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1972 Supreme(Guj) 97

Gujarat High Court
Judgename :D.P.DESAI
SRINIVAS VAMAN KARVE - Appellant
Versus
CHANDANBEN JAYANTILAL DALAL - Respondent
Civil Revision 515 of 1968
Decided On : 09/29/1972

Advocates Appeared: M.B.SHAH, S.B.VAKIL

Headnote:

Transfer of Property Act - Section 12 - Property case - Possession - According to the submission of the learned advocate for the petitioners if the latter words were used then mere act of acquiring vacant possession of a suitable premises would entitle the landlord to a decree for ejectment irrespective of the question of intention with which vacant possession was acquired by the tenant - Held, In this view of the matter the contention based on intention of the tenant in acquiring vacant possession is not a relevant consideration for the purpose of clause (1 ) - As observed earlier it is the act of acquiring vacant possession of a suitable residence which forfeits the protection given to the tenant under sec. 12 of the Act and entitles the landlord to obtain possession of the rented premises from such a tenant - In growing cities and towns most of which are now covered by the Act more and more persons would be in need of residential premises - Legislature by lifting the embargo on the landlords right to recover possession under sec. 12 on grounds other than the need of the premises by the landlord himself for his occupations has tried to provide for these helpless persons who come to growing cities and towns - Ordered accordingly

D. P. DESAI, J.

( 1 ) THE next contention relates to the interpretation of clause (1 ). It was urged relying upon the word residence in clause (1) that the landlord in order to succeed in a suit falling under clause (1) should establish that the vacant possession of another house was acquired by the tenant with the intention of having his permanent abode in that house. If this intention was not there. clause (1) would not be applicable. It was pointed out that the words residence is used in clause (1) and not the words residential premises. According to the submission of the learned advocate for the petitioners if the latter words were used then mere act of acquiring vacant possession of a suitable premises would entitle the landlord to a decree for ejectment irrespective of the question of intention with which vacant possession was acquired by the tenant. It was pointed out by way of an illustration that a tenant may be doing business of purchasing and selling residential premises-vacant or otherwise In such a case he has no intention to go and reside in the vacant premises purchased by him. His intention in the act of purchase and in the act of acquiring vacant possession of the premises is to sell the same and earn profit. It is urged to such a case the provisions of clause (1) would not be made applicable because to do so would virtually prevent a tenant from carrying on that business. On the question of intention it was pointed out on behalf of the petitioners that there is no finding by the court below to the effect that the intention of defendant No 1 in purchasing the two galas was to go and reside there with his family and to make the same his place of permanent abode. The next contention on the construction of clause (I) was that the relevant date with regard to the operation of clause (1) must be the date of filing of the suit and the passing of the decree. In this connection the words has. . . . . acquired vacant possessions of. ; occurring in clause (1) were relied upon. According to the learned advocate for the petitioners the present perfect tense of the verb acquire would show that the act of acquisition of vacant possession must continue upto the date of the filing of the suit in any case. These are the only contentions as regards interpretation of clause (I) and we will first deal with the contention as regards the intention of the tenant in purchasing and acquiring vacant possession of the suit premises. Sec. 13 (1) (1) for this purpose may be reproduced:-13 Nothwithstanding anything contained in this Act but subject to the provisions of sec. 15 a landlord shall be entitled to recover possession of any premises if the court is satisfied:- (1) that the tenant after the coming into operation of this Act has got built or acquired vacant possession of or been allotted a suitable residence.

( 2 ) NOW the scheme of the Act and in particular the scheme underlying the provisions of secs. 12 and 13 of the Act has been made clear on more than one occassion by the decisions of the Supreme Court as well as this court. Under the general law of landlord and tenant a landlord on validly terminating the tenancy of a tenant or on termination thereof in accordance with other modes described in the Transfer of Property Act becomes immediately entitled to possession of the rented premises. Sec. 12 of the Act places an embargo upon this right of the landlord. It confers protection on the tenant from being evicted from rented premises notwithstanding the fact that the contractual tenancy between him and the landlord has been terminated. But the Legislature in enacting the provisions relating to protection conferred on the tenants under the Act also wanted to balance the interest of the landlords so thai they may not virtually be deprived of the enjoyment of their property Therefore sec. 13 was enacted and the opening portion of sub-sec. (1) of that section which has been reproduced above itself shows that once to the court is sati



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