MAJOR HOMI RUSTOMJI DARUWALA Vs. PEPSI SORABJI DOODHA

JUDGEMENT

(1.) * * *

(2.) The present petitioner filed Miscellaneous Civil Application No. 56 of 1987 before Civil Judge (S. D.), Navsari under Sec. 13-AA of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Rent Act') to recover possession of the residential premises leased to the opponent No. 1 Pepsi Sorabji Doodha, who was original respondent has expired during the pendency of the proceeding before this Court and respondent Nos.1/1 to 1/3 being the heirs and legal representatives of the deceased, respondents Nos. 1/1 to 1/3 were impleaded as heirs and legal representatives vide order dated 12th of April, 1991 and they have appeared before this Court through their Advocate Mr. D. D. Vyas.

(3.) The case of the petitioner in his application was that he had joined the Indian Army in the year 1942 and having put in service of 27 years, he has retired in the year 1969 as Major. It was his case that suit premises consisting of two rooms on the ground floor with common kitchen, bathroom and lavatory and one room on the first floor situated in the front portion of the northern side of house belonged to him and the members of his family. It was his case that since he was in Army, he was required to move from station to station and his mother was not residing at Gandevi and therefore, in or about 1963, the house was leased to respondent No.1 Pepsi Sorabji Doodha at monthly rent of Rs. 20.00. It is his case that since he retired in the year 1969 and since he wanted to reside in his own residential house, he wanted to settle and stay at Gandevi. It is his further case that on or about 23rd of April, 1984, the respondent No.1 has purchased another property bearing Panchayat No. 1803, which is situated in the same locality and that respondent No. 1 with the members of his family has shifted to the said new premises. He further pleaded that the respondent No. 1 has sublet the premises to respondent No. 2 and that he has been charging exhorbitant rent because of which the property tax which was assessed at Rs. 21 annually came to be increased to Rs. 742 annually. It is his further case that the suit premises is required by him reasonbly and bona fide for his personal occupation and that if decree for possession as prayed for is not granted in his favour, hardship and inconvenience will be caused to him while if decree for possession as prayed for is granted in his favour, no hardship or inconvenience will be caused to the respondents as respondents have already acquired their suitable residential accommodation. He, therefore, prayed that a decree for possession should be passed in his favour. It must also be incidentally mentioned at this stage that this very petitioner has earlier instituted Regular Civil Suit No. 169 of 1983 in the Court of Civil Judge (J. D.), Gandevi against the respondent to recover possession of the suit premises inter alia on the ground of reasonable and bona fide personal requirement under Sec. 13(1)(g) of the Bomay Rent Act. There was some controversy about the pendency of the said suit as Mr. D. D. Vyas, learned Counsel appearing for Respondents No. 1/1 and 1/3 contended before the Court that the said suit was even today pending in the trial Court. However, the petitioner has produced before this Court the certified copy of the order passed below Exhibit-22 in the said suit by the trial Court as back as 10th of December, 1986 and from such order it becomes clear that Regular Civil Suit No. 169 of 1983 was permitted to be withdrawm by the trial Court with liberty to the petitioner to file a fresh suit on the same cause of action on 3rd of September, 1987. In that view of the matter, the controversy attempted to be raised before this Court would not survive.