Gujarat High Court
DATE: 4 April, 1984
Equivalent citations: (1984) 2 GLR 1058
Author: V Bedarkar
Bench: V Bedarkar
JUDGMENT
V.V. Bedarkar, J.
(1) This is a revision application under sec. 29(2) of the Bombay Rent Act against the concurrent decree of both the courts below directing the petitioner to vacate the premises on the ground of sec. 13(1) (k) of the Act. This dispute pertains to a suit house at Baroda on Kothi Road belonging to the respondent and given on rent in the name of the petitioner ever since the time when she was a minor. It is the case that her father was serving at Broach and there-fire she was initially studying in Gujarati. But because she wanted to study Sindhi at Baroda, she came to her maternal relative and there-after this house was taken on rent in her name so that she can study there. It is the case that since 1968, the petitioner has gone over to Bombay. She is serving there as a Lecturer in College of Pharmacy and therefore this house is not used. Initially, it was the case that because she has got an alternative accommodation at Bombay, the possession of this premises should be handed over to the respondent under the provisions of sec. 13(1)(1) of the Act. And then the another contention, in the a terminative which was urged was under sec. 13(1)(k) of the Act was believed by the trial court and decree was passed on both counts. But the appellate court considered that two houses at Bombay were not in the name of the petitioner, but they were in the names of her father and mother or brother and therefore decree on that count was set aside. But the learned appellate judge in appeal, confirmed the decree on the count of sec. 13(1)(k) of the Act,. The landlord did not proceed father against his being non-suited under sec. 13(1)(1) and hence that finding has been found.
(2) . The case of the petitioner was that she had temporarily gone to Bombay for studies and has taken a casual appointment as Lecturer. But she had all desire to come back to Baroda and stay in the suit house and that in her absence, her parents were staying in the suit house at Baroda and therefore the decree should not be passed. Both the courts below did not believe the case of the petitioner that her parents were staying in the house and maintaining it which is for the benefit of the petitioner so that after coming back to Baroda, she could stay there. The courts below did not believe that she was to return and stay at Baroda. It should be noted that the house is on the main road of city of Baroda on Kothi Road on a rent of only Rs.16-60 p.s.
(3) 3. So far as the facts are concerned, it is not in dispute now that right from 1968, the petitioner’s ordinary residence is at Bombay. It is also not now in dispute that at Bombay, one flat No.A29 of Triloknagar Co-operative Housing Society, Bandra, was standing in the name of her mother Sitaben Trikamdas. It is also an admitted position that at Bandra, the petitioner was staying in the very flat with her brother Lakshman till 1973. It should be noted that the suit is filed on 21-6-1971 and the suit notice is dated 7-1-1977. So the position that was prevalent at that time has to be considered. Of course, by Exh. 71, dated 10-10-1974, the said flat of Triloknagar was transferred to the name of Mr.Ronnie Almeda on 14-12-1974. In that flat of Triloknagar, there are five rooms on the second floor. It is also in evidence that the defendant-petitioner has been residing in block no-13 of Cainor Co-operative Housing Society, Bandra and this flat belongs to the father of the petitioner. The brother of the petitioner lakshman has got a flat in that society. This is addition to the flat belonging to the father and the petitioner stays with her brother Lakshman as a family member. Therefore, the position stands that at the relevant time, there was a flat in the name of mother Sitaben in Triloknagar society and a flat in the name of the father in Cainor Co-operative Housing Society. The petitioner claims that the suit house was used for the residence of these two persons, who were also having their flats in Bombay. Of course, evidence is also there that after 1974, one bungalow in Navjivan society is purchased in the name of the father. But it is the case that, that was purchased for the engineering Firm which was run by the petitioner’s brother Lakshman. As that transaction is after the relevant period, I do not propose to go into it. But a contention is raised before me that here is a man having bungalow at Baroda and a flat in his wife’s name at Bombay and a flat in his own name at Bombay, and still wants to retain this premises in the name of his daughter just in order not to lose the possession of a very precious house in Baroda at the rent of Rs.16-50 ps. P.m. whatever may be the position, if the petitioner is entitled to retain the house in her own rights, merely because the house is in a very important locality and important city like Baroda on a very nominal rent, should not weigh. Now it is found in evidence that it was only in 1971 that the names of the petitioner, her father, her mother and her brother are entered as voters in the municipal corporation elector roll for ward No.7 in the suit premises. It has not come on record that at any time during the whole trial, Lakshman was staying at Baroda. But at any rate, it may be stated that in 1971 this position is there. But it is held that prior to that period, the name of the petitioner was in the elector roll at Bombay. In view of these facts, the only point which is required to be considered is whether the petitioner has proved her animus revertendi that she has desire to come back and stay permanently at Baroda and secondly whether during the statutory period, the house was in use or it had offended the provisions of sec. 13(1)(k) of the Act.
(4) 4. Now I shall refer to the provisions of sec. 13(1) (k) of the Act:
” sec. 13(1) : Notwithstanding anything contained in this Act (but subject to the provisions of sec.15), a landlord shall be entitled to recover possession of any premises if the court is satisfied- (k) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit”.
(5) It should be noted that earlier, unfortunately, an issue was raised- “Whether the plaintiff proves that the defendant is not using the suit premises continuously for a period of six months and more at the date of the suit notice?” Therefore as the contention was raised earlier before the learned appellate judge, the matter was sent back to the trial court by amending the issue to the following effect:
” Whether the plaintiff proves that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit.”
(6) In the earlier issue, there were two defects. The first was, the words ” without reasonable cause” were not mentioned, and second was that instead of ‘the date of the suit’ the words used were ‘date of the suit notice’. After the remand, the finding was given b the learned trial judge in favour of the landlord again. I have referred to this section (k) of the Act because I was considering the relevant statutory period during which the petitioner tries to prove that the house was used for the purpose for which it was let, and if it was not so used, then whether there is reasonable cause for it or not. It is the contention by Mr. Vakil that both the courts below have committed material irregularity which ultimately resulted in substantial injustice to the petitioner in not construing the evidence and the position of law properly. It is the contention that though on the record, there were written documents to show the use of this particular house by the parents, especially by the mother of the petitioner, during the statutory period, that aspect is misconstrued by putting perverse appreciation of documentary evidence. The second ground is that from the evidence on record, it can be shown that the petitioner has desire to come back and stay in Baroda in the suit house and the provisions of law, clearly permit such a possession taking out the rigours of sec. 13(1)(k) of the Act. Still however, both the courts have passed the decree and therefore, this court, in revision, should be in a position to set aside that decree.
(7) This argument is advanced because here before me, Mr.Shelat, the learned advocate appearing on behalf of the respondent has drawn my attention to the limited scope of this court in revision under sec.29(2) of the Act. Sec.29(2) of the act is to the following effect:
“No further appeal shall lie against any decision in appeal under sub-sec. (I) but the High Court may, for the purpose of satisfying itself that nay such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.”
(8) It should be noted that an appeal was filed before the district court under sub-sec. (1) of sec.29 of the Act and therefore, decision in appeal of a district judge, can be revised by this court under sec. 29(2) of the Act, provided the court is satisfied that such decision in appeal was not according to law. In support of this contention, reliance is placed by Mr.Shelat on the decision of the Supreme Court in the case of Hari Shankar and Others v. Rao Girdhari lal Chowdhury, reported A.I.R. 1963, S.C.698. Therein the Supreme court has considered that even though under the Rent Act, the power is not so limited as under sec.115 of the Civil Procedure Code, the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law. The Supreme Court considered that the phrase ‘according to law’ (this was considered so far as sec.35 of the Delhi and Ajmer Rent Control Act, but that consideration also is applicable to Bombay Rent Act) refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. It was also considered by the Supreme Court that “section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit, is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is according to law”.
(9) Then thereafter it has been observed by the Supreme Court that under sec.366, High court cannot interfere with a plain finding of fact arrived at by the court below. It cannot reassess the value of evidence and substitute its own conclusions of fact in place of those reached by the court below. In the instant case, it is the grievance of Mr. Vakil that in order to show the residence of the petitioner and also her mother in the suit premises during the statutory period, some letters were produced by the father during his deposition. Those letters referred to the petitioner’s coming to Baroda in January 1971. They are Exhs. 135, 146 and 140 dated 6-1-1971, 14-1-1971, and 15-1-1971, and the Exh. 141 is dated 5-12-1970. So that is prior to the statutory period. When these letters were produced by the father of the petitioner, no question is put to him that these were the letters fabricated or got written later on, on a wrong stamp from the postal authorities as would be available was obtained. In fact these letters are not challenged when they were produced. But the grievance of Mr.Vakill is that the learned appellate judge in paragraph 18 of his judgment approved the finding of the trial court that the said post-cards were subsequently got up and the postal seals were fabricated. In fact, it is not permissible for a court of facts to jump to a conclusion unless any suggestion is coming from the parties to the effect that the letters were so fabricated. I can understand that if a question is put to a party that the letters were so fabricated and even if the other party says no, it would be open for the court to consider the overall effect. But when there is no suggestion or any doubt created by the party during the examination of a witness when the letters are produced, it is too much for a court to jump to a conclusion about fabrication. It is also contended that the courts below did not accept these letters because they were produced after the remand. A very attractive argument is advanced by Mr.Vakill that earlier there was no occasion to consider the stay in the suit premises during the relevant period because the issue was framed “prior to the suit notice” when the issue was recast and the question of period of six months “prior to the date of suit” arose, probably search was made and letters were found and therefore they were produced in order to meet with the requirement of the issue and therefore merely because those letters were produced at a subsequent stage, they cannot be doubted. This argument is quite justified. The letters did show that for that particular relevant period the mother of the petitioner was in the suit house. The question to be considered is whether that was a residence as required under sec.13(1)(k) of the Act to consider the using of the premises or it was a casual visit, and whether it showed the intention of using the premises as required in that section.
(10) In order to support the sending of letters, the writer of letters Kishor examined. The learned judge did not believe his version that the petitioner had gone to Baroda and from Baroda she had gone to Broach for getting the number of her eye from one Dr. Kama Kaka and she forgot that number card and therefore the letters were written. This was observed mainly because Kishor came out with a story that the defendants mother was in need of money and that he was helping Mohini i.e. the petitioner and her mother Sitaben. The version of Kishor and such statement in the letters xhs. 135 and 136 were not considered by the learned judge to be believable because the defendants father (petitioners father) is admittedly financially sound who owns a flat of five rooms at Bandra. He has a spacious bungalow in Navjivan society Pani-gate Baroda. He has an ambassador car in which he moves. But in my view the grievance of Mr. Vakil is justified that merely because this aspect is not believed it cannot be said that the letters written by Kishor are also false. One thing can be said that so far as the finding of fact is concerned the fact that Kishor was helping the petitioner and her mother is rightly disbelieved by the learned appellate judge and this court will not interfere into it. But that would not affect the fact of the case that letters-have been written. Would the effect of such letters which are written only for a period of 11 days between 6-1-1971 to 15-1-1971 be so as to give a reasonable ground to consider that the premises are used for the purpose for which they are let ? The learned appellate judge in paragraph-19 has considered while discussing the evidence on contention that the parents of the petitioner were residing in the house; held as a matter of fact that in the present case it is not established that the father and mother of the defendant resided in the suit premises because the defendant (petitioner) has not produced any reliable evidence to show that the parents resided in the suit premises at Baroda while she was residing at Bombay. The learned appellate judge considered what could have been the evidence in order to show that the parents were residing and has considered that no ration-card is produced no bills are produced no neighbours are examined and this is certainly a finding of fact. The letters referred to above are written in the name of the mother and surprisingly the petitioners mother is not examined to show for how long period and for what period she was residing in the suit premises. Therefore that evidence is completely absent. While though it is the case of the petitioner that her parents were residing in the suit premises and as we are concerned with the statutory period the learned appellate judge categorically referred to the deposition of the father wherein he admitted that he has not received any letter in the suit premises in 1971. Therefore except the bare testimony of the petitioner there is nothing to show that the parents actually resided in the suit premises to show the use as required by law which I will later on discuss from the rulings cited before me. In paragraph 24 of the judgment the learned appellate judge has also given a finding of fact that the defendant admitted that she has been residing in Bombay from 1968 to 1975. Her ration-card is at Bombay. Her ration is purchased from Bombay and her version that she visited the suit premises in January 197 1/06/1971 is not established. It was in her deposition that she stated that she used to visit the suit premises casually on holidays. It was not stated in her written statement or reply of the suit notice. So this fact has not been believed by the learned appellate judge as well as the trial court and therefore it has been attempted to show that now this court should not interfere in that finding of fact. It should be noted that the learned appellate judge in paragraph 25 of his judgment has considered the meaning of residence observing that-In the case of residence the purpose of letting is permanent residence not a mere casual occupation not a mere spasmodic stay in the premises. Either the tenant or a member of his family or his guest or his licencee must for the relevant period permanently reside in the premises which are let. This observation has been taken by the learned appellate judge from the rulings which a re cited before me also and therefore it shall have to be considered whether the use of the word residence can be imported into consideration of sec. 13 (1) (k) of the Act which does not contain the word residence but contains the word use sec. 13 (1) (k) requires that decree for eviction could be passed if the premises have not been used without reasonable cause for the purpose for which they were let for the statutory period. But from the aforesaid discussion it could well be said that the petitioner has gone over to Bombay permanently. In her deposition she stated that she has gone over to Bombay only for the purpose of studies. But it is also proved that she has got a job there. It is not brought on record whether that job was temporary or permanent. But in order to show that she has intention to return and stay in Baroda house it was necessary for her to show the nature of her job as to whether it is temporary for a temporary period. It may be that she has brought in evidence to show that she had gone to Bombay for the purpose of studies. But it is not uncommon in a place like Bombay that along with studies one can also carry on the job. It is not her case that she is required to come back to Baroda for a particular purpose. It was argued by Mr. Vakil that by now the petitioner is over 35 years of age and she has remained unmarried and therefore she is practically a spinster. Therefore when there is no house in her name in Bombay and if she cannot pull on with her brother or his wife later on it may be necessary for her to go back to Baroda to stay in that house. The learned appellate judge went on surmises without any suggestion or anything on record to disbelieve the letters. I cannot go on surmises to find out a fact in favour of the petitioner if she does not come out with the case specifically i.e. with the case that she is spinster and that because she may not pull on properly with her sister-in-law and that she has a desire to come back to Baroda and stay there permanently. It is nowhere her case that she wants to stay alone at Baroda. On the contrary at Bombay also she stays with her parents or brother. At Baroda also whenever she goes casually either her mother or father is present. Therefore it is not a case to stay single and individual or alone and therefore she wants an independent house.
(11) Now I shall examine the position from the rullings cited before me whether the decree passed by both the courts deserved to be set aside on proper appreciation of the provisions of this section or requires to be confirmed.
(12) One argument which is very relevant in such cases was advanced on behalf of the respondent. As considered earlier the parents of the petitioner have blocks at Bombay. The house at Baroda was taken on rent in the name of the petitioner when she was minor. She also does not stay permanently at Baroda and as the evidence accepted by both the courts of facts she permanently resides at Bombay for the purpose either of study or service. Even by putting somebody under. the guise of a caretaker unconnected with the family though in this case if it could be believed that the parents were staying and they are connected with the family still however they have in their own possession flats at Bombay and also have no reasonable cause to stay at Baroda; would it be permissible for a tenant to go away keeping the premises locked or hand it over to somebody under the guise that he wants to return after number of years and occupy the premises ? As would be seen from the rullings the main purpose of the Rent Control Legislation is to keep the houses available to the tenants who either cannot build their own houses or have no house to stay except in rented houses. If the attitude of the persons who are transferred or who leave big cities to continue in the house in a big city even though they serve elsewhere is accepted then the persons who come from the outside in the city and require a house on rent would not get the house. This defeats the very purpose of the Rent Control Legislation. When the persons serving at a particular place are transferred at a distant place with no possibility to come immediately in a near future but still continue the house for the members of the family for the purpose of education of the children or for the purpose of some adult member of the family who is serving in that place and the house is continued probably the benefit may be available. But if the house is not at all used for the family and it is either kept locked or given to some person not referable to the family can it be said that because a person after many years has intention to come back and stay permanently in the house the tenancy should continue ? That would be frustrating the purpose of the Legislation. This consideration is necessary in the persent case.
(13) On behalf of the petitioner reliance is placed in the case of Nathani Shivankumar Ghanshyamdas v. Shah Dhanalal Maneklal reported in XVI G.L.R. 779. This judgment of course refers to the provisions of sec. 13(1)(1) of the Act which provides for eviction of a tenant if after coming into operation of this Act has acquired vacant possession and that he has been allotted a suitable residence. In this Nathani case this court observed that the possession of a residence must be a suitable…and possession means legal possession. Any occupation by any person of any premises does not amount to possession. Possession connotes transfer of interest in the premises. The words Suitable residences are interpreted in this decision. The expression residence used in sec13(1)(1) of the Act means residence with the object of settling down. Unless there is evidence to show that the tenant has shifted to a new premises in order to settle down there it is extremely difficult for the court to hold that he has shifted for residence and obtained it for that purpose. Mr. Vakil then submitted that even though it can be said that the petitioner has gone to Bombay it cannot be said that she has gone to Bombay for residing because she does not reside in Bombay with the object of settling down. Now reliance on this judgment would not help because the sec. 13(1)(1) of the Act-has a different consideration as compared to sub-sec. (k). The relevant sub-section so far as this case is concerned merely requires the proof that the house has not been used without reasonable cause for the purpose for which it was let for a continuous period of six months immediately preceding the date of the suit. Therefore here the question of six months statutory period is material and the word residence can be imported and has been imported in the rulling cited before me to mean that even for the statutory period the house must be a suitable residence. If the expression residence interpreted by S H. Sheth J. in the case of Nathani Shivankumar (supra) is considered even in sub-section (k) that will have to be proved so as to bring out the reasonable cause. Mr. Vakil also referred to the case of Achut Pandurang Kulkarni v. Sadashiv Ganesh Phulambrikar reported in 75 Bombay Law Reporter Page-21. This is a case under sec. 13(1)(k) of the Act. In this decision expression reasonable cause is considered and it is observed that If there is evidence on record to show that the tenant had something more than a vague wish to return and that he had a real hope coupled with the practicable possibility of the fulfilment within a reasonable time it cannot be said that he had no reasonable cause for not using the premises. It is also observed that AbSence may be sufficiently prolonged or unintermittent to compel the inference prima facie of a ceaser of occupation. The onus is on the tenant in such a case to repeal the presumption and to establish that his poSsession had not ceased or that he had ceased to occupy on account of reasonable cause. It is also observed that – In the case of a tenant who is a Government servant the court cannot ignore the nature of his services and his liability to be transferred when deciding the question under sec 13(1) (k) of the Act. The tenant must couple and clothe his inward intention to return with some formal outward and visible sign of it. In this case reference was made to the decision of Chagla C. J. in the case of Dattatray Balaji Mahajan v. Narayan Vinayak Bhonde which has been referred to in other cases cited before me. In that case. The petitioner before the court in that case was a tenant and the opponent was landlord. The premises were situated in Poona and were occupied in May 1940. But from June 1950 the tenant had ceased to occupy the premises. He stayed with his son at Jalgoan The landlord therefore contended that the premises were not in use for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The trial judge held against the landlord and the District Judge had recorded finding against the tenant. Chagla C.J. refused to interfere in revision with the said findings of the District Judge but observed that-It is not necessary that the tenant himself should reside in the premises. But it is sufficient that the premises have been used for the purpose for which they were let. It was the fact in that case that the evidence in that case show that the son of the petitioner stayed in the premises from June 9 to June 14 and November 7 to November 14 1950 Chagla C J observed that …As a matter of fact the learned District Judge finds and I am bound by that finding-that there was merely a casual occupation by the petitioners son for a spasmodic period of a week each. This is the same finding so far as the instant case is concerned by both the courts below and therefore in revision I am bound by the finding because I do not find it to be in any way perverse inspite of the letters Exhs. 135 136 and 140 because they merely show a casual visit by Sitaben who is not examined or even the casual visit of the petitioner during the relevant period after the notice. Chagla C.J. has further observed that-Now a mere casual occupation of premises does not constitute residence in those promises. In construing sub-clause (k) one must also bear in mind the object of the Legislature in passing this legislation. The Rent Restriction Act is passed because there was a scarcity of premises and therefore it was necessary to protect bona fide tenants and also to see that premises were not left unoccupied so that people in need of premises should not be deprived of them and also a tenant should not have one set of premises of one place and go about residing in some other premises. Therefore the purpose within the meaning of sub-clause (k) for which premises are let is the purpose of permanent residence: not a mere casual occupation not a mere spasmodic stay in the premises. So this decision of Chagla C.J. interprets the word use in a way connecting it with residence importing that word in sub-clause (k) also and quite justifiably. As considered by me earlier the purpose of the Rent Control Act is that the people in need of premises should not be deprived of them and also a tenant should not have one set of premises at one place and go about residing in some other premises. This is what exactly done in the instant case. The petitioner wants to continue her premises in Baroda and she states that her parents stay in the said premises. Her very parents have their own premises in Bombay where the petitioner herself stays. So it is not a case where person is without a shelter. But or the contrary the person is trying to have shelter at both the places depriving some needy tenant of shelter in Baroda. Mr. Vakil also relied on a decision of this court rendered by D.A. Desai J. in the case of Darbar Ravichandra v. Lalitkumar Amratlal and Others in Civil Revision Application No. 710 of 1965 decided by D.A. Desai J. (as he then was) on 20/06/1968 notes of which are reproduced in Vol. 5 (1967-68) of Gujarat Law Times page No. 447 case No-168. In that case it is observed that even if the rented premises are not used by the tenant for a statutory period this court held that the landlord is not automatically entitled to a decree for eviction. In order to get a decree for eviction under sec. 13(1)(k) of the Act the landlord has to establish that the premises have not been used for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. Even if it is eStablished that the premises are kept closed and are not being used for the purpose for which they were let for a period of 2 to 22 years that by itself would not enable the landlord to obtain a decree for possession If these tacts are established it would be open to the tenant to show that the premises were being kept closed for a reasonable cause. It is the absence of reasonable cause which would enable the landlord to obtain possession. The burden to establish that the premises are not being used for a reasonable cause would be on the tenant. Mr. Vakil therefore insisted on the words reasonable cause and submitted that the petitioner has proved that the petitioner had gone to Bombay and kept The house unoccupied for a reasonable cause. The cause was that she had gone to Bombay for study. Both the courts have believed that she has gone for service and she is residing at Bombay permanently. Reliance was placed also on the decision of this court in an unreported decision by J.M. Sheth J. in Civil Revision Application No. 254 of 1971 decided on 19-2-1974. Therein the point of animus revertendi was considered. It is a very lengthy judgment. But the ratio of the decision is that even if the premises are kept closed for a number of years if the tenant could prove animus revertendi then it would be a reasonable cause. In this decision Justice. J.M. Sheth (as he then was) has considered various rullings of Indian courts as well as English courts. The suit in that case referred to a building situated in Surendranagar and was taken on lease by the father of the petitioner. The father died about 10 years prior to the date of the notice in that case and after his death the mother of the petitioner who stayed alone in the suit house also died three years back. Thereafter the premises were kept closed. Therefore it was the case that the premises were not used at all for the purpose for which they were let i.e. for the purpose of residence. It was also the case that for the last 15 years or so the petitioner was staying; in Bombay with his family and was serving there and his sons were also studying at Borivali and the suit premises were being kept mostly closed. But it was the case of the petitioner-tenant that he was staying there in the house and his wife has been coming and going according to their convenience and therefore the contention that the premises have not been kept closed for three years was disputed. On these facts after appreciating the evidence and decision of both the courts below J.M. Sheth J. referred to the decision of Skinner v. Geary 1931 Volume 2 Kings Bench Division p. 546 rendered by Talbot J. and observed at page 550 as follows:
It is obvious that it would be impossible to say that because a man goes away for reasons of either business or pleasure. for a day or a week or even a few months intending to come back he ceases to reside at the premises. But this is a case of a man who does not reside at the premises who has not resided there for a considerable time and on whose absence from the premises there is not limit in point of time either express or to be collected from the circumstances.
(14) In appeal against that judgment observations are made by Slesser Lord Juctice at page 569 and page 570 which are re-produced in judgment by J. M. Sheth J. wherein Slesser Lord Justice agreed with Scrutton Lord Justice – That although a person may be absent from-the premises for a time yet if he has an intention to return to them it may fairly be said that he is still in actual possession and therefore entitled to be protected. In this case the country court judge has found as a fact that the appellant Geary is not in actual occupation that those who were in actual occupation were not there to preserve the house as a residence for him and that he did not intend to return to the house in order to occupy it. Then the questions of two-home men was considered. Lord Justice Asquith had used the formula – animus possidendi and corpus possessionis. In other words the tenant though physically absent must still in the eye of the law retain his possession of the first house. If he gives it up an intention however truthfully and sincerely entertained to return there at some future date will not as I understand the Law suffice. This reference to two-home men would certainly attract the provisions of sec. 13(1) (1) of the Act. But in clause (k) it is only a question of user of residence or non-user. The normal consideration of the English court was that notwithstanding and to suppose that one can absent for 5 or 10 years or more and retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts. But it is also considered that – Notwithstanding an absence so protracted the authorities suggest that its effect may be averted if the couples and clothes his inward intention with some formal outward and visible sign of it i.e. instals in the premises some caretaker or representative he it a relative or not with the status of a licensee and with the function of preserving the premises for his own ultimate homecoming. This has been also considered by the Bombay High Court in Vol. 75 Bombay Law Reporter referred to above. But in our law even keeping a licensee is not permissible. But in fact as will be seen the main intention would be that the house must be available to the tenant and must be kept by persons referable to the tenant and not outsiders. Therefore now I am inclined to observe that the possession by a licensee or caretaker would not be available in order to continue the possession of the premises even though the tenant is absent. There should be some person referable to the tenant. In the decision of the England Court in the case of Beck v. Scholz 1953(1) All England Law Reports 814 the landlord claimed possession of a flat in London which was within the ambit of the Rent Restrictions Acts on the ground that the tenant was not in personal occupation of the premises. The tenant and her husband had a home in Luton where the husband carried on his business. The tenant kept her furniture in the fiat and her licensees lived there as caretakers. The tenant and her husband slept occasionally in the flat the tenant on four or five occasions during the year preceding the summons and her husband some six times in that period. It was held that the question posed and to be answered by ordinary commonsense standards was whether the premises were in the personal occupation of the tenant as her home or if the tenant had more than one home as one of her homes; occupation merely as a convenience for occasional visits would not be occupation as a home so as to entitle the tenant to the protection of the Rent Acts. Thus it can be seen from the above referred decision that even though there was a caretaker licensee protection was not given because there was no occupation as a residence by the tenant. J. M. Sheth J. in his judgment also observed that it cannot be gainsaid that mere casual stay or spasmodic visit for a day or two during the relevant period by itself will not be sufficient for reaching the conclusion that the premises were used for the purpose for which they were let. But then it was also observed by J. M. Sheth J. that – One will have also to take into consideration the factor of animus revertendi the factor whether house was kept fit for occupation whether the house was from time to time no doubt intermittently used as a house for the purpose of residence of the tenant. Ultimately as observed by J. M. Sheth J. this will depend upon the facts and because the facts were not properly considered the matter was remanded for further consideration.
(15) In the instant case all the facts are properly considered and on finding of fact both the courts have come to the conclusion that the house was not used during the particular period even though there were letters showing casual spasmodic visits. These findings are in para 28 of the appellate judgment which are binding and against the petitioner. This court (M. U. Shah J. as he then was) in the case of Dalichand Virchand Shroff v. Babulal Rajmal and Ors. reported in XI G. L. R. page 377 had an occasion to consider this clause. Therein it was observed that – In order that clause (k) of sub-sec. (1) of sec. 13 of the Bombay Rents Control Act be attracted three conditions must be satisfied: (1) that the premises have not been used for the purpose for which they were let; (2) that such non-user was for a continuous period of six months immediately preceding the date of the suit; and (3) such non-user was without reasonable cause. In this judgment it was considered that the purpose for which the suit premises were let out to the original tenant was residence. It was also further observed that- But it has to be remembered that the residence intended was of the tenant himself which may in a given case include the residence of his heirs and of some others. But when a tenant abandons the premises and has no control left over the premises and no interest left in the premises and has left the premises in the occupation of some other persons who are not referable to him (emphasis supplied) he cannot be said to be using the premises for the purpose for which it was let. I have referred to this portion and supplied emphasis just in order to show that how the notion about caretaker or licensee would not be available to the tenant under the provisions of the Act. But the person who stays should be referable to the tenant. In the instant case if the mother is proved to have stayed there for a particular period and not spasmodic stay then she could be said to he a person referable to the petitioner. But the courts believed that it is not proved that the mother actually resided in the house nor it is proved that the petitioner also resided in the house and therefore this finding of fact is binding to this court. Of course before M. U. Shah J. it was a case when a tenant abandons the suit premises and goes back to reside in his home town in another State. But the question in this matter is whether the tenant had intention to keep this house for herself or it was an intention merely to utilise the right as a tenant in a city like Baroda at a very normal rent. In this judgment also M. U. Shah J. considered the decision of Chagla C. J. in the case of Dattatray Balaji Mahajan (supra) wherein it was observed by the learned Chief Justice that Residence involves a more or less permanent or continuous stay at a place and that residence is not the same as mere stay. It was also observed by Chagla C. J. that – There is no obligation upon the tenant himself permanently to reside at the premises. But somebody either a member of his family or his guest or his licensee must for the relevant period permanently reside in the premises which are let to him. In the present case there is no evidence before me that the father permanently resided or the mother permanently resided in the house. The three letters which show only casual visit. In the case before the learned Chief Justice Chagla the son of the tenant stayed in the house for two weeks during the relevant period but it was not considered sufficient period to take out the case from the operation of sec. 13(1) (k) of the Act. Likewise in the instant case also the casual stay by the mother would not take out the case from the operation of sec. 13 (1) (k) of the Act.
(16) In view of the discussion made above L am of the opinion that the decision of both the courts below is quite justified and no case is made out to interfere with the said decision and therefore the Revision Application is dismissed with costs. Rule discharged.
(17) Time for eight weeks from the date of receipt of certified copy of the judgment of this order is granted to the petitioner to vacate the suit premises. The petitioners advocate undertaken to file application for certified copy of the judgment today. Revision application dismissed.
