Important point
Mere fact that a relative has chosen to reside with the tenant for sake of convenience will not make him a member of family of tenant in context of rent control legislation.

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947—Section 13(1)(e)—Eviction order against respondents on ground of respondent No. 1 to have sublet suit premises, a residential quarter to respondent No. 2—Concurrent findings by two Courts below was set aside by High Court in writ petition holding that appellant-landlord failed to discharge initial burden that tenant-respondent No. 1 was not residing in demised premises or had permanently surrendered possession to respondent No. 2 and that she had no intention of reoccupying suit premises—Appeal—Suit premises was let out to respondent No. 1 in 1975—Respondent No. 2, son of brother of husband of respondent No. 1 came to reside in suit premises in 1980—Respondent No. 1 acquired alternative accommodation at different place as her husband had shifted business from place of suit premises—Respondent No. 2 had his independent business in suit premises place—Whether respondent No. 2 could be said to be the family member of respondent No. 1? No—Mere fact that a relative chose to reside with tenant for sake of convenience, will not make him a member of family of tenant in context of rent control legislation—Courts below were justified in holding that premises in question was sublet and eviction order was liable to be restored.
Held : The question still arises as to whether respondent No. 2 can be considered to be a member of the family of respondent No. 1. It is not in dispute that respondent No. 2 is the cousin of the husband of respondent No. 1. It also cannot be disputed that he came to reside with tenant-respondent No. 1 and her husband in the year 1980, and was not residing with them since the commencement of the tenancy some time in the year 1973 or 1975, (the precise year when the tenancy commenced is not clear from the record). It is also admitted by respondent No. 2 that he had his own separate and independent business and that he was not looking after the business of the husband of respondent No.1. The husband of respondent No. 1 has a trading business in coal, whereas respondent No. 2 claims to have a transport business and he owned a truck which he was plying for gain. It was sought to be argued before us that since the father of the husband of the tenant-respondent No. 1 and the father of respondent No. 2 are real brothers, there is blood relationship between the two and therefore it must be held that respondent No. 2 is a member of the family of respondent No. 1. This submission overlooks the fact that the tenant in question is not the husband of respondent No. 1 but the respondent No. 1 herself. It cannot be said that respondent No. 1 and respondent No. 2 are blood relations. That apart, the question still remains as to whether in the facts and circumstances of the case it can be held that respondent No. 2 is a member of the family of respondent No. 1. It is futile to attempt to lay down a strait jacket formula as to who can be considered to be the member of the family of the tenant, particularly in the absence of definition of ‘family’ in the Act. Having regard to relevant considerations, the question must be decided on the facts and circumstances of each case. (Paras 11 and 12)
The question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant’s family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. The mere fact that a relative has chosen to reside with the tenant for the sake of convenience, will not make him a member of the family of the tenant in the context of rent control legislation. We are, therefore, satisfied that the courts below were justified in holding, on the basis of the evidence on record, that the premises in question was let out to respondent No. 1 which was occupied by her and her husband. She acquired another premises at Borivili where she shifted in the year 1981. Before that, in the year 1980 itself, respondent No. 2 had come to reside with them and he continued to occupy the demised premises even after respondent No. 1 and her husband shifted to another accommodation at Borivili. Respondent No. 2 cannot be said to be a member of the family of respondent No. 1, in the facts and circumstances of the case, and in the context of rent control legislation, with which we are concerned in the instant case. (Paras 14 and 15)

Judgment

B.P. Singh, J.—This appeal by special leave impugns the judgment and order dated 29th August, 2001, of the High Court of Judicature at Bombay passed in writ petition No. 306 of 1990. The aforesaid writ petition under Article 227 of the Constitution of India was filed at the instance of the tenant-respondent No. 1 herein against the order dated September 14, 1989, of the 3rd Additional District Judge, Thane, in Civil Appeal No. 186/1987, affirming the judgment and order of the Joint Civil Judge, Kalyan dated 10th March, 1987 in RCS No. 137/1982. The trial Court and the First Appellate Court recording concurrent findings of fact allowed the eviction petition filed by the landlord-appellant, holding that the landlord had made out a case for eviction of the tenant under Sections 13(1)(e) & 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (for short ‘the Act’). The respondent No. 1 before us is the tenant while the respondent No. 2 is the person to whom the premises is alleged to have been sublet. The High Court in exercise of its jurisdiction under Article 227 of the Constitution set aside the concurrent findings of fact, and dismissed the suit for eviction filed by the appellant-landlord.

2. Before adverting to the issues that arise for our consideration in this appeal, we may briefly notice the factual background in which the controversy arose. Shorn of unnecessary details, it may be noticed that the premises in question, located at Kalyan, is an apartment measuring about 375 sq. feet. The case of the appellant is that the said premises was let out to respondent No. 1 herein sometime in the year 1975 and she was residing in the premises along with her husband. The agreed rent was Rs. 92 per month. According to the landlord, the tenant-respondent No. 1 shifted to another premises in Borivili in the year 1981. However, respondent No. 2 continued in the premises as a sub-tenant. According to the appellant, this amounted to sub-letting of the premises to respondent No. 2 Some other grounds were also raised in the eviction petition, such as default in payment of rent etc. but we are not concerned with those grounds since the findings on those grounds is in favour of the tenant-respondent No. 1.

3. The plea of the tenant-respondent No. 1 was that she was residing in the premises since 1975 and respondent No. 2, who happened to be the son of the brother of the father of her husband, came to reside with them in the same premises since he was a member of their family. In the written statement it was denied that the tenant-respondent No. 1 along with her husband had shifted to another premises at Borivili. It was also denied that the premises had been sublet to respondent No. 2. It was stated in the written statement that her husband was carrying on business at Kalyan and therefore needed the suit premises. It was also denied that tenant-respondent No. 1 had ever received any notice from the landlord.

4. Respondent No. 2 adopted the written statement filed by respondent No. 1. The landlord examined three witnesses while the tenant examined two witnesses in support of their respective claims.

5. On an appreciation of the evidence on record, the trial Court came to the conclusion that notice sent to respondent No. 1 on Kalyan address could not be served, but the notice sent to her, including the registered notice, on the Borivili address, was served and the acknowledgment due card contained the signature of respondent No. 1, which was exhibited as Ext. 30 in the suit. No doubt the husband of tenant-respondent No. 1, who was examined as a witness, denied her signature appearing on the acknowledgment due card but the tenant-respondent No. 1 herself did not enter the witness box to deny her signature, nor was any one examined from the postal department to depose on the subject. The trial Court was of the view that mere denial by the husband was not sufficient in the facts and circumstances of the case. However

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2005 Supreme(SC) 1544

Important pointMere fact that a relative has chosen to reside with the tenant for sake of convenience will not make him a member of family of tenant in context of rent control legislation.

Important point
Mere fact that a relative has chosen to reside with the tenant for sake of convenience will not make him a member of family of tenant in context of rent control legislation.