KUSUM SUDHAKAR VADKE Vs. NARAHARI VISHNU LANKE

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 11.1.1985 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No. 610/1975. That appeal was filed by the respondent challenging the order dated 16.9.1975 passed by the Judge, Small Causes Court at Bombay, in R.A.E. Suit No. 497/1968. That suit was also filed by the respondent. The respondent claimed in the plaint that he is owner of the building known as Lanke Chawl at 6-A, Dhas Wadi, Thakurdwar, Bombay, of which one Sudhakar Wadke, of whom the present petitioners are the legal representatives, was the tenant. The landlord sought a decree of eviction against the tenant on several grounds, including the ground that the tenant has acquired suitable residence. The trial Court, however, recorded findings against the landlord on all the grounds and dismissed the suit. In the appeal filed by the landlord, the findings by the trial Court on 3 grounds were challenged, namely, (1) that the tenant is not ready and willing to pay the rent, (2) that the tenant has kept the suit premises unused and locked for a period of more than 6 months immediately preceding the filing of the suit, and (3) that the tenant has secured suitable accommodation. The appellate Court, however, confirmed the findings recorded by the trial Court on the first two grounds, namely, default in payment of rent and non-user of the premises. However, the appellate Court reversed the finding recorded by the trial Court on the ground of acquisition of suitable accommodation by the tenant and recorded a finding that the tenant had secured a suitable accommodation, inasmuch as the deceased tenant Sudhakar Wadke was allotted government quarters being Block No. 10, Buildings 9 to 16, at Sion Koliwada, Bombay 20. As a result, the appeal was allowed and the suit for a decree of eviction against the tenant filed by the respondent-landlord stood decreed and the tenant was directed to vacate the suit premises. Therefore, in this petition what is challenged is the finding recorded by the appellate Court on the ground of acquisition of suitable accommodation by the tenant.

(2.) WHEN the petition was called for final hearing, none appeared for the petitioners and none appeared for the respondent. However, I have gone through the record of the case. It is clear from the record that to the allegation in the plaint that the tenant has secured suitable accommodation, the tenant had submitted a reply and merely denied that he has secured any other accommodation. However, in the deposition of his widow, she admitted that a two-room tenement was allotted to her deceased husband by the Central Government with whom he was in service. She, however, stated that the family of the deceased tenant was very big and, therefore, even while the tenant shifted to the new premises with part of his family, his wife and his sons continued to reside in the suit premises and that after the death of the tenant the Government quarters allotted to the tenant was vacated and everybody is now residing in the suit premises. The trial Court had considered this version put up by the widow of the original tenant, accepted it and said that the two-room tenement was allotted to the deceased tenant by his employer and, therefore, it does not amount to suitable alternate accommodation considering the size of the family of the deceased tenant. Perusal of the judgment of the appellate Court, however, shows that the appellate Court has held that this evidence led on behalf of the tenants cannot be taken into consideration because there are no pleadings to that effect in the written statement. In my opinion, the finding recorded by the appellate Court in this regard is absolutely wrong. It is now a settled law that if a party allows the other party to lead evidence although there are no pleadings in support of that evidence on record in that regard and does not raise any objection, then that party is estopped from contending that the Court should not read that evidence because there are no pleadings to that effect. In my opinion the landlord having allowed the tenant to lead evidence regarding the circumstances in which the other premises were occupied and the family members who had shifted to those premises as also the family members who remained in the suit premises and about vacation of the government quarters after the death of the tenant, the landlord was not justified in contending that the Court should not look in that evidence because there are no pleadings in the written statement. I find that the appellate Court has reversed the finding recorded by the trial Court principally on this ground. As observed above, the evidence led by the tenant in this regard was to be looked into and considered which was done by the trial Court and, therefore, there was no justification for the appellate Court to reverse the finding recorded by the trial Court. In my opinion, the most significant aspect to be considered was that it was the original tenant Sudhakar who was in the employment of the Central Government and that it is an admitted position that he died even before the suit was filed and obviously, therefore, the defendants, against whom the suit was filed, not being entitled to the accommodation from the Central Government, were not entitled to that residence. Thus, on the date on which the civil suit was filed, the alternate accommodation was not available to the tenants and therefore, a decree of eviction could not have been passed against the defendants on the ground of acquisition of accommodation which was not available to them. In this view of the matter, therefore, in my opinion, the appellate Court committed a patent error of law in reversing the finding recorded by the trial Court.