FATEMAHMED ABA Vs. JUSEB GANI MEMON AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the decree passed by the learned District Judge, Amreli in Regular Civil Appeal No. 16 of 1971 of evicting the defendant appellant on the ground that he was not entitled to benefit of Section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as the Act). To state shortly the facts are that the plaintiffs-respondents are the owners of one residential house situated at kodinar. The house was let out by the owners to one Memon Aba Alimohmad on November 1, 1959 for a period of one year at the monthly rent of Rs. 9/-. Memon Aba Alimohmad is the father of the present appellant. The plaintiffs alleged that in the year 1963 said Aba Alimohmad went to Pakistan with an intention to permanently leave India and to stay in Pakistan. In the year 1964-65 his wife also went to Pakistan Said Aba Alimohmad died in Pakistan on December 17, 1968. In view of these facts, it was alleged that the appellant was a trespasser as he was not entitled to benefit of Section 5(11)(c)(i) of the Act and possession of the premises with measne profits was claimed in the suit. The appellant resisted the suit on two grounds; the first ground was that he was accepted as a tenant after his father left India and, therefore, no decree of eviction could be passed against him; the second contention of the defendant-appellant was that he was residing with his father since childhood, that his father continued to be the tenant of the premises till his death and as he was residing in the premises at the time of his death or within months prior to his death he was entitled to the benefit of the provisions of Section 5(11)(c)(i) of the Act. The learned trial Judge accepted the defence case and dismissed the suit. The appellate Court came to the conclusion that Memon Aba Alimohmad left India to go to Pakistan on April 20, 1965 and never returned back to India and, therefore, it could not be said that he had the intention to return to India for residence after he left India. As Memon Aba Alimohmad could never be said to reside in India from 1963, the question of the defendant residing in the suit premises at the time of death or three months prior to his death did not arise. In short the appellate Court held that the defendant was not entitled to the benefit of Section 5(11)(c)(i) of the Act and decreed the suit of the plaintiffs together with the mesne profits. The learned appellate Judge passed a decree of Rs. 324/- for mesne profits due for a period of three years prior to the suit. It is this decree which is challenged in this appeal.

(2.) Mr. Chokhawala, appearing for the appellant submitted that the finding of the Courts below is that the defendant resided with his father since his childhood and was residing with his father when his father left India in 1963. It is no doubt true contended Mr. Chokhawala that Aba Alimohmad stayed in Pakistan from the year 1963 till his death, that is, for a period of about 5 years, but for the that reason it cannot be said that Aba Alimohmad never intended to return or abandoned his Indian residence. The defendant was residing with his father and even though Aba Alimohmad left India in the year 1963 the latter should be considered to have been notionally residing at the premises through the members of his family and the defendant would be entitled to the benefit of Section 5(11)(c)(i) of the Act. It was contended by Mr. Chokhawala that the Act is a beneficial legislation intended to protect a person in possession of the premises in view of the scarcity of residential accommodation and therefore, it should be interpreted in such a manner as to extend the benefit and thus carry out the beneficial legislative intent to protect a person in possession of the premises. Mr. Chokhawala did not press the claim of the defendant that he was a direct tenant of the premises because both the Courts have rejected the said plea of the defendant. The question whether the defendant-appellant was a direct tenant or not is a question of fact. Both the Courts below have appreciated the evidence on record and recorded a finding that the said plea of the defendant could not be accepted. This being second appeal, Mr. Chokhawala did not dispute the said finding of fact.

(3.) Mr. Chokhawala emphatically argued that the defendant is entitled to the benefit of Section 5(11)(c)(i) of the Act. It is necessary, therefore, first to refer to the relevant provisions of Section 5(11)(c)(i) of the Act. The word 'tenant' is defined by Section 5(11) of the Act and the said definition so far relevant, defines 'tenant' as any person by whom or on whose account rent is payable for any premises and includes in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court. These are the provisions of Section 5(11)(c)(i) of the Act. A bare reading of these provisions indicates that mere residence in the suit premises does not create any right unless it is proved that the person claiming the rights is a member of the family of the deceased residing with him at the time or within three months immediately preceding the death of the deceased. The benefit of these provisions could be claimed by the members of the tenant's family residing with the tenant at the time or within three months immediately preceding the death of the tenant. The important words are "residing with the tenant". The dictionary meaning of the word 'reside' is to settle or dwell permanently or for a considerable time at a particular place. The correct meaning of the word 'reside' has to be gathered from the context in which it is used. The relevant provisions of the Act must read to find out the correct meaning of the word. Section 13(1)(k) of the Act provides so far relevant that a landlord shall be entitled to recover possession of any premises 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. Section 13(1)(1) provides so far relevant that a landlord shall be entitled to possession of any premises if the Court is satisfied that the tenant after the coming into operation of the Act has built, acquired vacant possession of or has been allotted a suitable residence. One thing is certain, therefore, that the Act protects the tenant from eviction if the premises is continuously used and he has not stopped the user without reasonable cause. The intention of the legislature is to protect the tenant who is reasonably using the rented premises. The provisions of the Act prohibit sub-letting of residential premises and, therefore, the premises let out to him has to be used by the tenant. Section 5(11)(c)(i) of the Act protects any member of the family of the tenant provided he resided with the tenant at the time of, or within three months immediately preceding the death of the tenant. The residence which can protect a member of the family must be some thing more than occupation. Such residence must not be casual. There must be physical living rather than some technical living in the premises. A person ordinarily is resident of a place where he actually carried on the business. A person can be said to have a residence where his wife resides. The residence may be actual or physical; residence may be constructive or technical. If a family of a person is living at one place and he himself is living at another place, his legal residence is where his family resides and the actual residence is where he resides. The words "residing with" as used in the definition of the word "tenant" imply that any member of the family must also be residing with the tenant in the premises. If a tenant has abandoned his residence then the members of the tenant's family cannot be said to be residing with the tenant. In the present case the learned appellate Judge came to the conclusion that Aba Alimohmad had abandoned his residence because he had gone to Pakistan in the year 1963 and never returned till his death in 1968. Mr. Chokhawala challenged this finding of the learned Judge and contended that mere long residence at another place could not alone be a circumstance to indicate that the person had no intention to revert to the premises for residence. To this extent Mr. Chokhawala is right. But in the instant case there is positive evidence which the learned appellate Judge has not taken into consideration. It is undisputed that Aba Alimohmad had left India for Pakistan on April 20, 1963. The evidence is that he had left India on Indian Passport and according to the defendant-appellant he had gone to Pakistan to see the relatives, that is, for a temporary purpose. It is an admitted case that Aba Alimohamad never returned to India till his death, that is, till December 17, 1968. The wife of Aba Alimohmad when he was in India was doing Pan-Bidi business at Lodinar. At that time when he left his business of Pan-Bidi was going on. The business was continued for one year after he went to Pakistan. Aba Alimohmad had hired two shops. The appellant handed over possession of one shop on November 2, 1964 to the landlord. The possession of the second shop was handed over to its owner in the year 1968. Noormohmed one of the sons of Aba Alimohmad had gone to Pakistan in the year 1960. From this evidence it is clear that Aba Alimohmad left India in the year 1963 and never returned to India till his death even though he had left India for a temporary purpose. The wife of Aba Alimohmad left India in the year 1964-65 also for a temporary purpose. She joined her husband in Pakistan and both of them never returned to India after had left. The business of Aba Alimohmad was closed within a short time after he left India. The cumulative effect of all these circumstances is that at least after the year 1965-66 Aba Alimohmad had no intention to return back to India and it cannot be said that he resided in India after he entertained the aforesaid intention. As a matter of fact Aba Alimohmad intended to reside in Pakistan after the year 1965-66 and then there arises no question of his notional residence through the members of his family. If Aba Alimohmad intended to reside in Pakistan how can it be said that he was notionally residing in India through the members of his family It is true that the provisions of the Act are enacted to benefit tenants and to protect them from eviction. This legislative intention has to be carried out but at the same time doors should not be opened to confer benefit on those whom the legislature did not intend to do so. The requirement of Section 5(11)(c)(i) of the Act is that any member of the tenant's family must be residing with him at the time of three months prior to the death of the tenant. In this case as pointed out earlier Aba Alimohmad ceased to reside in the premises in the year 1965-66. If he did not reside in the premises after the said period, how can it be said that the appellant a member of his family resided with him at the time of his death or three months prior to the date of the death It is for this reason that the defendant is not entitled to the benefit of Section 5(11)(c)(i) of the Act. Under the circumstances the decree of eviction passed by the learned appellate Judge cannot be said to be erroneous.