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IN THE HIGH COURT OF BOMBAY
(S. B. Bhasme J.)
BABHUTMAL RAICHAND OSWAL -Petitioner.
v.
LAXMIBAI RAGHUNATH TARTE - Respondent:
Advocate Appeared
For petitioner-Marzban Mistry. K. J. Abhyankar and C.A. Kaveria.
For opponents 1 and 2-H. G. Advani. S.T. Jagtiani and M. S. Nargolkar.
RENT CONTROL - BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT (LVII OF 1947) - SECTION 13 (1) (A) AND 13 (1) (K) - CHANGE OF USE OF PREMISES - DOMINANT OR PRIMARY USE - DETERMINATION.
Fact of the Case:
The petitioner, a tenant, was evicted from the premises by the lower courts under section 13 (1) (k) of the Bombay Rents, Hotel and Lodging House Rates Control Act (LVII of 1947) on the grounds that he had changed the use of the premises from a shop to a residence. The petitioner challenged the decree, arguing that the lower courts failed to consider the dominant or primary use of the premises.
Finding of the Court:
The High Court held that the lower courts erred in not considering the dominant or primary use of the premises while determining whether there was a change of use. The court noted that section 13 (1) (k) of the Rent Act has a wider connotation than section 13 (1) (a) and covers not only positive but also negative aspects. The court further held that in cases where the premises are put to an additional or different use while still being used for the purpose for which they were let, the court must consider the dominant or primary use to find out whether there is a change of use.
Issues: 1. Whether the lower courts erred in not considering the dominant or primary use of the premises while determining whether there was a change of use. 2. Whether section 13 (1) (k) of the Rent Act has a wider connotation than section 13 (1) (a) and covers not only positive but also negative aspects.
Ratio Decidendi: 1. The court held that the lower courts erred in not considering the dominant or primary use of the premises while determining whether there was a change of use. The court noted that section 13 (1) (k) of the Rent Act has a wider connotation than section 13 (1) (a) and covers not only positive but also negative aspects. The court further held that in cases where the premises are put to an additional or different use while still being used for the purpose for which they were let, the court must consider the dominant or primary use to find out whether there is a change of use. 2. The court held that section 13 (1) (k) of the Rent Act has a wider connotation than section 13 (1) (a) and covers not only positive but also negative aspects.
Final Decision: The High Court remitted the case back to the trial court to determine the dominant or primary use of the premises and to record findings on whether the plaintiffs were entitled to eject the defendant under section 13 (1) (a) or section 13 (1) (k) of the Rent Act.
2. The shop premises consisting of 3 khans and 4 ghadis on the southern side ground floor of House No. 172 (old) in Ravivar Peth, Poona, and now known as No. 879 (new) in Budhwar Peth, Poona are occupied by the petitioner as a monthly tenant at a rental of Rs. 28. 42 per month. The plaintiffs have purchased the building of which the suit premises form part on December 12, 1963 from the former owner. They terminated the petitioners tenancy by a notice dated November 12, 1964 and filed a suit claiming possession of the premises on several arounds. It will be sufficient if I refer only to one ground on which the decree passed by the Courts below is based. It was stated in the plaint that the petitioner had taken the suit premises for the purpose of a shop and he has commenced using the same for residence as he is now residing therein with his family. The plaintiffs averred that the petitioner is using the premises for a purpose other than the one for which he initially had taken them on rent.
3. The petitioner by filing a written statement at exh. 16 resisted the claim of the plaintiffs. In para. 3 of the written statement, the petitioner submitted that he had not taken the premises on rent only for the purpose of the shop In fact he had taken the premise.; for his business as well as for his residence. In other words, it was the case of the petitioner that the premises were rented by him for the composite purpose of business and residence.
4. The learned trial Judge framed Issue No.2 as under:
"Do plaintiffs prove that the defendant has taken the suit premises only for the purpose of shop and that the defendant is now using those premises for residence as well and is residing there with his family?"
5. Issue No.3 reads thus:
"If so, do they prove that the defendant is using the premises for the purpose other than the purpose for which the premises were let?"
The learned trial Judge, after consideration of the oral and documentary evidence adduced by the parties, recorded findings in the affirmative on these two issues. In view of these findings, he came to the conclusion that the defendant was using the premises for a purpose other than the purpose for which the premises were let. He held that the plaintiffs had proved their case for possession under section 13 (l) (k) of the Rent Act. Aggrieved by the abovementioned decree the defendant preferred an appeal and the learned Second Extra Assistant Judge, Poona, confirmed the decree of the trial Court and dismissed the appeal. The petitioner is now challenging this decree in these proceedings under article 227 of the Constitution of India.
6. Mr. Mistry for the petitioner submitted that the lower Courts were not justified in recording a finding that the defendant has failed to prove that the premises were originally let for the composite purpose of business and residence. As there is no written contract of tenancy the lower Courts had to consider only the circumstantial evidence while recording findings about the terms of the tenancy Both parties had relied upon oral and documentary evidence. The learned trial Judge has discussed all that evidence and has referred to certain documents including the pleadings in the earlier litigation between the defendant and the former landlord Siddappa. Reliance was also place on a receipt exh. 91 dated July 3, 1952 passed by Siddappa, the former landlord. The receipt contains recitals which indicate that the premises were used for shop purpose and the rent charred was for the shop premises. Both the Courts have, after assessment of the entire evidence, concluded that the premises were not let for the composite purpose o
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