Friday, 29 July 2016

Whether court fees for mesne profits is to be paid at time of filing of suit?

She lastly submitted that order directing an enquiry into mesne profit was liable to be set aside inasmuch as the plaintiffs had not proved their case regarding the damages and, therefore, the order of mesne profit was liable to be set aside. She further submitted that the plaintiff was liable to pay court fees on account of mesne profit determined by him and without payment of the Court Fees, the claim for mesne profit was not tenable. She relied on the judgment of this Court in the case of Faredoon Maneckji Dalai v. Phiroze Bonanji Javeri reported in 1995(2) Mh.LJ. 344 : 1995(3) BCR 512.
With respect to the contention raised by the learned counsel for the applicant regarding mesne profit, it can be seen from the judgment passed by the learned trial Court which has been upheld by the appellate Court that the learned trial Court has only directed an enquiry into the mesne profit in accordance with the provisions contained in Rule 12 of the Order XX of the Code of Civil Procedure. No fault can be found with the said direction. However, it is made clear that the amount paid by the applicant in pursuance to the orders passed by this Court on 3-9-1997 will be adjusted in the final order of mesne profit that would be passed upon enquiry into the mesne profit.
Bombay High Court
Ramchandra Jamnadas Katariya vs Nuruddinbhai S/O Mazhar Ali And ... on 25 August, 2004
Equivalent citations: AIR 2005 Bom 107, 2005 (1) BomCR 650, 2004 (4) MhLj 178

Bench: B Gavai


1. Being aggrieved by the judgment and order passed by the learned Small Causes Court, Nagpur, dated 2nd December, 1996, thereby decreeing Regular Civil Suit No. 907 of 1988 filed by the present respondents, and the judgment and order passed by the learned 5th Additional District Judge, Nagpur, dated 21st July, 1997 thereby dismissing the appeal of the present applicant, the applicant approaches this Court by way of the present revision.
2. Mazharali s/o Sk. Mohsin Bhai, the predecessor in title of the present respondents, filed Civil Suit No. 907 of 1988 against the present applicant, claiming that he was the landlord of the suit premises and that the defendant was his tenant, after obtaining permission from the Rent Control authorities, which came to be confirmed upto the Apex Court. Prior to that a notice dated 27th May, 1988 was issued to the defendant-tenant thereby terminating the tenancy with effect from 30th June, 1988 and asking the defendant to deliver the possession of the suit premises. Since the defendant did not comply with the said notice, the plaintiff-landlord filed a suit in the Court of the Small Causes at Nagpur for possession and mesne profit for the period from 1-7-1988 to 5-7-1988. The suit was dismissed in default on 6-2-1991. An application for restoration being M.J.C. No. 57 of 1991 was filed on behalf of the plaintiff. The suit came to be restored vide order dated 7th October, 1995. In the interregnum, the original plaintiff Mazharali expired and the proceedings were prosecuted by his legal heirs, the present respondents.
3. The suit was defended by the defendant. The defendant denied that the plaintiff was the owner of the suit premises. The defendant further averred that the notice for termination was not valid. It was further the case of the defendant that since the plaintiff had accepted the rent on 18-9-1993, it amounted to waiver of the notice and creation of fresh lease.
4. After framing the issues, the learned trial Court held that the question of ownership of the plaintiff was decided by the Rent Control proceedings which was confirmed upto the Apex Court and that the said findings operate as res judicata. The learned Court also found that notice for termination of tenancy was legal and valid. It also found that mere acceptance of rent does not amount to waiver of notice. The learned trial Court, therefore, decreed the suit vide judgment and order dated 2nd December, 1996 by directing the defendant to deliver the vacant possession of the suit premises to the plaintiff within a period of three months.
5. Being aggrieved by the judgment and order passed by the learned trial Court, the defendant-tenant preferred an appeal. The defendant-appellant raised all the points before the learned appellate Court which were raised by him before the trial Court. However, the learned first appellate Court negatived all the points and dismissed Regular Civil Appeal No. 12 of 1997 filed by the tenant-defendant. Being aggrieved by these two judgments, the defendant-tenant has approached this Court by way of present revision.
6. Heard Miss J.J. Kataria, the learned counsel for the applicant and Shri P.N. Kothari, the learned counsel for the respondents.
7. Miss Kataria, the learned counsel for the applicant, submitted that the plaintiff has himself deposed in his deposition that he did not have the knowledge of terms of lease. She, therefore, submitted that the contention raised by the plaintiff that the tenancy commences from first of every English calendar month was not true. She further submitted that the learned lower Courts ought to have seen that the tenancy commences from 10th of every month and, therefore, the learned lower Courts ought to have held that the notice is not valid. She further submitted that particularly when the witness was not cross-examined on this point, the evidence ought, to have been accepted. She placed reliance on the judgment of Patna High Court in the case of Karnidan Sarda and Anr. v. Sailaja Kanta Mitra reported in AIR 1940 Patna 683. The judgment of the Himachal Pradesh High Court in the case of Kansi Ram v. Jai Ram and Ors. , and the judgment of Punjab High Court in the case of Chuni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. and Anr. , in support of this proposition.
8. She further submitted that after the suit was dismissed in default on 6-2-1991 and the original plaintiff died on 4-10-1991, the respondent No. 1-Nuruddinbhai had accepted the rent @ Rs. 140/- per month. She, therefore, submitted that the acceptance of rent after the issuance of quit notice, amounts to waiver of notice and creation of fresh lease. She further submitted that the defendant had made an application for issuance of summons to examine Shri Madhav Sadashio Chute and Vasantrao Chute to prove the oral agreement of lease. She submitted that rejection of the said application by the learned trial Court amounts to denial of fair opportunity to the defendant to prove the defendant's case.
9. She further submitted that it has come in the evidence of respondent No. 1 that they had one sister named Fatema. She submitted that said Fatema was not brought on record as legal heir of the original plaintiff. Miss Kataria, therefore, submitted that since all legal heirs who are necessary parties were not brought on record, the suit was not maintainable and the learned trial Court ought to have dismissed the suit on the said ground alone. She relied on judgment of the Apex Court in the case of Narayan Dass v. Trilok Chand , the full bench judgment of the Gujarat High Court in the case of Nanalal Girdharlal and Anr. v. Gulamnabi Jamalbhai Motorwala and Ors. .
10. She lastly submitted that order directing an enquiry into mesne profit was liable to be set aside inasmuch as the plaintiffs had not proved their case regarding the damages and, therefore, the order of mesne profit was liable to be set aside. She further submitted that the plaintiff was liable to pay court fees on account of mesne profit determined by him and without payment of the Court Fees, the claim for mesne profit was not tenable. She relied on the judgment of this Court in the case of Faredoon Maneckji Dalai v. Phiroze Bonanji Javeri reported in 1995(2) Mh.LJ. 344 : 1995(3) BCR 512.
11. Shri Kothari, on the contrary, submitted that in the plaint, the plaintiff has specifically submitted that the tenancy commences on the 1st day of each English calendar month. He submitted that the defendant has vaguely denied this assertion made by the plaintiff. He further submitted that in case of evasive or vague denial in the written statement, the said fact must be taken to have been admitted. He relied in support of this proposition on the judgment of the Apex Court in the case of Badat and Co. Bombay v. East India Trading Co. , and the judgment of this Court in the case of Sambhaji Laxmanrao Pawar v. Abdul Wahed s/o Rahmatullah reported in 1995(1) Mh.LJ. page 22. Shri Kothari further submitted that the notice was issued on 27th May, 1988, terminating the tenancy from 30th June, 1988. He further submitted that the notice was duly received by the tenant on 28th May, 1988. He, therefore, submitted that there was clear 30 days' notice and as such notice was valid in law. He further submitted that the documentary evidence in the nature of rent receipts which are Exhs. 41 to 66, shows that monthly tenancy is from 1st of each English calendar month. He relied on the judgment of Calcutta High Court in the case of Provash Chandra Chatterjee v. Chand Mohan Basak in support of the proposition that where the payment of rent is according to English calendar month, the presumption is that the tenancy begins from the first day of the month and ends with the last day of the month.
12. Insofar as the contention of the learned counsel for the applicant regarding waiver, he submitted that waiver is the question of fact. He submitted that this question of fact having been concurrently held against the applicant, it would not be appropriate to reappreciate the evidence with regard to question of fact in the revisional jurisdiction of this Court. He, however, submitted that the waiver has to be determined from the intention of the parties. He submitted that the very fact that the plaintiffs were prosecuting the suit and the application for restoration of suit after its dismissal in default, shows that the plaintiffs had no intention to waive the notice.
13. Insofar as the question of fresh lease in concerned, he submitted that though sufficient opportunity was given to the defendant to prove his case on this point, he failed to avail the opportunity. He further submits that there is no material to point out that fresh lease between the parties was created and as such on this point also, the findings of the learned lower Court are required to be upheld.
14. Shri Kothari lastly submitted that the written statement was amended by the defendant on 30th April, 1996 so as to incorporate para 10 to include the pleading of fresh lease. In the written statement, the applicant has not taken the plea regarding the said Fatema who is married daughter of the original plaintiff, being necessary party. In the alternative, it is submitted that it is not necessary that all the co-owners should file the suit for eviction. In support of his contention, he relied on the judgment of the Apex Court and this Court in the case of Shri Ram Pasricha v. Jagannath and Ors. , Rahimtulla Abdul Rahiman Nakib v. Chandrakant Anant Moog and Ors. and Yogesh Dattaram Pathak v. Shrikrishna Shriram Joshi .
15. In view of the rival submissions, the points that require determination in the present revision are as under :
(i)      Whether the notice dated 27-5-1988 is valid?
 

(ii)    Where the acceptance of rent after termination, amounts to waiver of notice or creation of fresh lease?
 

(iii)   Whether the suit was not tenable for non-joinder of married daughter of the original plaintiff-Fatema?
 

16. It will be seen from the record that the notice terminating the tenancy with effect from 30th June, 1988 was issued on 27th May, 1988. The notice was received on 28-5-1988. In para two of the suit, the plaintiff has specifically averred as under :
  

"That, the defendant is in occupation of block No. 14 as a tenant at a monthly rent of Rs. 140/- p.m. The tenancy commences on the first day of each English calendar month".
 

In reply to this averments, the applicant has stated in the written statement as under :
  

"It is admitted that the defendant is in occupation of block No. 14 as a monthly tenant on a rent of Rs. 140/- per month. It is denied that the tenancy commences on the 1st of each English Calendar month."
 

It can, thus, be seen that the plaintiff has specifically pleaded that the tenancy commences on the first day of each English calendar month. Apart from vague denial to this averment, the defendant has done nothing more in the written statement. If it was the case of the defendant that the tenancy commences from 10th of each English calendar month, then the defendant ought to have specifically pleaded the same in this written statement. The plaintiff has also stated in his examination-in-chief that the tenancy month starts from 1st and ends by the end of every month according to English calendar month. The plaintiff was also cross-examined on this point and he has denied the suggestion given to him that the tenancy does not commence from the first of each month. In view of the pleadings of the parties and their evidence, it is clear that it was a specific case of the plaintiff that the tenancy commences from 1st and ends by the last day of the month according to English calendar. The defendant has nowhere asserted his case that the tenancy commences from 10th of each month. In view of specific averment by the plaintiff that the tenancy commences from 1st of every English month and vague denial of the same by the defendant, in my view, the present case is squarely covered by the judgment of the Supreme Court in the case of Badat and Co., Bombay (cited supra). The Apex Court has observed thus, "Rules 3, 4 and 5 of Order 8 of Civil Procedure Code form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary."
No doubt, the various judgments relied upon by the learned counsel for the applicant in the cases of Karnidan, Kansi Ram and M/s Chuni Lal (cited supra) of the Patna, Himachal Pradesh and Punjab High Courts respectively, lay down the proposition of law that when a witness is not cross-examined, his evidence must be accepted. It is a well settled proposition of law. However, I am unable to understand as to how the said proposition would be applicable to the facts of the present case. In the present case, the plaintiff has specifically stated that the tenancy commences from 1st day of every month according to English calendar and apart from mere vague denial of the same, the defendant has done nothing more. In that view of the matter, the aforesaid cases are not at all applicable to the facts of the present case, but the present case would be covered by the law laid down by the Apex Court in the case of Badat and Co. (cited supra). The Division Bench of this Court has also taken a similar view in the case of Sambhaji Laxmanrao Pawar (cited supra), as has been taken by the Apex Court in the case of Badat and Co. One more fact needs to be noticed is that documentary evidence in the nature of rent receipts below Exhs. 41 to 66 also show that the monthly tenancy was from 1st of every month. The Division Bench of the Calcutta High Court in the case of Provash Chandra Chatterjee (cited supra) has observed thus ;
"The payment of rent according to the English calendar month in the absence of any other evidence is indicative of the fact that the tenancy was according to English calendar month, beginning from the first day of the month and ending with the last day of the month. This would be so even assuming that the tenancy commenced in the middle of the month. In that case, the implication would be that the parties mutually agreed to the payment of rent for the broken period of the first month of tenancy and thereafter, month by month according to the English calendar month."
In the aforesaid case, the Calcutta High Court has taken a view that assuming that the tenancy commences in the middle of the month and if the evidence shows that the payment of rent was according to English calendar month, even then the implication would be that the parties mutually agreed to the payment of rent for the broken period of the first month of tenancy and thereafter, month by month according to the English calendar month. In the present case, there is a specific assertion by the plaintiff that the tenancy commences from 1st of every month. The defendant has vaguely denied this assertion. The rent receipts also show that the payment of rent was according to the English calendar month. In that view of the matter, I find that the learned lower Courts have rightly held that the plaintiff had proved beyond reasonable doubt, that the tenancy commenced from 1st day and ended on the last day of every month according to English calendar. I, therefore, find no infirmity with the findings of the learned lower Court that the notice was a valid notice.
17. Now let us examine the question as to whether acceptance of rent after issuance of notice amounted to waiver of notice or not. It can be seen that the learned lower Courts have concurrently held that from the facts on record, it is not established that the acceptance of rent amounted to waiver in the facts of the present case. Section 113 of the Transfer of Property Act, 1882 reads thus;
"113. Waver of notice to quit. --A notice given under Section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person given it showing an intention to treat the lease as subsisting."
It can, thus, be seen that there has to be a specific act on the part of the person giving consent showing an intention to treat lease as subsisting. Therefore, the question of intention of the parties will be of paramount importance to determine the case of waiver. It can be seen that the suit was initially dismissed for default. However, the plaintiff filed an application for restoration of the said suit and proceeded with the said suit. It can, thus be seen that the plaintiffs had no intention to waive the notice.
This Court, in the case of Rambhau Ganpat Rudrakar (cited supra) has observed thus :
".......That is what the section requires. It is clear from the section that the notice of ejectment is waived not only by a subsequent act on the part of the person giving such a notice doing an act which shows an intention to treat the lease as subsisting, but only when such an act is accompanied by an express or implies consent of the tenant or the lessee. In other words, the mere act of the lessor showing an intention to treat the lease as subsisting is not sufficient to constitute a waiver. That action must have the express or implied consent of the lessee whose consent to the act must exist."
Thus, this Court has taken a view that only the act which can be said to have shown an intention on the part of lessor to treat the lease in subsistence, is not sufficient, but such an act has also to be accompanied by an express or implied consent of the tenant or lessee. However, in the facts of the present case, it cannot be said that there was an act on the part of the lessor to show that the lease was subsisting. As a matter of fact, the plaintiff was diligently prosecuting the suit for eviction and as such cannot be said to have waived the notice. This Court in the case of Hashmatrai Hiranand Sindhi and Anr. v. Tarachand Laxmichand Mohota and Ors. reported in 1978 Mh.L.J. 750 observed thus :
"The question of waiver has to be decided on the basis of facts of each case. The question is one of intention of parties. Once a suit for ejectment has been instituted it cannot possibly be said that any act of the lessor shows an intention to treat the lease as subsisting unless he withdraws the suit. The lessor cannot be said to have waived the notice by accepting rent during continuance of the suit. The contention cannot be accepted that a termination of tenancy which has been made a cause of action for filing a suit should be done away with on account of alleged waiver by acceptance of certain amount."
In my view, the present case is squarely covered by the judgment of this Court in the case of Hashmatrai (cited supra). Mere acceptance of the rent by the landlord during the pendency of the suit, in my view, would not amount to waiver of notice.
The learned counsel for the applicant has vehemently urged that by rejecting the application of the applicant for issuing summons to Shri Madhao Sadashiv Chute and Vasantrao Chute as his witnesses, to prove oral agreement of lease dated 18-9-1993, the applicant was deprived of an opportunity to prove his case. In this respect, it would be necessary to refer to the conduct of the present applicant. The evidence of the plaintiff was recorded on 29-9-1996. After the plaintiff's evidence was recorded, the matter was adjourned on five dates for the evidence of the defendant and ultimately it was recorded on 18-11-1996. It appears that the applicant thereafter filed an application dated 18-11-1996 for summoning the aforesaid two witnesses. It is to be noted that the applicant has amended his written statement on 30th April, 1996 so as to implead the case of fresh tenancy. It is vaguely averred in the said amended written statement that :
".....The present plaintiff No. 1 Nuruddin entered into a fresh agreement of lease with the defendant on 18-9-1993 under which the Nuruddin became the landlord of the defendant and the defendant became his tenant agreeing to pay rent at the rate of Rs. 140/- p.m. ........"
It can be seen from the said averments that the defendant has not even averred that the lease was created by way of oral agreement in the presence of said Madhao Chute and Vasant Chute. The learned trial Court, therefore, vide order dated 18-11-1996 has rightly observed that various chances were given to the defendant to adduce evidence and that he had not shown any reason as to why the witnesses were not kept present and, therefore, rightly rejected the said application. From the conduct of the applicant-defendant, it can be seen that the defendant wanted to prolong the proceeding. In any case, no averment finds place in the written statement in support of which the defendant wanted to examine the aforesaid two witnesses. I, therefore, do not find any substance in the contention of the learned counsel for the applicant that by rejection of the aforesaid application, the applicant-defendant was denied an opportunity of proving his case.
18. The last question is as to whether in the absence of Fatema, the married daughter of deceased original plaintiff, the suit was maintainable or not. It is not disputed that the plaintiff Mazhar Ali expired during the pendency of the proceedings before the learned trial Court. Not only this, but after his death, the defendant also amended the written statement on 30th April, 1996 so as to incorporate the plea of fresh lease. It is, thus, clear that if the applicant-defendant was serious about the objection regarding the maintainability of the suit on account of non-joinder of Fatema, the married daughter of the deceased plaintiff, he could have very well raised the objection in his amended written statement thereby giving an opportunity to the plaintiff to meet the case. The Apex Court in the case of Shri Ram Pasricha v. Jagannath and Ors. has observed thus ;
"Therefore, the plea of the defendant cannot be accepted. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth, at the earliest opportunity. It was not done. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to "throw out the suit on account of non-pleading of other co-owners as such. There has been clear acknowledgment and admission of the defendants and concurrent findings of the courts that the plaintiff is their landlord."
It is, thus, clear that Apex Court in the aforesaid case has held that the plea regarding non-joinder of a co-owner ought to be raised for what it is worth, at the earliest opportunity. The Apex Court has further held that the suit cannot also be thrown out on the ground of non-pleading of the other co-owners. The Apex Court, in unequivocal term, has held that the suit was maintainable at the instance of some of the co-owners. Similar view has been taken by the learned single Judge of this Court in the case of Rahimtulla Abdul Rahiman Nakib (cited supra) Insofar as the reliance placed by the learned counsel for the applicant on the judgment of the Full Bench of Gujarat High Court in the case of Nanalal Gidharlal (cited supra), is concerned the said view will have to be held to be no longer good law in view of the judgment of the Apex Court in the case of Shri Ram Pasricha (cited supra) Insofar as the reliance placed by the learned counsel for the applicant on the case of Niranjan Dass (cited supra), is concerned, the said judgment has considered the definition of "specified landlord" under the H. P. Urban Rent Control Act, 1987. In my view, the said judgment which interprets the scope of the definition of the term "specified landlord" under the said enactment, would not be applicable to the facts of the present case. I am of the view that the present case would be governed by the law laid down by the Apex Court in the case of Shri Ram Pasricha (cited supra). As already discussed herein above, it has been found that though the defendant had an ample opportunity to raise the claim of non-joinder, he has not raised the said claim in the written statement. The Apex Court has further clearly held that in a suit for eviction between the landlord and tenant, since the question of title of the leased property is irrelevant, it is inconceivable to throw out the suit on account of non-impleading the other co-owners. In view of the law as settled by the Apex Court, I find that the suit was tenable without Fatema being brought on record. The contention raised by the applicant-defendant on this court also, therefore, must fail.
19. With respect to the contention raised by the learned counsel for the applicant regarding mesne profit, it can be seen from the judgment passed by the learned trial Court which has been upheld by the appellate Court that the learned trial Court has only directed an enquiry into the mesne profit in accordance with the provisions contained in Rule 12 of the Order XX of the Code of Civil Procedure. No fault can be found with the said direction. However, it is made clear that the amount paid by the applicant in pursuance to the orders passed by this Court on 3-9-1997 will be adjusted in the final order of mesne profit that would be passed upon enquiry into the mesne profit.
20. In the result, the revision fails and is dismissed with no order as to costs.
Later on :
After lunch recess, Miss J. J. Kataria, the learned counsel for the applicant appears and requests for stay to the impugned order for a period of 15 days.

In view of the view taken by me, I am not inclined to grant the said prayer. The prayer is rejected.
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