I shall first advert to the ground of respondent No. 1 having secured alternative residential accommodation in the context of Section 13(1)(1) of the Act. As is seen from the finding recorded by the Courts below and, the evidence of P.W. No. 1 clearly concedes the position that the premises at Badlapur, where the respondent No. 1 was presently staying, are owned by his father-in-law and not by the respondent No. 1. The Apex Court in the case of Anandi Jadhav (supra) has clearly dealt with this situation and has observed that it is only when the Court is satisfied that after coming into operation of the Act, the tenant has built or has acquired vacant possession of or has been allotted a suitable residence then decree for possession under that provision can be passed. In Para 6 of the said decision, it is further observed that burden to prove that any of the alternatives mentioned in the section is on the landlord and it is only when he establishes this then the burden will shift on the tenant to show that it is not a suitable alternative accommodation. In the present case, as is mentioned earlier, the Plaintiff went to the Court on the premise that the defendant No. 1 was staying at Badlapur in the premises owned by his father-in-law. Once this position is accepted then it necessarily follows that ground under Section 13(1)(1) would be unavailable and cannot be pressed into service against the defendant No. 1. In the circumstances, it will not be necessary for me to go into the other matters which found favour with the Appellate Court to answer that issue in favour of the respondent-tenant. Accordingly, to my mind, no decree under Section 13(1)(1) could be made against the respondents in the fact situation of the present case.
IN THE HIGH COURT OF BOMBAY
W.P. No. 1082 of 1985
Decided On: 14.08.2002
Dattatraya Pyurshottam Bhave
Vs.
Jayant Sitaram Joshi and Ors.
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation:2003(3)MHLJ 161,2003(3) ALLMR963
1. This writ petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the District Judge, Thane dated 21-7-1984 in Civil Appeal No. 79 of 1981.
2. The petitioner's predecessor was the landlord in respect of the premises known as Indira Sadan situated at Kharkar Ali, Thane. The suit premises are situated in the said building. The respondent No. 1 was inducted in the suit premises sometime in 1970. It is the specific case of the petitioner that the respondent No. 1 tenant shifted permanently to Badlapur and thereafter the defendant No. 2 started to occupy the suit premises. In the circumstances, suit for possession was filed by the petitioner against the respondents essentially on two grounds which will have to be considered in this petition. The first ground was that the petitioner No. 1 tenant has acquired suitable residence elsewhere and therefore, was liable to be evicted by invoking Section 13(1)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred as the Act). The second ground pressed into service for possession is that the defendant No. 1 tenant illegally sublet the suit premises in favour of defendant No. 2/respondent No. 2 herein and, therefore, both the defendants were liable to be evicted from the suit premises on the ground of unlawful subletting within the meaning of Section 13(1)(e) of the Act. In response to this case made out in the plaint, the defendants filed their respective written statement. Insofar as the ground of respondent No. 1 having secured alternative residence is concerned, it was contended that that ground was not available and no decree could be passed because the respondents has not acquired premises as such. Insofar as ground of subletting is concerned, both the defendants pleaded that the defendant No. 2 was only licensee in the suit premises. The matter went for trial before the Civil Judge, J. D., Thane in Civil Suit No. 750/19784. Insofar as the ground that respondent No. 1 having secured alternative accommodation for residence is concerned, the Trial Court answered the same in favour of the petitioner landlord. Even the ground of unlawful subletting of the suit premises by respondent No. 1 to respondent No. 2 was also accepted by the Trial Court. Accordingly the Trial Court by its order dated 12-114980 decreed the suit in favour of the petitioner and ordered the defendants to hand over the vacant and peaceful possession of the suit premises to the petitioner. Against this decree, both the respondents preferred appeal being C.A. No. 79/1981 before the District Court at Thane. The Appellate Court by the impugned Judgment and Decree dated 21-7-1984 was pleased to allow the appeal and reverse the decree for possession passed by the Court below on both the grounds. It is this decision which is subject matter of challenge in the present writ petition.
3. Insofar as the ground of respondent No. 1 having secured alternative accommodation is concerned, the learned counsel for the petitioner contends that the petitioner has established the factum of acquisition by respondent No. 1 of alternative premises for residence. Reliance is placed on the evidence of P.W. No. 1 Pramila Bhave who stated that she had seen the defendant No. 1 in the premises at Badlapur. Reliance is also placed on the evidence of P.W. No. 3 Apte who is one of the tenant of the petitioner in the neighbouring premises who also deposed that the defendant No. 1- respondent No. 1 herein was not seen in the suit premises since 1972. Reliance is also placed on the letter Exh. 75 sent to respondent No. 1 at his known address at Badlapur was duly received by him on that address. In the circumstances, it is contended that taking overall view of the matter, it is possible to draw presumption against the respondent No. 1 that he has acquired and in any case is in control of some suitable premises for his residence elsewhere and that would be sufficient reason to decree the suit for possession under Section 13(1)(1) of the Act. Insofar as the ground of subletting is concerned, the learned counsel has criticized the approach adopted by the Appellate Court and submits that the Appellate Court has clearly overlooked that the petitioner had established in evidence that the respondent No. 2/defendant No. 2 was in exclusive possession of the suit premises coupled with the fact that he had deposited the amount towards rent in Court which was sufficient to establish the ground of unlawful subletting and the onus was on the respondents to show that the respondent No. 2 was not inducted in the suit premises for consideration. Such positive evidence is lacking in the present case. He therefore, submits that the reasonings of the Appellate Court needs to be reversed on this premises and instead the findings and conclusion recorded by the Trial Court on the issue of unlawful subletting be accepted. On the other hand, the learned counsel for the respondents has supported the order passed by the Court below and submits that the Appellate Court being final Court for recording finding of fact and that Court recorded the finding of fact on both the aforesaid issues in favour of the respondents, same would not warrant interference in exercise of writ jurisdiction under Article 227 of the Constitution of India. The learned counsel has also placed reliance on the decision in the case of Anandi D. Jadhav (Dead) by L.Rs v. Nirmala Ramchandra Kore and Ors. reported in MANU/SC/0245/2000 : [2000]2SCR963 to contend that mere fact that tenant was staying elsewhere was not sufficient to decree the suit within the meaning of Section 13(1)(1) of the Act but the onus was on the landlord to establish the fact that the tenant has built, acquired vacant possession or has been allotted suitable residence. On the other hand, the evidence of P.W. No. 1 would indicate that, that the respondent No. 1 was staying in the premises at Badlapur which were owned by his father-in-law. He therefore, submits that, in such situation the decree under Section 13(1)(1) cannot be passed. Insofar as the ground of unlawful subletting is concerned, the learned counsel submits that no doubt, in the plaint the petitioner has asserted that the defendant No. 2 has been illegally inducted in the suit premises as subtenant since June, 1974. However, the case of the respondents was that the respondent No. 2 was none else but the husband of the cousin sister of respondent No. 1 and therefore, in that sense the family member staying along with the respondent No. 1 in the suit premises and cannot be branded as subtenant as such. He further submits that in any case during the evidence both the defendants have entered the witness box and very clearly deposed that the defendant No. 2 was staying with defendant No. 1 and came in possession of the suit premises in the year 1972; whereas although the petitioner has cross examined both these witnesses but there is absolutely no challenge to the statement on oath made by the defendants that the defendant No. 2 was in possession since 1972. It is further submitted that in the Plaintiff's evidence for that matter of P.W. No. 1 or P.W. No. 3, there is no assertion of the fact that the defendant No. 2 has been inducted in the suit premises after 1973. In this backdrop, it is submitted that assuming that ground of unlawful subletting was to be answered against the respondents, on the nature of evidence which has already come on record; But having regard to the unchallenged and uncontroverted fact that the defendant No. 2 came in possession of the suit premises since 1972, this Court will have no option but to dismiss the writ petition as by Amendment Act of 1987 all unlawful subletting prior to 1st Feb. 1973 has been protected. In the circumstances, it is contended that the present petition is devoid of merits and, therefore, the same be dismissed.
4. I shall first advert to the ground of respondent No. 1 having secured alternative residential accommodation in the context of Section 13(1)(1) of the Act. As is seen from the finding recorded by the Courts below and, the evidence of P.W. No. 1 clearly concedes the position that the premises at Badlapur, where the respondent No. 1 was presently staying, are owned by his father-in-law and not by the respondent No. 1. The Apex Court in the case of Anandi Jadhav (supra) has clearly dealt with this situation and has observed that it is only when the Court is satisfied that after coming into operation of the Act, the tenant has built or has acquired vacant possession of or has been allotted a suitable residence then decree for possession under that provision can be passed. In Para 6 of the said decision, it is further observed that burden to prove that any of the alternatives mentioned in the section is on the landlord and it is only when he establishes this then the burden will shift on the tenant to show that it is not a suitable alternative accommodation. In the present case, as is mentioned earlier, the Plaintiff went to the Court on the premise that the defendant No. 1 was staying at Badlapur in the premises owned by his father-in-law. Once this position is accepted then it necessarily follows that ground under Section 13(1)(1) would be unavailable and cannot be pressed into service against the defendant No. 1. In the circumstances, it will not be necessary for me to go into the other matters which found favour with the Appellate Court to answer that issue in favour of the respondent-tenant. Accordingly, to my mind, no decree under Section 13(1)(1) could be made against the respondents in the fact situation of the present case.
5. Reverting to the ground of unlawful subletting, as rightly contended by the learned counsel for respondents that even if the case of unlawful subletting is accepted as it is, even then, no decree could be passed in the present case against the respondents. To support this submission reference is made to the evidence of Plaintiff's witnesses to point out that there is no assertion either in the evidence of P.W. No. 1 or P. W. No. 3 that the respondent No. 2 was inducted in the suit premises as unlawful sub-tenant after 1-24973. Reliance is also placed on the evidence of D.W. No. 1 and D. W. No. 2 who have stated on oath that defendant No. 2 was staying along with the defendant No. 1 and that he came in possession since 1972. That evidence has not been challenged at all. Therefore, even if we were to accept the contention of the petitioner that the defendant No. 2 is the subtenant in the suit premises, the fact remains that undisputedly the respondent No. 2 has been inducted in the suit premises in that capacity since 1972, which is much prior to 1st February 1973. In such situation, the ground of unlawful subletting would become unavailable against the sub-tenant as all unlawful subletting prior to 1st Feb. 1973 has been protected by the Amending Act, 1987. In this view of the matter even the ground of unlawful subletting cannot be pressed into service for recovery of possession of the suit premises, as by operation of law the respondent No. 2 would become tenant of the petitioner in respect of the suit premises and duly protected by the Amending Act, 1987 (see MANU/MH/0037/1991 : AIR1991Bom207 ). If this be so, it will not be necessary for me to go into the other aspects which have been dealt by the Appellate Court of answering the issue in favour of the respondents and against the petitioner.
6. Accordingly, this writ petition fails and the same is dismissed with no order as to costs.
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