Dattaram Daulat Kodare Since ... vs Smt. Shantabai Zimji Jagtap
2004 Latest Caselaw 742 Bom

JUDGMENT

D.G. Karnik, J.

1. By this petition, the petitioner takes exception to the judgment and order dated 14th April 1991 passed by the VIth Addl. District Judge, Thane dismissing Civil Appeal No. 417 of 1998 and confirming the decree for possession passed in favour of the respondent-landlord.

2. The respondent is the landlady. The suit premises were let out to Dattaram the original petitioner for residence in the year 1961. Dattaram died during the pendency of the petition and his wife and sons are brought on record as the present petitioner. The respondent filed a suit against Dattaram bearing regular Civil suit no. 274 of 1983 for possession on several grounds. The trial Court held that Dattaram had acquired suitable residential accommodation elsewhere and was hot using the suit premises far the purpose for which they mere let out viz. the residence for a period of more than six months prior to the institution of a suit. The trial Court also held that Dattaram had carried out construction in the suit premises without the consent of the respondent. The trial Court decreed the suit. The appellate Court also held that the original respondent had acquired suitable residential premises elsewhere. The appellate Court however, held that the respondent was aware of the change of user of the premises for many years and her inaction amounted to waiver or her rights. In view of the findings that the original petitioner had acquired the suitable residential premises elsewhere, the appellate Court confirmed the decree for possession passed by the trial Court. That judgment is impugned in this Writ Petition.

3. It is not disputed that the suit premises are residential and were let out to the Dattaram in the year 1961 for the purpose of residence. In the year 1972, Dattaram became an Advocate. It appears that after 1972, Dattaram continued to occupy the said premises for the purpose of his residence and started using the part of the premises for the purpose of his profession of an Advocate. The suit premises consists of only one room and the same room was used for residence and also for meeting the clients for a few hours of the day. Therefore, prima facie it appears that there was no change of dominant use which continued to be of residence. The appellate Court has held that the respondent had engaged Dattaram as her Advocate for some Other litigation and she was aware that he was using part of the suit premises for conducting his profession as an Advocate. As the respondent had not complained about it and therefore, it was held that she had waived the changed of user.

4. The wife of Dattaram, who has been brought on record as one of his heirs, has obtained a fiat in Prashant Co-operative Housing Society Limited. Shamrao Phadke, Secretary of the Society was examined (SIC) a witness who proved that the wife of Dattaram had required a flat in the Society and was a member of the Society. It appears that Dattaram was also considing in the said flat along with his wife and his name was entered in the records Of the Society as a nominee of his wife. It was the case of Dattaram that after acquisition of the flat by his wife he continued to use the suit premises for the purpose of his profession and he had not stopped the user of the suit premises. He further contended before the appellate Court that the averments in the plaint about the alternative accommodations were not sufficient. The description and the location of the alternate premises was not mentioned in the plaint and therefore no decree could be passed on the ground that he had acquired suitable residential premises. Dattaram was well understood of the pleadings regarding acquisition of alternative premises. He had not objected to the examination of Shamrao Phadke, Secretary of the Society, on the ground of absence of proper pleadings. Dattaram went to the trial with the full knowledge as to what were the alternative premises that were alleged to have been acquired by him and never objected to the evidence being led on the ground that there were no proper pleadings. in the circumstances, the appellate Court rightly came to the conclusion that no prejudice was caused to the Dattaram because of absence of particulars about the location and description of the alternative premises. Even before me, no prejudice is show to have been caused to the petitioner on account of lack of sufficient pleading. This is not a case of total absence of pleading but only of lack of full particulars in the pleadings. As the parties went to the trial with full knowledge of the case of each other, the petitioner cannot now complain about luck of sufficient particulars in the pleadings.

5. Relying upon the decision of the Apex Court in B.R. Mehta v. Smt. Atma Devi and Ors. , the learned counsel for the petitioner contends that acquisition of the premises by the wife of Dattaram, the tenant, could not be a ground for his eviction. In the case of B.R. Mehta, the tenant's wife who was a government servant was allotted a flat by reason of her being a Government servant. It was held that acquisition of the premises by the tenant's wife in the capacity as a Government servant could not be considered as an acquisition of the suitable alternative accommodation by the tenant. There, are two features which distinguish this decision from the present case. In that case wife had not acquired the premises permanently but was allotted Government premises for her own use during her service, the husband had ho domain over the premises and he could not go and stay in the premises as of a right and that was not their matrimonial home. During the pendency of the appeal before the Supreme Court, the wife had resigned and had joined the husband in the rented premises. In the present case, the wife has not acquired the accommodation temporarily but has purchased it. The original petitioner was residing with his wife in her premises as if it was their matrimonial home and was using the suit premises only for the purpose of his practice as an Advocate. The present case is more an the line with the decision of the Apex Court in Prem Chand v. Sher Singh reported in 1981 DRJ 287 (SC) wherein the Supreme Court passed a decree for possession on the ground of acquisition of suitable alternate premises though the alternate flat was purchased by the wife of the tenant.

6. It is next contended that the suit premises were being used both for the purpose of residence and profession and therefore, acquisition of suitable premises for the purpose of residence was no ground for passing of a decree for possession. Reliance is placed on the decision of the Apex Court in Dr. Gopal Das Verma v. Dr, S.K. Bhardwaj . In that case, the premises were let out for a composite purpose of residence and medical practice. It was held that acquisition of premises for residence would be no ground for evicting the tenant from the premises which were let out for a composite purpose of residence and profession. In the present case, the suit premises were not let out for the composite purpose of residence and profession. The suit premises were let out in the year 1961 when Dattaram was not even and Advocate. He became Advocate a decade later. The suit premises were let out solely and exclusively for the purpose of residence. Subsequent to his becoming an Advocated in the year 1972, the premises were used of the composite purpose of residence as well as profession and such change of user was not objected to by the landlady. That would not change the purpose of letting from residence to composite use. Mere inaction on the part of the respondent landlady in not initiating the action against the tenant for change of user would not change the purpose of letting from residential to non residential. The premises would continue to be residential premises let out for the purpose of residence. Though on account of the waiver the landlady may not be entitled to take action for change of use, that would not prevent the landlady from suing for possession of the premises on the ground that tenant had acquired suitable residential premises elsewhere.

7. There is no merit in the petition which is hereby dismissed. Rule discharged. No costs.