For the purpose of passing of a decree under Section 13(1)(1) of the Bombay Rent Act, it is necessary for a landlord to prove that the tenant has built or. acquired suitable residential premises other than the suit premises. The emphasis is on the word "suitable" indicating that the alternative premises alleged to have been acquired by the tenant must be suitable for the ordinary needs of the tenant. Ordinarily, if the alternative premises are acquired in the vicinity or at a place not far away from the suit premises, it may be presumed that the alternative premises are suitable. It would then have to be demonstrated by the tenant that the alternative premises are not suitable for his ordinary needs. But where the alternative premises are alleged to have been acquired by the tenant are situated in a different town or city, it would be necessary for the landlord to further prove the suitability of the premises to the tenant. When the alternate premises are in the vicinity of the rented premises, the burden of proving that the premises are not suitable would ordinarily be on the tenant to show how the premises are not suitable. But where the alternate premises are situated in a different town or city, then it would be for the landlord to prove the suitability of the alternate premises. of course, it would not be necessary for the landlord to discharge that burden beyond reason of doubt but the ordinary rule in civil cases of "proof by preponderance of probabilities" would apply. Surrounding circumstances would be required to be taken into consideration by the Court for considering suitability of the premises. The fact that the tenant has shifted to an alternative accommodation with his family, the fact that the tenant is not ordinarily using the rented premises and is not living there would be relevant for considering the suitability of the alternate premises. By the very nature of the things, all the factors which are relevant for considering the suitability of the premises cannot be enumerated nor would be wise to attempt to do so. Suffice it to say that Court as an ordinary man of prudence would take into consideration all the relevant surrounding circumstances.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 3259 of 1998
Decided On: 16.07.2010
Saroja Parmeshwaran Vs. Padmakar Sitaram Bole and Ors.
Hon'ble Judges/Coram:
D.G. Karnik, J.
Citation: 2011(6) MHLJ570
1. This writ petition is directed against the judgment and order dated 5 June 1996 passed by an Appellate Bench of the Small Causes Court, Mumbai dismissing the tenants appeal against a decree for possession.
2. The Petitioner is the daughter of L.K. Mani (Subramaniam), the original Defendant, who was a tenant in occupation of the suit premises. Respondents are the legal representatives of Mrs. Tara Bole, the original Plaintiff. For the sake of convenience, the original landlady is referred to as the Respondent.
3. It appears that Mr. Mani, the original tenant came to Mumbai for a job. He took on rent the suit premises on a monthly rent of Rs. 45/ and was living in the suit premises till about 1974. According to the Respondent, Mr. Mani, the original tenant on his retirement shifted to his native place at Coimbatore in the year 1973-74 or thereabout and secured a suitable residence there. The Respondent, after serving notice on the original tenant at Coimbatore, filed a suit bearing R.A.E. Suit No. 7401 of 1974 in the Small Causes Court for possession. The original tenant appeared in the suit and denied having acquired suitable residence at Coimbatore. During the pendency of the suit Mr. Mani, the original tenant, died and his two sons and two daughters were brought on record as his Legal Representatives. They adopted the written statement filed by the original tenant. After considering the evidence adduced by the parties, the trial Court passed a decree for possession under Section 13(1)(1) of the Bombay Rents (Hotels & Lodging Rates Control Act), 1947 (for short "the Bombay Rent Act") i.e. on the ground that the tenant had acquired suitable residence. On appeal, the Appellate Bench of the Small Causes Court confirmed the decree for possession. Aggrieved by the decision, one of the daughters of the original tenants has filed the present petition.
4. Mr. Godbole, learned Counsel appearing for the Petitioner submitted that Respondent had not proved that the Petitioner had acquired any residence at Coimbatore. In the alternative, he submitted that if at all it is held that the original tenant had acquired any residential premises at Coimbatore, they were not suitable to him and therefore, No. decree for possession could be passed under Section 13(1)(1) of the Bombay Rent Act. Per Contra, learned Counsel for the Respondent submitted that Respondent had proved that the original tenant, after his retirement from service in ACC, had acquired suitable residential premises at Coimbatore and had permanently settled there. The premises at Coimbatore were suitable in all respects for his residence. Respondent prayed for confirmation of the decree passed by the two courts below.
5. In the light of submissions made by the learned Counsel for the parties, following points arise for my determination.
i) Whether the finding of fact recorded by the two courts below that the original tenant had acquired residence at Coimbatore requires interference in exercise of jurisdiction under Article 227 of the Constitution of India?
ii) Whether the premises acquired at Coimbatore would be considered as suitable residence in view of the fact that the alternate premises are not situate in the town where the suit premises are located?
6. Prior to the filing of the suit, the Respondent had issued to the original tenant a notice to quit on 13 August 1974. Office copy of the notice as well as acknowledgment was produced in the trial Court. Notice was sent by Registered Post A.D at the following address
Kailash, 1, Bhashyagurule Road,
R.S. Puram, Coimbatore 2
(hereinafter address is referred to as " 1 -Kailash")
An acknowledgment duly signed by S. Dorai, a son of the original tenant was also produced on record. This shows that the original tenant was residing at 1-Kailash. Mr. Godbole, however submitted that the fact that the acknowledgment was not signed by the original tenant but by his son would show that he was not residing at that address at that time. I am unable to agree. If the original tenant was really not residing at 1-Kailash, his son would not have accepted it but would have redirected it to the address at which the original tenant was residing. He not only accepted it but it appears that he gave it to the original tenant forthwith, because within a few days of the notice the original tenant replied it through his Advocate. This shows that the notice was received by the tenant at 1-Kailash. The Respondent has also produced on record of the trial Court one letter dated 23 July 1974 written and signed by the original tenant himself. At the top of the letter, Mr. Mani, the original tenant, mentioned his address as "1-Kailash". The fact that the original tenant had written a letter on 23 July 1974 giving his address as 1-Kailash and had received the notice dated 13 August 1974 at that address and had replied it, shows that the original tenant was residing at 1-Kailash in July/August 1974. The landlord has also produced in the trial Court a certified copy of the electoral rolls of the voters in and around the area of the suit premises. The voters list prepared in the year 1972, for the period 1972 to 1977, shows the name of the original tenant as a voter at the suit address, while voters list revised in the year 1977 does not show his name as a voter at the suit address. The list prepared in the year 1977 shows the name of the present Petitioner - daughter of the original tenant, to be a voter at the suit premises. From these voters lists, it can be inferred that the tenant who was residing in the suit premises in the year 1972 shifted out of the suit premises sometime between the years 1972 and 1977 and consequently his name was removed from the new voters list prepared in the year 1977. In the light of these documents, in my view, two courts below committed No. 8 WP No. 3259/98 error in coming to the conclusion that Petitioner was residing at " 1-Kailash" at the time when the suit was instituted.
7. Mr. Godbole however submitted that mere fact that the original tenant was residing at "1 -Kailash" was not an adequate proof that he had acquired the said premises. He invited my attention to the deposition of Keshav, the son of the original tenant, wherein the son stated that he had initially taken on rent premises belonging to Mr. Sadashiv at Coimbatore and that he had later on constructed his own bungalow. It may be noted that the address of the premises belonging to Sadashiv which were allegedly taken on rent by Keshav was not mentioned by him in his deposition. There is nothing On record to show that the premises which Keshav had allegedly taken on rent from Mr. Sadashiv were the same premises viz. "1-Kailash occupied by the original tenant. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In what capacity, whether as an owner or as a tenant or otherwise, the original tenant was residing at "1-Kailash" was a matter within the special knowledge of the tenant. The burden of proving in what capacity he was occupying the premises at "1-Kailash" was therefore on the original tenant. He did not discharge that burden. In fact, in the written statement, the tenant had flatly denied acquisition of any premises whatsoever at Coimbatore. It was not his defence the premises at 1-Kailash, were either taken on rent or otherwise acquired by his son or that they were only temporarily taken on license or rent till the construction of the bungalow by Keshav, the son of the original tenant, was completed. It may also be noted that the original tenant retired from ACC in the year 1972 and soon after the retirement, he shifted to Coimbatore. Keshav who has examined himself as a witness has stated his age to be 39 years when his deposition was recorded in the year 1989 which means that he was aged about 24 years in the year 1974 when he is alleged to have constructed the bungalow from his own resources. There is No. satisfactory evidence about the source of income of the young son aged 24 years when the new bungalow at Coimbatore was constructed. On the other hand, just prior to the construction of the new bungalow, the original tenant would have received retirement benefits and probably, a lumpsum amount towards gratuity, Provident Fund etc. Even if it is assumed that there is No. direct evidence about the construction of the bungalow by the original tenant or out of his money certainly there is an evidence that the original tenant had acquired premises at "1-Kailash" and he was completely silent about the said acquisition in the written statement. Keshav, who was examined as a witness has not spoken anything about 1-Kailash in his deposition. In the light of this evidence, the concurrent finding of fact recorded by the two courts below that the tenant had acquired the premises at "1-Kailash" at Coimbatore requires No. interference in exercise of its jurisdiction under Article 227 of the Constitution of India.
8. Strongly relying upon the decision of a Division Bench in (J. Marathe v. P.V. Kaloke) MANU/MH/0388/2004 : 2004 (6) Bom.C.R. 721 : 2004(4) Mh.L.J 287, learned Counsel for the Petitioner submitted that acquisition of a premises at Coimbatore, a different city situated in a different State, far away from Mumbai, cannot be considered as an acquisition of suitable residence by the tenant.
9. In (Rajendraprasad v. Shankar) MANU/MH/0313/2002 : 2002 (3) Bom.C.R. 425: 2002 (3) Mh.L.J 498, Rebello, J (as his Lordship then was) sitting singly had taken a view that acquisition of a premises by a tenant even in a different city may, and almost must, be construed as an acquisition of suitable residence entitling the landlord to a decree under Section 13(1)(1) of the Bombay Rent Act. Earlier, in (Madhukar v. Smt. Satyabhamabai) 1980 Bom.C.R. 182, C.S. Dharmadhikari, J had held that it was neither possible nor desirable to lay down any general rule regarding the suitability of the premises acquired by the tenant for residence and the question would depend upon the facts and circumstances of each case. In view of the apparently conflicting view taken by the two benches of this Court, in the case of J. Marathe reference was made (incidentally reference was made by himself) to a Division Bench. The Division Bench overruled the view of Rebello, J in Rajendraprasad v. Shankar (supra) and upheld the view of Dharmadhikari, J in Madhukar v. Smt. Satyabhoamahai. The Division Bench held that emphasis of the legislature in providing for a ground for eviction under Section 13(1)(1) of the Bombay Rent Act was on the word "suitable'' preceding the word "residence". Therefore, the alternative premises acquired by the tenant for residence must be "suitable" to him. The Division Bench held that if the premises were acquired by a tenant in a different town that would not ipso facto be held to be acquisition of suitable accommodation. It would be further required to be demonstrated that the tenant had shifted with his family to the alternative accommodation and that the alternative premises were suitable for his residence. The Division Bench did not lay down that acquisition of residential premises by the tenant in a different city or town can never be regarded as acquisition of suitable residence.
10. For the purpose of passing of a decree under Section 13(1)(1) of the Bombay Rent Act, it is necessary for a landlord to prove that the tenant has built or. acquired suitable residential premises other than the suit premises. The emphasis is on the word "suitable" indicating that the alternative premises alleged to have been acquired by the tenant must be suitable for the ordinary needs of the tenant. Ordinarily, if the alternative premises are acquired in the vicinity or at a place not far away from the suit premises, it may be presumed that the alternative premises are suitable. It would then have to be demonstrated by the tenant that the alternative premises are not suitable for his ordinary needs. But where the alternative premises are alleged to have been acquired by the tenant are situated in a different town or city, it would be necessary for the landlord to further prove the suitability of the premises to the tenant. When the alternate premises are in the vicinity of the rented premises, the burden of proving that the premises are not suitable would ordinarily be on the tenant to show how the premises are not suitable. But where the alternate premises are situated in a different town or city, then it would be for the landlord to prove the suitability of the alternate premises. of course, it would not be necessary for the landlord to discharge that burden beyond reason of doubt but the ordinary rule in civil cases of "proof by preponderance of probabilities" would apply. Surrounding circumstances would be required to be taken into consideration by the Court for considering suitability of the premises. The fact that the tenant has shifted to an alternative accommodation with his family, the fact that the tenant is not ordinarily using the rented premises and is not living there would be relevant for considering the suitability of the alternate premises. By the very nature of the things, all the factors which are relevant for considering the suitability of the premises cannot be enumerated nor would be wise to attempt to do so. Suffice it to say that Court as an ordinary man of prudence would take into consideration all the relevant surrounding circumstances.
11. The surrounding circumstances in the present case unmistakably point out to the suitability of the alternative accommodation. Coimbatore appears to be the home town of the original tenant. He came to Mumbai for earning his living where he was employed in a private company. Just prior to the retirement he, unfortunately, lost his wife. After his retirement, he moved to his home town, lock, stock and barrel. His two sons also either moved along with him or had moved earlier to Coimbatore. According to the landlord, the tenant constructed his own house at Coimbatore while according to the sons of the original tenant, they constructed the house and their father only moved to their house along with them. The fact remains that the father moved to Coimbatore and in fact he had acquired a premises at 1 Kailash and sons have built another house at Coimbatore. The original tenant breathed his last at Coimbatore while residing with his family i.e. his sons. These facts show that tenant had No. animus rivertendi i.e. had No. intention to return to the suit premises and had permanently shifted to Coimbatore. During the pendency of the suit, though it is not clear whether it was before or after the death of the original tenant, the present Petitioner who is his married daughter moved in the suit premises. Her name appears in the voters list as resident of suit premises after 1977. The sons of the original tenant with whom he was living as a family have not challenged the decision of the trial Court but it is the married daughter who has filed and has pursued the present writ petition. She apparently has No. independent right in the premises. Consequently, it must be held that the premises "1-Kailash" at Coimbatore acquired by the original tenant were suitable residence within the meaning of Section 13(1)(1) of the Bombay Rent Act.
12. Mr. Godbole also referred to and relied upon a decision of the Supreme Court in (Anandi Jadhav (dead) by L.Rs. v. Nirmala Ramchandra Kore and Ors.) MANU/SC/0245/2000 : 2000 (3) Bom.C.R. 6 (S.C.): 2000 DGLS (soft) 681: (2000) 3 S.C.C. 703. In paragraph No. 5 of the decision, after quoting the provisions of Section 13(1)(1), the Hon'ble Supreme Court has held that from the scheme of the provision under Section 13(1)(1) it is discernible that only when the tenant gets a right to reside in a house, other than the demised premises on the happening of any one of the three alternatives viz. by building or by acquiring vacant possession of or by allotment of a house, that the landlord can seek recovery of possession of the demised premises from the tenant. As J have already held that there is adequate evidence on record that the tenant had acquired the premises at 1-Kailash. The original tenant having an exclusive knowledge of the capacity in which he had acquired the premises at 1-Kailash, it was his duty to show in what capacity he had acquired the premises and/or that he did not fall any of the three categories mentioned in the decision of the Hon'ble Supreme Court. His defence was of total denial and was not of having acquired the premises only temporarily or not having any right in the premises acquired. The decision therefore, does not help the Petitioner.
13. For these reasons, there is No. merit in the writ petition which is hereby rejected.
14. After this decision was pronounced in the open Court, learned Counsel for the Petitioner, on instructions of the Petitioner and her husband who are present in the Court prayed for time to vacate the premises on the ground that the Petitioner's husband has since retired and she would require reasonable time to make alternative arrangements. Counsel for the Respondent has No. objection for granting time subject to an undertaking to be filed by the Petitioner, her husband and all adult members in the family of the Petitioner. Petitioner is granted time till 31 December 2011 to vacate the suit premises subject to the Petitioner, her husband and all adult members in the family filing an undertaking in the usual form within six weeks hereof.
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IN THE HIGH COURT OF BOMBAY
Writ Petition No. 3259 of 1998
Decided On: 16.07.2010
Saroja Parmeshwaran Vs. Padmakar Sitaram Bole and Ors.
Hon'ble Judges/Coram:
D.G. Karnik, J.
Citation: 2011(6) MHLJ570
1. This writ petition is directed against the judgment and order dated 5 June 1996 passed by an Appellate Bench of the Small Causes Court, Mumbai dismissing the tenants appeal against a decree for possession.
2. The Petitioner is the daughter of L.K. Mani (Subramaniam), the original Defendant, who was a tenant in occupation of the suit premises. Respondents are the legal representatives of Mrs. Tara Bole, the original Plaintiff. For the sake of convenience, the original landlady is referred to as the Respondent.
3. It appears that Mr. Mani, the original tenant came to Mumbai for a job. He took on rent the suit premises on a monthly rent of Rs. 45/ and was living in the suit premises till about 1974. According to the Respondent, Mr. Mani, the original tenant on his retirement shifted to his native place at Coimbatore in the year 1973-74 or thereabout and secured a suitable residence there. The Respondent, after serving notice on the original tenant at Coimbatore, filed a suit bearing R.A.E. Suit No. 7401 of 1974 in the Small Causes Court for possession. The original tenant appeared in the suit and denied having acquired suitable residence at Coimbatore. During the pendency of the suit Mr. Mani, the original tenant, died and his two sons and two daughters were brought on record as his Legal Representatives. They adopted the written statement filed by the original tenant. After considering the evidence adduced by the parties, the trial Court passed a decree for possession under Section 13(1)(1) of the Bombay Rents (Hotels & Lodging Rates Control Act), 1947 (for short "the Bombay Rent Act") i.e. on the ground that the tenant had acquired suitable residence. On appeal, the Appellate Bench of the Small Causes Court confirmed the decree for possession. Aggrieved by the decision, one of the daughters of the original tenants has filed the present petition.
4. Mr. Godbole, learned Counsel appearing for the Petitioner submitted that Respondent had not proved that the Petitioner had acquired any residence at Coimbatore. In the alternative, he submitted that if at all it is held that the original tenant had acquired any residential premises at Coimbatore, they were not suitable to him and therefore, No. decree for possession could be passed under Section 13(1)(1) of the Bombay Rent Act. Per Contra, learned Counsel for the Respondent submitted that Respondent had proved that the original tenant, after his retirement from service in ACC, had acquired suitable residential premises at Coimbatore and had permanently settled there. The premises at Coimbatore were suitable in all respects for his residence. Respondent prayed for confirmation of the decree passed by the two courts below.
5. In the light of submissions made by the learned Counsel for the parties, following points arise for my determination.
i) Whether the finding of fact recorded by the two courts below that the original tenant had acquired residence at Coimbatore requires interference in exercise of jurisdiction under Article 227 of the Constitution of India?
ii) Whether the premises acquired at Coimbatore would be considered as suitable residence in view of the fact that the alternate premises are not situate in the town where the suit premises are located?
6. Prior to the filing of the suit, the Respondent had issued to the original tenant a notice to quit on 13 August 1974. Office copy of the notice as well as acknowledgment was produced in the trial Court. Notice was sent by Registered Post A.D at the following address
Kailash, 1, Bhashyagurule Road,
R.S. Puram, Coimbatore 2
(hereinafter address is referred to as " 1 -Kailash")
An acknowledgment duly signed by S. Dorai, a son of the original tenant was also produced on record. This shows that the original tenant was residing at 1-Kailash. Mr. Godbole, however submitted that the fact that the acknowledgment was not signed by the original tenant but by his son would show that he was not residing at that address at that time. I am unable to agree. If the original tenant was really not residing at 1-Kailash, his son would not have accepted it but would have redirected it to the address at which the original tenant was residing. He not only accepted it but it appears that he gave it to the original tenant forthwith, because within a few days of the notice the original tenant replied it through his Advocate. This shows that the notice was received by the tenant at 1-Kailash. The Respondent has also produced on record of the trial Court one letter dated 23 July 1974 written and signed by the original tenant himself. At the top of the letter, Mr. Mani, the original tenant, mentioned his address as "1-Kailash". The fact that the original tenant had written a letter on 23 July 1974 giving his address as 1-Kailash and had received the notice dated 13 August 1974 at that address and had replied it, shows that the original tenant was residing at 1-Kailash in July/August 1974. The landlord has also produced in the trial Court a certified copy of the electoral rolls of the voters in and around the area of the suit premises. The voters list prepared in the year 1972, for the period 1972 to 1977, shows the name of the original tenant as a voter at the suit address, while voters list revised in the year 1977 does not show his name as a voter at the suit address. The list prepared in the year 1977 shows the name of the present Petitioner - daughter of the original tenant, to be a voter at the suit premises. From these voters lists, it can be inferred that the tenant who was residing in the suit premises in the year 1972 shifted out of the suit premises sometime between the years 1972 and 1977 and consequently his name was removed from the new voters list prepared in the year 1977. In the light of these documents, in my view, two courts below committed No. 8 WP No. 3259/98 error in coming to the conclusion that Petitioner was residing at " 1-Kailash" at the time when the suit was instituted.
7. Mr. Godbole however submitted that mere fact that the original tenant was residing at "1 -Kailash" was not an adequate proof that he had acquired the said premises. He invited my attention to the deposition of Keshav, the son of the original tenant, wherein the son stated that he had initially taken on rent premises belonging to Mr. Sadashiv at Coimbatore and that he had later on constructed his own bungalow. It may be noted that the address of the premises belonging to Sadashiv which were allegedly taken on rent by Keshav was not mentioned by him in his deposition. There is nothing On record to show that the premises which Keshav had allegedly taken on rent from Mr. Sadashiv were the same premises viz. "1-Kailash occupied by the original tenant. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In what capacity, whether as an owner or as a tenant or otherwise, the original tenant was residing at "1-Kailash" was a matter within the special knowledge of the tenant. The burden of proving in what capacity he was occupying the premises at "1-Kailash" was therefore on the original tenant. He did not discharge that burden. In fact, in the written statement, the tenant had flatly denied acquisition of any premises whatsoever at Coimbatore. It was not his defence the premises at 1-Kailash, were either taken on rent or otherwise acquired by his son or that they were only temporarily taken on license or rent till the construction of the bungalow by Keshav, the son of the original tenant, was completed. It may also be noted that the original tenant retired from ACC in the year 1972 and soon after the retirement, he shifted to Coimbatore. Keshav who has examined himself as a witness has stated his age to be 39 years when his deposition was recorded in the year 1989 which means that he was aged about 24 years in the year 1974 when he is alleged to have constructed the bungalow from his own resources. There is No. satisfactory evidence about the source of income of the young son aged 24 years when the new bungalow at Coimbatore was constructed. On the other hand, just prior to the construction of the new bungalow, the original tenant would have received retirement benefits and probably, a lumpsum amount towards gratuity, Provident Fund etc. Even if it is assumed that there is No. direct evidence about the construction of the bungalow by the original tenant or out of his money certainly there is an evidence that the original tenant had acquired premises at "1-Kailash" and he was completely silent about the said acquisition in the written statement. Keshav, who was examined as a witness has not spoken anything about 1-Kailash in his deposition. In the light of this evidence, the concurrent finding of fact recorded by the two courts below that the tenant had acquired the premises at "1-Kailash" at Coimbatore requires No. interference in exercise of its jurisdiction under Article 227 of the Constitution of India.
8. Strongly relying upon the decision of a Division Bench in (J. Marathe v. P.V. Kaloke) MANU/MH/0388/2004 : 2004 (6) Bom.C.R. 721 : 2004(4) Mh.L.J 287, learned Counsel for the Petitioner submitted that acquisition of a premises at Coimbatore, a different city situated in a different State, far away from Mumbai, cannot be considered as an acquisition of suitable residence by the tenant.
9. In (Rajendraprasad v. Shankar) MANU/MH/0313/2002 : 2002 (3) Bom.C.R. 425: 2002 (3) Mh.L.J 498, Rebello, J (as his Lordship then was) sitting singly had taken a view that acquisition of a premises by a tenant even in a different city may, and almost must, be construed as an acquisition of suitable residence entitling the landlord to a decree under Section 13(1)(1) of the Bombay Rent Act. Earlier, in (Madhukar v. Smt. Satyabhamabai) 1980 Bom.C.R. 182, C.S. Dharmadhikari, J had held that it was neither possible nor desirable to lay down any general rule regarding the suitability of the premises acquired by the tenant for residence and the question would depend upon the facts and circumstances of each case. In view of the apparently conflicting view taken by the two benches of this Court, in the case of J. Marathe reference was made (incidentally reference was made by himself) to a Division Bench. The Division Bench overruled the view of Rebello, J in Rajendraprasad v. Shankar (supra) and upheld the view of Dharmadhikari, J in Madhukar v. Smt. Satyabhoamahai. The Division Bench held that emphasis of the legislature in providing for a ground for eviction under Section 13(1)(1) of the Bombay Rent Act was on the word "suitable'' preceding the word "residence". Therefore, the alternative premises acquired by the tenant for residence must be "suitable" to him. The Division Bench held that if the premises were acquired by a tenant in a different town that would not ipso facto be held to be acquisition of suitable accommodation. It would be further required to be demonstrated that the tenant had shifted with his family to the alternative accommodation and that the alternative premises were suitable for his residence. The Division Bench did not lay down that acquisition of residential premises by the tenant in a different city or town can never be regarded as acquisition of suitable residence.
10. For the purpose of passing of a decree under Section 13(1)(1) of the Bombay Rent Act, it is necessary for a landlord to prove that the tenant has built or. acquired suitable residential premises other than the suit premises. The emphasis is on the word "suitable" indicating that the alternative premises alleged to have been acquired by the tenant must be suitable for the ordinary needs of the tenant. Ordinarily, if the alternative premises are acquired in the vicinity or at a place not far away from the suit premises, it may be presumed that the alternative premises are suitable. It would then have to be demonstrated by the tenant that the alternative premises are not suitable for his ordinary needs. But where the alternative premises are alleged to have been acquired by the tenant are situated in a different town or city, it would be necessary for the landlord to further prove the suitability of the premises to the tenant. When the alternate premises are in the vicinity of the rented premises, the burden of proving that the premises are not suitable would ordinarily be on the tenant to show how the premises are not suitable. But where the alternate premises are situated in a different town or city, then it would be for the landlord to prove the suitability of the alternate premises. of course, it would not be necessary for the landlord to discharge that burden beyond reason of doubt but the ordinary rule in civil cases of "proof by preponderance of probabilities" would apply. Surrounding circumstances would be required to be taken into consideration by the Court for considering suitability of the premises. The fact that the tenant has shifted to an alternative accommodation with his family, the fact that the tenant is not ordinarily using the rented premises and is not living there would be relevant for considering the suitability of the alternate premises. By the very nature of the things, all the factors which are relevant for considering the suitability of the premises cannot be enumerated nor would be wise to attempt to do so. Suffice it to say that Court as an ordinary man of prudence would take into consideration all the relevant surrounding circumstances.
11. The surrounding circumstances in the present case unmistakably point out to the suitability of the alternative accommodation. Coimbatore appears to be the home town of the original tenant. He came to Mumbai for earning his living where he was employed in a private company. Just prior to the retirement he, unfortunately, lost his wife. After his retirement, he moved to his home town, lock, stock and barrel. His two sons also either moved along with him or had moved earlier to Coimbatore. According to the landlord, the tenant constructed his own house at Coimbatore while according to the sons of the original tenant, they constructed the house and their father only moved to their house along with them. The fact remains that the father moved to Coimbatore and in fact he had acquired a premises at 1 Kailash and sons have built another house at Coimbatore. The original tenant breathed his last at Coimbatore while residing with his family i.e. his sons. These facts show that tenant had No. animus rivertendi i.e. had No. intention to return to the suit premises and had permanently shifted to Coimbatore. During the pendency of the suit, though it is not clear whether it was before or after the death of the original tenant, the present Petitioner who is his married daughter moved in the suit premises. Her name appears in the voters list as resident of suit premises after 1977. The sons of the original tenant with whom he was living as a family have not challenged the decision of the trial Court but it is the married daughter who has filed and has pursued the present writ petition. She apparently has No. independent right in the premises. Consequently, it must be held that the premises "1-Kailash" at Coimbatore acquired by the original tenant were suitable residence within the meaning of Section 13(1)(1) of the Bombay Rent Act.
12. Mr. Godbole also referred to and relied upon a decision of the Supreme Court in (Anandi Jadhav (dead) by L.Rs. v. Nirmala Ramchandra Kore and Ors.) MANU/SC/0245/2000 : 2000 (3) Bom.C.R. 6 (S.C.): 2000 DGLS (soft) 681: (2000) 3 S.C.C. 703. In paragraph No. 5 of the decision, after quoting the provisions of Section 13(1)(1), the Hon'ble Supreme Court has held that from the scheme of the provision under Section 13(1)(1) it is discernible that only when the tenant gets a right to reside in a house, other than the demised premises on the happening of any one of the three alternatives viz. by building or by acquiring vacant possession of or by allotment of a house, that the landlord can seek recovery of possession of the demised premises from the tenant. As J have already held that there is adequate evidence on record that the tenant had acquired the premises at 1-Kailash. The original tenant having an exclusive knowledge of the capacity in which he had acquired the premises at 1-Kailash, it was his duty to show in what capacity he had acquired the premises and/or that he did not fall any of the three categories mentioned in the decision of the Hon'ble Supreme Court. His defence was of total denial and was not of having acquired the premises only temporarily or not having any right in the premises acquired. The decision therefore, does not help the Petitioner.
13. For these reasons, there is No. merit in the writ petition which is hereby rejected.
14. After this decision was pronounced in the open Court, learned Counsel for the Petitioner, on instructions of the Petitioner and her husband who are present in the Court prayed for time to vacate the premises on the ground that the Petitioner's husband has since retired and she would require reasonable time to make alternative arrangements. Counsel for the Respondent has No. objection for granting time subject to an undertaking to be filed by the Petitioner, her husband and all adult members in the family of the Petitioner. Petitioner is granted time till 31 December 2011 to vacate the suit premises subject to the Petitioner, her husband and all adult members in the family filing an undertaking in the usual form within six weeks hereof.
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