institution of the suit, he was not in occupation and possession of the alternative suitable accommodation and was not owner of another residential house and therefore, no eviction decree can be passed under section 13(1)(l) of the Bombay Rent Act, is accepted, in that case, every tenant would sell the alternative accommodation acquired by him to get out of the provisions of section 13(1)(l) of the Bombay Rent Act and the same would be contrary to the object and purpose of section 13(1)(l) of the Bombay Rent Act, and hence the tenant cannot be permitted to do so.
6.05. Even otherwise, as stated above, it was never the case on behalf of the defendant that though he had purchased the residential house at Gandhinagar consisting of two rooms and a kitchen having larger area than the suit premises, he sold it as it was not convenient to him and/or it was not suitable. Under the circumstances, there is no substance in the aforesaid contention raised on behalf of the petitioner. Considering the facts and circumstances of the case and even the conduct on the part of the defendant – tenant disputing the fact of purchase of residential house at Gandhinagar, however, in fact he admitted the said fact when was compelled to admit subsequently as he was confronted with the documentary evidence, and considering the facts and circumstances of the case, more particularly when the defendant - tenant had acquired alternative suitable accommodation, it cannot be said that both the courts below have committed any error and/or illegality in passing eviction decree under section 13(1)(l) of the Bombay Rent Act and therefore, no interference of this Court is called for in exercise of revisional jurisdiction.
7.00. In view of the above and for the reasons stated above, present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-Interim relief granted earlier if any, stands vacated forthwith. In the facts and circumstances of the case, there shall be no order as to costs.
At this stage, Mr.Hasurkar, learned advocate appearing on behalf of the petitioners herein has requested to stay the execution, operation and implementation of the present Judgement and Order and to continue the Interim Relief granted earlier so as to enable the petitioners to approach the Higher Forum challenging the present Judgement and Order.
In the facts and circumstances of the case, the execution, operation and implementation of the present Judgement and Order is stayed and the Ad-Interim Relief granted earlier is hereby extended upto 30/9/2012.
rafik. [M.R. SHAH, J.]