Sunday, 6 November 2016

Whether decree for eviction against tenant will be binding on sub tenant?

 Once it is found that the landlady could support the
decree even on a singular ground of eviction and there being no
legal requirement of issuing a demand notice to such sub­tenant
who had no protection under Section 25 of the said Act, then the
decree passed against the tenant under Section 15(2) of the said
Act would bind such sub­tenant. The status of the sub tenant was
that he was claiming his right to occupy the premises through the
tenant and if the tenant was liable to be evicted, such sub­tenant
having no statutory protection would also be liable to be evicted
on the basis of said decree.  Thus, the decree for eviction that has
been passed against  the  tenant  on  the  ground  that  he  was in
arrears of rent would be binding on the sub­tenant who was not
deemed to be a tenant under Section 25 of the said Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.6936 OF 2015
Shri  Sagar   Bhagwat, 
                                                       
                                      ­V
Smt.   Kiran   Wife   of   Ishkumar
Leekha,  
CORAM: A.S. CHANDURKAR, J.
DATED: 28­-07-­2016.
Citation: 2016(6) MHLJ368


1. Rule.   Heard finally with the consent of the learned
Counsel for the parties.
2. This   writ   petition   filed   under   Article   227   of   the
Constitution of India takes exception to the decree for eviction
passed   by   the   trial   Court   which   has   been   maintained   by   the
appellate Court. The respondent no.1 is the owner of a shop in
which the respondent no.2 – defendant no.1 and the petitioner
no.1 – defendant no.2 were the tenants. The rent agreed to be paid
was   Rs.2500/­   per   month.   For   the   sake   of   convenience,   the
respondent   no.1   would   be   referred   to   as   the   landlady,   the
petitioner   no.1   would   be   referred   to   as   the   tenant   and   the
petitioner no.2 would be referred to as the sub­tenant. 
3. According to the landlady, the tenants were in arrears
of rent since August 2006. As these arrears of rent were not paid
despite demand being made, on 21­11­2009 the landlady issued a
notice under provisions of Section 15(2) of the Maharashtra Rent
Control Act, 1999 (for short, the said Act) to the tenants as well as

the sub­tenant. It is also the case of the landlady that she was in
bonafide need of the suit block. Further, the tenants had sublet the
premises to the sub­tenant without consent of the landlady.   On
these counts the landlady filed suit for eviction against the tenants
and the sub­tenant.
4. Before   the   trial   Court   the   respondent   no.2   did   not
appear and hence, the suit proceeded exparte against him. The
tenant   and   the   sub­tenant   filed   their   written   statement   below
Exhibit­16 and opposed the prayers made in the plaint. It was
denied that they were in arrears of rent and were, therefore, liable
to be evicted. The landlady examined her power of attorney holder
but the said witness was not cross­examined. On the basis of the
evidence on record, the trial court held that the tenants were in
arrears of rent, the landlady had established her bonafide need
and that the greater hardship would be caused to her if the decree
was not passed. It was further held that the tenants had sublet the
premises to the sub­tenant. By judgment dated 11­4­2011, the trial
Court decreed the suit. 
5. The   tenant   and   the   sub­tenant   challenged   the
aforesaid decree by filing an appeal under Section 34 of the said
Act.   This  decree  was  not  challenged  by the  respondent  no.2.
During pendency of the appeal, the landlady gave up the claim of
eviction based on the ground of bonafide need and subletting. The
decree was sought to be supported only on the ground of the
tenants being in arrears of rent. The appellate Court by judgment
dated 13­10­2015 held that the tenants were in arrears of rent and
hence were liable to be evicted.  On that ground, the appeal came
to be dismissed. 
6. Shri A. Shelat, the learned Counsel for the petitioners
made the following submissions:
(a) The notice under Section 15(2) of the said Act not
having   been   duly   served   on   the   sub­tenant   and   the   landlady
having given up the grounds of eviction based on bonafide need of
the suit premises and subletting, she cannot succeed in seeking
eviction of the sub­tenant on the ground of arrears of rent.   In
absence of service of the demand notice on the sub­tenant, no
decree could have been passed against the sub­ tenant.   In that
regard, the learned Counsel placed reliance upon the judgment of
learned Single Judge in Natwarlal Gokuldas Shah through Lrs. Vs.
Khanderao Balwant Lokhande and others 2003(5) Mh. L.J. 184. 
(b) The landlady having not examined herself had merely
led   evidence   of   her   power   of   attorney   holder.     The   power   of
attorney holder was not a competent witness to depose about the
issuance of the demand notice under Section 15(2) of the said Act.
Both the Courts were not justified in considering the evidence of
the power of attorney holder while passing the decree for eviction.
In   this   regard,   he   placed   reliance   upon   the   judgment   of   the
Hon’ble Supreme Court in  Man Kaur (Dead) by Lrs. Vs. Hartar
Singh Sangha (2010)10 SCC 512.
(c) Before the appellate Court, the tenants and sub­ tenant
had moved an application for recalling the landlady’s witness by
setting aside the order of “no cross­examination” vide Exhibit­16.
Similarly, an application below Exhibit­46 was also moved for deexhibiting
the agreement of leave and license (Exhibit­22). Both
these applications were rejected by the appellate Court without
any legal basis.  The same resulted in grave prejudice to the legal
rights of the tenants and sub­tenant.
7. Shri   D.   N.   Dani,   the   learned   Counsel   for   the
respondent no.1 – landlady supported the decree for eviction and
countered the submissions made on behalf of the petitioners as
under:­
(a) The tenancy in respect of the tenants and sub­ tenant
being joint and indivisible, the notice served on the tenant was
sufficient   notice   to   the   sub­tenant.   According   to   the   learned
Counsel, the occupation of the tenants and sub­tenant was in the
capacity as joint tenants. As the demand notice had been served on
the tenants, non­service of the said demand notice on the subtenant
was not fatal.  It was also submitted that sending of notice
under   Section   106   of   the   Transfer   of   Property   Act,   1882   was
sufficient   and   service   of   the   same   was   not   very   relevant.   The
learned   Counsel     sought   to   draw   support   for   the   aforesaid
submissions by placing reliance upon the judgment of the Supreme
Court in  Kanji Manji Vs. The Trustees of the Port of Bombay AIR
1963 SC 468 as well as judgment of learned Single Judge in Mst.
Ramubai Vs. Jiyaram Sharma AIR 1964 Bom 96  and  Tirathdas
Pokhardas   Kalda   Vs.   Suribai   Assumal   Moolchandani   and   others
2007(2) Mh.L.J. 309.   
(b) The decree for eviction on the ground of arrears of
rent had been rightly passed as the tenants and the sub­tenant had
not complied with the provisions of Section 15(2) and Section
15(3) of the said Act. The arrears of rent not having been cleared,
the   decree   for   eviction   had   been   rightly   passed   by  the   Courts
below. In that regard the learned Counsel placed reliance upon the
judgment of the Division Bench in Chandiram Dariyanumal Ahuja
Vs. Akola Zilla Shram Wahtuk Sahakari Sanstha, Akola 2013 (1)
Mh.L.J. 28. 
(c) The applications moved by the tenants and the subtenant
 before  the  appellate  Court  had been rightly rejected. A
party could not be permitted to fill up the lacunae in such manner.
The   learned  Counsel  relied   upon  the  judgment   of  the  Hon’ble
Supreme Court in Vadiraj Naggappa Vernekar (Dead) through Lrs.
Vs. Sharadchandra Prabhakar Gogate (2009) 4 SCC 410  in that
regard.
8. I have heard the respective Counsel for the parties at
length   and   I   have   given   due   consideration   to   their   respective
submissions.   The   questions   that   arise   for   consideration   are   as
under:
(i) In a suit for eviction based on the grounds of arrears of
rent, bonafide need and subletting if the landlady gives up the
ground   of   subletting   and   if   the   demand   notice   issued   under
Section 15(2) of the said Act is not served upon the sub­tenant,
can the sub­tenant still be evicted?
(ii) Whether the power of attorney holder of the landlady
was competent to depose on her behalf in support of the case for
eviction?
9. Before considering the aforesaid questions, it would be
first necessary to note the relevant facts that have come on record.
The landlady had filed suit for eviction against her two tenants and
sub­tenant on the grounds of arrears of rent, bonafide need and
subletting. The notice of demand issued under Section 15(2) of the
said Act has been served only upon the tenants who had failed to
comply   with   the   statutory   requirements   thereof.   This   notice,
however, was not duly served on the sub­tenant.   Further, the
decree for eviction passed by the trial Court has been challenged
only by one tenant and the sub­tenant. The grounds based on
bonafide need of the landlady and subletting by the tenants have
been given up in appeal.
10. As to question (i) :­ The   landlady   while   seeking
eviction of the tenants and the sub­tenant issued a demand notice
on 21­11­2009 (Exhibit­30) to the tenants as well as the subtenant.
 The postal receipts were at Exhibits 31 to 33.  Both the
tenants were duly served with these notices below Exhibits 34 and
35.   However, the notice issued to the sub­ tenant was returned
back to the sender (Exhibit­36). This finding recorded by the trial
Court has been affirmed by the appellate Court. The endorsement
on the said envelope was “address not found”. It is, therefore, a
finding of fact recorded that the demand notice under Section
15(2) of the said Act has not been served upon the sub­tenant. 
11. It is well settled that even if eviction of a tenant is
sought on various grounds under provisions of Section 15(2) and
Section 16(1) of the said Act and a decree is passed on some of the
grounds in favour of the landlord, such decree for eviction can be
supported even on a singular ground of eviction.  In the present
case, the eviction of the tenants was sought on the ground that
they were in arrears of rent, the act of subletting the premises and
bonafide need of the landlady.  Though the trial Court decreed the
suit on all the three grounds, the landlady in the appeal preferred
by one of the tenants and the sub­tenant chose to support the
decree for eviction only on the ground of arrears of rent.   Such
course was always permissible for the landlady. Merely because
the grounds of bonafide need and subletting were not pressed by
the landlady before the appellate Court, the same by itself cannot
be fatal to the case of the landlady. It was open for her to seek
eviction of the tenant on the ground of arrears of rent. Hence,
much capital cannot be made by the tenant of the act of the
landlady of giving up the prayer for eviction on the ground of
bonafide need and subletting.
12. The     question   to   be   considered   is   whether   the
notice under Section 15(2) of the said Act was required to be  duly
served upon the sub­tenant.  The provisions of Section 15(2) of the
said Act contemplate service of such demand notice only upon the
tenant.   The landlady had not recognized the sub­tenant as her
tenant and had in fact sought eviction of the tenant on the ground
of illegal subletting.  The expression “tenant” as defined by Section
7(15)   of   the   said   Act   does   not   include   sub­tenant.     The   said
expression includes a person who is deemed to be a tenant under
Section 25 of the said Act. For the purposes of becoming a person
deemed to  be a  tenant  under  Section  25  of  the  said  Act, the
subletting should have been lawful and subsisting on the date of
commencement of the Act. In the present case, these requirements
are not met as the subletting was not lawful, but was objected to
by the landlady. Thus, when the sub­tenant did not answer the
definition of the expression “tenant” under Section 7 (15) of the
said   Act   nor   was   he   in   a   position   to   take   advantage   of   the
provisions of Section 25 of the said Act there was no requirement
whatsoever   for   the   landlady   to   issue   a   demand   notice   under
provisions of Section 15(2) of the said Act to him.  Merely because
the landlady chose to issue such notice to the sub­tenant and the
same   could   not   be   duly   served,   the   same   would   not   militate
against   the   case   of   the  landlady  while   seeking  eviction   of  the
tenant.   There being no requirement in law to issue a separate
demand   notice   to   the   sub­tenant   who   did   not   answer   the
requirements of Section 25 of the said Act, its non­service on the
sub­tenant would not prejudice the case of the landlady especially
when the demand notice was duly served on the tenant.
13. Once it is found that the landlady could support the
decree even on a singular ground of eviction and there being no
legal requirement of issuing a demand notice to such sub­tenant
who had no protection under Section 25 of the said Act, then the
decree passed against the tenant under Section 15(2) of the said
Act would bind such sub­tenant. The status of the sub tenant was
that he was claiming his right to occupy the premises through the
tenant and if the tenant was liable to be evicted, such sub­tenant
having no statutory protection would also be liable to be evicted
on the basis of said decree.  Thus, the decree for eviction that has
been passed against  the  tenant  on  the  ground  that  he  was in
arrears of rent would be binding on the sub­tenant who was not
deemed to be a tenant under Section 25 of the said Act.
14. As to Question No.(ii) :  The landlady had examined
her power of attorney holder in support of her prayer for eviction.
The said power of attorney holder was her brother­in­law.  In his
affidavit, he had specifically stated that he had been collecting the
rent from the tenants and managing the affairs of the landlady.
He was aware of all the facts of the case. He further stated that on
4­7­2009, he had issued a letter to the defendant nos.1 and 2
demanding arrears of rent. This letter was not replied.   He has
then stated that the landlady through her Counsel had issued a
registered notice dated 21­11­2009.  He identified the signature of
the said Counsel and stated that the contents of the notice were
true.  The submission made on behalf of the petitioners that the
power of attorney holder was not competent to depose on behalf
of the landlady cannot be accepted.  As noted above, the power of
attorney holder was the brother­in­law of the landlady.   He had
been collecting rent from the tenants and had also issued a letter
on her behalf demanding arrears of rent.  He was aware about the
legal notice issued demanding arrears of rent. In Man Kaur (supra)
which decision was relied upon by the learned Counsel for the
petitioners the position as to who could give evidence on behalf of
another person  in matters involving personal knowledge has been
summarized.  In the present case, it cannot be said that the power
of   attorney   holder   had   deposed   about   the   acts   done   by   the
principal – landlady. In fact, various steps were taken by the power
of   attorney   holder   himself   and   therefore,   he   was   very   much
competent to depose as her power of attorney holder.  Thus, in the
facts of the present case and considering the relationship between
the power of attorney holder and the landlady, it is held that the
power of attorney holder was competent to depose on behalf of
the landlady.
15. In so far as the order passed by the appellate Court on
the application seeking permission to recall the witness examined
by the plaintiff is concerned, the appellate Court has found that
during   the   trial   sufficient   opportunity   was   granted   to   the
defendants, but they did not prosecute the proceedings sincerely.
The observations in para 4 of the said order indicating various
adjournments granted speak for themselves and rejection of the
said application cannot be faulted.  Similarly, the order passed on
the application for de­exhibiting the document at Exhibit­22 is just
and   proper   in   view   of   the   fact   that   the   petitioners   had   not
challenged the lease agreement in the written statement.  Hence,
no fault can be found to the orders passed below Exhibits  16
and 22.
16. The finding that the tenant was in arrears of rent is a
finding based on the material on record. Even otherwise the tenant
is in arrears of occupation charges since October, 2014 and hence,
the decree for eviction based on said ground does not deserve to
be interfered with.
17. In   the   light   of   aforesaid   discussion,   the   decree   for
eviction does not call for any interference.   The writ petition is
dismissed. Rule stands discharged with no order as to costs.
                  
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