KAILASBHAI SHUKARAM TIWARIversusJOSTNA LAXMIDAS PUJARA AND ANR.

A                       KAILASBHAI SHUKARAM TIWARI
                                           v.
                    JOSTNA LAXMIDAS PUJARA AND ANR.

                                DECEMBER l, 2005

B               [B.P. SINGH AND P.K. BALASUBRAMANYAN, JJ.]


          Rent Control and Eviction:

          Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; Ss.
C   13(/)(e) and 13(/)(k):

          Filing of eviction petition on grounds of sub-letting and non-user of the
    premises-Allowed by trial Court-Affirmed by Appellate Court-Reversed
    by High Court-On appeal, held: Mere fact that a relative of tenant resided
D   with him would not make the relative a family member of the tenant in the
    context of Rent Control Legislation-The cousin of tenant's husband residing ,
    in the premises in question cannot held to be her family member-Hence,
    High Court erred in reversing the concurrent findings offact recorded by the
    Courts below.

E          The appellant-landlord let out the premises in question to respondent
    No.I'."tenant She was residing in the premises along with her husband. Later,
    cousin of her husband, respondent No.2 also joined them and respondent No.I
    shifted to another premises but respondent No.2 continued to reside in the
    premises. Landlord filed an eviction petition on ground of sub-letting and non-
    user of tJte tenanted premises under Section I3(I)(e) and I3(1)(k) of the
F   Bombay Rents, Hotel and Lodging House Rates Control Act. Trial Court
    allowed the petition observing that respondent No.2 cannot be said to be a
    family member of the tenant and also he was not residing with her since
    commencement of the tenancy. Appellate Court affirmed the findings of the
    trial Court. The order was challenged by the respondents-tenant before the
G   High Court. High Court dismissed the suit for eviction on the ground that
    the landlord had failed to establish that respondent No.I was not residing in
    the demised premises and its possession was surrendered to respondent No.2.
    Hence the present appeal.

          Allowing the appeal, the Court
H                                        506
              KAILASBHAI SHUKARAM TIWARI v. JOSTNA LAXMIDAS PUJARA             507
            HELD: 1.1. The question as to whether a person is a mem her of the        A
·•.. family of the tenant must be decided on the facts and circumstances of the
     case. Apart from the parents, spouse, brothers, sisters, sons and daughters,
     if any other relative claims to be a member of the tenant's family, some more
     evidence is necessary to. prove that they have always resided together as
     members of one family over a period of time. The mere fact that a relative has
     chosen to reside with the tenant for the sake of convenience, will not make      B
     him a member of the family of the tenant in the context of rent control
     legislation. (512-G, H; 513-A)

        1.2. The Courts below were justified in holding, on the basis of the
  evidence on record, that the premises in question was let out to respondent         c
  No.I which was occupied by her along with her husband. Subsequently, she
  acquired another premises and shifted therein. Before that, respondent No.2
  had come to reside with them and he continued to occupy the demised premises
  even after respondent No.I and her husband shifted to another accommodation.
  Respondent No.2 cannot be said to be a member of the family of respon~ent
  No.I, in the facts and circumstances of the case and also in the context of D
  rent control legislation. The High Court was not justified in setting aside the '
  concurrent findings of fact recorded by the Courts below. (513-B-DI

         (This Court has observed that in paragraph 30 of the impugned judgment
  the High Court has expressed its displeasure against the Joint Civil Judge,
  Kalyan the 3rd Additional District Judge, Thane, the trial Court and the First E
  Appellate Court respectively; the observations made by the Judge are not
  justified the Registrar General of the Bombay High Court should be informed
  accordingly so that the observations made in the Judgment of the High Court
  do not adversely affect the service career of the judicial officers concerned.) .
                                                                                      F
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7161 of 2003.

       From the Judgment and Order dated 29.8.2001 of the Bombay High
  Court in W.P. No. 306 of 1990.

      S.K. Dholakia, Aseesh Dholak.ia, Ms. Sumita Hazarika and Ms. Anu                G
  Mohla for the Appellant.

        Ravindra Keshavrao Adsure and Gautam Godara for the Respo)ldents.

        The Judgment of the Court was delivered by
                                                                                      H
    508                     SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A          B.P. SINGH, J. This appeal by special leave impugns the judgment and
    order dated 29th August, 200 I, of the High Court of Judicature at Bombay
    passed in writ petition No. 306 of 1990. The aforesaid writ petition under
    Article 227 of the Constitution of India was filed at the instance of the tenant-
    respondent No. I herein against the order dated September 14, 1989, of the
B   3rd Additional District Judge, Thane, in Civil Appeal No. 186/1987, affinning
    the judgment and order of the Joint Civil Judge, Kalyan dated I 0th March,
     1987 in RCS No. 137/1982. The trial Court and the First Appellate Court
    recording concurrent findings of fact allowed the eviction petition filed by the
    landlord-appellant, holding that the landlord had made out a case for eviction
    of the tenant under Sections 13(l)(e) and 13(l)(k) of the Bombay Rents, Hotel
C   and Lodging House Rates Control Act, 1947, (for short 'the Act'). The
    respondent No. l before us is the tenant while the respondent No. 2 is the
    person to whom the premises is alleged to have been sublet. The High Court
    in e)l:ercise of its jurisdiction under Article 227 of the Constitution set aside
    the concurrent findings of fact, and dismissed the suit for eviction filed by
    the appellant-landlord.
D
           Before adverting to the issues that arise for our consideration in this
    appeal, we may briefly notice the factual background in which the controversy
    arose. Shorn of unnecessary details, it may be noticed that the premises in
    question, located at Kalyan, is an apartment measuring about 375 sq. feet. The
E   case of the appel!ant is that the said premises was let out to respondent No.
     l herein sometime in the year 1975 and she was residing in the premises along
    with her husband. The agreed rent was Rs. 92 per month. According to the
    landlord, the tenant-respondent No. I shifted to another premises in Bofivili
    in the year 1981. However, respondent No. 2 continued in the premises as a
    sub-tenant. According to the appellant, this amounted to sub-letting of the
F   premises to respondent No. 2 Some other grounds were also raised in the
    eviction petition, such as default in payment of rent etc. but we are not
    concerned with those grounds since the findings on those grounds is in
    favour of the tenant-respondent No. l.

          The plea of the tenant-respondent No. I was that she was residing in
G the premises since 1975 and respondent No. 2, who happened to be the son
    of the brother of the father of her husband, came to reside with them in the
    same premises since he was a member of their family. In the written statement
    it was denied that the tenant-respondent No. 1 along with her husband had
    shifted to another premises at Borivili. It was also denied that the premises
H   had been sublet to respondent No. 2. It was stated in the written statement
     KAILASBHAI SHUKARAM TIWARI v. JOSTNA LAXMIDAS PUJARA [B.P. SINGH, J.]   509

that her husband was carrying on business at Kalyan and therefore needed           A
the suit premises. It was also denied that tenant-respondent No. 1 had ever
received any notice from the landlord.

      Respondent No. 2 adopted the written statement filed by respondent
No. I. The landlord examined three witnesses while the tenant examined two
witnesses in support of their respective claims.                                   B
      On an appreciation of the evidence on record, the trial Court came to
the conclusion that notice sent to respondent No. 1 on Kalyan address could ·
not be served, but the notice sent to her, including the registered notice, on
the Borivili address, was served and the acknowledgement due card contained
the signature of respondent No. 1, which was exhibited as Ext. 30 ·in the suit. C
No doubt the husband of tenant-respondent No. 1, who was examined as a
witness, denied her signature appearing on the acknowledgement due card
but the tenant-respondent No. 1 herself did not enter the witness box to deny
her signature,. nor was nay one examined from the postal department to
depose on the subject. The trial Court was of the view that mere denial by D
the husband was not sufficient in the facts and circumstances of the case.
However, the trial Court came to the conclusion that the landlord had failed
to produce evidence to prove that the premises occupied by the tenant at
Borivili was sufficient and suitable for her needs. The landlord had failed to
discharge his burden in this regard, and therefore it was not possible for the
Court to record a finding that the premises to which the tenant-respondent E
No. 1 had shifted was suitable and sufficient for her needs. However, on the
question of subletting, the trial Court held that respondent No. 2 cannot be
said to be a family member of respondent No. I. The assertion that they were
continuing to reside together in the premises at Kalyan, was not supported
by the evidence on record. They could neither produce the ration card nor F
any other documentary evidence to prove that they continued to reside
together at Kalyan. The husband of the tenant-respondent No. I, who was
examined as a witness, admitted that their names did not find place in the
voters' list. He also admitted that in the income-tax return, his address had
been disclosed but the income-tax return was not exhibited at the trial. Though
he claimed to carry on his business at Kalyan, no material was produced to G
show that it was so. He did not even produce his invoices, bills or such other
documents to establish that he was carrying on his business at Kalyan. On
the contrary, there was evidence in the form of Ext. 43, to show that he had
closed down his business at Kalyan on 30. 7.1970. He also failed to produce
the registration certificate that may have been issued to him under the Shops H
    510                     SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A   and Establishments Act. Considering the evidence produced by the parties
    the trial Court came to a definite conclusion that there was no evidence to
    support the plea of the tenant-respondent No. l that she continued to reside
    in the suit premises at Kalyan after 1980.

          The trial Court also found that respondent No. 2 was not a member of
B the family of respondent No. l, in the context of rent control legislation. It
    was 'admitted that the father of respondent No. 2 had a separate business at
    Indore and respondent No. 2 also had its own independent transport business
    at Kalyan. His business was separate from the business of the husband of
    the tenant-respondent No. I. Respondent No. 2 admitted that he came to
C   Kalyan in the year 1980 and had been residing in the premises for 10-12 years.
    The trial Court therefore concluded that he had not been residing with the
    tenant-respondent No. l from the very beginning. In fact, it is the admitted
    case of the parties that respondent No. 2 joined the tenant-respondent No. I
    four or five years after the commencement of the tenancy in question. In this
    view of the matter, the trial Court allowed the eviction petition filed by the
D   appellant on the ground of subletting and also on the ground envisaged
    under Section 13(1)(k) of the Act, namely the ground of non-user. We may
    at this stage observe that we are not going into the question as to whether
    the ground under Section 13(l)(k) of the Act is made out, because it would
    be sufficient for the disposal of this appeal if it is found that ground under
E   Section 13( l )(e) i.e. the ground of subletting is made out.

          The Appellate Court on reappraisal of the evidence on record, agreed
    with the findings recorded by the trial Court and dismissed the appeal.

          -The respondents -then invoked the jurisdiction of the High Court under
F   Article 227 of the Constitution and impugned the judgments and orders of the
    courts below before it. In the writ petition filed before .the High Court it was
    averred that respondent No. 1 had been a tenant of the premises in question
    for the year 1973, on a monthly rental of Rs. 92 and that sometime in or about
    the year 1979, respondent No. 2 - the cousin of her husband came to reside
    with them in the premises. It was averred that respondent No. 2 did reside
G   with them with a view to assist her husband in carrying on his business at
    Kalyan, Thane, etc. Ground K of the writ petition reads as follows:

            "(k) That both the Courts failed to appreciate that the evidence on
            record clearly established that petitioner No. 1 continued here right,
            titled and interest in the suit premises even after acquiring another
H           residential premises at Borivili inasmuch as the husband of Petitioner
          KAILASBHAI SHUKARAM TIW ARI v. JOSTNA LAXMIDAS PUJARA [B.P. SINGH, J.)   511

             No. 1 continued to have his business interest in Kalyan and its             A
             periphery and had been looking after the said interests through
             Petitioner No. 2 who was a member of his family by allowing him to
             reside in the suit premises."

            It will thus be apparent that the tenant-respondent No. 1 admitted the
     fact that she had acquired another residential premises at Borivili and that the    B
     premises in question was in the occupation of respondent No. 2. The reason
     given therefor was that since her husband had business interest at Kalyan
     and its periphery, he had been looking after his business through respondent
     No. 2 who was a member of his family by allowing him to reside in the said
     premises. We must therefore proceed on the basis that it is no longer in            C
     dispute that the tenant-respondent No. 1 along with her husband acquired
     another residential premises at Borivili and that they have been residing in
     the said premises. We must also proceed on the basis that the premises is
     now in the occupation of respondent No. 2.

           The High Court found fault with the reasoning of the trial Court and the      D
     Appellate Court, observing that in the instant case, the appellant had failed
     to discharge"' the initial burden of establishing the fact that the tenant-
     respondent No. 1 was not residing in the demised premises or had pennanently
     surrendered possession to respondent No. 2 and that she had no intention
     of reoccupying the portion leased out to her. In view of the specific plea of
     respondent No. 1 in her writ petition before the High Court, the observation        E
     of the learned Judge is not justified.

           The question still arises as to whether respondent No. 2 can be
     considered to be a member of the family of respondent No. 1. It is not in
     dispute that respondent No. 2 is the cousin of the husband of respondent            F
     No. l. It also cannot be disputed that he came to reside with tenant-respondent
     No. 1 and her husband in the year 1980, and was not residing with them since
     the commencement of the tenancy some time in the year 1973 or 1975, (the
     precise year when the tenancy commenced is not clear from the record). It is
     also admitted by respondent No. 2 that he had his own separate and
     independent business and that he was not looking after the business of the          G
     husband of respondent No. I. The husband of respondent No. 1 has a trading
     business in coal, whereas respondent No. 2 claims to have a transport business
     and he owned a truck which he was plying for gain.

          It was sought to be argued before us that since the father of the
     husband of the tenant-respondent No. 1 and the father of respondent No. 2           H



-'
    512                     SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A are real brothers, there is blood relationship between the two and therefore
    it must be held that respondent No. 2 is a member of the family of respondent
    No. 1. This submission overlooks the fact that the tenant in question is not
    the husband of respondent No. 1 but the respondent No. 1 herself. It cannot
    be said that respondent No. 1 and respondent No. 2 are blood relations. That
B   apart, the question still remains as to whether in the facts and circumstances
    of the case it can be held that respondent No. 2 is a member of the family
    of respondent No. 1. It is futile to attempt to lay down a strait jacket formula
    as to who can be considered to be the member of the family of the tenant,
    particularly in the absence of definition of 'family' in the Act. Having regard
    to relevant considerations, the question must be decided on the facts and
C   circumstances of each case. The High Court has relied upon some decisions
    of this Court wherein the question raised was whether the brother was a
    member of the family, or a case where the tenant had to go to a foreign
    country on business, leaving behind his parents and family members, including
    brothers and sisters. In such a factual situation, this Court held that the
    persons who occupied the premises were the members of the family of the
D   tenant. Such is not the case here.

           It is not the case of the respondent No. 2 that the family ~f the husband
    of respondent No. 1, including his uncles and cousins, always resided together.
     In fact the evidence on record discloses that respondent No. 1 resided in the     r
E    premises with her husband only. Respondent No. 2 joined them sometime in
    the year 1980, and he had his own separate business. There is nothing to
    show that they ever resided together at any earlier point to time or that their
    fathers ever lived together. In fact the evidence on record is to the contrary.
    After he came to reside with respondent No. 1 in the year 1980, an alternate
    premises was acquired by the tenant and she shifted to those premises
F   sometime in the year 1981. Soon thereafter this dispute arose, because the
    tenant having shifted to another premises at Borivili, the premises in question
    continued to be occupied by respondent No. 2. In the facts and circumstances,
    it is difficult to hold that respondent No. 2 is a member of the family of
    respondent No. I, the tenant.

G          The question as to whether a person is a member of the family of the
    tenant must be decide on the facts and circumstances of the case. Apart from
    the parents, spouse, brothers, sisters, sons and daughters, if any other
    relative claims to be a member of the tenants family, some more evidence is · ·
    necessary to prove that they have always resided together as member of one
H   family over a period of time. The mere fact that a relative has chosen to reside




                                                                                       ,.
                                                                                       ~
     KAILASBHAI SHlJKARAM TIWARI v. JOSTNA LAXMIDAS PUJARA [B.P. SINGH, J.]   513

with the tenant for the sake of convenience, will not make him a member of          A
the family of the tenant in the context of rent control legislation.

      We are, therefore, satisfied that the courts below were justified in
holding, on the basis of the evidence on record, that the premises in question
was let out to respondent No. 1 which was occupied by her and her husband.
She acquired another premises at Borivili where she shifted in the year 1981.       B
Before that, in the year 1980 itself, respondent No. 2 had come to reside with
them and he continued to occupy the demised premises even after respondent
No. 1 and her husband shifted to another accommodation at Borivili.
Respondent No. 2 cannot be said to be a member of the family of respondent
No. 1, in the facts and circumstances of the case, and in the context of rent       C
control legislation, with which we are concerned in the instant case.

      We are of the view that the High Court was not justified in setting aside
the concurrent findings of fact recorded by the courts below. This appeal is
therefore allowed. The Judgment and order of the High Court is set aside and
those of the trial Court and First Appellate Court are restored. We make no         D
order as to costs.

      We have noticed that in paragraph 30 of its judgment, the learned Judge
of the High Court has expressed its displeasure against the Joint Civil Judge,
Kalyan and 3rd Additional District Judge, Thane, i.e. the trial Court and the
First Appellate Court. We must observe that-the observations made by the            E
learned Judge of the High Court are not justified. This part of the order should
therefore be communicated to the Registrar General of the Bombay High
Court, so that the observations made in the Judgment of the High Court do
not adversely affect the service career of the judicial officers concerned.

      Learned counsel for respondent No. 2 submitted that some time may be          F
granted to respondent No. 2 to find out an altemate accommodation and then
to vacate the premises. With the consent of the learned counsel appearing
on behalf of the appellant, we grant six months' time to the respondent No.
2 to vacate the premises, subject to furnishing usual undertaking before the
Registrar General of this Court within four weeks from today.                       G'
S.K.S.                                                        Appeal allowed.