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Sheikh Mazmusha SalehIn Sheikh Nurmohamed and anr. Vs. SaifuddIn Mohamedbhai and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR4
AppellantSheikh Mazmusha SalehIn Sheikh Nurmohamed and anr.
RespondentSaifuddIn Mohamedbhai and anr.
Excerpt:
- .....he upheld the finding recorded by the learned trial judge that the defendants had acquired suitable residence within the meaning of section 13(1)(1). in that view of the matter he dismissed the appeal and confirmed the decree for possession.3. it is that appellate decree which is challenged by the defendants in this civil revision application.4. miss shah who appears on behalf of the defendants has argued that the findings recorded by the lower appellate court are thoroughly misconceived. now the facts found by the learned judge are that in the other building which the defendants are said to have acquired, defendants have been running business. it is a structure consisting of ground floor and two upper floors. on the ground floor and in half of one of the upper floors the.....
Judgment:

S.H. Sheth, J.

1. The plaintiffs filed the present suit against the defendants under the Bombay Rent Act for recovering possession of the suit premises on two grounds. The plaintiffs required the suit premises reasonably and bona fide for their personal occupation. Defendants had acquired suitable accommodation within the meaning of Section 13(1)(1).

2. The learned trial Judge upheld both the grounds and decreed the plaintiff's suit. Defendants appealed against that decree to the District Court. The learned appellate Judge held mat the plaintiffs did not require the suit premises reasonably and bona fide for their personal occupation. He, therefore, set aside the finding recorded in that behalf by the learned trial Judge. However, he upheld the finding recorded by the learned trial Judge that the defendants had acquired suitable residence within the meaning of Section 13(1)(1). In that view of the matter he dismissed the appeal and confirmed the decree for possession.

3. It is that appellate decree which is challenged by the defendants in this Civil Revision Application.

4. Miss Shah who appears on behalf of the defendants has argued that the findings recorded by the lower appellate Court are thoroughly misconceived. Now the facts found by the learned Judge are that in the other building which the defendants are said to have acquired, defendants have been running business. It is a structure consisting of ground floor and two upper floors. On the ground floor and in half of one of the upper floors the defendants are running their business. The remaining 1-1/2 floors are occupied by the workers whom the defendants have been employing. The learned appellate Judge has found that workers are merely licensees and that they are a floating population in the sense that they are no fixed persons who continue to occupy the premises as workers for a long duration. Workers whom the defendants have been employing go on changing. Therefore, those who are occupying the remaining 1-1/2 floors today may go away tomorrow and a second set of persons may come and occupy the premises. Similarly, the second set of persons may go away the next day and a third set of persons may come and occupy the premises. It is in this sense that I have used the expression 'floating population' to describe the nature and character of the persons who have been occupying the suit premises. The learned appellate Judge has held that those workers have been occupying 1-1/2 floors of the building in question as mere licensees and they have been doing so temporarily. Therefore, they can always be thrown out and the defendants can go and occupy them for their residence this 1-1/2 floors.

5. The approach of the learned appellate Judge is, in my opinion, very wrong. Occupation of 1-1/2 floors by the workers who assist the defendants in running the business on the remaining 1-1/2 floors constitutes the use of the building for business purpose and not for residential purpose. Therefore, the entire building is utilised by the defendants for a business purpose. Without the workers the business would be ruined and without the business the workers would starve and be stranded. Therefore, inseverably they are interlinked. Under these circumstances it is difficult to say that the remaining 1-1/2 floors occupied by the workers employed by the defendants constitute 'suitable residence' within the meaning of Section 13(1)(1) of the Bombay Rent Act.

6. Next it is necessary to note that if workers are thrown out and the defendants occupy 1-1/2 floors which the workers have been occupying, then it may create a serious difficulty in procuring the services of workers to run the business which will lead to defendants' business being ruined. The concept of 'suitable residence' does not, in my opinion, embrace within its sweep and ambit the ruination or dislodgment of business for the purpose of converting a particular premises into a 'suitable residence'.

7. Under the circumstances which are present in this case, the concept of 'suitable residence' incorporated in Section 13(1)(1) cannot be stretched to mean that even if the business of the tenant is ruined, he must be evicted from the premises in his occupation because there is some other accommodation in his business premises which he can occupy as residence and which, I assume, is otherwise suitable for the purpose of residence.

8. In my opinion, therefore, the finding of acquisition of suitable residence by the defendants recorded by the learned appellate Judge cannot be upheld. In the result, I set aside the finding and hold that the alternative accommodation does not constitute 'suitable residence' for the defendants within the meaning of Section 13(1)(1).

In that view of the matter, the impugned decree cannot be sustained. The civil Revision Application is, therefore, allowed, the decree for possession passed by the Courts below is set aside and the plaintiffs' suit is dismissed. Rule is made absolute with no order as to costs.


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