Shantanu Baburao Palaskhedkar vs Vinayak Mahadeo Sainkar
2001 Latest Caselaw 573 Bom

JUDGMENT

1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the 5th Additional District Judge, Pune dated August 8, 1989 in Civil Appeal No. 201 of 1986.

2. The petitioner is a tenant in respect of the suit premises bearing House No. 497, Ravivar Peth, Pune 411 011, which was originally owned by Vinayak Mahadeo Sainkar, predecessor of the present respondent. The original respondent had filed a suit for recovery of possession of the suit premises against the petitioner on the ground of default within the meaning of Section 12 of the Bombay Rent Act; as well as for the petitioner having committed acts contrary to the provisions of Clause (o) of Section 108 of Transfer of Property Act, 1882; unlawfully subletting the suit premises within the meaning of Section 13(1)(e) of the Rent Act; and not using the suit premises without reasonable cause for the purpose for which they were let for continuous period of 6 months immediately preceding the date of the suit within the meaning of Section 13(1)(k) of the Act.

3. The trial Court after considering the rival stand was pleased to dismiss the suit on all the counts. The original respondent took the matter in appeal before the District Court being Civil Appeal No. 201 of 1986. It appears that only three grounds were pressed before the Appellate Court, namely, default, non-user and having committed breach of condition. The Appellate Court decreed the suit on the ground covered under Section 13(1)(a) of Bombay Rent Act. The Appellate Court further held that the petitioner tenant did not use the suit premises for the purpose for which it was let out to him continuously for a period of 6 months preceding the institution of the suit without any reasonable cause. In other words, the Appellate Court negatived the ground of default but allowed the appeal on other two counts referred to

above. It is this judgment which is subject matter of challenge in the present writ petition. Although respondent has been served none appeared.

4. On going through the record, the admitted facts which emerge are that : the suit premises was originally let out to one Vasant Laxman Palaskhedkar, predecessor of the petitioner herein. The said V.L. Palaskhedkar is the uncle of the present petitioner. He expired on 14th October 1980. After his death an agreement was entered into between the petitioner and landlord-original plaintiff on 31st December 1980 that tenancy would enure in favour of the petitioner being legal heir of deceased V.L. Palaskhedkar, original tenant. In other words, it is not in dispute that relationship between the petitioner and the original plaintiff was that of landlord and tenant. We are not called upon to examine the ground of default inasmuch as both the courts below have negatived the same.

5. Before we make reference to the grounds under Section 13(1)(a) and 13(1)(k), it would be relevant to note that although the plaintiff had pressed ground of unlawful subletting under Section 13(1)(e) for claiming recovery of possession, however, during the trial, the said ground was given up. The ground of unlawful subletting proceeded on the premise that the suit premises were being used by the brother of the petitioner and that the petitioner was never seen in the suit premises. In other words, the grievance of the respondent-landlord was that the petitioner had unlawfully sublet the suit premises in favour of his brother who was conducting business of goldsmith therein. However, since the said ground has been given up, it necessarily follows that the claim of the landlord regarding the ground of sub-letting was ill-advised and misplaced and in any case unavailable to the respondent. The ground of unlawful sub-letting having been given up, a fortiori, in law, we will have to proceed on the assumption that the landlord admits that the tenant is in occupation of the suit premises. Once we accept this position, then, it becomes convenient to address ourselves to other issues on which the Appellate Court was persuaded to decree the suit in favour of the respondent.

6. For decreeing the suit on the ground covered under Section 13(1)(a), the Appellate Court has accepted the claim of the respondent landlord that the petitioner defendant was never seen running the business in the suit premises. On this premise alone the Appellate Court has proceed to decree the suit under Section 13(1)(a). This approach is wholly inappropriate, for to attract Section 13(1)(a) of the Bombay Rent Act, the quintessence is that the tenant has committed any act contrary to the provisions of Clause (o) of Section 108 of Transfer of Property Act. Naturally, therefore, we will have to advert to Clause (o) of Section 108 of Transfer of Property Act which postulates that lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto. In

the present case, neither the pleading nor the evidence adduced on behalf of the respondent landlord would assert any of these ingredients required to attract Clause (o) of Section 108 of Transfer of Property Act. In the first place the landlord having given up the ground of unlawful subletting admits in fact and in law that the tenant is in occupation of the suit premises. Besides that the case made out by the landlord is that the tenant was never seen running the business in the suit premises but his brother was running the business of goldsmith. It is not in dispute that the suit premises are let out to the petitioner-tenant for running the business of goldsmith. Understood thus, the basis on which the Appellate Court proceeded to grant decree of eviction within the meaning of Section 13(1)(a) of the Act was not only error apparent on the face of record but clearly incongruous to the provisions of law.

7. Coming to the second count on which the Appellate Court has proceeded to decree the suit viz., under Section 13(1)(k) of the Bombay Rent Act, even here the test applied by the Appellate Court on the basis of which the said decree has been granted cannot be sustained. What has been overlooked is that Section 13(1)(k) of the Bombay Rent Act is attracted only when the premises have not been used without reasonable cause for the purpose for which they were let for continuous period of 6 months immediately preceding the date of the suit. In the present case, there is absolutely no iota of evidence that the premises were kept locked and unused continuously for a period of 6 months immediately preceding the date of the suit. However, the Appellate Court has applied the said provision on the premise that the tenant himself had not used the suit premises but caused it to be used by others. As observed earlier, the respondent landlord having given up the claim for possession on the ground of unlawful subletting it is not open for the respondent to raise this plea especially in view of his assertion that the goldsmith business is being conducted in the suit premises, albeit by the tenant's brother. In that sense there is a positive assertion by the landlord of user of the suit premises and not of non-user as such. In my view, Section 13(1)(k) can be invoked only when the suit premises were unused continually for the purpose for which they were let out for a period of 6 months immediately preceding the suit. In the present case, it is not in dispute that the premises were originally let out to V.L. Palaskhedkar to conduct business of goldsmith and which has been inherited by the petitioner. Thus the nature of user has not been changed by the petitioner or for that matter even by the occupants of the suit premises. In such a situation the provisions of Section 13(1)(k) can have no application. Moreover in this case there is absolutely no evidence on record nor the courts below have recorded such finding that the suit premises were kept locked and unused continually for a period of six months preceding the date of institution of the suit. In the circumstances, the basis on which the Appellate Court has proceeded to decree the suit under Section 13(1)(k) is wholly inappropriate and impertinent. The same therefore deserves to be set aside.

8. For the aforesaid reasons, this writ petition succeeds and the order passed by the 5th Additional District Judge, Pune dated 8th August 1989 in

Civil Appeal No. 201 of 1986 is set aside. Consequently the suit for recovery of possession in respect of the suit premises is dismissed.

9. Rule made absolute with costs.

10. Petition allowed.