RADHABAI DOLATRAI DAVE Vs. PADMA KILAWALA

JUDGEMENT

(1.) THIS appeal by the tenants is directed against the decree for their eviction from a residential Hat in Vile Parle Bombay. The premises in question was taken on rent by one Dolatrai Dave, who died during the pendency of the present suit. The appellants are his heirs and legal representatives. The plaintiff -landlady was occupying another Hat in the same building and according to her case she bonafide required additional space as her children grew up. She, therefore, initiated the present eviction preceding and also pleaded that the tenant's family had acquired another residential Hat, a little bigger in size, in Andheri, Bombay and had shifted there. The suit was filed in 1966. The defendant denied the plaintiff's assertion in regard to bonafide requirement. With respect to the acquisition of Andhcri Hat it was stated that the same was acquired personally by Bharat Kumar, the present appellant No\ 3 and since he was transferred from Bombay to Kota in the course of his service, the other members of the family occupied the same and paid the rent. Their further case, now put forward is that Bharat Kumar has since retired (in 1987) and has come back to Bombay and occupied the Andheri flat. It is submitted that the other members of the family have no place to live except the Vile Parle flat.

(2.) BESIDES the ground of bonafide requirement of the landlord, two other provisions in the Bombay Rent Act are relevant in the present context. Under section 13(1) (k) the landlord is entitled to claim eviction of the tenant who ceases to occupy the premises in question for a period of six months immediately preceding the suit. Under section 13 (1) (1) eviction can be claimed on the ground of the tenant acquiring another suitable residential accommodation. The trial Court dismissed the suit, but the appeal by the landlord respondent was allowed and decree for eviction was passed in her favour. The High Court has refused to interfere with the finding and judgment of the appellate Court.

(3.) MR . U.R. Lalit, the learned counsel for the appellants, has strenuously contended that the. Andheri 11at having been acquired by Bharat Kumar, the ground under section 13 (1) (1) is not available to the landlord against the other members of the appellant's family and the suit ought to have been dismissed. He has also urged that so far the question of non -user of the premises for more than six months is concerned, it cannot be allowed to be raised by the landlord because the relief of eviction was not claimed on the ground mentioned in section 13 (1) (k).