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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.N. Deshmukh, J.
Anant Tulshiram Bajaj ... Petitioner.
Versus
Chagauram Ishwardas Keshwani... Respondent.
Civil Revision Application No. 184 of 1988, decided on 23-11-1993.
Advocates appeared :
A.H. Kasliwal, for the petitioner.
H.T. Joshi, for the respondent.
Appellate Court, held, empowered to remand the case to the Rent Controller for fresh decision of the lease.
Tenant constructing his house and renting out the same is liable to eviction on this ground alone.
Section 15 (2) (v)-Tenant-Eviction of on ground of securing alternative accommodation-Regarding suit premises alternative acquisition during subsistence of tenancy-Letting out or giving to tenants brother alternative acquisition- Whether Section 15(2)(v) be applicable.
Held, what is required to be considered under Clause (v) is whether the tenant had secured the alternative house. If inspite of securing the alternative house, he sleeps over and allows others to occupy, even then the provisions of Clause (v) of Sub-section (2) of Section 15 are attracted in these circumstances also. It is true that the provisions of the Rent Act are required to be construed as far as possible to protect the tenants from eviction. But that does not mean that a tenant, who, having secured as alternative house, allows the house to be occupied by others also requires to protected from eviction.
In such an event, the tenant who would become landlord in terms of his own house would continue to occupy the tenanted premises by letting out the premises belonging to him to others. The legislature has never thought l of such an eventuality and has never intended to protect such tenants, who having secured the premise for reasons best known to them refuse to occupy the premises and allow the premises to be occupied by others and sit tight over the properties belonging to the landlord by taking statutory protection offered to them under the provisions of the Rent Act. In the present case, the tenant had secured the alternative house during the term of his tenancy and has failed to occupy the same which fact gives a right to the landlord to evict him under the provisions of Clause (v) of Sub section (2) Section 15 of the Rent Act.
2. The relationship of the landlord and tenant is admitted. The eviction was sought by the landlord on several grounds. Firstly, it was contended that the tenant was always irregular in payment of rent and has fallen in arrears from 15-1-1974 to 14-2-1975. Therefore, it was contended that the tenant is a wilful defaulter. The eviction was also sought on the ground of bona fide requirement and, thirdly, it was also contended that the defendant-tenant has constructed his own house at Sindhi Colony, Jalna Road, Aurangabad, and thus has secured an alternative accommodation.
3. The Rent Controller rejected the application for eviction filed by the landlord.
4. The petitioner thereafter filed an appeal in the District Court at Aurangabad, and the appeal of the petitioner is also dismissed on 24-12-1987.
5. Shri Kasliwal, learned Counsel for the petitioner, agitated before me that the findings recorded regarding the wilful default are not correct. I am unable to appreciate as to how authorities below have committed any error in coming to a conclusion that the landlord is not entitled for eviction on the ground of wilful default. The same is the case with the ground of bona fide requirement also. I may note here that apart from the suit premises, the finding is recorded that the landlord is having several houses in Aurangabad. The consideration of bona fide requirement in favour of the landlord is, therefore, out of question.
6. However, on the question of securing alternative house, though both the authorities below have recorded a finding in favour of the tenant, I find that they have acted illegally in this regard.
7. In paragraph 6 of the plaint, it was categorically stated that the defendant, i.e., tenant, has also constructed his own house at Sindhi Colony, Jalna Road, Aurangabad, and has secured alternative accommodation there. The tenant has filed the written statement. While dealing with the contents of paragraph 6 of the plaint, what is stated in the written statement is, "that the contents of para 6 of the plaint are denied. The house of Sindhi Colony belongs to and constructed by the brother of the defendant. Moreover, the defendant is old man; he is having his cloth shop at Machali Khadak, Aurangabad, just near to the locality of residential place, i.e., Rangar Galli. The house at Sindhi colony is not suitable and convenient to the defendant. As the house of Sindhi Colony is situated just out of the city and far off from the shop of the defendant and the defendant will have to experience difficulty daily in coming and going back from his shop. Moreover, the brother of the defendant is residing there and there is no vacant accommodation also. So it cannot be said that the defendant has secured suitable accommodation."
8. Apart from the pleadings, the parties have led evidence on this aspect. Before considering the evidence on record, it is worthwhile to consider the provisions of the statute. Section 15 of the Hyderabad Rent Act provides for eviction of tenants. As per sub-section (1) of section 15, a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this section. Sub-section (2) provides :
"A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller, after giving the renant a reasonable opportunity of showing cause against the application, is satisfied-
...
(v) that the tenant has secured alternative house or ceased to occupy the house for a continuous period of four months without reasonable cause, .....the controller shall make an order directing the tenant to put the landlord is possession of the house, and if the controller
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