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Firm of Mohanlal Narottamdas and anr. Vs. Bechardas Khusaldas and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1967)8GLR620
AppellantFirm of Mohanlal Narottamdas and anr.
RespondentBechardas Khusaldas and ors.
Cases ReferredInstitute of Radio Technology v. Pandurang Baburao
Excerpt:
- - 1 who was doing business in partnership would like his sons to start a separate business of their own (in vegetables and fruits), in order to settle his sons and to augment the family income. but instances which readily occur to the mind are cases in which the court which made the order had no jurisdiction, or in which the court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. wherever the court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the court can interfere. thus, clearly there are changes in the circumstances of the plaintiffs, subsequent to.....m.u. shah, j. 1. this is tenants' revision application against a decree of ejectment from the suit premises consisting of one big room and a shed at its back, passed by the learned district judge, surat, in regular civil appeal no. 248 of 1961. the decree was passed on the finding that the plaintiffs required the suit premises reasonably and bona fide for their personal use. by this decree, the learned district judge has reversed the decree of dismissal of the plaintiffs' suit that was passed by the learned joint civil judge (junior division), surat, in regular civil suit no. 482 of 1959. the suit was instituted on june 15, 1959. the plaintiffs in the suit were the present opponent bechardas khushaldas and the opponent's mother bai mahali, since deceased. the defendants in the suit were.....
Judgment:

M.U. Shah, J.

1. This is tenants' revision application against a decree of ejectment from the suit premises consisting of one big room and a shed at its back, passed by the learned District Judge, Surat, in Regular Civil Appeal No. 248 of 1961. The decree was passed on the finding that the plaintiffs required the suit premises reasonably and bona fide for their personal use. By this decree, the learned District Judge has reversed the decree of dismissal of the plaintiffs' suit that was passed by the learned Joint Civil Judge (Junior Division), Surat, in Regular Civil Suit No. 482 of 1959. The suit was instituted on June 15, 1959. The plaintiffs in the suit were the present opponent Bechardas Khushaldas and the opponent's mother Bai Mahali, since deceased. The defendants in the suit were the present applicant No. 2 (defendant No. 2) Mohanlal Narottamdas and present applicant No. 1, the Firm of Mohanlal Narottamdas, in which name the applicant No. 2 has been carrying on the business.

2. It appears that the suit of the plaintiffs was that the defendants-tenants who were carrying on the business in the firm name of Mohanlal Narottamdas in Surat were the tenants of a room 12' X 13' and an open space at its back, where a temporary shed was constructed, on a rental of Rs. 35/- payable by the month. The room was being used by the defendants for housing their Bhatthis for preparing sweetmeats for their sweetmeat shop. The plaintiffs' case was that they required the suit premises for their bona fide and reasonable requirement as alleged in paragraph 4 of their plaint. The plaint allegation in paragraph 4 was that plaintiff No. 1 Bechardas had eight sons, of whom three were married and that his family consisted in all of 40 members. The plaintiff No. 1 was a wholesale dealer in fruits and vegetables and he required the godowns for the purpose. He had rented a number of godowns amongst which was one situated in a street known as Rangrej Gali and qua this godown, he was under a notice to quit. The plaint averment further was that his sons were able to do business and thereby the plaintiff's (plaintiff No. l's) business can be expanded. It was also stated in the relevant paragraph 4 of the plaint that, in the absence of any vacant accommodation for the sons to start their business, the sons were obliged to continue in service and their business talents could not be developed, with the result that the family income suffered and there was deficit in meeting the running expenses of the large family. These facts constituted the ground on which the plaintiffs had alleged that their requirement of the suit premises was for the occupation by themselves bona fide and reasonable. The suit was resisted by the defendants on various grounds and, amongst them, the main ground was that the requirement of the plaintiffs was not bona fide and reasonable. It was further contended that there was an earlier suit filed in year 1953 by the plaintiffs for eviction against the defendants on the ground of their business and residential requirement of the suit premises which was dismissed and, as such, the present suit was barred by the principles analogous to res judicata. It was also pleaded that there would be greater hardship caused to the tenants by passing the decree for eviction.

3. The learned trial Judge before whom the evidence was recorded negatived the plaintiffs' case of bona fide and reasonable requirement. He was of the view that the issue of hardship did not thus arise for his determination. However, the learned Judge has observed that if he were to decide it, he would have no hesitation in deciding it against the defendants as they had a shed in a house in Sopari Gali, where they did run their hearths and that shed would be suitable for running the 'Bhatthis'. The learned Judge, however, dismissed the suit on his finding about requirement. In reaching this conclusion, the learned Judge appears to have considered in paragraphs 9, 10 and 11 of his judgment the question of deficit in meeting the family expenses that the plaintiffs' family was allegedly suffering from. The learned Judge has found on the evidence of the plaintiffs about the income and expense ratio at that material time that the allegations as regards family deficit were not substantiated. On the question of the bar of res judicata, the learned Judge has, on an appreciation of the relevant evidence on record, found that there was no such bar. The learned Judge has found that in the former 1953 suit the ground for eviction was requirement of the suit premises for residence and business after rebuilding it; whereas, in the present case, the ground was requirement of a godown for development of business as the present income of the plaintiffs was not sufficient to meet the expenses of the plaintiffs' family.

4. The plaintiffs carried the matter in appeal to the Court of the District Judge at Surat and, in appeal, the learned District Judge has reversed the decree of dismissal and passed a decree of eviction against the tenants on the ground that the plaintiffs' requirement of the suit premises was bona fide and reasonable. While reaching this conclusion, the learned District Judge has considered the relevant averments in paragraph 4 of the plaint. He has also considered the evidence of plaintiff No. 1 and his three sons, viz. Hasmukhlal, Jayantilal and Babulal, and found that the sons were in the service of the partnership firm of which plaintiffs' joint family was a partner with plaintiff No. 1 's brother's sons, and that the sons are now to be set up in a separate business in the suit premises. The learned Judge has also found it proved on evidence that it was not possible for the plaintiffs to run their family expenses in their present income. He has found that it was not disputed that the plaintiffs had a large family to maintain and the income from the present partnership business was hardly sufficient to meet their expenses. On an appreciation of all the relevant evidence on record, the learned Judge has found that the plaintiffs required the suit godown bona fide and reasonably for starting a separate business for the three sons of plaintiff No. 1, the business to be started being vegetable and fruit business. The learned Judge has further found that the aforesaid three sons of plaintiff No. 1 were adults and married and had sufficient experience in the vegetable and fruit business, as they were in the business for the last 11 to 12 years and that plaintiff No. 1 who was doing business in partnership would like his sons to start a separate business of their own (in vegetables and fruits), in order to settle his sons and to augment the family income. The learned Judge has also found that the plaintiffs did need more income to maintain their large family. The learned Judge was of the view that if the plaintiffs believed that more income could be had by starting a new business for their sons, the plaintiffs' claim cannot be said to be mala fide and unreasonable. The learned Judge thus appears to have reached a conclusion that the plaintiffs' evidence was sufficient to prove that the suit premises were reasonably and bona fide required by the plaintiffs for the occupation by themselves. On the question of greater hardship, the learned Judge has found in favour of the plaintiffs on a consideration of the alternative accommodation already available to the defendants. The learned Judge has found that the defendants have acquired vacant possession of a three storeyed house near the suit premises. He has also found that the family house of the defendants situated in Sopari Gali had come in their exclusive possession and so, they had sufficient accommodation. The learned Judge has, in this connection,. further found that the defendants had a shed in the house at Sopari Gali where they did run Bhatthis, and having now purchased a three storeyed house near the suit premises, they can conveniently reside in that house and the shed in the Sopari Gali would be available to them for running Bhatthis. On a consideration of the relevant evidence on record, the learned Judge has reached a conclusion that the defendants will not suffer greater hardship by passing a decree of eviction, but that the plaintiffs will suffer greater hardship by refusing to pass a decree. In this view of the matter, the learned Judge has allowed the appeal of the plaintiffs with costs all throughout. By his order dated September 13, 1962, embodied in the judgment, the learned Judge had ordered that the defendants shall hand over possession of the suit premises to the plaintiffs on or before December 31,1962. It is against this decree and order that this revision application has been filed by the original defendants and it has now reached hearing before me.

5. I may say that the suit was originally instituted by two plaintiffs (i) Bechardas Khushaldas, the father of the three sons for whose requirement the premises were sought to be vacated; and (ii) Bai Mahali, mother of Bechardas, plaintiff No. 1. The mother appears to have died after the decision in the appeal and before the institution of this revision application in this Court. In the memo of revision application, it is stated that Bai Mahali, who was the mother of plaintiff No. 1, had executed a will by which she had left her interest in the suit property to her son Bechardas (plaintiff No. 1). Thus, it appears that the present opponent Bechardas Khushaldas is now the sole owner of the property. It may be remembered that Bechardas is the father of the three sons who are now to be set up in business, separate from the partnership business, and it is with a view to augment the family expenses and meet the family needs that the suit premises are sought to be vacated.

6. The learned Advocate General appearing on behalf of the applicants has contended before me that the present suit is barred by the principles of res judicata in so far as these very plaintiffs had earlier in 195J, filed an ejectment suit against the defendants for recovery of possession of the suit premises on the ground of their business and residential requirement and that suit was dismissed and that there was no change of circumstances between the dates of the two suits so as to entitle the plaintiffs to maintain the present suit for eviction. His contention further was that the grounds which are pleaded in the present suit were not pleaded in the earlier 1953 suit and hence there was a bar of con structive res judicata. It was contended that the only change that had come up between the dates of the two suits was qua the defendants, in so far as they had acquired some new properties. It was also contended that the case set up in the evidence of the plaintiffs was at variance with the pleadings of the plaintiffs. The submission was that in the plaint, there was no specific averment as regards the requirement of setting up the sons in separate business and that the case set up was one of expansion of the family business; whereas, in the evidence led, the case set up was of the requirement of the sons to be set up in a separate business in vegetables so as to augment the family income. It was lastly contended that, assuming that the alleged requirement of the plaintiffs- sons was genuine, that could not be said to be the requirement of the plaintiffs within the meaning of Clause (g) of Sub-section (1) of Section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act LVII of 1947), which will hereafter be referred to as 'the Act'.

7. Before I deal with the contentions so raised, I may say that the present revision application was filed under Section 29 of the Act before Sub-section (2) thereof was amended by Gujarat Act No. 18 of 1965. Under the amended Sub-section (2) of Section 29 of the Act the powers of the revisional Court are enlarged with retrospective effect. Now, the powers are wider than that of a revision application under Section 115 of the Code of Civil Procedure. However, the revisional powers are necessarily limited and are to be used for the limited purpose of examining the decision of the lower appellate Court with a view to satisfy itself that the decision is according to law. The powers still remain within the domain of the jurisdiction and no further. In Punamchandra Revashankar Joshi v. Ramjibhai Maganlal (1966) VII G.L.R. 807, Mr. Justice Vakil, who had an occasion to consider the scope and ambit of the revisional powers of the High Court under the amended Section 29(2) of the Act, has made. the following material observations:

The only positive effect of the amendment to Section 29(2) of the Bombay Rent Control Act by the Gujarat Amendment Act XVIII of 1965 is at the most to enlarge the scope of the power of the High Court in the exercise of its revisional jurisdiction while deciding questions that may arise under the said Act. It is true that by this amendment, the High Court can examine the decision as a whole and enquire as to whether the decision arrived at as a whole was according to law or not and the High Court is not confined merely to the authority to see whether there were any errors of law. Yet the fact remains that the Legislature has not intended to equate the ambit of the power with the one exercised in an appeal. The authority vested in the High Court under the amendment still remains only in the domain of the jurisdiction and power of revision and no further, x x x x the amended Sub-section (2) of Section 29 can be held to have retrospective operation.

8. The expression 'according to law' was considered by the Supreme Court in the case of Hari Shankar and Ors. v. Rao Girdharilal Chowdhury A.I.R. 1963 S.C. 698, while dealing with the scope of the High Court's powers of interference under Section 35 of the Delhi and Ajmer Rent (Control) Act (38 of 1962) wherein an expression similar to the one to be found in the amended Sub-section (2) of Section 29 of the Act occurs. Section 35(1) of Act No. 38 of 1952 reads as under:

The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit.

The relevant portion of Section 29(2) of the Bombay Rent Act reads as under:

x x x x but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.

Thus, the two sections are in pari materia. Their Lordships of the Supreme Court while considering the scope of Section 35 and having regard to the use of the expression 'according to law', have at page 701 observed as under:

The phrase 'according to law' refers to the decision as a whole, and is not to be equated to error of law or of fact simplciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the section.. in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit,.. is controlled by the opening words, where it says that the High Court may send for the record of the Case to satisfy itself that the decision is 'according to law'. It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.

Their Lordships have in the said decision further observed that Section 35 of the Delhi and Ajmer Act with which they were dealing was almost the same as Section 25 of the Provincial Small Cause Courts Act which deals with the revisional powers of the High Court and wherein a similar expression, namely, 'according to law' is to be found. In this connection. Their Lordships have approvingly referred to the following observations of Beaumont, C.J., in Bell & Co. Ltd. v. Waman Hemraj 40 Bom. L.R. 125:

The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.

9. Dealing with the first contention viz, the bar of res judicata, I may say that, in the former suit that was filed by the plaintiffs against these defendants in 1953, which was suit No. 1010 of 1953 of the Court of 2nd Joint Civil Judge (Junior Division) at Surat, the relevant ground of eviction relied upon was that the plaintiffs required the suit premises for their residence and business after rebuilding it. The case as set up appears to have been that the plaintiffs wanted to demolish the suit premises and then to construct a new building on the site and to occupy a part of the proposed new building for their residence and a part for their business. This was the requirement of the plaintiffs as set up in the former suit that was filed in November 1953. Now, the plaint averment is that the plaintiffs require the suit premises bona fide and reasonably for their occupation as business premises. It may here be remembered that the relevant plaint averment in paragraph 4 is that plaintiff No. 1 has eight sons, out of whom three are adult and married and his family consists of 40 members. The averment farther is that the three adult sons were in service of the plaintiffs' firm at the relevant time and have acquired sufficient experience in the business of vegetables and fruits, which was being carried on by plaintiff No. 1 as a wholesale dealer in partnership with his brother's sons and now that the sons have acquired sufficient experience and attained a particular age, the plaintiff wanted to set up his sons in the new business, the income of which would go to augment the family resources. The plaint averment further is that, in absence of suitable vacant accommodation, the three adult sons had per forge to be continued in service and their experience and business capacity cannot be utilised and developed and, as a result, there was a loss in the family earnings and a deficit to meet the family expenses and it was not possible to run the house in the income which plaintiff No. 1 was earning in the partnership business. Thus, clearly there are changes in the circumstances of the plaintiffs, subsequent to the institution of the 1953 suit of eviction and the present ground is a new one. The grounds urged for recovery of possession of the Suit premises in the two suits are clearly different. The ground now urged is a new ground which apparently was nonexistent at the date of the institution of the former suit in November 1953. Thus, the matter in issue now in the present suit was not directly and substantially in issue in the former suit and further, the present matter could not have been made a ground of attack in the former suit. The contention, therefore, that the present suit was barred by principles of res judicata or that it was barred by principle of constructive res judicata has no merit and must be rejected.

10. I may in this connection further say that this question does not appear to have been dealt with in the judgment under revision and presumably, the point was not urged before the learned Judge. It may be remembered that the trial Court has negatived this issue. It was urged by Mr. Shastri and with substance that this is a new ground, not permissible to the applicants to raise in this revision application. However, my attention has been invited by the learned Advocate General to the relevant ground No. 3 which is to be found in the memo of revision application, wherein such a ground has been specifically stated to have been urged before the learned District Judge. It is true that the learned Advocate who has argued the appeal before the learned District Judge has not filed the affidavit. But, having regard to the specific averment which has remained on the record in the ground of the memo of this revision application, I have permitted the learned Advocate General to raise the same. But, as aforesaid, I do not find any substance in the ground now urged.

11. The second contention that was raised and emphasized was that there was a complete change of front in the evidence of the plain tiffs vis-a-vis the averment in the plaint and in the notice and the learned District Judge has failed to notice material circumstance, while considering the question of the plaintiffs' requirement. The learned Advocate General has contended that the case of setting up the sons in a separate business and thereby seeking an additional income to be found in the evidence was not set up either in the plaint or in the suit notice which preceded the institution of the suit. It is difficult to appreciate this contention. The relevant plaint averments referred to by me in the earlier part of my judgment clearly show that the case as set up in the plaint was that the plaintiff No. 1 required his adult and experienced three sons to be set up in a separate business of the same kind and this, with the specific purpose of expanding their business, with a view to augment the family resources and meeting the family expenses as there was a deficit. In the suit notice, Ex. 44, there is an averment that the plaintiffs were under a notice to quit a godown which they were occupying as tenants in Rangrej Gali in Surat. The averment further is that, even if the plaintiffs were not under such a notice to quit the rented godown, they wanted their sons, who were then serving, to be set up in business as their present income was not sufficient and the suit godown was, therefore, required for that purpose. Thus, construing the relevant averments in the plaint and in the notice, to my mind, it clearly appears that the learned District Judge was right in considering the plaintiff's case to be of the requirement of the plaintiff's sons to be set up in a new business separate from that of the partnership firm, wherein plaintiff No. 1 was a partner with his brother's sons and his own three sons were at the time serving. The evidence has also been led and recorded on that line and without any objection having been raised as regards their relevancy. Thus, both parties understood the plaintiff's case as being the requirement of the, plaintiff's sons to be set up in the new business with a view to augment the family income of plaintiff No. 1. Again, the plaint does contain the necessary averment and being a mofussil pleading must be liberally construed. Having regard to the facts found by the learned District Judge in this connection and having also regard to the consideration by the learned trial Judge as regards the alleged deficit to the plaintiff's family considered by him in paragraph 11 of his judgment, and also having regard to the construction of the pleadings by the learned District Judge, with which I have no reason to disagree, I do not think that a narrow construction as is sought to be placed on the pleadings by the learned Advocate General can be acceptable. This contention, therefore, need not detain me any further.

12. It was then contended by the learned Advocate General that even on the facts as found by the learned District Judge, the requirement proved was of the three sons of the plaintiffs to be set up in a separate business as vegetable and fruit dealers, for which purpose the suit premises were sought to be vacated. It was argued that it was not shown that the three sons had an interest in the suit premises; but, on the contrary, the suit was filed by plaintiff No. 1 and his mother Bai Mahali, since deceased, stating in the plaint that the suit premises were of their ownership and as such, the requirement of the sons cannot be treated as the requirement of the plaintiffs for their occupation within the meaning of Clause (g) of Sub-section (1) of Section 13 of the Act. The submission was that it was only when the premises were required for the occupation by any person for whose benefit the premises are held that the requirement can be said to be one within the meaning of Clause (g). Now, the relevant part of Section 13 of the Act reads as under:

13. (1) Notwithstanding anything contained in this Act (but subject to the provisions of Section 15), a landlord shall be entitled to recover possession of any premises if the Court is satisfied:

(a) x x x x

(b) x x x x

(c) x x x x

(d) x x x x

(e) x x x x

(f) x x x x

(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or

x x x x.

Now, it is not the case of the plaintiffs that the premises were held by the plaintiffs for the benefit of the three sons who are to be set up in business. It is also not their case that the third part of the clause which deals with the landlord being a trustee of the public charitable trust arises for consideration in this case. The only question, therefore, that requires some consideration is whether the requirement of the sons of plaintiff No. 1 to be set up in a new (separate) business is the requirement of the plaintiff No. 1 for the occupation by himself. In this connection, I may say that it has been found as a fact by the learned District Judge that plaintiff No. 1 has a large family of about 40 members, and this includes the three adult and married sons aforesaid, for whose business requirement the suit premises are required; that the said three sons have acquired sufficient experience in the business which the plaintiff father is carrying on in partnership with his brother's sons, the business being a wholesale business in fruits and vegetables; that the sons now want and are required to be settled in business with a view to enable them to have a separate business, the income of which business is to go to augment the family resources. The learned Judge has further found that the present partnership business of plaintiff No. 1 was a joint family business of plaintiff No. 1 with his brother's sons. It is not in dispute that these three sons of plaintiff No. 1 are living together in the same family consisting of such a large number as 40 members. Apart from the question whether they are all so living together as members of a joint Hindu family or that the suit premises now sought to be vacated are owned by the two plaintiffs, as is contended by the learned Advocate General, or that they belong to their joint Hindu family, the inference, clearly deductible from the aforesaid findings arrived at by the learned District Judge, is that the plaintiffs and the three sons look upon themselves as members of the same family, having a duty to maintain a household consisting of 40 members and meeting the household expenses of this family and that is why the three sons are required be set up in the same type of business in the suit premises, the income whereof is meant to be utilised for meeting the expenses of the family of which the plaintiff No. 1 is acting and is looked upon as the head. Presumably, they all looked upon themselves, in fact, as members of one family and as constituting one unit. 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 purposes of residence or of business.

13. A similar question appears to have been considered in the unreported decision in Jayantilal Muljibhai Parikh v. Ochhavlal Vithaldas Parikh, Civil Revision Application No. 751 of 1950, decided by Chagla, C. J., on November 23, 1950. In that case, the premises were sought by the landlord on the ground that they were reasonably and bona fide required for his own occupation. It appears that the landlord rented these premises himself in 1941 and he sublet two rooms of the house to the defendant in 1942-43. The contention of the plaintiff in the suit was that he needed these two rooms as the requirements of his family had increased. One of the reasons which the plaintiff advanced was that he had a brother who was married and who was a doctor and who used to stay in the family, but who had to take rented rooms outside became accommodation in the house was not sufficient. But, although he had taken rented rooms, he used to come to the family house for the purpose of messing. The plaintiff himself who had rented the house, stayed with his wife in Bombay, the suit premises being situated in Ahmedabad and the suit having been filed in year 1947. It was contended on behalf of the applicant-defendant in the said revision application that a landlord can only eject his tenant if he needs the premises bona fide and reasonable either for his personal use or for the use of those who are dependent upon him, and, as contended, the plaintiff's married brother who was practising as a doctor could not be considered to be a dependent of the plaintiff. In this connection, the learned Chief Justice has first referred to the decision in Institute of Radio Technology v. Pandurang Baburao 47 Bom. L.R. 825, and observed that it was perfectly true that it was laid down in that case that the words 'his own occupation' in Section 11 mean occupation of the landlord and all persons who are dependent on him. However, the learned Chief Justice did not think that Mr. Justice Divatia (who delivered the judgment) intended to lay down an all embracing and comprehensive definition of the expression 'his own occupation' or 'occupation by himself used in Section 13(g) The learned Chief Justice has then observed as under:

I do not think it is the intention of the Rent Restriction Act, however drastic its provisions are, to disrupt a family and to drive members of the family out because they start earning and are not dependent upon a member who pays the rent and in whose name the premises stand. There is evidence here that the plaintiff and his brothers, his father, his grandfather, were all living together. It is immaterial whether they were members of a joint family or not. But if members of a family live together, mess together and look upon themselves as a unit, the Court is entitled to consider their requirements as requirements of the landlord who is seeking to eject the tenant.

The learned Chief Justice has further observed that:

The position might have been different if a member of the family who is not a dependent wanted for the first time to come and stay with the plaintiff and if the plaintiff wanted additional accommodation for the benefit of that member of the family. But when we have a case as we have here of all the members staying together, then the members of the family are in the same position as the dependents or the landlord.

The learned Chief Justice has further observed that:

I do not see why, if it is permissible to consider the claims of a man's wife and children, it is not permissible to consider the claims of his father or grandfather or brothers, if they all stay together and constitute, if not in law, in fact a joint family, a family which is looked upon as a unit.

I am in respectful agreement with the aforesaid observations of the learned Chief Justice. In my view, the words 'for occupation by himself occurring in Section 13(1)(g) of the Act cannot be construed as having a narrow meaning as being limited to the use of only the landlord himself as was contended by the learned Advocate General. 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 the requirement of the members as the 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 house 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 other. Thus, having regard to the facts of the case as found by the learned District Judge, the requirement of the three sons would mean the requirement of the plaintiff-landlord for occupation by himself.

14. I must say that the learned Advocate General had tried to distinguish the decision in Jayantilal Muljibhai Parikh v. Ochhavlal Vithaldas Parikh (supra) on the ground that it dealt with a case of a requirement not for the business, but for the residence. In my view, it makes no difference whether the premises are required by a member of the family, who treats himself as a single unit, for business purposes or residential purposes. The words required for 'occupation by himself in Clause (g) are wide enough to embrace both the requirements, business requirement as well as residential requirement. More so here, when the income of the new business is to go for the use of the family, there is no reason to put the suggested narrow interpretation. Therefore, the learned District Judge in considering the requirements of the sons of the landlord was not travelling outside the provisions of the Act. Such a requirement has been rightly held to be bona fide and reasonable.

15. The learned Advocate General had relied upon the decision in Smith v. Penny (1947) I K.B. 231, and contended that similar word 'himself occurring in Section 3 and para (h)(i) of Schedule I to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, was construed to have a restricted meaning and was confined to the occupation of the landlord for (i) himself; or (ii) any son or daughter of his over 18 years of age; and (iii) his father or mother. It was urged that this would indicate that the requirement of other persons would not be included within the meaning of para (h). It was further urged that the conditions obtaining in India were the same and Clause (g) of Section 13(1) of the Act must be construed to have a restricted scope. Now, conditions obtaining in the two countries are entirely different. Moreover, Section 3 and para (h) deal with recovery of possession of dwelling houses only, unlike the provision contained in Clause (g) of Section 13(1) of the Act, which will have application to business premises as well. In Smith v. Penny the decision was that an order can be made in favour of a landlord who, being compelled by his work to live elsewhere, wanted, the house not for himself personally but as a home for his family, e. g., his house-keeper and his two children. It is difficult to understand how this decision can be pressed into service on behalf of the defendants. On the contrary, it indicates that the word 'himself is to be given an extended meaning even under the English law so as to preserve the family home and for the purpose, the concepts of 'family' and 'family home' are considered to cover a wider compass.

16. I may here say that Mr. Shastri had contended that the three sons were dependents on plaintiff No. 1 and, therefore, the requirement of the sons must be considered to be the requirement of the plaintiff No. 1 who was the father. In support of his submission, Mr. Shastri has relied upon the decision in Institute of Radio Technology v. Pandurang Baburao 47 Bom. L.R. 825 (supra), wherein a Division Bench of the Bombay High Court has taken the view that the words 'his own occupation' occurring in Section 11 of the Bombay Rent Restriction Act, 1939, mean occupation of the landlord and all persons who are dependent on him and as such, the occupation of the three sons would mean the occupation of the plaintiff-father. It may well be said that the facts found by the learned District Judge may lead to a reasonable inference that the three sons are in a way dependents of the plaintiff-father and as such, the requirement of the sons to occupy the suit premises can be said to be the requirement for the occupation of the landlord by himself within the meaning of Section 13(1)(g) of the Act, wherein similar language is used. However, I do not propose to base my judgment on such an inference of the sons being dependents.

I may say that I have examined the decision in appeal as a whole and, in my view, the decision is according to law and no case for my interference is made out. Rule discharged with costs.

17. The applicants are given three months' time from to-day to vacate the suit premises and hand over peaceful and vacant possession of the suit premises to the opponent.


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