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Judgment
G.D. Kamat, J.—This petition under Article 227 of the Constitution of India assails the judgment and decree dated 7th February 1986 of the Judge of the Small Causes Court, Pune in Civil Suit No. 2170 of 1979 which directs the eviction of the petitioners and the appellate judgment and decree dated 13th January 1989 whereby the petitioners'' appeal was dismissed.
The afore-mentioned Civil Suit was instituted by Shri Subhash Anant Inamdar, since deceased against Smt. Bhagirathibai Gangadhar Vartake for the eviction of the latter and restoration of residential flat bearing No. 402, of Building No. 1443, Shukrawar Peth Pune. The ground invoked by deceased Subhash Inamder was that he needed Flat No. 402 (for short "the demised premises) for his personal occupation as he has already retired from Defence Services (Air Force) on 30th June 1977. For that matter in his suit for eviction, he claimed the benefit of Section 13A(1) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, the Rent Act") as if he is in service in the Defence forces and for that matter did not specifically invoke the ground of eviction u/s 13(1)(g) of the Rent Act which is otherwise available to any landlord to evict his tenant and get possession of the premises in case the landlord proves that he reasonably and bonafidely requires the premises for his own use or that of his family.
The suit was vehemently contested by the original defendant Bhagirathibai on the ground that she had been the tenant since year 1960 and the original plaintiff Subhash Inamdar having known about the factum of tenancy had purchased the demised premises in March 1978. She also contested the proceedings on the ground that Inamdar having retired from Air Force is not entitled to invoke Section 13A(1) of the Rent Act.
It is common ground that the trial Court dismissed the suit on 7th August 1982 on the hyper-technical ground that the original plaintiff Subhash Inamdar could not claim possession of the premises or eviction of the tenant u/s 13A(1) of the Rent Act because he was already a retired member of the Defence Services. Being aggrieved by the judgment and order, Inamdar preferred an appeal which he succeeded. In that, the appellate Court by its judgment dated 5th October 1985 held that the trial Court was in error in dismissing the suit merely because the original plaintiff had invoked Section 13A(1) of the Rent Act and remanded the Civil Suit proceedings to the trial Court for deciding afresh to find out whether the original plaintiff has made out a case for eviction of the tenant and restoration of the demised premises for his personal occupation vide Section 13(1)(g) of the Rent Act.
After the remand, the trial Court also recorded further evidence in the matter and on reaching a finding and conclusion that the original plaintiff Inamdar requires the demised premises reasonably and bonafide for his personal use, decreed the suit by the impugned order dated 7th February 1986, and the result was that Bhagirathibai was directed to hand over possession of the demised premises within two months of the decree.
Being aggrieved by the judgment and decree of the trial Court, the legal heirs of Smt. Bhagirathibai instituted an appeal being Appeal No. 614 of 1986 challenging eviction and the order of restoration of the demised premises in favour of original plaintiff Inamdar. The District Judge, Pune by the appellate judgment and decree dated 13th January 1989 dismissed the appeal, with the result, the eviction of the tenant was confirmed as also the restoration of possession of the demised premises u/s 13(1)(g) of the Rent Act. This Writ Petition assails the orders of the Courts below which is instituted by Manohar Gangadhar Vartak who is, in fact, one of the legal heirs of deceased tenant Bhagirathibai and who had come on record in place of his mother when the appeal was instituted. It appears that during the pendency of this Writ Petition, aforesaid Manohar Gangadhar Vartak also expired, with the result his heirs have come on record in the title clause in his place. The original plaintiff Subhash Inamdar also expired during the pendency of this Writ Petition and that is how his legal heirs have come on record in the title clause as respondents.
Miss Dandekar, learned Counsel appearing for the petitioners, contended that the original plaintiff Subhash Inamdar had sought eviction of Bhagirathibai by invoking the provisions of Section 13A(1) of the Rent Act and in-as-much-as he was not a serving member of the Defence Force on the date of the institution of the suit, there is no question of affording any relief under the provisions of Section 13A(1) of the Rent Act. According to her, for that matter, no case was pleaded u/s 13(1)(g) of the Rent Act. She next contended that there is evidence to suggest that the father of original plaintiff Subhash Inamdar has a house at 779, Sadashiv Peth, Pune and what is more, at some time, original plaintiff Subhash Inamdar had even resided therein. She next pointed out that the question of paucity of space at premises bearing No. 779, Sadashiv Peth, Pune cannot be complained of as father of original plaintiff has since expired. Miss Dandekar, therefore, suggests that the respondents can now continue to occupy the grand-father''s premises at 779, Sadashiv Peth, Pune. She then says that though Manohar Gangadhar Vartak is dead, his widow and one son are in occupation of the demised premises and they have no place whatsoever in Pune and, therefore, considering the case on comparative hardship, the eviction of the petitioner is not justified.
It appears that the petitioner has in occupation of the service quarter when he was a member of the Air Force until sometime he retired on 30th June 1977. The original plaintiff had made out a case in support of the relief in the suit that he had been occupying some friends quarters and some other places belonging to his friends in the city of Pune itself. Miss Dandekar now says that the original plaintiff Inamdar did not bring any cogent and documentary evidence in support of his stand that he has been occupying different places belonging to his friends for his occupation. It seems that Miss Dandekar wants to pin point that the original plaintiff must have been residing in his father''s house and was trying to make believe as if he was in occupation of various places of his friends.
I am afraid that none of the contentions raised in this petition or challenges made to the impugned orders merit any consideration. In so far as the first point is concerned that the original plaintiff had claimed relief by invoking Section 13A(1) of the Rent Act and, therefore, he could not have been granted relief u/s 13(1)(g) of the Rent Act is to be rejected because finally both these provisions enable a landlord to obtain eviction of the tenant or restoration of tenanted premises when he reasonably and bonafide required the same for his personal use. Section 13A(1) of the Rent Act is available to the persons in Defence Forces, while Section 13(1)(g) of the Rent Act is available to any landlord. Section 13A(1) of the Rent Act is a provision which enables a service member of the Defence Forces to get a speedy redress. What is, however, required to be seen is irrespective of what the landlord invoked by way of provision of law, whether or not, a landlord has made out a case which is genuine and that he reasonably and bonafide required the suit premises for his personal occupation or that of his family. It is not possible for this Court to go by the label merely because original plaintiff had invoked Section 13A(1) of the Rent Act, for taking our that view (Sic) will only be a hyper-technical view.
Coming to the second grievance, it must be seen that the two Courts below have not accepted that the original plaintiff and/or his family could accommodate themselves at 779, Sadashiv Peth, Pune and it is not open to this Court to come to a different finding in writ jurisdiction.
Coming to the third ground, it is equally not possible for this Court to re-appreciate or re-assess the evidence as to whether or not the original plaintiff, Subhash Inamdar was or was not putting in various places of his friends before, during and after the institution of the suit for eviction. Once, the finding has been rendered by the two Courts below it is not possible for this Court to set in appeal to re-assess or appreciate evidence afresh. In this view of the matter, it is not possible for this Court to interfere with the orders assailed in this petition in its extra-ordinary writ jurisdiction. Very recently, the Supreme Court in the decision of Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, that the High Court cannot extend its jurisdiction under Article 227 of the Constitution of India. That the Rent Act is a special legislation governing landlord-tenant relationship and disputes and the legislature in its wisdom has not provided Second Appeal or Revision to the High Court, the object being to give finality to the decision of the appellate authority. The Supreme Court further observed that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions and it must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless the High Court interferes.
In the result, the petition fails and is dismissed. Rule is discharged and interim stay is vacated. The respondents, however, shall not execute the decree and obtain possession of the demised premises on or before 31st October 1996 provided the petitioners file an affidavit and undertaking before 15th July 1996 indicating the persons residing in the suit premises and undertaking to this Court which when filed would be deemed to be accepted that the petitioners shall not induct any party into demised premises nor create any third party rights and shall hand over the possession of the premises to the respondents on 1st November 1996. In the event, the affidavit and the undertaking is not filed, it is open to the respondents to execute the decree but, in any event, not before 31st August 1996. The petitioners to pay costs.