1. This special civil application is directed against the concurrent findings of the 2nd Additional Judge, Small Causes Court, Poona, dated April 23, 1969 and of the Assistant Judge, Poona, dated November 19, 1969, that the premises in dispute between the Petitioner-tenant and Respondent-landlord 'having not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit', the landlord was entitled to recover possession of the premises under Section 13(1)(k) of the Bombay Rent Act.
2. The landlord filed a suit against the tenant on the ground that the tenant was a Government servant, who was transferred to Sholapur and was staying in Sholapur with his family for more than a year before the suit and had, therefore, kept the suit premises unused for more than six months before the date of the suit. The landlord terminated the tenancy by a notice dated February 13, 1967, and filed the suit for possession and for recovery of rent from April 1, 1967, as the tenant had paid rent up to the end of March, 1967.
3. The suit was resisted by the tenant. He denied that he locked the premises and did not use them for residential purpose for more than six months as alleged by the landlord. He contended that he was temporarily transferred to Sholapur. He denied that he and his family stayed at Sholapur and that at Sholapur he had secured residential premises. he submitted that during the period of transfer, his family stayed in the suit premises. He also prayed for fixation of standard rent; but he gave up the claim for fixation of standard rent by purshis, Exh. 61.
4. The learned Additional Judge, Small Causes Court, Poona, considered the oral and documentary evidence before him and held against the tenant because -
(1) the tenant had not examined his wife though he stated that she was staying in the suit premises;
(2) letters were written by the tenant's wife from Sholapur to the landlord's daughter on November 7, 1966, and on other dates;
(3) the tenant's wife had sent money-orders from Sholapur to the landlord;
(4) that the tenant had not stated in his reply Exh. 52 to the notice that he and his son stay at Sholapur and that his wife and daughter stay in the suit premises at Poona and that he had stated that the goods were lying in the suit premises;
(5) that although there were tenants in the suit premises, none of them were examined by the tenant to prove his case;
(6) that the tenants witness Bhutada's statement that during the period from August 1966 to January 1967, the tenant's wife purchased goods from grocery shop at Poona also could not be believed in the absence of any documentary proof;
(7) that although two counterfoil receipts were signed by the tenant's wife, they were not enough to show that the tenant's wife was staying all along at Poona, but it only showed that she was casually visiting Poona and such casual visits would not amount to user of the premises for the purpose for which they were let; and
(8) that the fact that the landlord recovered from the tenant electricity charges as per counterfoil receipts Nos. 1919 and 1941 only showed that it was agreed between the parties that the landlord had agreed to charge fixed sum of Rs. 7/- p.m. as electricity charges and it could not be inferred from that that the electricity was consumed by the tenant at Poona.
He did not believe the story of the tenant that he was only temporarily transferred to Sholapur because the tenant did not produce any record to show that he was so temporarily transferred.
5. The finding of the learned Additional Judge was challenged before the Assistant Judge, Poona. the learned Assistant Judge also held that the evidence showed that the tenant's son was staying in Sholapur from June 1966 to March, 1967. Even his daughter was in Sholapur till 1967 as proved by a certificate produced from Bhandarkar Primary School at Exh. 42, in which she was shown to have gone to the Poona School in 1967 on leaving Balavikas Mandir at Sholapur, after passing First Standard in Balavikas Mandir at Sholapur. He agreed with the view taken by the trial Court with regard to the letters and counterfoils referred to above. The learned Judge referred to the statement made by the tenant before him at the time fo the hearing of the appeal that the tenant was liable to be transferred in seven Districts o Poona Division, but considering the fact that the tenant had not filed a copy of the order showing that he was transferred to Sholapur temporarily, confirmed the decree passed by the trial Court, believing the landlord and disbelieving the tenant.
6. The tenant has filed the above Petition challenging the validity of the concurrent findings recorded by the two Courts on the ground that the two Courts erred in law in holding that the tenant had failed to prove that the suit premises were not occupied for a continuous period of more than six months before the date of the suit. It is submitted that the Petitioner's transfer to Sholapur was for reasons beyond his control and his transferability was a reasonable ground for not staying in Poona. It is also alleged that the fact that the Petitioner, in fact, was retransferred back to Poona after sometime and the fact that it was not at all disputed that all his family members were in the suit premises all along was each a further reason to hold that the lower Courts erred in law in finding that the premises were not used for the purpose for which they were let. It was argued that the fact that the electricity charges were recovered indicated that the landlord himself recovered charges because the premises were being used for the purpose for which they were let. It was also argued that the fact that the Petitioner was paying rent throughout was enough to establish that his wife continued to reside in the suit premises and that he had never any intention to abandon the use of the premises for the purpose for which they were let.
7. In support of the petition, the Petitioner further filed an affidavit on February 7, 1972, reiterating that all his belongings were still lying in the suit premises and that his wife was residing there looking after the premises. It was also stated in the said affidavit that the Petitioner was attached to the road-building department of the Government of Maharashtra and that he was sent out of Poona for some months on deputation in connection with the construction of the Thana creek bridge, that his base of work for this assignment was at Igatpuri and that he had no permanent quarters at Igatpuri. He also stated that the bridge having then been opened, he would be retransferred to his regular work in Poona. He further submitted that though his wife casually went to Igatpuri, the landlord was trying to take advantage of the premises having been locked, by making allegation that the tenant and his family were staying away permanently from the premises. He also submitted that as he had no other place or residence, he was regularly paying rent and this showed that he was regularly using the same.
8. The landlord filed an affidavit on February 9, 1972, reiterating what he had stated in the earlier affidavit, dated November 15, 1971, that the tenant had, on May 4, 1971, removed all his furniture and goods in a goods truck and he and his family were all staying at Igatpuri.
9. On February 24, 1972, the tenant filed a further affidavit making the following allegations : -
'I say that in the year 1965 I was an Overseer in the Buildings and Communications Departments of the State Government and I was posted under the Superintending Engineer, Central Circle, Poona 1. I say that I was liable at the said time to be deputed out of Poona on assignments as my duties were to supervise the construction and maintenance of various sections of the Highway. I say accordingly I was deputed to Sholapur in August 1965 for a period of 3 months From 6-12-1965 to 19-4-1966 I was at Poona as I had taken earned leave since I was unwell. From 19-4-1966 to 27-6-1967 I was again deputed to the Building and Communications Division, Sholapur. I say that from 27-6-1967 I was transferred to the Zilla Parishad, Sholapur, as the services of an Engineer were required by them. I say that this assignment ended by 25-11-1968 on which date I rejoined my services at Poona ...............' He has annexed orders dated November 1, 1968, on which date he was posted at Special Agricultural Building Project Sub-Division, Poona.
10. The landlord filed an affidavit in reply again on March 2, 1972, contending that the orders of 1968 ought to have been produced by the tenant before the appeal was decided by the Assistant Judge, and as the tenant did not produce the same before the Assistant Judge, he cannot rely on the same. He also submitted that the order does not specifically mean transfer to Poona, although it mentions Central Circle Poona, as this circle consists of seven Districts. He reiterated that the Petitioner was staying with all his family at Igatpuri and prayed that this Court should not interfere with the concurrent findings of facts recorded by the two Courts below.
11. Now, under Section 13(1)(k), the landlord shall be entitled to recover possession of any premises if the Court is satisfied 'that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit.' To succeed in such a suit, the landlord must, therefore, establish : -
(1) that the premises have not been used for the purpose for which they were let;
(2) that the said non-user was without reasonable cause, and
(3) that such non-user was for a continuous period of six months immediately preceding the date of the suit.
The suit was filed in this case on April 17, 1967. The finding of two Courts that the tenant had not used the premises for the purpose for which they were let, viz., for residence for a continues period of six months immediately preceding the date of the suit is, no doubt, a finding of fact, which will not ordinarily be interfered with by this Court in exercise of its powers under Article 227 of the Constitution of India, as the said finding is based on appreciation of oral and documentary evidence on the record by the two Courts.
12. Mr. Saldhana, the learned Counsel for the Petitioner, however, submitted that was not a sufficient ground for the landlord to get a decree for eviction. The Court had to be satisfied under Section 13(1)(k) that the non-user was without reasonable cause. Mr. Saldhana, submitted that the two Courts failed to apply their minds to this requirement of Section 13(1)(k) and argued that whether the non-user was for want of reasonable cause, must necessarily depend on the facts and circumstances of each case. He submitted that, having regard to the nature of the services of the tenant and the fact that he was paying electricity charges and rent regularly, it was clearly established that he never voluntarily stopped used the premises for the purpose for which they were let. His non-user was involuntary as he was liable to be transferred, having regard to the nature of the services. He had always animus reverend to the premises. he had never really abandoned the premises as was evidenced by the regular payments of rent.'
13. The scope and the effect of the said Section 13(1)(k) was considered to some extent by Chagla, C. J., in an unreported decisions dated July 30, 1954, in Civil Revn. Appln. No. 1527 of 1953 (Bom). In that case the Petitioner was a tenant and the Opponent was a landlord. The Petitioner had occupied the suit premises situated in Poona in May 1940, but from June 1950 he had ceased to occupy the premises. He stayed with his son at Jalgaon. The landlord, therefore, contended that the premises were not used for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The trial Judge held against the landlord and the District Judge had recorded a finding against the tenant. Chagla, C. J., refused to interfere in revision with the said finding of the District Judge but made the following observations : -
'Mr. Parulekar is perfectly right when he contends that under sub-clause (k) of Section 13(1) of the Rent Control Act it is not necessary that the tenant himself should reside in the premises. He points out - again rightly, that when we look at the other sub-clause of Section 13(1), whenever action against a tenant is contemplated the tenant is mentioned, but in the case of sub-clause (k) the Legislature has not stated that the tenant should use the premises for the purpose for which they were let. But what sub-clause (k) requires is that the premises should be used for the purpose for which they were let. Therefore, it is true that, so long as the premises have been used for the purpose for which they were let, sub-clause (k) is satisfied and the landlord cannot eject the tenant because he himself did not reside in the premises ...............'
14. Proceeding to consider as to whether any other member of the family was residing in the premises, having regard to the fact that the evidence in that case showed that son of the petitioner stayed in the premises from June 9 to June 14 and C J. observed : -
' ................... As a matter of fact, the learned District Judge finds and I am bound by that finding - that there was merely a casual occupation by the petitioner's son for a spasmodic period of a week. Now, a mere casual occupation of premises does not constitute residence in those premises. In construing sub-clause (k), one must also bear in mind the object of the Legislature in passing this legislation. The Rent Restriction Act is passed because there was a scarcity of premises and therefore it was necessary to protect bona fide tenants and also to see that premises were not left unoccupied so that people in need of premises should not be deprived of them and also a tenant should not have one set of premises at one place and go about residing in some other premises. Therefore, the purpose within the meaning of sub-clause (k) for which premises are let is the purpose of permanent residence; not a mere casual occupation, not a mere spasmodic stay in the premises ........'
The learned Assistant Judge and the trial Judge in the present case have not recorded a finding that the petitioner had any permanent residence elsewhere like the tenant in the case decided by Chagla, C. J. Nevertheless, the two Courts appear to have been erroneously carried away by the comment purported to be based on this case in Dalal's Commentary on the Rent Act, 1960, Third Edition at p. 257, reproduced at p. 444, 1969 Fourth Edition.
15. The principal question which the two Courts below ignored was as to whether, even assuming that there was no continuous occupation of the suit premises by the tenant and the members of his family within six months immediately preceding the date of the suit, the tenant had any reasonable cause for not using the premises. It is true that the tenant did not produce the orders of transfers before the trial Court or the Appellate Court as he ought to have done. That, however, does not justify the Courts to ignore the requirements of Section 13(1)(k). The question as to whether the tenant had ceased to use the premises without reasonable cause, will depend on the facts and the circumstances of each case.
16. As observed by Chagla, C. J., in the above case, physical possession by a tenant himself was not necessary. Physical possession by other members of the family also is not necessary if there was reasonable cause for their remaining absent from the premises. The question is one of fact and degree. If there is evidence on record to show that the tenant had something more than a vague wish to return and that he had a real hope coupled with the practicable possibility of its fulfillment within a reasonable time, it cannot be said that the had no reasonable cause for not using the premises. In every case it is the duty of the Court to satisfy itself that the tenant had no reasonable cause. Absence may be sufficiently prolonged or unintermittent to compel the inference prima facie of a cesser of occupation. The onus is on the tenant in such a case to repel the presumption and to establish that his possession had not ceased or that he had ceased to occupy on account of reasonable cause. In my judgment, this can be established if the tenant proves notwithstanding the intention on his part to return after his absence, his helplessness in remaining absent from the premises.
17. It is true that the tenant should have made proper attempts to discharge the onus in the present case by producing the orders, if not before the trial Court, at least before the Appellate Court. That, however, as stated above, does not permit the Courts to brush aside the requirements of Section 13(1)(k). It is a matter for not awarding the costs. The Court cannot ignore the nature of the tenant's services and his liability to be transferred when deciding the question under Section 13(1)(k). I do not propose to lay down that in every case where a Government servant is transferred and he goes on paying rent in respect of the premises, he had reasonable cause for not using the premises for the purpose for which they were let. The question will depend on the facts and circumstances of each case. The tenant must couple and clothe his inward intention to return, with some formal, outward and visible sign of it, as for instance by installing some caretaker or representative, be it a relative or not with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. It may also be that the same result can be secured by leaving on the premises, as a deliberate symbol of continued occupation, furniture. As stated by Asquith L. J., in Brown v. Brash and Ambrose, (1948) 2 KB 247, the tenant must prove not only animus possidendi but a corpus possessions.
18. Applying these principles to the facts of the present case, I have no doubt that the petitioner established beyond any doubt that he wanted himself and his family to occupy the premises at all stages; but as he was compelled to stay in Sholapur, he appeared to have shifted temporarily to that place. The facts that he went on paying rent regularly, paid electricity charges and further the facts that the petitioner and his wife were trying to be on good terms with the respondent by even inviting the respondent to stay with them in Sholapur, clearly show that the tenant never intended to stop the use of the suit premises for his own residence. As the tenant was compelled not to stay in the suit premises by transfer, he had reasonable cause, having regard to his conduct and the circumstances of the case, for not using the premises for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit as found by the two Courts below. As there was reasonable cause for non-user, it must be held that the two Courts below erred in law in decreeing the landlord's suit for eviction.
19. In the result, the petition succeeds. The decrees passed by the two Courts below granting prayer for possession are quashed and the plaintiff's suit is dismissed, in so far as his claim for possession is concerned. In the circumstances of the case, however, as the petitioner failed to produce all the relevant orders of transfers before the lower Courts, the petitioner should pay to the respondent the costs throughout. Rule made absolute.
20. Petition allowed.