Sou. Gangubai Shankarrao Methe v. (Org. Defendant)

applicant/defendant- tenant has acquired suitable alternate accommodation.

3. Mr. Borkar, the learned counsel for the applicant makes three submissions, namely, (i) that during the -: 2 :- pendency of the suit before the lower appellate court, the Bombay Rent Act, 1947 was repealed and new Act, namely, the Maharashtra Rent Control Act, 1999 came into force and that since under the new Act acquisition of suitable alternate accommodation is not a ground for eviction, the decree of eviction of tenant could not have been passed. (ii) the suitable alternate accommodation which is alleged to have acquired by the applicant-tenant, was in fact acquired by her son. (iii) that the respondent- landlord under the document at Exh. 82 entered into an agreement to sell the suit premises to applicant-tenant and therefore, relationship of landlord and tenant is merged in the relationship of seller and purchaser and therefore, the suit for eviction could not have been filed by the respondent- landlord.

4. Mr. Mhatugade, the learned counsel for the respondent per contra submitted that the old Act, i.e. Bombay Rent Act 1947 is very much applicable in the facts and circumstances of the present case. According to him though alternative suitable accommodation was acquired by the son of the applicant, the same has been later on transferred in favour of the applicant by her son. He also submitted that in view of the recitals in para 5 of Exh. 82, it cannot be said that the relationship of landlord and tenant is merged in relationship of seller and purchaser. -: 3 :-

5. Having heard the learned counsel for the respective parties, I do not find any merit in the civil revision application.

6. So far as first ground of objection about applicability of the provisions of the Maharashtra Rent Control Act, 1999 is concerned, the provisions of section 58 of the said Act are very clear. Under subclause 2 (a) of the said section, all applications, suits and other proceedings under the old Bombay Rent Act pending on the date of commencement of the Maharashtra Rent Control Act before any Court, Controller, Competent Authority or other officer or authority shall be continued and disposed of, in accordance with the provisions of the old Act. Thus the submission of Mr. Borkar in this regard is devoid of any substance.

7. In order to substantiate second submission, Mr.Borkar relied upon the decision of the Apex Court in the case of Anandi D. Jadhav (dead) by LRS vs. Nirmala Ramchandra Anandi D. Jadhav (dead) by LRS vs. Nirmala Ramchandra Anandi D. Jadhav (dead) by LRS vs. Nirmala Ramchandra Kore & Ors. reported in (2000) 3 Supreme Court Cases 703 Kore & Ors. reported in (2000) 3 Supreme Court Cases 703 Kore & Ors. reported in (2000) 3 Supreme Court Cases 703 and the judgment of the learned single Judge of this Court Nibilal Fakirahamad Shaikh vs. Shankarrao in the case of Nibilal Fakirahamad Shaikh vs. Shankarrao Nibilal Fakirahamad Shaikh vs. Shankarrao Channavirappa Kigani, reported in 2003(6) Bom. C.R.484 and Channavirappa Kigani, reported in 2003(6) Bom. C.R.484 Channavirappa Kigani, reported in 2003(6) Bom. C.R.484 submitted that the acquisition of a suitable accommodation -: 4 :- by the son of the tenant cannot be said to be acquisition by the applicant -tenant. This submission of Mr. Borkar is also devoid of any merit. It is true that the suitable alternative accommodation, viz. open plot was initially acquired by the son of the applicant and he made construction. However,the said son, thereafter gave application Exh. 119 to the Society of which he was a member for transferring the said plot with construction in the name of applicant. In this application at Exh.119, applicant’s son has categorically stated that he has purchased the said plot and made construction on it but the purchase money was paid by applicant and the construction was also made with the money given by the applicant. In pursuance of this application, there is no dispute that now the said plot is transferred in the name of the applicant. Thus in the above facts and circumstances it cannot lie in the mouth of the applicant that the said alternative accommodation was acquired by her son and not by her. The facts before the Apex Court in Anandi D. Jadhav’s case (supra) and before this Court in the case of Nibilal F. Shaikh (supra) are clearly distinguishable and the same cannot be made applicable to the present case. In this regard Mr. Borkar further submitted that the ownership of the plot could not have been transferred in favour of the applicant/petitioner without there being any registered document. In my considered view having transferred the -: 5 :- plot in the name of the applicant by the society, now such argument is not available to the applicant; in the light of the wording of section 13 (1)(l) of the Bombay Rent Act, namely, "that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted to suitable residence". In my considered view, the acquisition by the applicant clearly falls within the meaning of subclause (l) of section 13(1), namely, "been allotted to suitable residence", and therefore, I do not find any merit in the submission of Mr. Borkar in this regard.

8. This takes me to consider third submission of Mr. Borkar regarding merger of the relationship. This submission also does not hold any water in view of the recitals in para -5 of the agreement of sale at Exh. 82. Perusal of the para- 5 of the said exhibit reveals that the applicant-tenant and the respondent-landord agreed to continue their relationship as a landlord and tenant till execution of sale deed. It is not disputed that such a sale deed as on today is not executed by the respondent-landlord. The applicant -tenant, however, filed the suit for specific performance of contract and the same has already been dismissed and the applicant’s appeal against the same is pending before this court. In these facts and circumstances, the applicant cannot claim merger -: 6 :- of their relationship. Mr. Borkar, in order to substantiate his submission in this regard relied upon the R. Kanthimathi & anr. Apex Court decision in the case of R. Kanthimathi & anr. R. Kanthimathi & anr.