Bombay High Court
Gulam Hussain Bagwan vs Dattatraya Jagannath Kutte on 30 July, 2025
2025:BHC-AS:32244
1-WP-2644-2006.doc
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2644 OF 2006
WITH
INTERIM APPLICATION STAMP NO. 6887 OF 2024
Gulam Husaain Bagwan
Since deceased through LRs.
A. Smt. Nasima Gulam Hussain Bagwan
& Anr. .. Petitioners
Versus
Dattatraya Jagannath Kutte
since deceased through LRs.
1A) Smt. Kusum Dattatraya Kutte
& Ors. .. Respondents
Ms. Shakuntala A. Mudbidri for petitioners.
Ms. Archana Joglekar a/w Mr. S. R. Page a/w Ms. Ruchi
Digitally signed
Umratkar for respondents.
by PRAVIN
DASHARATH
PRAVIN PANDIT
DASHARATH
PANDIT Date:
2025.07.31
CORAM: ALOK ARADHE, CJ.
09:51:48
+0530
DATE: 30th JULY, 2025
ORAL ORDER:
1. In this petition under Article 227 of the Constitution of
India, the petitioner/original defendant has assailed the
validity of the judgment and decree dated 28 th February, 2006
passed by the Lower Appellate Court in Regular Civil Appeal
No. 555 of 1991 by which the appeal preferred by the
petitioner against the judgment and decree dated 16 th
October, 1991 decreeing the suit for eviction has been
confirmed and the appeal preferred by the petitioner/original
defendant has been dismissed.
2. Facts giving rise to filing of the present writ petition, in
nutshell, are that on an oral agreement, sometime in the year
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1969, an open plot of land admeasuring 613.2 sq.mtrs. Along
with two latrines was let out to the petitioner on a monthly
rent of Rs.150/-. The respondent/plaintiff sent a notice dated
3rd May, 1985 seeking eviction of the petitioner. One of the
grounds for seeking eviction was that the suit premises are
required by the respondent/plaintiff for erection of a new
building. The respondent/original plaintiff filed civil suit,
namely, RCS No. 252 of 1985 seeking recovery of possession
as well as arrears of rent.
3. The trial Court, vide judgment and decree dated 16 th
October, 1991, inter alia, held that the respondent/original
plaintiff requires the suit premises for new construction.
4. Being aggrieved, the petitioner preferred an appeal
before the Lower Appellate Court. The Lower Appellate Court
vide judgment and decree dated 28th February, 2006 has
dismissed the appeal preferred by the petitioner. Hence, this
writ petition.
5. Learned counsel for the petitioners submits that the
ground for eviction under Section 13(1)(i) of the Bombay
Rents, Hotels and Lodging House Rates Control Act, 1947
(hereinafter referred to as "the Act of 1947") is not made out
as the premises were not the land but two latrines were also
constructed on the said land. It is further submitted that the
courts below have failed to adhere to the mandate contained
in Section 13(3) of the Act of 1947. It is, therefore, urged
that the impugned judgment and decree be set aside and the
claim of the respondent/plaintiff be dismissed. In support of
her submissions, learned counsel for the petitioners placed
reliance on the decisions of this Court in Abdulraheman
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alias Iqbal vs. Sou. Kamalaben Mohanlal Shah, 2000 (1)
RCJ 561 and Vasant Bandoo Kulkarni vs. Yasin Ahmed
Mujawar since deceased by LRs. Sharif Yasin & Ors.,
1998(3) Mh.L.J. 62.
6. On the other hand, learned counsel for the respondents
has supported the impugned judgment and decree and has
submitted that no case for interference in exercise of powers
of superintendence is made out.
7. I have considered the submissions made on behalf of
both the sides and perused the record.
8. Section 13(1)(i) and Section 13(3) of the Act of 1947,
which are relevant for the purpose of controversy involved in
the instant writ petition are extracted below for the facility of
reference: -
13. When landlord may recover possession
(1) Notwithstanding anything contained in this Act
but subject to the provisions of sections 15 and 15A, a
landlord shall be entitled to recover possession of any
premises if the Court I satisfied-
(a) to (hhh) .......
(i) that where the premises are land, such
land is reasonably and bona fide required by
the landlord for the erection of a new building
or ....
(3) The Court may pass the decree on the ground
specified in clause (h) or (I) of sub-section (1) only
in respect of a part of the premises which in its
opinion it is necessary to vacate for carrying out
the work or repairs or erection.
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Thus, it is evident that if the premises are land and if
such land is required reasonably and bona fide by the landlord
for erection of a new building, a suit under Section 13(1)(i) of
the Act of 1947 can be decreed. Section 13(3) enables the
Court to pass decree in respect of part of premises which in
its opinion is necessary to vacate for carrying out the work or
repairs or erection..
9. In the instant case, admittedly, the premises in question
were land with two latrines constructed on it. To ascertain the
nature of the premises, the test of dominant purpose has to
be applied. The premises are mainly an open land with two
latrines constructed thereon. Since two latrines constructed
were also let out, the premises do not ceased to be an open
land. Therefore, the contention that the trial Court as well as
the Lower Appellate Court could not have decreed the suit
under Section 13(1)(i) of the Act of 1947 is misconceived. It
is also pertinent to note that the court, on an evidence
adduced by the parties, may pass an order under Section
13(3) of the Act of 1947. No material has been indicated on
behalf of the petitioners to demonstrate that a ground under
Section 13(3) of the Act of 1947 was made out. The issue
whether or not the land in question is required reasonably and
bona fide for erection of a new building is a question of fact.
The trial Court as well as the Lower Appellate Court, on the
basis of appreciation of evidence had recorded a concurrent
finding that ground for eviction under Section 13(1)(i) of the
Act of 1947 is made out.
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10. The aforesaid concurrent finding recorded by both the
courts below, on the basis of evidence on record, neither can
be termed as arbitrary nor perverse. Therefore, no
interference with the impugned judgment and decree is called
for in exercise of supervisory jurisdiction under Article 227 of
the Constitution of India.
11. In the result, the writ petition fails and is hereby
dismissed.
12. Interim Application does not survive and stands disposed
of accordingly.
(CHIEF JUSTICE)
