Sunday, 8 July 2018

Whether replacement of door in tenanted premises amounts to material alteration entitling landlord to get eviction decree?

The second item of construction i.e. removal of wooden doors and replacement thereof by plywood doors; even if considered separately, the result cannot be different. Once the door is fitted to the permanent structure, it becomes part of the Immovable property, viz. building. It does not remain a movable item or a distinct item of furniture. Therefore, removal of door or replacement thereof is nothing but a change in the permanent structure. The judicial note can always be taken of the fact that durability of wooden doors is much more than that of the plywood doors. Life of the plywood doors cannot match with that of wooden doors. Thus, this act of tenant has also been prejudicial to the interest of the landlord and has diminished the value and life of the doors and consequently of the suit premises. As such, the act of replacement of the wooden doors with that of plywood doors that too without written permission of the landlord has rightly been treated as an act in violation of Section 13(1)(b) of the Act by both the Courts below.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3020 of 2000

Decided On: 09.06.2001

C.C. Yi Vs. Janakidevi Anantlal Gupta and Ors.

Hon'ble Judges/Coram:
V.C. Daga, J.

Citation: 2001(3) ALLMR 324



Rule returnable forthwith.

Respondents waives services, By consent of parties heard finally.

1. This petition is directed against the judgment and decree dated 29.4.2000 delivered in Appeal No. 42 of 1998 by the Fifth Additional District Judge, Thane, whereby the judgment and decree for possession passed in Regular Civil Suit No. 638 of 1994 with order passed in Miscellaneous Civil Application No. 63 of 1995, dated 12th January 1998 by the Civil Judge. Junior Division, Bhiwandi, was confirmed.

FACTS IN BRIEF

Facts in narrow compass are as under :-

2. The petitioner is a Dentist by profession. He is a monthly tenant occupying premises consisting of four rooms located on the first floor of the Municipal House No. 240, situated at Kap Kaneri, Bhiwandi. The respondents are the owners and landlords of the suit premises, which were let out to the petitioner under lease agreement dated 31st October, 1961.

3. The respondents herein instituted Regular Civil Suit No. 638 of 1994 against the petitioner (tenant) claiming to be entitled to recover possession of the suit premises on the various grounds, inter alia contending that the petitioner - tenant has (i) without the landlord's written consent erected therein permanent structure; (ii) unlawfully given on licence part of his interest therein (iii) the suit premises were needed reasonably and bona fide by the plaintiffs for their own occupation; and (iv) the defendant has acquired suitable alternate accommodation for his residence. Thus various sub-clauses of section 13(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("Act" for short) were invoked by the plaintiffs against the petitioner/defendant (tenant) to evict him from the suit premises.

4. On being summoned the defendant/petitioner (tenant) appeared. He filed his detailed written statement. He denied all the allegations made against him in the plaint. The issues, based on rival pleadings, were framed. The parties to the suit were put to trial. They were permitted to lead documentary as well as oral evidence. The Civil Judge, Junior Division, Bhiwandi, heard both the parties and after appreciating the evidence, held that the plaintiffs had proved their case on all counts referred to hereinabove except on the ground that the premises were needed for bona fide occupation of the plaintiffs. The Trial Court thus directed eviction of the defendant/tenant and passed decree for possession of the suit premises.

5. Aggrieved and dissatisfied by the aforesaid judgment and decree, the petitioner defendant invoked the appellate jurisdiction of the Lower Appellate Court. He preferred Regular Civil Appeal No. 42 of 1998. The said appeal was heard by the learned Vth Additional District Judge, Thane, who after hearing the parties to the appeal, was not only pleased to confirm the said judgment and decree of the Trial Court but was further pleased to hold that the plaintiffs had also proved their reasonable and bona fide need for the suit premises. In the result the appeal filed by the petitioner/tenant was dismissed. The decree of the Trial Court was confirmed.

6. The aforesaid Judgment and decree is subject matter of challenge in the present petition filed under. Article 226 of the Constitution of India.

GROUNDS OF ATTACK

7. The following grounds were pressed into service by the defendant-petitioner to attack the impugned judgment and decree for possession. They are summarised as under :-

(a) That the Courts below committed serious error of law by proceeding on assumption that alleged alterations/constructions set out in the plaint amounted to carrying out construction of permanent nature in breach of Section 13(1)(b) of the Act.

(b) That the Courts below were wrong in holding that the premises were unlawfully sublet warranting eviction of the petitioner (tenant) under section 13(1)(e) of the Act.

(c) That the Lower Appellate Court has committed an error In holding that the plaintiffs-landlords were in need of the premises reasonably and bona fide for their own occupation warranting eviction of the petitioner-tenant from the suit premises under section 13(1)(g) of the Act.

(d) That the Courts below could not have held that the suit premises were let out for composite purposes i.e. for residence and also for running dispensary, especially, when the case of the plaintiffs in the plaint was that the premises were let out only for the purposes of running dispensary.

(e) That the Courts below have committed serious error in holding that the petitioner-ten ant has acquired suitable alternate accommodation and that Section 13(1) of the Act was applicable to the suit premises that too erroneously relying upon the judgment delivered in the case of Madhukar Vishnu Sathe v. Vithoba Ramji Thorat, which was expressly overruled by the Division Bench in the case of Bhavarlal v. L. D. Public Trust,.

That the orders passed by both the Courts below suffered from an error apparent on the face of record and findings recorded therein being perverse, cannot stand to the scrutiny of law.

The petitioner relied upon number of cases in support of his submissions. The law laid down in those cases is not in dispute. But each case has to be decided on its own merits taking in account the facts and circumstances brought on record.

THE ARGUMENTS

8. At the out set while elaborating the above grounds of attack, the petitioner has denied to have carried out the alleged constructions in the suit premises. He contended that the same were carried out, some where in the year 1975-76 by one Mr. Mataprasad, who was acting as the authorised representative of the plaintiffs/landlords at the relevant time. Alternatively, it was contended that the finding of the Courts below that the defendant has without landlord's consent, given in writing, erected on the premises permanent structures is absolutely wrong and is contrary to the weight of the material available on record. In order to substantiate his submissions, he took me through the entire evidence led by the parties. He urged that the nature of construction such as fitting of tiles on the inner walls of the rooms, fitting of Air Conditioner in a window and replacement of window pans can hardly be said to be the construction of permanent nature. It was, further, contended that the erection of loft, replacement of two flap wooden doors with that of plywood doors could not be said to be the construction of permanent nature. At any rate, the said work was done or carried out for beneficial enjoyment of the suit premises, as such there was no breach of Section 13(1)(b) of the Act.

9. The learned Counsel for the petitioner further contended that no decree could have been passed on the ground of creation of alleged unlawful subtenancy, especially, when there were no specific pleadings in that behalf. He severely criticized the quality of the plaint pleadings in this behalf. He further went on to submit that the plaintiffs even did not name the person in whose favour the alleged sub-tenancy or the licence was created. He further pointed out that it was neither pleaded in the plaint nor proved that the petitioner has parted with the exclusive possession of the suit premises or any portion thereof in favour of alleged sub tenant or tenants, in his submission no decree could have been passed on this count. He further contended that both the Courts below totally ignored the evidence of the petitioner, which was clearly indicative of the fact that two specialists in the discipline of Dentistry were visiting the dispensary of the petitioner, only for the purposes of providing consultation to the patients of the petitioner. As such, the suit seeking to make out ground of sub-letting was not maintainable for want of cause of action that too without impleading the alleged sub tenants as parties to the suit.

10. The learned Counsel for the petitioner further urged that both the Courts below failed to appreciate and consider the proper scope of Section 13(1)(g) while considering the reasonable and bona fide requirement of the plaintiffs in relation to the suit premises and have erroneously taken into consideration certain facts which were not at all necessary for deciding the said issue. He thus urged that the findings recorded by the Court below in this behalf were contrary to the provisions of the Act, as such, the same are liable to be set aside. Finally, it was urged that the Lower Appellate Court ought not to have disturbed the well considered findings recorded by the Trial Court, while rejecting the case of the landlords-plaintiffs, under section 13(1)(g) of the Act.

11. The learned Counsel for the petitioner further contended that it was a specific case made out in the plaint by the plaintiffs that the premises were let out only for the purposes of running dispensary. In the wake of this clear cut case pleaded by the plaintiffs, it was not open for the Courts below to make out altogether a new and different case, which was never contemplated by the plaintiffs. It was thus contended that the provision of Section 13(1)(1) of the Act was not at all applicable to the commercial premises. It was thus wrongly held by both the Courts below that the petitioner/tenant had acquired alternate suitable premises warranting his eviction from the suit premises under clause 13(1)(1) of the Act. He submitted the findings in this behalf were based on overruled Judgment hence the same needs to be set aside.

12. Finally, it was urged by the learned counsel for the petitioner that the findings recorded by the Courts below on all grounds were beyond the scope of the Act, as such they are liable to be set aside and decree for eviction be reversed.

THE REPLY

13. Per contra, the learned Counsel appealing for the respondents-plaintiffs (landlords) contended that this Court not being a Court of Appeal is not expected to reappreciate evidence and reach to an independent conclusion other than the conclusions reached by both the Courts below, unless the findings, so recorded, are found to be perverse and unsustainable in law. Considering material available on record. In other words, he contended that this Court should not in the guise of exercise writ jurisdiction under Article 226 of the Constitution of India, convert itself into a Court of Appeal; when the Legislature has not conferred a right of appeal and made the subordinate Court final on facts. In his submission, the findings of fact recorded by the subordinate Court or Tribunal should be respected and should not be disturbed unless they are found to be perverse. He further submitted that each and every finding recorded by the Lower Appellate Court can be supported by evidence placed on record and the same are reasonable and possible. As such in his submission, no interference, with the findings of fact recorded in the impugned judgments, is called for.

14. The learned Counsel for respondents also took me through the evidence and other material available on record and tried to support each and every finding recorded by the Courts below in support of judgment and decree for possession and tried to rely upon some of the judgments of this Court and also that of the Apex Court to bolster up his submissions. In substance, he prayed for dismissal of the petition with costs.

THE ISSUE

15. On the basis of foregoing pleadings, rival submissions and analysis of the statutory provisions of the Bombay Rent Act in the light of the facts and circumstances of the case, the only issue which needs consideration is : whether the Courts below were justified in decreeing the suit for possession against the petitioner/defend ant (tenant) on the facts of the present case.

CONSIDERATION & FINDINGS

16. Let me turn to the rival contentions, and the findings recorded by both the Courts below in the light of available material on record, to find out the legality and validity of each ground of eviction pressed in service against the petitioner-tenant. However, before embarking upon legality of the findings, it would be necessary to take into account the importance of pleadings in case of civil suits of instant nature.

The Three Judge Bench of the Apex Court had an occasion to consider this aspect of the matter in detail, in the case of J. K. Iron and Steel Co. Ltd., Kanpur V. The Iron and Steel Mazdoor Union, Kanpur,' wherein it was observed as under:-

"Very broadly, it follows the pattern of the Civil Courts. Once the reference Is made by Government, the Tribunal has to take the pleadings of the parties in writ-ting and to draw up issues. Then it takes evidence, hears argument's and finally, pronounces its "judgment" "in open Court". It is evident from this that though these Tribunals are not bound by all the technicalities of Civil Courts, they must nevertheless follow the same general pattern.

Now the only point of requiring pleadings and issues to ascertain the real disputes between the parties, to narrow the area of conflict and to see where the two sides differ. It is not open to the Tribunals to fly off at a tangent and disregarding the pleadings, to have reach any conclusions that they think are Just and proper."

The another three Judge Bench of the Apex Court in the case of Shan/car v. Britannia Biscuit Co., had an occasion to say as under :-

"If there is no pleading raising a contention there is no question of substantiating such a non-existing contention by evidence. It is well settled that allegation which is not pleaded, even if there is evidence in support of it, cannot be examined because the other side has no notice of it and if entertained it would tantamount to granting an unfair advantage to the first mentioned party. We are not unmindful of the fact that pleadings before such bodies have not to be read strictly, but it is equally true that the pleadings must be such as to give the case it is called upon to meet...."

"The rule of fair play demand that where a party seeks to establish a contention, which if proved would be sufficient to deny relief to the opposite side, such a contention has to be specifically pleaded and then proved. But if there is no pleading there is no question of proving something which is not pleaded. This is very elementary."

The various grounds sought to be pressed in service in this petition need to be examined in the light of the aforesaid law laid down by the Apex Court in the matter of J. K. Iron Steel Co. Ltd. and Britannia Biscuit Co. (cited supra).

17. The first ground of eviction pressed In service relates to erection of permanent structure, without there being any prior written consent of the plaintiffs-landlords, as required under Section 13(1)(b) of the Act- The said section provides that notwithstanding anything contained in the Act the landlord shall be entitled to recover possession of any premises, if the Court is satisfied that the tenant has, without the written consent of the landlord, erected on the premises any permanent structure. In the light of this provision, if one turns to the pleadings incorporated in the plaint in this behalf, the same do satisfy the test laid down by the Apex Court in the aforesaid two judgments. The plaintiffs have specifically made out a case that the defendant-tenant has erected construction of the permanent nature in the suit premises without there being written consent of the landlords /plaintiffs and has constructed permanent potmala (loft) admeasuring 4 ft. x 6 ft., in the verandah, on the eastern side of the premises. The loft was constructed by making the holes in the wall. This act has caused the extensive damages to the wall of the suit premises on which it was erected. It was also pleaded that the tiles were put on all the inner side wails of all the rooms, resulting an extensive damage to the walls of the suit premises. The window originally admeasuring 3' x 5' was replaced with that of new window, admeasuring 3 x 2.5 ft., and in the remaining portion, the air-conditioner has been fixed. It was further pleaded that the defendant has replaced all the two flap inner doors of the premises, which were of the wooden planks and has put the new doors made of plywood. It was further pleaded that the defendant has provided water tap with basin in all the rooms and for which holes were made in all the wall and for drainage of the waste water, new pipe lines have been provided by making big holes in the suit premises which have resulted in and caused seepage in the suit premises. Thus, it has caused extensive damage to the tenanted premises.

18. In the light of the aforesaid pleadings, containing material facts and particulars, if one turns to para 7 of the written statement filed by the defendant, it will be clear that initially he tried to deny having made any construction in the suit premises. But, in the latter part of para 7, he virtually admitted all the constructions having been done by him, but tried to wash his hands by contending that the said construction work was not done by him. but carried out by one Mataprasad in the year 1975-76, who at the relevant time was acting as an authorised representative of the plaintiffs/landlords. He thus tried to contend that all the construction work was done in the year 1975-76, as such, there was no cause of action for the plaintiff to file suit in the year 1994, that is, after lapse of 19 years, on this count.

19. With the aforesaid rival pleadings on record, let me turn to the evidence led by the parties. One of the plaintiffs, Mr. Nandkishore (plaintiff/respondent No. 2) in his examination-in-chief, specifically and graphically deposed on oath as to how the construction work of permanent nature was carried out by the defendant in the suit premises. The evidence of the plaintiff is consistent with the plaint pleadings. In the background of this evidence, if one turns to the cross-examination conducted on behalf of the petitioner/defendant, it would be clear that there was absolutely no challenge to the various statements made by the landlords in this behalf in the examination-in-chief. The statements made on oath by one of the plaintiffs thus have gone unchallenged. In absence of any cross-examination on this material aspect of the matter it will have to be treated that the case of the plaintiffs was virtually admitted by the defendant-petitioner. Whatever material was brought on record by way of cross-examination is also suggestive of the admission on the part of the defendant having indulged in carrying out the construction of the permanent nature.

20. In the above backdrop, if one turns to the evidence of the petitioner/ tenant himself, there is absolutely no evidence on record to justify the construction carried out in the suit premises. In the examination-in-chief, the petitioner/tenant has offered no explanation justifying his act. His evidence is absolutely silent so far as this aspect of the matter is concerned. It was expected of the petitioner/tenant to depose in the examination-in-chief in consonance with his pleadings and to stick up to his defence made out in the written statement. However, it appears that the defence sought to be made out in the written statement has been given go-bye and no piece of evidence justifying the conduct of the petitioner is to be found in his evidence.

21. Both the Courts below, based on the aforesaid material, after appreciating the evidence, recorded categorical findings that the petitioner/tenant has miserably failed to prove that the construction was carried out in the year 1975-76 by one Mataprasad and not by the petitioner/tenant (defendant). Both the Courts below recorded clear-cut findings that there was absolutely no written consent obtained by the petitioner/tenant at any point of time before proceeding to make construction. Taking overall view of the matter, both the Courts below reached to the conclusion that all the material alterations were done in the premises by the petitioner somewhere in the year 1990 and also recorded findings that sufficient material was available on record to justify the findings recorded by the Trial Court. The Lower Appellate Court found that, if all work put together was taken into account, then in that event, the landlord has made out a case for eviction under Section 13(1)(b) of the Act.

22. The learned counsel for the petitioner tried to segregate each item of the construction carried out in the suit premises and emphasised that each item, if considered in isolation, then it could hardly be said that construction of permanent nature was carried out in the premises warranting the eviction under section 13(1)(b) of the Act. But this approach in my view is erroneous. Such approach cannot be adopted while considering the erection or construction done in the suit premises which are interconnected and were made simultaneously to achieve single object. The object sought to be achieved was to make improvement in the suit premises so as to make it a commercially viable dental clinic. The idea was to use the entire premises as a dental hospital: so as to provide various facilities to the visiting doctors, as such, all additions, alterations and/or constructions are the part of the scheme with single object. Therefore, each item of construction cannot be considered separately or in the isolation. Both the Courts below were, therefore, right in holding that it was not the case wherein the defendant has done a single work of addition or alteration. This is the case where the doors were changed and loft was constructed, tiles were fitted, basins were installed and water taps were provided in each room of the suit premises. The entire identity of the suit premises was changed. The findings recorded by the Trial Court in this behalf need to be taken note of, which are extracted hereinbelow :-

"In view of this it is clear that entire set up and get up of the suit premises is changed by the defendant. It is not the case wherein the defendant has done a single work of addition or alteration. As Is clear, the walls and doors are changed and loft is constructed and as such the entire identify of the suit premises is changed. Except stating that it is not a permanent construction, defendant has not explained as to how it cannot be termed as a permanent construction when the entire premises almost changed its identity."

The aforesaid findings are confirmed by the Lower Appellate Court in the following words -

Thus, the appellant has admitted the alleged construction, additions and alterations. As discussed above, the said changes were carried out in the year 1990-91. Those are permanent in nature and carried out without the consent of the landlord in writing, therefore, the provision of Section 13(1)(b) of the Bombay Rent Act are applicable. The Trial Court has rightly discussed al! these aspects and rightly came to the conclusion that the defendant/appellant has carried out construction, additions and alterations permanent in nature. I do not find any reason to interfere with the finding given by the Trial Court."
23. The aforesaid findings recorded by both the Courts below are well supported by evidence. The evidence brought on record is well supported by the plaint pleadings. In these circumstances, no fault can be found with the approach adopted and findings recorded by both the Courts below in this behalf. The same are therefore confirmed.

24. A part from the aforesaid endorsement of the findings of the Courts below, if, each item of construction is taken into account separately, even then no fault can be found with the findings of the Courts below. The construction and erection of loft, if viewed, taking into account the mode, degree of annexation and intention of the parry putting up the structure, it can hardly be said that it is not a construction of permanent nature or a permanent structure. It has brought a substantial improvement and change in the nature and form of the accommodation. The loft appears to have been constructed without prior permission of the Municipal Authorities. As a matter of fact, under the Standardised Building Byelaws and Development Control Rules for A Class Municipal Councils of Maharashlra, such construction needs prior permission of the Municipal Council. No material was placed on record to show that any such prior or subsequent permission was obtained. The construction of Potmala or loft has an effect of increasing load on the wall on which it was constructed and can prove fatal to the wall or the structure on which additional load was created. This single act of permanent construction is sufficient to sustain the findings of both the Courts below in this behalf

25. The second item of construction i.e. removal of wooden doors and replacement thereof by plywood doors; even if considered separately, the result cannot be different. Once the door is fitted to the permanent structure, it becomes part of the Immovable property, viz. building. It does not remain a movable item or a distinct item of furniture. Therefore, removal of door or replacement thereof is nothing but a change in the permanent structure. The judicial note can always be taken of the fact that durability of wooden doors is much more than that of the plywood doors. Life of the plywood doors cannot match with that of wooden doors. Thus, this act of tenant has also been prejudicial to the interest of the landlord and has diminished the value and life of the doors and consequently of the suit premises. As such, the act of replacement of the wooden doors with that of plywood doors that too without written permission of the landlord has rightly been treated as an act in violation of Section 13(1)(b) of the Act by both the Courts below.

26. The third act of the petitioner/tenant relating to the replacement or laying down new water pipe line causing water seepage has also resulted in damage to the inner walls of the suit premises. It is needless to mention that if plumbing work is not done properly then it certainly affects the building structure severely. Defective plumbing results in seepage. Seepage results in dampness. In this view of the matter, even new water pipe lines laid by the tenant and the manner thereof i.e. with defects in fitting resulting in seepage; has certainly been an act in brach of section 13(1)(b) of the Act. The written prior permission contemplated in the sub-clause (b) of sub-section (1) of section 13 of the Act has a purpose behind it. It enables the landlord to keep watch on the quality and nature of construction. Absence of prior permission has frustrated the legislative philosophy behind this provision. In this backdrop, it is not necessary to discuss other items of permanent construction carried out in the suit premises, because, even if, they are held to be beyond the scope of Section 13(1)(b) of the Act, the same cannot have the effect of dislodging the findings already recorded by both the Courts below. Whether a particular structure or construction is of permanent nature is a mixed question of fact and law. The findings recorded by both the Courts below were that the erections done were in the nature of permanent structure. The findings are based on evidence. Reappreciation of evidence and fresh conclusion is beyond the purview of this Court. Hence, I confirm the said findings recorded by the Courts below so far as this aspect of the matter is concerned.

27. The plaintiffs has also pressed into service Section 13(1)(g) of the Act which provides that landlord can recover possession from the tenant, if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for his personal occupation. Before appreciating the findings recorded in this behalf by the Lower Appellate Court, let me turn to the plaint pleadings. They are as under :

The plaintiffs submit that the premises are reasonably and bona fide required by them for their personal use and occupation. That the plaintiff No. 2 is married and he is having 3 daughters, namely Archana Kumari - age 12 years, Soni - age 9 years, Rubi - age 6 years, and two sons namely Shailesh - age 4 years, and Gopal - age 2 years. That the plaintiff No. 3 is also married. That the premises in occupation and possession of the plaintiffs is insufficient and the plaintiff Nos. 1, 2 and 3 are residing together alongwith their members of family. The plaintiffs submit that the plaintiffs are unemployed and he is having no premises for carrying out the business of winding machine and kandi machine etc. and for which the plaintiff Nos. 2 and 3 have sufficient knowledge and the plaintiffs are having sufficient funds for carrying on the business. The premises are reasonably and bona fide required by the plaintiffs for residential purpose and for purpose of carrying out the business thereon."
28. In reply to the aforesaid plaint allegations, the written statement reads as under :-

"With reference to para 10 of the plaint, it is denied that the plaintiff require the suit premises reasonably and bona fide for their personal use and occupation as alleged. All the allegations, contentions raised by the plaintiff in this para are specifically denied. It is denied that the premises in occupation of the plaintiffs are insufficient to cater their needs. It is denied that the plaintiffs are unemployed and have no premises for carrying out the business and that they intends to carry out the business of winding machine and kandi machine etc. and that for that purpose the plaintiff Nos. 2 and 3 have sufficient knowledge for the same. The question of having sufficient knowledge or funds has no bearing on the question of acquiring the accommodation. It is denied that the suit premises are reasonably land bona fide required by the plaintiffs for the residential purpose and for the purpose of carrying out the business activities."
29. In the light of the aforesaid pleadings, the evidence was led by the plaintiffs. The Trial Court while refusing to accept the said ground having been made out by the plaintiffs, recorded negative finding in the following words :

"In his cross-examination P.W. 1 accepted that they are having 35 x 30 ft. area in their occupation on second floor. It is also accepted that 200 sq. ft. gala on the ground floor of the suit house is also in their occupation. He also accepted that terrace of the said house is also enclosed by putting tins and iron angles and windows."

30. The aforesaid finding recorded by the Trial Court was based on the accommodation occupied by the plaintiffs at the relevant time, it appears that the Trial Court was influenced with the availability of closed temporary shed on terrace of the suit house enclosed by putting tins, iron angles fitted windows. The Trial Court therefore, recorded finding that the landlords were not in need of the suit premises. The said finding was upset by the Lower Appellate Court. 31. The Lower Appellate Court on appreciation of evidence reached to the conclusion that the respondent/landlords have proved their reasonable and bona fide need for occupation of the premises. At this juncture, it is necessary to note that it is an admitted position available on record that the terrace of the house was and is being used to satisfy the additional requirement of the landlords by erecting tin shed on iron angles. The very purpose of terrace and user thereof has been lost by the landlords. Had it not been the requirement of the landlords they would not have erected iron shed and converted terrace of the house in a makeshift room. No landlord would like to loose the beneficial enjoyment of the terrace of the house unless he is compelled to do so and loose the beneficial enjoyment thereof. This important consideration was ignored by the Trial Court. Had this aspect of the matter been taken into account by the Trial Court, the finding would have been different. Therefore, it cannot be said that the landlords have not proved their reasonable and bona fide need for the suit premises. The present requirement of the family brought on record by way of additional affidavit is as under :

1. Smt. Janakidevi Anantlal Gupta               62 years

2. Nandkishore Anantlal Gupta                    42 years

3. Smt. Urmiladevi Gupta                           37 years

4. Miss Archana Gupta                              17 years

5. Soni Gupta                                          14 years

6. Rubi Gupta                                          11 years

7. Shailesh Gupta                                     09 years

8. Gopal Gupta                                         07 years

9. Krishnakumar Anantlal Gupta                   32 years

10. Smt. Sunita Krishnakumar Gupta            27 years

11. Miss Rupali K. Gupta                            06 years

12. Master Sauarab Gupta                         04 years

The growing need of the family is brought on record. In the rejoinder filed by the petitioner tenant to the said affidavit, he has virtually admitted these facts. Under the circumstances, it is difficult to reach to the conclusion that the findings recorded by the Lower Appellate Court so far as the reasonable and bona fide need of the landlords is concerned, are erroneous or not supported by evidence on record. In my opinion, no fault can be found with the said findings of the Court below in this behalf. Each and every observation made by the Lower Appellate Court is based on material available on record. The same can very well be sustained in the eye of law. The view taken by the Lower Appellate Court is one of the possible view. The same is, therefore, confirmed.

32. It is true that this Court not being a Appellate Court is not expected to reappreciate evidence afresh. The petitioner has failed to demonstrate any error apparent on the face of record warranting exercise of writ jurisdiction either under Article 226 or 227 of the Constitution of India. The powers of superintendence of this Court under Article 227 being extraordinary, is to be exercised sparingly and only in appropriate cases. In the case of M/s India Pipe Fittings Co. v. Fakruddin M. A. Baker and Anr.,} the Apex Court highlighted the limitation of the High Court while exercising power under Article 227 of the Constitution of India and observed thus :

"5. The limitation of the High Court while exercising power under Article 227 of the Constitution is well settled. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts howsoever erroneous those may be. It Is well settled and perhaps to late in the day to refer to the decision of the Constitution Breach of this Court in Wanjam Singh v. Amaranath. where the principles have been clearly laid down as follows :

This power of superintendence conferred by Article 227 is, as pointed out by Harries C. J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not in correcting mere errors."

The same view was reiterated by another Constitution Bench of the Supreme Court in Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam,. Even recently, in Babhutmal Raichand Oswal v. R. Tarte dealing with a litigating between a landlord and tenant under Bombay Rents, Hotel and Lodging House Rates Control Act. 1947, this Court relying on its earlier decisions observed as follows:

"If error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari It should follow a fortiori that is not subject to correction by the High Court In exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as Court of Appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert Itself into a Court of Appeal when the Legislature has not conferred a right of appeal and made the subordinate Court or tribunal on fact".

I have already held that the findings recorded by the Appeal Court on the grounds confirmed by me are neither perverse nor are against the weight of the evidence on record nor suffer from any erroneous approach or consideration and, therefore, findings to that extent do not call for any interference.

33. So far as the ground of unlawful subletting is concerned, the word 'sublet' is of wider amplitude and takes in the 'letting' even to licensees or their occupation at the instance of the tenant either for some consideration like rent or premium and if such induction is without the written permission of the landlord, the requirements of Section 13(1)(e) of the Act will be fully answered.

34. In M/s Shalimar Tar Products Ltd. v. H. C. Sharma and others, the Supreme Court has held that in order to constitute subletting there must be parting of the legal possession by the lessee, and parting of legal possession means possession with the right to include and also right to exclude others. Mere user by other person is not parting with possession so long as the tenant himself retains the legal possession thereon, and this position has been reiterated by the Apex Court in Jagan Nath v. Chander Khan and others, the Apex Court in the said judgment thus held :-

"6. The question for consideration is whether the mischief contemplated under Section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord. There is no dispute that there was no consent in writing of the landlord in this case. There is also no evidence that there has been any subletting or assignment. The only ground perhaps upon which the landlord was seeking eviction was parting with possession. It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lessee and the parting with possession must have been by the tenant, user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of Section 14(1) of the Act. Even though the father had retired from the business and the sons had been looking after the business in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession. If the father had a right to displace the possession of the occupants, i.e. his sons, it cannot be said that the tenant had parted with possession. This Court in Smt. Krishnawati v. Hans Raj, had occasion to discuss the same aspect of the matter. There two persons lived in a house as husband and wife and one of them who rented the premises allowed the other to carry on business in a part of it. The question was whether it amounted to subletting and attracted the provisions of sub-section (4) of section 14 of the Delhi Rent Control Act. This Court held that if two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it. It will be in the absence of any other evidence a rash inference to draw that the owner has let out that part of the premises. In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of section 14(1)(b) of the Act."
35. The legal position and meaning of the expression "subletting" again came up for consideration before the Apex Court in M/s. Delhi Stationers and Printers v. Rajendra Kwnar :-

"5. Under Section 13(l](e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act), the tenant is liable to be evicted, if he has assigned, sublet or otherwise parted with the possession of the whole of any part of the premises without the permission of the landlord. Subletting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy of parting with possession, see Gopal Saran v. Satya Narayan,."
36. The Supreme Court has thus consistently held that subletting means transfer of exclusive right to enjoy the rented property or portion thereof in favour of the third party and the said right must be in lieu of payment of some compensation or rent, and mere occupation is not sufficient to inter either subtenancy or parting with possession. In order to apply the aforesaid test to the case on hand, it is necessary to examine the plaint pleadings so as to find out whether such case was pleaded and made out by the plaintiffs on evidence. The plaint pleadings were as under :-

The plaintiffs submit that defendant has sublet the portion of the premises to some other persons and the defendant is collecting the huge amount from all these persons and thus, the defendant Is profiteering from subletting of the premises."
37. In the light of the law laid down by the Supreme Court in the matter of J. K. Iron Steel Co. Ltd. and Britannia Biscuit Co. (cited supra). I have absolutely no hesitation to hold that the plaint pleadings were absolutely deficient to bring home the case of the plaintiff within the scope of Section 13(1)(e) of the Act. There is absolutely no evidence on record to prove the ingredients of subletting or the parameters of subletting laid down by the Apex Court. What is contemplated under Section 13(1)(e) is giving of the whole or part of the premises on licence or assignment or transfer of interest of the tenant therein. Assuming that some visiting doctors are attending the Dental Clinic of the petitioner-tenant, even then such act will not fall within the mischief of sub-clause (e) of sub-section (1) of Section 13 of the Act. Under these circumstances, the findings recorded by both the Courts below in this behalf are unsustainable and are liable to be quashed and set aside. Accordingly decree for possession on this count is set aside.

38. The last ground which again needs consideration relates to the breach of Section 13(1)(1) of the Act. Both the learned counsel appearing for the parties agreed that in view of the Division Bench Judgment of this Court the decree of possession on this count may not survive if it is held that the premises was let out for commercial purpose. The said provision of the Act is not applicable to the commercial premises. However, the learned counsel for the respondents/landlords tried to support the findings of both the Courts below and contended that the premises were let out for both purposes i.e. residential as well as commercial. In view of this, section 13(1)(1) of the Act shall be applicable to the facts of this case. He contended that the dominant purpose was to let out the premises for residence and major part of the premises was being used for residence. That is how he tried to support the finding. However, no material is available on record to support this submission. For want of adequate material in this behalf, it is difficult to sustain finding in this behalf. Even otherwise, no amount of evidence can help the respondents/landlords for want of proper pleadings. Any amount of evidence without adequate pleading cannot be read in evidence. In this view of the matter, the decree for possession on this count is set aside.

Thus, for the reasons stated hereinabove the petition is partly allowed. However, for the reasons recorded hereinabove, decree for possession is confirmed with no order as to costs.

39. At this stage, the learned counsel appearing for the petitioner prayed for time to approach higher Court. Petitioner is, accordingly, granted eight weeks time subject to furnishing an undertaking to this Court within two weeks from today to the effect that he will undertake to vacate the suit premises, if he fails in his challenge before the higher Court and deliver vacant and peaceful possession of the suit premises to the respondents-landlords without any demure and/or creating any obstruction and that he will not create any third party interest in suit premises and that he will pay and/or deposit in the Trial Court entire arrears of rent within four weeks from the date of furnishing undertaking and shall continue to pay or deposit in the Trial Court an amount equal to agreed monthly rent regularly on or before 10th day of each month. The respondents-landlords shall be free to accept or withdraw the said amount without prejudice to their rights, treating it as an amount paid towards part payment of compensation. The respondents-landlords/decree holders shall not execute the decree for eight weeks from today. On failure to furnish undertaking within a stipulated time, the respondents-landlords shall be free to execute decree and shall also be free to take any other step as may be available in law to get the decree executed in accordance with law.

40. C. C. expedited.


Print Page

No comments:

Post a comment