Research › Search › Judgment

Bombay High Court · body

2000 DIGILAW 350 (BOM)

Avadhut Harihar Dharke v. Baban Buva Bhutkar

2000-06-05

A.M.KHANWILKAR

body2000
JUDGMENT - A.M. KHANWILKAR, J.:---The short question which needs to be examined in this case is whether in the facts and circumstances of the present case the courts below were justified in decreeing the suit for possession on the ground of section 13(1)(k) of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 hereinafter referred to as "the Bombay Rent Act"). 2.The admitted facts are that the premises were let out to the petitioner on August 15, 1957. The petitioner enjoyed the said premises as a monthly tenant along with his family members, which inter alia, consisted of his sister Tulsabai. However, the sister got married in the year 1960 and since then she started living along with her husband in the suit premises along with petitioner. It is stated by the respondent-plaintiff that the petitioner secured alternate accommodation and started living in the said accommodation since January 1, 1979. The respondent plaintiff, in the circumstances, issued notice to the petitioner-defendant on May 3, 1979 calling upon the petitioner to handover vacant and peaceful possession of the suit premises, chiefly, on the ground that the premises were no longer required by the petitioner as he has secured alternate accommodation elsewhere. The said notice was replied by the petitioner on May 14, 1979 whereby the petitioner refused to handover the possession of the suit premises. The respondent accordingly instituted suit for eviction against the petitioner on July 16, 1979, praying for possession of the suit property under section 13(1)(k) of the Bombay Rent Act for non-user of the suit premises by him for a period of more than six months preceding the institution of the suit. Besides the said ground of non-user, the suit was also filed on the ground of default. However, the ground of default has been negatived by the courts below. As such, the only question which requires to be examined in the present case is whether the decree could have been made under section 13(1)(k) of the Bombay Rent Act. 3.Learned Counsel for the petitioner submits that it is only when the premises are kept in a locked and totally non-used condition that a decree under section 13(1)(k) of the Bombay Rent Act can be made. According to him, there is no other situation which can attract the said provision. 3.Learned Counsel for the petitioner submits that it is only when the premises are kept in a locked and totally non-used condition that a decree under section 13(1)(k) of the Bombay Rent Act can be made. According to him, there is no other situation which can attract the said provision. In support of this submission, reliance has been placed on the judgment of this Court in the case of (Kasturchand Panachand v. Yeshwant Vinayak)1, 1980 Bom.C.R. 424. Reliance has been placed on paragraph 5 of the said judgment wherein, according to learned Counsel for the petitioner, it is held that only in the case of total non-user of the premises for which they were left out that the provisions of section 13(1)(k) of the Bombay Rent Act would be attracted. 4.Reliance has also been placed on another decision of a learned Single Judge of this Court in the case of (B.S. Datye and others v. V.S. Mahadeokar and others)2, 1985(2) All India Rent Control Journal 561. In paragraph 3 of this judgment, it is held as under : "a decree for eviction under section 13(1)(k) of the Bombay Rent Act can only be passed if it could be shown that the suit premises have not been used at all and not for change of user for a purpose other than the one for which they were let out." 5.Another judgment which was pressed into service by the learned Counsel appearing for the petitioner is of the Gujarat High Court in the case of (Mohini Bhiryomal v. Bhanubhai Manilal)3, 1985 Bom.R.C. 27. It is relevant to point out that this judgment has been relied upon by the Appellate Court in accepting the claim of the plaintiff. According to him, the Gujarat High Court negatived the claim of the tenant having regard to the admitted facts of that case. In that case, the Court had positively held that the tenant had not proved that his mother actually resided in the house, nor was it proved that the tenant was also residing in the house. On the other hand, in the present case, the finding of fact recorded by both the courts below is that the petitioner's sister was residing with him prior to her marriage and continued to reside with him along with her family members even after her marriage in the year 1960. On the other hand, in the present case, the finding of fact recorded by both the courts below is that the petitioner's sister was residing with him prior to her marriage and continued to reside with him along with her family members even after her marriage in the year 1960. Admittedly, the premises in question are being used and occupied by the petitioner's sister since then. In the circumstances, it is contended on behalf of the petitioner that the suit premises were being used althroughout and were never kept in a locked or unused condition, which is the precondition to attract section 13(1)(k) of the Bombay Rent Act. 6.On the other hand, another decision of a Single Judge of this Court in the case of (Radheshyam v. Safiyabai)4, 1987(3) Bom.C.R. 459 has been relied upon by the respondent. Paragraphs 17, 18 and 19 of the said decision specifically deal with the issue which is raised in the present petition. In paragraph 19 of the said decision, it is observed that in view of the decision of the Supreme Court in the case of (V. Rahimbhai Haji v. V. Sunderlal)5, A.I.R. 1986 S.C. 174, the ratio laid down by the judgment of this Court in Balwant Sadashiv Datye's case is no longer a good law. I have examined the decision of the Supreme Court reported in A.I.R. 1986 S.C. 174. In my view, the decision of the Supreme Court has not directly answered the question raised in this case or the one decided by the earlier two decisions of this Court. As such, the premise on which the contra decision reported in 1987(3) Bom.C.R. 459 is based seems to be doubtful and would require reconsideration. I am thus disposed to hold that it would be appropriate to refer this matter to a Division Bench to examine whether in the facts and circumstances of the present case the decree for eviction under section 13(1)(k) of the Bombay Rent Act can be sustained. 7.Office to place this matter before the learned Chief Justice for appropriate orders. Matter placed before Chief Justice. -----