Partly allowed

Afzal Khan Chand Khan v. Akharunnisa Akbar Ali and Ors.

Bombay HC30 Oct 2014WP/2219/2001

Case brief

AI extract

What is this about?

This petition by tenants challenging a decree for possession sought dismissal due to lack of specific issues on alternate accommodation. The court dismissed the challenge, rejecting the argument regarding lack of pleadings. It granted a 12-month period to surrender possession conditioned on an undertaking and rent payment.

What did the court decide?

Writ petition dismissed; Petitioners granted 12 months to surrender possession subject to undertaking and payment of 12 months rent in advance.

Afzal Khan Chand Khan Vs Akharunnisa Akbar Ali and Ors. — Landlord and Tenant | Bombay HC (2014)

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(1) W.P. No. 2219 of 2001

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Writ Petition No. 2219 of 2001

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Afzal Khan Chand Khan, since deceased through L.Rs. :

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1-a] Raisa Afzal Khan, Age : 40 years, Occupation : Household, R/o. Akbar Building, Shivaji Nagar, Jalgaon.

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1-b] Alfiya Taherin Afzal Khan, Age : 10 years (Minor).

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1-c] Saniya Anju Afzal Khan, Age : 4 years (Minor).

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Both are Minor through	.. Petitioners
petitioner No.1-a as their	(L.Rs. of original
legal guardian natural mother.	defendant)

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versus

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Akharunnisa Akbar Ali, Age : 56 years, Occupation : Household.

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Mohammad Salim Akbar Ali, Age : 34 years, Occupation : Business.

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Ayub Ali Akbar Ali, Age : 32 years, Occupation : Service.

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Annis Akbar Ali, .. Petition abated as Age : 29 years, against respondent no.4. Occupation : Business.

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(2) W.P. No. 2219 of 2001

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Rais Akbar Ali, Age : 27 years, Occupation : Business.

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Farida Begum w/o. Mustak Ali, Age : 25 years, Occupation : Household.

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Shahnaj Akbar Ali, Age : 21 years, Occupation : Student.

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All R/o. Aagwali Chawl, Near Akbar Touring Talkies, .. Respondents Bhusawal, Dist. : Jalgaon. (Original plaintiffs)

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Mr. V.J. Dixit, Senior Advocate, for the petitioners.

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Mr. A.M. Gholap, Advocate, for respondent nos.1 to 7.

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Petition abated as against respondent no.4, as per court's order dated 18-9-2014.

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CORAM : N.W. SAMBRE, J.

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DATE : 30TH OCTOBER 2014

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JUDGMENT :

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Heard respective Counsel for the parties.

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This petition is by tenant.

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(3) W.P. No. 2219 of 2001

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The present petitioner, defendant in Regular Civil Suit No. 54 of 1991, suffered a decree for delivery of vacant possession of suit premises to the respondents herein, within a period of two months, which was subsequently confirmed in Regular Civil appeal No. 72 of 1995. As such, present petition.

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The facts giving rise to filing of present petition as as under :-

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(a) The respondents herein are the owners of property bearing City Survey No. 2784/11/A and a house constructed thereon bearing Municipal House No. 3431. The dwelling house consists of two floors, of which, the northern portion of three rooms on the first floor was let out to the present petitioner. The tenancy was to commence from the first date of English months and the agreed rent was Rs. 120/- per month.

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(b) At the relevant time, the original defendant - petitioner i.e. husband of petitioner no.1-a and father of petitioner nos.1-b and 1-c, was working in Railway and was allotted Quarter No. RB-II/780A on 22nd October 1990. It is claimed by the landlords, that instead of occupying the said bungalow, the tenant has continued to accommodate his premises. According to the landlords, as the tenant has acquired alternate accommodation, they are entitled for possession of the suit property in view of the provisions Section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 [For short, hereinafter referred to as “Bombay Rent Act”]. In addition to above, the landlords have also pleaded before the learned trial court, that the land, in question, is required

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(4) W.P. No. 2219 of 2001

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for bona fide personal use and, as such, sought decree for possession by a suit dated 4-2-1991.

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(c) The tenant filed his written statement to the said plaint at Exhibit 14 and has denied the claim made by the landlords. According to him, the Railway Quarter that was allotted to him was surrendered as the same was not convenient. He further claimed that the landlords own some other property and part of the same was already disposed of by the landlords, and as such, prayed for dismissal of the suit.

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Having regard to the pleadings, the learned trial court framed issues at Exhibit 15, which read thus :

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Issue Nos.	Issues	Findings
1.	Does plaintiff prove that defendant acquired suitable accommodation ?	Yes.
2.	Does plaintiff prove that he requires the premises for personal use ?	No.
3.	To whom greater hardship will cause ?	Does not arise.
4.	Does defendant prove that suit is not tenable ?	No.
5.	What order and decree ?	As per final order.

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In support of the claim, the landlords examined their attorney Abbasali at Exhibit 46 and plaintiff no.1 Akbarunisa at Exhibit 52. On the other hand, the tenant has examined himself. During the course of evidence, it was brought on record by PW 1 Abbasali, that the tenant has one more house of his own at Khadka Road, Bhusawal, which stands in

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(5) W.P. No. 2219 of 2001

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the name of his wife. The completion certificate of the said house, issued by the Municipality, was brought on record at Exhibit 48. It has been also brought on record, that the tenant has divorced his wife in whose name the house at Khadka Road was standing and in settlement, the house was given to the said wife.

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The petitioner - tenant has in his evidence, sought to deny the same, and submits, that as the house at Khadka Road was given to the wife in divorce, which took place on 25-6-1993, the claim of securing alternate accommodation is of hardly any assistance.

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Having regard to the issues framed and the evidence brought on record, the learned trial court has decreed the suit. The learned trial court has given finding that the defendant - tenant has acquired alternate accommodation, however, the case for requirement of premises for personal use came to be rejected. The learned trial court has taken into account the fact, that the tenant has retired from the Railway services and, as such, he was not in possession of the quarter allotted by the Railway authorities. However, the learned trial court has taken into account the evidence brought on record by both the parties, as regards, the acquisition of house at Khadka Road, Bhusawal. The trial court has also taken into account the joint construction of the said house by the defendant and his wife, which stands in the name of his divorced wife in municipal record. The trial court has taken into account the completion certificate at Exhibit 48. The trial court has also taken into account the fact of tenant performing second marriage and his residence along with second wife in the suit premises. The completion certificate at Exhibit 48 of the said

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W.P. No. 2219 of 2001

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house on 1-2-1991, the permission for occupation of the same granted with effect from 30th June 1992 and the date of divorce dated 25th June 1993, prevailed on the trial court to pass a decree for possession on the count of alternate accommodation as suit was initiated by the landlords in 1991. The trial court has placed reliance upon certain judgments so as to draw support to the finding, that the acquisition of the accommodation by the wife or husband has to be taken as an acquiring of an alternate accommodation under the provisions of Section 13(1)(l) of the Bombay Rent Act.

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The learned lower appellate court, while re-appreciating the entire evidence and while considering the points, has relied upon judgment of this court, reported in 1994 Bom.C.R. 325 , in the matter of Champaklal Chhotulal and another Vs. Parvatiben Kubarbhai , and also the case of Govind Ramchandra Deo Vs. Sau. Ramabai Vasudeo Pandit , reported in 1993 Bom.C.R. 13 . The learned lower appellate court has endorsed the finding given by the learned trial court.

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Mr. Dixit, learned Senior Counsel appearing for the petitioner - tenant, while assailing the concurrent findings, has sought to raise the following questions of law :

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In view of the divorce of the petitioner with his first wife, which took place on 25-6-1993, whether the house constructed at Khadka Road could be considered as acquiring alternate accommodation and in absence of pleadings and issues framed thereof in the plaint, as regards, acquisition of alternate accommodation at Khadka Road, whether the courts below

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(7) W.P. No. 2219 of 2001

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were right in granting relief of termination of tenancy and grant of possession on the said count ?

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Mr. Dixit, learned Senior Counsel appearing for the petitioner, in the wake of above referred facts, has submitted that the issue of divorce, the death of the original tenant and possession of the premises by second wife and children born out of the second wedding are in possession of the premises, should have been framed by the trial court. He submits, that the provisions of the Code of Civil Procedure, 1908, contemplate framing of appropriate issue, as regards, alternate accommodation qua Khadka Road and, according to him, in absence thereof, his client was unable to bring appropriate evidence on record to counter the claim of acquiring alternate accommodation. He further urged, that in divorce, the said property at Khadka Road, which has gone to the share of first divorced wife, cannot be termed as acquiring of alternate accommodation and, as such, according to him, the courts below have committed an error of law.

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Mr. Gholap, learned Counsel for the respondents - landlords, submits that the claim for possession is pursued since 1991. He submits, that though the original tenant has expired, however, his second wife and children are occupying the suit property. He further urged, in the pleadings, as regards, acquiring of alternate accommodation at Khadka Road, though was not pleaded in the plaint, however, it was very much pleaded that the tenant has acquired an alternate accommodation. He further submits, that it is a case of acquiescence as the tenant has also led evidence in support of the claim that the alternate accommodation at Khadka Road was not acquired. He further urged, that the divorce from

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(8) W.P. No. 2219 of 2001

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the first wife, in settlement thereof, parting the house at Khadka Road to the first wife, is a decision of the tenant which was in his private interest and the same cannot be considered to the detriment of the landlords. He further submits, that both the courts below having appreciated the pleadings and the evidence, have rightly reached to a conclusion of decreeing the suit.

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Having considered rival contentions, it is noticed that the witness of the petitioner - tenant has deposed in support of the claim that at Khadka Road, alternate accommodation was acquired. It has been brought on record, by the plaintiffs and the defendant, that the house at Khadka Road was acquired and was given to first wife in divorce. As such, the said fact was rightly established before both the courts below, as regards, acquisition of alternate accommodation at Khadka Road. Once the said fact is established, the parting of the said property by the tenant, in the settlement of his matrimonial dispute, cannot be read to the detriment of the landlords. When the said property at Khadka Road was acquired and developed, no matrimonial dispute was in existence. As such, it can be inferred that said property at Khadka Road was acquired by respondent - tenant for his own accommodation. In my opinion, both the courts below have rightly taken into account the said fact and have reached to a conclusion that the suit for possession is liable to be decreed.

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The contention of the petitioner, that in absence of pleadings and framing of specific issue, as regards, acquisition of alternate accommodation at Khadka Road, he was handicapped to lead evidence, is liable to be rejected as it is apparent that the petitioner - tenant has deposed

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(9) W.P. No. 2219 of 2001

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in support of the said claim. In fact, the said claim was hotly contested by the tenant and, as such, it is a case of acquiescence on the part of the tenant qua the said issue. In view of the same and having regard to the evidence of the tenant's witness, it cannot be inferred that the petitioner - tenant was put to prejudice. The petitioner got complete opportunity to plead his case and in any case evidence cannot be termed as part of pleadings under the Code of Civil Procedure, 1908.

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As such, no case for interference is made out. The petition is dismissed. Rule is discharged. There shall be no order as to costs.

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At this stage, Mr. Dixit, learned Senior Counsel appearing for the petitioners - tenants, has invited my attention to the fact, that the respondents - tenants are occupying the premises, in question for about 25 years. He further urged that the husband of the original tenant has already expired and the lady is residing there along with her son.

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In the aforesaid background, he requests that the time of one year be granted to the petitioners - tenants to surrender the possession of the suit premises.

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Mr. Gholap, learned Counsel for the respondents - landlords has no objection for granting time of 12 months, as prayed by the learned Senior Counsel for the petitioners, provided petitioner submits an undertaking to that effect.

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As such, the prayer made by the learned Senior Counsel, on

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(10) W.P. No. 2219 of 2001

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behalf of the petitioners - tenants, for grant of 12 months time to surrender possession of the suit premises, is granted, subject to the condition, that petitioners shall furnish an undertaking to this court, within a period of four weeks from today, that they shall surrender the possession of the suit premises and hand over possession of the same to the respondents - landlords, by 30th October 2015. The tenants shall also incorporate in the undertaking, that they shall maintain the premises in good condition and shall not cause any damage to the same. The tenants undertake to pay rent of 12 months, in advance, within a period of four weeks from today, and shall clear all arrears, if any, within four weeks.

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Failure on the part of the petitioners - tenants to furnish an undertaking, as referred supra, by incorporating the conditions observed herein above, shall result into the liberty to the respondents - landlords to initiate proceedings for execution of the decree for possession.

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JUDGE

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bgp/ WP2219.01

Afzal Khan Chand Khan v. Akharunnisa Akbar Ali and Ors.

Case brief

What is this about?

What did the court decide?

Afzal Khan Chand Khan v. Akharunnisa Akbar Ali and Ors.

Case brief

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What did the court decide?

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