Sunday, 11 February 2018

Whether grounds of ejectment in eviction of tenant suit are part of cause of action?

In Gajanan Dattatraya v. Sherbhanu Hosang Patel wherein one of the grounds of eviction was under section 13(1)(e) of the Rent Act of unlawful sub-letting, it was indicated that the tenant's liability to eviction arises once the fact of unlawful sub-letting is proved at the date of the notice.
101. In Sardar Balbir Singh v. Atma Ram Srivastava , the Full Bench of the Allahabad High Court considered the concept of cause of action. It was sought to be distinguished from the right of action as also from the remedy. It was observed that right of action is a right to presently enforce the cause of action and it does not arise until the performance of all the conditions precedent to the action. A remedy has been indicated as the means or method whereby the cause of action or corresponding obligation is effectuated and by which wrong is redressed and relief obtained. The concept of cause of action has been high-lighted under the observations as :----
"The term" cause of action" means cause of action which gives action for and forms the foundations of the suit.....cause of action is the obligation from which springs the "action" defined as the right to enforce an obligation. A cause of action arises when that which ought to have been done is not done or that which ought not to have been done is done. The essential elements of a cause of action are thus the existence of a legal right in the plaintiff with a corresponding legal duty in the defendant, and a violation or breach of that "right or duty" with consequential injury or damage to the plaintiff for which he may maintain an action for appropriate relief or reliefs. The right to maintain an action depends upon the existence of a cause of action, which involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant....A cause of action arises from the invasion of the plaintiff's right by violation of some duty imposed upon the defendant in favour of the plaintiff either by voluntary contract or by positive law......On determination of lease, the law invests the lessor with a right to have vacant possession of the premises and imposes a duty in lessee to deliver vacant possession....breach of tenant's duty and violation of the landlord's right gives right to cause of action resulting in two reliefs, one for eviction and the other for mesne profit and damages....."
In Gajanan Dattatraya's case cited (supra) the provisions of unlawful sub-letting within the meaning ofsection 13(1)(e) of the Rent Act came under discussion and it was held that the provisions of the Rent Act indicates that tenant is disentitled to any protection under that if he is within the mischief of provisions of section 13(1)(e) of the Act viz., that he has sublet. But the language is that if the tenant has sublet the protection ceases and, therefore, it was observed that it cannot be contended that subletting must continue at the date of the suit for passing a decree for eviction and the tenant's liability to eviction arises once the fact of unlawful sub-letting is proved at the date of the notice and in that context it was further observed that to acced to the contention of the tenant could mean that he would not be within the mischief of sub-letting if after the landlord gives a notice of termination on the ground of unlawful sub-letting the sub-tenant vacates in which case the landlord will not be able to get relief against the tenant inspite of unlawful sub-letting and thereby the tenant can foil attempt of landlord to obtain possession every time by getting the sub-tenant vacated. It was ultimately held that the tenants liability to eviction arises once the fact of unlawful sub-letting is proved.
102. In Dhanpal Chettiar's case (supra) there is a pointer that items mentioned in section 13(1) of the Rent Act are the grounds but cannot be the cause of action and the grounds which stipulate happening of such events which are to be so established to the satisfaction of the Court, when it is observed as :---
"......the landlord will be well advised by way of abundant caution and in order to lend additional support to case to give notice to his tenant intimating that he intended to file a suit against him for his eviction on the grounds mentioned in the notice.... The action of the landlord instituting suit for eviction on the grounds mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee.....Section 13 provides that the landlord may recover possession on certain grounds. It is not plain then that on the happening of the events or on the fulfilment of the conditions mentioned in sections 12 and 13 etc. the landlord becomes entitled to recover possession from the tenant otherwise not.....a tenant forfeits his right to continue in occupation of the property and makes himself liable to be evicted on fulfilment of these conditions .......Section 11 gives protection against the eviction providing further that he shall not be liable to eviction except in execution of a decree passed by the Court for one or more grounds mentioned insection 11. Does it stand to reason to say that a decree can be passed if one or more of the grounds exist and such a decree can be passed against the existing tenant within the meaning of State Rent Act....."
103. The ratio and eloquent observations in Hussainbhai Embrahim Bohri v. The Navyug Chitrapat Co., 70 Bom.L.R. 390, very much remains intact. The proceedings related to the petitioners application for amendment to the plaint which was rejected by the trial Court. The suit was initially filed for non-payment of rent and thus non-compliance with notice under section 12(2) of the Rent Act. Through the amendment two grounds for ejectment were sought to be added. The first being that the respondent had not been using the suit premises for a period exceeding six months for the purpose for which it was let out and inclusion of permitted increases in the money claim was also brought for. One of the contentions raised by the respondent-tenant was that a ground stated in the claim for eviction of tenant is a part of cause of action and to add to the ground for eviction is adding another cause of action which would change the nature of the suit and would required fresh leave of winding up Court and therefore, the jurisdiction was challenged. The learned Single Judge in that behalf made the following apt observations as :----
"It is true that 'cause of action' means every material fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment.....Section 12 of the Rent Act provides a protection for tenant after determination of tenancy. It creates an impediment in the way of the landlord recovering possession. Section 13 of the Act provides certain conditions under which protection of the tenant is taken away and impediment in the way of the landlord recovering possession is removed. These conditions are termed as 'grounds of ejectment'. It is not necessary for the landlord to set out these grounds in notice to quit as they are not part of the cause of action for the landlord. The landlord sets out these grounds in the plaint not because they constitute his cause of action but in anticipation of the tenant claiming protection provided in section 12 to show that conditions have arisen which have taken away the protection of tenant and removed the impediment in the way of the landlord recovering possession. In my opinion, grounds of ejectment are not a part of cause of action...."
The learned Single Judge then relied on unreported decision by another Single Judge in Vaishnoo Ditti v. Avtar Singh, in Special Civil Application No. 112 of 1967 decided on June 28/29, 1967 wherein it is observed as :---
".....It will thus be seen that section 12(1) of the Rent Act creates an obstacle in the way of the landlord in obtaining possession but the obstacle becomes ineffective if the requirement of one of the clauses ofsection 13(1) are fulfilled. The fulfilment of requirement of any of these clauses does not create a new cause of action'. The cause of action is already there. The effect of the fulfilment of the requirements of one or more of the causes is to remove the obstacle and make it possible for the landlord to recover possession".
104. With respect, I am in full agreement with the observations and the ratio when it has been firmly laid down that the grounds of ejectment as provided for under section 13(1) of the Rent Act are not a part of cause of action in a suit for possession. They have independent entity as also identity and have entirely different field of operation furnishing certain grounds on which eviction can be sought which grounds however, are to be established to the satisfaction of the Court. It cannot be confused as being cause of action. In other words the cause of action is not the ground but it is the forfeiture of protection of the Rent Act for the tenant for being continued to be a tenant in the premises. The grounds undersection 13(1) are the means to prove the forfeiture and significantly forfeiture of tenants right to continue in the premises is forfeiture contemplated by Article 66 which in some cases may be statutory forfeiture. The learned Single Judge in Kamruddin Masjit Trust v. Abdul Rahiman Fakiruddin, 1985(2) Bom.C.R. 121 observed as:---
"Sections 12 and 13 of the Rent Act places certain restrictions in the matter of recovery of possession even though right to possession has already accrued and makes such recovery of possession subject to certain conditions. However, once the restrictions are removed and the conditions fulfilled, the lesser can proceed to recover possession. Sections 12 and 13 do not extinguish a cause of action nor do these provisions create any new cause of action. These sections only regulate and control the right to recover possession already otherwise existing in the lessor under the general law".
As already discussed there is an inbuilt pointer in section 13(1) of the Rent Act itself when it is prescribed that the landlord may set one or other grounds as mentioned therein so as to make him entitled to possession, but that by itself is not enough since it is the satisfaction of the Court about the existence of these grounds which would govern the fate of that proceedings in favour of the landlord. This would certainly high-light the proposition that these are really the grounds and could not be the cause of action. Shri Tunara's contention in that behalf will have to be upheld.

Bombay High Court
Hemchand M. Singhania vs Shakuntala S. Tiwari (Smt.) on 28 November, 1986
Equivalent citations: 1987 (2) BomCR 428

Bench: V Kotwal
Read full judgment here: Click here

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