BHUPATRAI MAGANLAL GHIA Vs. RAJARAM GHAI ORS

JUDGEMENT

(1.) This is a landlord's petition under Article 227 of the Constitution against the decision of the Appellate Bench of the Court of Small Causes allowing defendant's appeal and dismissing the plaintiff's claim for possession of the suit premises.

(2.) It is not necessary for the purpose of this petition to enumerate all the facts in detail. It is enough to state that the ground-floor of the building, known as "Ghia Mahnsion", on Carmichael Road, Bombay, was let out to respondent No. 1 on a monthly rent of about Rs. 426/-. The premises consisted of 28 rooms the total area of which was 5570.18 sq.ft. At the relevant time when the premises were in his occupation, the family of respondent No. 1, consisted of himself, his wife and his daughter. On 29th August 1961 notice to quit was given by the petitioners to respondent No. 1 terminating his tenancy on various grounds, one of the grounds being that the suit premises were let out by the petitioners to respondent No. 1 for residential purposes only and that he was using them for non-residential purposes. As respondent No. 1 did not comply with the notice, a suit was filed in October 1961 by the plaintiffs on various grounds one of which, as stated earlier, was the change of user, namely, that the premises were let out for residential purposes while respondent No. 1 was using the premises for non-residential purposes, I. e., that he was inducting a number of persons as boarders on those premises. While the suit was pending, respondent No. 1 inducted between October 1961 and March 1964, a number of persons as boarders who were shown as defendants Nos. 4 to 10. Issues were framed by the learned trial Judge and the parties led evidence and on considering all the material that was placed by the parties before him, the learned trial Judge found that the plaintiffs had established that the suit premises were let out for residential purposes and respondent No. 1 was using them for non-residential purposes, namely, he has been inducting a number of persons as boarders and lodgers on the suit premises. Consistent with these findings, the trial Court decreed the plaintiffs' claim on 28th October 1965. Aggrieved by the decision, respondent No. 1 (defendant No. 1) alone filed an appeal on 20th January 1966. He obtained a conditional stay on 18th April 1966. As he did not fulfil the conditions of the stay, namely payment of arrears and costs of the trial Court, the stay was vacated and the decree was executed by the petitioners who obtained on 5th July 1966, possession of 51/2 rooms from the defendant No. 1. Between May 1967 to January 1968 possession of some more rooms was obtained. The possession of the remaining portions was obtained from various obstructionists who claimed to be sub-tenants, between January 1968 to April 1968. the appeal was heard by the Bench of the Small Cause Court who confirmed the findings of the trial Court that the suit premises were let out for the purposes of residence only but reversed the finding regarding the change of user of the premises. The Appellate bench held that respondent No. 1 was not using the premises for business purposes. The Bench held that respondent No. 1 was deriving any income more than the rent that he was paying. The Bench further observed that mere inducting of a few and occasional paying-guests or boarders would not amount to carrying on business on those premises. The Bench held that respondent No. 1 has not changed the nature of the user of the premises for which they were let out. The bench, therefore, allowed the appeal and dismissed the claim of the petitioners for possession. It is against this judgment that the presence petition has been filed.

(3.) Mr. Sarobjee, the learned Counsel for the petitioners, urged that the Appellate Court has committed an error in holding that it was necessary for the petitioner to prove that the respondent-tenant derived profit or received monetary consideration from the boarders and the lodgers. he further submitted that even on facts there is enough material to show that respondent No. 1 has been doing this as business, inasmuch as, he has been inviting boarders and lodgers by issuing advertisements in the newspaper and also by responding to the advertisements issued by reasons who wanted accommodation. He also submitted that there is evidence on record to show that he has been receiving much more income than the rent that he was paying. In my view, his submissions are well founded and deserve to be accepted. So far as the finding that the suit premises were let out for the purpose of residence, the Appellate Bench observed: