Saturday, 11 August 2018

Whether eviction decree can be passed against tenant on ground of non user of premises if he has subletted it?

Hence for a claim under Section 13(1)(k) it is not necessary for a landlord to establish that the premises are left to a total non-user. It is enough if he proves that his tenant has not used the premises for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit and the same was without reasonable cause. Though the premises are shown to be in use say by a third person or for a purpose other than the one for which they were let, the same cannot detract from the concept of 'non-user' contemplated under Section 13(1)(k). In this view of the matter, though the premises had been occupied by a third party, the ground of non-user is still open to the plaintiff for claiming possession.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 4598 of 2005

Decided On: 20.10.2005

 Bhaskar Wamanrao Rithe  Vs. Indira Iyer

Hon'ble Judges/Coram:
B.P. Dharmadhikari, J.

Citation: 2006 (1) MHLJ 155


1. Heard Shri Sambaray, learned Counsel for the petitioners and Shri Upasani, learned Counsel for the respondent.

2. Considering the nature of controversy. Rule. Rule is made returnable forthwith by consent of the parties.

3. The Courts below have concurrently granted permission to respondent to evict the present petitioners under Section 16(1)(n) of the Maharashtra Rent Control Act, 1999.

4. The learned Counsel for the petitioners has challenged these concurrent orders on two grounds. The first is the user of tenanted premises by any other person apart from tenant cannot be an ingredient relevant for Section 16(1)(n) of the Maharashtra Rent Control Act, 1999, and the second ground is that mere occupation of premises by such other person is not sufficient to prove sub tenancy. It is contended that if such sub-tenancy is not proved, then the ground of non-user by tenant is also not substantiated. The learned Counsel has placed reliance upon the judgment of this Court in the case of Jostna L. Pujara v. Kailasbhai S. Tiwari, reported at 2002 (Supp.) BCR 598 and in Laxminarayan v. Bhagwandas, reported at MANU/MH/1278/2004 : 2005(3)MhLj646 .

5. As against this, Shri Upasani, learned Counsel for the respondent -landlord has invited attention to the judgment of this Court in the case of Radheshyam v. Safiyabai, reported at MANU/MH/0766/1987 : 1987 Mh.L.J. 725 and in V. Rahimbhai Haji v. Sunderlal, reported at MANU/SC/0391/1985 : AIR1986SC174 , to contend that user of premises by some person other than tenant constitutes non-user under Section 16(1)(n) and therefore, permission as granted, cannot be interfered with. He states that in the judgment reported at 2002 (Supp.) BCR 598, the learned Single Judge of this Court has not looked into this judgment as also the judgment of the Hon'ble Apex Court reported at MANU/SC/0391/1985 : AIR1986SC174 . He further places reliance upon the judgment in the case of Kashibai v. State of Maharashtra, reported at MANU/MH/1005/1992 : 1993 Mh.L.J. 1168, to contend that the judgment reported at 2002(Supp.) BCR 598 is per incuriam.

6. The Hon'ble Apex Court's judgment is on the provisions of Section 13(1)(k) of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The Apex Court there has considered similar controversy and in para 3, it is observed that the tenant sub-let portion of tenanted premises to defendant, No. 2 and in this background the Hon'ble Apex Court in paras 9 and 10 has observed as under :

9. This contention of the counsel also cannot easily be accepted when on the own admission of the defendant and defendant's counsel the premises had been used for the purpose of carrying on tobacco business. Therefore, the defendant fully knew the purpose for which he had taken the premises as a tenant. The stand of the defendant all through appears to be that even if he does not use the premises and have been paying rent he does not incur the liability of eviction and for this he banks upon the recital in the rent note that "even if we use or do not use or keep the said property closed we the tenants are bound to pay the rent as stated above". This stipulation in the rent deed only talks of the liability of the defendant to pay the rent even if he does not use the property and keeps it closed. This, however, does not mean that the defendant can keep the premises closed without using it for years together before the suit. This could never have been the intention of the law makers especially in these days of scarcity of accommodation in towns. Even if the stipulation made in the rent note is construed to mean that the defendant tenant could keep the premises closed without using it for years together without incurring the liability of eviction, as is sought to be contended for the respondent, it would amount to allowing the parties contracting out of law.

10. This leads us to the second part of the submission made by the counsel for the appellant that on a correct interpretation of Section 13(1)(k) of the Act even non-user of the premises for any purpose whatsoever for years together could make him liable for eviction. The contention on behalf of the respondent, however, is that we cannot add words to Section 13(1)(k) and the intention of the legislature is clear from the words used therein and all that Section 13(1)(k) contemplates is that the premises had not been used for the purpose for which they were let out for a continuous period of six months immediately preceding the date of suit without reasonable cause. It does not say that mere non-user of the premises will make him liable for eviction.

7. By placing reliance upon this judgment, the learned Single Judge of this Court reported at MANU/MH/0766/1987 : 1987 Mh.L.J. 725, has observed as under :

19. In the aforesaid case the premises were found to have been sub-let by the tenant in favour of a sub-tenant, which sub-tenancy having been created prior to the coming into operation of the Bombay Rent Act was found to be not illegal. Despite the occupation by the sub-tenant the ground of non-user was upheld. In view of the aforesaid judgment of the Supreme Court cited by Mr. Rane, it must be held that the ratio laid down by the judgment of this Court in the case of Balwant Sadashiv Datye (supra) cited by Mr. Raghuwanshi is no longer a good law. Hence for a claim under Section 13(1)(k) it is not necessary for a landlord to establish that the premises are left to a total non-user. It is enough if he proves that his tenant has not used the premises for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit and the same was without reasonable cause. Though the premises are shown to be in use say by a third person or for a purpose other than the one for which they were let, the same cannot detract from the concept of 'non-user' contemplated under Section 13(1)(k). In this view of the matter, though the premises had been occupied by a third party, the ground of non-user is still open to the plaintiff for claiming possession.

20. Both the Courts below on appreciation of evidence of the parties came to the conclusion that defendant was not using the suit premises without reasonable cause for a continuous period of six months prior to the filing of the suit. I am not inclined to accept the submission of Mr. Raghuwanshi that the said finding is one arrived at without any evidence on record or that the said finding is perverse. On the contrary the said finding is a finding of fact which is not susceptible of being interfered with in a petition under Article 227 of the Constitution of India. I, therefore, hold that the decree for possession passed on the ground of non-user is justified.

Thus, it has been held that it was not necessary for the landlord to establish that the premises were not in use at all. It was held that it was enough if he proved that the tenant was not using the premises for which they were let out for continuous period of six months and the defence that premises were being used by third person or for the purpose other than the one for which it was let out would not detract from concept of non-user.

8. In this background, when the subsequent judgment on which learned Counsel for the petitioners has placed reliance is looked into, the learned Single Judge, in the judgment reported at 2002 (Supp.) Bom. C.R. 598, has at page 608 of the report observed an under :

"The quintessence for attracting this provision is the non-user of the premises "for the purpose for which they were let." This is the fulcrum so as to attract the said ground. On the other hand, if the user of the premises is continued for the purpose for which they were let then, there would be no cause of action. The next question that needs to be posed in the context of the controversy in the present case is : can this section be invoked in a case where the premises are undoubtedly used for the purpose for which they were let but, by someone other than the tenant himself? To my mind, indubitably the answer shall be in the negative. There are atleast two very good reasons for this. Firstly, if we were to hold otherwise, it would amount to re-writing of that provision. The provision would then read as "that the tenant has not used the premises". By doing this the texture of that provision would get materially altered and would tantamount to doing violence to the legislative intent. Moreover, from the scheme of Section 13 of the Act it will appear that, wherever the legislature intended that the default should be ascribed particularly to the tenant, for entailing in a right being accrued to the landlord to get possession of the premises, the legislature has made that express provision. This is evident, inter alia, from the language of Clauses (a), (b), (c), (d), (e), (f), (j) and (1) of Sub-section (1) of Section 13 of the Act. The legislature has expressly employed the phrase", that the tenant has...", which is conspicuously absent only in Clause (k). The second reason is that, each clause of Sub-section (1) of Section 13 of the Act i.e. Clauses (a) to (1), provide for completely different situation. None of the clauses in that sense are, so to say, overlapping. They are neither interchangeable. The material facts and ingredients to establish ground referable to each clause is materially different. In other words, if were to say that someone other than the tenant was using the premises, obviously in exclusion to the tenant, then, that fact situation would be appropriate for invoking ground of unlawful sub-letting within the meaning of Section 13(1)(e) but, by no stretch of imagination can be pressed for the ground under consideration i.e. Section 13(1)(k) of the Act."
9. Thus this Court in abovementioned judgment has found that the clause/sub-section under which the permission would be granted under the provisions of law were definite and mutually exclusive and therefore did not prefer to interpret it in the manner which would result in overlapping. However, as is apparent, the earlier judgments of this Court and the above referred judgment of the Hon'ble Apex Court which is directly on the point, have not been brought to notice of this Court in it and could not be considered by it.

10. The learned Counsel for the petitioners has also placed reliance upon the judgment of this Court in the case of Laxminarayan v. Bhagwandas, reported at MANU/MH/1278/2004 : 2005(3)MhLj646 . This judgment considers the issue of sub tenancy and it has been held that mere showing that some third person is in occupation of premises is not sufficient to establish the plea of sub-tenancy so as to entitle the landlord to claim permission under Clause 13(3)(iii) of C.P. and Berar Letting of Houses and Rent Control Order, 1949. The facts of present case are entirely different. The occupation by a person other than tenant will be sufficient to hold that it is non-user by tenant. Hence, the ruling has no application in the facts and circumstances of the case.

11. As has been held by the Division Bench of this Court in the case of Kashibai v. State of Maharashtra reported at MANU/MH/1005/1992 : 1993 Mh.L.J. 1168, the judgment of this Court reported at 2002 (Supp) 598, is rendered per incuriam because it has not considered the judgment of the Hon'ble Apex Court which is directly on the point and also earlier judgment of learned Single Judge of this Court which is also on the same provisions and considered said judgment of the Hon'ble Apex Court. In these circumstances, I do not find any perversity or jurisdictional error in the application of mind by the Courts below.

12. In the circumstances, there is no substance in the present writ petition. It is accordingly dismissed. Rule is discharged. No order as to costs.

13. The learned Counsel for the petitioners states that during the pendency of this writ petition, the respondent-landlord was asked not to take the possession from the petitioners and accordingly today the petitioners are in possession. He seeks time of four weeks to take further appropriate steps in the matter. This request is opposed by the learned Counsel for the respondent-landlord.

14. However, considering the nature of controversy and in the interest of justice, parties to maintain status quo as on toady for a period of four weeks from today. After the period of four weeks, the order of status quo shall cease to operate automatically.




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