KAMAL CHINTAMAN MITHARI Vs. GANPATRAO RAMCHANDRA POWAR

JUDGEMENT

(1.) This appeal raises an interesting question under Section 5 (11) (c) of the Bombay Rents Hotel and Lodging House Bates Control Act, 1947 (hereinafter referred to as the "said Act"), The facts necessary for appreciation of the contentions raised in this appeal lie within a narrow compass. The dispute in 1he appeal relates to 3 house in E Ward, Kolhapur, bearing City Survey No. 692/1-2. This house belonged to one Suresh Vasudeo Dongarkar, who solo the same to the plaintiff, who is the respondent herein, on 29th November 1964. One Chintamani Mithari had rented the said house, which I propose to refer hereafter as "the said premises" from Suresh Dongarkar at a rent of Rs. 10/- p. m. He was what has come to be known as a statutory tenant in respect of the said premises. The said Chintamani died in or about 1962. In 1965 the plaintiff instituted a suit being Regular Civil Suit No. 310 of 1S65 in the Court of the Joint Civil Judge, Junior Division, Kolhapur, against one Muktabai Nikam, the mother of the appellants before me. The case of the plaintiff was that Muktabai was the mistress of the said Chintamani and was living in the said premises with Chintamani. After the death of the said Chintamani, the defendant continued to stay in the said premises with her children. It was contended by the plaintiff that on the death of Chintamani, the possession of Muktabai. the defendant, became wrongful and that she was a trespasser. After serving a notice on the defendant, the plaintiff filed the said suit for possession of the said premises. The defendant, Muktabai. in her written statement raised several contentions with all of which I am not concerned here. It was, inter alia, contended by her that she was the legally married wife of the deceased Chintamani and it was denied by her that she wag a trespasser in the said premises. The learned. Joint Civil Judge held that the plaintiff had failed to prove that the defendant was a trespasser in respect of the said premises, although he observed that there was no satisfactory evidence on record about the marriage between the defendant and Chintamani. It was held by him that even assuming that the defendant was a mistress of the said Chintamani, as she wag staying with Chintamani in the said premises along with her children at the time of Chinta-mani's death, she was a "tenant" in respect of the said premises in view of the provisions of Section 5 (11) (c) of the said Act. The plaintiff preferred an appeal in the District Court at Kolhapur being Civil Appeal No. 428 of 1966. This appeal was disposed of by the learned Extra Assistant Judge, Kolhapur. It was held by the learned Assistant Judge that the defendant had failed to prove that she was the legally wedded wife of the said Chintamani Mithari. It was held that she was a mistress in the exclusive keeping of the said Chintamani and could not be regarded as a tenant in respect of the said premises within the meaning of the said term in Section 5 (11) (c) of the said Act. It was, however, made clear by the learned Assistant Judge that he did not express any opinion about the rights, if any, acquired by the illegitimate children of the said Chintamani, who were admittedly staying in the same premises along with their mother, the defendant. This shows that the learned Assistant Judge has not made any observations regarding the rights, if any, of the appellants, in their capacity as the illegitimate children of the deceased tenant, Chintamani, in the said premises, The learned Assistant Judge allowed the appeal and decreed the suit filed by the plaintiff. It is against this judgment and order that the defendant came up by way of this appeal to this Court.

(2.) It may be mentioned that during the pendency of this appeal, the defendant died and the appellants have come on record as her heirs and legal representatives,

(3.) As the arguments in the appeal turn mainly on the provisions of Clause (c) of Sub-section (11) of Section 5 of the said Act, it might be useful to set out the relevant provisions of Sub-section (11) as they stood at the meterial time. These provisions were as follows : " 'tenant' means any person by whom or on whose account rent is payable for any premises and includes-- (a) xxxxx (aa) xxxxx (b) xxxxx (c) any member of the tenant's family residing with him at the time if his death as may be decided in default of agreement by the Court."