CAITAN D SOUZA Vs. JERBAI S C DINSHAW

JUDGEMENT

(1.) This petition under Article 227 of the Constitution arises out of the Rent Act (Bombay Act No. 57 of 1947) proceedings instituted by the landlord - respondents Nos. 1 to 3 against the original petitioner - tenant, since deceased. Possession of the premises from the tenant was sought to be obtained on the ground that the tenant's wife was convicted for using the premises for immoral and illegal purposes as contemplated in Section 13 (1) (c) of the Rent Act. This suit was decreed by the trial Judge on 4-2-1966 in RAE Suit No. 4770 of 1962 and the appeal by the tenant was dismissed by the Appellate Bench of the Court of Small Causes at Bombay on 27-6-1966.

(2.) It appears that the tenant has been occupying the premises in dispute for about 35 years before the institution of the proceedings. The tenant's wife was admittedly convicted for offence under Section 66 (1) (b) of the Bombay Prohibition Act on 19-7-1962. Details of the circumstances under which she was tried and convicted are not directly proved, as the plaintiff remained content with examining one bill collector as his witness and the defendant led his own evidence saying that he did not know anything about the criminal case, though admitted that his wife was convicted. However, the judgment passed by the Presidency Magistrate, 14th Court, Bombay (Exhibit 'A') has gone on record without objection, though this judgment could not have been strictly admissible in evidence for proving the facts constituting the offence, as held in AIR 1955 SC 566, particularly when the tenant was not even party to the case. It appears from the judgment that the premises were raided by the police on 22nd July 1961. Four persons in addition to the wife of the tenant were found inside the room at the time of the search. In the kitchen under the table one pint bottle bearing the label of Black and While Whisky, containing .09 litres of illicit liquor was found. Near the 'mori' was found an aluminum pot containing 1.52 litres of lukewarm water smelling of alcohol. One red coloured hot - water bag smelling of alcohol and a glass smelling of alcohol from the said premises were also seized. It is on these facts that five accused were tried for an offence under Section 66 (1) (b) read with Section 81 of the Bombay Prohibition Act. The contents of the vessel were not sent for Chemical Analysis. However, another bottle containing .09 litres of illicit liquor was sent to the Chemical Analyser and was found to contain ethyl alcohol. The learned Magistrate acquitted other four accused but convicted the wife of the tenant only for an offence under Section 66 (1) (b) for possession of .09 litres of illicit liquor and sentenced her to one days' simple imprisonment and to pay a fine of Rs. 250/-. The trial Court relied on 56 Bom LR 836 = (AIR 1955 Bom 111) (Jayantilal Motilal Pathak v. Dayaram Ranchhoddas Soni) and on the strength of this judgment in Criminal case alone held that these facts attracted the provisions of Section 13 (1) (c) of the Rent Act and the tenant was liable to be evicted. The same finding has been confirmed by the Appellate Bench.

(3.) Mr. Lovekar, the learned advocate appearing for the petitioner - tenant, contends that conviction of the wife for offence under Section 66 (1) (b) cannot render the tenant liable to eviction and Section 13 (1) (c) cannot be said to have been intended to hold the tenant vicariously liable for the act of his wife or any person residing with him. Answer to this argument much naturally depends upon the true construction of the section. Clause (c) can be divided into three sub - clauses. So divided, Clause (c) of Section 13 (1) reads as follows :-