D.M. Rege, J.
1. This is a writ petition by the original plaintiff challenging the validity of the judgment and order of the Extra Assistant Judge, Thane, dated 15th July, 1980 in Civil Appeal No. 3 of 1979 dismissing the plaintiff's appeal and allowing the cross-objections of the defendant against the judgment and order of the Civil Judge, J.D., Kalyan dated 20-11-1978, dismissing the plaintiff's suit only on the ground of want of notice while holding other findings in favour of the plaintiff. It also challenges the validity of the judgment and order dated 5th March, 1981 of the II Extra Assistant Judge, Thane, dismissing the appeal by the plaintiff after it was revived only on the ground that along with the appeal cross objections of the defendant which were allowed ex parte were also not revived.
2. Few facts relevant for the disposal of this petition are as under :The respondent-defendant was a tenant of a Room No. 12 in a building belonging to the petitioner-plaintiff at Dombivali coming within the jurisdiction of the Kalyan Civil Court. Sometime in 1973, the defendant residing in the said premises was initially transferred to Lonawala and thereafter to Pune. During the time of his transfer the petitioner by his letter dated 27-6-1972 (Ex. 30) had informed the landlord that he was a tenant of Room No. 12 in his building, that he was transferred to Lonawala and that he did not require the said premises and hence he would be vacating the same and hand over vacant possession of the same to the landlord by about May 1973. He however pointed out that in case, he was transferred again to Bombay side within the said period, he would necessarily be requiring the said premises, for the use of his family members and in that event, he would request the landlord to give the said premises to him only with an intimation under a letter whereby the said letter was to be treated as cancelled.
3. Admittedly, the respondent-tenant was not transferred to Bombay by about May 1973 as mentioned in the said letter. The petitioner, there-after demanded possession of the premises from the respondent and on the respondent's refusing to do so, he filed a suit in the Court of Civil Judge, J.D., Kalyan being Civil Suit No. 308 of 1973 for eviction and possession on the ground of the respondent having acquired suitable accommodation elsewhere.
4. The defendant in his written statement admitted that he was the tenant of the plaintiff in the suit premises but denied that he had acquired suitable accommodation elsewhere and alleged that his transfer was merely temporary. He also applied for fixation of the standard rent.
5. On the various issues raised, the trial Court held that the defendant had acquired suitable residential accommodation elsewhere as alleged by the plaintiff, but the petitioner has failed to prove that the tenant had dept. the suit premises locked. The Court however held that the plaintiff had failed to terminate the tenancy of the defendant by a valid notice and on that ground alone dismissed the suit.
6. Against the said judgment and order of the trial Court the plaintiff filed an appeal being Civil Appeal No. 3 of 1979 limited to its finding as to the validity of the notice of termination on which alone the Court had dismissed the suit. In the said appeal, the defendant-tenant filed cross-objections (Ex. 13) against the finding of the trial Court on merits holding that the defendant had acquired suitable accommodation elsewhere.
7. When the said appeal and the cross-objection came up for hearing on 9-7-1980 before the learned Extra Assistant Judge, Kalyan, plaintiff and his advocate remained absent while the respondent-defendant and his advocate were present. The Court, therefore, heard the appeal ex parte. However, as the judgment of the Court showed it had dealt with the only question as to the validity of the notice of termination raised in the plaintiff's said appeal on merits and in view of the decision of the Supreme Court in the case of Dhanpal Chettian v. Yeshodas, : 1SCR334 , held that decision put an end to the dispute and that, therefore, the notice was quite legal and valid and that in fact no notice was required. However, at the same time while dealing with the defendant's cross-objections as to the other finding of the trial Court as regards the defendant having obtained a suitable accommodation elsewhere, the Court negatived the finding of the trial Court. In the result the Court dismissed the plaintiff's appeal with costs and also allowed the defendant's cross-objections reversing the finding of the trial Court that the defendant had acquired a suitable residence at Pune. The Court, however, does not appear to have passed any consequential order.
8. Thereafter the plaintiff filed an application under Order 41, Rule 19 of Civil Procedure Code only for setting aside the order dated 29-7-1980 for the restoration of the appeal as it was passed ex parte. However, at the same time he did not seek the revival of the ex parte order passed on cross-objections by the Appellate Court at the time of disallowing the plaintiff's appeal. The Appellate Court allowed the restoration of the appeal by setting aside the ex parte order dated 9-7-1980 dismissing the plaintiff's appeal.
9. However the II Extra Assistant Judge who heard the plaintiff's said appeal by his judgement and order dated 5-3-1981 dismissed the same on the only ground that it was not tenable as the plaintiff in his application for setting aside the ex parte dismissal of appeal and restoration of the same had not also sought to set aside the ex parte order allowing the cross-objections and rehearing them with the result that the order of the Appellate Court on defendant's cross-objections continued to exist. However the Court observed in its judgment that if it were not so on merits it could have held in favour of the plaintiff and decreed the suit. Challenging the validity of the said two orders this writ petition has been filed.
10. The learned Counsel for the petitioner-plaintiff has raised before me two contentions. Firstly, he has contended that the view taken by the Appellate Court that the appeal was not tenable in view of the fact that the earlier order of the Appellate Court allowing the cross-objections was not set aside and the cross-objections were not ordered to be reheard, was not correct. Secondly, even otherwise on merits the order of the Appellate Court dismissing the plaintiff's appeal and allowing the defendant's cross objections could not be sustained.
11. I think it proper to deal with the 2nd contention first for if it was found that the order of the Appellate Court dismissing the plaintiff's appeal and allowing the defendant's cross-objections could not be sustained on merits then it would not be necessary to deal with the 1st contention.
12. The contention was that the finding of the Appellate Court in allowing the defendant's cross -objections that the plaintiff had failed to prove that the defendant had not acquired any other permanent accommodation to justify their eviction from the suit premises was not right. The judgment of the lower Appellate Court shows that he had arrived at the said finding on two grounds. Firstly the Court held that the plaintiff had failed to make out a case under section 13(1)(d) of the Rent Act.
13. Section 13(1)(d) which speaks about one of the grounds for eviction provided in the Rent Act is as follows:
'13(1) Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15-A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied.
(d) That the tenant has given notice to quit and in consequence of that notice the landlord has contracted to sell or let the premises or has taken any other steps, as a result of which he would in the opinion of the Court, be seriously prejudiced if he could not obtain possession of the premises.'
14. It was difficult to accept the said reasoning of the learned Judge. Firstly it is clear that plaintiff had not sought to make out, either in the pleadings or otherwise a case which by itself constitutes a ground of detention under section 13(1)(d) nor was any such issue raised in the pleadings, so that the Court was required to consider the case under section 13(1)(d) of the Act. It appears that the lower Appellate Court has totally failed to appreciate the plaintiff's case for defendant's eviction on the ground that the defendant had acquired suitable accommodation elsewhere and so he did not occupy and require that suit premises and kept them vacant. The said case of the plaintiff had nothing to do with the compliance of the provisions of section 13(1)(d) of the Rent Act.
15. The other ground on which the lower Appellate Court had sought to reverse the finding of the trial Court was that the suit tenancy was a joint family tenancy. Here again the defendant had not made out either in the written statement or in evidence any such case of the suit tenancy being a joint family tenancy. The term 'joint family tenancy' has got various connotations which were not existing in this case. Going through the defendant's written statement, one finds that the defendant all along has been speaking about he being a tenant of the suit premises residing therein with the family i.e. wife and children and his brother. The evidence showed that the brother referred to by the defendant in the written statement was his brother named Ramesh. It was admitted in evidence that the defendant's said brother had now his own separate accommodation and was not residing in the suit premises. Admittedly, the defendant's family was even at present residing at Pune. No evidence was led by the defendant to prove the nature of their residence at Pune. According to the defendant, it was only in 1980 that he was again transferred to Bombay. The Commissioner appointed by the Court to inspect the premises had reported that when he visited the premises, the wife and children of another brother of the defendant, one Suresh was found in the premises, while he was told that the defendant's mother had gone to the temple. However, the defendant did not examine his mother in the matter. Stay in the premises of Suresh's wife and children was actually by persons who were not tenants of the premises nor was there any evidence led to show the nature of the premises occupied by Suresh elsewhere. Even Suresh was not examined for that purpose. In my view, therefore, The finding of the lower Appellate Court that the suit tenancy was a joint family tenancy and, therefore, the plaintiff had failed to prove that the suit premises were vacant and that the defendant had acquired suitable accommodation elsewhere, could not be sustained.
16. On the contrary, in my view, as very well pointed out by the trial Court by discussing the evidence on record that tenancy was admittedly in the name of the defendant who has stated in his letter dated 26-6-1979 written by him to the landlord before he was transferred to Lonawala and from there to Pune that the tenancy was in his name that he was occupying the same along with his family and his brother and that if by May, 1973, he were not transferred to Bombay, he would hand over the vacant possession of the premises by May 1973, but however, if before 1973, he was transferred back to Bombay, he would treat the letter as cancelled. The defendant alleged that the said letter was obtained by the plaintiff-landlord from him by force. However, the trial Court rightly negatived the said allegation as the defendant had written the said letter much before the relations between him and the plaintiff had strained. In fact, admittedly, till May 1973, the defendant was not transferred and as agreed under the said letter the defendant should have handed over to the plaintiff vacant possession of the suit premises
17. In that view of the matter, on merits the order of the Lower Appellate Court both disallowing the plaintiff 's appeal and allowing defendant's cross-objections cannot be sustained. As rightly pointed out by the lower Appellate Court the plaintiff 's suit could not be dismissed on the ground of invalid notice of termination in view of the decision of the Supreme Court in Dhanpal's case, : 1SCR334 . However on the question of the defendant's acquiring suitable permanent accommodation elsewhere, I find that on evidence the finding of the lower Appellate Court in that regard cannot be sustained and the findings of the trial Court in that regard were correct.
18. In the view that I am taking it was not necessary to deal with the other contention of the learned Counsel for the petitioner.
19. The result, therefore, is that the rule is made absolute in terms of prayers (a) and (b) of the petition. The orders of the Extra Assistant Judge dated 15-7-1980 and the order of the II Extra Assistant Judge dated 5-3-1981 are set aside. Plaintiff 's suit is decreed. No order as to costs.