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2003 DIGILAW 563 (GUJ)

LAXMIBEN AMBALAL LODHA v. VASANTIBEN WD/o PRATAPSING DEVISING (THROUGH LEGAL HEIRS

2003-09-18

KUNDAN SINGH

body2003
KUNDAN SINGH, J. ( 1 ) THIS Revision Application arises out of the judgment and decree dated 8. 4. 2003 in Civil Appeal No. 169 of 1999 passed by the Appellate Bench of Small Causes Court, Ahmedabad whereby the appeal has been allowed and the judgment and decree dated 7th September, 1999 dismissing H. R. P. Suit no. 393 of 1994 passed by the trial court has been set aside. ( 2 ) THE petitioners-original plaintiffs-landlords filed H. R. P. Suit no. 393 of 1994 for eviction of the respondents-original defendants-tenants from the suit premises on the ground of arrears of rent from 1. 3. 1978 and on the ground of non-user of the suit property for more than six months and also on the ground that the defendants-tenants have acquired alternative suitable accommodation. After recording evidence of both the parties and after hearing the learned advocates of the rival parties, the trial Court by its judgment and decree dated 7th September, 1999 directed the respondents-defendants to hand over the possession of the suit premises to the petitioners-plaintiffs on or before 30th October, 1999 and also with a liberty to the plaintiffs to withdraw the amount of rent deposited by the defendants-tenants in the Court. ( 3 ) BEING aggrieved by the judgment and decree of the trial court, the defendants-tenants filed Civil Appeal No. 169 of 1999 before Appellate Bench of Small Cause Court, Court. The Appellate Bench, after considering the evidence and material on record, held that it cannot be said that the defendants have acquired suitable residence so as to entitle the landlords-plaintiffs to a decree of eviction under section 13 (1) (l) of the Bombay Rent Act. Accordingly, the Appellate Bench allowed the appeal with costs and set aside the judgment and decree of the trial court and dismissed the suit of the plaintiffs for possession vide its judgment and decree dated 8th April, 2003. Therefore, being dissatisfied with the judgment of the Appellate Bench of the Small Cause Court, the petitioners-original plaintiffs have filed this Revision Application before this Court. ( 4 ) THE learned counsel for the petitioners submitted that the decree for possession was granted by the trial court on the ground of acquisition of suitable accommodation by the defendants-tenant. It is not in dispute that the suit premises was rented to one Pratapsinh Devisinh Lodha. ( 4 ) THE learned counsel for the petitioners submitted that the decree for possession was granted by the trial court on the ground of acquisition of suitable accommodation by the defendants-tenant. It is not in dispute that the suit premises was rented to one Pratapsinh Devisinh Lodha. The suit premises is a room admeasuring 10 ft. x 10 ft. The original tenant died on 10th February, 1980 leaving behind him, his wife Smt. Vasantiben and sons, Jeetendra, Upendra, Bhupendra, Nandkishore and Baldev. The suit was contested by the tenants by filing a written statement exh. 28 stating therein that the defendants were using the suit premises continuously and at the time of filing written statement, the defendant no. 1 Vasantiben was residing in the suit premises with his son Bhupendra, his wife and children. The defendant no. 1 has five sons and out of them, three sons Upendra, Nandkishore and Baldev alongwith their families are residing in the adjoining maholla in the premises being survey no. 4046 purchased by the defendants in the year 1978. They are residing separately and the eldest son Jeetendra is also residing separately. The defendant no. 1 was residing in the said premises with her son Bhupendra. The said premises was purchased in the year 1978 within the knowledge of the plaintiffs, still however, no account was taken till the present suit was filed on 18. 7. 1994 i. e. more than 12 years. The plaintiffs landlords filed one suit being HRP suit no. 4883 of 1974 against the original tenant Pratapsinh Devisinh Lodha, husband of the defendant no. 1 Vasantiben. The suit was filed on the ground that the tenant has acquired suitable accommodation, but the premises acquired by the tenant was not habitable as the tenants had no capacity to renovate the same and hence it was not suitable. Against the said judgment and decree, the petitioners filed Civil Appeal No. 355 of 1979 before the Appellate Bench and that Appeal was also dismissed making an observation that the deceased tenant was not in a position to renovate the said acquired premises. Hence, it was not suitable as it was in a dilapidated condition. Against the said judgment and decree, the petitioners filed Civil Appeal No. 355 of 1979 before the Appellate Bench and that Appeal was also dismissed making an observation that the deceased tenant was not in a position to renovate the said acquired premises. Hence, it was not suitable as it was in a dilapidated condition. The lower appellate court has made an observation in para-44 in respect of the findings and observations of the trial court that the learned trial Judge has stated that the defendants family is in possession of (1) four rooms in the premises purchased in the name of Vasantiben (one room and one kitchen on each floor) (2) two rooms in the name of Jeetendra (3) One room premises in occupation of Upendra (4) Jeetendras residence of one room and Osari in Rakhial. In that respect, it is also observed that the said four rooms purchased in the name of Vasantiben by the tenant Pratapsinh Devisinh Lodha are in occupation of two married sons and they are occupying the same with their family members including children. So far as two rooms of Jeetendra are concerned, Jeetendra has also acquired one room plus one Osari at Rakhial and Jeetendra was also residing in that premises. He also purchased a house of two rooms which he rented to some person for commercial premises. Said Jeetendra has left the family of the tenant and is residing separately first in the rented premises, then in the premises in Rakhial where he resides at present. Therefore, according to the lower appellate court, the acquisition of the premises by Jeetendra can never be said to be an acquisition by other legal heirs of the deceased tenant. The lower appellate court has also held that even if it is assumed that two rooms which were rented to other tenants for commercial use are vacant and in possession of Jeetendra and it cannot be said that the said two rooms are acquired by the family of the deceased tenant. It has also been observed by the lower appellate court that from the evidence of both parties, it appears that Upendra is residing in a hutment constructed on municipal land. As such, it cannot be said to be an acquisition much less suitable acquisition. So far as Bhupendra, son of the tenant is concerned, he is residing with his family members in the suit premises. As such, it cannot be said to be an acquisition much less suitable acquisition. So far as Bhupendra, son of the tenant is concerned, he is residing with his family members in the suit premises. Nandkishore and Baldev are residing in the suit premises with their family members. The lower appellate court has come to the conclusion that it cannot be said that the defendants have acquired suitable residence and the landlord is not entitled to a decree for eviction under section 13 (1) (l) of the Bombay Rent Act. Accordingly, the appeal was allowed and the judgment and decree of the trial court was set aside. ( 5 ) THE learned counsel for the petitioner contended that it is a well settled proposition of law that the accommodation acquired by the tenant is to be examined and not the accommodation for each and every member of the tenant because other members of the family are sufferers with the tenant, if the tenant goes, all members of the family would also go as other family members are not the tenants of the premises. In the present case, as soon as the premises acquired by the tenant in the year 1978 was repaired and was made habitable in the year 1983, and that acquired premises has more space than the rented premises, then the provisions of section 13 (1) (l) of the Rent Act would be attracted and the landlord will be entitled to recover the possession on the ground of suitable accommodation acquired by the tenant. In support of his arguments, the learned counsel for the petitioners placed reliance on several judgments of this Court as well as the Supreme Court in the case of Hasmukhlal Raichand Shah vs. Arvindbhai Mohanlal Kapadia reported in 1988 (2) GLR, 1442 (2) Shivlal Nathuram Vaishnav vs. Smt. Sulochana and others reported in AIR 1980, Gujarat, 59 (DB) (3) Sodan Singh vs. New Delhi Municipal Committee and another reported in AIR 1989, SC, 1492 (4) Smt. Padmavati Devdatta Kamat and others vs. Shri Vijaykumar Narayan Mehandale and another reported in AIR 2002, SC, 1262 (5 ). Anand D. Jadav (dead) by L. Rs vs. Nirmala Ramchandra Kore and others reported in AIR 2000 SC, 1386 and (6) Srinivas Vaman Karve and another vs. Chandanben Jayantilal Dalal reported in 1973, GLR, 257. Anand D. Jadav (dead) by L. Rs vs. Nirmala Ramchandra Kore and others reported in AIR 2000 SC, 1386 and (6) Srinivas Vaman Karve and another vs. Chandanben Jayantilal Dalal reported in 1973, GLR, 257. ( 6 ) ON the other hand, the learned counsel for the respondents contended that Jeetendra acquired premises from his own funds and nobody of the family contributed in the acquisition of that premises and he has rented that premises of two rooms for commercial purpose. Other members of the family of the deceased tenant have no right, title or interest to live in the premises acquired by him. Upendra is living separately in a hut constructed by him on municipal land. He can be removed at any time by the Municipal Corporation. Nandkishore and Baldev are residing in the premises which was acquired by the tenant in the name of his wife Smt. Vasantiben, while respondent Bhupendra is residing in the suit premises with his family members as Vasantiben is now dead. ( 7 ) NOW, the question which arises for consideration in this case is whether the premises acquired by the tenant in the name of his wife is a suitable accommodation or not. This question has already been considered and decided in the earlier appeal no. 355 of 1979 arising out of earlier suit no. 4883 of 1974 filed by the petitioners-landlords and in those proceedings, it has been held that the accommodation acquired by the tenant was not habitable. Hence, it was not suitable. In the earlier appeal no. 35 of 1979, the judgment would not operate as res judicata. In the present case, the lower appellate court has not considered as to who should be the tenant within the meaning of section 5 (11) (c) of the Bombay Rent Act after the death of the original tenant Pratapsing Lodha or his wife Vasantiben. As respondent no. 4 Bhupendra was living with his father and mother at the time of their death and he is still continuing residing in the same premises in the same rented premises. Hence, he would be a tenant under the provisions of section 5 (11) (c) of the Act. As respondent no. 4 Bhupendra was living with his father and mother at the time of their death and he is still continuing residing in the same premises in the same rented premises. Hence, he would be a tenant under the provisions of section 5 (11) (c) of the Act. As Bhupendra has not acquired any other accommodation and living in the suit premises, the acquisition by other brothers of the members of his family cannot be considered to be a suitable accommodation of the tenant under section 13 (1) (l) of the Bombay Rent Act. ( 8 ) I have considered the rival contentions raised by the learned counsel for the parties. First of all, we have to consider whether the findings recorded in the earlier suit filed by the petitioners-plaintiffs would operate as res judicata. It is not in dispute that the premises was acquired by the original-tenant Pratapsinh Lodha. The suit was dismissed by the trial court on the ground that the premises acquired by the tenant was not habitable. The lower appellate court in its judgment in the earlier appeal has considered that due to financial incapacity of the deceased tenant, could not renovate the said acquired premises as it was in dilapidated condition and held that it was not suitable and made observations as under:" From the number of defendants family members also, we cannot say that two rooms in the said house purchased in the name of the defendants wife will be sufficient for residence of all the members of the defendants family because there are three married couples in the defendants family at present. So, even if we assume for the sake of arguments that the suit house is suitable for residence, the defendants two married sons can be at the best, be accommodated in that house and the defendants would be still required to have the suit room for his own residence. "the lower appellate court has considered suitable accommodation for all the members of the original tenants family and also considered the acquisition of accommodation by Jeetendra and Upendra. Bhupendra is required to have suitable accommodation and he has not purchased or acquired any suitable accommodation and he is residing with his family in the suit premises. "the lower appellate court has considered suitable accommodation for all the members of the original tenants family and also considered the acquisition of accommodation by Jeetendra and Upendra. Bhupendra is required to have suitable accommodation and he has not purchased or acquired any suitable accommodation and he is residing with his family in the suit premises. Therefore, he would be a tenant and the acquisition by other family members including the accommodation acquired by the original tenant was not sufficient and suitable accommodation for all the members of the original tenant. From the aforesaid quoted relevant portion of the judgment in the earlier appeal, it appears that it has been considered that two rooms in the said house purchased in the name of the defendants wife would not be sufficient for the residence of all the members of the defendants family. Even if it is assumed that the acquired premises was suitable, then the two married sons can be accommodated in that acquired premises and the defendant Bhupendra would still require suit room for his own residence. Thus, in the earlier suit proceedings, the lower appellate court has considered only one thing that the accommodation acquired by the tenant in the name of his wife was not sufficient and suitable for all the family members. In fact, in the said judgment, it has been considered that the acquired premises by the tenant in the name of his wife was not habitable due to financial incapacity of the deceased tenant to make repairs or renovate the said acquired premises for making it in a habitable condition. Subsequently, HRP Civil Suit no. 393 of 1994 has been filed when acquired the premises has been repaired and made habitable by the members of the tenants family. Hence, the finding arrived at in the earlier suit that the acquired premises was not habitable is not binding due to subsequent changes and would not operate as resjudicata in the present suit. ( 9 ) THIS Revision Application centres round the question of correct interpretation of "suitable residence" with reference to acquired premises by the tenant or by any member of his family. Now, it is to be considered whether the statute requires the accommodation for all the members of the tenants family is to be considered or the tenants accommodation can only be considered for the purpose of section 13 (1) (l) of the Act. Now, it is to be considered whether the statute requires the accommodation for all the members of the tenants family is to be considered or the tenants accommodation can only be considered for the purpose of section 13 (1) (l) of the Act. Section 13 (1) (l) of the Act provides that the landlord shall be entitled to recover the possession of any premises if the Court is satisfied that the tenant, after coming into operation of this Act has built, acquired vacant possession of or being allotted a suitable residence. " Admittedly, in the present case, the suit premises is a room admeasuring 10 ft. x 10 ft. The premises acquired by the tenant in the name of his wife has four rooms. It is stated that two rooms are being used as kitchen, one on the ground floor and other on the first floor. There are two rooms on the ground floor and two rooms on the first floor. That accommodation is undoubtedly more spacious than rented premises in the area. Section 5 (11) (c) of the Rent Act provides that the tenant means any person by whom or on whose account rent is payable for any premises and includes in relation to premises let for residence, any member of the tenants family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court. As per the definition of "tenant" provided under section 5 (11) (c) of the Act, son Bhupendra residing with his family would be the tenant. We have to consider only at this stage whether this accommodation acquired by the tenant can be treated within the meaning of section 13 (1) (l) for the purpose of entitlement of the landlord for possession of the suit premises. ( 10 ) LET us examine the ingredients and necessary requirements for applicability of section 13 (1) (l)of the Bombay Rent Act for the entitlement of the landlord to recover possession of the suit premises. ( 10 ) LET us examine the ingredients and necessary requirements for applicability of section 13 (1) (l)of the Bombay Rent Act for the entitlement of the landlord to recover possession of the suit premises. The statute provides as under:"section 13 (1) : Notwithstanding anything contained in the Act, (but subject to the provisions of section 15), a landlord shall be entitled to recover any premises if the Court is satisfied that the tenant, after coming into operation of this Act, has built, acquired vacant possession of or been allotted a suitable residence, meaning thereby (i) if the tenant has constructed a house for suitable residence, (ii) if the tenant has acquired vacant possession of house/accommodation for suitable residence or (iii) if the tenant has been alloted a suitable residence. Under clause (l), the word "suitable residence" has been used. We have to see what is the context or in what reference suitable residence will have to be considered. This Court in the case of Hasmukhlal Raichand Shah vs. Arvindbhai Mohanlal Kapadia, reported in 1988 (2) GLR, 1442 has held that where there is evidence on record that the tenant and his family members are living together, one of them has acquired suitable residential accommodation and if there is no evidence to the effect that they have not been looking upon this as one unit, or when the members of the family live together, mess together, then acquisition of a suitable residential accommodation by one of them would be considered to be acquisition of suitable residential accommodation by the tenant. On the basis of the decision of the Supreme Court in the case of Premchand vs. Shersing reported in 1981, DRJ, 287 (SC), wherein it was held that the respondent had through his wife acquired vacant possession of the residence in Delhi and in that view of the matter, it was held " tenant not entitled to retain old tenanted premises. " As per Rule laid down by the Supreme Court in the subsequent decision of Anandji D. Jadav (deceased) by Lrs. vs. Nirmala Ramchand Kore and others reported in AIR 2000, SC, 1386, the expression "acquired vacant possession" means an acquisition of vacant possession of a suitable accommodation in which one has a right to reside. It must be a legally and enforceable right. vs. Nirmala Ramchand Kore and others reported in AIR 2000, SC, 1386, the expression "acquired vacant possession" means an acquisition of vacant possession of a suitable accommodation in which one has a right to reside. It must be a legally and enforceable right. Thus, if any acquisition of premises by a tenant or by any member of his family, the tenant has no legal right to reside. The acquisition of residence by any member of tenants family will not be deemed to be the acquisition of the house by the tenant under section 13 (1) (l) of the Act. Nowhere it is stated that the acquisition of residence by any member of the tenants family should be suitable to all the members of the tenants family. Suitability of the residence will have to be considered with reference to the rented premises. If the rented premises has one room with essential amenities of latrine, bathroom, water and electricity etc. and the acquired property being habitable has more accommodation in size and space with essential amenities stated above, irrespective of the family members of the tenant, the acquired premises of the tenant will be deemed to be a suitable accommodation under section 13 (1) (l) of the Act. For instance, the tenants family consists of 10 members living in a rented premises which has one room. If the tenant purchases a house which has four rooms with essential amenities having more space than that of the tenanted premises, even if it is not a sufficient accommodation for all the family members of the tenant would be deemed to be suitable residence under the provisions of the Act. As such, suitability of the residence has to be considered in the context or with reference to the rented premises and not with reference to the number of the tenants family members. If the rented premises-one room is suitable to 10 members of the tenants family, it cannot be said that the acquired premises having more space than that of the rented premises is not suitable. ( 11 ) IN the present case, the tenant has acquired a two storeyed premises consisting of two room on the ground floor and two rooms on the first floor and it is stated that one room is used as a kitchen on each floor. ( 11 ) IN the present case, the tenant has acquired a two storeyed premises consisting of two room on the ground floor and two rooms on the first floor and it is stated that one room is used as a kitchen on each floor. But that property when it was acquired by the tenant in the name of his wife was not suitable and habitable due to paucity of funds with the tenant. In the present case, admittedly, at the time of institution of the suit, the acquired property has been made habitable by repairing in which his two sons Nandkishore and Baldev are residing with their families. As such, it cannot be said that the premises acquired by the tenant is not suitable for the tenant. Bhupendra, son of the tenant, is residing in the rented premises alongwith his family members. Moreover, the tenants other son, namely Jitendra has acquired another house consisting of two rooms and those two rooms have been rented to some tenant and is living in another premises in a Maholla near Chakudia Mahadev Temple, Rakhial, leaving aside the constructed room for residence by other son, namely Upendra on the land of Municipal Corporation. As the acquired property by the deceased tenant is a suitable suitable residence having more space than rented premises, the provisions of section 13 (1) (l) of the Rent Act will be attracted and the landlord would be entitled to recover possession of the suit premises. ( 12 ) THE lower appellate court has considered other aspects which are not relevant. The only relevant aspect is whether the provisions of section 13 (1) (l) of the Rent Act are applicable or not and on the basis of wrong interpretation and consideration of irrelevant facts for the purpose of determining acquired property was not sufficient compliance under the provisions of section 13 (1) (l) of the Act. As such, the lower appellate court has applied wrong interpretation and wrong principles in determining suitability of residence. All the family members of the tenant are accommodated in the acquired property, the provisions of section 13 (1) (l) of the Act would not be attracted. But that is a wrong view adopted by the lower appellate court. As such, the lower appellate court has applied wrong interpretation and wrong principles in determining suitability of residence. All the family members of the tenant are accommodated in the acquired property, the provisions of section 13 (1) (l) of the Act would not be attracted. But that is a wrong view adopted by the lower appellate court. Nowhere, it is required by the statutory provision of law that all the members of the tenant must be accommodated in the property acquired by the tenant or by any member of the family members of the tenant. Therefore, the lower appellate court has come to an erroneous finding by applying wrong principles of law. This finding of the lower appellate court is not sustainable in the eye of law. The trial court was fully justified in holding that the acquired property by the deceased tenant attracts the provisions of section 13 (1) (l) of the Bombay Rent Act for entitling the landlord for possession of the suit premises. ( 13 ) IN view of the above, this Civil Revision Application requires is to be allowed. Accordingly, the same is hereby allowed. The judgment and decree dated 8th April, 2003 in Civil Appeal No. 169 of 1999 passed by the Appellate Bench of Small Causes Court, Ahmedabad is hereby set aside. The judgment and decree dated 7. 9. 1994 in H. R. P. suit no. 393 of 1994 passed by the trial court is restored. Rule made absolute accordingly with no order as to costs. ( 14 ) IN the last, the learned counsel for the respondents requested to stay the operation of this judgment for a period of eight weeks in order to avail of remedy in the higher forum. In the facts and circumstances, I do not find any good reason to accede the request made by the learned counsel for the respondents. Accordingly, this request is refused. .