BABURAO RAGHUNATH BAGAWADE Vs. CHANDULAL HIRALAL SHAH

JUDGEMENT

(1.) This is a second appeal by the original plaintiff and mainly raises the question whether the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act) applies to the suit premises let out for the purpose of residence-cum-shop and involves the meaning of "residence" in the Notification issued on Oct. 18, 1960, by the Maharashtra Government under section 6(2) of the Rent Act. The material facts are as follows :

(2.) The suit premises are a structure consisting of six khans on the ground-floor and six khans on the upper-floor admeasuring 37.3/9 sq. yards situate at Bazar Road at Koregaon village, district Satara. In 1968 one Shrikant Bokil was the owner of the suit premises. Some time in 1968 respondent No. 1 and his son, respondent No. 2, took the said premises on lease from the owner, Shrikant, at a monthly rent of Rs. 30. By a sale-deed dated Aug. 22, 1968, Shrikant sold the premises to the appellant-plaintiff for Rs. 8,000. By his advocate's notice dated Jan. 19, 1969, the appellant terminated the tenancy by the end of Feb., 1969 and called upon the respondents to hand over possession of the premises. By their advocate letter dated Feb. 20, 1969, the respondents alleged that the premises were taken principally for the purpose of residence and their possession was protected under the Rent Act. The appellant, therefore, filed this suit on March 5, 1969 for the possession and arrears of rent of the premises alleging that the suit premises was originally let out by the owner, Shrikant, to the respondent for conducting a shop and storing articles and not for residence and, therefore, the Rent Act was not applicable to the suit premises and that the premises were required reasonably and for bona fide personal use. Respondents contested the suit on the ground that the premises were taken on lease mainly for residence and, therefore, the provisions of the Rent Act applied to the suit premises and their possession of it was protected. The learned trial Judge held that the suit premises were let out principally for running the stationery shop and the temporary use of the upper floor made by the respondents for residence would not change the nature of the lease and, therefore, the Rent Act did not apply to the suit premises. He, therefore, decreed the plaintiff's suit. On appeal the learned Assistant Judge, Satara, reversed the decree and dismissed the suit, inter alia, on the ground that the premises were leased for "residence plus shop" and not for shop only. This appeal is brought by the plaintiff against the said decision.

(3.) Both the appellant and the respondents have assailed the finding made by the lower Court that the suit premises were let out for the purpose of residence-cum-shop. The appellant has assailed it on the ground that the appellate Judge relied upon irrelevant or extraneous circumstance and also overlooked respondents' implied admission that the said premises were leased for running a shop. Thus it is urged for him that the learned appellate Judge visited the suit premises for local inspection and he erred in relying upon the things then noticed by him in the upper-floor of the suit premises for arriving at the conclusion that the upper-floor was meant to be and was in fact so occupied for residence. It is further contended that the learned appellate Judge did not refer, much less take into consideration, the owner-Shrikant's letter dated Aug. 22, 1968 to the respondents stating that the suit premises were leased for shop and the failure of the respondents to send a reply denying the said statement; thus the latter's said conduct amounted to an admission on their part that the suit premises were let out for running shop. On the other hand, Mr. Abhyankar for the respondents, challenged it on the ground that neither side had contended that the suit premises were let out for both residential and business purposes and the learned appellate Judge erred in making; a finding which was inconsistent with either party's case. In my opinion there is no substance in either side's contentions. So far as the inspection of suit-premises by the appellate Judge is concerned it is true that the learned appellate Judge refers to the things noticed by him at that time (See paragraph 10 of his judgment). He has referred to the set up of the ground-floor and upper-floor and also to various articles then found in the upper floor which are required in a regular household. The inspection of a suit property by a Judge does not entitle him to substitute his own view in place of evidence on record; its purpose is only to enable him to appreciate the evidence that the parties might have adduced and test its accuracy. As the main controversy in the suit was as regards the purpose for which the suit premises were let out, evidence was led for the defendants to show that the upper-floor was suited for residential use. Thus, the situation and the set-up of the ground-floor and upper-floor noticed and relied upon by the learned appellate Judge as supporting respondents' case that the upper-floor was let out for residential purpose is unexceptional. It seems, however, that the appellant is right in his contention that the fact that while the appeal was pending the respondents were using the upper-floor which was undoubtedly in their possession for residence and the paraphernalia required for running a regular household were noticed at that time by the learned appellate Judge was not relevant for deciding the purpose for which the premises were originally let out by the owner Shrikant. However, the learned appellate Judge seems to have relied on the household and other things noticed by him only in support of the finding that the setting of upper-floor was suited for residential purpose. Even if it be held that the actual user then found is irrelevant it does not seem to have vitiated the said finding as he has relied on appellant's own evidence also i.e., that in the suit premises there was facility to run a shop on the ground-floor and to stay in the upper-floor. As to the appellant's other contention that there is an implied admission, it has no basis. The respondents have admitted that respondent No. 1 received the said letter dated Aug. 22, 1968 from Shrikant (a copy thereof is at exh. 37) stating that the owner had sold the suit-premises to the appellant and that the lessee should pay rent thereafter to him. It may be noticed that the letter was addressed to respondent No. 1 and was written on the very day on which the sale-deed was executed in favour of the appellant. Thus, the letter was addressed mainly to inform respondent No. 1 to pay the rent to the appellant. Further mere failure to reply to the said letter and deny the statement therein, i.e. that the premises were let out for residence, did not in the circumstances of the case amount to an admission on the part of respondent No. 1 that the suit premises were let out to him for residence only. Lastly very little weight could be attached to the said statement,in the letter, particularly when the appellant did not examine Shrikant as his witness though he was easily available. Therefore the appellant's above contention also fails.