ANANDI D JADHAV Vs. NIRMALA RAMCHANDRA KORE

JUDGEMENT

(1.) This appeal raises an interesting question:whether on respondents 2 and 3, sons of the first respondent (tenant), building a house the appellants-landlords can seek eviction of the first-respondent under clause (1) of Section 13(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

(2.) The appellants are the legal hiers of the landlord subsequent owner of premises consisting of one room admeasuring 10' x 10' in City Survey No. 2349, E. Ward, District Kolhapur (referred to as 'the suit premises'). The suit premises was let out to the first respondent on a monthly rent of Rs. 100/- by erstwhile owner in 1987. Respondents 2 and 3 lived with their mother till they built a bungalow in R. S. No. 690/B, Sambhajinagar, (hereinafter referred to as 'the house'). The said owner filed the suit, out of which the appeal arises, under Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (referred to in this judgment as 'the Act') against the respondents for their eviction on the ground that the respondents had built the house and thus have alternate suitable accommodation for their residence. They contested the suit stating that the first respondent had been in occupation of the suit premises for the last 30 years and that she has no concern with the house, built by respondents 2 and 3, which is not a bungalow as alleged by the appellants. It is stated that initially the monthly rent of the suit premises was Rs. 50/- which was enhanced to Rs. 100/- and that the suit was filed only to harass her. The trial Court found that respondents 2 and 3 had constructed the house which could not be said to be a suitable residence of the first respondent and dismissed the suit on January 1, 1997. On appeal, the IInd Additional District Judge at Kolhapur held that though respondents 2 and 3 had built the house, a two storeyed building consisting of eight rooms, in which they were residing, yet respondent No. 1 could be said to have acquired suitable alternative accommodation. Thus, the suit was decreed by allowing the appeal with costs. The first respondent challenged the validity of that order of the Appellate Court dated December 20, 1997 in Writ Petition No. 167 of 1998 before the High Court. Holding that the alternate accommodation stood in the name of respondents 2 and 3 and the consideration for it was not provided by the first respondent the High Court opined that she could not be said to have a suitable alternate residence and accordingly set aside the order of the District Judge by allowing the writ petition on January 27, 1998. It is against that order of the High Court that the present appeal is filed by special leave.

(3.) Mr. A. M. Khanwilkar, learned counsel appearing for the appellants, vehemently contended that the first respondent and her sons lived in the suit premises as members of the family for over 30 years and the newly built house is a family house even if it was built by her sons; in any event she had acquired alternate accommodation. The High Court, submitted the learned counsel, took into consideration irrelevant matters to non-suit the appellants; he argued that under the Hindu Adoptions and Maintenance Act, 1956 the first respondent had a right to be maintained by her sons and, therefore, she was entitled to live in their house and so a suitable alternate accommodation was available to her.