Tuesday, 8 October 2019

Whether every family member of deceased tenant can claim independent right of tenancy?

The phrase "any member of the tenant's family residing with the tenant at the time of his death" would not enable each and every member of the tenant's family to claim an independent right of tenancy in respect of the tenanted premises. Any member would mean any one member.

IN THE HIGH COURT OF BOMBAY

Contempt Petn. No. 89 of 1986

Decided On: 21.02.1989

Shamkant Tukaram Naik Vs. Dayanabai Shamsan Dighodkar and Ors.

Hon'ble Judges/Coram:
A.C. Agarwal, J.

Citation : 1989 MhLJ857




1. By this petition the petitioner seeks action against respondents 1, 2 and 2-A under the Contempt of Courts Act for having committed wilful breach of the undertaking dated the 26th November 1986 given by respondent 1 to this Court in Writ Petition No. 4805 of 1985.

2. The petitioner being the landlord of a one room premises admeasuring about 18 ft. x 13 ft. had filed Suit No. 61 of 1976 against respondent 1 under the Rent Act for possession. By a judgment and decree dated the 13th September 1982 a decree for possession was passed against respondent 1. She challenged the said decree by filing Appeal No. 151 of 1982, but that appeal was dismissed on the 21st September 1985. Being aggrieved, she preferred in this Court Writ Petition No. 4805 of 1985 and that petition met the same fate and was rejected on the 7th November 1985. However, time to vacate the suit premises was granted up to 6th December 1986 on her giving an undertaking which she gave on the 26th November 1986. By this undertaking she stated that she was residing in the suit premises and she undertook to this Court to quit and vacate the suit premises and deliver vacant and peaceful possession of the same to the petitioner and to none else on or before the 6th December 1986. She further undertook not to induct any third party to the suit premises and not to create any 3rd party interest in respect of the suit premises.

3. Some time after the aforesaid undertaking was given by respondent 1, respondent 2 who is none else but the son of respondent 1 filed Suit No. 12 of 1986 for a declaration that he was the tenant in respect of the suit premises. The claim set up him him was one under S. 5(11)(c) of the Rent Act. According to him his father was the original tenant and after his death on the 14th May 1962 he had become the tenant under S. 5(11)(c) as he was the member of the father's family residing with him at the time of his death. According to him the mere fact that on the death of his father, the tenancy stood in the name of respondent 1, the same did not detract from his claim of being a tenant under S. 5(11)(c). Respondent 1 applied for an interim injunction restraining the petitioner from executing the decree obtained against respondent 1 as against him. However, no interim relief was granted in his favour. However, in Miscellaneous Appeal No. 23 of 1987 filed by respondent 2 an ad interim injunction was issued restraining the petitioner from executing the decree against him. Though the time granted to respondent 1 to vacate was up to the 6th of December 1986, the petitioner filed the present contempt petition in June 1986 in view of the aforesaid suit filed by respondent 2.

4. The petitioner thereafter filed Darkhast No. 29 of 1986 for executing the decree obtained in Suit No. 12 of 1986 but respondent 2-A who is none else but the daughter of respondent 1 obstructed. She, on the 31st December 1986 filed Suit No. 152 of 1986 for a similar relief claimed by respondent 2 in Suit No. 12 of 1986. Though the trial Court refused to grant any interim injunction respondent 2-A appears to have obtained an order of status quo in the Miscellaneous Appeal filed by her against the refusal of interim relief.

5. Shri Shah, the learned Advocate appearing on behalf of the petitioner submitted that all the three viz. respondents 1, 2 and 2-A are guilty of wilful disobedience of the undertaking given by respondent 1. The petitioner had filed his suit for possession as far back as in the year 1976 and obtained a decree after full contest on the 13th September 1982. Though that decree was confirmed in appeal by the Appeal Court and in Writ Petition by this Court, the petitioner has been unable to reap the fruits of his decree; and this was despite the solemn undertaking given by respondent 1 to vacate. He pointed out that the suit premises was one single room wherein respondent 1 along with respondents 2 and 2-A who were none else but her son and daughter were residing. He also pointed out that the tenancy in respect of the suit premises stood all along in the name of respondent 1 alone. Respondents 2 and 2-A had obviously the knowledge of the litigation as also the undertaking and they were responsible for committing breach of the undertaking dated the 26th November 1986 given by respondent 1. In the alternative, according to Shri Shah, respondents 2 and 2-A would be guilty of aiding and abetting respondent 1 in committing breach of the undertaking and were liable to be suitably punished.

6. In my judgment, there is no difficulty in holding that the respondents 2 and 2-A had the knowledge of the litigation between the petitioner and respondent 1 as also the undertaking given by respondent 1 to this Court on the 26th November 1986. The suit premises consisting of single room are situate at village Baman Dongri in Panvel Taluka and it would be reasonable to infer that the present litigation which had gone one for over ten years was to the knowledge of respondents 2 and 2-A especially when respondent and daughter (sic). It is pertinent to note that the suit filed by respondent 2 was soon after respondent 1 had given her undertaking and the suit filed by respondent 2-A was filed some time thereafter. Hence, respondents 2 and 2-A can be imputed with the knowledge of the undertaking given by respondent 1.

7. The next question, however, that arises for consideration is whether respondents 1, 2 and 2-A can be held guilty of wilful disobedience of the undertaking given by respondent 1. Shri Kaulgekar, the learned Advocate appearing on behalf of respondent 2 and Shri Karandikar, the learned Advocate appearing on behalf of respondent 2-A placed reliance on Sections 8, 9 and 2(b) of the Contempt of Courts Act and contended that respondents 2 and 2-A cannot be held guilty of wilful breach of the undertaking given by respondent 1. As far as respondent 1 is concerned, Shri Limaye, the learned Advocate appearing on her behalf placed reliance on the affidavit of respondent 1 and contended that though it was true that she has been unable to comply with her undertaking, that was on account of the non co-operation of respondents 2 and 2-A. Respondent 1 was helpless and though she made sincere efforts to persuade respondents 2 and 2-A she was unable to have them to vacate the suit premises and handover the same to the petitioner. He prayed for mercy.

8. In order to appreciate the contentions of Shri Kaulgekar and Shri Karandikar, it may be convenient to reproduce the provisions of Sections 8, 9 and S. 2(b) of the Contempt of Courts Act, 1971 :-

"8. Nothing contained in this Act shall be construed as implying that any other defence which would have been a valid defence in any proceedings for contempt of court has ceased to be available merely by reason of the provisions of this Act."

"9. Nothing contained in this Act shall be construed as implying that any disobedience, breach, publication or other act is punishable as contempt of court which would not be so punishable apart from this Act."

"2(b). In this Act, unless the context otherwise requires, -

"'civil contempt' means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court".
It is the contention on behalf of respondents 2 and 2-A that the tenancy of the suit premises originally stood in the name of their father. On his death respondents 2 and 2-A along with respondent 1 would be the tenants under S. 5(11)(c) of the Rent Act. According to them respondents 2 and 2-A had a valid defence to the execution of the decree obtained against respondent 1. They had, therefore, obstructed the execution of that decree and filed their Declaratory Suits. The assertion of the defence which respondents 2 and 2-A bona fide believed to possess would not come in their way in the present contempt proceedings. In any event, the undertaking was given by respondent 1 alone and not by them. Breach, if any, would be that of respondent 1 alone and they could not be made liable along with respondent 1 for the said breach.

9. Placing reliance on S. 9 it was contended that since there was no undertaking given by them, they cannot be held guilty of breach of the same and they also could not be held guilty for aiding and abetting respondent 1 as there was no provision under the Act which made the aiding or abetting an offence. According to them it was only wilful breach of an undertaking that was made punishable under the Act. Hence, it was contended that it would not be permissible to take any action against respondents 2 and 2-A.

10. In my judgment, the provisions of S. 8 will have no application to the facts of the case and would not assist respondents 2 and 2-A in their defence. All that S. 8 provides is that if any defence is available as a valid defence in any proceedings for contempt of Court, the same would continue to be available despite any of the provisions of the Act. We are not considering any defence which would be available as defence to the present contempt proceedings and we are not concerned whether such a defence is available to respondents 2 and 2-A in any other proceedings by reason of any of the provisions of this Act. The first limb of the arguments on behalf of respondents 2 and 2-A must be negatived. However, on the second limb of the arguments, it must be held that the same is not devoid of merit. In my view S. 9 makes it abundantly clear that it is only such disobedience that is made punishable as contempt of Court which is made specifically punishable under the Act. There is no provision the Contempt of Courts Act like S. 34 or S. 114 of the Penal Code with the aid of which respondents 2 and 2-A can be punished for aiding or abetting respondent 1. These are quasi-criminal proceedings and unless there is a specific provision which penalises an act of vicarious liability, it would not be permissible to punish such a contempt. However, having regard to the fact that in a number of cases contempts are committed by parties other than the ones against whom judgment, decree or directions or orders of the Court are passed or other than the ones who have given an undertaking to the Court which has the effect of bringing the Courts into disrepute, it would, in my view, be appropriate for the concerned authorities to consider appropriate amendments to the Act so as to bring within the compass of the Act contempts with the aid of provisions of Sections 34 and 114 of the Penal Code.

11. Shri Shah, the learned Advocate appearing on behalf of the petitioner placed reliance on the decision of Seaward v. Paterson reported in 1 Ch (1897) 545 and contended that it was not necessary that the party found to be guilty of contempt should himself be bound by an order of injunction. If such a party is found to have aided and abetted a defendant in a breach of an injunction, he should be suitably dealt with for contempt. Shri Shah further relied upon the decision of Kuchwar Lime Co. v. Secy. of State reported in MANU/BH/0279/1936 : AIR1937Pat65 which has taken a view similar to the view taken in the aforesaid case. He also relied upon the case of Gurumurthi Chetty v. Sella Perumal Pillai, reported in MANU/TN/0368/1936 : AIR1936Mad651 for the proposition that an undertaking given by a party amounted to an order of injunction and, therefore, the Court had the power to deal with the breach of such undertaking. So far as the third case is concerned, one would require no authority for the proposition that the undertakings given to the Court are as effective and efficacious as orders of injunction issued by the Courts and moreover the breach of an undertaking has been made specifically punishable under the Act.

12. In my judgment, the first two decisions relied upon by Shri Shah will not assist him inasmuch as it is not possible to determine whether there existed a provision like the one found in S. 9 in the enactments under which the aforesaid pronouncements were made.

13. Shri Kaulgekar and Shri Karandikar submitted that on the death of a tenant, the members of the tenant's family residing with the tenant at the time of his death would be tenants under S. 5(11)(c) of the Rent Act. According to them, respondents 2 and 2-A have an independent right and do not claim through respondent 1. They are, therefore, justified in obstructing the execution of the decree and filing the Declaratory Suits.

14. In my judgment, there is no merit in the aforesaid contention. The phrase "any member of the tenant's family residing with the tenant at the time of his death" would not enable each and every member of the tenant's family to claim an independent right of tenancy in respect of the tenanted premises. Any member would mean any one member. I am fortified in the aforesaid view by the decision of this Court in the case of Miss Gool Rustomji v. Jal Rustomji reported in MANU/MH/0080/1972 : AIR1972Bom113 . In the present case the original deceased tenant had died as far back as in 1962 and it was respondent 1 alone who was recognised as the tenant. Till the decree was finally passed against her, no claim of whatever nature was set up by respondents 2 and 2-A. It is obvious that this is a belated effort on the part of respondents 2 and 2-A to delay and defeat the execution of the decree passed against respondent 1. Had there been a provision for punishing a contemner by taking resort to the vicarious liability, this would undoubtedly be a fit case to take action against respondents 2 and 2-A.

15. As far as respondent 1 is concerned, it will have to be held that she has been guilty of breach of the undertaking. She has, however, stated that she is helpless and has not been able to persuade respondent 2 an 2-A to vacate the suit premises. She herself has left the suit premises and this fact has specifically not been controverted by the petitioner in the affidavit in rejoinder field in the present proceedings. Though this is a case of breach of undertaking, it may not be possible to hold that this is a case of wilful breach of that undertaking. In this view of the matter, I do not consider this to be a fit case to take any action against respondent 1.

16. In the result, the petition fails and the same is dismissed. Rule discharged. There shall be no order as to costs.

17. Petition dismissed.


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