Having considered the rival submissions in the light of the evidence on record, it is not possible to accept the contentions of Shri Dalvi. A perusal of the evidence clearly shows that in October, 1974 the petitioner left Pune for good and he shifted his entire family viz. his wife, two children and his mother to Nagpur in May, 1975. Apart from the fact the petitioner was provided with Service Quarters at the Pench Project, near Nagpur, the petitioner acquired tenanted premises in Dhantoli at Nagpur and got his ration card and gas connection transferred from Pune to Nagpur. Merely because the petitioner kept some of his belongings in the suit premises at Pune, it would not be possible to hold that the petitioner continued to use the suit premises for the purpose for which they were let.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 3059 of 1980
Decided On: 07.01.1993
Govind Ramchandra Deo Vs. Smt. Ramabai Vasudeo Pandit and Ors.
Hon'ble Judges/Coram:
A.V. Savant, J.
Citation: 1993(1) MHLJ 437
1. This is a petition by the original-tenant seeking to challenge the order dated 20th July, 1980 passed by the Appellate Court allowing the appeal of the landlords and directing the tenant's eviction on two grounds viz. (i) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of 6 months immediately preceding the date of the suit-as mentioned in Clause (k) of sub-section (1) of section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter, referred to as the 'said Rent Act') and (ii) that the tenant after coming into operation of the said Rent Act has built, acquired vacant possession of or been allotted a suitable residence, as mentioned in Clause (1) of sub-section (1) of section 13 of the said Rent Act. The trial Court had dismissed the landlords' suit, but on appeal a decree for eviction has been passed, which has been challenged in this petition. A few facts may be stated as under:-
2. The petitioner was employed with the State Government as an Engineer in the Irrigation Department. In 1958 the petitioner was posted at Koyna where he continued till 1962 when he was transferred to Pune. When the petitioner came to Poona, he took the suit premises on rent of Rs. 87/- per month. The premises are a Flat in Narayan Peth, Pune. The petitioner continued in the State Government's service at Pune till 1972 when he was sent on deputation to the Government of India and was posted at Delhi. The petitioner served at Delhi on deputation to the Government of India till 1974 when he was repatriated to the State Government and was again posted at Pune. In October, 1974 he was transferred from Pune to Nagpur and was posted at a nearby project viz. the Pench Project. The petitioner initially went to Nagpur alone and stayed at Service Quarters provided at Pench. However, he secured separate premises on rent viz. Herlekar's bungalow, at Dhantoli, Nagpur, and his entire family shifted to the said Dhantoli premises at Nagpur in May, 1975. His family then consisted of his wife, a son, a daughter and his mother. The suit notice was given on 9th October, 1976 terminating the tenancy on the ground that (i) the premises had not been used without reasonable cause for the purpose for which they were let for a continuous period of 6th months immediately preceding the date of the suit and (ii) that the tenant had after the coming into operation of the said Rent Act acquired or allotted suitable residence.
3. In the written statement, the petitioner denied the contentions raised by the respondents landlords. It was denied that the premises has not been used by the petitioner without reasonable cause for the purpose for which the premises were let. According to the petitioner, he had kept his goods and belongings in the suit premises and at times, the members of his family were using the suit premises in Pune. He further contended that in July/August, 1976 he had gone to Pune with his family members and had stayed in the suit premises. According to the petitioner, therefore, he had not ceased to use the premises without reasonable cause. He further contended that there was no case made out even for passing a decree under Clause (1) of sub-section (1) of section 13 and he denied that he had acquired or allotted suitable residence.
4. The oral evidence consisted of the testimony of respondent No. 2 on behalf of the landlords and of the petitioner on his own behalf. The learned trial Judge framed the following two issues and recorded the findings in the negative:
"1. Does the plff. prove that the suit premises have not been used without reasonable cause for the purposes for which they were let out for a continuous period of six months immediately preceding the date of suit? No.
2. Does the plffs. prove that the Deft. has shifted with his family and all his belongings out of Poona, as alleged? No.
In coming to this conclusion, the trial Court placed complete reliance on the decision of this Court (Vaidya, J.) in the case of Achut Pandurang Kulkarni v. Sadashiv Ganesh Phulambrikar, reported in MANU/MH/0114/1973 : AIR1973Bom210 . The learned Judge came to the conclusion that the petitioner had the intention to retain the premises at Pune and had been intermittently visiting the premises in spite of transfer and that when the petitioner was transferred to the Pench Project, near Nagpur, in October, 1974, his children were taking education in Pune for some time till they were taken to Nagpur for the purpose of education. The learned trial Judge also accepted the petitioner's contention that the office of the Mechanical Organisation of the Irrigation Department of the Maharashtra Government was located in the Central Building at Pune and that the petitioner was required to come to Pune in connection with his official duties and hence, it was not correct to say that the premises had not been used without reasonable cause for the purpose for which they were let.
5. In Achut Kulkarni's Case, the suit premises were situated at Pune and the tenant was a Government servant who was transferred from Pune to Solapur and was staying in Solapur with his family for more than a year before the suit and had therefore kept the suit premises the un-used for more than 6 months before the date of the suit. The trial Court decreed the suit of the landlord under section 13(1)(k) and the finding was confirmed in Appeal. When the tenant approached this Court in a writ Petition, it was held by this Court that the courts below had not recorded a finding that the tenant had any permanent residence elsewhere. This has been so stated in para 14 of the judgment in Achut Kulkarni's case at page 213 of the report. In the present case, the Appellate Court took the view that having regard to the conduct of the petitioner and the fact that he has shifted his family to Nagpur in October, 1974, he was liable to be evicted on the ground mentioned in Clause (k) of sub-section (1) of section 13 of the Act. The petitioner's contention that he stayed in Pune in July-August, 1976 was rejected by the learned Appellate Judge. On the question of section 13(1)(l) the Appellate Court has held that not only was the petitioner provided with the Service Quarters at Pench Project, near Nagpur, but the petitioner was successful in obtaining suitable premises in Dhantoli Area of Nagpur where he has shifted his family. The learned Appellate Judge came to the conclusion that on his transfer to Nagpur when the petitioner shifted his entire family to Nagpur, he had no intention to return to Pune. In the result, he allowed the appeal filed by the respondents on both the grounds viz. the one under section 13(1)(k) and the other under section 13(1)(l) of the Act.
6. Being aggrieved by the said decision dated 29th July, 1980, the petitioner has preferred this writ petition. I have heard both the learned Counsel, Shri Dalvi and Shri Abhyankar, at some length Shri Dalvi for the petitioner has contended that when the premises were let to the petitioner, the landlords knew that the petitioner had a transferable job. The petitioner was sent on deputation to Delhi and it is pertinent to note, says the learned Counsel, that no steps were taken by the landlords during the period 1972 to 1974 when the petitioner was sent on deputation to Delhi. Shri Dalvi further contends that the petitioner always had the intention to make Pune his permanent home and had initially kept his children in Pune for some time in 1974 till the entire family was shifted to Nagpur in May, 1975. He further contends that the officer of the Mechanical Organisation of the Irrigation Department of the Government of Maharashtra is located in the Central Building at Pune and the entire store is located at Dapodi near Pune and that the petitioner was required to visit Pune in connection with his official work. It was further contended that the petitioner had kept his belongings in the premises and had kept a care-taker in the said premises till an application was made in the trial Court for injunction restraining the petitioner from even keeping the care-taker in the said suit premises. On such an application being made, the petitioner made a statement to the effect that he would no longer keep any care-taker in the suit premises. My attention was also invited to the fact that the address on the Insurance Policy was that of Pune, as was evident from the Life Insurance Premium receipt at Exh. 25. Shri Dalvi placed strong reliance on the observations of this Court in Achut Kulkarni's case and contended that if a tenant who was a Government servant and was transferred to other place went on paying the rent regularly in respect of the suit premises occupied by him earlier prior to his transfer, paid electricity charges and kept his belongings in the premises, it could not be said that the premises had not been used without reasonable cause for the purpose for which they were let for a continuous period of 6 months immediately preceding the date of the suit. He then contended that even the subsequent events would show that after the petitioner's postings at different places between 1974 and 1990, he has ultimately thought it fit to settle down in Pune and his earlier intention to make Pune his permanent home has been translated into action. The petitioner has retired in 1990 and in keeping with the usual practice, he was given the choice of the last posting which he had opted in favour of Pune.
7. Secondly, Shri Dalvi contended that the trial Court did frame a specific issue regarding section 13(1)(k). But issue No. 2 framed by the trial Court, as reproduced above, was not really an issue arising under section 13(1)(l) and the wording of the said issue would as well indicate that it related to the ground under section 13(1)(k) or perhaps 13(1)(l). According to him, the trial Court had not framed any specific issue in regard to compliance of section 13(1)(l) of the said Rent Act and hence, the Appeal Court was not justified in passing a decree on that ground.
8. As against this, Shri Abhyankar on behalf of the respondents contended that it is true that the petitioner was sent on deputation to Delhi and that during the period 1972-74 no action was taken by the landlords for eviction of the petitioner. However, this was due to the fact that the petitioner had temporarily been posted at Delhi on deputation to the Government of India. Both sides knew this position. He contends that the evidence on record shows that the petitioner had given his permanent residence in the service record right from 1958 as Amalner. The petitioner's father was a Mamlatdar and on retirement he was serving in the Amalner Mill, as his evidence shows. The petitioner's family house was at Dhule. At no point of time, the petitioner got his permanent address changed from Amalner to Pune so as to indicate that he had abandoned his intention of going back to Amalner or that he wanted to made Pune his permanent home. Shri Abhyankar further contended that the ratio of the decision in Achut Kulkarni's case could have no application to the facts of the present case and that the present case would be governed squarely by the ratio of the decision of Chagla, C.J., in Dattatray Balaji Mahajan v. Narayan Vinayak Bhonde, being C.R.A. No. 1527 of 1953, decided on 30th July, 1954. Relying upon the said decision, he contended that, in the first place, there was a mere interested word of the petitioner to the effect that in the months of July-August, 1976 the petitioner's family had stayed at Pune for a brief period. Secondly, assuming that this was to be accepted as true by this Court, disturbing the finding of fact recorded by the Appeal Court, a mere casual stay or occupation for a spasmodic period would not be tantamount to the user of the premises for the purpose for which they were let. Admittedly, the premises were let for the purpose of permanent residence and not for mere casual occupation or a mere spasmodic stay in the premises. Hence, even if the petitioner's contention that there were some visits intermittently to the suit premises or a brief stay in the suit premises, he contends that, this would not amount to user of the premises for the purpose for which they were let. Shri Abhyankar then relied upon the fact that on his transfer to Nagpur the petitioner had got his ration card and gas connection transferred to Nagpur. He had taken admission for his children in Nagpur in 1975. This was clear from the examination in-chief of the 2nd respondent.
9. Shri Abhyankar further contended that once a ground was available to the landlords under section 13(1)(k) or section 13(1)(l), the fact that subsequently there was a change in the circumstance would not be relevant. He contended that if the cause of action existed not only on the date of the notice but also on the date of the filing of the suit, it was enough to entitle the landlords to a decree and it was not necessary that the tenant must continue to be in possession of some other residence at the time of passing of the decree. The fact, therefore, that subsequently on retirement the petitioner has chosen to settle down in Pune was not at all relevant. In this connection, he placed reliance on the following decisions:-
(i) Hem Chand Baid v. Smt. Prem Wati Parekh, reported in MANU/DE/0265/1979 : AIR1980Delhi1 ;
(ii) Shivlal Nathuram Vaishnav v. Smt. Sulochana and others, reported in MANU/GJ/0140/1980 : AIR1980Guj59 ;
(iii) Parviz B. Engineer v. Behram Dadabhai Pesuna and others, reported in 1990 Maharashtra Rent Control Journal, page 155.
10. Having considered the rival submissions in the light of the evidence on record, it is not possible to accept the contentions of Shri Dalvi. A perusal of the evidence clearly shows that in October, 1974 the petitioner left Pune for good and he shifted his entire family viz. his wife, two children and his mother to Nagpur in May, 1975. Apart from the fact the petitioner was provided with Service Quarters at the Pench Project, near Nagpur, the petitioner acquired tenanted premises in Dhantoli at Nagpur and got his ration card and gas connection transferred from Pune to Nagpur. Merely because the petitioner kept some of his belongings in the suit premises at Pune, it would not be possible to hold that the petitioner continued to use the suit premises for the purpose for which they were let. Shri Dalvi's reliance on the decision in Achut Kulkarni's case is, in my view, misplaced. That was a case where this Court came to the conclusion that the courts below had not recorded a finding that the tenant had any permanent residence elsewhere. In fact, Vaidya, J., distinguished the decision of Chagle, C.J., in para 14 of the judgment, at page 213 of the Report in the following words:-
"14. Proceeding to consider as to whether any other member of the family was residing in the premises, having regard to the fact that the evidence in that case showed that son of the petitioner stayed in the premises from June 9 to June 14 November, 9 to November 14, 1950 Chagla, CJ., observed:-
"As a matter of fact, the learned District Judge finds and I am bound by that finding-that there was merely a casual occupation by the petitioner's son for a spasmodic period of a week. Now, a mere casual occupation of premises does not constitute residence in those premises. In construing sub-clause (k), one must also bear in mind the object of the Legislature in passing this legislation. The Rent Restriction Act is passed because there was a scarcity of premises and therefore it was necessary to protect bona fide tenants and also to see that premises were not left unoccupied so that people in need of premises should not be deprived of them and also a tenant should not have one set of premises at one place and go about residing in some other premises. Therefore, the purpose within the meaning of sub-clause (k) for which premises are let is the purpose of permanent residence; not a mere casual occupation, not a mere spasmodic stay in the premises......" (Underlining mine)
The learned Assistant Judge and the trial Judge in the present case have not recorded a finding that the petitioner had any permanent residence elsewhere like the tenant in the case decided by Chagla. C.J. Nevertheless, the two courts appear to have been erroneously carried away by the comment purported to be based on this case in Dalal's commentary on the Rent Act, 1960, Third Edition at P. 257, reproduced at p. 444, 1969 Fourth Edition."
It was in this peculiar background that Vaidya, J., had held in Achut Kulkarni's case that the tenant was entitled to protection, Nevertheless, Vaidya, J., hastened to observe in para 17 as under:
"I do not propose to lay down that in every case where a Government servant is transferred and he goes on paying rent in respect of the premises, he had reasonable cause for not using the premises for the purpose for which they were let. The question will depend on the facts and circumstances of each case. The tenant must couple and clothe his inward intention to return, with some formal, outward and visible sign of it, as for instance by installing some caretaker or representative, be it a relative or not with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. It may also be that the same result can be secured by leaving on the premises, as a deliberate symbol of continued occupation, furniture. As stated by Asquith, L.J., in Brown v. Brash and Ambrose (1948)2 K.B. 247, the tenant must prove not only animus posited but a corpus possessionis."
It was then in the peculiar facts set out in para 18 of the judgment in Achut Kulkarni's case that Vaidya, J., came to the conclusion that the tenant was compelled not to stay in the premises by reason of his transfer and he had reasonable cause for not using the premises for the purpose for which they were let out for a continuous period of 6 months immediately preceding the date of the suit. This observation, however, has to be read in the background of the observations in para 14 reproduced by me above in para 10 where Vaidya, J., came to the conclusion that the courts below had not found as a matter of fact that the tenant had any permanent residence elsewhere. However, the evidence in this case clearly shows that on his transfer to Nagpur in 1974 the petitioner had more than one residence viz. his service quarters at Pench Project, near Nagpur, and his tenanted premises at Herlekar's bunglow, in Dhantoli, at Nagpur where he shifted his entire family in May, 1975 and severed his connection with Pune. In my view, therefore, no reliance can be placed by Shri Dalvi on the ratio of the decision in Achut Kulkarni's case.
11. On the other hand, Shri Abhyankar is justified in placing reliance on the ratio of the decision of Chagla, C.J., in Dattatray Balaji Mahajan v. Narayan Vinayak Bhonde, C.R.A. No. 1527 of 1953. That was a case where a tenant was a widower who had not stayed in the suit premises at Pune, but had stayed with one of his sons at Jalgaon. The landlords, therefore, initiated proceedings for eviction under section 13(1)(k) of the Rent Act. One of the defences raised by the tenant was that though the suit was filed on the 3rd April, 1951, the sons of the petitioner-tenant had stayed in the premises from 9th June to 14th June, 1950 and from 7th November to 14th November, 1950. Since the second period of stay viz. November, 1950 fell within 6 months section 13(1)(k) should be passed. The learned Chief Justice observed that the Rent Restriction Act was passed because there was a scarcity of premises and it was necessary to protect a bona fide tenant and also to see that the premises was not left un-occupied so that the people in need of the premises should not be deprived of the same and also that a tenant should not have one set of premises at one place and go about residing in some other premises. Therefore, the purpose within the meaning of sub-clause (k) for which the premises are let is a purpose of permanent residence, observed the learned Chief Justice, and not a mere spasmodic stay in the premises. In this view of the matter, it was held that a mere casual stay for a brief period in the premises cannot be called a residence so as to say that the premises were used during the relevant period for the purpose for which they were let. The learned Chief Justice observed that there was a finding by the learned District Judge that there was a mere casual occupation by the petitioner's son for a spasmodic period of the week and he was bound by the said finding in a C.R.A. Before me also, I have finding of fact recorded by the learned Appellate Judge who has come to the conclusion that the contention of the petitioner that he stayed in the premises with his family intermittently for a period of two months during July-August , 1976 during the relevant period of 6 months immediately preceding the date of the suit, was not substantiated by the evidence Obviously, the said finding of fact binds me. However, applying the ratio of the decision of the learned Chief Justice in Dattatraya Mahajan's case even if it were to be held that the petitioner's family stayed in Pune for a brief period, during July-August, 1976, it is not possible to hold that the said stay was user of the premises for the purpose for which the premises were let. Admittedly, the petitioner was posted at the Pench Project, near Nagpur, during the period July-December, 1976 when the suit was filed on 4th December, 1976. Apart from the petitioner's Service Quarters at Pench Project, near Nagpur, the petitioner had acquired Herlekar's bunglow in Dhantoli, at Nagpur, where he had shifted his entire family from Pune to Nagpur in May, 1975. The petitioner's brief stay at Pune in July and August, 1976 cannot, therefore, constitute his residence or user of the premises at Pune for the purpose for which the premises were let. I am, therefore, of the view that having regard to the ratio of a decision in Dattaraya Mahajan's case, decided by Chagla, C.J., the petitioner has failed to prove that the premises were used for the purpose for which they were let for a continuous period of 6 months immediately preceding the date of the suit. It is thus clear that the respondents have made out a case that the premises had not been used without reasonable cause for the purpose for which they were let for a continuous period of 6 months immediately preceding the date of the suit. The petitioner is, therefore, liable to be evicted on this ground.
12. On the question of section 13(1)(l) of the Bombay Rent Act also, I find substance in the contention of Shri Abhyankar. As stated earlier, there is no controversy that apart from the Service Quarters at Pench Project, near Nagpur, the petitioner acquired a suitable residence in Dhantoli, at Nagpur, and shifted his entire family from Pune to Nagpur in May, 1975. At no point of time did the petitioner inform the Government that he had shifted his permanent address from Amalner to Pune or even to Nagpur. The petitioner belonged to Amalner and even after retirement, his father had settled down in Amalner where he had taken a job. The petitioner's family house is at Dhule. These are unequivocal admissions in the cross-examination of the petitioner. There is a finding recorded by the Appellate Court that the premises acquired by the petitioner at Nagpur were suitable for his residence. This is a clear finding of fact recorded by the learned Appellate Judge.
13. Shri Abhyankar is justified in placing reliance upon the decision of the Delhi and Gujarat High Courts in support of his contention that in cases falling under section 13(1)(l) it is enough if the cause of action subsists at the time of the notice and the filing of the suit and it is not necessary that the cause of action continues to subsist even on the date of the passing of the decree. In the case of Hem Chand Baid v. Smt. Prem Wati Parekh, reported in MANU/DE/0265/1979 : AIR1980Delhi1 , it has been observed that once a default has been committed by the tenant, as contemplated by Clause (h) of sub-section (1) of section 14 of the Delhi Rent Control Act, 1958, by building his own houses of acquiring alternative accommodation, he ceases to enjoy the protection of law permanently and at no point of time and under no circumstances, the protection law is revived. Consequently the Division Bench of the Delhi High Court held that the default need not be continuing when the landlord terminates the tenancy on the basis of the default in question. Thus, it was held that where the landlord applied to the Slum Clearance Authority for permission to evict the tenant within a month of his acquiring new accommodation and terminated the tenancy on his resifting to the demised premises during the pendency of his application and filed a suit for eviction on grant of permission by the Slum Clearance Authority, the landlord must be deemed to have expeditiously taken legal steps in the matter of seeking eviction of the tenant. The relevant observations are to be found in para 12 of the Judgment at page 5 of the Report.
14. Similarly, in Shivlal Nathuram Vaishnav's case, reported in MANU/GJ/0140/1980 : AIR1980Guj59 , a Division Bench of the Gujarat High Court held as under in para 8, page 61:-
"In view of the present perfect tense in which the Legislature has expressed this clause, we must hold that the completed event which is a ground on which ejectment action is based must have some relation to the present time. We are, therefore, of the opinion that the cause of action provided in section 13(1)(l) of the Bombay Rent Act must exist not only by or before the notice to quit but it must also exist at the time when the suit is filed. The contention urged on behalf of the petitioner-tenant that in order to get a decree of eviction under this clause, the tenant also must continue to be in possession of the residence at the time of the decree is not warranted and we must reject it."
15. What is conclusive as far as I am concerned is, however, a Division Bench decision of this Court it the case of Parviz B. Engineer v. Behram Dadabhai Pesuna and others, reports in 1990, Maharashtra Rent Control Journal, p. 155. This was a case where the eviction was sought under section 13(1)(l). The matter was referred to the Division Bench since the learned single Judge of this Court had some reservation about the correctness of the decision is Shivlal Vaihnav's case, reported in MANU/GJ/0140/1980 : AIR1980Guj59 , (supra). The Division Bench considered a series of decisions, including the decision rendered by J.C. Shah. J., (as he then was) in C.R.A. No. 1060 of 1962 viz., V.R. Kewalramani v. J. R. Ramchandani, and the decision of Deshpande, J., (as he then was) in Special Civil Application No. 623 of 1966 in the case of Pandharinath Jagtap v. Tukaram Ganpat Holkar and another, in Paras 11 to 14, the Division Bench observation as under at pages 160 to 162 of the Report:-
"11. Clause 13(1)(l) of the Bombay Rent Act reads as follows:-
"13. (1) Notwithstanding anything contained in this Act but subject to the provisions of section 15 and 15-A a landlord shall be entitled to recover possession of any premises if the Court is satisfied-
(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted to a suitable residence."
Now, in the unreported decision in Civil Revision Application No. 1060 of 1962 it was held, while analysing Clause (1), as follows:-
"The third contingency, and utterly an independent one, is when suitable residence has been allotted to the tenant. It is significant to note that the word "allot" is not either prefixed or suffixed by the word "permanently" or "temporarily". The word is, therefore, to be construed as it really means in the English language. The contingency about the allotment of a suitable residence is not dependent upon neither of the two proceeding contingencies nor does it share any of the implications involved in the first two contingencies. The clause is silent as to by whom a suitable residence is to be allotted to the tenant.
The legislature while inserting this contingency is section 13(1)(l) of the Rent Act can be presumed to have known the proper and exact connotation of the word "allot". Besides, the word is also construed by the Supreme Court, and therefore, it can safely be held that the legislature could never have intended to use the word so as to imply that the allotment is of a permanent character. As a matter of fact where any premises is given on the basis of licence, unless it is an irrevocable licence, there could never be any security of tenure. That is precisely what is implied in this meaning of the word "allot" before it at the time of framing this clause."
Similarly, in the decision in the Special Civil No. 623 of 1966 also it was held that even a temporary allotment seems to have been contemplated to be covered by the words "has built, acquired vacant possession of, or been allotted a suitable residence" occurring in Clause (1). Reference was made to the decision of Shah, J., in Civil Rev. Application referred to above.
12. In tune with the above noted view of this Court, it was held by the Delhi High Court in Hem Chand Baid's case (supra) while constructing the provisions of Clause (h) of section 14(1) proviso, of the Delhi Rent Control Act which is similar to Clause (1) of section 13(1) of the Bombay Rent Act, that once a tenant loses protection of the Act by committing default contemplated by Clause (h) and the protection under the Act is not revived subsequently in any situation. Although coming into possession of another premises by a tenant was regarded as a default and although it was sought to be argued before us by Mr. Phadkar that an allotment of suitable residence may not be capable of being described as default, it is unnecessary to go into that question. Suffice it to say that the view taken by the Delhi High Court in the aforesaid decision was similar as was taken by this Court earlier
13. Coming now to the case of the Gujarat High Court with which the learned single Judge found it difficult to agree, there also Clause (1) of section 13(1) of the Bombay Rent Act fell for consideration. It was held as follows:-
"...We must hold that the completed event which is a ground on which ejectment action is based must have some relation to the present time. We are, therefore, of the opinion that the cause of action provided in section 13(1)(l) of the Bombay Rent Act must exist not only by or before the notice to quit but it must also exist at the time when the suit is filed. The contention urged on behalf of the petitioner tenant that in order to get a decree of eviction under this clause, the tenant also must continue to be in possession of the residence at the time of the decree is not warranted and we must reject it."
The Decision in Gappulal v. Thakurji Shrili Dwarkadheeshji, MANU/SC/0441/1969 : [1969]3SCR989 , of the Supreme Court was considered for the purpose of laying down this ratio.
14. Having regard to the aforesaid decisions and the view that has already been taken by this Court in the two unreported decisions, we find ourselves in agreement with the view expressed by the Gujarat High Court. We are of the view that once it is shown by the landlord that the tenant was in possession of allotted premises on the date of the suit, he is entitled to seek eviction of the tenant on that ground under section 13(1)(l) of the Bombay Rent Act, though it must ultimately depend upon the facts and circumstances of each case."
16. In this view of the matter, there is no merit in the writ petition. The petitioner is liable to be evicted, both on the ground under Clause (k) and Clause (l) of sub-section (1) of the section 13 of the Bombay Rent Act. Shri Dalvi's contention that there was no specific issue framed regarding section 13(1)(l) has no merit, because having regard to the two issues framed by the trial Court, it is clear that Issue No. 1 related to section 13(1)(k), whereas Issue No. 2 related to section 13(1)(l). Both the parties went to the trial with the full knowledge of the pleadings both under section 13(1)(k) and section 13(1)(l) and have led evidence in respect of their contentions on both the grounds. Hence, the petition is liable to be rejected. Accordingly, Rule is discharged. There will, however, be in the circumstances of the case, no order as to costs.
17. At this stage, Shri Dalvi prays for stay of the operation of this order for a period of 6 weeks. Shri Abhyankar for the respondents fairly makes a statement that the respondents will not execute this order for a period of 6 weeks for today. The said statement made by Shri Abhyankar is accepted. However, the injunction against the petitioner that he will not create any third party interest in the suit premises will continue during the said period of 6 weeks.
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