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Shantaram Keshav Vs. Prabhakar Balwant and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1082 of 1955
Judge
Reported inAIR1957Bom45; (1955)57BOMLR1116
ActsBombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Sections 13(2)
AppellantShantaram Keshav
RespondentPrabhakar Balwant and anr.
Appellant AdvocateD.P. Madan, Adv., i/b., Unwalla & Co. Attorneys
Respondent AdvocateY.B. Rege, Adv., i/b., Thakordas and Madgaonkar Attorneys
Excerpt:
.....that accommodation greater hardship was likely to be caused to the opponent than to the applicant. 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......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.4. it.....
Judgment:

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 Hates 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.

4. It is contended however that in that case the tenant would have to suffer this hardship that he would have to accept the accommodation which it was shown was available and thereby lose his right of appeal, or in the alternative refuse to accept the accommodation even though the frial Court was of the view that it was suitable for the tenant taking into consideration all his circumstances and then to face the difficulty which would arise if the alternative accommodation ceased to be available at the time of the judgment or decree of the appellate Court and that court was of the view that the accommodation was suitable taking into consideration all the circumstances of the tenant. Now, I do not think that the tenant is placed in any such dilemma, What the landlord has got to show is what alternative accommodation is available to the tenant. He can discharge the burden of showing what it is by examining for example the landlord and showing that there is available with him accommodation which he is prepared to let to the defendant as he is prepared to let to the other on certain conditions. If the Court were to conic to the conclusion that that accommodation was reasonable, there is nothing to prevent the tenant from renting it and after a decree for eviction is passed appealing from that decree. I am told however, that in that case the tenant would have to pay not only the rent of the premises which are with him but also the rent of the alternative accommodation which is available which it is suggested that he could rent. But I do not think that the tenant can have it both ways. Once the trial Court has found that the accommodation is suitable, if the tenant wishes to fight out the issue and to appeal and yet at the same time to safeguard himself against the possibility that he might lose the appeal, he must necessarily go to the expense of procuring the accommodation which has been shown to be available. It has been pointed out that in the trial Court it is not useful to record a finding first that the landlord bona-fide and reasonably requires the premises for his own purpose and greater hardship is likely to be caused to him on taking into consideration what alternative accommodation was available to him or the tenant; but such a finding is recorded by the judgment upon which the decree is based. It is not necessary to go into the question for the purpose of the present case as to whether it would not be proper for the trial Court first of all to record its finding on the question whether greater hardship was likely to be caused to the tenant by passing the decree and give the tenant a short time within which to obtain the accommodation which is available and is regarded as suitable. Such a question may arise when accommodation which is available at the time of the judg-ment is not available in a day or two afterwards. It may arise in other cases. That is not the case so far as I can see in the present case.

5. The question is one really speaking of construing the section in accordance with its plain grammatical meaning, and arguments on the ground of convenience ought not really to persuade one to depart from the only construction of which the words of the section are capable. But it does not appear to me that there is really speaking anything in the grounds of convenience upon which it is said that I should adopt the construction that 'decree' means the decree of the appellate Court when the matter is at the stage of the appeal. It may conceivably happen that a tenant might have accommodation belonging to him which is available to him. If I were to hold that the word 'decree' in section 13(2) means the decree of the appellate Court then there is nothing to prevent the tenant from selling that accommodation if the trial Court comes to the conclusion that the accommodation which is available to him is suitable for him and greater hardship js likely to be caused to the landlord than to him if a decree for eviction is not passed and contending in appeal that the accommodation is no longer available to him. The landlord can do the same. That is apart from the fact that I cannot say that the word 'decree' has got one meaning when the matter is before the trial Court and another meaning when an appeal is preferred; it can only be given one meaning, and in that case the only meaning which can be given to it is the decree of the trial Court.

6. Rule will therefore he discharged with costs.I give however the applicant time till the 1st Octoberin order that he should be able to obtain alternativeaccommodation for himself.

7. Rule discharged.


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