1997(3) ALL MR 24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. LODHA, J.

Shri B. T. Palav Vs. Smt. Rukumini Tukaram Indulkar

Writ Petition No.5727 of 1996

27th November, 1996

Petitioner Counsel: Mr. M. A. RANE with D. B. SAWANT
Respondent Counsel: Mr. B. P. APTE with Y. S. BHATE and S. R. SHINDE

(A) Constitution of India, Art.226 - Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), Ss.13(1)(k), 13(1)(l) - Eviction - Suit premises not used by the tenant without reasonable cause for continuous period of six months preceding filing of suit - Acquisition of alternate premises - Concurrent findings of fact recorded by lower Courts against the Petitioner - Interference in exercise of writ jurisdiction not justified. (Paras 5, 6)

(B) Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), S.13(1)(k) - Eviction - Acquiring alternate accomodation - Sufficiency of new premises - Telephone connection in new premises - Names included in list of voters at new address - Concurrent findings - Eviction order - Justified. (Para 4)

JUDGMENT

JUDGMENT :- Heard Mr. Rane, Advocate, for petitioner and Mr. Apte, Advocate for respondent.

2. Both the Courts below have granted decree for eviction in favour of respondent and against the petitioner on the ground under Section 13(1)(k) and 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

3. There is no dispute that the petitioner has acquired an accommodation admeasuring about 570 sq.ft. though the said property stands in the name of his wife. The premises in question comprise of two rooms admeasuring 10' x 10' and 10' x 12' including bath room. The defendant/petitioner resisted the plaintiff's suit for eviction under Section 13(1)(l) on the ground that the petitioner acquired additional accommodation admeasuring about 570 sq.ft. in Shree Ram society near the disputed premises so that after marriage the premises in question could be used by his son. After recording the evidence, the trial Court finally reached the finding of fact that the accommodation acquired by the petitioner at Shree Ram society was suitable for residence of the defendant/petitioner and, therefore the plaintiff was entitled to the decree for eviction. The Appellate Court concurred with the finding of fact recorded by the trial Court and observed that the acquired premises were very much suitable to the petitioner/defendant and all his family members have been residing in the acquired premises since 1986 till today. The Appellate Court also held that the suitability of the acquired premises was there not only at the time of the institution of the suit but even at the time of eviction decree being passed against the petitioner/defendant as also at the time he acquired the said premises in 1986.

4. Mr. Rane, the learned counsel for the petitioner extensively read the evidence and from the deposition of the tenant/petitioner himself, the findings concurrently recorded by the Courts below cannot be faulted. The petitioner/tenant in his cross-examination admitted that flat at Shree Ram society has carpet area of 570 sq.ft. He admitted in his cross-examination that since he was residing in the flat at Shree Ram society he made an application for telephone and, took telephone in his name on the address of the flat at Shree Ram society by making application in the year 1986 and the telephone was installed in that flat in the year 1993. He further admitted in his cross-examination that his name and the name of his wife were included in the list of voters for the election in the year 1989 on the address of the flat at Shree Ram society. The petitioner also admitted in the cross examination that he, his wife, his son Milind and daughter Medha voted in an election which was held in the year 1993 and their names were included in the list of voters on the address of the flat at Shree Ram society. It is thus clear from the cross-examination of the petitioner that he and his family has been residing in the flat at Shree Ram society. In this fact situation, the concurrent finding of fact recorded by Courts below that petitioner has acquired suitable residence, cannot be said to be unjustified warranting interference by this Court in extra ordinary jurisdiction.

5. The Courts below have also concurrently held that the suit premises has not been used by the petitioner/tenant without reasonable cause for the purpose for which it was let out for continuous period of six months immediately preceding the filing of the suit and the said concurrent finding of fact is also recorded on appreciation of entire evidence on record warranting no interference by this Court in extra ordinary jurisdiction.

6. The findings recorded on both the aforesaid questions are concluded on facts and no case for interference is made out.

7. The writ petition accordingly has no merit and is dismissed in limine.

8. Mr. Rane, the learned counsel for the petitioner at this stage submits that decree for possession be not executed for a period of three months from today. Mr. Apte, the learned counsel for caveator respondent agrees that upon furnishing undertaking by the petitioner that on expiry of three months from today the petitioner shall hand over peaceful vacant possession of the disputed premises to the respondent, time may be granted.

9. I have considered the submissions made by the learned counsel for the parties and in may view interest of justice would be served if execution of the impugned decree is stayed subject to the furnishing of the undertaking by the petitioner before this Court within two weeks from today that he would hand over peaceful vacant possession of the premises in question to the respondent on or before expiry of three months from today unless ordered otherwise by the Apex Court. In the undertaking the petitioner should also state that he would not create any third party interest nor would cause any damage to the premises in question. The petitioner should also pay the entire rent upto 28/2/1997 within one month from today. Upon compliance, the execution of the impugned judgment and decree shall remain stayed for a period of three months from today.

10. Certified copy expedited.

Petition dismissed.