Monday, 5 November 2018

When tenant can not be evicted from tenanted premises on ground of non user of premises?

Thus it becomes clear from the observations of the Supreme Court quoted above, that the liability of the tenant to pay rent is linked to his enjoyment of the demised premises. In the present case the tenant-petitioner has been deprived of the enjoyment of the entire premises only due to the conduct and attitude of the landlord and therefore, in my opinion, the tenant's liability to pay the entire rent would stand suspended from the date from which he became unable to use and enjoy the tenanted premises. Bare perusal of Section 13(1)(k) of the Act makes it clear that if there is reasonable cause for not using the tenanted premises then a decree of eviction cannot be passed. In the present case there was definitely a reasonable cause for the tenant not to use the tenanted premises in the circumstances referred to above. So far as a decree under Clause (1) of Section 13(1) is concerned it contemplates the tenant to secure suitable residence. Section 13(1)(1) contemplates a voluntary act on the part of the tenant. When the tenant is forced to shift his residence and especially when the conduct of the landlord himself is responsible for forcing the tenant to shift his residence in my opinion, the landlord would not be entitled to seek decree of eviction against the tenant under Clause 13(1)(1) of the Act. In my opinion, the Courts below have neither appreciated the evidence on record properly nor they have applied law properly. So far as the judgment of the Calcutta High Court in the case of Jatindra Kumar Dass relied on by the learned Counsel for the respondents is concerned, in my opinion, the judgement does not consider the Judgement of the Supreme Court in Surendra Nath Bibra 's case referred to above. In any case the perusal of paragraph IS of that Judgement shows that ultimately the Court in that case found that there is no liability on the landlord to repair the tenanted premises and therefore, the tenant was not justified in suspending the payment of rent.

6. The learned Counsel for the respondents by relying on the provisions of Section 10(D) of the Act, contended that the tenant had a remedy of getting the premises repaired. But in my opinion, it is not the question of tenant's having a remedy to get the premises repaired. The question is. the landlord entitled to a decree of eviction against the tenant. The tenant is deprived of the enjoyment of the property by a conduct which is attributable directly to the landlord and therefore there occurs suspension of the liability of the tenant to pay the rent. In my opinion, the tenant had done all within his powers, namely, issuing notice to the landlord to carry out repairs, offering to carry out repairs himself and moving the authorities of the Pune Municipal Corporation. But it is only because of the adamant attitude adopted by the landlord, that repairs could not be carried out. At this stage, now the landlord cannot turn around and say that despite his refusal and his attitude, the tenant could have on his own done the repairs. In my opinions the Courts below were not justified in passing the decree of eviction against the petitioner-tenant. It is to be seen that Section 23(1) casts a duty on the landlord to keep the premises in good and tenantable repair. The landlord committed breach of this statutory duty imposed on him. Sub-section 2 of Section 23. enables the tenant to carry out the repairs, after giving notice to the landlord, The tenant in this case, issued necessary notice to the landlord and then wanted to carry out the repairs, but the landlord did not permit him to do so. This attitude was adopted by the landlord, obviously, to force the tenant to leave the suit premises. Now, in my opinion, to pass a decree in favour of the landlord, on the ground that the tenant has not paid rent for the period during which he could not have occupied the suit premises and also on the ground that he did not continue In occupy the premises and sought shelter elsewhere, would amount to allowing the landlord to take advantage of his own wrong.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 67 of 1983

Decided On: 27.02.1997

 Gopal Dattaraya Chapahlkar  Vs. Govind Yeshwant Borkar and Ors.

Hon'ble Judges/Coram:
D.K. Deshmukh, J.

Citation: 1997 BomLR 52.
Read full judgment here: Click here
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