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1997 Supreme(Guj) 131
Gujarat High Court
Judgename :M.S.Parikh
BAI HARIBEN AMBASHANKER - Appellant
Versus
SHANTILAL JADAVJI SHAH - Respondent
Civil Revision 555 of 1978
Decided On : 03/05/1997
Headnote:(a) Bombay Rents Hotel & Lodging House Rates (Control) Act, 1947 - Sec. 13(1)(a) - Eviction - Change of user - Defence of waiver & acquiescence under Sec. 63 of Contract Act, 1872 cannot be sustained in absence of voluntary conscious, deliberate or positive act of landlord - Mere long use other than the one for which premises were let, would not amount to waiver or acquiescence on part of landlord.
In the instant case, there is no such evidence showing that there was any voluntary, conscious deliberate or positive act on the part of the plaintiffs to dispense with the requirement with regard to the user of the premises as contained in the rent note. There is no over act established on the part of the plaintiffs which may in law amount to waiver as contemplated under Sec. 63 of the Contract Act.
[Para 16]
(b) Bombay Rents Hotel & Lodging House Rates (Control) Act, 1947 - Secs. 25 & 29(2) - Revision - Scope of - Plea regarding breach of Sec. 25 of the Act raised for the first time in revision - Issue involves contraversial questions of fact - Held, cannot be allowed to be raised for the first time in revision.
The point which has been raised before this Court was never raised in this form before any of the lower Courts. No such contention was taken in the written statement and no such plea in terms of Sec. 25 of the Rent Act could be found in the written statement. No issue was, therefore, raised in these terms, no evidence led and no point urged before the Lower Courts. Learned Counsel for respodent therefore, could not be permitted to raise this point which could involve controversial questions of fact with regard to initial letting out and use of the premises. As there was no pleading and no issue, the parties attention could obviously not have been focussed on such an issue and no evidence, barring such an issue would be expected to be led by the plaintiffs. In this state of affairs, this Court in a revision application, would not enter into such a controversial question of fact, particularly when there was no pleading and no issue raised with regard thereto.
[Para 14]
(c) Transfer of Property Act, 1882 - Sec. 108(o) - Bombay Rents, Hotel & Lodging House Rates (Control) Act, 1947 - Sec. 13(1)(a) - Eviction - Ground of change of user - Premises specifically let for business purpose - Tenant using for composite purpose of residence & business - Breach of terms of tenancy by using also for the purpose other than the one for which the premises were let - Court passed the decree of eviction.
On a reference to the rent note Exh. 35 it can be seen that the same contains all the stipulations and obligations to be performed by the tenant, who executed the same unilaterally in clear terms reciting that he was tenant of the premises on conditions mentioned in the operative part of the document. Along with that condition No. 4 contains a positive obligation on the part of the tenant to observe and perform the condition with regard to the purpose for which the said premises were to be used. It is true that there is no negative convenant to the effect that the premises are not be used for residential purpose or any other purpose. However, reading the document as a whole, it is manifest that the tenant has entered into a condition with the landlord that he has taken on rent the premises for the purpose set out in the clause, viz. business purpose and this clause having been made as one of the conditions of the tenancy, it would necessarily follow that the suit premises are not to be used for a purpose other than the purpose of business. Besides, the condition as aforesaid is touching the very right of enjoyment of the premises and hence it would amount to a condition of tenancy apart from the fact that it has been specifically referred to as a condition of tenancy and not as a mere personal obligation.
[Para 18]
Both the decisions in Patel Chandulal Trikamlal & Ors. vs. Rabari Prabhat Harji & Anr., AIR 1996 SC 532;; Dashrath Baburao Sangale & Ors. vs. Kashinath Bhaskar Data reported in 1994 Bom. RC 270 = AIR 1993 SC 2646 of the Apex Court arising under the relevant provisions of the Rent Act provide binding precedents and there being admittedly a breach of the condition of the tenancy committed by the respondent-tenant, he has rendered himself liable to a decree for eviction.
[Para 21]
( 1 ). The petitioners, original plaintiffs, filed Regular Civil Suit no. 401 of 1972 in the Court of Civil Judge (J. D.), Bhavnagar against the opponentoriginal defendant for obtaining relief of eviction of the suit premises and recovery of arrears of rent and mesne profits. The learned trial Judge by his judgment and order dated 12-7-1976 dismissed the petitioners suit with no order as to cost. The petitioners, therefore, carried the matter in Regular Civil Appeal No. 2 of 1977 in the Court of the District Judge at Bhavnagar. The learned Assistant Judge, Bhavnagar, who was assigned the matter, by the judgment and order dated 16-2-1978 dismissed the appeal with cost holding on the construction of the rent note Exh. 35 that the suit premises was let for the purpose of business only, but accepting the evidence of rent receipt Exh. 46 and the oral evidence with regard to user of the suit premises prior to letting thereof to the respondents, came to the conclusion that the suit premises were being used for the composite purpose of residence and business from the very beginning to the knowledge of the petitioner/s and her predecessors and there being no term prohibiting the use of suit premises for the purpose of residence, it could not be held that the suit premises were let to the respondents for the purpose of business only and that he has made change of user by using 2nd and 3rd floors of the suit premises for residence.
( 2 ). The petitioners subjected the aforesaid decision to challenge under Sec. 29 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act (for short "the Rent act") in this revision application, which was at first allowed by decision dated 16- 1-1980 (Coram : M. K. Shah, J. as His Lordship was then ). The matter then went before the Honble Supreme Court in Civil Appeal No. 784 of 1980. The Honble supreme Court by order dated 5-4-1984 remanded the matter to this Court with a direction to consider the rent receipt Exh. 35 and to dispose of the matter afresh, while keeping it open to the parties to canvass the correctness on the other points as well.
( 3 ). It was the plaintiffs case that the defendant was the tenant in respect of the 1st, 2nd and 3rd floors of their property situated on Mahatma Gandhi Road, bhavnagar consisting of ground and three upper floors. It was further the plaintiffs case that the premises were let to the defendant for business purpose and that there was change of user because the defendant was using the 2nd and 3rd floors of the premises for residence. The defendant accordingly committed breach of the terms and conditions of the tenancy and rendered himself liable to be evicted from the suit premises.
( 4 ). The defendant, inter-alia contended that the premises was let for the purpose of business as well as residence and from the very inception of the tenancy he was using 2nd and 3rd floors for the purpose of residence and 1st floor for the purpose of business.
( 5 ). On the evidence led before him the learned trial Judge came to the conclusion that the suit premises were let to the defendant for the purpose of business and residence and he, therefore, found that there was no change of user. He, therefore, dismissed the suit. In appeal the learned Assistant Judge upheld the dismissal of the suit, but with a rider that on the true construction of the rent note Exh. 35 it could not be said that the suit premises were let for composite purpose of business and residence and it could be said that the suit premises were let for business only.
( 6 ). After the remand from the Honble Supreme Court the parties have placed their respective evidence on the record of the case in respect of subsequent event, namely, that the whole of the suit premises have been kept closed and the respondent was neither doing the business of electric goods nor residing in any part of the suit premises and was keeping the same closed since 1990-91 and that the respondent is not desirous of
