JAYANTILAL KANJIBHAI Vs. RAMESHCHANDRA UTTAMRAM

JUDGEMENT

(1.) This revision application has been referred to the Larger Bench for disposal in the following circumstances : The petitioners are the owners of property bearing Nondh No.258 situated in Ward No.9, Ambaji Road, Surat. The opponent was inducted as tenant of west side portion of the property at the rent of Rs.40.00 per month. According to the petitioners, opponent had paid rent upto July 31, 1975 and as he was in arrears of rent from August 1, 1975, a notice dated November 25, 1975 calling upon him to pay arrears of rent was served. The case of the petitioners was that as the opponent-defendant was not ready and willing to pay rent, they were entitled to get possession of the suit premises on the ground of non-payment of rent. Moreover, according to the petitioners, the defendant had purchased a Bungalow in Ravindra Park Co.op. Housing Society situated at Adajan Road, Surat in the name of his wife and as he had acquired suitable alternative accommodation, he was liable to be evicted under section 13(1)(l) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Act" for short). Under the circumstances, the petitioners instituted Small Cause Suit No.264/76 in the court of learned Additional Judge, Small Cause Court at Surat against the opponent and prayed for decree of eviction against the opponent together with other consequential reliefs.

(2.) The opponent contested the suit by filing written statement at Exh.10. It was mentioned in the written statement that he had paid entire arrears of rent in reply to notice dated November 25, 1975 and as he was ready and willing to pay rent as contemplated by Section 12(1) of the Act, the petitioners were not entitled to get decree of eviction on the ground of arrears of rent. A dispute regarding standard rent was also raised and it was contended by the opponent that the standard rent of the suit premises should be fixed at Rs. 31.00 per month. What was averred in the written statement was that Bungalow situated in Ravindra Park Co.op.Housing Society was purchased by his wife with her own funds and as his wife was not his Benamidar, the petitioners were not entitled to decree of eviction under section 13(1)(l) of the Act.

(3.) In view of the pleadings of the parties, necessary issues for determination were raised by the Trial Court at Exh.11. Oral as well as documentary evidence was led by the petitioners and the opponent in support of their respective cases. On consideration of the evidence, the Trial Court held that the opponent had tendered all the arrears of rent as claimed in the demand notice by Money Order and as the case was governed by the provisions of section 12(1) of the Act, the opponent was not liable to be evicted on the ground of arrears of rent. After taking into consideration the rent of similarly situated adjoining premises, the Trial Court fixed standard rent of the suit premises at Rs.31.00 per month plus education cess at 50%. So far as alternative accommodation is concerned, the Trial Court held that the wife of the opponent had her own source of income from which she had purchased Bunglow No.9 in Ravindra park Co.op.Housing Society and she was not Benamidar of the opponent. It was found that the wife of the opponent after purchasing the bungalow, had let out the same on rent to another tenant and the opponent had no right, title or interest in that Bungalow. In view of these conclusions, the Trial Court held that the petitioners were not entitled to decree of eviction under section 13(1)(l) of the Act. In the ultimate result, the Trial Courst dismissed the suit by judgment and decree dated April 3, 1981.