BHABHUTMAL RIKHAJI SHARMA Vs. MANUBHAI MADHAVJI PATEL
HIGH COURT OF GUJARAT
BHABHUTMAL RIKHBAJI SHARMA
MANUBHAI MADHAVJI PATEL
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(1.) Broadly three substantial questions of law of general importance arise in these two civil revision applications one at the instance of the original defendant-tenant against decree of eviction and another at the instance of the original plaintiffs-landlord against the fixation of standard rent-referred to us by P. D. Desai J. The questions as formulated by us are as under :-
(1) Whether the restrictive covenants of the contractual tenancy would continue to operate to the prejudice of the tenant on determination of the contractual tenancy ?
(2) Whether breach of conditions of tenancy prohibiting the change of the purpose of the user of the premises even partly would expose the tenant to a decree of eviction de hors sec. 13 of the Bombay Rent Hotel and Lodging House Rates Control Act 1947 (hereinafter known as the Rent Act) ?
(3) Whether the conviction of a person residing with a tenant of business premises for the use of the premises for illegal purposes would expose the tenant to eviction decree under sec. 13(1)(c) of the Rent Act. These questions arise under the following circumstances:-
(2.) The original defendant no. 1 Bhabhutmal Sharma was a tenant of the shop premises bearing Municipal No. 109-14 in Ward No. 10 in City of Navsari on terms and conditions contained in the Rent Note of November 28 1967 which has been determined by affix of time on expiry of period of 11 months for which the Rent note was executed. The original plaintiff-landlord Manubhai Madhavji Patel who died during the pendency of the appeal before the learned Assistant Judge filed two suits against the defendant-tenant Bhabhutmal Sharma in the Court of Civil Judge (Mr. Division) Navsari being Regular Civil Suit No. 212/70 and No. 292/70. Regular Civil Suit No. 212/70 was filed against defendant-tenant Bhabhutmal Rikhabaji Sharma only for permanent injunction restraining him from putting up wooden partition on the demised premises and therefore for preventing him from putting a permanent structure in the premises Regular Civil Suit No. 292/70 was filed against three persons namely 1 tenant Bhabhutmal Sharma 2 his son Kishorkumar Bhabhutmal Sharma and 3. Kishorkumar Sohanlal Sharma for recovery of the vacant possession of the premises on as many as six grounds. Shortly stated the grounds on which the eviction was prayed for were:- 1 The defendant-tenant being in arrears of rent for more than prescribed period. 2 Unlawful sub-letting by the tenant. 3 Breach of condition of the contractual tenancy prohibiting the change of user. 4 Conviction of Kishorkumar Bhabhutmal Sharma for storage of stolen property. 5 Erection of permanent structure; and 6 Defendants being guilty of conduct amounting to nuisance and annoyance. Tenant Bhabhutmal had made an application in the Court of the Civil Judge (J.D.) Navsari being Misc. Civil Application No. 90/70 for fixation of the standard rent. Both the suit were principally resisted by the defendant-tenant. The learned Civil Judge on appreciation of the evidenceoral as well as documentary-adduced by the parties upheld i.e. claim of the landlord for vacant possession of the premises on four grounds:- 1 Unlawful sub-letting of the premises by the defendant not to defendant nos. 2 and 3. Breach of the condition of the tenancy prohibiting change of user. Conviction of Kishorkumar original defendant No. 3 under sec. 124 of the Bombay Police Act; and conduct of the defendants amounting to nuisance or annoyance to the adjoining neighbours. The learned Civil Judge however did not find the tenant to be a defaulting tenant in arrears of rent which render him liable to eviction. He also disagreed with the plaintiffs-landlord that any permanent structures have been put up on the premises. He found the contractual rate of the rent at Rs. 125/per month as standard rent. He therefore granted a decree for eviction directing the defendants-tenants to hand over vacant and quiet possession of the premises by his judgment and decree of December 31 1973 since he had consolidated both the suits and the Civil Misc. application. He however dismissed the suit of the landlord for permanent injunction.
(3.) The defendant-tenant Bhabhutmal and his son Kishorkumar carried the matter in appeal in the Court of District Judge of Valsad at Navsari by Regular Civil Appeal No. 17/74. In the course of the hearing of the appeal before the Assistant Judge at Navsari the plaintiff-landlord did not press his grievance as to the tenant being in arrears of rent or about erection of permanent structure. The plaintifflandlord had also not preferred any appeal against refusal by the trial court to grant permanent injunction. The learned Assistant Judge on reappraisal of the evidence on record of the trial Court disagreed with the findings of the learned Civil Judge that there was unlawful sub-letting of the premises. He also found himself unable to agree with the learned Civil Judge that conviction of original defendant no. 3 Kishor Bhabhutmal under sec. 124 of the Bombay Police Act would expose the original tenant Bhabhutmal to a decree of eviction under sec. 13 (1)(e) of the Rent Act as in his opinion the said clause would not apply in case of business premises and also because the conviction under the Bombay Police Act sec. 124 is merely for the failure of the accused to explain his possession of the suspected articles and has nothing to do with the use of the premises. The learned Assistant Judge also disagreed with the finding of the Civil Judge that the defendants were guilty of conduct amounting to nuisance and annoyance to the adjoining neighbors. He however agreed with the finding of the learned trial Judge that there was a breach of condition of the contractual tenancy prohibiting the change of user which as agreed to by and between the parties under the rent note was for the purpose of carrying on business and that he was not entitled to carry on any other business activities and because there was a specific prohibition against use of the premises for residential purposes. In the opinion of the learned Assistant Judge since these conditions of the contractual tenancy were not inconsistent with any of the provisions of the Rent Act the embargo on the right of the landlord to recover possession under sec. 12(1) was lifted and therefore the learned trial Judge was perfectly justified in granting decree of eviction as he did. He therefore confirmed the decree granted by the trial Court. However as regards the standard rent on reappraisal of evidence he was of the opinion that the rate of rent should be Rs. 75/per month instead of Rs. 125/as decreed by the trial court. With this modification as to the rate of the standard rent appeal of the defendant-tenant was dismissed with the result that the original defendant Nos. 1 and 3 preferred Civil Revision Application No. 133/76 against the decree of eviction while the original plaintiff-landlord preferred Civil Revision Application No. 396/76 against the fixation of the standard rent.;
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