Wednesday, 18 March 2020

Whether the court can pass two separate decrees in one eviction suit filed by the landlord?

 Before I proceed to examine the ground of reasonable and bona fide requirement of the landlord, as pressed into service before the Court below, it would be essential to examine as to whether the Court can pass two separate decrees in one suit filed by the landlord, This question arises since I have already taken the view that the ground of tenant having acquired alternative and vacant possession of the premises suitable for residence can be invoked only with regard to the portion on the first and second floor of the suit premises, which are residential premises. In other words, the ground of reasonable and bona fide requirements, though common with regard to the entire suit premises, the decree of eviction on the ground of tenant having acquired suitable residence is restricted only with regard to the first and second floor of the suit premises. If this Court were to reject the ground of reasonable and bona fide requirement of the landlord, then the decree for possession could be confined only with regard to the portions on the first and second floor of the suit premises. But, if the landlord were to succeed in establishing the ground of reasonable and bona fide requirement, then, in that case, the landlord would become entitled to a decree for possession of the entire suit premises, including the ground floor portion, provided, however, the issue of comparative hardship is also decided in favour of the landlord. In the circumstances, there is a possibility of two separate decrees being passed in respect of the suit premises, although the suit is between common parties, in one suit.

21. To get assistance on the above said issue, I had requested Mr. S. C. Dharmadhikari, Advocate to assist this Court, who, in turn, expressed his willingness and gave able assistance at a short notice. Mr. Dharmadhikari, besides referring to the provisions of the Rent Act, placed reliance on the observation made by the Patna High Court in para 25 of its judgment in the case of Padam Singh Jain v. M/s. Chandra Bros., He has referred to Section 13 of the Rent Act to contend that sub-section (1) postulates that landlord shall be entitled to recover possession of any premises on the grounds referred to in the said sub-section. He submits that the expression "any premises" mentioned in the said sub-section itself indicates that the landlord can institute a suit for possession in respect of the entire premises or portion thereof on one or more grounds provided for in law. He has buttressed this submission with reference to the definition of "premises" contained in sub-section (8) of Section 5 of the Bombay Rent Act. Sub-section (8) of Section 5 of the Act defines "premises" to mean any building or part of a building let or given on licence separately, other than a farm building, including the garden, grounds, garages and out-houses, if any, appurtenant to such building or part of a building. Relying on this definition, Mr. Dharmadhikari contends that from the scheme of the provisions of the Bombay Rent Act it is possible to hold that the landlord can maintain suit for recovery of possession in respect of the entire premises or portion thereof. According to him, the Court may decree the suit only with regard to portion of the building on one ground and the other portion on the other ground, though, between the common parties in one suit and direct delivery of possession to the landlord accordingly. It is also possible that, the Court, if satisfied that, the landlord is entitled to recovery of possession of only one portion of the suit premises, may decree the suit only with regard to that portion and not for the entire suit premises. Such a situation is contemplated on a conjoint reading of sub-section (1) and sub-section (2) of Section 13 which empowers the Court to pass a decree in respect of a portion of the suit premises. I find force in the above said submissions advanced by the learned Counsel. Besides the scheme of the provisions of the Bombay Rent Act, the learned counsel has rightly placed reliance on the provisions of Order II of the Code of Civil Procedure. Rule 1 thereof provides that "every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." Rule 3 of Order II provides that "a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." With regard to the claim for recovery of an Immovable property, reference can be made to Rule 4 of Order II, which enables joining of causes of action and the manner therefore. In other words, it is contended that, sub-section (1) of Section 13 of the Bombay Rent Act provides for different grounds and each ground asserted in the plaint would give rise to a separate cause of action, and, therefore, all the causes of action can be joined together for setting up the claim for recovery of the demised premises. The learned counsel also relied on Rule 9 of Order XX for decree for recovery of immovable property. No other provision has been brought to my notice to persuade me to take a contra view.

22. On examining the above said provisions, there can be no doubt that the Rent Court can pass more than one decree for recovery of possession of the suit premises in one suit filed between common parties, when the grounds for recovery of possession are different, giving rise to separate causes of action. If the Court is satisfied that the landlord has established two separate grounds for recovery of possession of the suit premises, in such a situation, one decree can be passed founded on two separate grounds and causes of action. But, when the Court is satisfied that the landlord has established only one ground with regard to one portion of the suit premises and another ground with regard to another portion of the suit premises, in such a situation two separate decrees are inevitable in respect of the two portions of the suit premises in one suit between common parties.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6286 of 1987

Decided On: 27.06.2001

Shankar Bhairoba Vadangekar Vs. Ganpati Appa Gatare

Hon'ble Judges/Coram:
A.M. Khanwilkar, J.

Citation: 2001(4) ALLMR 61, 2001(4) ALLMR 61.
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