Bombay High Court
Chandrashekhar Ganesh Joshi & Ors vs Pradeep Ramchandra Mankeekar & Ors on 15 February, 2019
Author: R. G. Ketkar
Bench: R. G. Ketkar
1
901.wp.5001-98.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 5001 OF 1998
Chandrashekhar Ganesh Joshi
and others ...Petitioners
Versus
Pradeep Ramchandra Mankikar
and others ...Respondents
....
Mr. P.K. Hushing, Advocate for the Petitioners.
Ms. Soniya S. Miskin, Advocate for Respondent No.1.
....
CORAM : R. G. KETKAR, J.
DATE : 15th FEBRUARY, 2019
JUDGMENT:
1. Heard Mr. P.K. Hushing, learned counsel for the petitioners and Ms. Soniya Miskin, learned counsel for respondent No.1, at length.
2. This Petition takes exception to the judgment and decree dated 7.3.1998 passed by the learned 5th Additional District Judge, Pune in Civil Appeal No.1066/1995. By that order, the learned District Judge dismissed the appeal preferred by the petitioners, hereinafter referred to as the 'plaintiffs', and upheld the judgment and decree dated 31.10.1995 passed by the learned 5th Additional Judge, Small Causes Court, Pune in Civil Suit No.317/1993. By these orders, the Courts below have dismissed the suit instituted by the plaintiffs. The relevant and material facts giving rise to filing of the present petition, briefly 1 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:40 ::: 2
901.wp.5001-98.doc stated, are as under.
3. The plaintiffs had instituted suit against the respondents, hereinafter referred to as the 'defendants', for recovery of possession of a block of three rooms situate on ground floor of House No.1072, Shukrawar Peth, Pune (for short, 'suit premises'). The plaintiffs sought possession of the suit premises inter alia invoking the ground of acquisition of suitable alternate residence by the defendants as contemplated by Section 13(1)(l) and that the plaintiffs reasonable and bonafide require the suit premises as contemplated by Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, 'Act').
4. Insofar as the controversy raised in the present petition is concerned, it mainly centers around the ground of acquisition of suitable alternate residence as contemplated by Section 13(1)(l) of the Act. Insofar as this ground is concerned, the plaintiffs contended that the suit premises was given for residential purposes. Defendants No.1 & 2 acquired a flat No.203, Yogi Co-operative Society, Sector U/B3/9, Ajmera Housing Complex, Pimpri, Pune 18 consisting of three rooms with independent toilet and bathroom (for short, 'Pimpri premises'). The Primpri premises acquired by defendants No.1 and 2 are suitable for residential purposes. The plaintiffs are, therefore, entitled to possession 2 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:40 ::: 3
901.wp.5001-98.doc of the suit premises.
5. Defendant No.1 filed written statement at Exhibit-30. Insofar as the acquisition of the suitable alternate residence is concerned, defendant No.1 contended that the Pimpri premises are not acquired by the joint family of defendants No.1 & 2. It is an alternate accommodation. It is not sufficient and suitable for the defendants.
6. Defendant No.2 filed written statement at Exhibit-16 reiterating the stand taken by defendant No.1. She contended that the Pimpri premises are absolutely owned by her and is acquired from her own funds. Rest of the defendants have absolutely no concern with the that premises. That apart, Pimpri premises are not suitable for the defendants.
7. On the basis of the pleadings of the parties, the learned trial Judge framed necessary issues. The parties adduced evidence in support of their respective case. By order dated 31.10.1995, the learned trial Judge dismissed the suit. Aggrieved by that decision, the plaintiffs preferred appeal. By the impugned order, the learned District Judge dismissed the appeal. Insofar as the ground under Section 13(1)(g) of the Act is concerned, after appreciating the evidence on record both the Courts concurrently held against the plaintiffs. The controversy in the present petition centers around acquisition of suitable alternate 3 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:40 ::: 4
901.wp.5001-98.doc residence by the defendants.
8. In paragraph-15, the learned District Judge observed thus:
"15. It has come on record that the acquisition of flat at Pimpri is by defendant No.2 who happens to be the wife of defendant No.1. The evidence is also produced on record that she is in service and she has purchased the flat from out of her income. When husband and wife are serving the financial balance is required to be maintained from out of the funds earned by both of them and though defendant No.2 has spent for purchase of the flat the vacuum created because of the divergence of finance by her was required to be filled in day to day life by defendant No.2. I am aware that there is no concept of 'communion' in Hindu Law. Section 13(1)(1) of the Bombay Rent Act has a wide import. If it is proved that the relations between husband and wife are good and if the wife is staying with the husband as a unit his family then acquisition of suitable residence by the wife has to be considered as acquisition by husband. Section 13(1)(1) nowhere lays down that acquisition should be as of right. The legislative intent behind section 13(1)(1) of the Bombay Rent Act is necessary to be looked into. Section 13(1)(1) of the Bombay Rent Act is necessary to be looked into. Section 13(1)(1) of the Bombay Rent Act came into being to make more residential accommodations available to the tenant. It prohibits a tenant from enjoying the luxury of his own flat and retain the residential accommodation let out to him. If the tenant acquires a flat then he can shift therein and the demised premises can be available for other prospective tenants who are in need of accommodation. If this legislative intent that runs like a golden thread in the provisions of Section 13(1)(1) of the Bombay Rent Act is appreciated it is clear that the tenant cannot escape the clutches of law simply by purchasing or asking his wife to 4 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:40 ::: 5
901.wp.5001-98.doc purchase a flat. Therefore the judicial pronouncements in this field are to be appreciated on the backdrop of the facts of those case. If the facts of the case prove that the purchase was made by wife so as to defeat the provisions of Section 13(1)(1) of the Bombay Rent Act then the were totally different. The concept of right or domain was viewed on the background of the fact that tenant's wife was allotted a flat because of her official duties and therefore it was held that the said allotment would not bring the case under Section 13(1)(1) of the Bombay Rent Act. It is not brought on record that defendant No.2 purchased the flat because of such exigencies. Therefore the defendant No.1 cannot take shelter of the name of defendant No.2 that appears to the said flat. Therefore Mr. Hirave's argument that acquisition of flat by defendant No.2 does not attract section 13(1)(1) requires to be turned down at its face value."
(emphasis supplied)
9. The learned District Judge turned down the submissions of the defendants and observed that defendant No.1 cannot take shelter of name of defendant No.2 that appears to the suit flat. The arguments of the defendants as regards acquisition of flat by defendant No.2 does not attract Section 13(1)(l) of the Act required to be turned down at its face value. In other words, the learned District Judge repelled the submission of the defendants that Section 13(1)(l) of the Act is not applicable in the present case. After so observing, the learned District Judge observed in paragraph-16 that the tenant Ramchandra Mandkikar died in the year 1992. The Pimpri premises were acquired by defendant 5 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 6
901.wp.5001-98.doc No.2 in the year 1989. Thus that flat came to be purchased when original tenant Ramchandra was alive. Ramchandra could not have been evicted on the ground of acquisition of accommodation by his daughter-in-law. The learned District Judge, therefore, declined to pass the decree under Section 13(1)(l) of the Act. It is against this order, the plaintiffs have instituted present petition.
10. In support of this petition, Mr Hushing submitted that the reasons given by the learned District Judge in paragraph-16 are in the teeth of provisions of Section 13(1)(l) of the Act. He submitted that Section 13(1)(l) of the Act lays down that if the tenant after coming into operation of the Act has built, acquired vacant possession of or been allotted a suitable residence, the landlord shall be entitled to recover possession of the suit premises. The learned District Judge was of the view that the original tenant Ramchandra died in the year 1992 and during his lifetime his daughter-in-law i.e. defendant No.2 acquired the Pimpri premises in the year 1989, the same will not be a ground for eviction under Section 13(1)(l) of the Act. He submitted that said finding is perverse.
11. Mr. Hushing submitted that the Pimpri premises acquired by defendant No.2 amounts to acquisition of suitable alternate residence by defendant No.1 tenant. The learned District Judge after recording 6 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 7
901.wp.5001-98.doc finding that Section 13(1)(l) is applicable, committed serious error in paragraph-16 while declining passing decree under Section 13(1)(l) of the Act. In support of his submissions, he relied upon following decisions :
(i) B.R. Mehta Vs. Atma Devi and others, (1987) 4 SCC 183;
(ii) Anandi D. Jadhav (dead) by L.Rs. Vs. Nirmala Ramchandra Kore and others, (2000) 3 SCC 703;
(iii) Shriram Vishnu Datar Vs. Govind Shridhar Chitale and another, 1987 Mah. R.C.J. 77. Mr. Hushing submitted that in this case, the learned Single Judge observed that Pimpri-
Chinchwad is also not too far away and judicial notice can be taken of the fact that there is no great difficulty in negotiating distances by public transport from Pimpri-Chinchwad to Pune and vice versa.
(iv) Dattaram Daulat Kodare (deceased) Vs. Smt. Shantabai Zimji Jagtap, 2004(4) ALL MR 519 and in particular paragraph-5 thereof.
12. On the other hand, Ms. Miskin supported the impugned order. She submitted that the Pimpri premises cannot be said to be acquisition of suitable alternate residence. She submitted that Pimpri premises were acquired on her own income by defendant No.2 wife and 7 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 8
901.wp.5001-98.doc not by defendant No.1. Thus the acquisition of residence by defendant No.2 will not attract Section 13(1)(l) of the Act for evicting defendant No.1 who is tenant. In any case, the plaintiffs have not established that the Pimpri premises are suitable. She submitted that during pendency of this Petition, defendant No.2 wife died on 25.9.2002 and the Pimpri premises are disposed of in the year 2004.
13. In support of her submissions, Ms. Miskin has relied upon following decisions :
(i) Saroja Parmeshwaran Vs. Padmakar Sitaram Bole and others, decided by the learned Single Judge of this Court (Coram: D.G. Karnik, J.) in W.P. No.3259/1998 dated 16.7.2010.
(ii) J. Marathe, since deceased through his legal heirs and another Vs. P.V. Kaloke, 2004(6) Bom.C.R. 721 and in particular paragraphs-6, 10 and 11 thereof.
14. I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record. I have already extracted paragraph-15 of the judgment of the District Court. After holding that in the facts and circumstances of the present case, Section 13(1)(l) of the Act, the learned District Judge in paragraph-16 observed thus : 8 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 9
901.wp.5001-98.doc "16. Mr. Hirave's second contention however requires to be probed. It appears that Ramchandra Mandkikar died in the year 1992. The flat came to be acquired by defendant No.2 in the year 1989 as explicit from the copy of the agreement produced on record as well as Exh.91/1, 91/2, 100/1 and Exh.101. Thus the flat came to be purchased when original tenant Ramchandra was alive. Ramchandra could not have been evicted on the ground of acquisition of accommodation by his daughter-in-law because the law is now fairly well settled that acquisition of accommodation by any member of the tenant's family does not necessarily mean that it is an acquisition by tenant. For example acquisition by a tenant's son to accommodate his own unit cannot be said to be an acquisition by the tenant.
Therefore acquisition of flat by defendant No.2 during the life time of Ramchandra Mandkikar could not have section 13(1)(1) of the Bombay Rent Act has not been happily world. When a legislation is brought about to protect a particular section of the society the interpretation of the legislation has to be made in favour of that section. Section 13(1)(1) of the Bombay Rent Act as it stands does not take within its sweep the position covered by the facts of the present case and therefore the provision cannot be extended so as to take within its sweep the position that has emerged in this particular case it would in my opinion would would be a judicial impropriety therefore the position of defendant No.1 is pari- passu with the tenant who having sufficient premises at his disposal enters into the agreement of tenancy with the landlord. On this technical ground the appeal requires to be dismissed."
15. The short question is whether the findings recorded by the learned District Judge in paragraph-16 are in tune with the requirement of Section 13(1)(l) of the Act. Section 13(1)(l) of the Act reads thus : 9 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 10
901.wp.5001-98.doc "13. When landlord may recover possession.-- (1) Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-
xxxxxx xxxxxx xxxxxx
(l) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted to suitable residence."
16. A perusal of the above provision shows that the landlord is entitled to recover possession of any premises if the Court is satisfied that the tenant after the coming into operation of the Act has built, acquired vacant possession of or been allotted to suitable residence.
17. It is not in dispute that defendant No.1 is tenant of the suit premises. Defendant No.1 is the son of original tenant Ramchandra. It has come on record, defendant No.2 has acquired the Pimpri premises in the year 1989. Thus, the acquisition is after coming into force of the Act. It was sought to be contended that the acquisition of the premises by defendant No.2 will not enure to the benefit of the plaintiffs to invoke the ground under Section 13(1)(l) of the Act. In order to appreciate this submission, it is necessary to consider the decision of Apex Court in the case of B.R. Mehta (supra). That case arose under Section 14(1)(h) of the Delhi Rent Control Act, 1958. There the wife of the tenant, a Government employee, was allotted accommodation by 10 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 11
901.wp.5001-98.doc the Government wherein she was living separately as the relations between the husband and the wife were strained. While pointing out that the aims and objects of the Act are to control unreasonable evictions and to ensure that in an atmosphere of acute shortage of accommodation there is proper enjoyment of available spaces by those who want and deserve and that the rationale behind the scheme of Section 14(1)(h) of the Act is that if for all practical and real sense the tenant has acquired or built or has been allotted another residence then his need for the old tenanted residence goes and the tenant loses his right to retain his tenanted premises, it was emphasised that to attract the provision the tenant should have domain of the alternative accommodation so as to use it as a substitute for the place which he is using in the, tenancy. It was held that in view of the strained relations between the husband and the wife, the alternative accommodation ceased to be a matrimonial home and the tenant could not use it as a substitute for the demised premises.
18. In Anandi D. Jadhav (supra), the Apex Court referred its earlier decision in Ganpat Ram Sharma Vs. Gayatri Devi, (1987) 3 SCC 576. In this decision, it was laid down that the burden to prove that any of the alternatives mentioned in the section 14(1)(h) is on the landlord. It is only when he establishes this that the burden will shift on 11 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 12
901.wp.5001-98.doc the tenant to show that it is not a suitable alternative accommodation.
19. In B.R. Mehta's case (supra), the Apex Court quoted, with approval, the decision of Delhi High Court in Smt. Revti Devi v. Kishan Lal [1970] All R C J 418, where Deshpande,J., as the learned Chief Justice then was, held that the mere occupation of a new residence by the tenant without any legal right to do so would not be covered by proviso (h) to Section 14(1) of the Delhi Rent Control Act. If he goes to stay in the house of his wife, legally speaking, he has no right as such to stay and can be turned out from the house at any time by its legal owner, namely, the wife. The decision of B.R. Mehta (supra) was considered in Anandi Jadhav's case (supra).
20. The decisions in B.R. Mehta (supra) and Prem Chand's case (supra) were considered by the learned Single Judge of this Court in Dattaram Kodare's case (supra). In paragraph-5, it was observed thus :
"5. Relying upon the decision of the Apex Court in B.R. Mehta v. Smt. Atma Devi and Ors. reported in : [1987] 3 SCR 1184 , the learned counsel for the petitioner contends that acquisition of the premises by the wife of Dattaram, the tenant, could not be a ground for his eviction. In the case of B.R. Mehta, the tenant's wife who was a government servant was allotted a flat by reason of her being a Government servant. It was held that acquisition of the premises by the tenant's wife in the capacity as a Government servant could not be considered as an acquisition of the suitable alternative accommodation by the tenant. There, are two features which distinguish 12 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 13
901.wp.5001-98.doc this decision from the present case. In that case wife had not acquired the premises permanently but was allotted Government premises for her own use during her service, the husband had no domain over the premises and he could not go and stay in the premises as of a right and that was not their matrimonial home. During the pendency of the appeal before the Supreme Court, the wife had resigned and had joined the husband in the rented premises. In the present case, the wife has not acquired the accommodation temporarily but has purchased it. The original petitioner was residing with his wife in her premises as if it was their matrimonial home and was using the suit premises only for the purpose of his practice as an Advocate. The present case is more an the line with the decision of the Apex Court in Prem Chand v. Sher Singh reported in 1981 DRJ 287 (SC) wherein the Supreme Court passed a decree for possession on the ground of acquisition of suitable alternate premises though the alternate flat was purchased by the wife of the tenant."
21. Ms. Miskin relied upon the decision of Saroja Parmeshwaran's case (supra). In that case, the original tenant L.K. Mani (Subramaniam) came to Mumbai for a job. He took the suit premises on monthly rent Rs.45/-. He was living in the suit premises till about 1974. The case of the respondent-landlord was that the original tenant on his retirement shifted to his native place at Coimbatore in the year 1973-74 or thereabout and secured a suitable residence there. The respondent instituted suit in the year 1974 in the Small Causes Court, Mumbai for recovery of possession of the tenanted premises invoking 13 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 14
901.wp.5001-98.doc the ground under Section 13(1)(l) of the Act. During pendency of the suit, original tenant died and his two sons and two daughters were brought on record as his legal representatives. The Courts below decreed the suit under Section 13(1)(l) of the Act. One of the contentions advanced before the learned Single Judge was that the premises acquired at Coimbatore was not suitable to the tenant and, therefore, no decree of eviction could be passed under Section 13(1)(l) of the Act. The Courts below concurrently found that the tenant had acquired alternate suitable residence. In paragraphs-10 and 11, it was observed thus:
10. For the purpose of passing of a decree under Section 13(1)(1) of the Bombay Rent Act, it is necessary for a landlord to prove that the tenant has built or.
acquired suitable residential premises other than the suit premises. The emphasis is on the word "suitable" indicating that the alternative premises alleged to have been acquired by the tenant must be suitable for the ordinary needs of the tenant. Ordinarily, if the alternative premises are acquired in the vicinity or at a place not far away from the suit premises, it may be presumed that the alternative premises are suitable. It would then have to be demonstrated by the tenant that the alternative premises are not suitable for his ordinary needs. But where the alternative premises are alleged to have been acquired by the tenant are situated in a different town or city, it would be necessary for the landlord to further prove the suitability of the premises to the tenant. When the alternate premises are in the vicinity of the rented premises, the burden of proving that the premises are not suitable would ordinarily be 14 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 15
901.wp.5001-98.doc on the tenant to show how the premises are not suitable. But where the alternate premises are situated in a different town or city, then it would be for the landlord to prove the suitability of the alternate premises. of course, it would not be necessary for the landlord to discharge that burden beyond reason of doubt but the ordinary rule in civil cases of "proof by preponderance of probabilities" would apply. Surrounding circumstances would be required to be taken into consideration by the Court for considering suitability of the premises. The fact that the tenant has shifted to an alternative accommodation with his family, the fact that the tenant is not ordinarily using the rented premises and is not living there would be relevant for considering the suitability of the alternate premises. By the very nature of the things, all the factors which are relevant for considering the suitability of the premises cannot be enumerated nor would be wise to attempt to do so. Suffice it to say that Court as an ordinary man of prudence would take into consideration all the relevant surrounding circumstances.
11. The surrounding circumstances in the present case unmistakably point out to the suitability of the alternative accommodation. Coimbatore appears to be the home town of the original tenant. He came to Mumbai for earning his living where he was employed in a private company. Just prior to the retirement he, unfortunately, lost his wife. After his retirement, he moved to his home town, lock, stock and barrel. His two sons also either moved along with him or had moved earlier to Coimbatore. According to the landlord, the tenant constructed his own house at Coimbatore while according to the sons of the original tenant, they constructed the house and their father only moved to their house along with them. The fact remains that the father moved to Coimbatore and in fact he had acquired a premises at 1 Kailash and sons 15 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 16
901.wp.5001-98.doc have built another house at Coimbatore. The original tenant breathed his last at Coimbatore while residing with his family i.e. his sons. These facts show that tenant had No. animus rivertendi i.e. had No. intention to return to the suit premises and had permanently shifted to Coimbatore.
During the pendency of the suit, though it is not clear whether it was before or after the death of the original tenant, the present Petitioner who is his married daughter moved in the suit premises. Her name appears in the voters list as resident of suit premises after 1977. The sons of the original tenant with whom he was living as a family have not challenged the decision of the trial Court but it is the married daughter who has filed and has pursued the present writ petition. She apparently has No. independent right in the premises.
Consequently, it must be held that the premises "1-Kailash" at Coimbatore acquired by the original tenant were suitable residence within the meaning of Section 13(1)(1) of the Bombay Rent Act.
22. Ms. Miskin submitted that the acquisition of the premises by defendant No.2 from her own income does not amount to acquisition of alternate suitable residence by defendant No.1 who is a tenant. She further submitted that assuming that it amounts to acquisition by defendant No.1 tenant still the burden is on the plaintiffs to establish that it is a suitable residence. No evidence is adduced by the plaintiffs to substantiate said case. As against this, Mr. Hushing submitted that in paragraph-5 of the plaint, the plaintiffs specifically asserted that defendants NO.1 & 2 have acquired Pimpri premises which are suitable. In paragraph-6 of the written statement, defendant No.1 denied the 16 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 17
901.wp.5001-98.doc assertions made in paragraph-5 that defendants NO.1 & 2 have acquired the Pimpri premises for their family. Alternatively he contended that even if it is accepted that defendants No.1 & 2 acquired Pimpri premises, still that is not suitable. In paragraph-5 of the written statement, defendant No.2 denied the contentions raised in paragraph-5 and submitted that Pimpri premises is of absolute ownership of defendant No.2 and was acquired by her from her own earning by obtaining loan from Pimpri Chinchwad Municipal Corporation. Defendant No.1 has no concern of whatsoever nature, either financially or otherwise, with Pimpri premises. Without prejudice to said contention, defendant No.2 contended that even otherwise said flat is not suitable since it is situate at a distance of 20 Kms from the suit premises. The daughters of defendants No.1 & 2 i.e. defendant No.4 is taking her education at Pune in Rang. R.P. Paranjpe primary school, Hujoorpaga, Pune - 30.
23. In the examination-in-chief, PW-1 deposed that defendants No.1, 2 and 4 are residing in Pimpri Premises jointly. In the case of Shriram Vishnu Datar (supra), this Court observed in paragraph-7 that Pimpri-Chinchwad also is not too far away and judicial notice can be taken of the fact that there is no great difficulty in negotiating distances by public transport from Pimpri-Chinchwad to Pune and vice versa. 17 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 18
901.wp.5001-98.doc
24. As held in Ganpat Ram Sharma's case (supra), the burden is on the landlord to prove that any of the alternatives mentioned in Section 13(1)(l) (which is similar to Section 14(1)(h) of the Delhi Rent Control Act). The plaintiffs have discharged the burden. The tenant has not established that the Pimpri premises is not suitable alternate accommodation. In view of the decision in Shriram Vishnu Datar (supra), I do not find any merit in the submission of Ms. Miskin that acquisition of the Pimpri premises were not suitable. It has come on record that during pendency of the petition, even defendant No.2 wife has expired on 25.9.2002. That apart, Ms. Miskin submitted that the Pimpri premises have been disposed of in the year 2004. However, this aspect will not change the complexion of the matter. What is relevant is that the tenant had acquired the suitable alternate residence in the year 1989 and thus attracted Section 13(1)(l) of the Act. In view thereof, the impugned order cannot be sustained and as such is set aside. The suit instituted by the plaintiffs is decreed under Section 13(1)(l) of the Act. Rule is made absolute in aforesaid terms with no order as to costs. Order accordingly.
25. At this stage At this stage, Ms.Miskin orally applies for stay to the eviction decree for a period of ten weeks from today. Ms. Miskin states that the defendants are in possession and nobody else is in 18 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 19
901.wp.5001-98.doc possessions of the suit premises. They have neither created third party interest nor parted with the possession. They will hereafter neither create third party interest nor part with the possession. She further states that the defendants and all adult family members using the suit premises are ready and willing to give usual undertaking within four weeks from today. Learned Counsel for the plaintiffs opposes said prayer.
26. Having regard to the fact that defendants desire to challenge this order before the Apex Court, in my opinion, ends of justice would be met by staying eviction decree for a period of ten weeks from today subject to the defendants and all adult members residing in the suit premises giving usual undertaking to this Court within four weeks from today incorporating therein:
(i) that they are in actual possession of the suit premises and nobody else is in possession;
(ii) that they have so far neither created third party interest nor parted with the possession of the suit premises;
(iii) that they will hereafter neither create third party interest nor part with the possession of the suit premises;
(iv) that they will pay the arrears of rent, if any, to the plaintiffs within four weeks from today; and
(v) that in case the defendants are unable to obtain suitable orders from the higher Court within ten weeks from today, they will deliver vacant and peaceful possession of the suit premises to the 19 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 ::: 20
901.wp.5001-98.doc plaintiffs.
27. In view thereof, notwithstanding decreeing the suit, the eviction decree shall remain stayed for a period of ten weeks from today, subject to the defendants filing undertaking in the aforesaid terms within four weeks from today, with copy in advance to the other side. It is made clear that in case the defendants do not file undertaking in the above terms and/or arrears of rent are not paid within four weeks from today, the interim order shall stand vacated without further reference to the Court. List the petition for reporting compliance after five weeks. Order accordingly.
(R. G. KETKAR, J.) Deshmane (PS) 20 / 20 ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 14:02:41 :::