MANDE DPENHA Vs. SAPAL FARMROZE PRINTERS SINCE DECEASED

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the judgment and decree passed by the Small Causes Court of Bombay dated 24th December, 1985 in Appeal No. 238 of 1975.

(2.) THE premises in question is on the second floor of building known as Maudestan and garage situated at 194, DMonto Park Road, Bandra, Bombay 50. The petitioners are the landlords in respect of the suit premises. The respondents were inducted in the suit premises as monthly tenants pursuant to the lease agreement dated 8th May, 1951 under which they were asked to erect second floor on the existing building and the garage and the compound wall at the costs of Rs. 21,500/-; and the respondents after constructing the said portion on the suit property started residing there as tenants. The petitioners instituted suit against the respondents some time in November, 1965 being R. A. E. Suit No. 714 of 1965 before the Small Causes Court, Bombay for possession of the suit premises on the ground of change of user, unauthorised structural alterations, non-payment of water charges, education cess and nuisance and annoyance etc. While that suit was pending, sometime in July 1970, the petitioners took out application for amendment of the plaint so as to add one more ground for eviction being tenants having acquired suitable premises for residence. By that application, the petitioners wanted to add following para 8-A in the plaint which reads as follows: The plaintiffs state that the defendants have after coming into operation of the Rent Act built, acquired vacant possession of or been allotted a suitable residence being 4 flats on the 2nd floor of Suraj Co-operative Housing Society Ltd. , Pandya Lane, Juhu, Santacruz, Bombay. That application was allowed on 7-7-1970 and the plaint stood amended. The respondents filed additional written statement but plainly denied the allegation that they have been allotted any premises, without taking any specific stand with regard to that ground. Both the sides adduced oral as well as documentary evidence on record. The trial Court decreed the suit in favour of the petitioners on the ground of nuisance and change of user only. The other grounds were negatived by the trial Court. In so far as the ground referred to above under section 13 (1) (l) of the Act is concerned, the trial Court has noted that no doubt, it is admitted position that three flats were allotted and acquired by the respondents some time between July and August 1964 but before the application for amendment of the plaint was filed, the respondents had already sold those flats on 31st August, 1967. In this view of the matter, the trial Court took the view that when the application for amendment of plaint for pressing the ground under section 13 (1) (l) was moved, on that date the respondents were not in possession of any suitable residence else whereas the three flats allotted to them were already disposed of and not in their possession at the relevant time. The respondents carried the matter in appeal before the Appellate Bench of the Small Causes Court being Appeal No. 238 of 1975 assailing the conclusion reached by the trial Court with regard to the ground of nuisance and change of user. In that appeal the petitioners contended before the Appellate Bench that they were entitled to decree also under section 13 (1) (l) of the Act. In view of the submissions made across the Bar, the Appellate Court framed as many as 8 points for consideration which included the question as to whether the landlords have duly proved that the tenants acquired possession of suitable residence as contended by them. The Appellate Court reversed the finding and conclusion in so far as the two grounds which had found favour with the trial Court. In so far as the ground under section 13 (1) (l) is concerned, the Appellate Court considered the same in paras 27 to 29 of the impugned judgment and has affirmed the aforesaid view taken by the trial Court. The Appellate Court in para 29 has summed up the position as follows:

(3.) ALTHOUGH the respondents have been served and they have entered their appearance through Advocate, none appeared when the matter is called out. This petition pertains to year 1986 and the suit for possession of year 1965. In the circumstances, I have no option but to proceed in the matter. I have examined the records and the decisions of the courts below with the assistance of the Counsel for the petitioners.