ARUN KESHAV GOKHALE Vs. AVINASH KRISHNAJI BINIWALE

JUDGEMENT

(1.) Counsel for the partner heard.

(2.) The two courts below have recorded a concurrent finding that the petitioner-defendant No. 1 acquired a plot of the area of 3,400 squares feet and in the year 1975-76 he constructed a building with all amenities required for residing therein. The constructed area is to the extent of 3,400 square feet. The petitioner is having his coal depot and offices in a portion of the building and the remaining portion of the building he has been using as a mangal karyalaya, that is, he is giving that portion of the building on hire to the person who requires the premises for marriage ceremonies. Both the courts have found that taking into consideration the fact that the family of the petitioner consists of only five members including his mother wife and two children, a portion of the building constructed by him can very well be used by him for residence of himself and his family members and as such the provisions of section 13(1)(I) of the Bombay Rents. Hotel and Lodging House Rates Control Act, 1947 (hereinafter for the sake of brevity referred to as "the Bombay Rent Act"), are attracted and the respondents Nos. 1 to 7 plaintiffs were entitled to claim possession of the suit premises which are occupied by the petitioner as their tenant.

(3.) The learned Counsel for the petitioner-defendant No. 1 contends that the respondents Nos. 1 to 7 plaintiffs in their plaint pleaded acquisition of accommodation by the defendants No. 1 only to show that no hardship would be caused to him in case a decree for eviction is passed against him. He submits that acquisition of accommodation as a suitable residence as required by section 13(1)(I) of the Bombay Rent Act was never pleaded by the plaintiffs and, therefore, both the Courts were not right in granting a decree for eviction on the ground provided in the said section 13(1)(I). He submits that the petitioner has acquired the plot of the area of 3400 square feet by a purchase and on that plot in some portion he has been continuing his ancestral business of charcoal and in some portion he has constructed a building for running a mangal karyalaya, and that building is being used by him for the mangal karyalaya since beginning, though it has been taxed for commercial purpose by the Municipal Corporation for the year 1980. He submits that simply because the building the petitioner has constructed can be used by him for his residence, he cannot be considered to have acquired a building suitable for residence under the said section 13(1)(I). He submits that from the time the building is ready for use it has never been used for residential purposes and the plaintiffs or any member of their families never shifted to that building for residence and, therefore, that building cannot be taken into consideration and on the basis on the basis of construction of that building the plaintiffs could not be granted a decree for eviction of the suit premises under the said section 13(1)(I).