Mr. Saldhana, the learned Counsel for the Petitioner, however, submitted that was not a sufficient ground for the landlord to get a decree for eviction. The Court had to be satisfied under Section 13(1)(k) that the non-user was without reasonable cause. Mr. Saldhana, submitted that the two Courts failed to apply their minds to this requirement of Section 13(1)(k) and argued that whether the non-user was for want of reasonable cause, must necessarily depend on the facts and circumstances of each case. He submitted that, having regard to the nature of the services of the tenant and the fact that he was paying electricity charges and rent regularly, it was clearly established that he never voluntarily stopped used the premises for the purpose for which they were let. His non-user was involuntary as he was liable to be transferred, having regard to the nature of the services. He had always animus reverend to the premises. he had never really abandoned the premises as was evidenced by the regular payments of rent."
13. The scope and the effect of the said Section 13(1)(k) was considered to some extent by Chagla, C. J., in an unreported decisions dated July 30, 1954, in Civil Revn. Appln. No. 1527 of 1953 (Bom). In that case the Petitioner was a tenant and the Opponent was a landlord. The Petitioner had occupied the suit premises situated in Poona in May 1940, but from June 1950 he had ceased to occupy the premises. He stayed with his son at Jalgaon. The landlord, therefore, contended that the premises were not used 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 a finding against the tenant. Chagla, C. J., refused to interfere in revision with the said finding of the District Judge but made the following observations : -
"Mr. Parulekar is perfectly right when he contends that under sub-clause (k) of Section 13(1) of the Rent Control Act it is not necessary that the tenant himself should reside in the premises. He points out - again rightly, that when we look at the other sub-clause of Section 13(1), whenever action against a tenant is contemplated the tenant is mentioned, but in the case of sub-clause (k) the Legislature has not stated that the tenant should use the premises for the purpose for which they were let. But what sub-clause (k) requires is that the premises should be used for the purpose for which they were let. Therefore, it is true that, so long as the premises have been used for the purpose for which they were let, sub-clause (k) is satisfied and the landlord cannot eject the tenant because he himself did not reside in the premises ..............."
14. Proceeding to consider as to whether any other member of the family was residing in the premises, having regard to the fact that the evidence in that case showed that son of the petitioner stayed in the premises from June 9 to June 14 and C J. observed : -
" ................... 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 petitioner's son for a spasmodic period of a week. Now, a mere casual occupation of premises does not constitute residence in those premises. 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 at 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 ........"
(Underlining mine).
The learned Assistant Judge and the trial Judge in the present case have not recorded a finding that the petitioner had any permanent residence elsewhere like the tenant in the case decided by Chagla, C. J. Nevertheless, the two Courts appear to have been erroneously carried away by the comment purported to be based on this case in Dalal's Commentary on the Rent Act, 1960, Third Edition at p. 257, reproduced at p. 444, 1969 Fourth Edition.
15. The principal question which the two Courts below ignored was as to whether, even assuming that there was no continuous occupation of the suit premises by the tenant and the members of his family within six months immediately preceding the date of the suit, the tenant had any reasonable cause for not using the premises. It is true that the tenant did not produce the orders of transfers before the trial Court or the Appellate Court as he ought to have done. That, however, does not justify the Courts to ignore the requirements of Section 13(1)(k). The question as to whether the tenant had ceased to use the premises without reasonable cause, will depend on the facts and the circumstances of each case.
16. As observed by Chagla, C. J., in the above case, physical possession by a tenant himself was not necessary. Physical possession by other members of the family also is not necessary if there was reasonable cause for their remaining absent from the premises. The question is one of fact and degree. 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 its fulfillment within a reasonable time, it cannot be said that the had no reasonable cause for not using the premises. In every case it is the duty of the Court to satisfy itself that the tenant had no reasonable cause. Absence may be sufficiently prolonged or unintermittent to compel the inference prima facie of a cesser of occupation. The onus is on the tenant in such a case to repel the presumption and to establish that his possession had not ceased or that he had ceased to occupy on account of reasonable cause. In my judgment, this can be established if the tenant proves notwithstanding the intention on his part to return after his absence, his helplessness in remaining absent from the premises.
17. It is true that the tenant should have made proper attempts to discharge the onus in the present case by producing the orders, if not before the trial Court, at least before the Appellate Court. That, however, as stated above, does not permit the Courts to brush aside the requirements of Section 13(1)(k). It is a matter for not awarding the costs. The Court cannot ignore the nature of the tenant's services and his liability to be transferred when deciding the question under Section 13(1)(k). I do not propose to lay down that in every case where a Government servant is transferred and he goes on paying rent in respect of the premises, he had reasonable cause for not using the premises for the purpose for which they were let. The question will depend on the facts and circumstances of each case. The tenant must couple and clothe his inward intention to return, with some formal, outward and visible sign of it, as for instance by installing some caretaker or representative, be it a relative or not with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. It may also be that the same result can be secured by leaving on the premises, as a deliberate symbol of continued occupation, furniture. As stated by Asquith L. J., in Brown v. Brash and Ambrose, (1948) 2 KB 247, the tenant must prove not only animus possidendi but a corpus possessions.
18. Applying these principles to the facts of the present case, I have no doubt that the petitioner established beyond any doubt that he wanted himself and his family to occupy the premises at all stages; but as he was compelled to stay in Sholapur, he appeared to have shifted temporarily to that place. The facts that he went on paying rent regularly, paid electricity charges and further the facts that the petitioner and his wife were trying to be on good terms with the respondent by even inviting the respondent to stay with them in Sholapur, clearly show that the tenant never intended to stop the use of the suit premises for his own residence. As the tenant was compelled not to stay in the suit premises by transfer, he had reasonable cause, having regard to his conduct and the circumstances of the case, for not using the premises for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit as found by the two Courts below. As there was reasonable cause for non-user, it must be held that the two Courts below erred in law in decreeing the landlord's suit for eviction.
IN THE HIGH COURT OF BOMBAY
Special Civil Appln. No. 2795 of 1969
Decided On: 23.03.1972
Achut Pandurang Kulkarni Vs. Sadashiv Ganesh Phulambrikar
Hon'ble Judges/Coram:
M.S. Vaidya, J.
Citation: 1973BCI(0) 1
