1987 (1) TMI 498 - HC - Indian Laws

Summary

Issues Involved:
1. Default in Payment of Rent
2. Acquisition of Alternate Suitable Residence
3. Non-User of Premises
4. Subletting of Premises

Summary:

1. Default in Payment of Rent:
The defendant argued that the plaintiff could not claim possession on the ground of default as there were no arrears of rent at the time of the initial suit notice dated 21st August 1975. The plaintiff's subsequent notice dated 14th April 1977, which claimed arrears of rent, could not be used to amend the plaint and claim possession. The court agreed, stating that the condition precedent for filing a suit for possession on the ground of non-payment of rent is the issuance of a notice u/s 12(2) of the Bombay Rent Act. The plaintiff's claim for possession on the ground of default set up by amendment of the plaint was invalid.

2. Acquisition of Alternate Suitable Residence:
The defendant contended that the lower courts erred in holding that he had acquired alternate suitable residence. The defendant had been allotted railway quarters due to his employment, but he retired during the pendency of the appeal and surrendered the quarters. The court held that the plaintiff could not claim possession on the ground of acquisition of alternate suitable residence u/s 13(1)(l) of the Bombay Rent Act, considering the subsequent fact of the defendant's retirement.

3. Non-User of Premises:
The defendant argued that the plaintiff had not established total non-user of the premises. The court referred to the Supreme Court's decision in Vora Rahimbhai Haji Hasanbhai v. Vora Sunderlal Manilal, which held that non-user for a continuous period of six months without reasonable cause suffices for a claim under Section 13(1)(k). The court found that the defendant was not using the premises without reasonable cause for a continuous period of six months prior to the filing of the suit, justifying the decree for possession on the ground of non-user.

4. Subletting of Premises:
The defendant argued that the plaintiff had not provided cogent evidence of subletting. The court, however, found that the defendant was not residing in the suit premises and that a third party, Bansali, was in occupation. The lower courts inferred subletting based on the evidence of Bansali's presence and his acceptance of the attornment notice. The court upheld the decree for possession on the ground of subletting.

Conclusion:
The court confirmed the decrees for possession passed by the lower courts on the grounds of non-user and subletting. The petition was dismissed, and the defendant was granted time to vacate the premises until 30th June 1987, provided an undertaking was filed within two weeks.