1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants-original defendants-heirs and legal representatives of original tenant to quash and set aside the impugned judgment and order passed by the learned Principal District Judge, Junagadh dated 28/02/2006 in Regular Civil Appeal No. 126/1997 by which the learned appellate Court has allowed the appeal preferred by the respondents-original plaintiffs by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently passing the eviction decree against the applicants under Section 13(1)(l) of the Bombay Rent Act on the ground that the applicants have acquired alternative accommodation.
2. The original landlord-Shri Jayantilal Kanjibhai Vaghela-respondents-original plaintiffs instituted Regular Civil Suit No. 743/1987 against the original tenant Shri Jamnadas Vasandas Mesvaniya in the Court of learned Civil Judge (Senior Division), Junagadh for recovery of possession of the suit premises on the ground of arrears of rent as well as on the ground that the tenant has acquired alternative suitable accommodation. The learned trial Court dismissed the suit solely on the ground that during pendency of the suit the tenant sold the alternative accommodation and, therefore, at the time of passing of the decree the tenant-applicants was not in possession of the alternative accommodation. It is to be noted that during pendency of the suit, the original tenant died and, therefore, his heirs were brought on record. The learned trial Court dismissed the suit on the ground that the tenant was not in arrears of rent for more than six months. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (Senior Division), Junagadh dated 24/07/1997 in Regular Civil Suit No. 743/1987 in dismissing the suit the heirs of the respondents-original plaintiffs preferred Regular Civil Appeal No. 126/1997 and by impugned judgment and order the learned appellate Court has allowed the said appeal quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit under Section 13(1)(l) of the Act on the ground that the tenant/applicants has acquired alternative suitable accommodation. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court, the heirs of the original tenant have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri Param Buch, learned advocate appearing on behalf of Shri Hriday Buch, learned advocate appearing on behalf of the applicants has vehemently submitted that the learned appellate Court has materially erred in allowing the appeal preferred by the respondents and quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit. It is submitted by Shri Buch, learned advocate appearing on behalf of the applicants that when during pendency of the suit, the accommodation, which was alleged to have been acquired by the tenant, was sold and was in possession of the tenant at the time of passing of the decree, the learned trial Court had rightly dismissed the suit on the ground that at the time of passing of the decree the tenant is not in occupation and/or possession of the alternative accommodation and, therefore, the learned appellate Court is not justified in allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit. It is submitted that at the relevant time when the suit was taken up for final hearing i.e at the time of judgment and decree the tenant was not in occupation and possession of the alternative accommodation and, therefore, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Shri Chirag Patel, learned advocate appearing on behalf of the original landlord. It is submitted that what is required to be considered is acquiring suitable accommodation at the time when the suit was instituted and merely because the tenant who had acquired alternative accommodation subsequently has transferred the same to avoid the decree on the ground of alternative accommodation he cannot be subsequently permitted to say that at the time of judgment and decree he is not in occupation and possession of the alternative accommodation and, therefore, no decree can be passed. Shri Patel, learned advocate appearing on behalf of the original landlord has relied upon the decision of the learned Single Judge in the case of Ramanlal Becharbhai Tailor Vs. Champaklal Nanalal Modi reported in 1998 (2) GLH 9 with respect to his submission that in a case where the tenant, who acquired the possession of the house transfers the same before the date of filing of the suit, as held by the learned Single Judge in the said decision for getting the decree under Section 13(1)(l) of the Bombay Rent Act what is to be borne in mind is that the cause must be on the date of the notice and on the date of filing of the suit and not subsequent to the date of the suit. Relying upon the above decision it is submitted that the learned appellate Court has not committed any error and/or illegality in passing the eviction decree and, therefore, it is requested to dismiss the present Civil Revision Application.
5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted and it is not in dispute that at the time when the suit was instituted for recovery of possession under Section 13(1)(l) of the Bombay Rent Act, the tenant was in occupation and possession of other premises, which was suitable alternative accommodation. However, during pendency of the suit the tenant transferred and sold it to another person and, therefore, it was contended on behalf of the tenant that as at the relevant time when the judgment and decree was passed, he was not in possession of the alternative accommodation and, therefore, he cannot be evicted and no decree for possession can be passed under Section 13(1)(l) of the Bombay Rent Act. Unfortunately, the learned trial Court accepted the same and dismissed the suit and the aforesaid is set aside by the learned appellate Court by holding that once it is proved that at the time of institution of the suit, the tenant had acquired alternative suitable accommodation the cause for eviction under Section 13(1)(l) of the Bombay Rent Act has existed. No illegality has been committed by the learned appellate Court in allowing the appeal and passing the eviction decree.
6. Identical question came to be considered by the learned Single Judge in the case of Ramanlal Becharbhai Tailor(Supra) and considering Section 13(1)(l) of the Bombay Rent Act and considering the decision of Shivlal Nathuram Vaishnav Vs. Harshadrai Haribhai Oza reported in 21(1980) GLR 1999, it is held that, if the tenant has built up or acquired vacant possession of or being allotted with suitable residence, he loses the protection and the landlord acquires the right to have the decree of eviction. It is further held that what is to be borne in mind is that the acquisition must be on the date of the notice and also on the date of the suit. It is further held that at any time, on or before the date of the suit, if the tenant builds the house or acquires the possession of the house or is alloted with the suitable residence, he loses protection, regardless of the fact whether thereafter he continues to be the owner and in possession of another premises or transfers the same, because once the wrong done, cannot be undone by transferring the premises or disposing the same in any manner whatsoever. Considering the aforesaid decision of learned Single Judge, which squarely applies to the facts and circumstances of the present case, it cannot be said that the learned appellate Court has committed any error in allowing the appeal quashing and setting aside the judgment and decree passed by by the learned trial Court and decreeing the suit against the applicant under Section 13(1)(l) of the Bombay Rent Act.
7. In view of the above and for the reasons stated hereinabove, the present Civil Revision Application fails and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier stands vacated forthwith. No cost.
(M.R.
SHAH, J.) siji