Judgment:
B.N. Deshmukh, J.
1. This revision is filed by the landlord, who had initiated proceedings for eviction of the respondent-tenant from the suit premises, which consist of 3 rooms on ground floor of Municipal House No. 2-11-90, situated at Mohalla Rangar Galli, Aurangabad.
2. The relationship of the landlord and tenant is admitted. The eviction was sought by the landlord on several grounds. Firstly, it was contended that the tenant was always irregular in payment of rent and has fallen in arrears from 15-1-1974 to 14-2-1975. Therefore, it was contended that the tenant is a wilful defaulter. The eviction was also sought on the ground of bona fide requirement and, thirdly, it was also contended that the defendant-tenant has constructed his own house at Sindhi Colony, Jalna Road, Aurangabad, and thus has secured an alternative accommodation.
3. The Rent Controller rejected the application for eviction filed by the landlord.
4. The petitioner thereafter filed an appeal in the District Court at Aurangabad, and the appeal of the petitioner is also dismissed on 24-12-1987.
5. Shri Kasliwal, learned Counsel for the petitioner, agitated before me that the findings recorded regarding the wilful default are not correct. I am unable to appreciate as to how authorities below have committed any error in coming to a conclusion that the landlord is not entitled for eviction on the ground of wilful default. The same is the case with the ground of bona fide requirement also. I may note here that apart from the suit premises, the finding is recorded that the landlord is having several houses in Aurangabad. The consideration of bona fide requirement in favour of the landlord is, therefore, out of question.
6. However, on the question of securing alternative house, though both the authorities below have recorded a finding in favour of the tenant, I find that they have acted illegally in this regard.
7. In paragraph 6 of the plaint, it was categorically stated that the defendant, i.e., tenant, has also constructed his own house at Sindhi Colony, Jalna Road, Aurangabad, and has secured alternative accommodation there. The tenant has filed the written statement. While dealing with the contents of paragraph 6 of the plaint, what is stated in the written statement is, 'that the contents of para 6 of the plaint are denied. The house of Sindhi Colony belongs to and constructed by the brother of the defendant. Moreover, the defendant is old man; he is having his cloth shop at Machali Khadak, Aurangabad, just near to the locality of residential place, i.e., Rangar Galli. The house at Sindhi colony is not suitable and convenient to the defendant. As the house of Sindhi Colony is situated just out of the city and far off from the shop of the defendant and the defendant will have to experience difficulty daily in coming and going back from his shop. Moreover, the brother of the defendant is residing there and there is no vacant accommodation also. So it cannot be said that the defendant has secured suitable accommodation.'
8. Apart from the pleadings, the parties have led evidence on this aspect. Before considering the evidence on record, it is worthwhile to consider the provisions of the statute. Section 15 of the Hyderabad Rent Act provides for eviction of tenants. As per sub-section (1) of section 15, a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this section. Sub-section (2) provides :
'A landlord who seeks to evict his tenant shall apply to the controller for a direction in that behalf. If the Controller, after giving the recant a reasonable opportunity of showing cause against the application, is satisfied-.
(v) that the tenant has secured alternative house or ceased to occupy the house for a continuous period of four months without reasonable cause, .....the controller shall make an order directing the tenant to put the landlord is possession of the house, and if the controller is not so satisfied, he shall make an order, rejecting the applications.'
9. The ground of eviction mentioned in para 6 of the plaint relates to the eviction of the defendant by virtue of the provisions contained is Clause (v) of sub-section (2) of section 15 of the Rent Act.
10. The plaintiff has produced the documentary evidence to indicate that the House at Sindhi Colony which is constructed during the tenancy of the defendant stands in the name of the defendant. The documentary evidence consists of the extract from the Aurangabad Municipal Council's register maintained under Rule 74 of the Rules relating to Assessment, Lease of buildings and lands, liable to taxation for the year 1976-77. In that extract, the name of the owner of the said property is mentioned as Chagauram Ishwardas. In the light of the contents of the said document, the tenent was searchingly cross-examined and he was required to admit that the house stands in his name. However, he has tried to explain it by saying that he is not having any other house in his name except one house, which in situated in Sindhi Colony. Thus, he has tried to explain by saying that the plot was first allotted by the society to his brother, but the house was constructed in his name. On the basis of this, Shri Joshi, learned Counsel for the tenant-defendant, has stated that it cannot be said that the house was constructed by the defendant and was belonging to the defendant-tenant. In view of the documentary evidence referred to earlier and in the light of the admission of the defendant-tenant himself, that the house stands in his name, the explanation which is tried to be given by the tenant in connection with that house to the effect that the plot was first allotted to his brother by the society and it is the brother who has constructed the house, but in the name of the defendant-tenant, cannot be accepted, as there is no documentary evidence on record to this effect, produced by the tenant to substantiate the explanation. There is another reason as to why the explanation does not inspire confidence. Admittedly, the plot is allotted by a co-operative society. If the plot was really allotted to the brother, it is impossible to conceive that society will permit the construction on the said plot in the name of the present defendant. The society would naturally insist upon the construction of the house by the person in whose name the plot is allotted. The municipal record produced by the landlord leaves no scope than to hold that the house belongs to the defendant-tenant.
11. The evidence also leaves no scope than to hold that the house was constructed by the defendant after he is occupying the present premises as a tenant. In the cross-examination itself, he has admitted that he is tenant since last 30 years. He has further admitted that the house in Sindhi Colony is constructed 7 to 8 years prior during the tenure of the tenancy. Inspite of this, Shri Joshi has contended that this does not mean that the requirement of Clause (v) of sub-section (2) of section 15 of the Rent Act is attracted in the present case in order to evict the defendant-tenant. According to him, even assuming that the tenant has constructed the house, the same is not occupied by him and the tenant continues to occupy the present rented premises. He has further contended that at the time of the eviction, the said house is not vacant to enable the tenant to occupy the same. This house is occupied by the other tenants and the brother. Clause (v) of sub-section (2) of section 15 of the Act provides that the tenant can be evicted if the tenant has secured an alternative house or ceases to occupy the house for a continuous period of four months without reasonable cause. In this case, we are not concerned with the later part regarding non-occupation of the rented house for a period of four months. We are merely concerned with the securing of alternative house by the tenant. From the evidence on record, the tenant has constructed the house just 7/8 years back. It was open for the tenant to occupy the said house for himself. Instead of that, the tenant probably has let it out to others or allowed his brother to occupy the same. In any event, the day on which the house was constructed and completed, the tenant had secured an alternative house for his occupation. Merely because he has failed to occupy or had no desire to occupy, such a factor cannot be taken into consideration. What is required to be considered under Clause (v) is whether the tenant had secured the alternative house. If inspite of securing the alternative house, he sleeps over and allows others to occupy, even then, the provisions of Clause (v) of sub-section (2) of section 15 are attracted in these circumstances also.
12. It is true that the provisions of the Rent Act are required to be construed as far as possible to protect the tenants from eviction. But, that does not mean that a tenant, who, having secured an alternative house, allows the house to be occupied by others also requires to be protected from eviction. In such an event, the tenant who would become landlord in terms of his own house would continue to occupy the tenanted premises by letting out the premises belonging to him to others. The Legislature has never thought of such an eventuality and has never intended to protect such tenants, who having secured the premises for reasons best known to them refuse to occupy the premises and allow the premises to be occupied by others and sit tight over the properties belonging to the landlord by taking statutory protection offered to them under the provisions of the Rent Act. In the present case, the tenant had secured the alternative house during the term of his tenancy and has failed to occupy the same which fact gives a right to the landlord to evict him under the provisions of Clause (v) of sub-section (2) of section 15 of the Rent Act.
13. It is worthwhile, therefore, to consider the pleadings of the parties in the right perspective. Though in the plaint, it is categorically mentioned that the tenant had constructed his own house at Sindhi Colony at Jalna Road, Aurangabad, and has secured an alternative accommodation there, in the written statement, except the bald denial, the averments in the plaint are not specifically denied. Apart from that, the tenant has tried to supply reasons for not occupying the premises at Sindhi Colony, as he has stated that he has become old person, his cloth shop is at Machali Khadak, just near to the locality of the residential place, i.e., at Rangar Galli, and the house at Sindhi Colony is not suitable and convenient to him. As the house of Sindhi Colony is situated just out of the city and far off from the shop of the defendant, and the defendant will have to experience difficulty daily in coming to and going back from his shop and further it is stated that his brother is occupying the suit premises and there is no vacant accommodation now in the Sindhi Colony also. The inconvenience that may be caused to the tenant in occupying the newly constructed premises in Sindhi Colony is pointed out in the written statement. An attempt is made to justify by giving reasons as to why the occupation of the newly constructed house at Sindhi Colony is not possible. It is not possible to consider this aspect of the matter. The attempt made by the defendant-tenant in the written statement to supply the reasons for not occupying the house at Sindhi Colony indicates that at one stage the premises in the house in Sindhi Colony could have been available for the tenant to occupy. His failure to occupy does not mean that the tenant had not actually secured the premises or that the premises were not available for him by way of alternative house, as is provided for by Clause (v) of sub-section (2) of section 15.
14. In view of this, I am of the opinion that the order passed by the Rent Controller, as confirmed in appeal by the learned Appellate Judge, suffers from grave irregularity. The application of the landlord for eviction of the tenant on the ground of securing alternative house should have been granted by the authorities below and, for the reasons stated above, it is not possible to agree with the findings recorded in this respect by the authorities below.
15. In the result, this Civil Revision Application is allowed. The application of the landlord for eviction of the respondent-tenant from house bearing Municipal No. 2-11-1990, Rangar Galli, Aurangabad, is allowed. Rule made absolute accordingly. No order as to costs. I direct the respondent-tenant to put the petitioner-landlord in possession of the suit house within one month, on or before 24th December, 1993.