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Kumbhar Pragji Bechar Vs. Parekh Harilal Jagjivan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Application No. 227 of 1968
Judge
Reported inAIR1974Guj84; (1974)0GLR133
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)
AppellantKumbhar Pragji Bechar
RespondentParekh Harilal Jagjivan
Appellant Advocate J.M. Thakore, Adv. General and; P.V. Hathi, Adv.
Respondent Advocate K.G. Vakharia, Adv.
Cases ReferredMohanlal Narottamadas v. Bechardas Khusaldas
Excerpt:
- - 7/-.according to the petitioner-plaintiff, he wanted to start a medical store in the suit shop and therefore, he served the defendant-tenant with a notice terminating his tenancy and as he failed to hand over possession, the present suit was filed. he, therefore, submitted that the view taken by the learned district judge was clearly wrong. initially, the case of the plaintiff as stated in the notice as well as the plaint was that he required the suit premises for his bona fide and reasonable requirement. but as the things stand from the evidence on record, it is clearly established that not only the son is separate from the landlord but even, the grandson is doing business individually in his own name......used the opponents to recover possession of the suit premises on the ground that he required the suit shop reasonably and bona fide for his personal occupation as the adjoining shop which was in his possession was not sufficient for his business.3.the opponent-defendant was occupying the suit shop on the monthly rent of rs.7/-. according to the petitioner-plaintiff, he wanted to start a medical store in the suit shop and therefore, he served the defendant-tenant with a notice terminating his tenancy and as he failed to hand over possession, the present suit was filed. the opponent-defendant by his written statement ex.9 resisted the suit. he submitted that the plaintiff did not require the suit premises reasonably and bona fide for the personal occupation; that he was an old man and.....
Judgment:
ORDER

1. This revision application is directed against the judgment and decree of the learned District judge. Bhavnagar allowing regular civil appeal No. 73 of 1967 and dismissing the Plaintiff's suit for possession with costs.

2.The facts giving rise to this revision application briefly stated are as under:-

The present petitioner used the opponents to recover possession of the suit premises on the ground that he required the suit shop reasonably and bona fide for his personal occupation as the adjoining shop which was in his possession was not sufficient for his business.

3.The opponent-defendant was occupying the suit shop on the monthly rent of Rs.7/-. According to the petitioner-plaintiff, he wanted to start a medical store in the suit shop and therefore, he served the defendant-tenant with a notice terminating his tenancy and as he failed to hand over possession, the present suit was filed. The opponent-defendant by his written statement Ex.9 resisted the suit. He submitted that the plaintiff did not require the suit premises reasonably and bona fide for the personal occupation; that he was an old man and was not in a position to do any business; that he had made out a false case in order to recover possession from him. According to the defendant, he was occupying the suit shop for the last 35 years for the purpose of his Kandoi business and if he was required to vacate the same, he would be put to greater hardship. The learned trial Judge decreed the plaintiff's suit and ordered the defendant to hand over vacate possession of the suit shop to the plaintiff on or before 1st July 1967. Against the said judgment, an appeal was preferred in the district Court which was allowed by the learned District Judge, Bhavnagar and hence, this revision application by the original plaintiff.

4. Mr. J. M. Thakore, learned Advocate General appearing with Mr.P. V. Hathi for the petitioner urged that in the instant case the following facts were proved from the evidence on record-

1.That the petitioner resided with his grandson Bhimji.

2.That Bhimji was running his medical store in a rented shop, just opposite to the suit shop.

3.That the petitioner is attending to the business of the medical store owned by Bhimji.

4. That the licensing authority did not grant licence on the ground that adjoining shop in possession of the petitioner was not sufficient for a medical store.

5. That the petitioner received Rs.7/- per month as rent of the suit shop, while his grandson pays Rs.25/- per month in the rented shop.

The learned Advocate General urged that merely because the landlord's son was separate from him it cannot be said that the grandson who was residing with him at the time of the suit was not a member of the family. He, therefore, urged that in order to consider the bona fide and reasonable requirement of the landlord, it can be taken into consideration the bona fide and reasonable requirement of any member of the family unit. Taking this fact into consideration. Mr. Thakore urged that when the grandson who was running a medical store and was not able to obtain a licence because his shop was found to be small by the licencing authority. It cannot be said that the requirement of the present landlord who is the grandfather was not genuine. He, therefore, submitted that the view taken by the learned District judge was clearly wrong. In support of his submission, he referred to the case of firm of Mohanlal Narottamadas v. Bechardas Khusaldas, (1967) 8 Guj LR 620 wherein it was observed-

'When members of a family live together and look upon themselves as a unit, the court is entitled to consider the requirement of any one or more of such members as that of the landlord who is ejecting the tenant. It will in such a case make no difference whether such requirement is for the purpose of residence or of business.

The words 'for occupation by himself' occurring in Section 13(1)(g) of the Bombay Rent Control Act cannot be construed as having a narrow meaning as being limited to the use of only the landlord himself. It may be that the family may not, in law be joint and still the members of the family may be living together, messing together and looking upon themselves as a unit. In such a case, the Court will be entitled to consider with the requirement of the members as a requirement of the landlord who is seeking to eject the tenant. While dealing with such questions, one cannot miss sight of the normal conditions obtaining in a Hindu society. The family is the unit of our civilization. When father and sons live in the same houses and mess together, irrespective of the fact that they constitute members of the joint Hindu family or hold the property jointly as such, ordinarily, they would be deemed to be members of one unit and the requirement of one would be the requirement of the others.'

Relying on these observations Mr. Thakore urged that even though the son of the landlord was residing separate from him, the fact that the grandson was residing with the landlord is not disputed and if it is so, it would be open to the Court to consider the requirement of the grandson while considering the bona fide and reasonable requirement of the landlord for the purpose of evicting the tenant. I am unable to agree with the submission made by the learned Advocate General. It is true that if a family unit consisted of a joint family wherein all members of the joint family resided together and were doing business in the name of the joint family, then it could reasonably be urged that while considering the bona fide and reasonable requirement of the plaintiff landlord, bona fide and reasonable requirement of all the members of the family could be taken into consideration. In the instant case, it is not disputed that the family was separate. The grandfather, the son and the grandson were separate in estate and each of them was running his business in his own name individually. It would, therefore, be difficult to accept the submission made by the learned Advocate General that even though the grandson was doing his business separately, as he was residing with the grandfather, he should be considered as a member of the unit for the purpose of the suit. The normal condition obtaining in the Hindu society points towards joint status of the family where all the members not only live and mess together but have also joint interest in the family properties or business. In the present case, there was a division of estate. The joint family status had come to an end. It cannot therefore, be said by any stretch of argument that it was a family unit and therefore, the requirement of one member would be the requirement of the whole family. Initially, the case of the plaintiff as stated in the notice as well as the plaint was that he required the suit premises for his bona fide and reasonable requirement. It was not stated by him that the suit shop was required for the purpose of running a medical store for his grandson. That apart, if it was established that the family was joint, in that case, in spite of the notice given by the landlord in his own name, the requirement of the grandson could have been taken into consideration. But as the things stand from the evidence on record, it is clearly established that not only the son is separate from the landlord but even, the grandson is doing business individually in his own name. Under the circumstances, it is difficult to agree with the submission made by the learned Advocate General that the lower Court had erred in law in not considering the bona fide requirement of the landlord. In my opinion, the view taken by the learned District Judge is absolutely correct and I see no reason to take a different view of the matter.

5.In the result the revision application fails and is dismissed with costs.

6. Application dismissed.


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