Shri Nibilal Fakirahamad Shaikh vs Shri Shankarrao Channavirappa ...
2003 Latest Caselaw 1120 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. Rule returnable forthwith. Learned Counsel for the Respondent waives service. By consent taken up for hearing and final disposal.

2. A decree for eviction under the Rent Act has been passed under Sections 13(1)(b) and 13(1)(1). The judgment of the trial Court was confirmed in appeal by the Additional District Judge, Solapur.

3. The question as to whether a ground for eviction under Section 13(1)(1) has been made out can be taken up first. Section 13(1)(1) operates where the tenant after coming into operation of the Act has built or acquired vacant possession of or been allotted a suitable residence. The alternative accommodation in the present case admittedly stands in the name of the tenant's wife. The Trial Court recorded that the tenant has admitted that he was residing with his wife in a joint family and that his wife was "doing nothing" Presumably by the expression "doing nothing" (which to my mind is inappropriate) what the learned trial Judge meant is that the wife of the tenant had no independent means of her own. With the assistance of the learned Counsel, I have perused the evidence of the tenant to determine whether there was any evidence or admission to that effect Upon a perusal of the evidence, it does appear that there is no such admission on the part of the tenant as noted by the Trial Court. Counsel for the respondent laid emphasis on the statement of the tenant in his examination-in-chief that the livelihood of the family of tenant depended on the shop which was being conducted by the tenant. However, prima facie, it appears that no case was put to the tenant to the effect that the acquisition in the present case was by the tenant himself though in the name of his wife. There was no line of cross-examination on the source of funds through which the premises cam to be acquired by the tenant; atleast none has been placed before the Court during the course of the hearing. The Appellate Court ha snot considered the question as whether the acquisition of the premises by the wife of the tenant could be treated as an acquisition by the tenant himself within the meaning of Section 13(1)(1) of the Rent Act.

4. Counsel for the petitioner has relied upon a number of judgments on the interpretation which should be placed on a provision a skin to Section 13(1)(1). A learned Single Judge of the Delhi High Court in a judgment delivered on 28th November, 1969 in Smt. Revti Devi v. Kishan Lal (1970, All Indian Rent Control Journal 417) adverted to the provisions of Section 14(1)(h) of the Delhi Rent Control Act. The learned Single Judge held that there was no law according to which a husband and wife could be deemed to be one person. Therefore, where the provisions requires that the tenant himself should acquire vacant possession of another residence before he is liable to eviction, the force of its language cannot be whittled down by arguing that the proviso would apply even if, not the tenant himself but his wife or other relation had acquired another residence. The next judgment of a learned Single Judge of the Delhi High Court in V.K. Malhotra v. Smt. Ranjit Kaur, 1985(1) All India Rent Control Journal 250 arose under Section 14(1)(h) of the Delhi Rent Control Act. The learned Single Judge of the Delhi High Court relied on a judgment of the Supreme Court in Prem Chand v. Sher Singh, 1981 (2) D.R.J. 287 in which it was held that the tenant had through his wife acquired vacant possession of a residence in Delhi and that a ground for eviction was consequently made out. The earlier judgment in Revti Devi was considered in the subsequent judgment of the Delhi High Court in V.K. Malhotra's case (supra) and the learned Single Judge held that in view of the judgment of the Supreme Court in Premchand's Case (supra), it is the law laid by the Supreme Court which would have to be followed.

5. In so far as this Court is concerned, in Indulal Ranchoddas Shah v. Ramprasad Mahadeorao Gite, (1992 Maharashtra Rent Control Journal, 234), a learned Single Judge held that if a member of the family of the tenant acquires other premises, it would not necessarily mean that the tenant has acquired an alternative suitable residence so as to constitute a ground for eviction under Section 13(1)(1). That was, however, a case where the son of the tenant in whose name the alternative premises were acquired, was only a student and was not an earning member of the family. The rent of the newly acquired premises was admittedly being paid by the tenant for and on behalf of his son. The tenant had also shifted to the newly acquired premises. In those circumstances, the learned Single Judge held that the ingredients for a decree for eviction under Section 13(1)(1) had been established.

6. The Supreme Court has had occasion to consider the issue in two judgments which have been cited before the Court. The first B.R. Mehta v. Atma Devi, arose under Section 14(1)(h) of the Delhi Rent Control Act. The Supreme Court there held that the allotment of government accommodation to the wife of the tenant due to her employment as a teacher in a Government Girls Higher Secondary school did not amount to acquisition of suitable residential premises by the tenant himself. The case of the tenant was that there was a matrimonial dispute between him and his wife. The Supreme Court held that the premises in question that the wife occupied were indisputably not the matrimonial home. The husband did not have a statutory or legal right over the premises allotted to the wife because of a job. Hence, the tenant could not be made to lose his tenancy because of his wife acquiring possession of a flat or due to the allotment of a flat on account of her duties, since the tenant had no right, of domain or occupation therein. Recently, the Supreme Court has occasion to consider the provisions of Section 13(1)(1) of the Bombay Rent Act in Anandi D. Jadhav (Dead) By Lrs. v. Nirmal Ramchandra Kore . That was a case where the first respondent who was a tenant was ought to be evicted under Section 13(1)(1) on the ground that her sons had acquired alternative accommodation. The Supreme Court, while constructing Section 13(1)(1), held that from the scheme of provision it is discernible that it is only when the tenant gets a right to reside in premises other than the demised premises on the happening of any one of the three alternatives mentioned therein, namely either by building or by acquiring vacant possession of or by allotment of a house, that the landlord can seek recovery of the possession of the demised premises from the tenant. The expression "acquired vacant possession" in the context was held to mean acquisition of vacant possession of suitable accommodation in which one has a right to reside. The Supreme Court held that it must be legally enforceable right and in that case, the mother who was the tenant did not possess any such legal right to reside in a house belonging to her sons.

7. These judgments which have an important bearing upon the question in issue have not been considered by either of the two Courts. The relevant part of the evidence has not been considered at all. The trial Court proceeded on the basis that it was an admission of the tenant that his wife had no source of income. As I have already noted earlier that was not a a case sought to be made out in the course of cross-examination. The Appellate Court has not considered the question as to whether the acquisition of alternative premises by the wife would amount to acquisition of suitable residential accommodation by the tenant at all.

8. In so far as the second ground for eviction is concerned, a decree has been passed under Section 13(1)(b) of the Rent Act. Section 13(1)(b) relates to a situation where "the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure." Counsel appearing on behalf of the petitioner has relied upon an admission of the tenant in the course of cross-examination that the area upon which the tenant had carried out the construction had not been tenanted to him at all. In these circumstances, it was urged that this is not a case where a permanent construction has been carried out on the premises which have been let out. Reliance in that regard was placed on a judgment of a Single Judge of this Court in Rukhaminibai Ramulal Lahoti v. Mulidhar Govindran. (1988, Maharashtra Rent Control Journal 612) where the expression 'Premises' as defined in Section 5(8)(b)(1) has been construed. Reliance was also placed on a judgment of a Single Judge in Parvati Kevalram Moorjani v. Madanlal Anraj Porwal. (1987 Mh.L.J. 917). I am of the view that the view which has been taken by the two Courts below require fresh consideration having regard to the submissions which have been urged. A perusal of the two judgments would show that the matter has been dealt with rather perfunctorily without a proper consideration of the evidence and the applicable law. Instead of the keeping petition pending before this Court, I was of the view that the matter can be remitted back to the First Appellate Court at this stage to enable a proper consideration of the matter afresh. Both the learned Counsel have agreed to this course of action. However, I have set out in the course of this judgment the contours of the controversy so as to enable the learned Additional District Judge to duly appreciate the basis of the order of remand. The judgment of this Court, it is however clarified, shall not be regarded as reflecting any conclusive opinion on the merits of the rival claims and contentions of the parties.

9. In the circumstances, the petition is allowed. The judgment of the Additional District Judge dated 2nd May, 2003 is quashed and set aside. Parties shall appear before the Additional District Judge in the first instance for directions on 3rd November, 2003 on which date the learned Judge shall issue directions in regard to the listing of the matter for hearing and final disposal. The learned Additional District Judge is requested to pass fresh orders in the appeal after hearing the parties.

The writ petition is, accordingly, disposed of. No costs.