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Prabhakar S/O Tatyarao Mangulkar Vs. Suresh S/O Kishanrao Takalkar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 402 of 1983
Judge
Reported in1985(2)BomCR293; 1986MhLJ101
ActsHyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 - Sections 16(2) and 26
AppellantPrabhakar S/O Tatyarao Mangulkar
RespondentSuresh S/O Kishanrao Takalkar
Appellant AdvocateA.H. Vaishnav and ;S.L. Kulkarni, Advs.
Respondent AdvocateA.M. Dabir, Adv.
DispositionRevision dismissed
Excerpt:
.....secured by petitioner appears to be quite reasonable and proper. - - 3. after the remand the learned district judge framed the following issues :1. whether the respondent requires the premises in question bona fide for his personal use ? 2. whether the premises in nagesh warwadi owned by appellant can be used by him for residential as well as for business purpose ? 3. whether the house in nagesh warwadi is adequate alternative accommodation for appellant ? the parties adduced the evidence as directed by the high court and after appreciating the evidence of parties, on issue no. 4. the first contention raised by the learned counsel for the petitioner is that the learned district judge has not followed the order of remand made by the high court inasmuch as he failed to consider..........alternative house within the meaning of section 15(2)(v) of the act.3. after the remand the learned district judge framed the following issues :-'1. whether the respondent requires the premises in question bona fide for his personal use ?2. whether the premises in nagesh warwadi owned by appellant can be used by him for residential as well as for business purpose ?3. whether the house in nagesh warwadi is adequate alternative accommodation for appellant ?the parties adduced the evidence as directed by the high court and after appreciating the evidence of parties, on issue no. 1 the learned district judge found against the landlord and negatived the claim for bona fide use. on the remaining two issues the learned district judge, after comparing the area, the locality in which the.....
Judgment:

S.J. Deshpande, J.

1. The short question that arises for consideration in this revision application relates to the scope of section 15(2)(v) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, ('the Act' for short).

2. The facts may be briefly stated :

The landlord respondent herein made an application to the Rent Controller under the provisions of the Act for eviction of the petitioner-tenant of a shop situated in Saraf area at Aurangabad. The area of the shop occupied by the petitioner is admittedly 8 x 18 feet. The petitioner carries on his business of photography. The rent of the shop is Rs. 60/- per month. The landlord sought the eviction of the tenant on different grounds such as willful default, bona fide requirement, misuse and damage to the property. The other ground, are not relevant at all as the proceedings in this matter reached the High Court at Bombay at the earlier stage and the High Court disallowed all the grounds and remanded the matter to the lower Appellate Court by its judgment dated April 22, 1981 in Civil Revision Application No. 36/1980. The matter was remanded to the Appellate Court to consider whether the tenant has secured alternative house within the meaning of section 15(2)(v) of the Act.

3. After the remand the learned District Judge framed the following issues :-

'1. Whether the respondent requires the premises in question bona fide for his personal use ?

2. Whether the premises in Nagesh Warwadi owned by appellant can be used by him for residential as well as for business purpose ?

3. Whether the house in Nagesh warwadi is adequate alternative accommodation for appellant ?

The parties adduced the evidence as directed by the High Court and after appreciating the evidence of parties, on issue No. 1 the learned District Judge found against the landlord and negatived the claim for bona fide use. On the remaining two issues the learned District Judge, after comparing the area, the locality in which the shops are situated and also comparing the alternative accommodation which the petitioner has acquired, made a finding as follows :

'That the appellant has secured alternative house. It is adequate house. The appellant can start his business of photography in that house.'

After giving this clear finding the learned District Judge found that the tenant has secured alternative house within the meaning of section 15(2)(v) of the Act and consequently, he confirmed the order of eviction although on a different and additional ground which was permitted by the High Court. Ultimately, the appeal of the tenant was dismissed and the order for eviction passed by the Rent Controller was confirmed by the learned District Judge August, 4, 1983. It is this appellate judgment which is being challenged in this revision by the petitioner-tenant.

4. The first contention raised by the learned Counsel for the petitioner is that the learned District Judge has not followed the order of remand made by the High Court inasmuch as he failed to consider certain facts which were narrated by the High Court in para 6 of its judgment. He contended that the consideration of goodwill and comparison of certain factors such as suitability and environment matters must also be considered while deciding whether the tenant has secured alternative accommodation or not. It is contended by the learned Counsel for the petitioner that the High Court has specifically stated that the Appellate Court should considered the nature of the residential or business accommodation originally available to the petitioner and to compare the same with the new accommodation which the tenant acquired. It is argued that this was not done by the learned District Judge and so the order is vitiated by reason of non-compliance with the direction of the High Court.

5. I have considered this argument in the light of the findings and the discussion made by the learned District Judge. The learned District Judge in para 15 of his judgment has set-out the nature of the premises which are acquired by the petitioner. He has also taken into consideration all the evidence of the respondent. He has taken into consideration the developing size of Nagesh warwadi area. It is true that the present shop is situated in Safara area which itself is a business locality. But, according to the evidence on record, and some admissions of the respondent and the petitioner himself, Nagesh warwadi area is a developing part of the Aurangabad city. It has also some business potentiality. This matter is discussed in para 16 of his judgment. Then the learned District Judge has given consideration to the actual area and size and marked portions of the map which show that the portions 'C' and 'D' covers certain rooms which are in actual occupation of the petitioner. Then in para 18, the learned District Judge has considered that the petitioner has got sufficient accommodation and adequate space in his occupation and he can start has studio in one of the rooms. I think, this is sufficient compliance with the direction of the High Court and when the High Court gave certain directions it only expresses by way of guidelines the factors which are to be considered on the basis of evidence before the Court. The learned District Judge also considered the suitability for non-residential purpose and what he considered was that one of the rooms which is in occupation of the petitioner is capable of being used for studio. Having regard to the present area of the premises, this finding made by the learned District Judge on the evidence led before him does not appear to me to be vitiated by any non-compliance with the direction of the High Court. So the contention of the learned Counsel for the petitioner that the learned District Judge failed to comply with the direction of the High Court given by it is not acceptable and is, therefore, rejected.

6. The learned Counsel for the petitioner then contended before me that in view of the provisions of section 15(2)(v) of the Act, the alternative accommodation must be such which satisfy the requirements of the premises which are being used for the purpose for which the accommodation is required. The learned Counsel contended that the alternative house to be secured by the tenant must be a house which must be capable of being used for the business purpose. His main contention was that since he has acquired the premises for residential purpose, it is not possible to convert the same into business premises. So, according to him, it cannot be said that it is an alternative accommodation within the meaning of section 15(2)(v) of the Act. The wording of section 15(2)(v) of the Act does not admit any such interpretation. If we look to the provisions of the Act the words used are 'that the tenant has secured an alternative house'. The definition of 'house' is given in section 2(h) of the Act which means any building or hut or part of a building or hut let or to be let separately for residential or non-residential purpose....... .........According to this definition, acquiring any alternative house would include even non-residential premises. It is not necessary that the alternative house should be secured for the same purpose for which the disputed premises are being sought by the landlord. The contention of the learned Counsel for the petitioner that the petitioner has secured residential premises and they cannot be compared with the disputed premises is, therefore, rejected.

7. The learned Counsel for the petitioner relied on a judgment reported in Sistla Ramalakshmamma v. Messers Lakshmi General Stores, 1975 All India Rent Control Journal 130. In this case the question fell for consideration was similar to the one with which I am dealing. The learned Judges of the Andhra Pradesh High Court were considering the question of alternative accommodation within the meaning of provisions of section 10(2)(v) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1956. The expression 'alternative building' was considered by the learned Judges. In fact, in that case the tenant contended that the alternative building which he has acquired was not alternative building at all but there was only expansion of the present business which at present he was carrying on. According to him, the entire building which he has acquired was for the purpose of expansion of the business and not for the shifting the business entirely from the suit premises. The contention of the tenant was that the new building is meant for the expansion of business. The learned Judges of the Andhra Pradesh High Court in para 28, specifically observed that the new building constructed by the tenant was meant only for alternative accommodation of the expanded business of the tenant and was not for the alternative accommodation of the expanded business of the tenant and was not for the alternative accommodation. On these observations it is difficult to accept the contention of the learned Advocate for the petitioner that this case supports the contention of the petitioner that the alternative house or accommodation must be acquired for the same purpose. So this case has no application to the finding made in this case that the new building was not an alternative accommodation at all. So there was absence of securing an alternative accommodation within the meaning of the said Act. This is the true ratio of the judgment and if that is applied in the present case it cannot be said that the present petitioner has not acquired any alternative accommodation which is fit for carrying out the business of photography which at present he is carrying on.

8. The learned District Judge has before him the evidence in regard to the respective structures and conditions of the localities and it cannot be said that Nagesh warwadi area where the present petitioner has got the house and some accommodation is not able to carry out any business such as photography. There is another reason to accept the finding of the learned District Judge in this case. The petitioner though he maintained that the accommodation was for residential purposes, actually congested some of his premises into the business premises, in that, he has rented some portion to a doctor for running a dispensary. If that be the factual position the contention of the petitioner that the petitioner has secured the house at Nagesh warwadi exclusively for residential purposes cannot be said to be truthful from the record. In my judgment the petitioner has got sufficient accommodation at present such as five rooms and if one of the rooms can be converted for the purposes of his business, such capability of the accommodation being converted for business purposes can be taken into consideration by the Court. The petitioner has not led any evidence to show that it is impossible to convert these premises for the business purposes. There is no prohibition of the law pointed out which would make it impossible for the petitioner to run the business of photography in that part of premises. In view of these facts and circumstances on the record, the finding made by the learned District Judge in regard to the adequacy of the house secured by the petitioner appears to be quite reasonable and proper and his view on the evidence cannot be disturbed by this Court.

9. There is another reason also in support of the finding made by the learned District Judge which is provided by the admission of the tenant himself. In his evidence before the Court the tenant has admitted that he got a shop which formerly belonged to his brother. After the death of his brother he is the tenant of that shop and rooms which are being used by him in some other locality and it, is not disputed that locality is unfit for business. Within my limited powers under section 26 of the Act, I cannot re-appreciate the evidence even if I do not differ with the finding. The conclusion arrived at by the learned District Judge on facts in regard to the securing of alternative house is supported by good evidence on the record and as it is not vitiated by any material irregularity, it is not possible to assist the petitioner in this case. It was also suggested by the learned Counsel for the petitioner that since the landlord himself has acquired the premises which are used for residential purposes, this may be considered a factor while comparing the case of securing the alternative house. I am afraid, this would not be a relevant consideration when the eviction is sought only on the ground provided by section 15(2)(v) of the Act. The other considerations will be available only as factual and circumstantial consideration by was of comparison. As the learned District Judge has taken into consideration various factors and has come to a clear finding that the tenant has secured alternative accommodation, I do not see any justification re verse that finding as it is no based on a perverse view of the evidence. The revisional powers under section 26 of the Act are limited in the terms of the section itself and it is necessarily narrow and the High Court will not be justified in reversing the finding taking a different view by introducing new factual circumstances.

10. In the result, the revision fails and is dismissed. Rule discharged. No order as to costs.

11. The decree would not be executed for a period of six months i.e. upto 10th December, 1985.


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