BHAGIRATHIBAI GANGADHAR VARTAK Vs. SUBHASH ANANT INAMDAR

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India assails the judgment and decree dated 7th February 1986 of the Judge of the Small Causes Court, Pune in Civil Suit No. 2170 of 1979 which directs the eviction of the petitioners and the appellate judgment and decree dated 13th January 1989 whereby the petitioners' appeal was dismissed.

(2.) THE afore -mentioned Civil Suit was instituted by Shri Subhash Anant Inamdar, since deceased against Smt. Bhagirathibai Gangadhar Vartake for the eviction of the latter and restoration of residential flat bearing No. 402, of Building No. 1443, Shukrawar Peth Pune. The ground invoked by deceased Subhash Inamder was that he needed Flat No. 402 (for short 'the demised premises) for his personal occupation as he has already retired from Defence Services (Air Force) on 30th June 1977. For that matter in his suit for eviction, he claimed the benefit of Section 13A(1) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, the Rent Act') as if he is in service in the Defence forces and for that matter did not specifically invoke the ground of eviction under Section 13(1)(g) of the Rent Act which is otherwise available to any landlord to evict his tenant and get possession of the premises in case the landlord proves that he reasonably and bonafidely requires the premises for his own use or that of his family.

(3.) IT is common ground that the trial Court dismissed the suit on 7th August 1982 on the hyper -technical ground that the original plaintiff Subhash Inamdar could not claim possession of the premises or eviction of the tenant under Section 13A(1) of the Rent Act because he was already a retired member of the Defence Services. Being aggrieved by the judgment and order, Inamdar preferred an appeal which he succeeded. In that, the appellate Court by its judgment dated 5th October 1985 held that the trial Court was in error in dismissing the suit merely because the original plaintiff had invoked Section 13A(1) of the Rent Act and remanded the Civil Suit proceedings to the trial Court for deciding afresh to find out whether the original plaintiff has made out a case for eviction of the tenant and restoration of the demised premises for his personal occupation vide Section 13(1)(g) of the Rent Act.