DALICHAND VIRCHAND SHROFF DECD Vs. BABULAL RAJMAL

JUDGEMENT

(1.) This is original plaintiffs revision application filed under the amended sec. 29(2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (Bombay Act No. LVII of 1947) which will hereafter be referred to as the Act. It is directed against the decision of the learned Extra Assistant Judge Surat in Regular Civil Appeal No. 39 of 1965 given on August 18 1966 By the said decision the learned Judge has set aside the decree of eviction that was passed by the learned 3rd Joint Civil Judge (Junior Division) Surat in Regular Civil Suit No. 585 of 1962 on December 28 1964 The learned trial Judge decreed the suit on the ground that original defendants Nos. 1 and 2 who are the opponents Nos. 1 and 2 herein and who are the heirs of the original tenant named Rajmal Thanmal who has earlier died on September 8 1960 had vacated the suit premises on or about September 2 1961 and left for good for Rajasthan and do not occupy the suit premises since then without any reasonable cause and thus the case against the defendant Nos. 1 and 2 fell within the purview of clause (k) of sub-sec. (1) of sec. 13 of the Act. The learned trial Judge found that defendants Nos. 3 4 and 5 who are relatives of defendant No. 1 on his wife's side were occupying the suit premises ever since the defendants Nos. 1 and 2 left Surat for their Home State Rajasthan. The learned appellate Judge has accepted the factual findings of the learned trial Judge but has however on a construction of the expression the purpose for which they were let used in clause (k) found that the case against the defendants did not fall within the meaning of clause (k) as the defendants Nos. 3 4 5 are occupying the suit premises for the same purpose namely residence and has dismissed the suit in the appeal. Hence this revision application by the original plaintiffs.

(2.) It appears that a building comprising a ground floor and first floor rooms etc. and an attic situated in Ravapura in Surat was owned by one Dalichand Virchand Shroff original plaintiff since deceased who has died leaving a will. Executors appointed by his will have been joined as representing his estate. The suit premises which are situated on the first floor and an attic were let out to one Rajmal Thanmal of Rajasthan for the purpose of his residence by the original landlord on a monthly rental some 14 to 15 years back. In the year 1952 the said Rajmal had filed Standard Rent Application No. 30 of 1952 for fixation of standard rent. The original plaintiff named Dalichand Virchand Shroff had then filed Regular Civil Suit No. 224 of 1953 against said Rajmal for recovery of possession of the suit premises. Both these proceedings were disposed of by a consent decree on June 30 1965 by virtue of which the original tenant Rajmal Thanmal continued as a statutory tenant on a monthly rental of Rs. 25/which was fixed as the standard rent of the suit premises. Original tenant Rajmal died on September 8 1960 leaving behind him a son and a widow who were respectively appeared as defendants Nos. 1 and 2 in the suit and are opponents Nos. 1 and 2 in the present revision application. The deceased plaintiff had accepted them as statutory tenants. The plaintiffs case as set up in the plaint was that after the death of original tenant Rajmal and since about September 2. 1961 defendants Nos. 1 and 2 have left Surat for Rajasthan and that they have handed over the possession of the suit premises to original defendants Nos. 3 4 and 5 who are in illegal use and occupation of the suit premises ever since. Defendant No. 3 is one Valchand Hansraj who is defendant No. 1s wife's sisters husband. Defendants Nos. 4 and 5 are the sons of defendant No. 3. The plaintiffs case was that the defendants Nos. 1 and 2 had no right to transfer possession of the suit premises to defendants Nos. 3 4 and 5 and such act of defendants Nos. 1 and 2 amounted to subletting assignment or transfer within the meaning of clause (a) of subsec. (1) of sec. 13 of the Act. The averment in plaint paragraph 4 was that the said defendants Nos. 1 and 2 have without reasonable cause ceased to use the premises with effect from September 2 1961 and given over the use of the suit premises to defendants Nos. 3 4 and 5 who are residing therein and doing business. Apparently the latter plea was made to cover the case under clause (k) of sub-sec. (1) of sec. 13 of the Act. ... ... ... ... ... ... ... ...

(3.) The main contention which has been raised before me and on which Mr. S. B. Vakil appearing on behalf of the applicants plaintiffs and Mr. P. D. Desai appearing on behalf of all the defendants opponents including defendants Nos. 3 4 and 5 have addressed me at considerable length is whether on the facts as found by the learned appellate Judge thereby affirming the findings of facts of the learned trial Judge on the point the case against the tenants would fall within the purview of clause (k) of sub-sec. (1) of sec. 13 of the Act. The contention of Mr. Vakil was that the decision of the learned appellate Judge was erroneous in law as it was based on some of the extracted observations of the learned Chief Justice of the Bombay High Court in the unreported decision in Dattatraya Balaji Mahajan v. Narayan Vinayak Bhonde (supra) and that the decision has no application in the instant case. Mr. Desai on the contrary contended that the decision applied with equal force to the facts of the case. Contended Mr. Desai that the purpose for which the suit premises were let out to the original tenant of whom defendants Nos. 1 and 2 are the heirs was residence and that even though the said two defendants had left Surat for good defendants Nos. 3 4 and 5 were using the suit premises for the same purpose viz. the residence for which purpose the premises were let out to the original tenant and therefore the case did not fall within the mischief of clause (k). It is with these rival contentions that I will be mainly concerned in this revision application.