A.N.SURTI - (1.)All the aforesaid three matters were placed before the single Judge (D. P. Desai J.) for hearing and disposal. When these matters were heard by the single Judge of this Court (D. P. Desai J.) it was submitted on behalf of the petitioners-tenants that the appellate Court ought to have given the necessary permission to lead evidence to the petitioners-tenants as requested by them in their various applications to which we have made a reference hereinabove in course of this judgment. It was pointed out that after the disposal of the aforesaid two suits by the learned trial Judge there was a material change of circumstances having regard to the subsequent events which we have mentioned earlier and hence it was the duty and the obligation of the appellate Court to take into consideration the change of circumstances and the subsequent events. From this view point the provisions of sec. 13(1)(g) and sec. 13(2) of the Rent Act were pointed out to the learned Single Judge in the aforesaid two matters.
(2.)Before the learned Single Judge who heard the aforesaid matters reliance was placed on an unreported judgment of the Bombay High Court in . delivered by Gajendragadker J. (as he then was). It is not necessary for us to refer to all the facts mentioned in the said judgment. Suffice it to state that the suit was filed by opponents Gandhi Shamlal Keshavlal and others against the applicants tenants for getting the possession of the suit premises. That litigation went up to the High Court and while deciding the Civil Revision Application No. 870 of 1954 Gajendragadker (as he then was) observed as follows:
Cases of this kind where tenants are sought to be rejected must be tried bearing in mind fully the safeguards which are provided to the tenants by the Legislature. Legislature requires that a Court trying a case for ejectment between landlord and tenant must even after the landlords need is proved ask itself whether by ejecting the tenant greater hardship would be caused to the tenant and it is ordinarily desirable that a specific issue on this point should be framed so that the parties attention would be invited to this aspect of the dispute and they would get as opportunity to lead evidence. Since that was not done in this case I do not think that the lower appellate Court was justified in proceeding to deal with this matter in the way he has done. That is an irregularity which needs to be corrected.
It was also observed in the course of judgment as follows :
"When the appeal was pending in the lower appellate Court the tenant moved the learned appellate Judge to take additional evidence in respect of his contention that subsequent to the decision of the trial Court the premises in which the landlords son was residing had been let out to another tenant."
It was further observed as follows :
The learned appellate Judge taking a very technical view of the matter held that he did not see how he had any jurisdiction to admit such evidence. Now if a material fact had happened after the decision of the trial Court and during the pendency of the appeal I should have thought that the interests of justice required that the appellate Court should try to ascertain the nature of that material fact. In substance the reasoning adopted by the learned Judge was that the lower Court ought not to have taken a very technical view of the matter and should have taken into consideration the material facts which had happened after the decision of the suit and during the pendency of the appeal. As a result of the view which he took he directed the trial Court to take necessary evidence in regard to the subsequent events which took place after the dismissal of the suit and before the disposal of the appeal.

(3.)The attention of the learned Single Judge (D. P. Desai J.) was also drawn to the two other judgments of the Bombay High Court. Firstly the learned Single Judge took into consideration the reasoning adopted by Bavdekar J. in Shantaram Keshav v. Prabhakar Balwant 57 Bombay Law Reporter 1116 In that case the landlord had succeeded in obtaining a decree for eviction on the ground of bona fide and reasonable requirement. The question of hardship was also answered in his favour because at the trial the landlord showed that certain accommodation was available to the tenant at the rent which he was paying. Both the Courts had found that in view of the availability of the alternative accommodation there would be greater hardship to the landlord. As the tenant did not accept the alternative accommodation a decree for eviction was passed by the trial Court. The tenant went in appeal and at the time when the matter was being heard before the appellate Court it was found that the accommodation which was shown to have been available at the time of the trial was no longer available. Thereupon some attempts were made to obtain further accommodation for the tenant. Nothing turned on that in that case because the appellate Court expressed the view that the availability of alternative accommodation which is required to be taken into consideration is the accommodation which was available at the time of passing the decree of the trial Court and that it did not make any difference if that accommodation ceased to be available later on. In this view the appellate Court did not go into the question whether at the time of its judgment the alternative accommodation was available to the tenant and dismissed the appeal. It was against that judgment of the Appellate Court that the tenant went in revision to the Bombay High Court. The question which was posed before the learned Judge was: What is the time at which the availability of the accommodation either to the landlord or tenant has got to be taken into consideration under sec. 13(2) of the Rent Act ? The learned Judge came to the conclusion that the word decree used in sec. 13(2) of the Act must necessarily mean the decree of the trial Court and not that of the appellate Court. In his opinion the doctrine of merger made no difference. The learned Judge therefore came to the conclusion that the availability of the alternative accommodation to be seen for the purpose of sec. 13(2) is the availability at the time when the trial Court is about to pass the decree for eviction In substance the reasoning of the learned Judge was that it was not the function of the appellate Court to take into consideration any change of circumstances or the subsequent events which had taken place after the dismissal of the suit by the trial Court.
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