KUSUMLATA MANIKCHAND AGARWAL Vs. RUSI FRAMROOZ BOOCHA

JUDGEMENT

(1.) BY this petition under article 227 of the Constitution of India, the petitioners challenge the order dated 9.4.1986 passed by the Addl. Dist. Judge, Pune in Civil Appeal No.496 of 1985. That appeal was filed by the respondent challenging the judgment and decree dt. 28.2.1985 passed by the Addl.Judge Small Causes Court Pune in Civil Suit No.2846 of 1980. That civil suit was filed by petitioners claiming that they are owners of house no.11 Todiwala road, Pune and that the respondents are tenants of residential premises in the said house. The landlord claimed decree of eviction against the tenant on the ground that the tenant has acquired suitable residence. The trial Court recorded in favour of the landlord and decreed the suit in their favour and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, however, the appellate Court reversed findings recorded by the trial Court, the appellate Court set aside the judgment and decree passed by the trial Court and dismissed the suit filed by the landlords. In the present petition filed by the landlords therefore, it is the judgment and order of the appellate Court which is challenged.

(2.) THE learned counsel appearing for the petitioner submitted that it is an admitted position between the parties that in the year 1978 the tenant has purchased the flat in a building known as 'wonder land'. The learned counsel submitted that as the trial Court found on the basis of evidence on record that flat purchased by the tenant is capable of being used for residential purposes, the trial Court passed a decree of eviction against the tenant on the ground that he has acquired the suitable residence. According to the learned counsel, the only defence raised was that the tenant is using that flat for running tailoring classes for his wife. This plea was negatived by the trial Court by observing that the purpose for which the tenant is using the newly acquired premises, is not relevant if the landlord establishes that the new premises can be used for the purpose of residence. In the submission of the learned counsel therefore, the appellate Court had no justification to disturb that finding recorded by the trial Court. The learned counsel further submitted that findings recorded by the appellate Court that because the petitioner had transferred by sale deed dt.12.7.1982, the suits filed by them are not tenable, are absolutely wrong in asmuch as there is no sale deed executed by the petitioners and as no such ground was raised in the memorandum of appeal by the tenant, it could not have been considered by the appellate Court.

(3.) NOW , if the record of the case is perused in the light of these rival submissions, it is clear that there is no dispute between the parties that the tenant has in his own name, acquired a flat in a building called as 'wonder-land'. There is no dispute between the parties that in the flat at wonderland there is adequate accommodation for the residence of the tenant. The only dispute that was raised by the tenant was that because the tenant was using that flat not for residence but for the tailoring classes of his wife, according to the tenant that cannot be termed as alternate residence. In my opinion, the purpose for which the tenant is using the new premises is not relevant. What is relevant is are the premises capable of being used for residence. It is clear from the record that 'wonder-land' premises are residential premises that can be conveniently used for residence and therefore, there is no force in the defence raised by the tenant. In my opinion, the reasonings given by the appellate Court that because of the language used in section 13(1)(c), the suit has to be filed by the landlord immediately after the acquisition of alternate residence by the tenant, in my opinion, is without any basis or substance. No such inference can be drawn from the provisions of section 13(1)(c) of the Act. The suit obviously has to be filed within a period of limitation provided by the Limitation Act for decree of possession by the landlord against the tenant. The findings recorded by the appellate Court, therefore, in that regard is patently erroneous.