Bombay High Court
Munawar Abdul Kadar Baig vs Smt. Jainabai Najamuddin(Deleted) And … on 10 March, 2026
2026:BHC-AS:11953
CRA-17-2014 (J) C4.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.17 OF 2014
ALONGWITH
INTERIM APPLICATION NO.7537 OF 2025
IN
CIVIL REVISION APPLICATION NO.17 OF 2014
1. Noor Abdul Kadar Baig, (Deceased deleted) ]
2. Munawar Abdul Kadar Baig ]
House No.139T, Juhu Tara, ]
Santacruz (West), Mumbai - 400 049. ] Applicant
[Original Plaintiffs]
VERSUS
1. Smt. Jainibai Najamuddin, (Deceased deleted)]
2. Smt. Mumtaz Shahanwaz, ]
(since deceased through Legal Heirs)
] Respondents
[Orig. Defendants]
2(A). Shahnawaz Sakharwala (Deceased deleted) ]
2(B). Zohra Halala ]
Age: 34 years, Occ. ]
Digitally signed
by SHAILAJA
SHAILAJA SHRIKANT residing at Cluster 39, ]
SHRIKANT HALKUDE
HALKUDE Date: Villa No.15, Junera Islands ]
2026.03.11
18:34:30 +0530
Dubai UAE. ]
2(C) Jumana Kapadia ]
Age 31 years, Occ. ]
residing at : Barford, ]
Hadley Green, Barney ]
London 4PP5NP ] Respondents
***
Mr. Kunal Bhanage a/w Mr. Vasim Siddiqui a/w Ms. Priyanka Acharya
i/b Mr. Akshay Pawar, for the Applicnat.
Mr. Shanay Shah a/w Mr. Kuber Wagle i/b Mr. Purazar Fouzdar, for
Respondent Nos.2(A) to 2 (C).
***
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CORAM : M.M. SATHAYE, J.
RESERVED ON : 21.11.2025
PRONOUNCED ON : 10.03.2026.
(Through V.C.)
JUDGMENT :
1. By this Civil Revision Application, filed under section 115 of
the Code of Civil Procedure, 1908 (‘CPC‘ for short), the Revision-
Applicant/original Plaintiff No.2 is challenging the the Judgment and
Decree dated 11.10.2013 passed in A-1 Appeal No.79/2011
alongwith Cross Objection No.2/2012 by the Appellate Bench of
Small Causes Court at Mumbai (Bandra). By the said impugned
Judgment and Decree, the Appeal filed by the Defendants/Tenants
challenging the decree of eviction was allowed and the Cross
Objection filed by the Landlord challenging adverse findings, was
rejected and the Judgment and Decree passed by Small Causes Court,
Mumbai in R.A.E Suit No.400/1222 of 1985 (granting eviction) was
set aside and the said suit was dismissed with costs.
2. The Revision-Applicant is original Plaintiff-Landlord and
Respondents are legal heirs of original Defendants-Tenants.
3. Few facts shorn of unnecessary details are as under :
3.1. The Plaintiff-Landlord filed the said suit seeking eviction of the
Defendants-Tenants from the suit flat which is Flat No.5, Second
Floor, House No.139-T, Juhu Tara, Santacruz (West), Mumbai 400
049 which was let out on monthly rent of about Rs.520/- per month.
The said suit was filed under the provisions of the Bombay Rents,
Hotel and Lodgings House Rates Control Act, 1947 (‘Bombay Rent
Act’ for short) on the grounds of bona fide requirement, nuisance and
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annoyance, tenant committing acts contrary to the provisions of
section 108 (o) of the Transfer of Property Act, 1882 and erection of
permanent structure, acquisition of suitable residence, non-user and
unlawful sub-letting i.e under section 13 (1) (a), 13 (1) (b),13 (1)
(c), 13 (1) (e), 13 (1) (g), 13 (1) (k), 13 (1) (l) of Bombay Rent Act.
3.2. Plaintiff No.2-Landlord examined himself as P.W.1. The
Plaintiffs examined their Architect as P.W.2, Court Commissioner as
P.W.3, an employee working in the Office of Assistant Commissioner
of Police and Public Information Officer as P.W.4 and Officer of
Santacruz Police Station as P.W.5. The Defendants-tenants examined
D.W.1 – son of Defendant No.1 as her Constituted Attorney. They also
examined their Chartered Structural Engineer as D.W.2 and Assistant
Manager working in Reliance Infrastructure as D.W.3.
3.3. The learned Trial Judge, on appreciation of evidence found
that the grounds of bona-fide requirement, non-user and unlawful
sub-letting were not proved by the landlord. However, the learned
Trial Judge found that the grounds of nuisance and annoyance,
tenant committing acts contrary to the provisions of section 108 (o)
of the Transfer of Property Act and acquisition of suitable alternate
residence are proved by the landlords. Therefore, the suit was
decreed directing the Respondents to vacate the suit premises. The
Defendants-Tenants filed the said Appeal in which the Plaintiff-
Landlord filed Cross Objection, challenging adverse findings given by
the Trial Court.
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3.4. The Appellate Bench of the Small Causes Court, on re-
appreciation of evidence, confirmed the findings about bona fide
requirement, non-user and unlawful sub-letting. However, the
Appellate Bench reversed finding of the Trial Court on the grounds of
nuisance and annoyance, additions and alterations of permanent
nature and acquisition of suitable residence and therefore decree of
eviction was set aside thereby dismissing the suit entirely.
3.5. In these circumstances, the Plaintiff-Landlord filed the present
Revision Application. During pendency of the Revision Application,
legal heirs of Respondent No.2 were brought on record.
4. Affidavit-in-reply has been filed on behalf of Respondent
No.2(B) and 2(C) opposing the Civil Revision Application.
SUBMISSIONS
5. Learned counsel Mr. Bhanage appearing for the Revision-
Applicant-Landlord submitted as under.
5.1. That the Appellate Court was not justified in reversing the
grounds of nuisance and annoyance, additions and alterations of
permanent nature as well as acquisition of suitable residence. That
though additions and alterations of permanent nature are
acknowledged by the Appellate Court in the course of the judgment,
the aspect of beneficial enjoyment is stretched to such an extent that
the said ground is almost made impossible for the Landlord to prove.
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5.2. Inviting the Court’s attention to oral evidence of various
witnesses, it is submitted that the Defendants-Tenants have made
changes in the suit flat to the extent of changing location of the
kitchen, constructing a WC in balcony and removing internal wall.
Kitchen was shifted and new bedroom was created. That such large
scale alteration in suit-flat cannot be held as necessary for beneficial
enjoyment. That these alterations are admittedly done without
permission of the Landlord or the local Municipal Corporation.
5.3. He further submitted that flat purchased by husband of
Defendant No.1 at Pune amounts to acquisition of suitable residence
by the tenant and therefore, eviction decree on that ground also must
follow. That evidence on record indicates that Defendant No.1 was
staying in Pune as of right in the premises of her husband which is
clearly established by her name appearing in Pune Municipal
Corporation’s voters list of 1992. That Defendant No.1 did not stay in
the suit premises for twenty years and was staying at Pune. That on
her visit to Mumbai, she stayed with her other son-Salim at a
different premises.
5.4. That the tenants are keeping potted plants on the parapet on
the western side of the suit-flat and due to it’s constant watering,
there is serious seepage on the first floor. Also the tenant has
constructed, an elevated concrete strip at the entrance of the suit
building without permission of the landlord which results into
accumulation of rain water at the entry creating unhygienic and
slippery hazard for elderly people and, therefore, eviction decree on
the ground of nuisance and annoyance also must follow.
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5.5. That though jurisdiction under section 115 of the CPC is
limited, High Court can certainly interfere in case the impugned
judgment is found to be based on misreading of evidence or ignoring
the evidence and there is legal infirmity resulting into perverse
finding. That in any case, admitted alterations and additions carried
out by the Defendants – Tenants could not have been ignored by the
Appellate Court.
5.6. That reason given by the Appellate Court that additions and
alterations or concrete pathway at the entry of the building can be
removed / reversed, can not be ground to permit the tenant to do it.
5.7. Learned counsel for the Revision-Applicant relied on many
judgments/case-laws including the following in support of his case:
(i) Neelakantan And Others Vs. Mallika Begum [(2002) 2 SCC
440];
(ii) S.F. Engineer Vs. Metal Box India Limited and another
[(2014) 6 SCC 780];
(iii) Najama Gulab Bagwan and others Vs. Laxmibai Rangildas
Gujar (since deceased by her heirs and Lrs) Vinodkumar
Rangildas Gujar and others [2006(1) Mh.L.J., 273];
(iv) Ramrao Balaji Kothare and others Vs. Lila, widow of Dr. Y.
Narayan Ajinkya and others [1998 Bom. R. C. 299];
(v) Manorama Gopal Langde Vs. Somnath Dagdu Rane [2006
(1) Bom. C.R. 458];
(vi) Jinadas Dhondiappa Mangalwedhekar Vs. Shamrao
Baburao Kale [2009 (1) RCR 233];
(vii) Hasmukhlal Raichand Shah Vs. Arvindbhai Mohanlal
Kapadia [1988 (XXIX-2) Gujarat Law Reporter 1442.];
(viii) B. R. Mehta Vs. Atma Devi And Others [(1987) 4 SCC
183];
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6. On the other hand, Mr. Shah, learned counsel appearing for the
Respondents-Tenants submitted as under.
6.1. That the plan produced by the Landlord is subsequent plan of
third floor onwards and, therefore, it is of no consequence because
the suit flat is situated on the second floor and, therefore, it was
incumbent upon the landlord to establish the original position of suit
flat, to contend that there has been permanent additions and
alterations. He further submitted that burden lies on the landlord to
show existence of original structure. That unless the nature and form
of the suit-flat is changed, the ground of permanent structure cannot
be held as proved.
6.2. That the WC in the balcony already existed and the said WC
does not put any load on the structure. That the said WC is in
existence since beginning and, therefore, there is no permanent
alteration by the tenants.
6.3. That swapping of kitchen and bedroom was for beneficial
enjoyment of the suit-flat.
6.4. That the first Court Commissioner Mr. Deshpande who visited
the suit flat has not entered witness box and therefore his report
cannot be considered by the Court. That the second Court
Commissioner Mr. Doshi though examined, his evidence can not be
considered because he was not appointed for that purpose.
6.5. That in revisional jurisdiction under section 115 of CPC, re-
appreciation of evidence is not permitted. That Civil Revision
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Application cannot be treated as Appeal. That the finding of the
Appellate Court and view taken is plausible and cannot be called
perverse and there is no reason to interfere.
6.6. That accommodation of tenant’s husband cannot be held as
suitable as it is in other city (Pune). That the heirs of tenant are still
residing and occupying the suit flat. He relied on following
judgments in support of his case:
(i) Somnath Krishnaji Gangal vs. Moreshwar Krishnaji Kale
and others [1994 SCC OnLine Bom 537];
(ii) Dunlop India Limited Vs. A. A. Rahna and another [(2011)
5 SCC 778];
(iii) Man Kaur (dead) By Lrs. Vs. Hartar Singh Sangha [(2010)
10 SCC 512];
7. Mr. Bhanage, learned counsel for the Applicant-Landlord
submitted in rejoinder as under.
7.1 That all the fatal admissions given by the Tenants’ witnesses
about various changes made in the suit-flat cannot be ignored under
umbrella of beneficial enjoyment.
7.2. That when husband of Defendant No.1 is residing at a different
place, it cannot be considered that the same is not suitable for
Defendant No.1.
7.3. That in any case, as on today, both the Defendants are no more
and it is the legal heirs of daughter-in-law (Defendant No.2) who are
in occupation of the suit-flat.
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REASONS AND CONCLUSIONS
8. I have considered the rival submissions and perused the record.
9. At the outset, it is necessary to note that there are concurrent
findings on the issue of reasonable and bona-fide requirement,
hardship, non-user and unlawful sub-letting. Findings on these issues
are based on material available on record and the findings are
probable findings. Having gone through the reasons stated by the
Courts below for refusing decree on these grounds, in my view, there
is nothing perverse and no interference is called for, to that extent.
10. However, so far as remaining three grounds of erection of
permanent structure, acquisition of suitable residence and nuisance
and annoyance, picture is completely different. The reasons given by
the Appellate Court to reverse the findings of the Trial Court are far
fetched, over-stretched and clearly perverse. Let me demonstrate
how.
11. Following facts are emerging from the record viz. the suit is
filed in 1985. The ground of addition and alternation of permanent
nature was added by way of amendment in 1994. Second floor of suit
building where suit flat is situated was built by the landlord
sometime between 1964 and 1967. The first Court Commissioner Mr.
Deshpande has submitted report dated 14.04.1995 which is not
exhibited, however, its xerox copy is available at Exh.76. Subsequent
Court Commissioner Mr. Doshi has visited the suit-flat on 18.03.1998
and submitted his report. D.W. 2 – Fakhrudin has visited the suit
premises in January, 2011 and has submitted report on 17.01.2011.
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Admittedly, D.W.2 is not an Architect and was appointed privately by
Defendants-Tenants.
12. Let us first consider the ground of erection of permanent
structure read with breach of section 108 (o) of the Transfer of
Property Act. The Appellate Court has considered this ground in
paragraph No.36 to paragraph No.64 of the impugned Judgment.
13. The Appellate Court at the beginning of its reasoning on this
issue has clearly held that non framing of issue about additions and
alterations of permanent nature under section 13(1)(b) of the
Bombay Rent Act by the Trial Court will not make any difference
because parties knew fully well of the case they have to meet and,
therefore, no prejudice is caused. In any case, issue of acts contrary
to section 108(o) of the Transfer of Property Act was framed by the
Trial Court and it’s consideration overlaps consideration about
permanent structure under section 13(1)(b) of the Bombay Rent Act.
14. The Court has to consider the re-appreciation of evidence at
the hands of the Appellate Court, in the teeth of admitted case made
out by the Tenants.
15. Now, let us consider the case made out by Defendants-Tenants.
D.W.1 Mr. Shahanwaz is son of Tenant – Defendant No.1 and her
Constituted Attorney. Case made out by him is reiterated by the
Appellate Court in paragraph No.60 to paragraph No.63 of the
impugned judgment. The Appellate Court has recorded that
according to D.W.1, since inception there existed an Indian style WC
in the South East corner of the balcony, however, tenants have put
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glass windows in the said rear balcony after coming into the suit flat
for better enjoyment. According to D.W.1, since the Defendants
needed a bigger kitchen to accommodate modern gadgets, they
constructed kitchen platform in bedroom in the year 1988-1989.
According to D.W.1, they shifted kitchen at that time to portion of
Hall-cum-Dining Room and a few years thereafter in 1997, adjoining
bedroom at the rear side was converted into kitchen where kitchen
platform was reconstructed and the kitchen platform existing in Hall-
cum-Dining Room was dismantled. According to D.W.1, all these
changes are reversible, without causing any damage to the structure,
and were carried out for beneficial enjoyment of the suit-flat,
therefore, do not amount to permanent structure.
16. All the above changes made after taking the suit-flat on rent
are stated on oath by the defendants’ witness himself. But, the
Appellate Court has held that they are reversible in nature and
therefore are not amounting to permanent structure and well covered
under the umbrella of beneficial enjoyment of suit-flat.
17. The Appellate Court has held that the Landlords have failed to
produce the sanctioned plan of construction of the second floor
where the suit-flat is situated and, therefore, there is no reference
point about how the suit-flat originally was and therefore it cannot be
said that there is erection of permanent structure and therefore
Landlords have failed to prove the ground of erection of permanent
structure.
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18. Admittedly, all the additions and alterations made by
Defendants-Tenants are carried out without permission of the
Landlord or Municipal Corporation after the flat is taken on rent.
19. In my view, when the above changes are admitted by the
Tenant, that too without landlord’s permission, the fact that original
plan of suit-flat was not produced is of no consequence.
20. The Appellate Court has taken support from the evidence of
Defendants’ Witness No.2 – Mr. Fakhrudin who is Structural Engineer
who deposed that he visited the suit-flat and observed that changes
carried out in suit-flat are carried without any damage to the
structure and can be reversed. This witness has admitted that he is
not an Architect but Consulting Engineer. He has admitted that he
had not asked plan for construction made in the year 1964 and 1983.
He has admitted that Court Commissioner’s reports were not shown
to him. He has admitted that no notice was given to the Plaintiffs
when he inspected the suit-flat.
21. The Appellate Court has discarded the Commissioner’s report
submitted by Mr. Deshpande on the ground of non examination of
said court commissioner. Evidence and report of subsequent Court
Commissioner (P.W.3 – Pravin Doshi) is discarded by the Appellate
Court on the ground that order under which first Court
Commissioner was appointed was passed to ascertain whether any
repairs are required and Mr. Deshpande was relieved from
commissioner work and replaced by Mr. R.D. Sethi who was also
relieved and thereafter Mr. Pravin Doshi was appointed as Court
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Commissioner as per original order passed by the Trial Court dated
19.02.1997. The Appellate Court has held that since Mr. Doshi was
appointed by way of replacement to original Commissioner, he was
not authorized by the Trial Court under order dated 19.02.1997 to
report to the Court whether Defendants have carried out additions
and alterations of permanent nature. According to Appellate Court,
P.W.3 – Pravin Doshi was supposed to report whether any repairs are
required in the suit-flat to be carried out as per letter of Defendants.
22. Assuming that the first commissioner’s report (Mr. Deshpande)
cannot be considered because he was not examined and the original
report is not on record and only it’s xerox copy is available, even
then, the second Commissioner’s Report is on record duly proved by
examining the second Commissioner Mr. Doshi as P.W.3. Mr. Doshi is
a proprietor of M/s. Doshi & Co., a firm of Chartered Engineers and
and Surveyors, Registered Architects. The Appellate Court has
adopted hyper-technical approach by holding that under the original
order of appointment, he was not supposed to report about additions
and alterations. This approach, in my view, is perverse in the teeth of
Defendants’ witness himself admitting making changes in the nature
of removing kitchen platform, wall between rooms, reconstructing
kitchen platform twice and converting kitchen into bedroom and
bedroom into kitchen. When a specific ground is pressed into service
by the landlord about erection of permanent structure and acts
contrary to section 108 (o) of the Transfer of Property Act, under
section 13 (1) (a) and 13 (1) (b) of the Bombay Rent Act, the
Appellate Court could not have brushed aside the second
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Commissioner’s report for the reason of purpose of appointment of
Court Commissioner. In my considered view the Appellate Court has
ignored a material piece of evidence amounting to perversity.
23. The Appellate Court was conscious of the fact that P.W.3 –
Pravin Doshi in his report has clearly stated that in the opinion of the
Court Commissioner, there were major structural changes in the suit-
flat by putting Indian style WC with raised flooring and partition wall
between hall and kitchen being removed. The Appellate Court has
held that the evidence of this witness is shaken in the cross-
examination, based on two statements, first about structural change
and second about not noticing WC in balcony. These so called
admissions, in my view, could not have been held as fatal, to discard
the other overwhelming evidence about additions and alterations,
including Defendant’s own admitted stand about changes.
24. The second Commissioner’s report clearly states that additions
and alterations of permanent nature are carried out by the tenant.
Additions and alterations are admitted by the Defendants’ Witness
No.1 himself. Therefore, there was no reason not to consider the
second Commissioner’s report on merits. In that view of the matter,
appreciation of evidence about the grounds under section 13(1)(a)
and 13(1)(b) of the Bombay Rent Act by the Appellate Court is
perverse and cannot be allowed to stand.
25. This is therefore a classic case showcasing how the provisions
of Bombay Rent Act can be stretched to afford protection to a tenant
who audaciously comes to the Court and admits changing position of
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kitchen and bedroom in a tenanted flat and admits demolition and
reconstruction of kitchen platform at different places and also admits
demolition of internal walls but contends nonchalantly that all these
additions and alterations are for beneficial enjoyment of the suit-flat
and therefore, should not be held as ground for eviction by the Court.
The Appellate Court has gone out of way to reverse the finding of the
Trial Court on this ground.
26. So far as construction of WC in the North-East side balcony is
concerned, there was evidence before the Court in the form of Court
Commissioner P.W.3 – Pravin Doshi, who has stated in his evidence
that there has been a structural change made in the suit-flat in the
balcony of North East side by putting up Indian style WC with raised
flooring. Merely because the landlord did not produce the plan of the
suit-flat, the Appellate Court has ignored this relevant piece of
evidence. The Appellate Court was required to take its cognizance
alongwith other overwhelming evidence of additions and alterations
of permanent nature.
27. In Nijma Gulab Bagwan (supra) the learned Single Judge of
this court was considering the ground of erection of permanent
structure where it is observed that before any repairs and/or
alteration or construction, the tenant must issue written notice and
obtain written permission from the landlord and if the tenant on his
own unilaterally constructs without written permission of the
landlord, such construction would be unauthorized and will
definitely fall within the clutches of Section 13(1)(b) of the Bombay
Rent Act. In the present case, admittedly, all the changes are made by
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the tenant without permission of the landlord and therefore, this
Judgment directly supports the Revision-Applicant-Landlord.
28. In Ramrao Balaji Kothare (Supra), the learned Single Judge of
this Court was considering the ground of erection of permanent
structure and it is observed that converting two rooms in tenanted
premises in single Room by removing the wall is definitely an
alteration of permanent nature. In the present case, also a internal
wall has been removed without permission of the landlord and
therefore, this judgment also supports the Revision-Applicant.
29. So far as the case law of Somnath K. Gangal (supra) relied
upon by the Respondents-Tenants is concerned, applying principles
laid down therein, I have considered the mode and degree of
annexation and intention of the tenants in making changes narrated
above. Having considered the same, I have no hesitation in holding
that the additions and alterations are substantial in nature which
have altered the form of the suit-flat, and therefore ground of
erection of permanent structure is clearly made out.
30. Now, let us consider how the Appellate Court has considered
the ground of acquisition of suitable residence by the tenants which is
discussed in paragraph Nos.15 to 23. Admittedly, Respondent
No.1/Defendant No.1-Jainibai Najamuddin is the original tenant.
Admittedly, evidence is led by her son-Shahanwaz Sakarwala,
Constituted Attorney of Defendant No.1-Tenant and husband of
Defendant No.2-Smt. Mumtaz.
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31. In B. R. Mehta vs. Atma Devi and Ors. (supra) the Hon’ble
Supreme Court was considering the ground of acquisition of suitable
residence under Section 14(1) of Delhi Rent Control Act, 1958 which
is pari materia with Section 13(1)(l) of the Bombay Rent Act, 1947.
The Hon’ble Supreme Court while considering whether acquisition of
the residence by tenant’s wife can be considered as valid ground for
eviction has held that where tenant’s wife was living separately in
Government Residence allotted to her having strained relation with
husband, a tenant cannot be evicted. Therefore, whether there are
strained relations between husband and wife is a material aspect to
be considered. In the present case there is no such evidence. Wife is
tenant whose husband has acquired residence, Defendant No.1 can
be held to have acquired suitable residence under Section 13(1)(l) of
the Bombay Rent Act.
32. Similarly, in Mrs. Manorama Gopal Landge (supra), the
learned Single Judge of this court has observed that when alternative
accommodation is acquired by tenant’s wife and when the
relationship of husband and wife is cordial, it is difficult to accept the
argument that acquisition of premises by either of the spouse is no
ground for eviction. This Judgment clearly supports the Revision
Applicants-Landlords.
33. In Jinadas Dhondiappa Mangalwedhekar (supra) the learned
Single Judge of this Court has held that merely because the newly
acquired premises is not sufficient to accommodate the tenant and
his dependents cannot be a reason to deprive the landlord from
claiming eviction. This court has held that the basic aim and object of
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the Bombay Rent Act cannot be overlooked and the Bombay Rent Act
was intended to provide shelter to a person or tenant, who has no
premises to reside because of shortage of accommodation but having
once acquired a suitable residence, tenant’s large and developing
family cannot be a reason to make the said provision illusionary for
the landlord, depriving landlord of his right to take back possession.
This Court has also observed that the Landlord will never get
possession of the suit premises in view of developing or growing
family of tenant by passage of time. In the present case, the daughter-
in-law of tenant (Defendant No.2) and now her legal heirs are
squarely covered by these observations. This Judgment directly
supports the Revision Applicant-Landlord. In the facts of the present
case, the Respondents-Tenants do not appear to be such tenants who
have no shelter due to shortage of accommodation. In the present
case, Respondent Nos. 2B and 2C, who are the only legal heirs
fighting this litigation are residents of Dubai and London respectively.
Therefore they too have acquired suitable residence. The
Respondents-Tenants simply want to retain tenanted premises at
prime location of Mumbai.
34. In Hasmukhlal Raichand Shah (Supra) the learned Single
Judge of the Gujarat High Court was considering the same ground
under Bombay Rent Act when it is held that if there is evidence on
record showing tenant and his family members living together and
one of them acquired suitable residence, then acquisition of suitable
residence by one of them would be considered for the ground of
acquisition of suitable residence. This Judgment also supports the
Revision-Applicant – landlord.
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35. It has come on record that Defendant No.1 alongwith her
husband had been residing in the accommodation at Pune (Initially
at Qutbi Co-operative Housing Society (CHS) Limited in Wanorie,
Pune and later on at Brahma Angan, Kondhwa, Pune) and the
Plaintiff-Landlord has produced attested copy of Municipal Election
Roll of 1992 ‘Exh.65’ showing name of Defendant No.1 as resident of
Pune. The landlord has also produced attested copies of BSNL Pune,
reply to RTI Application in respect of telephone number and
telephone directory as well as telephone bills to show that telephone
connection was transferred from Qutbi CHS to Brahma Angan. The
Appellate Court was conscious of the fact that the Municipal Election
Roll of 1992 at ‘Exh.65′ shows names of Defendant No.1 and her
husband in the voters list at Pune. The Appellate Court pitched this
evidence against the evidence produced by Defendant No.1-Tenant in
the form of Identity Card by Election Commission in November, 1994
at the address of the suit-flat and Identity Card issued by Election
Commission in October, 2006 at the address of the suit-flat. This
evidence, in my considered view, at the most reflects residence of the
parties in the suit-flat later in point of time, however, this evidence
does not indicate non-availability of suitable other residence. It is not
tenants’ case that flats in Qutbi CHS or Brahma Angan were sold.
Assuming that they are sold, admittedly they were acquired.
36. So far as the case of Defendants-Tenants that flat in Qutbi
Manzil is acquired by Salim – other son of Defendant No. 1 -Tenant
and his father’s name is joined out of respect, the same cannot be
held as sufficient to escape from the clutches of acquisition of other
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suitable residence because, admittedly the suit-flat is purchased in
joint name of tenant’s husband. Defendant No.1 can certainly be
stated to have enforceable right of residence in the flat of her
husband. It is nobody’s case that Defendant No.1 and her husband
were having strained relations or there was any dispute pending in
that regard. The judgment relied on by the Appellate Court in the
case of J. Marathe (deceased) and others versus P. V. Kaloke [2004
(6) Bom. C.R. 721] itself clarifies that ultimately whether the
premises in ‘another town’ can be considered as ‘suitable alternate
residence’ would depend upon the facts and circumstances of the case
and, therefore, decree can be passed on the ground of section 13 (1)
(l) of the Bombay Rent Act.
37. In the facts and circumstances discussed above, in my view,
Defendant No.1 has obtained other suitable residence, which was
rightly held by the Trial Court as proved on appreciation of same
evidence. The conclusion drawn by the Trial Court is most probable
and therefore, it should not have been interfered with by the
Appellate Court.
38. The Appellate Court has taken judicial notice of the distance
between Mumbai and Pune and has held that Plaintiffs have failed to
prove that Defendant No.1 has ‘shifted’ to other accommodation
alongwith family members. The Appellate Court has confused the
ground of ‘acquisition of suitable residence’ with the ground of ‘non-
user’. They are different and distinct grounds. It is material to note
that the law under section 13 (1) (l) does not require the Landlord to
prove that the Tenant has ‘actually shifted’ to other suitable residence
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and what is required to be proved is that the tenant has after coming
into operation of the Bombay Rent Act has ‘built, acquired vacant
possession of suitable residence’.
39. Lastly, let us consider how the Appellate Court has dealt with
the ground of nuisance and annoyance which is discussed in
paragraph No.65 to Paragraph No.82 of the impugned Judgment.
40. In 2010, by amending plaint, ground of nuisance and
annoyance was added to contend that without Plaintiffs’ permission,
the Defendants-Tenants have created pathway by making concrete
elevation at the entry of the suit building causing nuisance and
annoyance. Other contention is about keeping 9 to 10 potted plants
outside the window of the suit-flat and keeping water pipe causing
continuous seepage thereby damaging western side wall of the first
floor which has resulted in damage to suit building.
41. In this respect, it is necessary to clarify at the outset, that this
Court is not entering the controversy about tenants keeping plants
and watering them causing seepage and damage to the outside wall
of the suit building, because there is conflicting evidence on record
led by P.W.2 and D.W.2 and it clearly falls in the realm of disputed
question of fact.
42. The Appellate Court was conscious of the fact that the
Defendants-Tenants have admitted that without permission of the
landlord, tenants have created pathway by making concrete elevation
at the entrance of the suit building. The landlord has contended that
due to this act, nuisance is caused to the Plaintiff-Landlord to bring
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his cars and park them in the garage and during monsoon, water gets
accumulated on the sides of the elevation, thereby causing dirt and
unhygienic condition at the entrance of the suit building and it gets
slippery causing risk to aged people. Explanation of the tenants is
that since level of the municipal road is raised by the Municipal
Corporation, water accumulates in the pathway and, therefore,
concrete blocks are required to be kept in the pathway and walk on
them to reach the staircase without getting feet and shoes wet and
since it is risky to walk on concrete blocks, concrete elevation has
been constructed. The Appellate Court has simply held that
construction of concrete elevation at the entrance of the suit building
does not fulfill the test of determining nuisance and annoyance. This
finding is without reasons and therefore perverse.
43. In this respect, it is material to note that nuisance or
annoyance is subjective concept. Section 13(1)(c) of the Bombay
Rent Act permits the landlord to prove that tenant or any person
residing with tenant is guilty of conduct which is nuisance or
annoyance to the adjoining or neighbouring occupants. In the present
case, the landlord is occupying the ground floor as well as first floor
of suit building and therefore, nuisance or annoyance to the landlord
occupying neighbouring premises can very well be considered under
this ground. In the present case, the landlord has led evidence
asserting that construction of elevated concrete pathway causes
nuisance and annoyance to the landlord while parking his own cars
and it creates unhygienic condition during monsoon. Since nuisance
or annoyance depends on the subjective perception of the landlord
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who is neighbouring occupant in the present case, in my view, it is
not for the Court to brush aside the evidence led by the landlord in
that respect.
44. In the present case, the landlord-P.W.1 has entered witness box
and stated about nuisance and annoyance. The Appellate Court has
not given any reasons to disbelieve the case of nuisance and
annoyance in respect of elevated concrete pathway.
45. In that view of the matter, even finding of the Appellate Court
on the ground of nuisance and annoyance is found to be perverse.
46. As far as the judgment of Dunlop India Limited (supra) is
concerned, the same is relied upon by learned counsel for the
Respondents-Tenants in support of his contention that there is no
non-user and physical possession by tenant himself or by other family
members is not necessary, if there was reasonable cause for their
remaining absent. If there is evidence that the tenant has wish to
return, it cannot be said that there is no reasonable cause.
Considering the fact that this court is not interfering in the
concurrent findings on the ground of non-user, it is not necessary to
deal with this Judgment.
47. As far as the Judgment of Man Kaur (dead) By Lrs. (Supra) is
concerned, the same is relied upon by learned counsel for the
Respondent-Tenant in support of his submissions as to who should
give evidence for matters involving personal knowledge. In the
present case, the tenant’s son has entered witness box. Since this
Court is not doubting the evidence led by tenant’s son as Constituted
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Attorney, it is also not necessary to further consider this judgment.
48. In the aforesaid facts and circumstances and for the reasons
indicated above, in my considered view, findings by the Appellate
Court in respect of three grounds – erection of permanent structure
read with contravention of provisions of section 108 (o) of the
Transfer of Property Act, 1882 acquisition of suitable residence and
nuisance and annoyance are found to be based on perverse
appreciation and misreading of pleadings and evidence and if
allowed to stand, would amount to miscarriage of justice. Therefore
the same are being interfered with, drawing support from paragraph
10 of the Judgment of the Hon’ble Supreme Court in Pandurang
Dhondi Chougule Vs. Maruti Hari Jadhav [1965 SCC OnLine SC 83]
and paragraph 43 of the Judgment of the Hon’ble Supreme Court in
HPCL, Vs. Dilbahar Singh [(2014) 9 SCC 78]. This court is also
drawing support from Neelakantan and Ors. vs. Mallika Begum
(supra) and S. F. Engineers vs. Metal Box India Ltd (supra) for
interfering with the impugned judgment because the findings on the
above said three grounds are based on misleading of evidence and
suffers from legal infirmity materially prejudicing the rights of the
landlord.
49. In the result, Civil Revision Application succeeds partly. The
impugned Judgment and Decree dated 11.10.2013 is quashed and set
aside to the extent of grounds of erection of permanent structure,
acquisition of suitable residence and nuisance and annoyance.
Eviction decree passed by the Trial Court dated 23.08.2011 is
confirmed only on the above three grounds.
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50. At this stage, learned Counsel for the Respondents-Tenants
seeks stay of the eviction decree for a period of eight weeks.
51. In the facts and circumstances of this case as explained above, I
do not deem it appropriate to grant stay, however, in view of the
request made, Respondents are granted six weeks time to hand over
vacant and peaceful possession of the suit-flat, subject to
Respondents and all adult family members of the Respondents filing
written undertaking in this Court, stating that no third party rights
will be created and no third person will be inducted in the suit-flat.
The undertaking to be filed within a period of two weeks from today.
52. In view of disposal of the Civil Revision Application, Interim
Application for expeditious hearing is also disposed of in above
terms.
53. All concerned to act on duly authenticated and digitally signed
copy of this order.
[M.M. SATHAYE, J.]
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