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Gujarat High Court
Judgename :S.H.SHETH
DAHYABHAI MOTIRAM - Appellant
Versus
NATHUBHAI BHIMBHAI NAIK - Respondent
Civil Revision 1163 of 1971
Decided On : 07/03/1974
Bombay Rent Act, 1947 – Section 13 (1) (L) – Ajmer Rent Control Act 1952 – Section 25 – Rent Control Act 1958 – Section 13 (1) (h) – Plaintiff-landlord filed against the defendant tenant the present suit for recovering possession of the suit premises on three grounds. Firstly he alleged that the defendant had been in arrears of rent Secondly he alleged that he required the suit premises reasonably and bona fide for his own occupation. Thirdly he alleged that the defendant had built a suitable residence for himself rent of the suit premises is suit premises are situate in the town of Billimora defendant denied the plaintiffs claim and contended that the statutory notice served upon him by the plaintiff was invalid. Before the learned trial Judge the plaintiff gave up his contention as to arrears of rent and proceeded with the trial of the suit on two other grounds of eviction learned trial Judge negatived the defendants contention that the statutory notice served upon him was invalid also negatived the two grounds of eviction which the plaintiff pressed before him for recovery of possession of the suit premises. Before the learned District Judge the plaintiff gave up his contention that he reasonably and bona fide required the suit premises for his personal occupation and pressed only one ground of eviction in his attempt to obtain decree for possession against the defendant. He contended that the defendant had built a suitable residence within the meaning of sec. 13 (1) (L) of the Bombay Rent Act and was therefore liable to be evicted defendant did not raise the contention before the learned District Judge that the statutory notice served upon him was invalid learned District Judge nagatived the only ground of eviction pressed by the plaintiff for his decision and dismissed the plaintiffs appeal –Held, court applying to the provisions of the Bombay Rent Act court applying to the Bombay Rent Act the doctrine of predominant intention or main purpose which the Supreme Court did not apply to cases under Delhi and Ajmer Rent Control Act 1952 and Delhi Rent Control Act 1958 What it has done is to hold that it cannot be applied to cases falling under the aforesaid two rent control legislations test of predominant intention or main purpose what do we find in the instant case ? It appears that the parties have not led any evidence on this point were not conscious of the point which has arisen before me. To say therefore that the plaintiff has failed to prove that the predominant intention or main purpose of letting the suit premises to the defendant was residential is to take the plaintiff by surprise and to be unfair to him. In my opinion therefore since both parties were not aware as to that they were required to prove they did not lead any evidence on this point. Therefore it becomes necessary in the interest of justice to set aside the decree passed by the courts below and to remand the suit for taking evidence on this new aspect which has arisen before me and to have a decision thereon is needless to say that if the courts below on taking such evidence as the parties may produce come to the conclusion that the predominant intention or main purpose of letting the suit premises to the defendant was residence provisions of sec. 13 (1) (L) of the Bombay Rent Act would be attracted. If the courts below on taking such evidence as the parties may produce find that the predominant intention or main purpose was business then it is needless to say that provisions of sec 13 (1) (L) would not apply – Application allowed.
( 1 ) THE plaintiff-landlord filed against the defendanttenant the present suit for recovering possession of the suit premises on three grounds. Firstly he alleged that the defendant had been in arrears of rent from December 1 1967 to November 30 1968 Secondly he alleged that he required the suit premises reasonably and bona fide for his own occupation. Thirdly he alleged that the defendant had built a suitable residence for himself. The rent of the suit premises is Rs. 63. 50 per month. The suit premises are situate in the town of Billimora. The defendant denied the plaintiffs claim and contended that the statutory notice served upon him by the plaintiff was invalid. Before the learned trial Judge the plaintiff gave up his contention as to arrears of rent and proceeded with the trial of the suit on two other grounds of eviction. The learned trial Judge negatived the defendants contention that the statutory notice served upon him was invalid. He also negatived the two grounds of eviction which the plaintiff pressed before him for recovery of possession of the suit premises. In that view of the matter he dismissed the plaintiffs suit.
( 2 ) THE plaintiff appealed against that decree to the District Court. Before the learned District Judge the plaintiff gave up his contention that he reasonably and bona fide required the suit premises for his personal occupation and pressed only one ground of eviction in his attempt to obtain decree for possession against the defendant. He contended that the defendant had built a suitable residence within the meaning of sec. 13 (1) (L) of the Bombay Rent Act and was therefore liable to be evicted. The defendant did not raise the contention before the learned District Judge that the statutory notice served upon him was invalid. The learned District Judge nagatived the only ground of eviction pressed by the plaintiff for his decision and dismissed the plaintiffs appeal.
( 3 ) IT is that appellate decree which is called in question by the plaintiff in this revision application. Mr. Nanavati who appears for the plaintiff has raised before me only one contention. He has argued that the learned District Judge was in error in negativing the plaintiffs contention that the defendant was liable to be evicted on the ground that he had built a suitable residence. In order to examine this contention it is necessary to take note of a few undisputed facts. Tile defendant has admitted in his evidence that the constructed a bungalow in 1969 which consists of ground floor and the first floor. On the ground floor there are 5 rooms. On the first floor there are 4 rooms. in all the defendant has got nine rooms in his newly constructed bungalow. It appears that he has let out the first floor to a tenant at the monthly rent of Rs. 150. 00.
( 4 ) SO far as the suit premises are concerned they consist of a building having two storeys. Both the floors have together five rooms which the defendant has been using for his residence as well as for running his dispensary. The first question which I am required to answer is whether the bungalow constructed by the defendant is a suitable residence for him within the meaning of sec. 13 (1) (L) of the Bombay Rent Act. I have no doubt in my mind that if the defendant has 9 rooms in his bungalow as against five which he has in the suit premises it is more suitable for him as residence. Mr. Vyas has argued before me that a residential bungalow constructed by a tenant at a place other than where the suit premises are situate cannot be taken into account for the purpose of passing decree against a tenant under sec. 13 (1) (L) of the Bombay Rent Act. Admittedly the bungalow which the defendant has constructed is situate in the area of Talodh gram panchayat. The evidence shows that topographically it is situated opposite Billimora Railway Station. There is a very short distance between Billimora Railway Station and the bungalow. According to the plaintiff the distance betw
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