A.V. Savant, J.
1. This is a petition by the original plaintiffs-landlords arising out of proceedings initiated by them for bona fide requirement of the premises in question under section 13A1 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, 'the Bombay Rent Act'). The premises in question are a one room tenement admeasuring about 120 sq.ft. bearing C.T.S. No. 1370/A, suitable at Sadashiv Peth, Pune. Admittedly, the respondent was a tenant of the premises before the petitioners acquired the premises under a registered Sale Deed dated 24th December 1970. The evidence on record shows that the premises were acquired by the two petitioners jointly for a consideration of Rs. 23,000/-, out of which Rs. 20,000/- were paid by the first petitioner who is a member of the Armed Forces of the Union of India. The second petitioner is the brother of the first petitioner. The suit was instituted in the year 1977 on the ground that the first petitioner who is a landlord is a member of the Armed Forces and that the premises are bona fide required by the members of his family. His family then consisted of his wife and two daughters then aged 8 & 6. Section 13A1, which is a special provision meant for the benefit of the members of the Armed Forces, requires that a landlord who is a member of the Armed Forces of the Union should produce a certificate signed by the authorised officer to the effect that :-
(i) he is a member of the Armed Forces of the Union or that he was such a member and has retired as such; and
(ii) he does not possess any other premises suitable for residence in the local area where the premises are situated.
Admittedly, the petitioners complied with this requirement. Apart from the ground of bona fide requirement under section 13A1(1)(A)(i), the petitioners also applied for possession on the ground that the respondent/tenant had not used the premises without reasonable cause for the purpose for which they were let for a continuous period of 6 months, immediately proceeding the date of the suit viz, the ground available under section 13(1)(k) of the Bombay Rent Act. The petitioners sought possession also on the ground that the respondent-tenant, after coming into operation of the Act had acquired suitable residence, which is a ground available under section 13(1)(1) of the Bombay Rent Act.
2. The respondent-tenant opposed the petitioners' contentions and contended that the premises were not at all suitable for the residence of a person of the status of the first petitioner. The certificate issued by the authorised officer under section 13A1(1)(A) was also challenged. The other two grounds under section 13(1)(k) and section 13 (1)(1) were also resisted by the respondent-tenant.
3. The learned trial Judge came to the conclusion that the premises were bona fide required by the petitioners for the residence of the members of the family of the first petitioner and that the petitioners were entitled to avail of the remedy under section 13A1. It was further held that the petitioner were also entitled to possession on the ground that the respondent-tenant had acquired suitable accommodation for his residence within the meaning of section 13(1)(1) of the Rent Act. However, the case of the petitioners on the ground of non-user of the premises for more than 6 months under section 13(1)(k) of the Rent Act was negatived by the learned trial Judge. In the results, the learned trial Judge passed a decree in favour of the petitioners on 22nd February, 1979.
4. Being aggrieved by the said Judgment and Decree, the respondent-tenant preferred an Appeal to the District Court, Pune. The Appeal Court came to the conclusion that the petitioners had failed to prove that the respondent-tenant had acquired vacant possession of a suitable residence and hence, the landlords were not entitled to obtain possession under section 13(1)(1) of the Bombay Rent Act. Shri Karlekar, the learned Counsel for the petitioners, had not challenged the said findings in this petition before me as far as section 13(1)(1) finding is concerned. The Appeal Court further held that the petitioners did require the premises bona fide for occupation by the members of the family of the first petitioner who is an Army Officer. However, the learned District Judge took the view that on a true construction of the provisions of section 13A1 of the Bombay Rent Act since the petitioners had acquired the premises on 24th December, 1970 when the respondent was already in possession of the premises as a tenant and since, therefore, the petitioners had not inducted the respondent as a tenant in the suit premises, the petitioners were not entitled to avail of the special remedy provided under section 13A1 of the Bombay Rent Act. Relying upon the observations of this Court, in the two decisions reported in 1979 MLJ 125, and 1979 RCJ 389, the learned District Judge took the view that the petitioners had with open eyes purchased the property which was occupied by the tenant and since they had purchased such a property they should not be allowed to disturb the tenant on the ground that they were entitled to a special advantage by virtue of the provisions of section 13A1 of the Bombay Rent Act. Thus, though on the question of bona fide requirement the learned District Judge held in favour of the petitioners, only on the ground that the petitioners-landlords had not themselves inducted the tenant, he held that they were not entitled to the special advantage conferred on them by section 13A1 of the Rent Act. The learned District Judge, therefore, allowed the tenant's Appeal and consequently dismissed the suit filed by the present petitioners. It is against this Judgement that the petitioners have filed the present Writ Petition under Article 227 of the Constitution of India.
5. I have heard both the learned Counsel, Shri Karlekar for the petitioners-landlords and Shri A. F. Shah for the respondent-tenant. At the outset, Shri Karlekar contended that the construction placed by the learned District Judge on the provisions of section 13A1 is clearly contrary to the decision of the Supreme Court in the case of Shivram Anand Shiroor v. Mrs. Radhabai Shantaram Kaushik, reported in : [1984]2SCR750 . I find great substance in this contention. A perusal of the decision of the Supreme Court in Shivram Shiror's case (supra) shows that precise question that fall for the Supreme Courts consideration was as to whether the remedy under section 13A1 was available to a member or a retired member of the Armed Forces where he had himself not let out the premises when he was a member of the Armed Forces. It is true that in the earliest Supreme Court decision in the case of Mrs. Winifred Ross and another v. Mrs. Ivy Fonseca and others, reported in : [1984]1SCR1005 there are some observations which may suggest that one in of the requirements of section 13A1 is that the member of the Armed Forces should have himself let out the premises while he was a member of the Armed Forces. However, a closer scrutiny of the Supreme Court decision in M/s. Winifred Ross case would show that the question which fell for consideration in that case was entirely different and, therefore, with respect, the said observations made in Para 5 of the Supreme Court decision in Mrs. Winifred Boss's case did not lay down the law that in order to be able to avail of the special remedy under section 13A1 of the Bombay Rent Act, the member of the Armed Forces should have himself inducted the tenant while he was a member of the Armed Forces. However, it is not necessary for me to deal with the in Mrs. Winifred Ross's case at length in as much as the subsequent Supreme Court decision in Shivram Shiroor's case reported in : [1984]2SCR750 specifically deals with the question which is raised in this petition. After having considered the earlier Supreme Court in Mrs. Winifred Dosa's case, the Supreme Court in Shivram Shiroor's case has categorically held that it was not possible to hold, on the plain language of section 13A1, that a member of the Armed Forces would be entitled to recover possession of the premises under section 13A1 only if he had himself originally let out the premises when he was a member of the Armed Forces end not if the tenancy had commenced before he became the landlord of the premises either by inheritance, partition or by any other mode of transfer of property. The Supreme Court has held in Shivram Shiroor's case that to place such an interpretation would be virtually to re-write the provision of the section. In Para 3 of the Judgement, at page 789 of A.I.R. 1984 Supreme Court, the Supreme Court after considering its earlier decision in Mrs. Winifred Ross's case observed thus:-
'But we find it impossible on the plain language of Section 13A1 to further read down the provision as annulling a member or a retired member of the armed forces to recover possession of the premises only if he had himself originally let out the premises when he was a member of the armed forces and not if the tenancy had commenced before he became the landlord of the premises either by inheritance, partition, or any other mode of transfer of property. To place such an interpretation would be to virtually rewrite the provision. The language of Section 13A1 which is sufficiently plain does not warrant or invite such an interpretation. Nor is there anything else where in the Act which compels such a construction. The Statement of Objects and Reasons was read to us.'
6. However, Mr. Shah, the learned Counsel appearing for the respondent-tenant, contended that the benefit of section 13A1 would not be available to the petitioners in the present case in as much as though the first petitioner is a member of the Armed Forced of the Union, he is not the exclusive owner of the premises in question. the evidence on record as also the finding in Para 11 of the Judgment of the District Court show that out of the consideration of Rs. 23,000/- paid by the two petitioners for purchasing the suit property on the 24th December, 1970, Rs. 20,000/- has been paid by the first petitioner, who admittedly is a member of the Armed Force. Only a small portion of Rs. 3000/- has been paid by the 2nd petitioner, who undoubtedly is not a member of the Armed Forces of the Union. It is not possible to accept Shri Shah's contention that because the 2nd petitioner who undoubtedly is not a member of the Armed Force and since he has contributed Rs. 3000/- out of the consideration of Rs. 23000/- for the purchase of the house, the first petitioner should also be denied the benefit of the provisions of section 13A1 of the Rent Act. It is Clear that a co-owner like the first petitioner, in the facts of the present case, would be entitled to institute a suit for possession by restoring to the special remedy provided by section 13A1 of the Bombay Rent Act. There is nothing on record to show that the two brothers are separated Apparently, they appear to be the members of the Joint Hindu Family. The petitioners would, therefore, be entitled to succeed. In view of the Judgment of the Supreme Court in Shivram Shiroor's case (supra), it can no longer be disputed that the benefit of the provisions of section 13A1 can be availed of by the petitioners though the petitioners may not have themselves inducted the tenant.
7. In view of above, the petitioners are entitled to succeed. the judgment and decree passed by the learned Appellate Judge in so far as Point No. 1 regarding the special remedy under section 13A1 being not available to the petitioners is concerned, is liable to be set aside. Instead, I hold that the petitioners are entitled to avail of the special remedy provided by section 13A1 of the Bombay Rent Act. There is a concurrent finding of fact recorded by both the Courts that the petitioners do require the premised member of the family of the first petitioner. Though Shri Shah tried to contest this finding, I find that the said concurrent finding is supported by the evidence on record. In a petition under Article 227 of the Constitution of India, it is not possible for me, in the facts of the present case, to disturb the said concurrent finding of fact. The petitioners are, therefore, entitled to succeed.
8. Shri Shah applies for time to vacate on his clients giving the usual undertaking. Shri Karlekar points out that presently the petitioner No. 1 is holding the rank of a Colonel and his wife and three daughters are residing at Belgaum sheerly out of helplessness due to the pendency of this litigation for the last 14 years. Shri Karlekar also points out that the petition has been pending in this court for more than 10 years. Having regard to these facts and circumstances, subject to the condition that the respondent gives the usual undertaking to this Court in writing within a period of 4 weeks from today, the respondent is given time till 31st December, 1992 to vacate the suit premises. In the event of the respondent failing to give the said undertaking within 4 weeks from today, the petitioners would be entitled to enforce the orders of this Court forthwith.
9. Accordingly, Rule is made absolute as above. There shall, however, be no order as to costs. It is clarified that in the event of the respondent giving the usual undertaking within a period of 4 weeks from today, this order shall not be executed till 31st December, 1992. A copy of the undertaking to the furnished to be Counsel for the petitioners.