S.H. Sheth, J.
1. The plaintiff filed against the defendant the present suit for recovering possession of the suit premises on four grounds. Firstly she alleged that the defendant has acquired vacant possession of a suitable residence within the meaning of Section 13(1)(1) of the Bombay Rent Act. Secondly, she alleged that she requires the suit premises reasonably and bonafide for her occupation within the meaning of Section 13(1)(g) Thirdly, she alleged that the defendant has unlawfully sub-let the suit premises and was, therefore, liable to be evicted under Section 13(1)(e). Lastly she alleged that the defendant had been in arrears of rent and had, therefore, rendered himself liable to be evicted under Section 12 of the Rent Act.
2. The defendant in his turn challenged the validity of the statutory notice served upon him.
3. The learned Trial Judge upheld the validity of the statutory notice and negatived all the grounds of eviction raised by the plaintiff. He, therefore, dismissed the suit.
4. The plaintiff appealed to the District Court against the decree sed by the learned Trial Judge. The learned Appellate Judge held that the statutory notice was valid, negatived all grounds of eviction except one alleged by the plaintiff and held that the defendant was liable to be evicted from the suit premises because he has acquired vacant possession of a suitable residence. In view of this finding of his, he passed in favour of the plaintiff decree for possession.
5. It is that appellate decree which is challenged by the defendant in this Civil Revision Application.
6. The only contention which Mr. Shah has raised before me on behalf of the defendant is that the finding recorded by the learned Appellate on the question of acquisition of vacant possession of a suitable residence is erroneous in law. The suit premises in respect of which the defendant is the tenant consist of two rooms, one office, one kitchen and and are covered by a terrace. They are situated at Rajkot. It is at dispute that the defendant has also taken on rent a second set of at Rajkot. The learned Appellate Judge has held that the tenancy premise of the suit premises is in the name of the defendant personally. According to him, therefore, he alone can reside in the suit premises and the members of his joint family.
7. If a tenant has been residing in his rented premises anyone else whether he is a son, wife, husband, father, daughter, brother or sister can reside with him. No difficulty can ever arise on this account. The dfficulty which the present case has raised arises only when a tenant takes on rent a second set of rented premises, leaves some of his close relations in the old premises, and shifts to his new premises. What is the test to be applied in such case? In my opinion, if a tenant takes on rent new premises in order to get over the difficulty arising out of shortage of accommodation for his large family, he cannot ipso facto be said to have acquired vacant possession of a suitable residence by which he would be rendered liable to be evicted from his old premises. It is for the purpose of accommodating his large family that he may take on rent two sets of premises. If merely on account of the fact that he has taken on rent a new set of premises he is evicted from his old premises, then the difficulty which he has tried to solve in the matter of accommodating his large family would continue to haunt him. In such a case he would never be able to solve the difficulty.
8. Therefore, the real test, in my opinion is when a tenant has one set of rented premises and when he takes a second set of premises on rent, whether the old premises from which he has shifted to his new premises continue to be occupied by his dependants. If the persons who continue to occupy the old premises are his dependants, it cannot be said that he has acquired vacant possession of a suitable residence because this eviction from his old premises will again drive his dependants from that place to his new premises and will create difficulty of accomodating them. If the evidence shows that the new premises which a tenant has taken on rent are sufficient to accommodate himself and all his dependants, them certainly he can be evicted under Section 13(1)(1) of the Rent Act from his old premises. If the new premises are not sufficient for accommodating his large family and if he himself resides in his new premises and if his dependants continue to occupy or reside in his old premises, I do not think he can be evicted under Section 13(1)(1) of the Bombay Rent Act from his old premises because his new premises are not 'suitable' for accommodating his entire family. In the instant case, it has been found by the learned District Judge that the suit premises have been left by the defendant to his brothers. There is no evidence on record to show whether they are his dependants or not. The learned District Judge was, therefore, in error in holding that the defendant could not have left the suit premises to his brother. It is, therefore, necessary in the interest of justice to take fresh cannot be accommodated by the defendant in his new premises, then the defendant cannot be evicted from the suit premises under Section 13(1)(1) of Bombay Rent Act. In view of the reasons stated above, the decree for possession passed by the learned District Judge is liable to be set aside and the suit is required to be remanded to the Trial Court for recording a finding on this aspect of the case. A suitable residence within the meaning of Section 13(1)(1), means a residence which is really an alternative to the suit premises.
9. I, therefore, set aside the decree for possession passed by the learned District Judge and remand the suit to the Trial Court for a fresh trial and decision on the following issues:
(1) Whether those who are occupying the suit premises are the defendant's dependants.
(2) Whether they can be suitably accommodated in the new premises which the defendant has taken on rent.
10. If the learned Trial Judge answers the first issue in the negative, the defendant will be liable to be evicted from the suit premises. It will not in that case be necessary for him to record any finding on the second issue. If he records his findings on both the issues in the affirmative, even then the defendant will be liable to be evicted from the suit premises under Section 13(1)(1) of the Rent Act. If the learned Trial Judge answers the first issue in the affirmative but answers the second issue in the negative, the defendant would not be liable to be evicted from the suit premises. I make rule absolute to the aforesaid extent and remand the suit to the Trial Court. In the circumstances, there shall be no order as to costs of this Civil Revision Application.