Redheshyam G. Garg vs Safiyabai Ibrahim Lightwalla

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1987 Supreme(Bom) 24

IN THE HIGH COURT OF BOMBAY
A.C. Agarwal, J.
Redheshyam G. Garg .... Petitioner.
Versus
Safiyabai Ibrahim Lightwalla .... Respondent.
Writ Petition No. 1061 of 1984, decided on 19-1-1987.
Advocates appeared :
R.B. Raghuwanshi, for petitioner.
M.A. Rane with Ismail Wadharia, for respondent.

Headnote:Section 12 (3) (a)-No snit to be instituted by landlord for recovery of possession until expiry of one month from the date of service of notice of demand of rent upon the tenant-Cause of action accrued in favour of plaintiff only when rent demanded was not paid within one month. Held that claim of plaintiff for possession for default in payment of rent set up by amendment of the plaint could not give a valid ground for eviction.
       Sub-section (2) of Section 12 of the Bombay Rent Act provides that no suit for recovery of possession shall be instituted by landlord on the ground of non- payment of rent until expiration of one month next after a notice in writing of the demand of rent has been served upon the tenant. In my judgment, the condition precedent for filing a suit for possession on the ground of non-payment of rent is issuance of aforesaid notice under Section 12 (2) of the Rent Act and it is only when the tenant fails to pay the rent demanded in the said notice within one month after service of the said notice that a cause of action can be said to have accrued in favour of the plaintiff to file a suit for possession on the ground of non-payment of rent. In this view of the matter it is held that the claim of the plaintiff for possession on the ground of default in payment of rent set up by amendment of the plaint cannot give a valid ground for eviction under Section 12 (3) (a) or 12 (3) (b) of the Bombay Rent Act.
       Section 13 (1) (i)-Constitution of India, Article 226 -The defendant was not residing in the suit premises from 1965 to 1982 hut was residing in his service quarter-The lower Courts on appreciation of evidence of plaintiff duly corroborated by other factual circumstances concluded that plaintiff had succeeded in establishing that suit premises had been unlawfully sublet and said finding not liable to be interfered with in the petition under Article 226-Held that in view of the matter decree for possession on ground of subletting and non-user was liable to be confirmed.
       Though out the period from 1965 to 1982 the defendant was not residing in the suit premises but was residing in his service quarters. The lower Courts had, on appreciation of evidence of the plaintiff and corroborated by the presence of Bansali when he had objected to the plumbing work being carried out in the suit building, as also by the endorsement by the same third party on the attornment notice i.e. accepting the said attornment letter on behalf of the defendant, came to the conclusion that the plaintiff had succeed. ed in establishing that the suit premises had been unlawfully sublet and the said finding is not liable to be interfered with in this petition under Article 226 of the Constitution of India. In this view of the matter, the decree for possession on the ground of subletting and non-user is liable to be confirmed.
       Section 13 (1) (k)-For claim under the section it would he enough if landlord proved that premises were not used by the tenant for the purpose they were let for six months. It was observed that though premises were shown to have been in use by a third person, the same could not detract from the concept of "non-user -Held that ground was still open to the plaintiff for claiming possession.
       For a claim under Section 13 (1) (k) it is not necessary for a landlord to establish that the premises are left to a total non-user. It is enough if he proves that his tenant has not used the premises for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit and the same was without reasonable cause. Though the premises are shown to be in use say by a third person or for a purpose other than the one for which they were let, the same cannot detract from the concept of non-user contemplated under Section 13 (1) (k). In this view of the matter, though the premises had been occupied by a third party, the ground of non-user is still open to the plaintiff for claiming possession.
       Article 226-Finding of facts arrived at on appreciation of evidence Cannot be interfered with.
       Both the Courts below on appreciation of evidence of the parties came to the conclusion that defendant was not using the suit premises without reasonable cause for a continuous period of six months prior to the filing of the suit. The said finding is a finding of fact which is not susceptible of being interfered with in a petition under Article 227 of the Constitution of India, therefore, the decree for possession passed on the ground of non-user is justified.

JUDGMENT - A.C. AGARWAL, J.:---This petition has been filed by the original defendant tenant seeking to challenge the judgments and decrees of both the lower courts decreeing the suit of the respondent-plaintiff for possession under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Bombay Rent Act").

2. The premises which are subject matter of the dispute in the present petition consists of one room in Ever Ready Cottage situate at Virar Taluka, Vasai, District Thane. The said premise were let to the defendant in the year 1958 at a monthly rent of Rs. 25/-. The said premises originally belonged to one Asmabai who on 1st August, 1975 executed a registered sale deed in favour of her three daughters, who were plaintiffs in the suit for possession. The present suit came to be filed on 2nd October, 1975 by the plaintiffs, the daughters of said Asmabai, after they had given to the defendant their notice of allotment dated 21st August, 1975 wherein they had informed the defendant that the premises had been transferred by Asmabai in their favour by a registered d document. The said notice alleged that the defendant had acquired alternate suitable residence in as much as he had been allotted railway quarters at Andheri and he had shifted as far back as in January 1965. It was also alleged that the defendant had unlawfully sub-let the suit premises.

3. The defendant vide his reply dated 13th September, 1975 denied the title of the plaintiffs ad contended that no intimation regarding the alleged transfer had been given to him by Asmabai. Though he admitted having been allotted railway quarters he contended that the accommodation was of temporary nature Moreover he visit the suit premises on Sunday end holidays. The allegation of sub-letting was also denied.

4. In the suit the plaintiffs alleged that the defendant was guilty of non user and sub-letting. The plaintiffs also contended that the defendant had acquired alternate suitable residence and that the plaintiffs required the suit premises reasonably and bona fide for their personal use and occupation for their residence. Hence decree was claimed under sections 13(1)(a), (e), (I) and (g) of the Bombay Rent Act.

5. The defendant resisted the said suit denying all the grounds set up for claiming possession. During the pendency of the said suit the plaintiffs amended the plaint on 1st January, 1977 whereby they set up a partition between themselves whereunder the suit property came to be allotted to plaintiff No. 2. Plaintiff Nos. 1 and 3 were consequently deleted from the proceedings.

6. The sole plaintiff, being plaintiff No. 2, vide her notice dated 14th April, 1977 claimed arrears of rent from the defendant with effect from 1st August, 1975. The defendant vide his reply dated 29th April, 1977 contended that he was the tenant of Asmabai and he had paid rent to her by cheques for the period upto February 1977 and the rent for the period commencing form March 1977 had been deposited in Court.

7. On 26th October, 1977 the plaintiff amended her plaint and incorporated the ground of default under section 12(3)(a) of the Bombay Rent Act for claiming possession as despite aforesaid notice dated 14th April, 1977 claiming arrears of rent for more than six months, no payment had been made by the defendant to the plaintiff.

8. The learned Judge of the trial Court, after considering evidence, both oral and documentary, by his judgment and order dated 31st November, 1981 was pleased to hold that the plaintiff had failed to establish the ground of sub-letting as also the ground of bona fide requirement. However, the plaintiff had proved the grounds of default, acquisition of alternate suitable residence and non-user. Pursuant to the aforesaid findings the suit of the plaintiff for possession was decreed.

9. Feeling aggrieved by the aforesaid judgment and decree the defendant preferred an appeal . The learned Judge of the Lower Appellate Cou

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday

1987 Supreme(Bom) 24

IN THE HIGH COURT OF BOMBAYA.C. Agarwal, J.Redheshyam G. Garg .... Petitioner.VersusSafiyabai Ibrahim Lightwalla .... Respondent.Writ Petition No. 1061 of 1984, decided on 19-1-1987.Advocates appeared :R.B. Raghuwanshi, for petitioner.M.A. Rane with Ismail Wadharia, for respondent.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
A.C. Agarwal, J.
Redheshyam G. Garg .... Petitioner.
Versus
Safiyabai Ibrahim Lightwalla .... Respondent.
Writ Petition No. 1061 of 1984, decided on 19-1-1987.
Advocates appeared :
R.B. Raghuwanshi, for petitioner.
M.A. Rane with Ismail Wadharia, for respondent.