Daulatram Khitumal Udhrani Vs. Rajendrabhai Jayantilal Tailor and ors.

Decided On : Jul-08-1997

Court : Gujarat

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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			'casenote' => ' -  -  Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose. Section 13(1)(1) provides that -Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. (E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. Raval, learned Advocate for tenant as well as Mr. 12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question.',
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			'judgement' => '<p style="text-align: justify;">S.D. Shah, J.</p><p style="text-align: justify;">1. The petitioner is the defendant-tenant against whom the respondent-landlord filed the suit for eviction being Reg. Civil Suit No. 129 of 1983 in the Court of Civil Judge (J.D.) at Rajpipla, who decreed the suit of the respondent-plaintiffs and in the Regular Civil Appeal No. 85 of 1986 preferred in the Court of Extra Assistant Judge, Broach he partially allowed the appeal by judgment and decree dated 30th July, 1992 by holding that the respondent-plaintiffs were entitled to recover possession of the suit premises under Section 13(1)(1) of Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, hereinafter referred to as the 'said Act', and set partially aside the decree of the trial Court while reversing the judgment and order of the trial Court for decree for possession on the ground available under Sections 13(l)(b) and 13(l)(g) of the said Act. Shortly speaking the learned Extra Assistant Judge at Broach confirmed the decree for possession in favour of respondent-plaintiffs mainly on the ground that they were entitled to possession of suit premises as the petitioner-tenant has acquired suitable residential accommodation and was, therefore, liable to be evicted under Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">2. The trial Court being Civil Judge (J.D.) at Rajpipla by judgment and decree, dated 30-9-1986 came to conclusion that the plaintiff has proved that the defendant has changed the user of the premises and that the plaintiff required the suit premises reasonably and bona fide and that the plaintiff will suffer greater hardship if decree of eviction is refused. So far as the findings recorded by the trial Court on these issues were concerned, it must be stated that before the lower appellate Court it was conceded by the plaintiff himself that the decree for eviction under Section 13(l)(g) was not sustainable because a person who was in need of premises was not examined and has not stated that he required the suit premises for his personal use and bona fide requirement. His Advocate also fairly conceded that the judgment and decree of the trail Court against the opponent on that ground cannot be upheld and therefore, it is not required for this Court to decide the question of entitlement of the landlord for a decree of eviction under Section 13(l)(g) of the said Act.</p><p style="text-align: justify;">3. As regards issue No. 4 as to whether the landlord proved that the defendant has acquired suitable premises the trial Court recorded finding in favour of landlord and held that the landlord was entitled to decree for possession. This judgment and decree of the trial Court dated 30-9-1986 was challenged by the petitioner-tenant by preferring Reg. Civil Appeal No. 85 of 1986 and the learned Extra Assistant Judge at Broach by judgment and decree, dated 30-7-1992 partially allowed the appeal but confirmed the decree of possession of the suit premises under Section 13(1)(1) of the said Act. It is the said decree which is under challenge in this revision application before this Court.</p><p style="text-align: justify;">4. Mr. Harin P. Raval, learned Advocate appearing for petitioner has mainly assailed the judgment and decree passed by the lower appellate Court under Section 13(1)(1) of the said Act on various grounds while Mr. P.B. Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose.</p><p style="text-align: justify;">5. The crux of the controversy between the tenant and the landlord thus centres round the passing of a decree of eviction concurrently by two Courts below on the ground of eviction available under Section 13 of the said Act. Section 13(1)(1) provides that -</p><p style="text-align: justify;">Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -</p><p style="text-align: justify;">(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence.</p><p style="text-align: justify;">6. In the present case, before I proceed to deal with the rival contentions of the learned Advocates appearing for the parties, and thereby their contention on interpretation and applicability of Section 13(1)(1) of the said Act, it would be necessary for this Court to note the limitations and restrictions which are required to be observed while exercising revisional jurisdiction under Section 29(2) of the said Act. In the case of Helper Girdharbhai v. Saiyad Mohmad Mirasaheb reported in : [1987]3SCR289 while dealing with the exercise of revisional powers under Section 29(2) of the said Act by the High Court, Sabyasachi Mukharji, J. (as His Lordship then was) speaking for the Division Bench observed in Para 16 that the jurisdiction of the High Court is to correct all errors of law going to the root of the decision, which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. Thereafter the Court further observed as under :</p><p style="text-align: justify;">In exercising Revisional power under Section 29(2) the High Court must ensure that the principles of law have been correctly borne in mind by the lower Court. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. In order to warrant interference, the decision must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. But, in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view, is not permissible. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant.</p><p style="text-align: justify;">7. Keeping the aforesaid observations of the Apex Court in mind this Court has to guard itself against exercising the revisional powers by substituting its own in the guise of revisional powers to the two views which are held and expressed concurrently by the two Courts below. If the view taken by the two Courts below cannot be said to be perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law would arrive at such a finding on the face of the record, this Court should be loath to exercise its jurisdiction and as per law expressed by the Apex Court, the High Court even under Section 29(2) of the said Act should not exercise its jurisdiction simply because on facts the High Court would have taken a different view.</p><p style="text-align: justify;">8. Keeping the aforesaid guidelines as propounded by the Apex Court in mind regarding exercise of jurisdiction by this Court under Section 29(2), this Court shall now proceed to consider the rival submissions made by the parties mainly on the legality, validity or otherwise of the decree of eviction passed by the two Courts below against the tenant under Section 13(1)0) of the said Act.</p><p style="text-align: justify;">9. It must be stated that based on the pleadings of the parties, the trial Court framed issues at Exh. 18 and raised issue No. 4 as to whether the plaintiff has proved that the defendant has acquired suitable residential premises and on such issue No. 4 the finding recorded is in the affirmative. The trial Court has discussed issue Nos. 3 & 4 together which, in the opinion of this Court, is not proper as issue No. 3 relates to the question of greater hardship and as to who would suffer greater hardship if decree of eviction is passed. This issue has relevance in connection with the ground of eviction available to the landlord under Section 13(l)(g) of the said Act, and discussion of these two issues together has to limited extent misdirected the trial Court and the trial Court has not properly concentrated on the issue of acquisition of suitable residential premises by the tenant.</p><p style="text-align: justify;">10. The defendant is admittedly having sons, namely, Fathubhai Rambhai, Mulchandjibhai and Pappy @ Laxman. Let us now see and examine premises-residential and business in their possession.</p><p style="text-align: justify;">(A) The defendant's son Fathubhai is having a shop in the Municipal Shopping Centre and even Fathubhai's son is having shop in the Municipal Shopping Centre in the name of 'Prem Prakash' and 'Mahesh Stores' respectively. The tenant himself has in Para 9 of his cross-examination admitted that he has purchased house in the name of his wife in Bhatwad at Rajpipla in the year 1970 where two sons are residing.</p><p style="text-align: justify;">(B) The second son of the defendant - Rambhai stays with his brother- Fathubhai in the house at Bhatwada.</p><p style="text-align: justify;">(C) His third son - Mulchandjibhai is doling business of 'Cold Drinks' at Garudeshwar and stays at Rajendra Society in a rented house at Garudeshwar. The said son - Mulchandjibhai is running Soda Factory in Pan Talawadi area.</p><p style="text-align: justify;">(D) The defendant himself is also running business in the name of 'Jai Bharat Ice Candy' in the house situated at Pan Talavadi area which has three floors. According to tenant he has purchased this house and constructed three-storeyed building. He is carrying on business in the name of 'Jai Bharat Ice Candy' on the ground floor of his own house and the defendant-tenant and his another son Pappy @ Laxman are doing business of Ice Candy and Automotiles on the ground floor of this house at Pan Talawadi. The defendant and his son Pappy are also staying in the very house at Pan Talawadi.</p><p style="text-align: justify;">(E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. On the other hand, the trial Court has on appreciation of evidence found that the plaintiff is having only one house, in fact, which is leased to the defendant and he has filed the suit to recover the possession of the house which is possessed by the tenant. The trial Court has on appreciation of evidence of the defendant, and more particularly, the admissions contained in his evidence found that the tenant has acquired three suitable residential premises albeit along with his sons and four shops at various places. The trial Court has, therefore, found that the defendant has acquired suitable residential premises.</p><p style="text-align: justify;">11. This finding was the subject-matter of appeal in Regular Civil Appeal No. 85 of 1986 before the learned Extra Assistant Judge at Broach which has confirmed the finding. The lower appellate Court has raised points of determination and on point No. 3 as to whether the plaintiff proves that the defendant has acquired alternative suitable premises, finding is recorded in the affirmative. The discussion on the determination of point No. 3 by the lower appellate Court, therefore, assumes importance and both Mr. H.P. Raval, learned Advocate for tenant as well as Mr. P.B. Majmudar, learned Adovate for plaintiff has taken this Court through the entire reasoning of the lower appellate Court contained in Para 6 and has also partially taken this Court to the evidence on record and some of the reported decisions of this Court. It will be appropriate at this stage to deal with this first and thereafter to examine the additional issue raised before this Court as to whether respondent-plaintiffs should be denied the decree of eviction on the ground that they have acquiesced in the acquisition of suitable residence by the tenant or they have waived the right arising from the breach of provisions of Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. Mr. P.B. Majmudar, learned Advocate appearing for the respondent-plaintiff has pointed out to the Court that in the plaint itself it was pleaded that the defendant had purchased a house at Bhatwada of village Rajpipla and that he has also purchased shop No. 28 in Pan Talawadi, both at village Rajpipla. It is also pointed out that the son of the defendant has also purchased Property No. 35/1 in Pan Talawadi estate which is purchased by the son Mulchandbhai. In the written statement which is filed by the tenant at Exh. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. The defendant has examined himself at Exh. 155 and in the course of cross-examination he has admitted that he has purchased the house at Bhatwada in the year 1970. It is no doubt true that the purchase of properties by any one member of the family, wife or the sons of the tenant may always not assume importance in passing a decree of eviction under Section 13(1)(1) of the Act when the family of the tenant is too large and it is always dependent upon the facts and circumstances of each case and the law on the subject is propounded by the Gujarat High Court in the case of Hasmukhlal Raichand Shah v. Arvindbhai Mohanlal Kapadia reported in 1988 (1) GLH 122 : 1988 (2) GLR 1442. In the aforesaid decision a view is taken by the Gujarat High Court that if there is evidence that the tenant and his family members are residing together, one of them has acquired suitable residential accommodation, and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together, then acquisition of suitable residential accommodation by one of them would be considered to be the acquisition of suitable residential accommodation by the tenant and his son. In the case before the High Court a bungalow was constructed by the wife of the tenant and when the husband and the wife were found to be living together the Court concluded that the tenant-husband can be said to have acquired suitable residential accommodation. In the present case, it shall have to be kept in mind that the tenant and his sons have acquired large number of premises which are set out hereinabove and more particularly discussed in Para 7 of the judgment of the lower appellate Court. In the cross-examination of the tenant at Exh. 155 in Para 6 it is admitted by him that his son Fathubhai is also having house situated at Bhatwada. It is also admitted that said Fathubhai has purchased a shop in Municipal Shopping Centre and is carrying on business in the name of Prem prakash. Even Fathubhai's son is also having shop in the name and style of 'Mahesh Stores' in the Municipal Shopping Centre. In Para 9 of the deposition in cross-examination the tenant has admitted that his son Rambhai is residing with Fathubhai in Bhatwada. His another son Mukhandbhai is having Cold Drink shop at Garudeshwar and that he has also acquired a rented premises for residing at Rajendra Society. Said Mulchandbhai is also said to have godown in Pan Talawadi. The tenant has admitted that the said building is purchased by him and the said building has three-stroreys. On the ground floor of the said building he and his son Pappy are running business of Ice Candy and Automobile and that they are residing on the first floor. From the close reading of the evidence of the defendant himself at Exh. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. In my opinion, the discussion of evidence of tenant himself which is closely undertaken by the lower appellate Court, more particularly, in Paras 6 & 7 of the judgment would leave no room for doubt in holding that the petitioner-tenant has acquired suitable residential accommodation.</p><p style="text-align: justify;">13. Mr. H.P. Raval, learned Advocate for tenant has been at pains to convince this Court to hold that when the tenancy commenced in the year 1960, it may be that it was only for residence as found by the two Courts below, but since 1970 the tenant was permitted to do Ice Candy business and dominant use of the premises was commercial or business purpose and not for residential purpose. He has also emphasised the fact from the deposition of the plaintiff at Exh. 77 that the plaintiff-tenant was not doing business 4/5 years prior to the date of deposition and was simply residing but that since last three years he was doing business of running Raviraj Ice Candy. He has also placed reliance on the fact that even licence to run Ice Candy business was issued at Exh. 63 and the father of the plaintiff-landlord has granted permission by signing the document. He has also relied upon the Municipal assessment at Exhs. 66-69 which would go to show that the premises were assessed as business premises and in fact tax was being paid by the landlord and therefore, the landlord knew that the premises were being used for purpose other than the residence. Even before the Prant Officer it is stated by the landlord that he has no objection if the licence is issued to run hotel and based on this piece of evidence he has very strenuously urged before this Court that even if it is believed that the premises were initially let out for residence, they were being used for business or commercial purposes, to the knowledge of the landlord since long period and that the landlord has acquiesced in or waived the right arising from the provisions of Section 13(1)(1) of the said Act to evict the tenant.</p><p style="text-align: justify;">14. In my opinion, the evidence of the tenant himself is sufficient to establish that he and his sons have acquired suitable residential accommodation and he and his sons are carrying either Ice Candy or Automobile business on the ground floor while he is residing with his son Pappy in the house occupied by him in the first and second floor. It is difficult for the tenant to run away from this admission which he has made in his cross-examination and the doctrine of waiver of right can not apply to the statutory prohibition. When a statute provides that the act of acquiring suitable residential accommodation or accommodations by the tenant would entitle the landlord to a decree of possession on the ground of acquisition of suitable residential accommodation by the tenant to permit the doctrine of waiver to operate would amount to frustrate the object of the statute.</p><p style="text-align: justify;">15. In the aforesaid view of the matter, it is difficult to accept the submission of Mr. H.P. Raval, learned Advocate for tenant. The attention of this Court was also invited to the decision in the case of Dahyabhai Motiram v. Nathubhai Bhimbhai reported in (1975) XVI GLR 404 where the learned single Judge of this Court while considering the provisions of Section 13(1 )(1) of the said Act taken the view that though the bungalow was constructed in a separate village topographically situated on the outskirts of the town such residence of the town can be taken into consideration for the purpose of Section 13(1)(1). The Court has in this connection applied the test of predominant intention of letting the premises and has held that if the predominant intention of letting the premises was business Section 13(1)(1) will not apply. In the present case it is very difficult to hold that the predominant intention of the landlord to let the premises was to permit the tenant was commercial because there are articles of the tenant himself and initially it is found that the house was always used for the purpose of residence only. In the present case it shall have to be held that the predominant intention or very purpose of letting the house was one of residence only, the provisions of Section 13(1)(1) of the said Act will be attracted.</p><p style="text-align: justify;">16. My attention was also invited to the decision in the case of Dolatrai Harjivan Bibodi v. Dr. Kantilal Sukhial Shah reported in (1977) XVIII GLR 848 wherein the learned single Judge of this Court while interpreting the Section 13(1)(1) of the said Act found that the tenant acquiring vacant possession he could not be expected to sit tight on his premises after he acquires vacant possession or suitable residence. In the case before the learned single Judge though the premises was given for residential purpose, he was making use of it for dispensary also. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The Court propounded the test of predominant or substantial purpose of letting and observed as under:</p><p style="text-align: justify;">The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question. In fact, the tenant himself who resides on the premises would be said to be guilty of contravention of Section 25 by changing the user of the premises. Besides, no letting would be possible to such lawyers or doctors or washermen, barbers, tailors etc., who both reside and earn their livelihood by working on the said residential premises, which everyone must do in the beginning of his career, as that would convert residential premises to non-residential purpose. Therefore, that exclusion test would be wholly unworkable under the Bombay Rent Control Act and would defeat the whole object of the Act with such penal restriction unless the dominant purpose test is applied.</p><p style="text-align: justify;">17. Applying the aforesaid principle laid down by the aforesaid decisions of this Court, this Court has no manner of doubt in holding that the disputed premises was let by the landlord to the tenant for the reasons given in the rent note, namely, residence and incidental use for running Ice Candy shop for short time would not militate against the tenant using for residence. Condition was also laid down in terms contained in the rent note to the effect that no machinery shall be installed. It was submitted that what was prohibited was installation of machinery, but impliedly it would mean that carrying of other business such as running Ice Candy shop was permitted. In my opinion, the submission is misconceived. When it is specifically stated in the rent note that the premises should not be used for installation of machinery, the implied meaning is that the premises are to be used for residence purpose and not for commercial or business purpose so as to damage or cause waste to the premises. In fact rent note contains such stipulation that the house is let for the purpose of residence and no machinery should be installed. There is no manner of doubt that the dominant use for which the premises was let was that of residence, and it cannot be said that it was let for residence and commercial purpose.</p><p style="text-align: justify;">17.1. In view of the aforesaid discussion, I am of the opinion that the lower appellate Court was justified in confirming the decree of eviction on the ground that the tenant has acquired suitable residential accommodation under Section 13(1)(1) of the said Act and the admission made by the defendant undoubtedly establish that all sons have got separate business and residential premises and he has also got three-storeyed building quite larger in size than the rented premises where on the ground floor he is running Ice Candy shop and Automobile shop while he is residing with his one son on the 1st and IInd floors. In this view of the matter the concurrent decree for possession passed by the two Courts below shall have to be confirmed and is hereby confirmed. Rule is discharged. Interim relief vacated. No costs.</p><p style="text-align: justify;">18. Mr. H.P. Raval, learned Advocate for petitioner at this stage submits that some reasonable time may be granted to the tenant to approach highest Court. Request being just and reasonable is granted. Time to approach the highest Court is granted for a period of 8 weeks from today.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'casename' => 'Daulatram Khitumal Udhrani Vs. Rajendrabhai Jayantilal Tailor and ors.',
		'casenote' => ' -  -  Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose. Section 13(1)(1) provides that -Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. (E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. Raval, learned Advocate for tenant as well as Mr. 12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question.',
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		'casesref' => 'Dolatrai Harjivan Bibodi v. Dr. Kantilal Sukhial Shah;',
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		'court' => 'Gujarat',
		'court_type' => 'HC',
		'decidedon' => '1997-07-08',
		'deposition' => '',
		'favorof' => null,
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		'judge' => ' S.D. Shah, J.',
		'judgement' => '<p style="text-align: justify;">S.D. Shah, J.</p><p style="text-align: justify;">1. The petitioner is the defendant-tenant against whom the respondent-landlord filed the suit for eviction being Reg. Civil Suit No. 129 of 1983 in the Court of Civil Judge (J.D.) at Rajpipla, who decreed the suit of the respondent-plaintiffs and in the Regular Civil Appeal No. 85 of 1986 preferred in the Court of Extra Assistant Judge, Broach he partially allowed the appeal by judgment and decree dated 30th July, 1992 by holding that the respondent-plaintiffs were entitled to recover possession of the suit premises under Section 13(1)(1) of Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, hereinafter referred to as the 'said Act', and set partially aside the decree of the trial Court while reversing the judgment and order of the trial Court for decree for possession on the ground available under Sections 13(l)(b) and 13(l)(g) of the said Act. Shortly speaking the learned Extra Assistant Judge at Broach confirmed the decree for possession in favour of respondent-plaintiffs mainly on the ground that they were entitled to possession of suit premises as the petitioner-tenant has acquired suitable residential accommodation and was, therefore, liable to be evicted under Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">2. The trial Court being Civil Judge (J.D.) at Rajpipla by judgment and decree, dated 30-9-1986 came to conclusion that the plaintiff has proved that the defendant has changed the user of the premises and that the plaintiff required the suit premises reasonably and bona fide and that the plaintiff will suffer greater hardship if decree of eviction is refused. So far as the findings recorded by the trial Court on these issues were concerned, it must be stated that before the lower appellate Court it was conceded by the plaintiff himself that the decree for eviction under Section 13(l)(g) was not sustainable because a person who was in need of premises was not examined and has not stated that he required the suit premises for his personal use and bona fide requirement. His Advocate also fairly conceded that the judgment and decree of the trail Court against the opponent on that ground cannot be upheld and therefore, it is not required for this Court to decide the question of entitlement of the landlord for a decree of eviction under Section 13(l)(g) of the said Act.</p><p style="text-align: justify;">3. As regards issue No. 4 as to whether the landlord proved that the defendant has acquired suitable premises the trial Court recorded finding in favour of landlord and held that the landlord was entitled to decree for possession. This judgment and decree of the trial Court dated 30-9-1986 was challenged by the petitioner-tenant by preferring Reg. Civil Appeal No. 85 of 1986 and the learned Extra Assistant Judge at Broach by judgment and decree, dated 30-7-1992 partially allowed the appeal but confirmed the decree of possession of the suit premises under Section 13(1)(1) of the said Act. It is the said decree which is under challenge in this revision application before this Court.</p><p style="text-align: justify;">4. Mr. Harin P. Raval, learned Advocate appearing for petitioner has mainly assailed the judgment and decree passed by the lower appellate Court under Section 13(1)(1) of the said Act on various grounds while Mr. P.B. Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose.</p><p style="text-align: justify;">5. The crux of the controversy between the tenant and the landlord thus centres round the passing of a decree of eviction concurrently by two Courts below on the ground of eviction available under Section 13 of the said Act. Section 13(1)(1) provides that -</p><p style="text-align: justify;">Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -</p><p style="text-align: justify;">(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence.</p><p style="text-align: justify;">6. In the present case, before I proceed to deal with the rival contentions of the learned Advocates appearing for the parties, and thereby their contention on interpretation and applicability of Section 13(1)(1) of the said Act, it would be necessary for this Court to note the limitations and restrictions which are required to be observed while exercising revisional jurisdiction under Section 29(2) of the said Act. In the case of Helper Girdharbhai v. Saiyad Mohmad Mirasaheb reported in : [1987]3SCR289 while dealing with the exercise of revisional powers under Section 29(2) of the said Act by the High Court, Sabyasachi Mukharji, J. (as His Lordship then was) speaking for the Division Bench observed in Para 16 that the jurisdiction of the High Court is to correct all errors of law going to the root of the decision, which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. Thereafter the Court further observed as under :</p><p style="text-align: justify;">In exercising Revisional power under Section 29(2) the High Court must ensure that the principles of law have been correctly borne in mind by the lower Court. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. In order to warrant interference, the decision must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. But, in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view, is not permissible. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant.</p><p style="text-align: justify;">7. Keeping the aforesaid observations of the Apex Court in mind this Court has to guard itself against exercising the revisional powers by substituting its own in the guise of revisional powers to the two views which are held and expressed concurrently by the two Courts below. If the view taken by the two Courts below cannot be said to be perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law would arrive at such a finding on the face of the record, this Court should be loath to exercise its jurisdiction and as per law expressed by the Apex Court, the High Court even under Section 29(2) of the said Act should not exercise its jurisdiction simply because on facts the High Court would have taken a different view.</p><p style="text-align: justify;">8. Keeping the aforesaid guidelines as propounded by the Apex Court in mind regarding exercise of jurisdiction by this Court under Section 29(2), this Court shall now proceed to consider the rival submissions made by the parties mainly on the legality, validity or otherwise of the decree of eviction passed by the two Courts below against the tenant under Section 13(1)0) of the said Act.</p><p style="text-align: justify;">9. It must be stated that based on the pleadings of the parties, the trial Court framed issues at Exh. 18 and raised issue No. 4 as to whether the plaintiff has proved that the defendant has acquired suitable residential premises and on such issue No. 4 the finding recorded is in the affirmative. The trial Court has discussed issue Nos. 3 & 4 together which, in the opinion of this Court, is not proper as issue No. 3 relates to the question of greater hardship and as to who would suffer greater hardship if decree of eviction is passed. This issue has relevance in connection with the ground of eviction available to the landlord under Section 13(l)(g) of the said Act, and discussion of these two issues together has to limited extent misdirected the trial Court and the trial Court has not properly concentrated on the issue of acquisition of suitable residential premises by the tenant.</p><p style="text-align: justify;">10. The defendant is admittedly having sons, namely, Fathubhai Rambhai, Mulchandjibhai and Pappy @ Laxman. Let us now see and examine premises-residential and business in their possession.</p><p style="text-align: justify;">(A) The defendant's son Fathubhai is having a shop in the Municipal Shopping Centre and even Fathubhai's son is having shop in the Municipal Shopping Centre in the name of 'Prem Prakash' and 'Mahesh Stores' respectively. The tenant himself has in Para 9 of his cross-examination admitted that he has purchased house in the name of his wife in Bhatwad at Rajpipla in the year 1970 where two sons are residing.</p><p style="text-align: justify;">(B) The second son of the defendant - Rambhai stays with his brother- Fathubhai in the house at Bhatwada.</p><p style="text-align: justify;">(C) His third son - Mulchandjibhai is doling business of 'Cold Drinks' at Garudeshwar and stays at Rajendra Society in a rented house at Garudeshwar. The said son - Mulchandjibhai is running Soda Factory in Pan Talawadi area.</p><p style="text-align: justify;">(D) The defendant himself is also running business in the name of 'Jai Bharat Ice Candy' in the house situated at Pan Talavadi area which has three floors. According to tenant he has purchased this house and constructed three-storeyed building. He is carrying on business in the name of 'Jai Bharat Ice Candy' on the ground floor of his own house and the defendant-tenant and his another son Pappy @ Laxman are doing business of Ice Candy and Automotiles on the ground floor of this house at Pan Talawadi. The defendant and his son Pappy are also staying in the very house at Pan Talawadi.</p><p style="text-align: justify;">(E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. On the other hand, the trial Court has on appreciation of evidence found that the plaintiff is having only one house, in fact, which is leased to the defendant and he has filed the suit to recover the possession of the house which is possessed by the tenant. The trial Court has on appreciation of evidence of the defendant, and more particularly, the admissions contained in his evidence found that the tenant has acquired three suitable residential premises albeit along with his sons and four shops at various places. The trial Court has, therefore, found that the defendant has acquired suitable residential premises.</p><p style="text-align: justify;">11. This finding was the subject-matter of appeal in Regular Civil Appeal No. 85 of 1986 before the learned Extra Assistant Judge at Broach which has confirmed the finding. The lower appellate Court has raised points of determination and on point No. 3 as to whether the plaintiff proves that the defendant has acquired alternative suitable premises, finding is recorded in the affirmative. The discussion on the determination of point No. 3 by the lower appellate Court, therefore, assumes importance and both Mr. H.P. Raval, learned Advocate for tenant as well as Mr. P.B. Majmudar, learned Adovate for plaintiff has taken this Court through the entire reasoning of the lower appellate Court contained in Para 6 and has also partially taken this Court to the evidence on record and some of the reported decisions of this Court. It will be appropriate at this stage to deal with this first and thereafter to examine the additional issue raised before this Court as to whether respondent-plaintiffs should be denied the decree of eviction on the ground that they have acquiesced in the acquisition of suitable residence by the tenant or they have waived the right arising from the breach of provisions of Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. Mr. P.B. Majmudar, learned Advocate appearing for the respondent-plaintiff has pointed out to the Court that in the plaint itself it was pleaded that the defendant had purchased a house at Bhatwada of village Rajpipla and that he has also purchased shop No. 28 in Pan Talawadi, both at village Rajpipla. It is also pointed out that the son of the defendant has also purchased Property No. 35/1 in Pan Talawadi estate which is purchased by the son Mulchandbhai. In the written statement which is filed by the tenant at Exh. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. The defendant has examined himself at Exh. 155 and in the course of cross-examination he has admitted that he has purchased the house at Bhatwada in the year 1970. It is no doubt true that the purchase of properties by any one member of the family, wife or the sons of the tenant may always not assume importance in passing a decree of eviction under Section 13(1)(1) of the Act when the family of the tenant is too large and it is always dependent upon the facts and circumstances of each case and the law on the subject is propounded by the Gujarat High Court in the case of Hasmukhlal Raichand Shah v. Arvindbhai Mohanlal Kapadia reported in 1988 (1) GLH 122 : 1988 (2) GLR 1442. In the aforesaid decision a view is taken by the Gujarat High Court that if there is evidence that the tenant and his family members are residing together, one of them has acquired suitable residential accommodation, and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together, then acquisition of suitable residential accommodation by one of them would be considered to be the acquisition of suitable residential accommodation by the tenant and his son. In the case before the High Court a bungalow was constructed by the wife of the tenant and when the husband and the wife were found to be living together the Court concluded that the tenant-husband can be said to have acquired suitable residential accommodation. In the present case, it shall have to be kept in mind that the tenant and his sons have acquired large number of premises which are set out hereinabove and more particularly discussed in Para 7 of the judgment of the lower appellate Court. In the cross-examination of the tenant at Exh. 155 in Para 6 it is admitted by him that his son Fathubhai is also having house situated at Bhatwada. It is also admitted that said Fathubhai has purchased a shop in Municipal Shopping Centre and is carrying on business in the name of Prem prakash. Even Fathubhai's son is also having shop in the name and style of 'Mahesh Stores' in the Municipal Shopping Centre. In Para 9 of the deposition in cross-examination the tenant has admitted that his son Rambhai is residing with Fathubhai in Bhatwada. His another son Mukhandbhai is having Cold Drink shop at Garudeshwar and that he has also acquired a rented premises for residing at Rajendra Society. Said Mulchandbhai is also said to have godown in Pan Talawadi. The tenant has admitted that the said building is purchased by him and the said building has three-stroreys. On the ground floor of the said building he and his son Pappy are running business of Ice Candy and Automobile and that they are residing on the first floor. From the close reading of the evidence of the defendant himself at Exh. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. In my opinion, the discussion of evidence of tenant himself which is closely undertaken by the lower appellate Court, more particularly, in Paras 6 & 7 of the judgment would leave no room for doubt in holding that the petitioner-tenant has acquired suitable residential accommodation.</p><p style="text-align: justify;">13. Mr. H.P. Raval, learned Advocate for tenant has been at pains to convince this Court to hold that when the tenancy commenced in the year 1960, it may be that it was only for residence as found by the two Courts below, but since 1970 the tenant was permitted to do Ice Candy business and dominant use of the premises was commercial or business purpose and not for residential purpose. He has also emphasised the fact from the deposition of the plaintiff at Exh. 77 that the plaintiff-tenant was not doing business 4/5 years prior to the date of deposition and was simply residing but that since last three years he was doing business of running Raviraj Ice Candy. He has also placed reliance on the fact that even licence to run Ice Candy business was issued at Exh. 63 and the father of the plaintiff-landlord has granted permission by signing the document. He has also relied upon the Municipal assessment at Exhs. 66-69 which would go to show that the premises were assessed as business premises and in fact tax was being paid by the landlord and therefore, the landlord knew that the premises were being used for purpose other than the residence. Even before the Prant Officer it is stated by the landlord that he has no objection if the licence is issued to run hotel and based on this piece of evidence he has very strenuously urged before this Court that even if it is believed that the premises were initially let out for residence, they were being used for business or commercial purposes, to the knowledge of the landlord since long period and that the landlord has acquiesced in or waived the right arising from the provisions of Section 13(1)(1) of the said Act to evict the tenant.</p><p style="text-align: justify;">14. In my opinion, the evidence of the tenant himself is sufficient to establish that he and his sons have acquired suitable residential accommodation and he and his sons are carrying either Ice Candy or Automobile business on the ground floor while he is residing with his son Pappy in the house occupied by him in the first and second floor. It is difficult for the tenant to run away from this admission which he has made in his cross-examination and the doctrine of waiver of right can not apply to the statutory prohibition. When a statute provides that the act of acquiring suitable residential accommodation or accommodations by the tenant would entitle the landlord to a decree of possession on the ground of acquisition of suitable residential accommodation by the tenant to permit the doctrine of waiver to operate would amount to frustrate the object of the statute.</p><p style="text-align: justify;">15. In the aforesaid view of the matter, it is difficult to accept the submission of Mr. H.P. Raval, learned Advocate for tenant. The attention of this Court was also invited to the decision in the case of Dahyabhai Motiram v. Nathubhai Bhimbhai reported in (1975) XVI GLR 404 where the learned single Judge of this Court while considering the provisions of Section 13(1 )(1) of the said Act taken the view that though the bungalow was constructed in a separate village topographically situated on the outskirts of the town such residence of the town can be taken into consideration for the purpose of Section 13(1)(1). The Court has in this connection applied the test of predominant intention of letting the premises and has held that if the predominant intention of letting the premises was business Section 13(1)(1) will not apply. In the present case it is very difficult to hold that the predominant intention of the landlord to let the premises was to permit the tenant was commercial because there are articles of the tenant himself and initially it is found that the house was always used for the purpose of residence only. In the present case it shall have to be held that the predominant intention or very purpose of letting the house was one of residence only, the provisions of Section 13(1)(1) of the said Act will be attracted.</p><p style="text-align: justify;">16. My attention was also invited to the decision in the case of Dolatrai Harjivan Bibodi v. Dr. Kantilal Sukhial Shah reported in (1977) XVIII GLR 848 wherein the learned single Judge of this Court while interpreting the Section 13(1)(1) of the said Act found that the tenant acquiring vacant possession he could not be expected to sit tight on his premises after he acquires vacant possession or suitable residence. In the case before the learned single Judge though the premises was given for residential purpose, he was making use of it for dispensary also. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The Court propounded the test of predominant or substantial purpose of letting and observed as under:</p><p style="text-align: justify;">The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question. In fact, the tenant himself who resides on the premises would be said to be guilty of contravention of Section 25 by changing the user of the premises. Besides, no letting would be possible to such lawyers or doctors or washermen, barbers, tailors etc., who both reside and earn their livelihood by working on the said residential premises, which everyone must do in the beginning of his career, as that would convert residential premises to non-residential purpose. Therefore, that exclusion test would be wholly unworkable under the Bombay Rent Control Act and would defeat the whole object of the Act with such penal restriction unless the dominant purpose test is applied.</p><p style="text-align: justify;">17. Applying the aforesaid principle laid down by the aforesaid decisions of this Court, this Court has no manner of doubt in holding that the disputed premises was let by the landlord to the tenant for the reasons given in the rent note, namely, residence and incidental use for running Ice Candy shop for short time would not militate against the tenant using for residence. Condition was also laid down in terms contained in the rent note to the effect that no machinery shall be installed. It was submitted that what was prohibited was installation of machinery, but impliedly it would mean that carrying of other business such as running Ice Candy shop was permitted. In my opinion, the submission is misconceived. When it is specifically stated in the rent note that the premises should not be used for installation of machinery, the implied meaning is that the premises are to be used for residence purpose and not for commercial or business purpose so as to damage or cause waste to the premises. In fact rent note contains such stipulation that the house is let for the purpose of residence and no machinery should be installed. There is no manner of doubt that the dominant use for which the premises was let was that of residence, and it cannot be said that it was let for residence and commercial purpose.</p><p style="text-align: justify;">17.1. In view of the aforesaid discussion, I am of the opinion that the lower appellate Court was justified in confirming the decree of eviction on the ground that the tenant has acquired suitable residential accommodation under Section 13(1)(1) of the said Act and the admission made by the defendant undoubtedly establish that all sons have got separate business and residential premises and he has also got three-storeyed building quite larger in size than the rented premises where on the ground floor he is running Ice Candy shop and Automobile shop while he is residing with his one son on the 1st and IInd floors. In this view of the matter the concurrent decree for possession passed by the two Courts below shall have to be confirmed and is hereby confirmed. Rule is discharged. Interim relief vacated. No costs.</p><p style="text-align: justify;">18. Mr. H.P. Raval, learned Advocate for petitioner at this stage submits that some reasonable time may be granted to the tenant to approach highest Court. Request being just and reasonable is granted. Time to approach the highest Court is granted for a period of 8 weeks from today.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'desc' => array(
		'Judgement' => array(
			'id' => '742403',
			'acts' => '',
			'appealno' => '',
			'appellant' => 'Daulatram Khitumal Udhrani',
			'authreffered' => '',
			'casename' => 'Daulatram Khitumal Udhrani Vs. Rajendrabhai Jayantilal Tailor and ors.',
			'casenote' => ' -  -  Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose. Section 13(1)(1) provides that -Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. (E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. Raval, learned Advocate for tenant as well as Mr. 12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question.',
			'caseanalysis' => null,
			'casesref' => 'Dolatrai Harjivan Bibodi v. Dr. Kantilal Sukhial Shah;',
			'citingcases' => '',
			'counselplain' => '',
			'counseldef' => '',
			'court' => 'Gujarat',
			'court_type' => 'HC',
			'decidedon' => '1997-07-08',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => ' S.D. Shah, J.',
			'judgement' => '<p style="text-align: justify;">S.D. Shah, J.</p><p style="text-align: justify;">1. The petitioner is the defendant-tenant against whom the respondent-landlord filed the suit for eviction being Reg. Civil Suit No. 129 of 1983 in the Court of Civil Judge (J.D.) at Rajpipla, who decreed the suit of the respondent-plaintiffs and in the Regular Civil Appeal No. 85 of 1986 preferred in the Court of Extra Assistant Judge, Broach he partially allowed the appeal by judgment and decree dated 30th July, 1992 by holding that the respondent-plaintiffs were entitled to recover possession of the suit premises under Section 13(1)(1) of Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, hereinafter referred to as the 'said Act', and set partially aside the decree of the trial Court while reversing the judgment and order of the trial Court for decree for possession on the ground available under Sections 13(l)(b) and 13(l)(g) of the said Act. Shortly speaking the learned Extra Assistant Judge at Broach confirmed the decree for possession in favour of respondent-plaintiffs mainly on the ground that they were entitled to possession of suit premises as the petitioner-tenant has acquired suitable residential accommodation and was, therefore, liable to be evicted under Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">2. The trial Court being Civil Judge (J.D.) at Rajpipla by judgment and decree, dated 30-9-1986 came to conclusion that the plaintiff has proved that the defendant has changed the user of the premises and that the plaintiff required the suit premises reasonably and bona fide and that the plaintiff will suffer greater hardship if decree of eviction is refused. So far as the findings recorded by the trial Court on these issues were concerned, it must be stated that before the lower appellate Court it was conceded by the plaintiff himself that the decree for eviction under Section 13(l)(g) was not sustainable because a person who was in need of premises was not examined and has not stated that he required the suit premises for his personal use and bona fide requirement. His Advocate also fairly conceded that the judgment and decree of the trail Court against the opponent on that ground cannot be upheld and therefore, it is not required for this Court to decide the question of entitlement of the landlord for a decree of eviction under Section 13(l)(g) of the said Act.</p><p style="text-align: justify;">3. As regards issue No. 4 as to whether the landlord proved that the defendant has acquired suitable premises the trial Court recorded finding in favour of landlord and held that the landlord was entitled to decree for possession. This judgment and decree of the trial Court dated 30-9-1986 was challenged by the petitioner-tenant by preferring Reg. Civil Appeal No. 85 of 1986 and the learned Extra Assistant Judge at Broach by judgment and decree, dated 30-7-1992 partially allowed the appeal but confirmed the decree of possession of the suit premises under Section 13(1)(1) of the said Act. It is the said decree which is under challenge in this revision application before this Court.</p><p style="text-align: justify;">4. Mr. Harin P. Raval, learned Advocate appearing for petitioner has mainly assailed the judgment and decree passed by the lower appellate Court under Section 13(1)(1) of the said Act on various grounds while Mr. P.B. Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose.</p><p style="text-align: justify;">5. The crux of the controversy between the tenant and the landlord thus centres round the passing of a decree of eviction concurrently by two Courts below on the ground of eviction available under Section 13 of the said Act. Section 13(1)(1) provides that -</p><p style="text-align: justify;">Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -</p><p style="text-align: justify;">(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence.</p><p style="text-align: justify;">6. In the present case, before I proceed to deal with the rival contentions of the learned Advocates appearing for the parties, and thereby their contention on interpretation and applicability of Section 13(1)(1) of the said Act, it would be necessary for this Court to note the limitations and restrictions which are required to be observed while exercising revisional jurisdiction under Section 29(2) of the said Act. In the case of Helper Girdharbhai v. Saiyad Mohmad Mirasaheb reported in : [1987]3SCR289 while dealing with the exercise of revisional powers under Section 29(2) of the said Act by the High Court, Sabyasachi Mukharji, J. (as His Lordship then was) speaking for the Division Bench observed in Para 16 that the jurisdiction of the High Court is to correct all errors of law going to the root of the decision, which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. Thereafter the Court further observed as under :</p><p style="text-align: justify;">In exercising Revisional power under Section 29(2) the High Court must ensure that the principles of law have been correctly borne in mind by the lower Court. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. In order to warrant interference, the decision must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. But, in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view, is not permissible. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant.</p><p style="text-align: justify;">7. Keeping the aforesaid observations of the Apex Court in mind this Court has to guard itself against exercising the revisional powers by substituting its own in the guise of revisional powers to the two views which are held and expressed concurrently by the two Courts below. If the view taken by the two Courts below cannot be said to be perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law would arrive at such a finding on the face of the record, this Court should be loath to exercise its jurisdiction and as per law expressed by the Apex Court, the High Court even under Section 29(2) of the said Act should not exercise its jurisdiction simply because on facts the High Court would have taken a different view.</p><p style="text-align: justify;">8. Keeping the aforesaid guidelines as propounded by the Apex Court in mind regarding exercise of jurisdiction by this Court under Section 29(2), this Court shall now proceed to consider the rival submissions made by the parties mainly on the legality, validity or otherwise of the decree of eviction passed by the two Courts below against the tenant under Section 13(1)0) of the said Act.</p><p style="text-align: justify;">9. It must be stated that based on the pleadings of the parties, the trial Court framed issues at Exh. 18 and raised issue No. 4 as to whether the plaintiff has proved that the defendant has acquired suitable residential premises and on such issue No. 4 the finding recorded is in the affirmative. The trial Court has discussed issue Nos. 3 & 4 together which, in the opinion of this Court, is not proper as issue No. 3 relates to the question of greater hardship and as to who would suffer greater hardship if decree of eviction is passed. This issue has relevance in connection with the ground of eviction available to the landlord under Section 13(l)(g) of the said Act, and discussion of these two issues together has to limited extent misdirected the trial Court and the trial Court has not properly concentrated on the issue of acquisition of suitable residential premises by the tenant.</p><p style="text-align: justify;">10. The defendant is admittedly having sons, namely, Fathubhai Rambhai, Mulchandjibhai and Pappy @ Laxman. Let us now see and examine premises-residential and business in their possession.</p><p style="text-align: justify;">(A) The defendant's son Fathubhai is having a shop in the Municipal Shopping Centre and even Fathubhai's son is having shop in the Municipal Shopping Centre in the name of 'Prem Prakash' and 'Mahesh Stores' respectively. The tenant himself has in Para 9 of his cross-examination admitted that he has purchased house in the name of his wife in Bhatwad at Rajpipla in the year 1970 where two sons are residing.</p><p style="text-align: justify;">(B) The second son of the defendant - Rambhai stays with his brother- Fathubhai in the house at Bhatwada.</p><p style="text-align: justify;">(C) His third son - Mulchandjibhai is doling business of 'Cold Drinks' at Garudeshwar and stays at Rajendra Society in a rented house at Garudeshwar. The said son - Mulchandjibhai is running Soda Factory in Pan Talawadi area.</p><p style="text-align: justify;">(D) The defendant himself is also running business in the name of 'Jai Bharat Ice Candy' in the house situated at Pan Talavadi area which has three floors. According to tenant he has purchased this house and constructed three-storeyed building. He is carrying on business in the name of 'Jai Bharat Ice Candy' on the ground floor of his own house and the defendant-tenant and his another son Pappy @ Laxman are doing business of Ice Candy and Automotiles on the ground floor of this house at Pan Talawadi. The defendant and his son Pappy are also staying in the very house at Pan Talawadi.</p><p style="text-align: justify;">(E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. On the other hand, the trial Court has on appreciation of evidence found that the plaintiff is having only one house, in fact, which is leased to the defendant and he has filed the suit to recover the possession of the house which is possessed by the tenant. The trial Court has on appreciation of evidence of the defendant, and more particularly, the admissions contained in his evidence found that the tenant has acquired three suitable residential premises albeit along with his sons and four shops at various places. The trial Court has, therefore, found that the defendant has acquired suitable residential premises.</p><p style="text-align: justify;">11. This finding was the subject-matter of appeal in Regular Civil Appeal No. 85 of 1986 before the learned Extra Assistant Judge at Broach which has confirmed the finding. The lower appellate Court has raised points of determination and on point No. 3 as to whether the plaintiff proves that the defendant has acquired alternative suitable premises, finding is recorded in the affirmative. The discussion on the determination of point No. 3 by the lower appellate Court, therefore, assumes importance and both Mr. H.P. Raval, learned Advocate for tenant as well as Mr. P.B. Majmudar, learned Adovate for plaintiff has taken this Court through the entire reasoning of the lower appellate Court contained in Para 6 and has also partially taken this Court to the evidence on record and some of the reported decisions of this Court. It will be appropriate at this stage to deal with this first and thereafter to examine the additional issue raised before this Court as to whether respondent-plaintiffs should be denied the decree of eviction on the ground that they have acquiesced in the acquisition of suitable residence by the tenant or they have waived the right arising from the breach of provisions of Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. Mr. P.B. Majmudar, learned Advocate appearing for the respondent-plaintiff has pointed out to the Court that in the plaint itself it was pleaded that the defendant had purchased a house at Bhatwada of village Rajpipla and that he has also purchased shop No. 28 in Pan Talawadi, both at village Rajpipla. It is also pointed out that the son of the defendant has also purchased Property No. 35/1 in Pan Talawadi estate which is purchased by the son Mulchandbhai. In the written statement which is filed by the tenant at Exh. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. The defendant has examined himself at Exh. 155 and in the course of cross-examination he has admitted that he has purchased the house at Bhatwada in the year 1970. It is no doubt true that the purchase of properties by any one member of the family, wife or the sons of the tenant may always not assume importance in passing a decree of eviction under Section 13(1)(1) of the Act when the family of the tenant is too large and it is always dependent upon the facts and circumstances of each case and the law on the subject is propounded by the Gujarat High Court in the case of Hasmukhlal Raichand Shah v. Arvindbhai Mohanlal Kapadia reported in 1988 (1) GLH 122 : 1988 (2) GLR 1442. In the aforesaid decision a view is taken by the Gujarat High Court that if there is evidence that the tenant and his family members are residing together, one of them has acquired suitable residential accommodation, and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together, then acquisition of suitable residential accommodation by one of them would be considered to be the acquisition of suitable residential accommodation by the tenant and his son. In the case before the High Court a bungalow was constructed by the wife of the tenant and when the husband and the wife were found to be living together the Court concluded that the tenant-husband can be said to have acquired suitable residential accommodation. In the present case, it shall have to be kept in mind that the tenant and his sons have acquired large number of premises which are set out hereinabove and more particularly discussed in Para 7 of the judgment of the lower appellate Court. In the cross-examination of the tenant at Exh. 155 in Para 6 it is admitted by him that his son Fathubhai is also having house situated at Bhatwada. It is also admitted that said Fathubhai has purchased a shop in Municipal Shopping Centre and is carrying on business in the name of Prem prakash. Even Fathubhai's son is also having shop in the name and style of 'Mahesh Stores' in the Municipal Shopping Centre. In Para 9 of the deposition in cross-examination the tenant has admitted that his son Rambhai is residing with Fathubhai in Bhatwada. His another son Mukhandbhai is having Cold Drink shop at Garudeshwar and that he has also acquired a rented premises for residing at Rajendra Society. Said Mulchandbhai is also said to have godown in Pan Talawadi. The tenant has admitted that the said building is purchased by him and the said building has three-stroreys. On the ground floor of the said building he and his son Pappy are running business of Ice Candy and Automobile and that they are residing on the first floor. From the close reading of the evidence of the defendant himself at Exh. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. In my opinion, the discussion of evidence of tenant himself which is closely undertaken by the lower appellate Court, more particularly, in Paras 6 & 7 of the judgment would leave no room for doubt in holding that the petitioner-tenant has acquired suitable residential accommodation.</p><p style="text-align: justify;">13. Mr. H.P. Raval, learned Advocate for tenant has been at pains to convince this Court to hold that when the tenancy commenced in the year 1960, it may be that it was only for residence as found by the two Courts below, but since 1970 the tenant was permitted to do Ice Candy business and dominant use of the premises was commercial or business purpose and not for residential purpose. He has also emphasised the fact from the deposition of the plaintiff at Exh. 77 that the plaintiff-tenant was not doing business 4/5 years prior to the date of deposition and was simply residing but that since last three years he was doing business of running Raviraj Ice Candy. He has also placed reliance on the fact that even licence to run Ice Candy business was issued at Exh. 63 and the father of the plaintiff-landlord has granted permission by signing the document. He has also relied upon the Municipal assessment at Exhs. 66-69 which would go to show that the premises were assessed as business premises and in fact tax was being paid by the landlord and therefore, the landlord knew that the premises were being used for purpose other than the residence. Even before the Prant Officer it is stated by the landlord that he has no objection if the licence is issued to run hotel and based on this piece of evidence he has very strenuously urged before this Court that even if it is believed that the premises were initially let out for residence, they were being used for business or commercial purposes, to the knowledge of the landlord since long period and that the landlord has acquiesced in or waived the right arising from the provisions of Section 13(1)(1) of the said Act to evict the tenant.</p><p style="text-align: justify;">14. In my opinion, the evidence of the tenant himself is sufficient to establish that he and his sons have acquired suitable residential accommodation and he and his sons are carrying either Ice Candy or Automobile business on the ground floor while he is residing with his son Pappy in the house occupied by him in the first and second floor. It is difficult for the tenant to run away from this admission which he has made in his cross-examination and the doctrine of waiver of right can not apply to the statutory prohibition. When a statute provides that the act of acquiring suitable residential accommodation or accommodations by the tenant would entitle the landlord to a decree of possession on the ground of acquisition of suitable residential accommodation by the tenant to permit the doctrine of waiver to operate would amount to frustrate the object of the statute.</p><p style="text-align: justify;">15. In the aforesaid view of the matter, it is difficult to accept the submission of Mr. H.P. Raval, learned Advocate for tenant. The attention of this Court was also invited to the decision in the case of Dahyabhai Motiram v. Nathubhai Bhimbhai reported in (1975) XVI GLR 404 where the learned single Judge of this Court while considering the provisions of Section 13(1 )(1) of the said Act taken the view that though the bungalow was constructed in a separate village topographically situated on the outskirts of the town such residence of the town can be taken into consideration for the purpose of Section 13(1)(1). The Court has in this connection applied the test of predominant intention of letting the premises and has held that if the predominant intention of letting the premises was business Section 13(1)(1) will not apply. In the present case it is very difficult to hold that the predominant intention of the landlord to let the premises was to permit the tenant was commercial because there are articles of the tenant himself and initially it is found that the house was always used for the purpose of residence only. In the present case it shall have to be held that the predominant intention or very purpose of letting the house was one of residence only, the provisions of Section 13(1)(1) of the said Act will be attracted.</p><p style="text-align: justify;">16. My attention was also invited to the decision in the case of Dolatrai Harjivan Bibodi v. Dr. Kantilal Sukhial Shah reported in (1977) XVIII GLR 848 wherein the learned single Judge of this Court while interpreting the Section 13(1)(1) of the said Act found that the tenant acquiring vacant possession he could not be expected to sit tight on his premises after he acquires vacant possession or suitable residence. In the case before the learned single Judge though the premises was given for residential purpose, he was making use of it for dispensary also. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The Court propounded the test of predominant or substantial purpose of letting and observed as under:</p><p style="text-align: justify;">The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question. In fact, the tenant himself who resides on the premises would be said to be guilty of contravention of Section 25 by changing the user of the premises. Besides, no letting would be possible to such lawyers or doctors or washermen, barbers, tailors etc., who both reside and earn their livelihood by working on the said residential premises, which everyone must do in the beginning of his career, as that would convert residential premises to non-residential purpose. Therefore, that exclusion test would be wholly unworkable under the Bombay Rent Control Act and would defeat the whole object of the Act with such penal restriction unless the dominant purpose test is applied.</p><p style="text-align: justify;">17. Applying the aforesaid principle laid down by the aforesaid decisions of this Court, this Court has no manner of doubt in holding that the disputed premises was let by the landlord to the tenant for the reasons given in the rent note, namely, residence and incidental use for running Ice Candy shop for short time would not militate against the tenant using for residence. Condition was also laid down in terms contained in the rent note to the effect that no machinery shall be installed. It was submitted that what was prohibited was installation of machinery, but impliedly it would mean that carrying of other business such as running Ice Candy shop was permitted. In my opinion, the submission is misconceived. When it is specifically stated in the rent note that the premises should not be used for installation of machinery, the implied meaning is that the premises are to be used for residence purpose and not for commercial or business purpose so as to damage or cause waste to the premises. In fact rent note contains such stipulation that the house is let for the purpose of residence and no machinery should be installed. There is no manner of doubt that the dominant use for which the premises was let was that of residence, and it cannot be said that it was let for residence and commercial purpose.</p><p style="text-align: justify;">17.1. In view of the aforesaid discussion, I am of the opinion that the lower appellate Court was justified in confirming the decree of eviction on the ground that the tenant has acquired suitable residential accommodation under Section 13(1)(1) of the said Act and the admission made by the defendant undoubtedly establish that all sons have got separate business and residential premises and he has also got three-storeyed building quite larger in size than the rented premises where on the ground floor he is running Ice Candy shop and Automobile shop while he is residing with his one son on the 1st and IInd floors. In this view of the matter the concurrent decree for possession passed by the two Courts below shall have to be confirmed and is hereby confirmed. Rule is discharged. Interim relief vacated. No costs.</p><p style="text-align: justify;">18. Mr. H.P. Raval, learned Advocate for petitioner at this stage submits that some reasonable time may be granted to the tenant to approach highest Court. Request being just and reasonable is granted. Time to approach the highest Court is granted for a period of 8 weeks from today.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Daulatram Khitumal Udhrani Vs. Rajendrabhai Jayantilal Tailor and ors. Semantic Analysis'
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	'Judgement' => array(
		'id' => '742403',
		'acts' => '',
		'appealno' => '',
		'appellant' => 'Daulatram Khitumal Udhrani',
		'authreffered' => '',
		'casename' => 'Daulatram Khitumal Udhrani Vs. Rajendrabhai Jayantilal Tailor and ors.',
		'casenote' => ' -  -  Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose. Section 13(1)(1) provides that -Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. (E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. Raval, learned Advocate for tenant as well as Mr. 12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question.',
		'caseanalysis' => null,
		'casesref' => 'Dolatrai Harjivan Bibodi v. Dr. Kantilal Sukhial Shah;',
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		'counselplain' => '',
		'counseldef' => '',
		'court' => 'Gujarat',
		'court_type' => 'HC',
		'decidedon' => '1997-07-08',
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		'judge' => ' S.D. Shah, J.',
		'judgement' => '<p style="text-align: justify;">S.D. Shah, J.</p><p style="text-align: justify;">1. The petitioner is the defendant-tenant against whom the respondent-landlord filed the suit for eviction being Reg. Civil Suit No. 129 of 1983 in the Court of Civil Judge (J.D.) at Rajpipla, who decreed the suit of the respondent-plaintiffs and in the Regular Civil Appeal No. 85 of 1986 preferred in the Court of Extra Assistant Judge, Broach he partially allowed the appeal by judgment and decree dated 30th July, 1992 by holding that the respondent-plaintiffs were entitled to recover possession of the suit premises under Section 13(1)(1) of Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, hereinafter referred to as the 'said Act', and set partially aside the decree of the trial Court while reversing the judgment and order of the trial Court for decree for possession on the ground available under Sections 13(l)(b) and 13(l)(g) of the said Act. Shortly speaking the learned Extra Assistant Judge at Broach confirmed the decree for possession in favour of respondent-plaintiffs mainly on the ground that they were entitled to possession of suit premises as the petitioner-tenant has acquired suitable residential accommodation and was, therefore, liable to be evicted under Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">2. The trial Court being Civil Judge (J.D.) at Rajpipla by judgment and decree, dated 30-9-1986 came to conclusion that the plaintiff has proved that the defendant has changed the user of the premises and that the plaintiff required the suit premises reasonably and bona fide and that the plaintiff will suffer greater hardship if decree of eviction is refused. So far as the findings recorded by the trial Court on these issues were concerned, it must be stated that before the lower appellate Court it was conceded by the plaintiff himself that the decree for eviction under Section 13(l)(g) was not sustainable because a person who was in need of premises was not examined and has not stated that he required the suit premises for his personal use and bona fide requirement. His Advocate also fairly conceded that the judgment and decree of the trail Court against the opponent on that ground cannot be upheld and therefore, it is not required for this Court to decide the question of entitlement of the landlord for a decree of eviction under Section 13(l)(g) of the said Act.</p><p style="text-align: justify;">3. As regards issue No. 4 as to whether the landlord proved that the defendant has acquired suitable premises the trial Court recorded finding in favour of landlord and held that the landlord was entitled to decree for possession. This judgment and decree of the trial Court dated 30-9-1986 was challenged by the petitioner-tenant by preferring Reg. Civil Appeal No. 85 of 1986 and the learned Extra Assistant Judge at Broach by judgment and decree, dated 30-7-1992 partially allowed the appeal but confirmed the decree of possession of the suit premises under Section 13(1)(1) of the said Act. It is the said decree which is under challenge in this revision application before this Court.</p><p style="text-align: justify;">4. Mr. Harin P. Raval, learned Advocate appearing for petitioner has mainly assailed the judgment and decree passed by the lower appellate Court under Section 13(1)(1) of the said Act on various grounds while Mr. P.B. Majmudar has submitted that since there are concurrent findings reached by two Courts below this Court should be loath to interfere with such findings more particularly when the tenant has acquired the accommodation, both residential as well for business purpose.</p><p style="text-align: justify;">5. The crux of the controversy between the tenant and the landlord thus centres round the passing of a decree of eviction concurrently by two Courts below on the ground of eviction available under Section 13 of the said Act. Section 13(1)(1) provides that -</p><p style="text-align: justify;">Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises, if the Court is satisfied -</p><p style="text-align: justify;">(1) that the tenant after the coming into operation of this Act has built, acquired vacant possession of or been allotted a suitable residence.</p><p style="text-align: justify;">6. In the present case, before I proceed to deal with the rival contentions of the learned Advocates appearing for the parties, and thereby their contention on interpretation and applicability of Section 13(1)(1) of the said Act, it would be necessary for this Court to note the limitations and restrictions which are required to be observed while exercising revisional jurisdiction under Section 29(2) of the said Act. In the case of Helper Girdharbhai v. Saiyad Mohmad Mirasaheb reported in : [1987]3SCR289 while dealing with the exercise of revisional powers under Section 29(2) of the said Act by the High Court, Sabyasachi Mukharji, J. (as His Lordship then was) speaking for the Division Bench observed in Para 16 that the jurisdiction of the High Court is to correct all errors of law going to the root of the decision, which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. Thereafter the Court further observed as under :</p><p style="text-align: justify;">In exercising Revisional power under Section 29(2) the High Court must ensure that the principles of law have been correctly borne in mind by the lower Court. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. In order to warrant interference, the decision must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. But, in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view, is not permissible. If a possible view has been taken, the High Court would be exceeding its jurisdiction, if it substitutes its own view in place of that of the Courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant.</p><p style="text-align: justify;">7. Keeping the aforesaid observations of the Apex Court in mind this Court has to guard itself against exercising the revisional powers by substituting its own in the guise of revisional powers to the two views which are held and expressed concurrently by the two Courts below. If the view taken by the two Courts below cannot be said to be perverse in the sense that no reasonable person acting judicially and properly instructed in the relevant law would arrive at such a finding on the face of the record, this Court should be loath to exercise its jurisdiction and as per law expressed by the Apex Court, the High Court even under Section 29(2) of the said Act should not exercise its jurisdiction simply because on facts the High Court would have taken a different view.</p><p style="text-align: justify;">8. Keeping the aforesaid guidelines as propounded by the Apex Court in mind regarding exercise of jurisdiction by this Court under Section 29(2), this Court shall now proceed to consider the rival submissions made by the parties mainly on the legality, validity or otherwise of the decree of eviction passed by the two Courts below against the tenant under Section 13(1)0) of the said Act.</p><p style="text-align: justify;">9. It must be stated that based on the pleadings of the parties, the trial Court framed issues at Exh. 18 and raised issue No. 4 as to whether the plaintiff has proved that the defendant has acquired suitable residential premises and on such issue No. 4 the finding recorded is in the affirmative. The trial Court has discussed issue Nos. 3 & 4 together which, in the opinion of this Court, is not proper as issue No. 3 relates to the question of greater hardship and as to who would suffer greater hardship if decree of eviction is passed. This issue has relevance in connection with the ground of eviction available to the landlord under Section 13(l)(g) of the said Act, and discussion of these two issues together has to limited extent misdirected the trial Court and the trial Court has not properly concentrated on the issue of acquisition of suitable residential premises by the tenant.</p><p style="text-align: justify;">10. The defendant is admittedly having sons, namely, Fathubhai Rambhai, Mulchandjibhai and Pappy @ Laxman. Let us now see and examine premises-residential and business in their possession.</p><p style="text-align: justify;">(A) The defendant's son Fathubhai is having a shop in the Municipal Shopping Centre and even Fathubhai's son is having shop in the Municipal Shopping Centre in the name of 'Prem Prakash' and 'Mahesh Stores' respectively. The tenant himself has in Para 9 of his cross-examination admitted that he has purchased house in the name of his wife in Bhatwad at Rajpipla in the year 1970 where two sons are residing.</p><p style="text-align: justify;">(B) The second son of the defendant - Rambhai stays with his brother- Fathubhai in the house at Bhatwada.</p><p style="text-align: justify;">(C) His third son - Mulchandjibhai is doling business of 'Cold Drinks' at Garudeshwar and stays at Rajendra Society in a rented house at Garudeshwar. The said son - Mulchandjibhai is running Soda Factory in Pan Talawadi area.</p><p style="text-align: justify;">(D) The defendant himself is also running business in the name of 'Jai Bharat Ice Candy' in the house situated at Pan Talavadi area which has three floors. According to tenant he has purchased this house and constructed three-storeyed building. He is carrying on business in the name of 'Jai Bharat Ice Candy' on the ground floor of his own house and the defendant-tenant and his another son Pappy @ Laxman are doing business of Ice Candy and Automotiles on the ground floor of this house at Pan Talawadi. The defendant and his son Pappy are also staying in the very house at Pan Talawadi.</p><p style="text-align: justify;">(E) The trial Court has found that the defendant and his sons are owning or have acquired many houses which are suitable both for residential purpose as well as for business, and they are, in fact, using the houses for residence as well as for business. On the other hand, the trial Court has on appreciation of evidence found that the plaintiff is having only one house, in fact, which is leased to the defendant and he has filed the suit to recover the possession of the house which is possessed by the tenant. The trial Court has on appreciation of evidence of the defendant, and more particularly, the admissions contained in his evidence found that the tenant has acquired three suitable residential premises albeit along with his sons and four shops at various places. The trial Court has, therefore, found that the defendant has acquired suitable residential premises.</p><p style="text-align: justify;">11. This finding was the subject-matter of appeal in Regular Civil Appeal No. 85 of 1986 before the learned Extra Assistant Judge at Broach which has confirmed the finding. The lower appellate Court has raised points of determination and on point No. 3 as to whether the plaintiff proves that the defendant has acquired alternative suitable premises, finding is recorded in the affirmative. The discussion on the determination of point No. 3 by the lower appellate Court, therefore, assumes importance and both Mr. H.P. Raval, learned Advocate for tenant as well as Mr. P.B. Majmudar, learned Adovate for plaintiff has taken this Court through the entire reasoning of the lower appellate Court contained in Para 6 and has also partially taken this Court to the evidence on record and some of the reported decisions of this Court. It will be appropriate at this stage to deal with this first and thereafter to examine the additional issue raised before this Court as to whether respondent-plaintiffs should be denied the decree of eviction on the ground that they have acquiesced in the acquisition of suitable residence by the tenant or they have waived the right arising from the breach of provisions of Section 13(1)(1) of the said Act.</p><p style="text-align: justify;">12. It may be stated at the outset that both the Advocates were at their best in putting forth their case as regards acquisition or non-acquisition of suitable residential accommodation and this Court is, therefore, called upon to peep into evidence limited reference to which is made for the purpose of dealing with the submission made at length by both the Advocates lest it might be alleged that this Court is guilty of not dealing with the submissions raised before it by the learned Advocates appearing for either of the parties even without reference to relevant evidence. Mr. P.B. Majmudar, learned Advocate appearing for the respondent-plaintiff has pointed out to the Court that in the plaint itself it was pleaded that the defendant had purchased a house at Bhatwada of village Rajpipla and that he has also purchased shop No. 28 in Pan Talawadi, both at village Rajpipla. It is also pointed out that the son of the defendant has also purchased Property No. 35/1 in Pan Talawadi estate which is purchased by the son Mulchandbhai. In the written statement which is filed by the tenant at Exh. 66 before the trial Court in Para 6 it is clearly admitted that the properties referred to hereinabove are purchased on ownership basis. The defendant has examined himself at Exh. 155 and in the course of cross-examination he has admitted that he has purchased the house at Bhatwada in the year 1970. It is no doubt true that the purchase of properties by any one member of the family, wife or the sons of the tenant may always not assume importance in passing a decree of eviction under Section 13(1)(1) of the Act when the family of the tenant is too large and it is always dependent upon the facts and circumstances of each case and the law on the subject is propounded by the Gujarat High Court in the case of Hasmukhlal Raichand Shah v. Arvindbhai Mohanlal Kapadia reported in 1988 (1) GLH 122 : 1988 (2) GLR 1442. In the aforesaid decision a view is taken by the Gujarat High Court that if there is evidence that the tenant and his family members are residing together, one of them has acquired suitable residential accommodation, and if there is no evidence to the effect that they had not been looking upon themselves as one unit or when the members of the family live together, mess together, then acquisition of suitable residential accommodation by one of them would be considered to be the acquisition of suitable residential accommodation by the tenant and his son. In the case before the High Court a bungalow was constructed by the wife of the tenant and when the husband and the wife were found to be living together the Court concluded that the tenant-husband can be said to have acquired suitable residential accommodation. In the present case, it shall have to be kept in mind that the tenant and his sons have acquired large number of premises which are set out hereinabove and more particularly discussed in Para 7 of the judgment of the lower appellate Court. In the cross-examination of the tenant at Exh. 155 in Para 6 it is admitted by him that his son Fathubhai is also having house situated at Bhatwada. It is also admitted that said Fathubhai has purchased a shop in Municipal Shopping Centre and is carrying on business in the name of Prem prakash. Even Fathubhai's son is also having shop in the name and style of 'Mahesh Stores' in the Municipal Shopping Centre. In Para 9 of the deposition in cross-examination the tenant has admitted that his son Rambhai is residing with Fathubhai in Bhatwada. His another son Mukhandbhai is having Cold Drink shop at Garudeshwar and that he has also acquired a rented premises for residing at Rajendra Society. Said Mulchandbhai is also said to have godown in Pan Talawadi. The tenant has admitted that the said building is purchased by him and the said building has three-stroreys. On the ground floor of the said building he and his son Pappy are running business of Ice Candy and Automobile and that they are residing on the first floor. From the close reading of the evidence of the defendant himself at Exh. 125 and more particularly the portion of cross-examination it is established beyond doubt that the tenant in the present case is one who is well-to-do individual with all his sons having residential as well as business premises and he himself has purchased three-storeyed building where along with his son Pappy he is carrying on the business of Ice Candy and Automobile on the ground floor while he is residing on the first floor and the son is residing on the second floor. In my opinion, the discussion of evidence of tenant himself which is closely undertaken by the lower appellate Court, more particularly, in Paras 6 & 7 of the judgment would leave no room for doubt in holding that the petitioner-tenant has acquired suitable residential accommodation.</p><p style="text-align: justify;">13. Mr. H.P. Raval, learned Advocate for tenant has been at pains to convince this Court to hold that when the tenancy commenced in the year 1960, it may be that it was only for residence as found by the two Courts below, but since 1970 the tenant was permitted to do Ice Candy business and dominant use of the premises was commercial or business purpose and not for residential purpose. He has also emphasised the fact from the deposition of the plaintiff at Exh. 77 that the plaintiff-tenant was not doing business 4/5 years prior to the date of deposition and was simply residing but that since last three years he was doing business of running Raviraj Ice Candy. He has also placed reliance on the fact that even licence to run Ice Candy business was issued at Exh. 63 and the father of the plaintiff-landlord has granted permission by signing the document. He has also relied upon the Municipal assessment at Exhs. 66-69 which would go to show that the premises were assessed as business premises and in fact tax was being paid by the landlord and therefore, the landlord knew that the premises were being used for purpose other than the residence. Even before the Prant Officer it is stated by the landlord that he has no objection if the licence is issued to run hotel and based on this piece of evidence he has very strenuously urged before this Court that even if it is believed that the premises were initially let out for residence, they were being used for business or commercial purposes, to the knowledge of the landlord since long period and that the landlord has acquiesced in or waived the right arising from the provisions of Section 13(1)(1) of the said Act to evict the tenant.</p><p style="text-align: justify;">14. In my opinion, the evidence of the tenant himself is sufficient to establish that he and his sons have acquired suitable residential accommodation and he and his sons are carrying either Ice Candy or Automobile business on the ground floor while he is residing with his son Pappy in the house occupied by him in the first and second floor. It is difficult for the tenant to run away from this admission which he has made in his cross-examination and the doctrine of waiver of right can not apply to the statutory prohibition. When a statute provides that the act of acquiring suitable residential accommodation or accommodations by the tenant would entitle the landlord to a decree of possession on the ground of acquisition of suitable residential accommodation by the tenant to permit the doctrine of waiver to operate would amount to frustrate the object of the statute.</p><p style="text-align: justify;">15. In the aforesaid view of the matter, it is difficult to accept the submission of Mr. H.P. Raval, learned Advocate for tenant. The attention of this Court was also invited to the decision in the case of Dahyabhai Motiram v. Nathubhai Bhimbhai reported in (1975) XVI GLR 404 where the learned single Judge of this Court while considering the provisions of Section 13(1 )(1) of the said Act taken the view that though the bungalow was constructed in a separate village topographically situated on the outskirts of the town such residence of the town can be taken into consideration for the purpose of Section 13(1)(1). The Court has in this connection applied the test of predominant intention of letting the premises and has held that if the predominant intention of letting the premises was business Section 13(1)(1) will not apply. In the present case it is very difficult to hold that the predominant intention of the landlord to let the premises was to permit the tenant was commercial because there are articles of the tenant himself and initially it is found that the house was always used for the purpose of residence only. In the present case it shall have to be held that the predominant intention or very purpose of letting the house was one of residence only, the provisions of Section 13(1)(1) of the said Act will be attracted.</p><p style="text-align: justify;">16. My attention was also invited to the decision in the case of Dolatrai Harjivan Bibodi v. Dr. Kantilal Sukhial Shah reported in (1977) XVIII GLR 848 wherein the learned single Judge of this Court while interpreting the Section 13(1)(1) of the said Act found that the tenant acquiring vacant possession he could not be expected to sit tight on his premises after he acquires vacant possession or suitable residence. In the case before the learned single Judge though the premises was given for residential purpose, he was making use of it for dispensary also. Afterwards the doctor constructed suitable premises for residence as well as for dispensary, but he used the tenanted premises incidentally for business purpose also. The Court propounded the test of predominant or substantial purpose of letting and observed as under:</p><p style="text-align: justify;">The question as to whether premises are used for residential purpose or not could never be decided in such an exclusion test but only the test of dominant main or substantial purpose because otherwise the whole purpose of the legislature in accommodating this limited right of the landlord to get possession of his premises after the tenant had acquired other suitable residence would be defeated even when the letting was for residential purpose dominantly and incidentally the other user was made by the person residing in those premises to earn his livelihood while staying on the residential premises in question. In fact, the tenant himself who resides on the premises would be said to be guilty of contravention of Section 25 by changing the user of the premises. Besides, no letting would be possible to such lawyers or doctors or washermen, barbers, tailors etc., who both reside and earn their livelihood by working on the said residential premises, which everyone must do in the beginning of his career, as that would convert residential premises to non-residential purpose. Therefore, that exclusion test would be wholly unworkable under the Bombay Rent Control Act and would defeat the whole object of the Act with such penal restriction unless the dominant purpose test is applied.</p><p style="text-align: justify;">17. Applying the aforesaid principle laid down by the aforesaid decisions of this Court, this Court has no manner of doubt in holding that the disputed premises was let by the landlord to the tenant for the reasons given in the rent note, namely, residence and incidental use for running Ice Candy shop for short time would not militate against the tenant using for residence. Condition was also laid down in terms contained in the rent note to the effect that no machinery shall be installed. It was submitted that what was prohibited was installation of machinery, but impliedly it would mean that carrying of other business such as running Ice Candy shop was permitted. In my opinion, the submission is misconceived. When it is specifically stated in the rent note that the premises should not be used for installation of machinery, the implied meaning is that the premises are to be used for residence purpose and not for commercial or business purpose so as to damage or cause waste to the premises. In fact rent note contains such stipulation that the house is let for the purpose of residence and no machinery should be installed. There is no manner of doubt that the dominant use for which the premises was let was that of residence, and it cannot be said that it was let for residence and commercial purpose.</p><p style="text-align: justify;">17.1. In view of the aforesaid discussion, I am of the opinion that the lower appellate Court was justified in confirming the decree of eviction on the ground that the tenant has acquired suitable residential accommodation under Section 13(1)(1) of the said Act and the admission made by the defendant undoubtedly establish that all sons have got separate business and residential premises and he has also got three-storeyed building quite larger in size than the rented premises where on the ground floor he is running Ice Candy shop and Automobile shop while he is residing with his one son on the 1st and IInd floors. In this view of the matter the concurrent decree for possession passed by the two Courts below shall have to be confirmed and is hereby confirmed. Rule is discharged. Interim relief vacated. No costs.</p><p style="text-align: justify;">18. Mr. H.P. Raval, learned Advocate for petitioner at this stage submits that some reasonable time may be granted to the tenant to approach highest Court. Request being just and reasonable is granted. Time to approach the highest Court is granted for a period of 8 weeks from today.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: Section 13(1)(1, Section 13(1)(1, Section 13(l)(g, Section 13(l)(g, Section 13(1)(1, Section 13(1)(1, Section 13, Section 13(1)(1, Section 13(1)(1, Section 29(2, Section 29(2, Section 29(2, Section 29(2, Section 29(2, Section 13(1)0, Section 13(l)(g, Section 13(1)(1, Section 13(1)(1, Section 13(1)(1, Section 13(1, Section 13(1)(1, Section 13(1)(1, Section 13(1)(1, the Section 13(1)(1, Section 25, Section 13(1)(1

PERSON: S.D. Shah, J.1, Reg, Broach, Reg, Broach, Harin P. Raval, P.B. Majmudar, J., Exh, Nos, Fathubhai Rambhai, Fathubhai, Prem Prakash', Mahesh Stores', Pappy @, Automotiles, Pappy, H.P. Raval, P.B. Majmudar, P.B. Majmudar, Mulchandbhai, Exh, Exh, Arvindbhai Mohanlal Kapadia, Exh, Fathubhai, Rambhai, Mukhandbhai, Pappy, Exh, Pappy, H.P. Raval, Exh, Pappy, H.P. Raval, Dolatrai Harjivan Bibodi, Kantilal Sukhial Shah, H.P. Raval

CARDINAL: 129, 85, 30-9-1986, 4, 30, 85, 30, two, two, one, two, two, two, two, two, 18, 4, 4, 3, 3, two, two, three, three, only one, three, four, 85, 3, 3, 28, 66, 155, one, 1, 122, 2, one, one, one, 155, three, 125, three, two, 66-69, 404, 1, 848, three, one, two

DATE: 1983, 1986, 30th July, 1992, 1947, 13(l)(b, 13(l)(g, 1986, 1992, 1987]3SCR289, Para 16, Para 9, the year 1970, 1986, Para 6, Para 6, the year 1970, 1988, 1988, 1442, Para 6, Para 9, the year 1960, 1970, 4/5 years, last three years, Exh. 63, 1975, 1977, the 1st, 8 weeks, today

ORG: the Court of Civil Judge (, Rajpipla, the Regular Civil Appeal No., the Court of Extra, Bombay Rents, Hotel & Lodging House Rates Control Act, Court, Court, Broach, Court, Rajpipla, Court, Court, Court, Court, Court, Court, Court, Court, Court, Court, the High Court, Sabyasachi Mukharji, the High Court, Court, Revisional, the High Court, Court, the Court of Small Causes, the High Court, the High Court, the Apex Court, Court, Court, the Apex Court, the High Court, the High Court, the Apex Court, Court, Court, Court, Court, Court, Court, Court, the Municipal Shopping Centre, the Municipal Shopping Centre, residing.(B, Rajendra Society, Soda Factory, Pan Talawadi, Pan Talavadi, Pan Talawadi, Pan Talawadi.(E, Court, Court, Court, Court, Broach, Court, Court, Adovate, Court, Court, Court, Court, Court, Act.12, Court, Court, Court, Rajpipla, Pan Talawadi, Rajpipla, Pan Talawadi, Court, the Gujarat High Court, the Gujarat High Court, the High Court, Court, Court, Municipal Shopping Centre, Prem, the Municipal Shopping Centre, Cold Drink, Rajendra Society, Mulchandbhai, Pan Talawadi, Ice Candy and Automobile, Ice Candy and Automobile, Court, Paras 6 & 7, Court, Raviraj Ice Candy, Exhs, Court, Ice Candy or Automobile, Court, Dahyabhai Motiram, Court, Court, Court, Court, the Bombay Rent Control Act, Court, Court, Court, Automobile, Court

GPE: J.D., J.D., Act.3, Helper Girdharbhai v., Mulchandjibhai, Fathubhai, Bhatwad, Rambhai, Fathubhai, Bhatwada.(C, Mulchandjibhai, Garudeshwar, Mulchandjibhai, Bhatwada, Bhatwada, Bhatwada, Fathubhai, Fathubhai, Fathubhai, Bhatwada, Nathubhai, Bhimbhai

NORP: Extra, Extra, Extra, statute.15

ORDINAL: Secondly, second, third, first, first, first, second, first, second

WORK_OF_ART: 'Cold Drinks' at Garudeshwar, 'Jai Bharat Ice Candy', 'Jai Bharat Ice Candy'

FAC: Hasmukhlal Raichand Shah, Garudeshwar