VITHOBA PANDURANG KOLI Vs. BABU MAHADEO LAVANE

JUDGEMENT

(1.) PETITIONER is owner of Municipal House No. 145, Chendani Koliwada, Thana and one room admeasuring 15' x 8' was let out to one Balkrishna at the monthly rent of Rs. 20/-. Balkrishna died in the year 1970 leaving behind his widow respondent No. 2 and brother Babu, respondent No. 1. The petitioner instituted suit for recovery of possession under Section 13(1)(hh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act"). The sub-section provides that the landlord shall be entitled to possession if the Court is satisfied that premises consists of not more than two floors and are reasonably and bonafide required to immedaite purpose of demolition and such demolition is for the purpose of erecting new building. The trial Court dismissed the suit as requirement of Section 13(3)(a) of the Rent Act was not complied with. Section 13(3-A) of the Rent Act provides that no decree of eviction shall be passed on the ground specified in Clause (hh) of sub-section (1) unless the landlord produces at the time of institution of suit certificate granted by the Tribunal sub-section (3-A) of the Rent Act. The petitioner in the present case admittedly did not produce such certificate and, therefore, the trial Court dismissed the suit.

(2.) IN appeal preferred by the petitioner to the District Court, the District Judge by judgment dated April 28, 1986 dismissed the appeal solely on the ground that respondent No. 2 is tenant of the premises and notice terminating tenancy was not served on respondent No. 2. Shri Ghaisas, learned counsel appearing for the petitioner, complains that lower appellate Court is wrong in holding that respondent No. 2 is tenant and not respondent No. 1. Shri Ghaisias submitted that respondent No. 2 had given in writing, inter alia stating, that respondent No. 1 should be accepted as tenant and accordingly rent bills were issued in the name of respondent No. 1 over several years. Shri Hombalkar, learned counsel appearing on behalf of respondents, on the other hand submitted that the alleged writing by respondent No. 2 is of very suspicious nature and the finding that respondent No. 2 is tenant and not respondent No. 1 cannot be faulted with. In my judgment it is not necessary to examine that question in the present proceedings and that question must be left for fresh determination in appropriate proceedings. The finding recorded by the District Judge that respondent No. 1 is tenant and not respondent No. 1 will not bind either of the parties in fresh proceedings that may be instituted for determination of that issue. I am adopting this course because whoever is the tenant of the premises the landlord is not entitled to recover possession under Section 13(1)(hh) of the Rent Act for failure to comply with requirement of Section 13(3-A) of the Act. In view of this undisputed position, no valid purpose would be served by examining the question as to who is the tenant of the suit premises in the present proceedings.

(3.) IT is made clear that the finding of the District Judge that defendant No. 2 is tenant is not binding on either parties and would be required to be decided afresh, if such occasion arises. Petition dismissed.