SUBHASH K THAKKAR Vs. RUSHAD DINSHAW

JUDGEMENT

(1.) This Civil Revision Application filed under section 115 of the Civil Procedure Code brings in question the legality and correctness of the Decree of eviction passed by the Competent Authority, konkan Division, Mumbai on 2-8-1996 in Case No. 1 of 1994 arising out of an application submitted by the joint landlords under section 13a (1) of the Bombay rents, Hotels and Lodging House Rates (Control) Act, 1947 (for short "the bombay Rent Act").

(2.) The brief facts, not in dispute, are as under :- one Mrs. Piloo Irani, who was a member and share holder of Bakhtavar co-operative Housing Society, was the owner of Flat No. 72 located on the 7th floor of the building known as "sherman", situated in the said Co-operative society and admeasuring about 1235 sq. ft. By an agreement of lease dated 1-8- 1967 the said flat was leased out to the petitioners, who are real brothers, on a monthly rent of Rs. 900/ -. On the same day another agreement was executed between the petitioner No. 1 and the landlady in respect of furniture, fixtures and fittings on payment of Rs. 400/- per month. The landlady instituted RAE Suit No. 387/1277 of 1984, inter alia, on the following grounds :- (a) Breaches of terms and conditions of tenancy. (b) Unauthorised alterations/additions. (c) Tenant acquiring suitable accommodation. (d) Bona fide requirements of landlady. (e) Default in payment of rent. In paras 7 and 8 of the plaint the landlady had explained that the suit flat was required for her son - a Civil Engineer who wanted to start his career in construction along with his Uncle - a leading builder in Mumbai and the said son did not have any alternative accommodation in Mumbai or anywhere else. Her husband, who was a Government Contractor, had to come to Mumbai for work and as the plaintiff or any of her family members did not have any accommodation in Mumbai, they were living with their relations while in mumbai. Under all these circumstances, the landlady required the vacant and peaceful possession of the suit flat. This suit came to be dismissed on 12-9-1996.

(3.) It appears that on or about 14-6-1990 Mrs. Irani executed Deed of Gift in favour of the present respondent Nos. 1 to 3 and gifted the suit flat to them jointly. The value of the suit flat in the said Gift Deed was shown as Rs. 39,300/- and it was executed not by the landlady but by her son as the Constituted attorney. Respondent No. 1, who was at the relevant time a member of the indian Air Force, is the husband of respondent No. 3 and respondent Nos. 2 and 3 are the daughters of the original landlady. While RAE Suit No. 387/1277 of 1984 was pending, the respondent No. 1 applied to his Competent Authority and a certificate came to be issued on 15-7-1992 certifying that he was the owner of the suit premises and had no other alternative suitable accommodation for his own residence in the city of Mumbai. On the basis of this certificate, respondents submitted an application under section 13a (1) of the Bombay Rent Act before the Competent Authority under the said Act, on or about 17-2-1993, which came to be registered as Case No. 1 of 1994. Needless to mention the certificate issued by the Air Force Officer on 15-7-1992 in favour of the respondent No. 1 was based on the Gift Deed dated 14-6-1990, transferring the suit flat in favour of respondent Nos. 1 to 3 jointly. The landlady died on 7-1-1994 and the share certificates in respect of the suit flat came to be transferred in favour of respondent Nos. 1 to 3 on 27-4-1994. On 14-1-1994 the respondent No. 1 had applied for premature retirement and he claimed to have retired from the Air force on 13-1-1995. On 21-2-1992 the petitioners made an application for leave to contest the application filed under section 13a (1) of the Bombay Rent Act. On 10-10-1994 respondent Nos. 1 to 3 submitted an application to the superintendent of Stamps offering to pay deficit stamp duty and on-21-10-1994 they submitted an application for amendment of the plaint which was allowed by the Competent Authority on the same day. The deficit stamp duty was claimed to have been paid on 14-12-1994. In the pending suit before the Small Causes Court at Mumbai, respondent Nos. 1 to 3 submitted an application on 24-4-1995 for being impleaded as the plaintiffs in place of Mrs. Piloo Irani and as noted earlier, the same suit came to be dismissed on 12-9-1996 i. e. prior to the date where the impugned order came to be passed by the Competent Authority allowing the application for eviction. The operative part of the impugned Decree reads as under:- "application of applicants No. 1, 2, 3 is hereby allowed. The respondents no. 1 and 2 be evicted from the suit premises under section 13a (1) of the Bombay Rent Act, 1947. The respondent Nos. 1 and 2 shall hand over the vacant and peaceful possession of the suit premises i. e. Flat No. 72 on 7th floor, Unit 'sherman' of Bakhtawar Co-op. Hsg. Society Ltd. situated at 222, Narayan Dabholkar Road, Bombay 400 006 to the applicants No. 1 to 3 within 30 days from the date of order otherwise the applicant's No. 1 to 3 be put in possession of the suit premises by evicting the respondent Nos. 1 and 2. The respondent Nos. 1 and 2 are hereby directed to pay Rs. 2250/- per month as a mesne profits from the date of application i. e. 5-1-1994 till they hand over possession of the suit premises to the applicants. "