LAWS(GJH)-1998-3-87

RAMANLAL BECHARBHAI TAILOR Vs. CHAMPAKLAL NANALAL MODI

Decided On March 18, 1998
Ramanlal Becharbhai Tailor Appellant
V/S
Champaklal Nanalal Modi Respondents

JUDGEMENT

(1.) xxx xxx xxx,

(2.) Necessary facts in brief may be stated. There is a building bearing Municipal Census No. 557/A situated in Nava Bazar Naka, Fatehpura area in Vadodara City. It is three-storied building. The same belongs to the opponent. The first and second floors of that building (hereinafter referred to as "the suit premises') are let to the present petitioner at the monthly rent of Rs. 15/-Though the petitioner had to pay the amount of rent regularly he did not do so. He was found to be in arrears of rent from 1st June 1972. The opponent knew that in Alkesh Society, the petitioner had acquired another suitable accommodation purchasing the building. He, therefore, on 6th May 1975, gave notice and called upon the petitioner to pay the amount of rent that had become due and hand over peaceful and vacant possession of the suit premises. The petitioner paid no heed, on the contrary, he came out with the case that he was not at all in arrears of rent and had not acquired another suitable premises as alleged. With no option, therefore, the opponent filed Regular Civil Suit No. 2940 of 1975 before this Small Causes Court at Vadodara on 16th June 1975 and prayed for the decree of eviction on the grounds of non-payment of rent, and acquisition of suitable premises by the petitioner. The petitioner on being served with the summons appeared before the Lower Court and filed his written statement at Exh. 11, denying every allegation levelled against him. Necessary issues were then framed at Exh. 13 on 15th July 1996. Appreciating the evidence before him, the then learned Small Causes Court Judge reached the conclusion that the opponent had establish the case he had pleaded in the plaint. He, therefore, passed the decree of eviction on 25th March 1980. Being aggrieved by the Judgment and decree passed by the Trial Court, the petitioner preferred an appeal being Regular Civil Appeal No. 182 of 1980 in the District Court at Vadodara. The same was assigned to the then learned Joint District Judge at Vadodara, who hearing the parties on merits dismissed the appeal on 16th December 1981. The petitioner who also failed before the Appellate Court has preferred this Revision Application, challenging the legality and validity of the judgments and decree passed by both the courts below.

(3.) The learned Advocate representing the petitioner has confined to the only point, tapering off his submissions, namely acquisition of suitable premises. It may be stated, at this stage, what is the case of the opponent. According to him, prior to the date of the suit, the petitioner enrolled his name as the member of Alkesh Co-operative Housing Society (for short 'Alkesh Society') and got booked a Bungalow No. 20-B. The Alkesh Society was to construct several bungalows for those who had become its members. After the construction was over, the society put its members into the possession of their respective bungalows. The petitioner was put in the possession of the Bungalow No. 20-B, at any time prior to October 1974, but to frustrate his claim, the petitioner shrewdly sold out the said bungalow No. 20-B to Shri Jaynarayan Vidyashanker Dave. In the records of the Alkesh Society, necessary changes were made passing the Resolution No. 3 (1) on 3rd October 1974. Thereafter, during the pendency of the suit on 17th November 1976, the petitioner purchased another four storied house bearing Survey No. 228/1, situated in Asrafkhan Dahela on the road between Champaner Gate to Nani Chhipwad in Vadodara City. That house in Nani Chhipwad is one and half time bigger than the suit premises and in all respects suitable to the petitioner. Under Section 13 (1) (I) of the Bombay Rent, Hotels & Lodging House Rates Control Act, 1947 (hereinafter referred to the "Bombay Rent Act"), he is entitled to the decree of eviction. In view of such case advanced, which has found favour with both the courts below, the petitioner has come out with the case that he had merely enrolled himself as the member of Alkesh Society, but, unfortunately later on he could not make the payment he had to, by instalments, for want of necessary fund, and therefore, he got his booking cancelled. Consequently, the Society had passed the resolution allotting the bungalow, which was under construction, to Shri Jaynarayan Vidyashanker Dave. He never got the possession of the bungalow and never occupied the same. Before the construction thereof was over he had got booking cancelled. Thus, he had not acquired the premises as alleged. No doubt, after the suit was filed, he on 17th November 1976, purchased the house in Nani Chhipwad, but when the house was purchased subsequent to the date of the suit, the ground of acquisition of the suitable premises available under Section 13 (1) (1) of the Bombay Rent Act, for seeking the decree of eviction was not available to the respondent. The learned Advocate representing the petitioner then drew my attention to a decision of this Court rendered in the case of Shivlal Nathuram Vaishnav v. Harshadrai Haribhai Oza, 21 (1980) G.L.R. 99, wherein, it is held that, whenever the landlord filed the suit for possession of the premises let on the ground that the tenant has acquired another suitable premises, the cause of action must exist at the time of notice and also at the time of filing of the suit. If the tenant, thereafter disposes of the acquired premises, or any other way transfers the same during the pendency of the suit, the tenant cannot get the protection of the Bombay Rent Act. What is sought to be canvassed is that when the suit was filed on 16th June 1975 the petitioner had not acquired any premises, and therefore, there was no cause of action to continue with the suit or to file the suit, and the suit on that ground was liable to be dismissed. This Revision is also, therefore, on that ground is required to be allowed and the decree passed by both the Courts below are required to be set aside.