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Gujarat High Court
Judgename :B.S.KAPADIA
CHAMPAKLAL CHHOTALAL - Appellant
Versus
PARVATIBEN KUBERBHAI - Respondent
C.R.A.757 of 1980
Decided On : 10/08/1993
This Court is hearing the revision application under Section 29(2) of the Bombay Rent Act and therefore the court has a very limited power under Section 29(2) to correct the error if the judgment is not according to law. Therefore, the Court has no power to act as a First Appeal for reappreciating the evidence once when the evidence was appreciated by the court below properly and keeping in mind the provisions of law.
[Para 11]
Bombay Rent Act - Sec. 13(1) (L) - Eviction on ground that tenant acquired or been allotted a suitable residence - Cause of action - Must exist not only by or before the notice to quit but must also exist on the time when suit is filed - However it is not warranted of under the clause, that tenant must continue to be in possession of residence at the time of decree as well.
In view of the present perfect tense in which legislature has expressed this clause, we must hold that the completed event which is a ground on which ejectment action is based must have some relation to the present time. We are therefore of the opinion that the cause of action provided in Sec. 13 (1) (L) of the Bombay Rent Act must exist not only by or before the notice to quit but it must also exist at the time when the suit is filed. The contention urged on behalf of the petitioner-tenant that in order to get a decree of eviction under this clause, the tenant also must continue to be in possession of the residence at the time of the decree is not warranted and we must reject it. There is no substance in the contention raised by defendant no. 2 that during the pendency of the suit he has returned the railway quarter allotted to him and therefore no decree can be passed against him as on the date of the passing of the decree he was not in possession of the quarter allotted to him.
[Para 16-17]
Here in the present case, as stated above, the cause of action of the present case is the acquisition of the suitable residence by defendant no.2 and that should exist on the date when the suit is filed. The moment that is done subsequent event of either surrendering the possession or any other event would not take away the right of the landlord to get possession on that ground.
[Para 31]
Bombay Rent Act - Sec. 13 (1)(L) - Acquisition of vacant possession of a suitable residence - Meaning of - It is to be seen wthether accommodation alloted was suitable for residence of tentant along with his family - Test was of settling down - When an employee is provided residence by employer, it is with a view to settle him down there for employment - In the case when quarter was allotted to defendant No.2 at Udhna it was for settling his down there.
The expression of the word residence used in Section 13(1)(L) means residence with the object of settling down. When the quarter is allotted to the railway employee by the railway he acquires a right to possess. His possession cannot be taken away without following the procedure as contemplated under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Therefore the defendant no. 2 has a right to occupy the said quarter. Not only that, he did occupy and used the same for a period of four years. It is the case of defendant no. 2 that he used it only whenever he returned from duty during midnight. Assuming that to be correct, what is to be seen is whether the quarter which has allotted to defendant no. 2 was suitable for his residence alongwith his family or not. If that is so, he has acquired the possession of the suitable residence. The test woud be that whether it has been done with the object of settling down. When a person is serving he has to settle down there and therefore when the residence is provided by the master or the emplyer it is with a view to see that the emplyee settles down there for his employment. When the quarter was given to defendant no. 2 at Udhna it was for the purpose his settling down at Udhna.
[Para 20]
( 1 ) THE present revision application is filed by the defendants against the opponent-plaintiff. The plaintiff had filed the suit against the tenants being Civil Suit No. 80 of 1973 in the Court of the learned Civil Judge (S. D.) at Surat which was, on the formation of the small Cause Court, numbered as Small Cause Case No. 1309 of 1975. The suit was filed against the tenants under the Bombay Rent Act under Sec. 13 (1) (A) and (L ). The plaintiffs suit for the possession of the suit premises was dismissed but a decree was passed in favour of the plaintiff for recovery of an amount of Rs. 33. 00 from the defendant No. Against the said decree the plaintiff filed the appeal being Regular civil Appeal No. 303 of 1977 and the said appeal has been decided by the learned Extra Assistant Judge, Surat, on 5/04/1980 by allowing the appeal. The judgment and the decree of the trial Court dismissing the suit was set aside and the suit of the plaintiff-appellant for possession was allowed and the defendants-respondents were ordered to vacate and hand over the possession of the suit premises on or before 30/06/1980 failing which the appellant-plaintiff to recover the same by the aid of the Court.
( 2 ) THE facts in the present case can be briefly stated as under.
( 3 ) THE plaintiff is the owner of the property bearing Nondh No. 3933 of Ward No. 7 situated at Malar Sheri, Surat. The said property consists of ground floor, first floor and the loft. Before the property was rented in the name of the defendant No. 1 the property was occupied by the elder brother-Pujalal as a tenant. Thereafter the present defendants Nos. 1 and 2 and one another brother-Jayantilal and their mother had also come to reside with said Pujalal when he had got the suit property on rent.
( 4 ) THE said Pujalal who was serving in the railways was transferred from Surat to Valsad in the year 1955. So he left the suit premises with his unit and was residing at Bardoli and thereafter he was transferred to several places and ultimately he settled down at Bardoli with his unit from 1965.
( 5 ) AFTER the said Pujalal left the suit premises in the year 1955 or thereabout, defendants Nos. 1 and 2, their brother-Jayantilal and their mother continued to stay in the suit premises. Defendant No. 1 has executed two rent notes at Exh. 82 and Exh. 83. The defendant No. 1 alongwith the abovementioned members of the family was residing in the suit property. However, he was transferred from Surat and at present he is serving at Bardoli. On the date when the suit is filed he was serving at Bulsar and he has also been allotted residential quarter by the railway authorities, and he has been residing with his unit at that place.
( 6 ) JAYANTILAL who is another brother of defendant No. 1 is also serving in the railway and he is residing at Bilimora with his unit. Defendant No. 2 alongwith his unit and the old mother is residing in the suit premises continuously since he came to reside in the suit premises. The aforesaid facts are already proved from the record and the same are not disputed.
( 7 ) IT is alleged that defendant No. 1 has acquired suitable accommodation at Bulsar and he is not using the suit premises for a continuous period of six months and that the defendant No. 1 has sublet or transferred for consideration the suit premises to defendant No. 2. It was also alleged that defendant No. 2 has also been allotted a railway quarter No. T-84 at Udhna. It was also alleged that defendant No. 2 is in arrears of rent for the period from 30/11/1972. The plaintiff, therefore, terminated the tenancy by his notice dated 11-12-1972 and demanded arrears of rent and possession of the suit premises. The defendants did not comply with the said notice and hence the aforesaid suit which was subsequently transferred to Small Cause Court at Surat and renumbered as stated above was filed.
( 8 ) THE aforesaid suit was resisted by defendants Nos. 1 and 2. It is admitted that the defendant No. 1
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