LAWS(BOM)-1998-9-15

SHANKARRAO DATTATRAYA KALYANKAR Vs. VISHWASRAO DADASAHEB PATIL

Decided On September 07, 1998
SHANKARRAO DATTATRAYA KALYANKAR Appellant
V/S
VISHWASRAO DADASAHEB PATIL Respondents

JUDGEMENT

(1.) THE concurrent judgment and decree passed by the two Courts below granting tenants eviction from the disputed premises on the ground that he had acquired vacant possession of a suitable accommodation is under challenge by the tenant.

(2.) FOR the sake of convenience, I intend to refer hereinafter the petitioner as tenant and the respondent as landlord. The landlord let out the premises in question which comprise of 3 rooms on the ground floor of S. T. No. 1272 in D Ward of Kolhapur Municipal Corporation on a monthly rent of Rs. 35/ -. Accordingly to the landlord, the tenant was liable to pay the electricity charges at the rate of Rs. 7/- per month. The tenant did not pay the rent for the months from September 1975 to 1977 and also did not pay the electricity charges. According to the landlord, the tenant also did not pay permitted increases for 3 years and therefore the tenants tenancy was terminated and the tenant was asked to make the payment of arrears of rent, electricity charges and permitted increases within one month. The landlord thereafter was constrained to file the suit for eviction. The eviction was sought in addition to the ground of default also on the ground that the tenant has acquired vacant suitable accommodation. It was pleaded that the tenant has purchased the property C. S. T. No. 2005/1-2-A of E Ward, Kolhapur. After the purchase of the said property, the tenant filed a suit for eviction against his tenant in the said premises and obtained possession of the said purchased property. The landlord also sought eviction on the ground of reasonable and bona fide necessity and it was pleaded that the premises in his occupation are not sufficient to meet his requirement. The tenant resisted the suit filed by the landlord and set up the case that he was not defaulter in payment of rent. The tenant denied that the rent of the disputed premises was Rs. 35/- p. m. or that he was required to pay separate electricity charges. As regards the property purchased by the tenant, he pleaded in the written statement that after the purchase of the said property, he filed a suit for eviction against his tenant and the tenant surrendered the possession of that property. The tenant set up the case that he had sold away the said property due to financial constraint. He also set up the case that the said property was not fit for his residence. The tenant denied the landlords need of the premises in question.

(3.) THE trial Court framed 11 issues and, after recording the evidence of the parties, held that in view of its finding that the landlord has failed to prove his necessity of the premises in question, the finding on the question of hardship is not required to be given. The trial Court found that the tenant was defaulter in payment of rent and that he had acquired alternative accommodation. Thus the trial Court vide its judgment and decree dated 11th November, 1982 decreed the plaintiffs suit on the ground of default and acquisition of suitable residence by the tenant. The judgment and decree passed by the trial Court was challenged by the tenant in appeal. The Second Additional District Judge, Kolhapur heard the appeal and vide its judgment and decree dated 28th September, 1987 reversed the finding of the trial Court relating to ground of default. The Appeal Court held that the tenant was not defaulter. However, as regards the ground under section 13 (1) (l) of the Rent Control Act, the Appeal Court held that the landlord has been able to prove that the tenant acquired vacant possession of suitable residence. Thus the Appeal Court maintained the decree for eviction on the ground of acquisition of fact position of suitable residence by the tenant.