RAMAKANT YESHWANT BHANUSHALI Vs. KRISHNA HARI BHAVE

JUDGEMENT

(1.) PETITIONERS in this case are the original defendants and the respondent is the landlord of the suit premises consisting of two rooms and a kitchen admeasuring about 290 sq. ft., block No. 8, first floor, Bhave Building, Gorai Road, Borivli. The aforesaid premises was given on rent by the respondent to the first petitioner by agreement dated April 29, 1963. It is the case of the plaintiff that he constructed the said Bhave building and while the said building was under construction he obtained construction loan of Rs. 4,000/- from original defendant No. 1 by the aforesaid agreement and also agreed to give the suit premises on rent of Rs. 50/- per month. By the said agreement it was also agreed that out of the said consideration of Rs. 50/- per month Rs. 20/- were to be adjusted towards the repayment of the loan of Rs. 4,000/-. It is further case of the present respondent that the suit premises was given to petitioner No. 1 on the tenancy basis. However, some time in the year 1971-72, petitioner No. 1 shifted to some other premises and sublet the premises to defendant Nos. 2 to 4. The respondent, therefore, filed suit being R.A.E. Suit No. 2397 of 1972 in the Court of Small Causes at Bombay. In the said suit the respondent prayed for a decree for possession on the ground that he requires the said suit premises for his bona fide personal use. Secondly, on the ground that the tenant-petitioner No. 1 had obtained an alternative suitable premises. Thirdly, on the ground of subletting and also on the ground that the petitioner has committed breach of condition of the tenancy agreement. It is the case of the petitioners that in fact petitioner No. 1 had obtained the suit premises for the use and occupation of his joint Hindu family and that petitioner Nos. 2 to 4 are in fact members of his joint Hindu family. Therefore, there is no question of any subletting. The petitioners further contended that in fact the said suit premises was not taken by petitioner No. 1 in his individual capacity, but the same premises was taken on rental basis from respondent by petitioner No. 1 for and on behalf of his joint Hindu family. Therefore, even if petitioner No. 1 has obtained alternative suitable premises and since petitioner No. 4 has continued to occupy the suit premises the respondent is not entitled to ask for a decree of possession under Section 13(1)(i) of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act). Further it was contended that the claim of the respondent that he requires the suit premises for his bona fide personal use is mala fide and is liable to be dismissed. Lastly, it was contended that since the suit premises was taken for and on behalf of the joint Hindu family even if petitioner No. 1 has shifted the residence to some other premises he has not committed any breach of the agreement in view of the fact that petitioner No. 4 has continued to occupy the said suit premises.

(2.) THE trial Court after allowing both the sides to lead evidence and after hearing both the sides held that the suit premises was taken on rent by petitioner No. 1 only and since petitioner No. 1 has obtained alternative suitable premises, respondent-plaintiff is entitled to get decree of possession under Section 13(1)(i) of the Bombay Rent Act. Trial Court also held that since the suit premises was taken on tenancy basis by petitioner No. 1 from the respondent in his individual capacity, failure on his part to surrender the said premises to the plaintiff after shifting to other premises and by allowing other defendants to use the said premises, would amount to breach of the agreement and, therefore respondent-plaintiff is entitled to a decree of possession on this ground also. The trial Court has, however, rejected the claim of the respondent-plaintiff on the other ground viz., that he required the suit premises for his personal bona fide use and that petitioner No. 1 sublet the suit premises to petitioner Nos. 2 to 4. It is against the said decision dated March 23 and 26, 1987 given by the trial court the petitioners preferred Appeal No. 326 of 1987 in R.A.E. Suit No. 2397 of 1972 and the lower Appellate Court by its judgment and decree dated December 18 and 19, 1989 dismissed the said appeal preferred by the present petitioners. It is against this decision of the lower Appellate Court the petitioners have preferred the present writ petition.

(3.) AS against this Mr. Manon, the learned Counsel for the respondent, contended that from the evidence on record the respondent-plaintiff has clearly established that the suit premises was taken on rent by petitioner No. 1 in his personal capacity and not for and on behalf of his joint Hindu family. Admittedly, in the year 1971-72 petitioner No. 1 shifted to some other premises and since it is not the case of the petitioners that the said premises where petitioner No. 1 has shifted is not suitable, the decree of eviction is inevitable on ground of obtaining alternative suitable premises and also on the ground of breach of tenancy agreement. Mr. Menon, further contended that since both the trial Court as well as the lower Appellate Court have concurrently held on the aforesaid issues, this Court under Article 227 should not interfere as the said finding arrived at by the lower Courts is a finding of fact.