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Gujarat High Court
Judgename :J.B.MEHTA
DOLATRAI HARJIVAN BIBODI - Appellant
Versus
KANTILAL SUKHLAL SHAH - Respondent
Civil Revision 1328 of 1977
Decided On : 04/22/1977
Bombay Rent Act - Section 13 – Possession of block - Whether first block was given in stated defendant or in as stated by plaintiffs or whether this suit block which has been almost for all time used as residential block was first let or after some short time as contended by defendant - Defendant however had also got from time to time three other blocks in this very building - Thereafter when in defendant shifted to hospital premises Hanuman where had got four blocks out of which one occupied for his residence and three for his hospital defendant gave up possession of two ground-floor blocks to plaintiff in and even third block possession was given to the plaintiff - Thereafter defendant constructed his residential bungalow in about where admittedly there are four bed-rooms one dining-cum-living room one kitchen store room square feet built constructed area with rooms for and garage - Held, Further argued that plaintiff had neither in notice correspondence or plaint alleged this ground that suit block was only let or used for residential purposes - Plaintiff had to allege the necessary ground of It was defendant who came out with this plea of letting being not for residential purpose alone but for aforesaid hospital purpose of whole house - Defendant was clearly confusing whole issue because there were admittedly four separate tenancies and at no time one complete house was ever let to this defendant - This material fact bad made a fundamental difference in result - If correct test was understood by lower Courts of dominant substantial purpose finding is inevitable that defendant had been let and he was using the suit block mainly for residential purpose although incidentally Doctor might have kept his machine there for some time - Admittedly Doctor had kept this suit block including two ground floor blocks at the very beginning of his career round and at that time there could be no other intention that dominant use was for residential purpose where of course Doctor would both reside and carry on his medical profession work - That is why plaintiff had stated in his evidence that hospital idea came up at the-time of last block which according to him took place after some four or five defendants version - Plaintiff could not file suit because defendant had shifted to hospital premises in defendant built such a huge bungalow of feet construction with four bedrooms one dining cum living room kitchen store-room with rooms for and garage - After such spacious accommodation was available for his residence defendant could never sit tight on his original residential block by seeking to use same for his brother also on the ground that he was his staff Doctor - Ground of eviction legislative intent must operate - revision allowed
( 1 ) THE plaintiffs-landlords have come in this Revi- sion-Application as both the Courts have refused to pass the decree of eviction from the suit block after the defendant-tenant had shifted to his newly constructed bungalow on October 20 1969
( 2 ) THE short facts which have given rise to this litigation are as under. The defendant Dr. Kantilal Shah has been a tenant in the suit house of the plaintiffs. There is a dispute as to whether the first block was given in 1946 as stated by the defendant or in 1948 as stated by the plaintiffs or whether this suit block which has been almost for all the time used as residential block was first let or after some short time as conten- ded by the defendant. The defendant however had also got from time to time three other blocks in this very building. Thereafter when in 1958 the defendant shifted to the hospital premises near Dandia Hanuman where he had got four blocks out of which one he occupied for his residence and three for his hospital the defendant gave up possession of two ground-floor blocks to the plaintiff in 1958 and even the third block possession was given to the plaintiff in 1964. Thereafter the defendant constructed his residential bungalow in about 1967 where admittedly there are four bed-rooms one dining-cum-living room one kitchen store room 3000 square feet built constructed area with rooms for Chowkidar quarter and garage. The defendant Doctor has a family of five persons He shifted to these new premises on October 20 1969 but still he did not vacate this residential block of the plaintiffs. Therefore the plaintiffs gave a notice Exhibit 31 on April 5 1970 to which the defendant having given an evasive reply Ex. 28 on April 29 1970 the plaintiffs filed the present suit for eviction
( 3 ) THE defendant Doctor raised a plea both in his correspondence and in the written statement that the entire house had been taken on lease by the defendant for running his hospital Nursing Home and for the residence of his family members Doctors and staff members. He also stated in terms in his written statement in paragraph 5 that in addition to the suit block in the other three blocks which he had taken on lease from the plaintiffs the defendant was running his hospital and when in 1958 he got space for hospital near Dandia Hanuman the three blocks had been handed over to the plaintiffs. He also stated in the written statement that the present suit block was however needed for the residence of his brother Dr. D. S. Shah who was a member of his staff and so the suit block was utilised for the purpose for which it was let. In the newly constructed premises there was not sufficient space for staff quarters. Both the Courts also gave a finding that the plaintiffs had failed to prove that the suit premises were let to the defendant only for residence and not for Nursing Home and staff quarters and therefore the original letting being not only for residential purpose of the suit premises the ground under sec. 13 (1) (1) of the Bombay Rent Act was held not to be applicable. That is how the plaintiffs have come in this revision.
( 4 ) THE grievance of Mr. D. U. Shah for the plaintiffs is that the finding has been arrived at by ignoring the material facts which would have a fundamental effect on the whole conclusion and on a complete mis-conception of the underlying scheme of this present legislation. It is true that we are construing a tenancy legislation where the benevolent legislation would have to be construed in favour of the tenant by accept- ing a construction helpful to the tenant when a doubt has to be resolved. In the present context however the dispute is as regards those provisions where the landlord is given a right to eject the tenant on the specific ground enacted under sec. 13 (1) (1) that the tenant after the coming into operation of the Act has built acquired vacant possession of or been allotted a suitable residence. The tenants protection was therefore dee-
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