VATSALABAI KISANSINGH Vs. S K GADGIL

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 29.3.1986 passed by the 3rd Addl. District Judge, Thane in Civil Appeal No.143 of 1982. That appeal was filed by the respondents, challenging the judgment and decree passed by the Joint Civil Judge, J.D, Kalyan dated 30.1.1982 in Civil Suit No.384 of 1976. That civil suit was filed by the petitioner claiming to be the owner of the suit premises, known as 'Nargundakar Building', situated at Shastri Nagar, Dombivli. It is further alleged that the respondent No.1 S.K.Gadgil is a tenant of two rooms tenament in the said building. The landlord sought decree of eviction against the tenant on several grounds, including the ground of unlawful subletting of the suit premises by the tenant to defendant No.2 Vasant as also acquisition of the suitable residence by the tenant defendant No.1 Gadgil. The trial Court found in favour of the landlord on the ground of acquisition of the suitable residence as also on the ground of unlawful subletting. As a result the suit filed by the landlord for a decree of eviction was decreed in favour of the landlord and the tenant was directed to vacate the suit premises. In the appeal filed by the defendants, however, findings recorded by the trial Court were reversed by the appellate court and the appeal was allowed and the judgment and decree passed by the trial Court was set aside and the suit of the petitioner was dismissed. In this petition filed by the landlord, therefore, it is a judgment of the appellate Court which is challenged.

(2.) IN so far as the ground of subletting is concerned, the learned counsel for the petitioner submitted at the out set that he is not pressing the ground that the premises have been unlawfully sublet by the defendant No.1 to the defendant No.2. Therefore, he is only pressing the ground of acquisition of a suitable residence by the tenant. He submitted that it is an admitted position that the defendant No.1 Gadgil has purchased a flat in Everest co-operative Housing Society at Dombivali and that also received possession of the flat. In the submission of the learned counsel, therefore the defence raised by the tenant purchased that flat but it is his brother Raghunath who has purchased that flat is not correct. In fact, the purchase was made in the name of defendant No.1 Gadgil because he is an employee of the Indian Oil Corporation and as an employee of the Indian Oil Corporation he has loan facility available and therefore, by availing that loan facility he purchased that flat for his brother Raghunath, though in the name of the defendant No.1. The learned counsel submitted that this defence ought to have been rejected by the Courts below, specially by the appellate court as a dis-honest defence. The learned counsel in nutshell submitted that the defence was that though the defendant No.1 who is an employee of the Indian Oil Corporation did not want to purchase the flat for himself, but he used the loan facility made available to him by his employer at a concessional rate of interest for acquiring the property for his brother. The learned counsel submitted that it is clear from the record that not only that flat has been purchased in the name of the defendant No.1 but the entire consideration for purchasing the flat has also been paid by the defendant No.1. In the submission of the learned counsel the defence put up by the defendant No.1 is not only dis-honest but also false, because at the relevant time his brother Raghunath was posted at Nasik and therefore, there was no question of his occupying flat at Dombivali.

(3.) IF the record of the case is perused in the light of these rival submissions, it reveals that it is an admitted position that the flat is purchased by the defendant No.1 in his own name and the consideration for the purchase has also been paid by the defendant No.1. The defence that is put up by the defendant has been rightly described by the learned counsel for the petitioner as dis-honest. It was the case of the defendant No.1 that because his employer Indian Oil Corporation advanced him loan at the rate of interest at Rs.5.1/2 per cent for acquiring flat by its employee though he never wanted to have the flat and it was only for his brother he used the loan facility for acquiring that flat for his brother. It is further to be seen here that as that flat stands in the name of the defendant No.1 and as the consideration has also been paid by him, it is he who acquired vacant possession of the flat. After acquiring the possession of the flat what the defendant does with the flat, is not required to be considered while considering the case under section 13(1)(1) of the Bombay Rent Act. All that is required to be considered is whether the defendant has acquired vacant possession of the suitable residence. As the flat is in the name of the defendant No.1 and that he has paid full consideration, it is obvious that it is the defendant No.1 who will receive the possession of the flat. If any body receives the possession it is always for the defendant No.1 and he would be in possession on behalf of the defendant No.1. The defence put up by the tenant, therefore, ought to have been rejected out of hand by the appellate Court. In so far as the submission made by the learned counsel for the petitioner that a new flat was an additional accommodation and not an alternate accommodation is concerned, I find that there is no basis for this submission on the record as it was never the case of the defendant No.1 in the written statement nor in his deposition. In my opinion, therefore, the appellate Court was at all not justified in disturbing the findings recorded by the trial Court on this ground.