JOSTNA LAXMIDAS PUJARA Vs. KAILASBHAI SHUKARAM TIWARI

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the 3rd Additional District Judge, Thane dated September 14, 1989 in Civil Appeal No. 186 of 1987.

(2.) THE respondent is the landlady in respect of the house property bearing Ali No. 36, House No. 30 (1) situated at Kalyan. The petitioner No. 1 was inducted as a tenant in the suit premises on monthly rent of Rs. 92/- including taxes. The respondent issued notice dated January 5, 1982 demanding arrears of rent since 1-9-1981. The respondent thereafter instituted a suit before the Court of the Joint Civil Judge, J. D. , Kalyan being Regular Civil Suit No. 137 of 1982 against the petitioners on the grounds of default section 12. Petitioner No. 1 original defendant No. 1 (tenant) having acquired alternative and suitable accommodation for her residence (section 13 (1) (1)), unlawful sub-letting of the suit premises in favour of petitioner No. 2 (section 13 (1) (e)), non user of the suit premises for a period of six months preceding the date of institution of the suit (section 13 (1) (k)), and for bona fide and personal requirement (section 13 (1) (g) ). The trial Court decreed the suit in favour of the respondent only on the grounds of unlawful sub-letting (section 13 (1) (e)), and non user (section 13 (1) (k) ). The trial Court negatived the rest of the grounds and answered the same against the respondent. Against the said judgment the petitioners carried the matter in appeal before the IIIrd Additional District Judge, Thane being Civil Appeal No. 196 of 1987. The Appellate Court by the impugned order dated September 14, 1989 has confirmed the decree passed by the trial Court only on the abovesaid two grounds. In the circumstances, the petitioners have filed this writ petition challenging the decree for possession passed by the two courts below on the ground of non user and unlawful sub-letting.

(3.) IN so far as the aforesaid two grounds are concerned, the respondent asserts that the demised premises were let out to the petitioner No. 1, however, the petitioner No. 1 after having acquired alternative suitable residence at Borivali shifted with her belongings to the newly acquired place and, while doing so, unlawfully inducted the petitioner No. 2 in the suit premises without the written consent or permission of the respondent landlady. On the other hand, the petitioners denied that she had moved out of the suit premises as alleged. The petitioners further assert that the petitioner No. 2 was none other than her husbands brother; and, as such he was the family member staying along with the tenants family. On the basis of this stand, the ground of unlawful sub-letting was categorically denied by the petitioners. In this context it would be appropriate to refer to the relevant pleadings of the parties. In para 3 of the plaint the respondent asserts that the petitioner No. 1 vacated the demised premises sometime in April 1981 along with her belongings and shifted in the newly acquired premises at Borivali as described in the cause title of the plaint. It is also asserted that the accommodation secured by the petitioner No. 1 tenant at Borivali is sufficient and suitable for her residence and that the demised premises are no longer required for her accommodation. It is further asserted that the petitioner No. 1 has illegally and, without the consent of the respondent, inducted the petitioner No. 2 and transferred the demised premises in his favour and was profiteering by taking higher rent from the petitioner No. 2. It is further asserted in the same para that, the petitioner No. 1 without any sufficient cause has not used the suit premises continuously for a period of six months preceding the date of institution of the suit for the purpose for which it was let out to her but has illegally inducted the petitioner No. 2 as a sub-tenant. The petitioners denied the aforesaid assertions made in the plaint by filing written statement before the trial Court. The respondent examined three witnesses in support of his case; whereas the petitioners examined Laxmidas Harjivandas Pujara, husband of the petitioner No. 1, as well as petitioner No. 2. On analysing the evidence on record, the trial Court, as aforesaid, decreed the suit on the ground of non user of the suit premises and unlawful sub-letting. The Appellate Court has affirmed the findings returned by the trial Court on the said two grounds.