AVADHUT HARIHAR DHARKE Vs. BABAN BUVA BHUTKAR

JUDGEMENT

(1.) THE short question which needs to be examined in this case is whether in the facts and circumstances of the present case the courts below were justified in decreeing the suit for possession on the ground of section 13 (1) (k) of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947 hereinafter referred to as "the Bombay Rent Act" ).

(2.) THE admitted facts are that the premises were let out to the petitioner on August 15, 1957. The petitioner enjoyed the said premises as a monthly tenant along with his family members, which inter alia, consisted of his sister Tulsabai. However, the sister got married in the year 1960 and since then she started living along with her husband in the suit premises along with petitioner. It is stated by the respondent-plaintiff that the petitioner secured alternate accommodation and started living in the said accommodation since January 1, 1979. The respondent plaintiff, in the circumstances, issued notice to the petitioner-defendant on May 3, 1979 calling upon the petitioner to handover vacant and peaceful possession of the suit premises, chiefly, on the ground that the premises were no longer required by the petitioner as he has secured alternate accommodation elsewhere. The said notice was replied by the petitioner on May 14, 1979 whereby the petitioner refused to handover the possession of the suit premises. The respondent accordingly instituted suit for eviction against the petitioner on July 16, 1979, praying for possession of the suit property under section 13 (1) (k) of the Bombay Rent Act for non-user of the suit premises by him for a period of more than six months preceding the institution of the suit. Besides the said ground of non-user, the suit was also filed on the ground of default. However, the ground of default has been negatived by the courts below. As such, the only question which requires to be examined in the present case is whether the decree could have been made under section 13 (1) (k) of the Bombay Rent Act.

(3.) LEARNED Counsel for the petitioner submits that it is only when the premises are kept in a locked and totally non-used condition that a decree under section 13 (1) (k) of the Bombay Rent Act can be made. According to him, there is no other situation which can attract the said provision. In support of this submission, reliance has been placed on the judgment of this Court in the case of (Kasturchand Panachand v. Yeshwant Vinayak), 1980 Bom. C. R. 424 : A. I. R. 1980 Bombay 270. Reliance has been placed on paragraph 5 of the said judgment wherein, according to learned Counsel for the petitioner, it is held that only in the case of total non-user of the premises for which they were left out that the provisions of section 13 (1) (k) of the Bombay Rent Act would be attracted.