SHANTARAM KESHAV Vs. PRABHAKAR BALWANT

JUDGEMENT

(1.) THIS is an application for revision from a suit tor ejectment. The Opponent landlord had sued the applicant for recovery of possession of premises on the ground that they were reasonably and bona fide required by the Opponent ior his own use. Before passing a decree in ejectment, under sectioa 13 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the court has to be satisfied that greater hardship would be caused by passing the decree than by reiusing to pass it, and ia order to determine that question it had to consider all the circumstances including the question whether other reasonable accommodation was available ior the landlord or the tenant. The landlord appears to have shown at the trial that there was certain accommodation available to the tenant. That accommodation was not available at the rent which the applicant was paying, but the trial Court as well as the appellate Court have found, after taking into consideration all the circumstances, that in view of the availability of that accommodation greater hardship was likely to be caused to the Opponent than to the applicant. The applicant did not accept that accommodation, and tha decree in eviction was passed. He went in appeal and it appeared that at the time when the matter was being heard before the appellate Court, the accommodation which was shown to have been available at the time of the trial was no longer available. Thereupon some attempts appear to have been made to obtain further accommodation for the tenant, but I will not be concerned with that in the present case, because the appellate court has expressed the view that the accommodation which is to be taken into consideration as being available for the tenant or the landlord is the accommodation which was available at the time of the passing of the decree of the trial Court, and that it does not make any difference if that accommodation ceased to be available later. It did not consequently go into the question whether alternative accommodation was available to the applicant at the time of its own judgment and dismissed the appeal.

(2.) THE applicant has come in revision and the only point which falls for determination before me is what is the time at which the availability of the accommodation either to the landlord or tenant has got to be taken into consideration under section 13 (2) of the Rent Act.

(3.) NOW, in my opinion, there can only be one reply to this question, because even though the present tense has been used the time with reference to which it is used is obviously the time for the passing of the decree for eviction. That necessarily means the decree which the trial Court is about to pass. It is not denied that that Court must necessarily consider whether accommodation was available to the landlord or the tenant with reference to the time when it was proposing to pass a decree. It is said however that once there was an appeal from that decree the whole matter was before the appellate Court and when the appellate Court had to consider the question whether the decree of the trial Court should be confirmed or not what it had to take into consideration was whether alternative accommodation was available to the landlord or tenant at the time of the passing of the appellate decree. Now I fail to understand how the word 'decree' in section 13 (2) could possibly mean at the trial the decree of the trial Court and in appeal the decree of the appellate Court. It must necessarily mean the decree oi the trial Court. It. may be nf course that for certain purposes when the decree in a suit is appealed from that decree merges in the decree of the appellate Court and it is the decree of the appellate Court which will be executable; but that does not make any difference. We are concerned in this case with the question of interpretation of the word 'decree' in section 13 (2), and that can only mean the decree for eviction which is passed by the trial Court.