KHOJA HABIB JAFAR v. ALIBHAI MAMAD MOMMA — 1994 DIGILAW 148 (GUJ)

K. R. VYAS, J. ( 1 ) ). THE petitioner is a tenant of the residential house situated in village Bhanvad belonging to the respondent. The respondent has filed a suit being Civil Suit No. 74 of 1982 to recover possession of the suit premises on the ground of arrears as well as bona fide personal requirement. According to the respondent the suit premises has not been used for a continuous period of six months immediately preceding the date of the suit and in fact the petitioner is residing in some other village namely Verad with his son. The trial Court decreed the suit by holding that the petitioner is not using the suit premises for more than six months i. e. on the ground of non-user and also personal bona fide requirement. In the appeal being Reg. Civil Appeal No. 36 of 1984 which was heard by the learned Jt. District Judge Jamnagar the judgment and decree passed in favour of the respondent came to be confirmed while dismissing the appeal. Hence the present Revision Application. ( 2 ) ). MR. A. R. Thakkar learned Advocate for the petitioner vehemently submitted that the respondent has failed to establish the fact that the suit premises have not been used without reasonable cause for the purpose for which the same was let for a continuous period of six months immediately preceding the date of the suit and in absence of evidence to this effect the Court below ought not to have passed decree of eviction under Section 13 (i) (k) of the Bombay Rent Act. In support of his submission Mr. Thakkar relied on the decision of this Court rendered in the case of Luhar Jagjivanbhai Ramjibhai and Others v. Mukundlal Pitambardas Shah 1987 (1) G. L. H. 395. In the said judgment my learned brother R. A. Mehta J. while interpreting Section 13 (i) (k) of the Act has held that the landlord has to prove not only user or change of user but has also to prove that it is without reasonable cause. That was a case wherein the suit premises were let as a godown whereas they are being used for the purpose of business of blacksmith by installing a bath and chimney and the question of subletting in the knowledge of the landlord was also established. That was a case wherein the suit premises were let as a godown whereas they are being used for the purpose of business of blacksmith by installing a bath and chimney and the question of subletting in the knowledge of the landlord was also established. Considering the said circumstances a finding was recorded by the trial Court that the transfer or subletting was held to have been proved. With these facts on record my learned brother R. A. Mehta J. observed as under : in the present case. it is not possible to hold that the premises have not been used without reasonable cause for the purpose for which they were let. The reasonable cause for using the premises for the purpose of business is clearly established by the conduct of the landlord over a number of years and the implied consent of the landlord of the same. This aspect of reasonable cause for the alleged change of user clearly disentitles the landlord from recovering possession. Thus in that particular case and especially considering the conduct on the part of the landlord who has in fact permitted the change of user a finding was recorded to the effect that this aspect of reasonable cause for the alleged change of user clearly disentitles the landlord from recovering possession. Considering the facts of the case it was further observed in the said judgment that: The landlord has utterly failed even to allege and prove absence of reasonable cause. On the other hand the reasonable cause is duly established by long user for the purpose of business to the knowledge of the landlord. Therefore the opponentlandlord is not entitled to the decree for possession on this ground. Now such are not the facts in the present case. In the present case the respondent has come out with a simple averment in the plaint and in the evidence that the petitioner is not using the suit premises since more than six months and that the respondent requires the suit premises reasonable and bona fide. It was further averred that if the decree is not passed in his favour hardship would be caused to him. The suit notice is also addressed to the new address of the petitioner where in fact he was residing namely village Verad which can be seen from the acknowledgement receipt Exh. 26 on record. It was further averred that if the decree is not passed in his favour hardship would be caused to him. The suit notice is also addressed to the new address of the petitioner where in fact he was residing namely village Verad which can be seen from the acknowledgement receipt Exh. 26 on record. The suit notice has been accepted by the son of the respondent. The fact that the petitioner has replied to the suit notice would clearly establish that he has been served with the suit notice at village Verad. The respondent in his I evidence has clearly stated that the petitioner is not using the suit premises since last more than six months prior to the institution of the suit. To substantiate his say the respondent has examined one witness namely Nalinbhai who has also supported the case of the respondent. It is true that during the cross-examination witness Nalin has given complete go-by to his earlier version in the examination in-chief that he has seen the suit premises. However as the Courts below have observed by a mere omission on the part of the witness one cannot jump to the conclusion that witness (Nalin) does not support the respondent Even it the evidence of Nalin is ignored on the point whether he had seen the suit premises or not the fact remains that in his evidence he has clearly stated about the size of the family of the respondent which is ten in number and that the entire family is staying in one room which is in occupation of the respondent. Once it is established that the petitioner has failed to reside in the suit premises six months immediately preceding to the filing of the suit the next question would be regarding the question of hardship. Considering the evidence on record the Courts below have recorded a definite finding and it is not possible for this Court to take a different view. May be the Lower Appellate Court has not recorded the entire judgment it becomes clear that the question of hardship was in the mind of the learned District Judge. Considering the evidence on record the Courts below have recorded a definite finding and it is not possible for this Court to take a different view. May be the Lower Appellate Court has not recorded the entire judgment it becomes clear that the question of hardship was in the mind of the learned District Judge. The Supreme Court in the case of Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and Others AIR 1987 SC 1782 while considering the powers of the High Court under Section 29 (2) of the Rent Act has clearly laid down that where two views on evidence are possible and the Lower Court has taken one a possible view after evaluating evidence the High Court cannot substitute its own view. In my view the view expressed by the Courts below are just and proper and after evaluating the evidence on record and therefore even if a second view is possible it is not possible for this Court to take a different view while exercising powers under Section 29 (2) of the Rent Act. It is to be noted that against the evidence of the respondent-landlord the petitioner-tenant has not led any evidence even though as recorded by the learned District Judge number of opportunities were given. At the instance of the learned Advocate for the petitioner about four or five dates have been given by the trial Court so that the petitioner can remain present and give evidence. It is an undisputed tact that the petitioner has never remained present in the Court after 5-12-1983. Mr. Thakkar submitted before me that the petitioners Advocate has never informed him to remain present and therefore the petitioner has not remained present and that a necessary ground has been raised in the present Revision. It is not possible to deride the said question as to whether the petitioner was informed by his lawyer and as to why the petitioner has not remained present in this Revision Application. If whatever is alleged by the petitioner was true the petitioner could have made necessary application before the trial Court or could have taken out proper proceedings. ( 3 ) ). Mr. If whatever is alleged by the petitioner was true the petitioner could have made necessary application before the trial Court or could have taken out proper proceedings. ( 3 ) ). Mr. Thakkar next submitted that except the bare say of the respondent there is no other evidence which would go to show that the petitioner has stopped living in the suit premises and the respondent is not entitled to rely on the circumstance of the suit notice having been received by the petitioner at village Verad. In support of his submission he has relied on the decision in the case of Shah Ochhavlal Motilal and Another v. Kansara Dhanlaxmi Becharlal 1986 G. L. H. 389 wherein my learned brother R. A. Mehta J. has observed that it is for the plaintiff to prove his case and he cannot succeed on the weakness of the case of the defendant. There cannot be any dispute to the principle laid down in the said judgment however in that case the plaintiff had no personal knowledge whatsoever about the non-user by the defendant. Under the circumstances the Court observed that for proving non-user of the premises the plaintiff has to prove his case. While in the instant case there is a positive evidence by the respondent which is not controverted by the petitioner by leading proper evidence and therefore the facts of the said case are different from the present one. The submission of Mr. Thakkar is therefore rejected. ( 4 ) ). Mr. Thakkar then relied on the decision of the Supreme Court rendered in the case of Kishanlal Laxminarayan Karava v. Smt. Shalinibai 1991 (1) G. L. H. 376 and submitted that in the instant case the Courts below have not considered the question about the availability of accommodation for the tenant or the landlord and therefore also the decree passed against the petitioner is bad. In the said judgment the Supreme Court has observed that Section 13 (2) of the Bombay Rents Act is a provision which mandates the court before passing the decree for eviction on the ground of bona fide requirement specified in clause (g) of sub-section (1) to take into account all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant and whether greater hardship could be caused by passing the decree than by refusing to pass it. The Supreme Court has recorded the said finding in view of the fact that the Appellate Court without finally determining the comparative hardship straightaway ventured to decide in asking the parties to exchange the premises in their respective possession. However that is not the case before me. In the present case the Courts below after considering the evidence on record have recorded a finding that the respondent would face a comparative hardship if the decree for possession is refused to him. In this view of the matter there is no merit in this submission of Mr. Thakkar and the same is rejected. ( 5 ) ). Mr. Thakkar finally submitted that in the instant case the respondent has failed to prove his reasonable and bona fide requirement for occupation of the suit premises and therefore the Courts below ought not to have granted the decree for possession in his favour. He has relied on the decision of the Supreme Court in the case of Gulabbai Wf/o Amritlal Mutha v. Nalin Narsi Vohra and Others 1991 (2) G. L. H. In the facts of that case the Supreme Court while considering the meaning of the word reasonable requirement has observed that there must be an element of need as opposed to a mere desire or wish and on the facts of that case the Supreme Court has observed that the plaintiff has failed to prove reasonable and bona fide requirement of the suit premises for the purpose of opening Tax Consultancy Office of the respondent. Now the present one is not a case of that type. Now the present one is not a case of that type. Since I have already come to the conclusion that the respondent has proved his reasonable and bona fide requirement in view of the fact that he is having a family consisting of 10 members and especially when the petitioner is not residing in the suit premises and has left the village himself and with this end in view it is not possible for me to accept the submission of Mr. Thakkar. ( 6 ) ). Thus considering the overall facts and circumstances of the case I am clearly of the view that no error whatsoever has been committed by the Courts below and it is not possible for me to take a different view in the matter. ( 7 ) ). In the result there being no substance in this Revision Application the same fails and is dismissed. Rule is discharged. At the request of Mr. Thakkar time to surrender the suit premises is granted till 31-7-1994 on condition that the petitioner will deposit arrears of rent if any latest by 21-5-1994 and will also file an undertaking without prejudice to his rights and contentions to the effect that he will not transfer the suit premises to any third party. The said undertaking to be filed on or before 30. .