BABHUTMAL RAICHAND OSWAL Vs. LAXMIBAI R TARTA

JUDGEMENT

(1.) This litigation has had a chequered career covering a period of about ten years and we hope that this judgment will bring the final curtain upon it. It is a litigation between landlord and tenant and as is usual with this type of litigation, it has been fought to a bitter end. Much of the agony to which the tenant has been subjected in this litigation would have been spared if only the High Court had kept itself within the limits of its supervisory jurisdiction and not ventured into fields impermissible to it under Article 226 or 227 of the Constitution.

(2.) The dispute in this appeal relates to a shop consisting of four compartments on the ground floor of a building situate formerly in Raviwar peth, but now in Budhwar Peth, Poona. The appellant was admittedly a tenant of the shop since 1949 and the standard rent and permitted increases in respect of the shop are Rs. 20.12 per month. There was at one time a dispute between the parties as to what was the purpose for which the shop was let to the appellant, but having regard to the finding given by the First appellate Court, which is the ultimate court of fact, it must be taken that the shop was let out to the appellant only for the purpose of business. The respondents were not the original landlords of the shop but they purchased , the building, of which the shop forms part on 12th, December 1963 and after purchasing it, they gave a notice dated 12th November, 1964 to the appellant terminating his tenancy in respect of the shop. The appellant declined to hand over possession of the shop and the respondents thereupon filed a suit in the court of Small Causes Poona for recovering possession of the shop from the appellant. There were several grounds on which the possession of the shop was sought by the respondents but barring one, the remaining grounds do not survive as they were negatived by the Trial Court and also in appeal, by the First Appellate Court. The one ground which still survived is that relating to recovery of possession under cls. (a) and (k) of sub-section (1) of Sec.13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act) and that is the ground which has evoked the most serious controversy between the parties and led to the filing of the present appeal. Clause (a) of sub-section (1) of Section 13 provides that a landlord shall be entitled to recover possession of the premises if the court is satisfied that the tenant has committed any act contrary to the provisions of clasue (c) of Section 108 of the Transfer of property Act, 1882 and one of the acts prohibited by that clause is use of the premises for a purpose other than that for which they were leased. The respondents alleged that though the shop was let to the appellant for the purpose of business, the appellant started using the shop also for the purpose of residence since July 1961 and the respondents were, therefore (entitled ) to recover possession of the shop from the appellant under cl. (a) of sub-sec. (1) of S. 13 Clause (k) of sub-sec. (1) of S. 13 also confers a right on a landlord to recover possession of the premises from the tenant if the court is satisfied that the 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 respondents claim to recover possession of the shop under this clause on the plea that the appellant had, without reasonable cause, not used the shop for the purpose for which it was let, namely, business, since July 1961 when he started using it for the purpose of residence. The appellant admitted that he started residing in the rear portion of the shop from July 1961 as his toe had to be operated upon on account of gangrene and he found it difficult to walk to the shop from his residence, but his contention was that he never ceased to use the shop for the purpose of business; he carried on business in the name of M/s India Hardware in the shop up to about 1965 and since about October 1963, business of sole selling agency of M/s Bharat Sanitary Stores in the name of his son and this business was also carried on by him in the shop. The appellant submitted that in the circumstances it was not correct to say that he used the shop for the purpose for which it was let for a continuous period of six months immediately preceding the date of the suit so as to attract the applicability of either clause (a) or clause (k) of sub-sec. (1) of Section 13. The appellant thus disputed the right of the respondents to recover possession of the shop both under clause (a) and clause (k) of sub-section (1) of Section 13.

(3.) The Trial Court found, one consideration of the oral as well as documentary evidence led in the case, that though the shop was let to the appellant for the purpose of business he was using a portion of it for his residence as well and the respondents had therefore, made out a case for recovery of possession of the shop under clause (k) of sub-section(1) of Section 13. The Trial Court accordingly passed a decree for eviction against the appellant. The appellant preferred an appeal to the District Court but the appeal was unsuccessful and the District Court confirmed the decree for eviction passed by the Trial Court. The appellant thereupon preferred a petition in the High Court of Bombay under Article 227 of the Constitution challenging the validity of the decree for eviction passed by the Trial Court and confirmed by the District Court.