Full Judgment Text
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CASE NO.:
Appeal (civil) 7684 of 1995
PETITIONER:
SMT.PADMAVATI DEVADATTA KAMAT & ORS.
Vs.
RESPONDENT:
SHRI VIJAYKUMAR NARAYAN MEHANDALE & ANR.
DATE OF JUDGMENT: 04/03/2002
BENCH:
N. Santosh Hegde & S.N. Phukan
JUDGMENT:
SANTOSH HEGDE, J.
Before we proceed to dispose of this appeal on merits, we
must record what had transpired on 11th September, 2001 for a
complete narration of the facts involved in this case. In this appeal,
leave was granted as far back as in the year 1995 and the matter
was posted for final hearing on 11th September, 2001 on which
date Shri Ramesh P. Bhatt, learned senior counsel appearing on
behalf of the appellants, had argued the matter elaborately. He
challenged the findings of the courts below that the appellants have
acquired an alternate accommodation on the ground that the same
was not based on material on record among other contentions.
After hearing Shri Bhatt for the appellants and Shri V.N.Ganpule,
learned senior counsel for the respondents and perusing the
records, we expressed our view that we were not inclined to
interfere with the concurrent findings of fact arrived at by the
courts below and were intending to dismiss the appeal. Taking that
into consideration, the eviction proceedings were initiated as far
back as in the year 1980 and nearly 20 years had passed and the
respondent-landlords were unable to get possession of the
property, we were not inclined to grant any long period for the
appellants to vacate the premises. At this stage, Shri Bhatt made a
fervent appeal to the Court that if the appellants were to be
dispossessed without sufficient time they will be put to a great
hardship since immediate alternate accommodation will not be
available to them. Though we were inclined to grant some short
time, on a repeated plea made by Shri Bhatt, Shri Ganpule learned
senior counsel appearing for the respondents very fairly acceded to
the request of the appellants to grant one year’s time provided, of
course, the appeal in question was withdrawn. Obviously
considering this offer as fair and advantageous to the appellants,
Shri Bhatt accepted the same and made a submission to the Court
that he will be withdrawing the appeal provided one year’s time
was granted to his client to vacate the premises. Accordingly, the
order was passed dismissing the appeal as withdrawn and granting
an year’s time to vacate the premises on the appellants’ filing an
undertaking in the usual terms before the Registry of this Court.
After the said order was passed, certain applications were
filed before this Court. One of them was on behalf of the
appellants filed through the 4th appellant in which certain
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allegations were made against the counsel who represented the
appellants and sought their discharge. Simultaneously, an
application was also filed by the counsel on record for the
appellants seeking their discharge from the case in view of the
allegations made against them by the appellants. Those
applications have since been disposed of by us and the counsel
who appeared for the appellants have been discharged on their
request without accepting the allegations made against them.
Those applications apart, a review petition was also filed seeking
the review of the order dated 11th September, 2001 on the ground
that they were not properly represented by their counsel and
withdrawal of the appeal was without instructions from them.
Though in the normal course grounds raised in the review petition
would not have been considered as sufficient grounds to entertain a
review petition, still with a view to grant an opportunity to the
petitioner who wanted to argue the case himself, as an exceptional
case, we decided to allow the review petition and heard the 4th
appellant Dinesh Devadatta Kamat on merits of the case at length.
We also permitted the said appellant to file written submissions
within four weeks which he has done. We have heard the
arguments of the said appellant and perused the written
submissions.
The appellant’s family took a suit schedule premises on rent
some time prior to the year 1976. On 12.12.1977, the respondent-
landlords served a notice on the original tenant seeking the
vacation of the suit premises, inter alia, contending that the said
premises was required by the landlord for his and his family’s use
and occupation. That notice was replied by the tenant alleging that
the requirement put forth by the landlord was false and incorrect.
In view of the said denial, the landlord was compelled to file a suit
in the year 1980 in the Court of Civil Judge (Junior Division)
Kalyan in Civil Suit No.174/80, inter alia, praying for possession
on the ground of subletting as well as on the ground that the tenant
has acquired separate accommodation. The original tenant filed his
written statement inter alia denying that he had acquired a flat in
Prayag Raj Apartments because the said accommodation was
exclusively owned by one of his sons Sunil Devadatta Kamat and
the said original tenant contended that he continued to reside in the
suit premises along with his son Dinesh Devadatta Kamat. It is
necessary to note at one stage that the suit came to be dismissed for
default but subsequently it was restored to file. Thereafter, the suit
filed by the respondent-landlords came to be decreed by a
judgment of the trial court dated 28th August, 1992 wherein the
court, inter alia, held that the original tenant was in possession of
separate accommodation and the said tenant was not using or
occupying the suit premises, hence, a decree for possession was
passed in favour of the respondent-landlords.
Being aggrieved by the said judgment, the appellants herein
preferred Civil Appeal No.290/92 in the Court of District Judge,
Thane in Maharashtra. The Appellate Court by its judgment dated
31.1.1995 agreed with the findings of the trial court and dismissed
the appeal. Therefore, the appellant filed a writ petition before the
High Court of Judicature at Bombay being W.P.No.770 of 1995
which petition came to be dismissed by the High Court on
22.2.1995 holding that:
"The courts below have found that though
the tenant has acquired suitable alternative
accommodation in the name of Sunil, the
acquisition is for the benefit of the tenant and all
his family members and on that count, the decree
for eviction is passed. I do not think any
exception is possible to be taken to that view of
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the matter especially in this writ jurisdiction. The
writ petition is rejected."
It is against this judgment the appellants have preferred the
above civil appeal and, as stated above, the appeal was entertained
by this Court and an interim stay of operation was granted as far as
back in the year 1995. Above-mentioned Shri Dinesh Devadatta
Kamat one of the appellants who appeared in person contended
that the findings of the courts below were perverse inasmuch as the
accommodation acquired by Sunil, one of the members of the
family, was exclusively for his benefit and not for the benefit of
the joint family. Apart from stating the above, he has not been able
to point out with reference to the records how this finding is either
perverse or not based on any evidence. We notice that the three
courts below have concurrently come to the conclusion that the
accommodation acquired in the name of Sunil was for the benefit
of the entire family and the said accommodation was a suitable
alternate accommodation. Therefore, the respondent-landlords
were entitled for possession of the suit schedule premises for their
own use and occupation. In this regard, it may be of some
relevance to refer to the finding of the learned Civil Judge in Civil
Suit No.174/80 wherein he has held :
"Admittedly deceased Devadatta was
tenant in the suit premises prior to purchase by
plaintiff. It is also not in dispute that he resided
upto 1980 in the suit premises as tenant. Dinesh
married in 1989 and his wife is serving in
BMC. There is no any evidence produced by
the defendants like voter list or ration card etc.
to show that Dinesh Kamat was residing in the
suit premises during 1969. Dinesh Kamat is
running the business of astrology and earning
money thereby. He is also Union Leader of
Organisation".
This plea of the trial court has been accepted both by the
appellate court as well as writ court and this being a finding on
question of fact, we do not find any reason to interfere with the
same, more so when the appellant in person, who argued this
appeal in the second round, was unable to point out with reference
to records how this finding is either incorrect or perverse. Apart
from making certain general observations as to his present status
and hardship that he may suffer if eviction is ordered, this
appellant was not able to point out how respondents were not
entitled to the eviction sought for by them.
As stated above, after the arguments concluded, we had
given an opportunity to the appellant who argued this appeal to file
written submissions within four weeks from that date which, as
stated above, he has filed and we have considered the same. In the
said written submissions except stating that he has sufficient
material to show that he continues to reside in the suit premises, he
has not established how the findings of the courts below are
erroneous. We do not think at this belated stage he should be
permitted to produce any fresh documents that is even assuming he
has some such documents and they are relevant.
Having considered the arguments addressed on behalf of the
appellants both oral and written and having perused the records,
we find no merit in this case.
For the reasons stated above, this appeal fails and the same
is dismissed with costs.
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...............................J.
(N.Santosh Hegde)
...............................J.
March 4, 2002. (S.N.Phukan)
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