Whether landlord can be denied eviction decree even if tenant acquires alternative accommodation?

 Having considered the rival submission, I shall first advert to the ground under Section 13(1)(l) of the Act. Indeed both the Courts below have elaborately examined the matter and found that the Petitioner tenant has secured alternative accommodation both for business as well as for residence and, therefore, the decree for possession was granted. However, to my mind, the test applied by both the Courts below is wholly incorrect. Whereas, on plain language of the provision, the ground under this provision is available only when the demised premises were let out for residential purpose only. This is the settled legal position. It will be useful to refer to Dr. Gopaldas Verma's case . To put it differently, this ground would come into play only in respect of premises let out for residential purpose only and not in relation to tenancy created for business or for that matter composite tenancy for business cum residence. If we were to hold otherwise, that would be rewriting the provision and against the legislative intent. To my mind, therefore, when tenancy is created for business purpose or composite tenancy for business cum residence; And if such a tenant were to acquire alternative premises even then it would not create any right in favour of the landlord to get back possession of the demised premises by invoking Section 13(1)(1) of the Act as such. None of the Courts below have examined this aspect of the matter. Whereas this is the crucial test to be applied for invoking Section 13(1)(1) of the Act. In the present case, it has been established from the record that the tenancy in respect of the demised premises was initially created in 1939 for composite user of business cum residence. The rent note (Exh.117) establishes this position, besides the other evidence on record. Besides, in this case the Plaintiff has neither pleaded that the dominant purpose for letting out the demised premises was for residence nor any attempt was made to adduce evidence to establish that fact. Moreover, no such argument was canvassed or considered by the courts below. A priori, Section 13(1)(1) will have no application to the case at hand. Therefore, although two Courts below have answered this issue in favour of the landlord, the said view cannot be sustained and will have to be overturned.

Bombay High Court

Tarachand Hassaram Shamdasani vs Shri Durgashankar G. Shroff And ... on 12 August, 2002

Bench: A Khanwilkar

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