Bombay High Court
Mrs.Saharabegam Sikandar Shaikh And ... vs Abdul Ali Mawaji Tejani And Another on 1 October, 1990
Equivalent citations: AIR1991BOM181, 1991(2)BOMCR455, AIR 1991 BOMBAY 181, (1991) 2 BOM CR 455, 1991BOMRC215, (1991) 2 RENCJ 312, (1991) 2 RENCR 625
JUDGMENT
1. The present petition has been filed by the heirs of the original plaintiff landlady seeking to challenge the judgment and decree dated 24th January 1986 of the Court of the IInd Extra Joint District Judge, Pune in Civil Appeal No. 517 of 1984. By the said decree the appeal of the first respondent original defendant tenant was allowed and the judgment and decree dated 28th November 1983 of the Court of the IIIrd Additional Judge, Small Cause Court, Pune in Suit No. 119 of 1980 awarding possession under Section 13(1)(g) and 13(1)(i) of the Bombay Rent Act was set aside and the suit for possession was dismissed.
2. The original plaintiff was one Smt. Rukiya Begum Solapurkar who owned Begum Mansion, City Survey No. 50, Sasson Road, Wilson Garden, Pune. She died during the pendency of the appeal leaving behind her the petitioners and the second respondent who are her married daughters as her heirs and legal representatives. They were impleaded in the appeal as respondents being the heirs of the deceased Rukiya Begum.
3. The suit premises consist of three rooms situate on the eastern side of the ground floor of the aforesaid suit house. The rent of the premises was fixed at Rs. 75/- per month exclusive of electricity charges. By a notice dated 4th August 1977 the original plaintiff called upon the defendant to vacate and hand over possession on various grounds. She claimed that she bona fide required the suit premises for the residence of herself and the members of her family which included her two married daughers, their husbands and their children. She contended that the defendant had acquired alternate suitable residence in the name of his son Mullick in Guru Prasad Society and has shifted there along with al the members of his family. The defendant has since October 1976 not used the suit premises and has kept the same locked. Though the said notice was given on 4th August 1977 the present suit was filed only on 14th January 1980. Amongst the grounds which were set up for claiming possesion and which are material for the purpose of deciding this petition are :
(i) Bona fide requirement under section 13(1)(g);
(ii) Non-user under Section 13(1)(k); and-
(iii) Acquisition of alternate suitable residence under Section 13(1)(1).
The defendant resisted the claim of the plaintiff for possession by denying all the grounds set up by the plaintiff.
4. By a judgment and decree dated 28th November 1983, the learned Judge of the trial Court was pleased to hold that the plaintiff had failed to prove that the defendant had acquired suitable alternate accommodation in Guruprasad Co-operative Housing Society. He, however, held that the plaintiff had established that the defendant had kept the suit premises locked for a continuous period of six months from the date of the suit and, that too without reasonable cause. He further held that the plaintiff had proved that she and her family members bona fide and reasonably required the suit premises for their use and occupation. The issue regarding comparative hardship was answered in favour of the plaintiff. Consequent upon the said findings a decree for possesion in respect of the suit premises was passed against the defendant.
5. Being aggrieved, the defendant preferred an appeal wherein by the impugned judgment and decree dated 24th January 1986 the learned IInd Extra Joint District Judge, Pune was pleased to set aside the findings of the trial Court on the issue of non-user, bona fide requirement and comparative hardship. He held that the plaintiff had failed to prove that the defendant had not been using the suit premises without reasonable cause for a continuous period of six months immediately preceding the date of the suit. He held that the plaintiff had failed to prove that she reasonably requires the suit premises for her use and occupation. He further answered the issue regarding the comparative hardship against the plaintiff and in favour of the defendant. Consequent upon the said findings, the appeal of the defendant was allowed and the suit of the plaintiff for possession was dismissed.
6. The only grounds which were pressed in service for the purpose of the claim for possession was the ground of bona fide requirement and of non-user. These appear to be the only grounds which were pressed into servie on behalf of the plaintiff in the Appeal Court also. The Appellate Court which is the final fact findings court has found that the original plaintiff who had since died during the pendency of the appeal had made out a case of bona fide requirement on the ground that the plaintiff was aged and was sick. She had three daughters all of whom were married. Her elder daughter Saharabegum was married to Sikander from Satara, She along with her family members was residing with the plaintiff in order to look after her. Similarly, her second daughter Mumtaz was married to Harun who is the brother of Sikander. The said married daughter along with her husband and her children had also started residing with the plaintiff in the suit house. According to the plaintiff, she was in possession of a hall, a kitchen and a bed-room only. The said premises were totally insufficient to accommodate all the members of her family which numbered thirteen. The learned Judge of the Appellate Court has found that the plaintiff during the pendency of the appeal has expired. He has further found that the plaintiff was in possession not of three rooms as claimed by the plaintiff but in all six rooms totally admeasuring 1124 sq. fit. were in the plaintiffs possession. The additional premises found in possession of the plaintiff consisted of two rooms on the rear side, one of which was used as a servants' room and the other as stores. He further found that there were two rooms on the left which could be called as attic rooms. The said rooms were provided with bath-room facilities. The same were in possession of a plaintiff's licensee who according to the plaintiff was in possession without payment of rent. The premises included two closed Varandas each admeasuring 18 ft. x 8 ft. According to the learned Judge, even if an area of 12 ft. x 10 ft. which is occupied by a bath-room and a toilet are left out of consideration, the plaintiff was in possesion of an area of 1000 sq. ft. If on these facts, the learned Judge of the Appellate court has held that the plaintiff had failed to prove her bona fide requirement, no fault can be found with the said finding. These are essentially findings of fact and are not ordinarily liable to be interfered in a writ petition.
7. On the issue of comparative hardship the learned Judge has found that though a flat was purchased by the defendant's son in Guruprasad Society, it was not established that the defendnat has also shifted in the said flat. The learned Judge observed that simply because the father of the defendant came forth to give money to his son for the purchase of the flat by itself would not be sufficient to say that the flat was for the defendant, or that it was legally available to the defendant for his own use and occupation especially that his son has since got married and employed and formed a separate family unit. The issue of comparative hardship was thus answered against the plaintiff. I am inclined to concur with the view expressed by the learned Judge of the appellate court in this behalf.
8. It is not uncommon that a father out of his parental obligation or out of love and affection desires to provide for the well being of the future of his children. He may, therefore, advance some amounts for settling them in life. The said amounts may be used for settling a son either in business or providing for his residence or both. If residential premises are acquired, may be out of funds advanced by the father, can it reasoanbly be held that the premises have been acquired by the father for his benefit and use? In my view, what is required to be seen is whether the acquisition is by the defendant for his own benefit. The said acquisition has to be for the benefit of the defendant and not for the benefit of his son whom he is seeking to habilitate in life. The learned Judge of the Appeal Court after holding that the plaintiff has failed to establish that the defendant has in fact shifted in the flat belonging to his son held the issue regarding comparative hardship in favour of the defendant. In my view the said finding cannot be faulted and is liable to be upheld.
9. The learned Judge has made the above observations while considering the issue regarding comparative hardship. The said discussion would in many cases become relevant while considering a ground of eviction under Section 13(1)(1) viz. that the tenant after coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence. On this issue many times evidence is led on behalf of the contending parties in respect of acquisition of premises which may not be in the name of the tenant but in the name of his son. Evidence is quite often led to establish that the acquisition is made out of funds provided by the defendant. An argument is invariably advanced on behalf of the plaintiff landlord that the acquisition is really an acquisition of the defendant. The said acquisition is made in favour of his son merely in order to get out of the clutches of Section 13(1)(1). In such cases, the entire evidence has to be scanned and an over all view has to be taken. It is to be found out whether the acquisition has been made by the defendant; whether it has been made by the defendant for the benefit of himself and the members of his family and lastly whether the same is suitable for the defendant and the members of his family. Merely because the evidence is led to show that the alternate premises have been acquired by the defendant by advancing his moneys would not invariably lead to an inference that the same had been acquired for his own benefit. As pointed out above, it may happen that the defendant acquires residence not for his own benefit but for the benefit of his son or any other member of his family whom he seeks to habilitate in life. The crucial question which has to be gone into is whether the acquisition is for the benefit of the defendant himself and the members of his family who are to continue to reside with him as members of his family unit. If it is found that the acquisition is for the benefit of the defendant himself and the members of his family, then the further inquiry has to be made as to whether the said premises are suitable. If, however, it is found that the premises which are acquired are not for the benefit of the defendant himself but is for the benefit of one of the members of his family, who is going to establish an independent family unit, distinct from the family unit of the defendant, it would not be reasonable to apply the provisions of clause (1) of Section 13(1) so as to pass a decree for eviction. What clause (1) contemplates is the acquisition of premises by the tenant for his own benefit and the benefit of his family members. It does not contemplate cases where the defendant acquire premises not for his benefit but for the benefit of his children who are sought to be settled in life when the said children are no longer going to continue to be the members of the family unit of the defendant. Any construction contrary to the one given above is bound to cause hardship to the tenant which could never have been intended by the legislature.
10. The only other ground which was pressed into service by the petitioners for claiming possession is the one under Section 13(1)(k) i.e. that the suit premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The learned Judge noted that the suit notice claiming possesion was issued as far back as on 4th August 1977 and the present suit was filed only on 14th January 1980. The learned Judge, on placing reliance on the decision of C.R. Shaikh v. Lijabai D. Rahida reported in 1981 MLJ 437 held that the plaint did not contain the proper recitals for setting up the claim under Section 13(1)(k). It has been held in the above decision:--
"Section 13(1)(k) of the Bombay Rent Act enables a landlord to recover possession of the premises where they have not been used without reasonable cause for the purpose for which they had been let for a continuous period of 6 months immediately preceding the date of the suit. The section therefore emphasises a continuous period of 6 months preceding immediately before the date of suit. Both parts of the section namely the continuous non use up to the date of suit and the absence of reasons for such non-use are material and important. Even if the tenant has not used the premises for a period of 6 months sometime before the filing of a suit, or for more period, that would not give the landlord a cause of action. That state of affairs must continue till the date of the filing of the suit. If therefore a tenant who has not used the premises for a long period but had started using them before the date of the suit, the cause of action is gone, it is therefore necessary to emphasise the words 'continuous' and 'immediately preceding the date of the suit', occurring in clause (k) of sub-section (1) of Section 13 which only brings out clearly that the cause of action claimed is on that account. Both these aspects must clearly be made out in the plaint."
11. In the present case, the plaintiff in para 6 of her plaint averred that the defendant was a big businessman who was residing with his own son Mullick. The defendant has purchased a fiat in the name of his son in Guruprasad Co-operative Housing Society and is residing with his wife and sons since October 1976 and since then and till the date of the filing of the suit, the defendant has not been using the suit premises. Hence, the defendant has not been using the suit premises for a continuous period of six months and, therefore, the plaintiff has acquired the right to obtain possesion. The learned Judge has pointed out that there was no averment contained in the plaint that the alleged non-user was without reasonable cause. Hence, the defendant was not called upon to meet that requirement of the section. On facts, the learned Judge noted that the defendant has produced letters received by him in the suit premises ranging from the period March 1977 to May 1983. The defendant had also produced various bills in respect of gas cylinder refills for the period June 1976 to June 1983. He also noted that the names of the defendant and the members of his family were recorded in the voters list (Exhibits 119 and 120). The water bills for the period March 1975 to April 1978 were also referred for showing the consumption of water in the suit premises. He appraised the evidence of the plaintiff, her son in law Harun and P.W. 4 Nuruddin on the one side and the defendant and his witnesses Jasani and Shetty on the other and held that it had not been proved that the defendant had not used the suit premises without a reasonable cause for a continuous period of six months prior to the date of the filing of the suit. It is true as pointed out by Shri Ghaisas appearing on behalf of the petitioners, that the documentary evidence supporting the residence of the defendant in the suit premises immediately for a period of six months preceding the date of the suit is absent and this was noted by the learned Judge of the Trial Court.
This undoubtedly is so. However, the learned Judge of the Appellate Court has preferred the oral testimony led on behalf of the defendants to that led on behalf of the plaintiff. It may be that the evidence of the defendant in regard to his user of suit premises for a period of six months immediately preceding the date of the suit may not be supported by documentary evidence. That, however, would not mean that the learned Judge of the Appellate Court was not justified in relying on the oral testimony led on behalf of the defendant. These are essentially findings of fact and are not liable to be interferred in exercise of the jurisdiction under Article 227 of the Constitution.
12. In view of the foregoing reasons, I find that the present petition is devoid of any merit and the same is dismissed. Rule discharged. There shall, however, be no order as to costs.
13. Petition dismissed.