Back
IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Pramila Madhav Damle others..... Petitioners.
Versus
Shri Waman R. Koparde ..... Respondent.
Writ Petition No. 5768 of 1995, decided on 17-2-1999.
Advocates appeared :
Prasad S. Dani, for the petitioners.
Smt. Shakuntala Joshi, for the respondent.
Section 13(1)(i)-Eviction Contention that tenants acquired alternate accommodation-Scope of alternate accommodation-Held, alternate accommodation must be acquired by tenant himself or he be able to reside therein as a matter of right. It has come out in evidence that the alternate accommodation has been acquired by the wife out of her fund. The tenant has no right or domain over the premises. The tenant can only stay there so long as his wife permits him. In view of the Supreme Court decision in order to bring the case under the mischief of Section 13(1)(i) of the Bombay Rent Act the tenant should acquire or must be able to reside in the alternate accommodation as a matter of right then only Section 13(1)(i) of the Bombay Rent Act will be attracted.
Section 13(1)(i)-Acquisition of alternate accommodation by tenant -Unless tenant is able to reside in alternate accommodation as of right Section 13(1)(i) is not attracted.-In suit for eviction filed by the respondent landlord it came out in evidence that the alternate accommodation had been acquired by the wife of the petitioner tenant out of her funds. The tenant had no right or domain over that premises. The tenant could only stay there so long as his wife permitted him. In order to bring the case under the mischief of Section 13(1)(i) of the Bombay Rent Act, the tenant should acquire or must be able to reside in the alternate accommodation as a matter of right; then only Section 13(1)(i) of the Bombay Rent Act will be attracted. 1987 (4) SCC 183. Rel.
Section 13(1)(i)-Eviction suit-On ground of acquiring alternate accommodation by tenant among other ground of bona fide need-Alternate accommodation acquired by wife of tenant out of her own fund Not shown that tenant can live with her in that accommodation as of right-Hence suit decreed-Held, decree of suit upheld.-It has come out in evidence that the alternative accommodation has been acquired by the wife out of her fund. The tenant has no right or domain over that premises. The tenant can only stay there so long as his wife permits him in view of the Supreme Court decision in order to bring the case under the mischief of Section 13(1)(i) of the Bombay Rent Act the tenant should acquire or must be able to reside in the alternate accommodation as a matter of right, then only Section 13(1)(i) of the Bombay Rent Act will be attracted. In view of this discussion, Court does not think the Lower Appellate Court was justified in setting aside the order of the Lower Court dismissing the suit of the respondent.
2. It is disclosed from the record that the tenanted premises consisting of three rooms was originally belonged to the petitioner. In the year 1949, the petitioner sold the entire premises to the respondents and he had retained one room in his possession as tenant of the respondent. Therefore, from the year 1949, the petitioner was staying with his family in one room which was retained by him as a tenant; Both the courts found that there is an acquisition of accommodation by the wife of the petitioner in the year 1968. It has also come out in the evidence that acquisition was made by the wife of the petitioner out of her own funds. It has also come out that all other family members except the petitioner, shifted to the new accommodation acquired by the wife. The Lower appellate Court has found that the acquisition by the wife of the alternative accommodation will give cause of action to the respondent to seek eviction of the petitioner on the ground of section 13(1)(l) of the Bombay Rent Act, namely the acquisition of alternative accommodation. Section 13(1)(l) of the Bombay Rent Act, reads as follows :
"That the tenant after the coming into operation of this Act has built, acquired, vacant possession of or been allotted a suitable residence."
3. Relying on the decision of the Supreme Court in (B.R. Mehta v. Atma Devi and others)1, reported in 1987(4) Supreme Court Cases 183. The Lower appellate Court found that the petitioner has acquired alternative accommodation as envisaged under section 13(1)(l) of the Bombay Rent Act. On following the said decision and also on examination of the case records, it can be found that the lower appellate Court has misapplied the decision. In fact the Supreme Court in the aforesaid judgement in para 4 has held thus :
"Looked at from that point of view unless there is acquisition of a premises or a flat or allotment of a premises or apart of a premises by the tenant in which he has domain which he can reasonably and alternatively use as a substitute for the place he is using in the tenancy it cannot lead to a forfeiture of his right to occupy his tenanted premises. The case would be otherwise, however, if a tenant comes into possession of a premises or is allotted a piece of residence or acquires vacant possession of the premises then such a tenant cannot prevent, if other conditions are fulfilled under section 14(1)(h) of the Act being liable to forfeiture of his tenancy."
It is to be noted that the Supreme Court has decided the case under the provisions of section 14(1)(h) of the Delhi Rent Act, which is almost in para materia of the Bombay Rents, Hotel Lodging House, Rents Control Act, 1947. In the said paragraph, the Supreme Court has further observed as under :
"Mr. Avadh Bihrari Rohtagi learned Counsel strenuously contended before us that (sic) this proposition that acquisition of a flat by the wife was acquisition by the tenant and such acquisition in all circumstances would be within the mischief of section 14(1)(h) of the Act and would disentitle the tenant to retain his f
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
