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1997 Supreme(Guj) 311
Gujarat High Court
Judgename :S.D.Shah
DAULATRAM KHITUMAL UDHRANI - Appellant
Versus
RAJENDRABHAI JAYANTILAL TAILOR - Respondent
C.R.A. 1217 of 1992
Decided On : 07/08/1997
Headnote:(a) Bombay Rents Hotel & Lodging House Rates Control Act, 1947 - Sec. 29(2) - Revisional jurisdiction - Scope of - If a possible view has been taken by courts below, High Court would be exceeding its jurisdiction if it substitutes its own view simply because it considers it to be a better view - Fact that High Court would have taken a different view is wholly irrelevant.
Court has to guard itself against exercising the revisional powers by substituting its own in the guise of revisional powers to the two views which are held and expressed concurrently by the two courts below. If the view taken by the two courts below cannot be said to be perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law would arrive at such a finding on the face of the record, this court should be loath to exercise its jurisdiction and as per law expressed by the Apex Court, the High Court even under Sec. 29 (2) of the said Act should not exercise its jurisdiction simply because on facts the High Court would have taken a different view.
[Para 7]
(b) Bombay Rents Hotel & Lodging House Rates Control Act, 1947 - Sec. 13(1)(1) - Decree of eviction - Acquisition of suitable residential accommodation by petitioner tenant - Validity - Court having gone through the evidence of tenant found that he himself has admitted to have acquired suitable residential accommodation and he & his sons are carrying either Ice Candy or Automobile business on ground floor while he is residing with his son Pappy in the house occupied by him in first & second floor - Doctrine of waiver of right is not attracted in view of statutory prohibition against tenant to remain in possession after acquisition of suitable residential accommodation - It would otherwise frustrate the object of the Act.
In courts opinion the evidence of the tenant himself is sufficient to establish that he and his sons have acquired suitable residential accommodation and he and his sons are carrying either Ice Candy or Automobile business on the groundfloor while he is residing with his son Pappy in the house occupied by him in the first and second floor. It is difficult for the tenant to run away from this admission which he has made in his cross-examination and the doctrine of waiver of right cannot apply to the statutory prohibition. When statute provide that the act of acquiring suitable residential accommodation or accommodations by the tenant would entitle the landlord to a decree of possession on the ground of acquisition of suitable residential accommodation by the tenant and the tenant has acquired number of suitable residential accommodations to permit the doctrine of waiver to operate would amount to frustrate the object of the statute.
[Para 14]
(c) Bombay Rents Hotel & Lodging House Rates Control Act, 1947 - Sec. 13(1)(1) - Applicability - Predominent intention of letting the premises has to be considered and if it was business, provision has no application - In the instance case there is no manner of doubt that disputed premises was let by landlord to tenant for reasons given in rent note namely residence - Incidental use for running Ice Candy shop for short time would not militate against tenant using for residence.
In the present case it is very difficult to hold that the predominant intention of the landlord to let the premises was to permit the tenant was commercial because there are articles of the tenant himself and initially it is found that the house was always used for the purpose of residence only. In the present case it shall have to be held that the predominant intention or very purpose of letting the house was one of residence only, the provisions of Sec. 13 (1) (l) of the said Act will be attracted.
[Para 15]
This court has no manner of doubt in holding that the disputed premises was let by the landlord to the tenant for the reasons given in the rent note namely residence and incidential use for running Ice Candy shop for short time would not militate against the tenant using for residence. Condition was also laid down in terms contained in the rent note to the effect that no machinery shall be installed. It was submitted that what was prohibited was installation of machinery, but impliedly it would mean that carrying of other business such as running Ice Candy shop was permitted. In my opinion, the submission is misconceived, When it is specifically stated in the rent note that the premises should not be used for installation of machinery, the implied meaning is that the premises are to be used for residence purpose and not for commercial or business purpose so as to damage or cause waste to the premises. In fact rent note contains such stipulation that the house is let for the purpose of residence and no machinery should be installed. There is no manner of doubt that the dominant use for which the premises was let was that of residence, and it cannot be said that it was let for residence and commercial purpose.
[Para 17]
( 1 ) THE petitioner is the defendant-tenant against whom the respondent-landlord filed the suit for eviction being Reg. Civil Suit No. 129 of 1983 in the Court of Civil Judge (J. D.) at Rajpipla, who decreed the suit of the respondent-plaintiffs and in the Regular Civil Appeal No. 85 of 1986 preferred in the Court of Extra Assistant Judge, Broach he partially allowed the appeal by judgment and decree dated 30th July, 1992 by holding that the respondent-plaintiffs were entitled to recover possession of the suit premises under S. 13 (1) (l) of bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as the "said Act", and set partially aside the decree of the trial Court while reversing the judgment and order of the trial Court for decree for possession on the ground available under Secs. 13 (1) (b) and 13 (1) (g) of the said Act. Shortly speaking the learned Extra Assistant Judge at Broach confirmed the decree for possession in against the decree passed by the Asstt. Judge, Bharuch in Reg. Civil Appeal No. 85 of 1986 confirming the decree passed by the Civil Judge (J. D.), Rajpipla in Reg. Civil Suit no. 129 of 1983. favour of respondent-plaintiffs mainly on the ground that they were entitled to possession of suit premises as the petitioner-tenant has acquired suitable residential accommodation and was, therefore, liable to be evicted under S. 13 (1) (l) of the said Act.
( 2 ) THE trial Court being Civil Judge (J. D.) at Rajpipla by judgment and decree, dated 30-9-1986 came to conclusion that the plaintiff has proved that the defendant has changed the user of the premises and that the plaintiff required the suit premises reasonably and bona fide and that the plaintiff will suffer greater hardship if decree of eviction is refused. So far as the findings recorded by the trial Court on these issues were concerned, it must be stated that before the lower appellate Court it was conceded by the plaintiff himself that the decree for eviction under S. 13 (1) (g) was not sustainable because a person who was in need of premises was not examined and has not stated that he required the suit premises for his personal use and bona fide requirement. His Advocate also fairly conceded that the judgment and decree of the trail Court against the opponent on that ground cannot be upheld and therefore, it is not required for this Court to decide the question of entitlement of the landlord for a decree of eviction under S. 13 (1) (g) of the said Act.
( 3 ) AS regards issue No. 4 as to whether the landlord proved that the defendant has acquired suitable premises the trial Court recorded finding in favour of landlord and held that the landlord was entitled to decree for possession. This judgment and decree of the trial Court dated 30-9-1986 was challenged by the petitioner-tenant by preferring Reg. Civil Appeal No. 85 of 1986 and the learned Extra Assistant judge at Broach by judgment and decree, dated 30-7-1992 partially allowed the appeal but confirmed the decree of possession of the suit premises under S. 13 (1) (l) of the said Act. It is the said decree which is under challenge in this revision application before this Court.
( 4 ) MR. Harin P. Raval, learned Advocate appearing for petitioner has mainly assailed the judgment and decree passed by the lower appellate Court under Sec. 13 (1) (l) of the said Act on various grounds while Mr. P. B. Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose.
( 5 ) THE crux of the controversy between the tenant and the landlord thus centres round the passing of a decree of eviction concurrently by two Courts below on the ground of eviction available under S. 13 of the said Act. Section 13 (1) (l) provides that -"notwithstanding anything contained in this Act, a
