Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8766 OF 2004
Hari Govind Ranade, since deceased through his legal heirs
JUDGMENT
1. Smt. Rekha Hari Ranade, (deleted as LRs are already on record)
2. Sudhanva Hari Ranade, Age 41 years, Occu: Service,
3. Sidarshan Hari Ranade, Age 40 years, Occu: Service,
4. Surendra Hari Ranade, Age 38 Years, Occu: Business All are Residing at CTS,1054, Shukrawar Peth, Toll Road, Pune 411 002 Vs Keshav Alias Suhas Nilkanth Dandekar, Age about 59 years, Occ: Service, Residing at: CTS No. 1052, Shukrawar Peth, Tilak Road, Pune 411 002. *** Mr. Anil V. Anturkar, Senior Advocate a/w. Mr. Sandeep Phatak & Mr. Adhik
Mr. S. M. Gorwadkar, Senior Advocate a/w. Mr. Prasad Keluskar i/b. Mr. G. H. Keluskar For Respondent. *** CORAM: M. M. SATHAYE, J. RESERVED ON: 29th SEPTEMBER 2025 PRONOUNCED ON: 6th NOVEMBER 2025 akn 1/17 P.C.:
1. By this petition filed under Article 227 of the Constitution of India, legal heirs of Defendant/Tenant is challenging the Judgment and Decree dated 20/09/2004 passed in Civil Appeal No. 280 of 2001 by 9th Ad-hoc Additional District Judge, Pune by which Judgment and Decree dated 30/01/2001 passed in Civil Suit No. 629 of 1998 by Judge of Small Causes Court, Pune granting eviction decree, is confirmed.
2. The Petitioner (Hari Govind Ranade) is original Defendant/tenant in the said suit filed by the Respondent - Keshav Alias Suhas Nilkanth Dandekar, original Plaintiff/landlord under provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (‘Bombay Rent Act’ for short) for eviction from the suit premises - three rooms admeasuring 300 sq.ft. approximately on ground floor of building constructed in C.T.S. No, 1054, Janki Nivas, Shukrawar Peth, Tilak Road, Pune- 410002.
3. The Petition was admitted and interim stay was granted to the decree of eviction on 22/03/2006. For the sake of convenience, parties are referred in their original capacity as Plaintiff and Defendant.
4. The case of the Respondent-Plaintiff in short is that wife of Defendant is a daughter of late Dinkar Gangadhar Kelkar, who has started a famous ‘Raja Kelkar Museum’ in Pune. Deceased Dinkar was using about 3000 sq.ft. for his residence from out of buildings in his possession at CTS Nos. 1378 & 1385 at Shukrawar Peth. He died on 17/04/1990, bequeathing his properties by a Will in favour of his daughter, her husband (Defendant) and their sons. Defendant and his wife have shifted to these premises permanently and acquired large spacious suitable alternative akn 2/17 accommodation and do not require the suit premises. That Defendant’s son ‘Sudarshan’ has also acquired a flat at Mayur colony, Pune and his another son ‘Sudhanva’ has also acquired a flat at Paud Road, Pune and they are also residing in their own premises. That since last several years suit premises are kept in locked condition. That the Plaintiff, his wife, one married son, grandchild and another son require the suit premises for their own use and occupation. Thus, the suit was filed for recovery of possession on the ground of acquisition of suitable alternate residence and non-user and for bonafide requirement. By way of amendment it was pleaded that Defendant has purchased a flat jointly with his 3rd son ‘Surendra’ in Nilayam Society, Lokmanya colony, Pune.
5. The Defendant filed written statement contending inter alia that Defendant never resided in Kelkar museum premises and has been residing in suit premises. It is denied that deceased Dinkar was using and in occupation of 3000 sq.ft. for his residence in museum premises. That the deceased Dinkar was staying alone and was using a small kitchen and a little bigger room for sitting/sleeping and there are dispute about the Will of deceased Dinkar. That name of the Defendant’s wife is entered in the property record of CTS Nos. 1378 and 1385 as legal heir with other heirs, however it is denied that Defendant's wife has shifted to the place in museum. Case of suit premises being locked is denied. It is contended that Plaintiff's family has sufficient place/area in their possession. That the Defendant’s father-in-law deceased Dinkar was a great poet who used his property for collecting and preserving antique pieces. That deceased Dinkar was using only one kitchen and one room, which is given to Defendant's wife under Will. However, it is not possible to occupy the same as a suitable alternate residence. By way of additional written statement to amended akn 3/17 plaint, it was contended that flat at Nilayam Society is purchased by Defendant’s 3rd son Surendra and name of Defendant is included in the document only for raising loan. The Defendant has helped his son in getting a residence because his marriage was getting postponed due to lack of own space.
6. The Plaintiff examined himself, his wife and an employee of Municipal Corporation. The Defendant examined himself, his neighbour near suit premises and same employee of Municipal Corporation as his own witness.
7. Learned Judge of the Small Causes Court, Pune, after hearing both sides and after considering the evidence on record, decreed the suit, thereby directing the Defendant to hand over vacant and peaceful possession of the suit premises, and directed payment of mesne profits from date of suit till delivery of possession @ of Rs.185/- per month. The learned Trial Judge has held in favour of Respondent/landlord only on the ground of acquisition of alternate suitable residence and no other ground. Admittedly only Defendant filed Appeal challenging the eviction decree. The learned Appellate Judge who heard and tried the Appeal, was pleased to dismiss it thereby confirming the decree of eviction. It is in these circumstances that the Original Defendant has filed present Writ Petition, challenging concurrent finding of fact.
8. During pendency of the petition, original Defendant expired and his legal heirs were brought on record viz. his widow and three sons. Further, during pendency of the petition, widow of Defendant also expired and now the petition is being prosecuted by three sons of original Defendant. akn 4/17 SUBMISSIONS
9. Learned Senior Advocate Mr. Anturkar appearing for the Petitioners invited this Court's attention to the recitals of the Will of deceased Dinkar and contended that the two rooms, which were used by deceased Dinkar and his wife Kamalabai were considered as special and sacred by deceased Dinkar and if recitals are read as a whole, it is clear that though the said rooms are bequeathed to Defendant and his wife, the Will itself provides that the said place along with all its furniture has to be kept as it is and no change can be made therein and it is also contemplated that if any connoisseur of poetry or VIP asks for seeing that place, the said two rooms are meant to be shown to them as a monument. It is submitted that the Will itself contemplates that the said two rooms are directed to be kept as a monument for showing the life and times of deceased Dinkar and his wife. It is submitted that under various recitals, the property cannot be sold by Defendant or his wife or their children.
10. Mr. Anturkar further submitted that as per recitals of the Will, if Defendant and his wife and their children do not occupy the said rooms within particular time, then the same is directed to be used as museum only and is not to be given for use of servants. He submitted that bequeath of such premises, which is limited not only in its use, but has conditions and fetters of not moving even furniture can never be called as ‘a suitable residence’. He submitted that a man can not be expected to live in a room, which is required to be ‘shown’ as a monument to a visitor of a museum. He submitted that this is not an acquisition through volition and bequest cannot be included in acquisition of suitable alternate residence as contemplated under section 13(1)(l) of the Bombay Rent Act. He submitted that akn 5/17 ‘acquisition’ has to be given restrictive meaning because it deprives a tenant of his statutory protection. He submitted that this bequest cannot be considered as allotment and also cannot be considered as acquisition of vacant possession because, as per Will itself neither Defendant nor his wife nor their children are permitted to even move furniture therein or use it as they want and the premises are denuded of privacy. He submitted that the flats acquired by his sons at Mayur Colony and Rambaug Colony cannot be suitable alternate residence for the tenant because Rent Act does not contemplate the tenant to stay at the mercy of his children.
11. This Court put a query that when as on today, both the tenant and his wife are no more, and the present Petitioners (sons of Defendant) are already having their own residences, can this petition be prosecuted challenging eviction decree on the ground of section 13(1)(l) of Bombay Rent Act. Mr. Anturkar answered that the Respondent- landlord ought to have raised this point when civil application was filed for bringing legal heirs of original Defendant on record. He submitted that Civil Application No. 318 of 2010 was allowed on 17/02/2010, after death of original Defendant on 23/10/2009. He submitted that it was open for the Respondent-landlord to contend at that time, that the right to sue no more survives because the issue involved was person-centric viz Defendant-Hari Govind Ranade acquiring alternate suitable residence. But since no objection was taken at that time, it is not open to raise the same now. He submitted that legal heirs are already on record and therefore this issue cannot be revisited. He submitted that in addition, Respondent-landlord has proceeded to file Civil Application NO. 472 of 2016 for compensation, after legal heirs were brought on record and by order dated 01/12/2016, the legal heirs have been directed to deposit Rs.6000/- per month, which they are depositing regularly. He submitted that akn 6/17 thus Respondent-landlord has accepted present petitioners as tenants and therefore the right to sue survives.
12. He further submitted that tenancy is inheritable under section 5(11)
(c) of the Bombay Rent Act and therefore legal heirs are entitled to be heard because if it is held that suit cannot be decreed on the ground of alternate suitable residence then the legal heirs will be entitled to retain possession of the suit premises. He further submitted that since right to sue survives upon present petitioners and the tenancy is inheritable under section 5(11)(c) of the Bombay Rent Act, as on today, the petitioners are tenants under the present Maharashtra Rent Control Act, 1999 which does not have similar provision under section 16 for eviction on the ground of alternate suitable residence. Therefore, it is submitted that the decree as it stands, cannot be sustained in absence of similar provision under section 16 of the Maharashtra Rent Control Act. Therefore, it is submitted that even if it is assumed that tenant’s sons have acquired alternate suitable residences and they are well placed, still eviction decree cannot be sustained against them. Finally, he submitted that the real issue here is only whether the original tenant had acquired vacant possession of suitable residence for himself in the museum place and the acquisition by wife or sons is irrelevant and therefore this Court may not enter other issues, which do not arise and which involve disputed questions of facts and law, incapable of decision without evidence. He relied upon the following judgments in support of his contentions: (a) Saharabegam Sikandar Shaikh (Mrs.) and Another versus Abdul Ali Mawaji Tejani and Another [1991 (2) Bom. C.R. 455] (b) Shankar Nana Waychal & Ors versus Mohan Ganesh Date akn 7/17 & Another [1985 (1) Bom. C.R. 100]
13. On the other hand, Mr. Gorwadkar, learned Senior Counsel for the Respondent-Landlord submitted that the Defendant/tenant had not disclosed the acquisition of one more flat in Nilayam society, which is a 2 bedroom hall kitchen flat jointly owned by him with his third son Surendra in September 1999. He submitted that the Defendant admitted in his crossexamination that he had purchased a flat with third son Surendra which was not disclosed in the written statement. This was in addition to the two rooms in the museum building. He submitted that in April 2004, the Plaintiff was required to amend his plaint and add paragraph 3(c), pleading acquisition of third flat by Defendant in Nilayam society. It is submitted that additional written statement was filed in July 2004, however, Defendant has not stepped into witness box to support the contentions raised in written statement dated 19/07/2004. His son Surendra gave evidence and the unsuitability of flat at Nilayam society was not proved. He submitted that the copy of the sale deed of Nilayam society flat is produced on record at Exh. 69. He however, fairly accepted that presently, ad-hoc compensation of Rs.6000/- is being paid to the landlord. However, he maintained that as on today, nobody is occupying the suit premises and it is kept in locked condition.
14. So far as the argument about present petitioners being brought on record without any objection is concerned, Mr. Gorwadkar submitted that the enquiry under Order XXII of Civil Procedure Code, 1908 (‘CPC’ for short) is summary in nature and will not give tenancy rights per se. He submitted that whether any of the present petitioners were residing with the original tenant/Defendant is a matter of evidence and therefore no right under akn 8/17 section 5(11)(c) can be assumed in favour of present petitioners. He submitted that if original Defendant is a party purchaser in the sale deed executed for purchase of Nilayam society flat, then its acquisition cannot be denied and whether the said flat is suitable or not has to be proved by entering into witness box, which is not done by the Defendant. Relying on section 2(11) of CPC, it is contended that legal representative means a person who in law represents the ‘estate of the deceased’. It is submitted that post eviction decree, evenif its execution is stayed during pendency of this petition, no ‘estate of the Defendant’ is left behind in the suit premises. Therefore, it is submitted that there is no question of present petitioners claiming survival of right to sue. He submitted that unless this Court comes to a positive conclusion that estate is left behind by deceased Defendant, right to sue will not survive and the present petitioners cannot be permitted to proceed with the petition to maintain their challenge to eviction decree. He submitted that the Appellate Court has considered the acquisition of third flat in Nilayam society and the said consideration is a question of fact about which probable finding is rendered by the Appellate Court. Therefore, it is urged that no interference is required in the said finding in the limited writ jurisdiction. He relied upon following judgments in support of his case (a) Heera Traders v. Kamla Jain [(2022) 18 SCC 233] (b) Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. [(2005) 1 SCC 705]
15. In rejoinder, it is submitted on behalf of the Petitioners that even if the enquiry under Order XXII of CPC is summary in nature, it is already determined who will prosecute the petition and legal heirs are also paying ad-hoc payment and therefore right to sue definitely survives. It is contended that the estate continues in the tenancy since legality of eviction akn 9/17 decree is under challenge, and therefore the Petitioners are competent to prosecute the Petition.
REASONS AND CONCLUSION
16. I have carefully considered the rival submissions and perused the record.
17. First and foremost, it is necessary to consider whether the present Petitioners (sons of original Defendant) can proceed with the petition challenging the finding which is person-centric vis-a-vis original Defendant. The rival submissions, as already noted above, requires me to consider the effect of order passed under Order XXII of the CPC. Admittedly, in the present case, under earlier order, the present Petitioners are permitted to be brought on record as legal representatives of the original Defendant. At that time, no objection was taken about their competence to challenge the person-centric finding. Perusal of the Order XXII fo the CPC shows that there is no abatement on the death of the party and on application by legal heirs, the Court can permit the legal heirs or legal representatives to be brought on record in case right to sue survives. The Petitioners are already permitted to be brought on record and the Respondent - landlord has even applied for payment of interim compensation from the legal heirs, which application has been allowed. It is also admitted that the Petitioners are paying/depositing such interim compensation. In such circumstances, in my view, it is not open for the Respondent to contend that the Petitioners cannot challenge the finding about original Defendant acquiring suitable residence.
18. However, at the same time, this Court cannot overlook the fact that the permitting sons of original Defendant to proceed with the petition akn 10/17 cannot be held tantamount to accepting them as tenants as provided under Section 5(11)(c) of the Bombay Rent Act. Section 5(11)(c) of the Bombay Rent Act is a special mode of inheritance of tenancy. It provides that the tenant includes in relation to any premises let for residence, when the tenant dies, any member of tenant’s family residing with the tenant at the time of his death or in the absence of such member, any heir of deceased tenant, as may be decided, in default of agreement, by the Court. Admittedly, there is no evidence about who amongst the the Petitioners, was residing with the Defendant at the time of his death. In the absence of such evidence, it is not possible to confer any such right, for the first time in writ petition. Provisions of Order XXII Rule 5 of CPC deals with the general question arising in civil matters, as to whether any person is or is not legal representative of the deceased. Such question needs to be determined by the Court and when such question arises before an Appellate Court, that Court may before determining such question, direct subordinate Court to try the question and return the record together with the evidence, if any, its finding and reasons therefor and then the Appellate Court may take the same into consideration. If this general provision is taken into consideration, the same also indicates and supports the view that right to inherit tenancy under Section 5(11)(c) of the Bombay Rent Act cannot be directly confirmed first time in the writ petition in absence of any evidence in that regard.
19. It is sought to be argued by learned counsel for the Petitioners that since present Petitioners are brought on record when the Maharashtra Rent Control Act, 1999 (‘MRC Act’ for short) was applicable, the decree on the ground of acquisition of alternate suitable residence cannot be sustained against them because no such ground is available under MRC Act. This argument is only stated to be rejected, because the trial has proceeded on akn 11/17 the case understood by the parties about whether original Defendant acquired alternate suitable residence; and not his legal heirs or representatives. Such consideration is essentially beyond the remit of this petition.
20. Learned counsel for the Respondent- landlord has argued that a decree of eviction against the tenant extinguishes his status as tenant and therefore, his ‘estate in the form of tenancy right’ is lost and therefore, after decree of eviction, if the tenant dies his legal representatives would not have any estate to represent as contemplated under Section 2(11) of CPC. This argument, though apparently an attractive proposition, need not detain this Court any further, because consideration in the writ petition can be safely limited to considering legality of the impugned order, which is permitted at the instance of legal heirs and representatives of the deceased Defendant, who are permitted to be brought on record.
21. In view of what is observed above, I am restricting the consideration in this petition to whether the Courts below were justified in holding that original Defendant acquired alternate suitable residence while passing a decree of eviction.
22. Now turning to the merits of the case, it is noted at the outset that acquisition of alternate suitable residence as provided under Section 13(1)
(l) of the Bombay Rent Act essentially requires consideration whether a vacant possession of the residence is acquired or allotted to tenant which is suitable. Let us test this in the background of facts of this case. The case of the landlord is two fold. Firstly, two rooms in the museum premises bequeathed to the Defendant and his wife are alleged to be acquisition of suitable residence and secondly, it is alleged that sons of tenant have akn 12/17 acquired independent flats which form alternate suitable residence for the tenant.
23. Let us first consider the premises bequeathed under Will in the museum property. Over all reading of the Will of the deceased Dinkar indicates that two rooms which deceased Dinkar and his wife used and where wife of deceased Dinkar expired and deceased Dinkar wrote most of his poems, is considered by the testator as very special and close to his heart and sacred in his opinion. Deceased Dinkar has provided in the Will that the ornamental furniture, beds and other things in those two rooms cannot be even moved or disposed of and the said two rooms are directed to be used and kept as monument showing life and times of deceased Dinkar and his wife. So much so, that he has stated in his Will that if some connoisseur of poetry or VIP comes, who wants to visit the said two rooms, the same be shown to such visitor. These recitals, with which the alleged alternate suitable residence is made available to the Defendant tenant, are so restrictive in nature and clearly put fetters on the right to use the said rooms. The recitals also prejudicially affect privacy of a person occupying the said rooms, because they are directed to be shown to strangers visiting the museum. The Defendant and his wife is not permitted to even move the furniture in the said rooms. In such circumstances, in my considered view, these two rooms, by no stretch of imagination can be called ‘suitable residence’. A man needs basic freedom to use his residence the way he wants and privacy is an integral part of any residence. If some premises are denuded of such liberty and basic privacy, then such premises can hardly be called ‘suitable residence’. Therefore, in my considered view, the premises bequeathed to the deceased Defendant and his wife in the museum property under Will of the deceased Dinkar cannot be called ‘acquisition of alternate akn 13/17 suitable residence’ as provided under Section 13(1)(l) of the Bombay Rent Act.
24. Now let us consider the second alternate suitable residence alleged to be available with the deceased Defendant. For considering this aspect, it is necessary to have a re-look at chronology of events. The suit was filed in November 1998. At that time, a flat acquired by Defendant’s son Sudarshan in Mayur Colony as well as a flat acquired by Defendant’s son Sudhanva in Rambaug Colony were pointed out as alternate suitable residence. During pendency of the appeal in January 2004 by way of amendment, it was brought on record that during pendency of the said suit itself, the Defendant jointly acquired with his 3rd son Surendra a two bedroom, hall & kitchen flat (‘2 BHK flat’ for short) in Nilayam Co-operative Housing Society, Lokmanya Colony, Kothrud. The Defendant filed additional written statement to this amendment in July 2004 and admitted that such a flat has been purchased jointly. However, it was contended that since his 3rd son Surendra was not having financial capacity, the Defendant tenant helped him financially and his name was included as joint purchaser only so that loan can be raised. The copy of the sale deed dated 07/09/1999 of this joint acquisition is brought on record as Exhibit-69.
25. It is therefore clear that during pendency of the suit itself, the Defendant had jointly acquired 2 BHK flat in Lokmanya Colony, Kothrud and this fact was not brought to the notice of the Court by tenant; in other words suppressed. The landlord on coming to know this fact, was required to file amendment application at appellate stage and amend the pleadings. At appellate stage, the fact was admitted by the Defendant tenant but he thereafter did not enter into witness box. However, his son Surendra entered akn 14/17 into witness box, who was cross-examined. Cross-examination of Defendant son Surendra shows that he has admitted that (i) the said flat consists of 2 bed rooms, a hall and a kitchen, (ii) that he got married after 17 months from the date of purchase of flat, (iii) that his yearly income was Rs.50,000/- to Rs.60,000/-, (iv) that in addition to bank-loan he has also taken hand-loan from friends and relatives, (v) that his other brothers are having one bedroom flat each, (vi) that his father (original Defendant) is helping him in repayment of loan, (vii) that prior to his marriage, he was residing in the property adjacent to the museum.
26. In the teeth of these admissions, it is clear that Defendant’s 3rd son Surendra himself was not at all in financial position to repay the installment of the loan, much less purchase the flat. In the additional written statement, Defendant took a stand that he has helped his son purchase a house because his marriage was getting postponed for want of own house. However, Defendant’s son Surendra has admitted that he got married after 17 months from purchase of the flat. The other sons of Defendant who have purchased flats on their own have purchased 1 BHK flats but 3rd son, who was not earning well and who was not able to purchase flat or repay its loan, has purchased 2 BHK flat. All these facts clearly indicate that it is original Defendant who himself has purchased 2 BHK flat during pendency of the suit. His name is shown in document Exhibit-69 as joint purchaser. This fact was suppressed from the Court and the landlord was required to bring on record the said fact during pendency of the appeal.
27. A feeble attempt was made to argue that the name of the Defendant is appearing in the sale deed recitals as party ‘mainly for financial assistance’. This will not make any difference to the admissions narrated above. Original akn 15/17 Defendant still remains very much owner of a 2 BHK flat, who has majorly contributed towards its payment by raising loan and its repayment. All these aspects are considered by the Appellate Court in the paragraph Nos.16, 17 & 18 of the impugned judgment. The finding therein about the Defendant acquiring suitable alternate residence in the form of 2 BHK flat in Nilayam Co-operative Housing Society, Lokmanya Colony, Kothrud, is not only probable finding but it is the most probable finding. Therefore, it does not require any interference.
28. So far as the case law relied upon by the Petitioners in the case of Saharabegam Sikandar Shaikh (supra) and Shankar Nana Waychal (supra) are concerned, the ratio therein is that acquisition for benefit of tenant’s son and acquisition by tenant’s relative (son) cannot be made a ground for eviction under Section 13(1)(l) of the Rent Act. That ratio is not applicable to the facts of the present case, in as much as, in the present case, it is found by the Appellate Court as well as this Court that original Defendant has himself acquired a 2 BHK flat having his name as joint purchaser, having raised loan for the same and having made repayment therefor. Therefore, the said case-law will not advance the case of the Petitioners.
29. In the aforesaid facts and circumstances, the impugned Judgment and Decree does not suffer from any perversity or error apparent on the face of record. The finding under impugned judgment is most probable. There is no jurisdictional error. Hence, no interference is required in the limited jurisdiction under Article 227 of the Constitution of India. The writ petition is accordingly dismissed with no order as to cost. Rule is discharged.
30. The Respondent is at liberty to withdraw the amounts deposited by the Petitioners in this Court pursuant to the order dated 01.12.2016. The akn 16/17 Respondent is also at liberty to withdraw all other amounts, if deposited on behalf of the Petitioner or his legal heirs in the concerned Trial Court or Appellate Court or Executing Court.
31. The Petitioners are directed to hand over vacant and peaceful possession of the suit premises to the Respondent within a period of six weeks from today. The eviction decree becomes executable immediately on expiry of six weeks. this order. (M. M. SATHAYE, J.) akn 17/17