Thursday, 31 December 2015

Whether notice of eviction served on one legal heir of deceased tenant is binding on other legal heirs of deceased tenant?

It is a well established principle of law that
upon death of tenant, the legal representatives become
joint   tenants   and   not   the   tenants   in   common.     The

tenancy   right   is   indivisible.     Therefore,   it   is   an
established principle of law that the notice of eviction
served on one of the joint tenants is binding on all the
joint tenants.   Then if by notice of determination of
tenancy,   issued   to   one   of   the   joint   tenants,   all   the
joint   tenants   would   become   tres­passers   in   case   the
suit   premises   are   not   vacated,     naturally   the   suit
against some of the joint tenants would also bind the
remaining joint tenants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
 CIVIL REVISION APPLICATION NO. 112 OF 2012
 Rameshchandra Daulal Soni,

VERSUS
 Devichand Hiralal Gandhi,

 CORAM : M.T. JOSHI, J.

DATE OF JUDGEMENT PRONOUNCED : 20th JULY, 2015
Citation;2015(6) MHLJ 309 Bom

1. All   the   present   civil   revision   applications
have arisen out of one and the same suit filed by the
common respondents No. 1 (since deceased) for eviction
of the defendants therein on the ground of default in
payment of rent, non­user of the suit premises by the
original defendants No. 1 and 2 i.e. the petitioners in
civil revision application No. 112/2012 for a period of
more   than   six   months   and   sub­letting   some   portions   of
the suit premises to the lateron added defendants No. 3
to   7,   including   the   petitioners   in   civil   revision
applications   No.   113/2012   and   114/2012.   The   suit   was
decreed   by   the   learned   Civil   Judge   Senior   Division,

Ahmednagar on the ground of default in payment of rent
and non­user of the suit premises.   The ground of subletting
some portions of the suit premises did not find
favour with the trial court.
Aggrieved   by   the   decree   passed   by   the   trial
court, the original defendants No. 1 and 2 preferred an
appeal   before   the   District   Court   and   aggrieved   by   the
refusal of decree against original defendants No. 3 to 7
as   sub­tenants,   the   original   plaintiffs   filed   crossobjection.
   Further,  original  defendant No. 3/revision
petitioner in Civil Revision Application No. 113 of 2012
and   original   defendant   No.   5/revision   petitioner   in
Civil   Revision   Application   No.   114   of   2012   also   filed
cross­objections.   Thus, the entire dispute was before
the District Court. 
2. The learned Principal District Judge dismissed
the appeal and though did not agree with the plaintiffs
that the defendants No. 3 to 7 were sub­tenants, held
that they do not have any independent title than that of
the   tenants   i.e.   of   defendants   No.   1   and   2   and
therefore,   the   decree   passed   by   the   trial   court   was
confirmed.

3. It is to be noted that out of these defendants
No.   3   to   7,   while   some   of   them   failed   to   put   their
appearance   and   therefore,   the   suit   proceeded   exparte
against them in the trial court, some of them did not
file any written statement and their Advocate had filed
no  instructions purshis from  their  respective  clients.
Eventually,   the   suit   proceeded   without   any   written
statement from them.  The revision petitioners in civil
revision   applications   No.   113/2012   and   114/2012,     are
the   defendants,   who   failed   to   file   the   written
statement.
4. The suit property is  a final plot bearing No.
19, lateron included in town planning scheme and is now
within  the  limits  of  Ahmednagar Municipal  Corporation.
The said plot admeasures 2656 sq. mtrs.
. The suit property was originally owned by three
brothers, namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh
and Shri M.N. Deshmukh, called as Deshmukhs by the trial
court.     The   grandfather   of   defendants   No.   1   and   2,
namely,   Jagannath   Soni   had   obtained   on   lease   the   suit
property by a registered lease­deed dated 22nd May, 1928

from the father of Deshmukhs.  The son of said Jagannath
Soni, namely, Daulal Soni continued to be in possession
of the suit property.  Upon his death on 2nd June, 1985,
the   suit   property,   according   to   the   plaintiffs,
continued   with   the   defendants   No.   1   and   2.     These
defendants   have,   however,   disputed   that   they   are   the
only legal representatives of the deceased.   According
to them, two daughters of Daulal Soni also inherited the
tenancy rights and therefore, the plea of non­joinder of
necessary parties was taken.
. The three sons  of Narhar Balkrishna Deshmukh,
namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh and Shri
M.N. Deshmukh had, according to the plaintiffs, sold the
suit property to the plaintiff on 08.08.1986 and thus,
according   to   the   plaintiff,   he   became   the   landlord   of
defendants No. 1 and 2.
5. In   this   background,   the   case   of   the   original
plaintiff, in short, is as under :­
. On the strength of transfer of the property to
the   original   plaintiff,   he   gave   intimation   to   the
defendant No. 1 about the transfer of the property by

registered post acknowledgement due and defendants No. 1
and 2 were directed to take necessary steps for payment
of rent at the rate of Rs. 31/­ per annum. The tenancy
was yearly tenancy, starting from 22nd  May of each year
and was to end on 21st  May of the next year as per the
English   calender.   Despite   this   intimation   and   lateron
notice at Exh­96, defendants No. 1 and 2 failed to pay
the rent and therefore, they became willful defaulter in
payment   of   rent.     Hence,   the   decree   on   this   count   is
sought.
6. The plaintiff also pleaded non­user of the suit
premises.  Defendant No. 1 Rameshchandra is a practicing
Advocate at Mumbai. Further, the suit premises were let
out for Cotton and Ginning Factory and for the storage
of   the   cotton.   The   said   business   is   now   not   in
existence.     Therefore,   these   defendants   are   not   using
the suit premises for the purposes for which those were
let out since long.  They do not need the suit premises.
It   is   put   under   lock   since   so   many   years.   Therefore,
they   were   asked   to   vacate   the   suit   premises   after
removing the structure vide notice dated 1st  September,
1988.

. During   the   pendency   of   the   suit,   the
Commissioner   was   appointed   for   inspection   of   the   suit
premises.  It was found that defendants No.3  to 7 were
in   possession   of   some   portions   of   the   suit   premises.
Therefore,   the   plaint   was   amended   and   the   decree   was
also   sought   on   the   ground   of   sub­letting   of   the   suit
premises without the permission of the landlord.
7. The defendants No. 1 and 2 though filed their
separate   written   statement,   their   defence   was   common.
It was pleaded that the lease was for a period of   31
years   w.e.f.   22nd  May,   1928   at   an   annual   rent   of   Rs.
31/­.  Upon efflux of time also, the tenancy continued.
These defendants were never asked to attorn the tenancy.
After receipt of intimation dated 6th December, 1986 from
the plaintiff, they contacted the plaintiff.   However,
the   plaintiff   failed   to   substantiate   his   rights   and
therefore,   there   is   no   relationship   of   landlord   and
tenant.   The suit was bad for non­joinder of necessary
party.     Further,   the   pleas   regarding   the   limitation,
improper valuation of the court fees and jurisdiction of
the   court   to   try   the   suit,   were   taken.     All   other
adverse   allegations   were   denied.     The   defendants   No.1

and 2, therefore, prayed for dismissal of the suit.
8. The   oral   as   well   as   documentary   evidence   was
adduced before the the trial court and the learned trial
court recorded the findings, as detailed supra.
9. Mr. P.M. Shah, learned senior counsel, in brief
of Mr. J.R. Shah, learned counsel, for the petitioners
in civil revision application No. 112/2012, advanced the
following submissions :
(I) That,   the   defendants   No.1     and   2,   in   their
written   statement,   have   taken   a   specific   plea   that
deceased Daulal Soni left behind him not only defendants
No.1   and 2,  but two  daughters  and thus, his  plea of
non­joinder   of   necessary   parties   was   required   to   be
considered   by   the   learned   Principal   District   Judge   in
the   first   appeal.     The   learned   Civil   Judge   Senior
Division wrongly held that the tenancy being statutory
tenancy, the same is not heritable, on the basis of the
authorities which do not hold any field.   Further, the
findings   on   the   basis   of   the   provisions   of   section   5
(11) (c) of the Bombay Rents, Hotel and Lodging Houses
Rates   Control   Act,   1947   (for   short,   “the   Bombay   Rent

Act”)   that   a   member   of   the   family   carrying   out   the
activities for which the premises were let out shall be
a   tenant,   has   been   misconstrued   by   the   learned   courts
below.   Such a tenant cannot supersede the inheritance
of the legal representatives of deceased tenant.
(II) So   far   as   the   plea   of   non­user   of   the   suit
premises   is   concerned,   Mr.   P.M.   Shah   points   out   the
provisions of section 13 (1) (k) of the Bombay Rent Act
and   submitted   that   the   pleadings   are   insuffcient.   The
provisions   require   that   the   premises   not   only   should
have   been   remained   unused   for   the   purposes   for   which
those   were   let   for   a   continuous   period   of   six   months
preceding the suit but the said non­user should also be
“without reasonable cause”.  No pleading in this regard
that   the   premises   are   not   used   “without   reasonable
cause”   are   made   and   therefore,   solely   for   want   of
pleading, this ground ought to have been rejected by the
learned courts below.
(III) Mr.   Shah,   learned   senior   counsel,   further
submitted that there is no attornment of tenancy at all.
Therefore,   there   is   no   question   of   payment   of   rent.

Further,   upon   taking   me   through   the   notice   allegedly
given by the plaintiff, he submitted that the demand of
rent is also not for a definite period in view of the
tenancy year, as detailed supra.  The rent, according to
the   agreement   was   to   be   paid   in   advance.     Therefore,
unless and until the notice specifies the amount due for
the specified period, the notice at Exhibit­96 dated 1st
September, 1988 is bad in law.
. Mr. Shah submitted that while the learned trial
court has framed an issue on the question of validity of
the   notice,   the   learned   Principal   District   Judge   even
did   not   frame   point   for   determination   in   this   regard.
In the alternative, Mr. Shah submitted that before the
additional   issues   were   framed   by   the   learned   trial
judge,   the   entire   amount   was   deposited   and   thereafter
the   regular   payment   is   made.   Therefore,   since   on   the
first date of hearing, the amount is deposited, the plea
against forfeiture was required to be considered.    
(IV) Further   pleas   regarding   the   limitation,   the
scope of the revision application when the injustice is
perpetuated, were advanced and Mr. Shah submitted that
either the civil revision application be allowed or for

want of definite finding of the first appellate court,
the matter may be remanded back to it.
10. Mr.   A.K.   Gawali   and   Mr.   R.R.   Mantri,   learned
counsel   for   the   petitioner   in   civil   revision
applications  No.  113/2012  and  114/2012, advanced  their
submissions. They prayed for remand on the ground that
sufficient opportunity to defend the suit was not given
to these petitioners. It was submitted that the record
and papers of the suit were sent to the District Court
pending the suit as the revision application was filed
by   the   defendants   No.   1   and   2.     While   rejecting   the
civil   revision   application,   no   definite   date   for
appearance was given by the learned District Judge for
appearance   of   the   parties   in   the   trial   court.
Thereafter,   the   suit   came   to   be   transferred   from   one
court   to   another.     Therefore,   these   petitioners   had
prayed for remand of the case in the appeal by filing a
separate application.  At that time, it was ordered that
the application would be decided at the time of final
hearing.     However,   the   said   plea   of   remand   was   not
considered   at   the   time   of   final   hearing.   They,
therefore,   submitted   that   as   no   fair   opportunity   to

these petitioners to defend the suit has been given, the
matter is required to be remanded to the trial court.
. In   the   alternative,   it   was   pointed   out   that
there are documents to show that the present respondents
were   in   occupation   of   the   part   of   the   suit   premises
preceding the registered lease­deed.   Further, contrary
findings of facts by the courts below i.e. as per the
learned trial court, they are tress­passers and per the
learned   Principal   District   Judge,   they   are   not   tresspassers
but claimed the possession under the defendants
No.1   and 2, are recorded on the same set of evidence
solely   produced   by   the   plaintiff   in   absence   of   the
present   respondents.     Not   only   this,   Mr.   R.R.   Mantri,
learned   counsel,   submitted   that   the   plaintiff   has
admitted that the revision petitioner in civil revision
application No. 114/2012 is legally in possession of the
suit premises.  The same, however, is not considered by
the   courts.     Further,   though   the   contradiction   in   the
oral evidence of the plaintiff regarding the inception
of   the   present   revision   petitioners,   was   conspicuous,
the   learned   courts   below   did   not   consider   the   same.
Therefore, both learned counsel for the petitioners in
civil   revision   applications   No.   113/2012   and   114/2012

wanted   that   the   revision   petitions   be   allowed   and   the
decree be set aside.
11. On the other hand, Mr. S.D. Kulkarni, learned
counsel for the respondents No. 1A to 1E i.e the legal
representatives of the original plaintiff, submitted as
under :­
(I) That, both the sisters of defendants No. 1 and
2 are married during the lifetime of their father only
and   are   not   participating   in   the   business.   Even
otherwise,   upon   death   of   their   father,   they   are   the
joint   tenants   and   therefore,   does   not   require   any
independent   notice   or   they   are   not   required   to   be
impleaded or arrayed as defendants. He further submitted
that in view of the provisions of section 5 (11) (c) of
the Bombay Rent Act, only the member of the family who
carries on business in the suit premises would be the
tenant.
. Further,   the   very   pleading   that   the   suit
premises were locked and those were not required by the
defendant No. 1 would amount to the plaintiff's non­user
“without reasonable cause”.  

. He further points that the rent for the first
time was deposited after framing of the issues in the
trial   court.     Lastly,   it   was   submitted   that   in   the
present   revision   petitions,   no   interference   in   the
concurrent findings recorded by the learned courts below
is   warranted   and   hence,   Mr.   Kulkarni   wanted   that   the
revision applications of the defendants No. 1 and 2 be
dismissed.
(II) As   regards   the   other   revision   petitions,   Mr.
Kulkarni,   learned   counsel,   submitted   that   the   record
would   show   that   on   service   of   summons,   these   revision
petitioners appeared in the trial court and sought time
to   file   written   statement.     Thereafter,   however,   they
remained   absent   and   even   their   counsel   filed   purshis
having   no   instructions.   Therefore,   the   suit   proceeded
without   their   written   statement.   Thereafter   only,   the
record of the suit and papers were sent to the District
Court.   In that view of the matter, the pleas of nonappearance
due to absence of record and the papers in
the trial court and after the revision was disposed of,
transfer of the file from one court to another in the
same premises of Ahmednagar District Court, are nothing

but   the   excuses   made   by   these   respondents.     In   the
circumstances,  Mr.  Kulkarni submitted  that  since  these
revision petitioners had chosen not to defend the suit
in the trial court, the plea of the plaintiff regarding
their   possession   has   been   rightly   accepted   by   the
learned courts below. Therefore, their petitions deserve
to be dismissed.
12. On   the   basis   of  above   material   on   record   and
the submissions advanced on behalf of all the parties,
the following points arise for my determination :­
(I) Whether   the   suit   suffers   from   non­joinder   of
necessary parties ?
(II) Whether   the   eviction   of   the   defendants   No.   1
and 2 from the suit premises on the ground of forfeiture
of   tenancy   due   to   non­payment   of   rent,   can   be
confirmed ?
(III) Whether the eviction decree on the ground
of non­user of the suit premises by the defendants No. 1
and 2 can be confirmed ?

(IV) Whether the suit was within limitation ?
(V) Whether the matter deserves remand for findings
of facts by the District Court ?
(VI) Whether the matter is required to be remanded
to the trial court for giving fair opportunity to the
revision   petitioner   in   civil   revision   application   No.
113/2012 ?
(VII) What order ?
R E A S O N S
Non­joinder of necessary parties :
13. As   regards   the   non­joinder   of   necessary
parties, Mr. P.M. Shah, learned Senior Counsel, rightly
submits   that   the   reasoning   of   the   learned   trial   court
holding the tenancy as “statutory tenancy” and further
holding that upon death of original tenant, the tenancy
stands expired, is not proper.   Right from the case of

“Damadilal and others V. Parashram and others”, reported
in AIR 1976 S.C. 2229, the confusion caused by the term
“statutory   tenant”,   as   is   used   in   England,   to   the
tenants   protected   under   the   various   Tenant   Protection
Acts   in   India,   has   been   highlighted   and   thereafter   in
catena of cases. The reading of the definition of term
“tenant” in the Bombay Rent Act and various other Tenant
Protection Acts in India would show that a tenant who
continues after determination of tenancy is deemed to be
a tenant for all purposes till a decree for eviction is
passed against him.  The “statutory tenancy”, therefore,
is   inheritable.     In   that   view   of   the   matter,   the
reasoning   of   the   learned   trial   court   in   this   regard
cannot be upheld.
. Mr.   Shah,   learned   senior   counsel   rightly
submitted that despite the provisions of section 5  (11)
(c)   (ii)   of   the   Bombay   Rent   Act   whereunder   a   family
member of the tenant residing with him at the time of
his death can also be termed as a tenant.  It would not
supersede   the   general   law   of   inheritance,   as   has   been
declared in the following cases.

(i) Rajaram Brindavan Upadhyaya and others V.
Ramraj Raghunath Upadhyaya and others
(1977 Mh.L.J. 792)
(ii) Budhmal Khushalchand and another V.
Bansilal Gulabchand Agrawal
1983 (1) Bom. C.R. 11  
The   sister's   of   the   defendants   No.   1   and   2   therefore
inherited the the tenancy right. 
14. The   issue,   therefore,   would   remain   as   to
whether a suit for eviction against some of the legal
representatives of the deceased tenant would be tenable.
The   record   in   the   present   case   would   show   that   the
plaintiff had issued notice to the defendants No. 1 and
2 directing them to pay the rent.  The same was replied
by the defendants No. 1 and 2 without specifying that
they alone are not occupying the suit premises but their
sisters,   being   the   legal   representatives   of   deceased
tenant, would be liable to pay the rent.   The plea is
taken in the written statements that the deceased also
left behind “2 daughters”.
15. It is a well established principle of law that
upon death of tenant, the legal representatives become
joint   tenants   and   not   the   tenants   in   common.     The

tenancy   right   is   indivisible.     Therefore,   it   is   an
established principle of law that the notice of eviction
served on one of the joint tenants is binding on all the
joint tenants.   Then if by notice of determination of
tenancy,   issued   to   one   of   the   joint   tenants,   all   the
joint   tenants   would   become   tress­passers   in   case   the
suit   premises   are   not   vacated,     naturally   the   suit
against some of the joint tenants would also bind the
remaining joint tenants.
16. There is one another angle to the issue of nonjoinder
  of   necessary   parties.     Mr.   P.M.   Shah,   learned
senior   counsel   for   the   petitioners   in   civil   revision
application   No.   112/2012   placed   reliance   on   the   ratio
laid down in the cases of “Textile Association (India)
Bombay Unit V. Balmohan Gopalkrup and others”,  reported
in  (1990)   4   S.C.C.   700,   “Ishwarlal   Pranjeevandas   and
others V. Labhshankar Hargovindas Bhat”, reported in AIR
1982   Gujarat   152,   “Tarachand   and   others   V.   Ramprasad”
reported in (1990) 3 S.C.C. 526 and “Surayya Begum (Mst)
V. Mohd. Usman and others”, reported in (1991) 3 S.C.C.
114.

17. In   some   of   the   cases,   the   exparte   decree   in
favour   of   the   tenant   was   passed   as   the   legal
representatives of the deceased tenant, who were joined
as   defendants   to   the   exclusion   of   others   remained
absent.
. In  the case of “Surayya Begum (Mst) V. Mohd.
Usman and others” (cited supra), relied on by Mr. Shah,
the law on the subject   has been thoroughly discussed.
The   ratio   would   show   that   as   to   whether   failure   to
implead one or the other heir/s of deceased tenant as a
party, would render the eviction decree not executable,
depends upon the facts and circumstances of a particular
case.   It was held that if the interest of the person
not   impleaded   bonafide   represented   by   the     co­heir,
objection   to   the   execution   of   the   decree   would   be
unsustainable. However, in case of collusive or malafide
exclusion of heir from impleadment, such objection would
be sustainable.  Reliance was placed by Their Lordships
on the Explanation­VI of Section 11 of the Code of Civil
Procedure.
18. In   a   way,   if   it   would   an   effective   class
representation,   then   as   per   the  Explanation­VI   to

section 11 of the Code of Civil Procedure, the issues
decided in the lis would be res judicata as against the
legal   heirs   not   impleaded   in   the   suit.     If   all   these
aspects   are   considered,   then   the   fact   that   the
defendants No. 1 and 2 in the present case did not, in
their   communication   earlier   to   the   litigation,
communicate   the   fact   of   having   other   legal
representatives to  the  deceased and thereafter  raising
of the said issue by amendment of the written statement
lateron in the trial court would show that if at all any
grievance of the sisters of the defendants No. 1 and 2
would   be   there,   the   plaintiff   would   very   well   be
entitled   to   show   that   they   were   litigating   bonafide
against present defendants No. 1 and 2.   At least, the
issue is not required to be decided in the present lis.
Considering all this material on record, I do not find
any infirmity in the final conclusion in this regard of
both the courts below, though for different reasons, as
detailed supra.
19. The grievance of Mr. Shah is that the learned
Principal District Judge did not record any finding on
this issue though the arguments advanced in this regard

were referred by the learned Principal District Judge.
Mr. Shah, therefore, seeks remand of the matter on this
count.
20. It is to be noted that the issue is depending
on law only, as detailed above i.e. the tenants would be
joint   tenants,   that   the   effect   of   Explanation­VI   to
section 11 of the Code of Civil Procedure, is considered
by   this   Court.   In   the   facts   of   the   present   case,
therefore, though Mr. Shah relied on the ratio in the
case of “H.K.N. Swami V. Irshad Basith (Dead) by Lrs.”,
reported  in  (2005) 10  S.C.C.  243,  “Mukhtiar  Singh  and
another V. State of Punjab”, reported in (1995) 1 S.C.C.
760  and  “Santosh Hazari V. Purushottam Tiwari deceased
by L.Rs.”,  reported in  2001 (2) Mh.L.J. 786,  since the
parties are litigating since 1989, I do not think it fit
to remand the matter to the trial court.   The point No.
(I) is, therefore, answered accordingly.
Willful default in payment of rent :
21. Mr.   P.M.   Shah,   learned   senior   counsel,
submitted that there was merely communication from the

plaintiff that they had purchased the suit property from
the   original   landlord.   There   was   no   notice   of
attornment.  Even the demand of the rent vide notice at
Exhibit­96   was   overlapping     is   clear   from   the   said
communication   as   the   yearly   tenancy   used   to   commence
from 22nd May of each year and was to end on 21st May of
the   next   year.   He,   therefore,   submitted   that   the   midterm
  demand   of   the   rent   i.e.   the   demand   made   on   6th
August, 1986 would amount to a claim of the rent for the
period   when   the   earlier   landlord   was   entitled   for   the
same. There is nothing on record to show that any right
to recover the arrears of rent, if any was transferred
and at the most, it would be a charge and not the rent.
. Mr. Shah further points towards the recitals in
the lease­deed that the rent was to be paid in advance
and therefore, according to him, on the date of issuance
of the notice by the present plaintiff of the purchase
of the suit property by them on 6th  August, 1986, would
show   that   no   rent   was   due   on   that   day.     In   the
circumstances, Mr. Shah submitted that when the notice
itself was invalid, no forfeiture of the tenancy could
have   been   incurred   for   non­compliance   of   the   said
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
38 cra112-113-114-2012
notice.   He further points that at the time of framing
of   additional   issues   in   view   of   the   amendment   to   the
written statement on 9th September, 1997, the  amount was
deposited and thereafter, the rent was being deposited
regularly in the court.   He submitted that the relief
against forfeiture should be construed liberally and in
the circumstances, there would be no willful default in
payment of rent. 
22. It   should   be   noted   that  the  defendants   No.   1
and 2 never came with a case that they had paid the rent
of the year 1986­1987 to their earlier landlord nor any
receipts   were   produced   on   record.   Further,   after   the
pleadings   were   completed   and   the   issues   were   framed,
there   was   no   deposit   of   the   rent   in   the   court.
Thereafter, after some period, the defendants No. 1 and
2   amended   their   written   statement   whereupon   the
additional issues were framed before which the rent was
deposited.   This cannot be termed as a deposit of rent
on or before the “first date of hearing” as is envisaged
by the provisions of Section 12 of the Bombay Rent Act.
23. The issue of attornment of tenancy is merely a
defence for the purposes of defence.  As earlier pointed
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
39 cra112-113-114-2012
out, there is nothing on record to show that after the
execution of the sale­deed in favour of the plaintiff,
the defendants No. 1 and 2 continued to pay the rent to
the original landlord any time till this date.   It is
not   the   case   of   the   defendants   No.   1   and   2   that   the
original   landlord   at   any   time   disputed   with   them   the
fact of transfer of the property to the defendants No. 1
and   2   since   the   date   of   communication   to   them   by   the
present plaintiff i.e. 16.12.1986.  In that view of the
matter, the ratio in the case of “V. Dhanpal Chettiar V.
Yesodai Ammal” reported in (1979) 4 S.C.C. 214 would not
be   applicable   in   the   facts   of   the   present   case.     The
facts on record, as detailed supra, would show that the
defendants   No.   1   and   2   not   only   failed   to   tender   the
rent to the plaintiff after receipt of the communication
but they did not even deposit the rent in the court on
the   first   date   of   hearing.   The   decree   passed   by   the
learned   trial   court,   as   confirmed   by   the   learned
Principal  District  Judge,  in  the  circumstances, cannot
be assailed.
Non­user of suit premises :     
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
40 cra112-113-114-2012
24. During evidence, it has become clear that the
suit   properties   which   were   originally   leased   for   the
purposes   of   Ginning   and   Pressing   Mill   of   the   cotton
remained   closed   for   years   together   much   prior   to   six
months   immediately   preceding   the   filing   of   the   suit.
The   Commissioner's   report   in   this   regard   corroborates
the said fact. The dispute, however, is as to whether
the   pleadings   of   the   plaintiff   in   this   regard   are
sufficient. The provisions of section 13 (1) (k) of the
Bombay   Rent   Act   are   material   to   consider   the   rival
claims in this regard, which run as under :­
13. When landlord may recover possession
(1) Notwithstanding anything contained in this
Act but subject to the provisions of sections
15   and   15A,   a   landlord   shall   be   entitled   to
recover possession of any premises if the Court
is satisfied ­
(a) to (j) *****
(k) that   the   premises   have   not   been   used
without   reasonable   cause  for   the   purpose   for
which they were let for a continuous period of
six   months   immediately   preceding   the   date   of
the suit;” (Emphasis supplied)
25. Mr.   Shah   submits   that   the   plaintiff   never
pleaded   that   the   premises   have   not   been   used   “without
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
41 cra112-113-114-2012
reasonable cause”. He simply pleaded that the defendants
No.   1   and   2   are   not   using   the   suit   premises   for   the
purpose for which those were let out.  The reliance was
placed   on   the   ratio   laid   down   in   the   cases   of   “C.R.
Shaikh   V.   Leelabai”,  reported   in  1981   Mh.L.J.   437  and
“Ashok   Vithal   Chavan   and   others   V.   Baburao   Sakharam
Bhagat” reported in 2002 (4) All MR 217.
26. The   learned   trial   court   held   that   the   exact
term is not necessary to be pleaded. According to it, it
is   a   legal   terminology   and   hence   the   law   need   not   be
pleaded.  The learned Principal District Judge held that
the   premises   are   not   in   use   and   did   not   consider   the
issue of want of pleading.
27. It is held by this Court in the cases of “C.R.
Shaikh V. Leelabai”, and “Ashok Vithal Chavan and others
V.   Baburao   Sakharam   Bhagat”  (cited   supra)   that   the
plaintiff/landlord   is   required   to   plead   that   not   only
the suit premises are not in use for a period of more
than   six   months   preceding   to   filing   of   the   suit,   but
also the said non­user is without reasonable cause.
. It should, however, be noted that the plaintiff
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
42 cra112-113-114-2012
has   pleaded   that   the   suit   premises   were   closed   since
long and those were locked for so many years.   It was
also   pleaded   that   the   defendant   No.   1   had   started
practicing at Mumbai since long and defendant No. 2 was
also   not   in   the   business   of   cotton.     All   these   facts
would go to show that the purpose for which the premises
were   let,   is   no   more   in   existence,   the   occupier   also
does not need the suit premises and it is merely locked
for   many   years.     All   these   facts   pleaded   would
necessarily mean that the suit premises are out of use
`without   reasonable   cause'.   In   the   circumstances,   the
decree passed by the trial court, as confirmed by the
learned Principal District Judge dos not suffer from any
material illegality.  
Limitation :
28. Mr. Shah, learned senior  counsel submits  that
in   view   of   the   provisions   of   Article   67   of   the
Limitation Act, 1963, the suit is hopelessly barred by
limitation.     He   relies   on   the   ratio   laid   down   in   the
cases   of   “Smt.   Shakuntala   S.   Tiwari   V.   Hemchand   M.
Singhania”  reported   in  AIR   1987   SC   1823  and  “Sudha
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
43 cra112-113-114-2012
Madhusudan   Lanjekar   and   others   V.   Shashikant   Gajanan
Pathare & others” reported in 2012 (1) ALL MR 710.
29. Article 67 of the Limitation Act, 1963 runs as
under :
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Description of    Period of  Time from which period 
Suit Limitation begins to run
­­­­­­­­­­­­­­­­­ ­­­­­­­­­­­­  ­­­­­­­­­­­­­­­­­­­­­­
By a landlord to  Twelve years When the tenancy is
recover possession determined
from a tenant 
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
30. It cannot be disputed that suit for eviction is
required   to   be   filed   within   a   period   of   twelve   years
from the date of determination of tenancy.   Even if we
advert to the provisions of Article 66, then the suit is
required   to   be   filed   within   a   period   of   twelve   years
when   the   tenant   incurs   forfeiture   or   any   condition   of
the   lease   is   broken.     In   the   present   case,   the
forfeiture is incurred upon non­payment of the rent upon
issuing   notice   at   Exhibit­96   and   further   upon   not
depositing   of   arrears   of   rent,   etc.   on   or   before   the
first date of hearing in the suit.  In that view of the
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
44 cra112-113-114-2012
matter,   since   the   suit   is   filed   within   a   period   of
twelve   years   of   issuing   of   notice   at   Exhibit­96,   the
suit is within limitation.
31. No particulars in the written statement as to
how the suit is beyond limitation are given.   In that
view of the matter, the ratio of the authorities, relied
upon   by   the   learned   senior   counsel,   would   not   be
applicable in the facts of the present case.
Subletting of the suit premises and opportunity
to   the   petitioners   in   Civil   Revision
Applications No. 113/2012 and 114/2012 to have
fresh hearing upon remand of the matter : 
32. There is certain contradiction in the pleadings
and   depositions   from   the   side   of   the   plaintiff   as   to
since   when   the   present   revision   petitioners   or   their
predecessor/s   alongwith   other   added   respondents   were
occupying   the   suit   premises.   While   the   Commissioner's
report showed that they were in possession of the suit
premises, the defendants No. 1 and 2 failed to specify
as   to   how   these   added   respondents   were   occupying   the
premises   though   leased   to   the   predecessors   of   the
defendants   No.   1   and   2.   Present   revision   petitioners
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
45 cra112-113-114-2012
i.e. defendant No. 3 and defendant No. 5 though appeared
in   the   proceedings,   they   failed   to   file   their   written
statement   and   ultimately,   their   respective   Advocates
were required to intimate to the trial court that they
had   no   further   instructions   from   their   clients   for
further   appearance   in   the   suit.   Thereafter   only,   the
matter was taken in revision by the defendants No. 1 and
2 in the District Court. The revision was dismissed and
thereafter, the record and papers of the suit were sent
back to the trial court.  The file was transferred from
one court to another court within the same premises of
Ahmednagar   District   Court.   In   this   state   of   facts,   we
shall have to find out as to whether these petitioners
can be termed as unlawful sub­lessees and/or whether the
case is required to be remanded back to the trial court
with directions to it to accept the written statement of
these   revision   petitioners   and   to   begin   the   trial
afresh.
33. It   is   now   well   established   that   if   a   third
person other than the tenant is found in possession of
the   tenanted   premises,   then   the   tenant   as   well   as
occupier has to show the nature of the possession.   In
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
46 cra112-113-114-2012
absence   of   the   same,   since   the   landlord   would   be   a
stranger to the contract or agreement between the tenant
and the occupier, the necessary conclusion would be that
the tenanted premises are sub­let to the occupier.  The
facts   already   noted   hereinabove   would   show   that   while
the defendants No. 1 and 2 failed to specify the nature
of   possession   of   the   rest   of   the   defendants,   these
defendants   and   more   particularly   the   present   revision
petitioners failed to specify their nature of possession
by   non­filing   of   written   statement   and   thereafter   not
contesting the suit.
34. The plea of remand of the matter also cannot be
considered for the simple reason that an opportunity to
be   heard   was   forfeited   by   non­filing   of   the   written
statement and thereafter by abstaining from trial in the
trial   court   itself   by   these   revision   petitioners   or
their   predecessor.   The   filing   of   civil   revision
application   by   the   defendants   No.   1   and   2   in   the
District Court, sending the record and papers from the
trial court to the District Court and after some period,
return of the record and papers are merely the excuses
being   made   by   the   present   revision   petitioners.   To
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
47 cra112-113-114-2012
repeat, they thought it fit not to participate in the
proceedings long back before the said episode of filing
civil revision application in District Court had taken
place.
35. Mr.   R.R.   Mantri,   learned   counsel   for   the
petitioner  in  civil revision  application  No.  114/2012,
relied on the ratio laid down in the case of “Ratilal
s/o   Jivanbhai   Lalji   Vs.   Kuvarben   wd/o   Chabildas   Patel
and others”, reported in 2009 (1) All MR 654, wherein a
suit   from   the   Small   Causes   Court   at   Fort,   Mumbai   was
transferred   with   other   relevant   suits,   upon
establishment   of   Small   Causes   Court   at   Bandra   and   in
those circumstances, it was held that the notice to the
litigants was required.
. Here   in   the   present   case,   however,   we   have
already   found   that   the   revision   petitioners   abstained
from   the   appearance   and   failed   to   file   written
statement.  Thereafter only, the record and papers were
sent to the District Court and upon return of the same,
the   suit   was   transferred   not   beyond   the   Ahmednagar
District   Court   premises   but   from   one   court   to   another
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
48 cra112-113-114-2012
court in the same premises.   It is well known that in
such circumstances, a general transfer order issued by
the Principal District Judge placed on the notice board
of   the   Bar   Association   is   sufficient   notice   to   the
Advocates for the parties.  The Advocates had, however,
filed their no instruction pursis and no other Advocates
were   engaged   by   the   present   respondents.     In   view   of
these facts, when the suit was filed in the year 1989,
now   remanding   the   case   again   back   to   the   trial   court
would be a travesty of justice.
. Mr.   Mantri   submits   that   though   on   an
application for remand of the matter, the then District
Judge passed an order that it would be considered at the
time   of   final   hearing,   the   same   was   not   decided.     It
should   however   be   noted   that   the   plea   of   remand   was
considered by the District Judge in the judgement. 
  
36. Regarding the finding of fact in this respect,
the   learned   trial   court   did   not   grant   decree   on   this
count   finding   that   the   landlord   failed   to   show   that
there was a contract of tenancy between defendants No. 1
and 2 on one hand and the other defendants on the other
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
49 cra112-113-114-2012
hand.  It was observed that merely possession of rest of
the   defendants   than   defendants   No.   1   and   2   in   some
portion of the premises would not amount to subletting.
The   learned   Principal   District   Judge   confirmed   the
findings   as   recorded   by   the   trial   court   but   on   law,
differed with the trial court.   For the reasons which
are already forwarded by me earlier that it is for the
occupier   and   the   tenant   to   specify   the   nature   of   the
possession of the occupier in the tenanted premises, no
material   irregularity,   therefore,   is   found   in   the
conclusion   of   the   learned   Principal   District   Judge   in
this regard.
37. Mr.   Mantri   submits   that   the   lease­deed   at
Exhibit­100   would   show   that   the   present   revision
petitioner   had   already   occupied   some   portion.   The
contents   of   the   lease­deed,   however,   are   only   to   the
effect that earlier landlords' one tenant had a hut in
the   premises   which   was   to   be   continued   by   the   then
lessee i.e. grandfather of the defendants No. 1 and 2.
38. Considering all the material on record and the
legal position, discussed hereinabove, there is no merit
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::Bombay High Court
50 cra112-113-114-2012
in   all   the   three   revision   applications.   Hence,   the
following order :­
39. All the three civil revision applications are
hereby dismissed, with costs.
[M.T. JOSHI]
         JUDGE
npj/cra112­113­114­2012
::: Uploaded on - 20/07/2015 ::: Downloaded on - 31/12/2015 17:25:48 :::
Print Page

No comments:

Post a Comment