LAWS(BOM)-1997-2-122

S D LIMAYE Vs. GOPAL VISHWANATH KALKAR

Decided On February 27, 1997
S D Limaye Appellant
V/S
Gopal Vishwanath Kalkar Respondents

JUDGEMENT

(1.) THIS is a petition filed under Article 227 of the constitution of India challenging the order dated 12.1.1983 passed by the District Judge, Pune in Civil Appeal No. 463 of 1981. By that order the learned District Judge has allowed the appeal filed by the respondents, challenging the order date 31.12.1980 passed by the IInd Additional Judge, Small Cause Court, Pune in Civil Suit no. 1291 of 1976, dismissing the Civil Suit.

(2.) CIVIL Suit no.1291 of 1976 was filed by the predecessor-in-title of the present respondent by name Gopal Vishwanath Kelkar, claiming that the petitioner is a tenant of four rooms on the first floor. The plaintiff sought a decree of eviction against the tenant on the ground that he bonafide requires the suit premises for accommodation of his own family. The trial court dismissed the suit. The landlord carried an Appeal to the Appellate court. The Appellate passed a partial decree in favour of the landlord. A decree of possession was passed in favour of the landlord for one room. It is this judgment of the Appellate Court, which is impugned in this petition, When the petition was called for final hearing, Shri Apte, the learned counsel for the petitioner points out to me an affidavit dated 5.11.1996 sworn by the petitioner. The petitioner stated that an event which is having direct bearing on the controvercy of the case has taken place. It is stated in the affidavit that an agreement of sale dated 30th March 1987 has been executed by the respondents in favour of one M/s. Prabin Guptey and Associates for consideration of Rs. 5,33,000/- (Rupees five lacs thirty three thousand only) plus a flat admeasuring 2705 sq.ft. built up is valued at Rs. 8,11,500/- (Rs. eight lacs eleven thousand five hundred only). The petitioner has further stated that the purchasers M/s. Prabin Gupta and Associates have also entered into the agreement dated 9th May 1989 with the wife of the petitioner. By the agreement, the said purchaser has agreed to sell one flat bearing no. 17 situated on the 2nd floor, admeasuring about 630 sq.ft. for consideration of Rs. 35,000/- (Rupees thirty five thousand only) to the petitioner's wife. It is further stated in the affidavit that in addition to the ground floor of the existing building which is in possession of the respondent- landlords, the landlords have also obtained possession of the vacant premises from the new construction made as per the agreement between the landlords and Messrs Pravin Guptey & Associates. It is further stated that however, the wife of the petitioner is yet to get possession of her flat. It is clear from the endorsement on the affidavit dated 5.11.1996 that the copy of the affidavit has been handed over to the learned counsel for the respondents on 5.11.96 itself. No counter affidavit, disputing the averments made in the said affidavit, has been filed, though the matter is being taken up for final hearing after more than three months of the filing of the said affidavit dated 5.11.1996.

(3.) IN the result, therefore, the present petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a) of the petition with no order as to costs.