Monday, 14 December 2020

Whether the court should dismiss eviction suit if the tenant takes plea that change of user of tenanted premises is not permissible?

(j) Prohibition on the Change of User:


74. About the State Government's directions issued on 03.12.2009 and consequential regulatory orders passed by the Municipal Corporations concerned, the Courts below have held that those directions came much later, and after the decree was passed, at that. They have also opined that the Corporation could not prove that those directions apply to Nashik.


75. At any rate, on the issue about the restrictions on the change of use, this Court has ruled in Cricket Club of India Ltd. In that case, the respondent leased the suit property in March 1943 to the applicant's predecessor, for running a filling station. In December 2000, after the original tenant's death, the respondent issued quit notice under Section 106 of the Transfer of Property Act to the applicant. Later, he sued the applicant for eviction. He filed the suit under Section 41 of the Presidency Small Causes Court Act, 1882. On contest, the Small Cause Court decreed the suit. In appeal, it was confirmed.


76. The applicant took the matter to this Court as a Civil Revision Application. The applicant brought to this Court's notice a statutory change: Under Section 154 of the Maharashtra Regional and Town Planning Act, 1966, the State Government directed the Municipal Corporations in the State not to permit the change of use of the properties being used as fuel filling stations. So the applicant contended that even if the respondent recovered the leased property, he could not use it for any purposes other than for setting up a filling station. According to the applicant, this subsequent material change goes to the root of the matter.


77. This Court, then, has held that the respondent's effort to evict the applicant are legal, and "there is no challenge on that aspect." In the absence of any protection under the Maharashtra Rent Control Act, the decree for possession must follow. On the issue of change of use, it has held that "the direction issued by the State Government will not affect the merits of the decree for eviction. The result of the said direction is that as and when the Respondent seeks permission to redevelop the suit property in question, the Mumbai Municipal Corporation will not be entitled to permit change of present user of the property." But it has nothing to do with the decree for eviction.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 561 of 2018 and 562 of 2016 in Regular Civil Appeal No. 237 of 2005 in Regular Civil Suit No. 149 of 1998

Decided On: 27.04.2020

 K.B. Lahoti and Company and Ors. Vs. Champalal Vithuram Jajoo and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(5) MHLJ 196,MANU/MH/0535/2020


I. Introduction:


1. The owners want to recover leased property: a piece of vacant land. They file a suit for ejectment on various grounds. All the way up to High Court, they lose the suit. After the unsuccessful first round litigation, within three months--but twenty years after their first suit--the owners issue a quit notice and, again, file the second ejectment suit. Among the many grounds, the principal are rent default and bona fide requirement.


2. The trial Court decrees the suit. The tenant and the subtenant file two appeals; both dismissed, they file Civil Revision Applications. In these CRAs they raise the following issues:


(a) The tenants do admit there accumulated certain rent arrears when the first-round eviction proceedings were pending. But does their recovery in the second suit stand barred by res judicata and Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("the Bombay Rent Act")?


(b) Can the revisional Court reappreciate evidence on the rent default and bona fide requirement?


(c) The State Government has, pending the appeal, barred the change of user of the lands, say, being used as filling stations. Does this bar affect the owners' right to recover possession?


(d) Recovery of open land falls under Section 12 (1)(i) of the Bombay Rent Act. Under that provision, comparative hardship is not an element of consideration. That, however, is the requirement under Section 12 (1) (g) of the Act. But here, dealing with an open land, the Courts below have considered the relative hardship, too. Does this extraneous consideration vitiate the entire adjudication?


II. Facts:


(a) Procedural History:


3. There are two Civil Revision Applications. M/s. K.B. Lohoti & Company ("the Firm") has filed CRA No. 561 of 2018; Bharat Petroleum Corporation Ltd. ("the Corporation") filed CRA No. 562 of 2018. They both filed their respective CRAs against a common set of respondents ("the Owners").


4. To be specific, the Owners filed RCS No. 149 of 1998 against the Corporation and the Firm for eviction. The Civil Judge, Junior Division, Nashik, through its Judgment and decree, dt. 29.09.2005, allowed that suit. Aggrieved, the Corporation filed RCA No. 237 of 2005, and the Firm filed RCA No. 234 of 2005. Through a common judgment, dt. 11.12.2013, the District Judge-I, Nashik, dismissed both the appeals. Then, the Corporation and the Firm filed CRA Nos. 562 of 2018 and 561 of 2018, respectively.


(b) Facts of the Case:


5. The respondents in both the CRAs are the owners; they claim that the suit property is their joint-family property. Their ancestors leased it out to M/s. Burmah Shell Oil Storage and Distribution Company of India Ltd., the Corporation's predecessor. It was in 1965. The property, then, was said to be a piece of open land at Nashik Road, Nashik. Later, in 1976, the Burmah Shell was taken over by the Government of India to form Bharat Refineries Limited, later renamed as Bharat Petroleum Corporation Limited, BPCL. Thus, the Corporation is the licencee.


(c) First Round Eviction Proceedings:


6. In 1977, the Owners filed RCS No. 754 of 1977 against the Corporation for eviction. It was on the grounds of bona fide requirement, erection of unauthorized permanent structures, change of user, and unlawful sub-letting. In March 1985, the trial Court dismissed the suit. The dismissal was on all grounds. Aggrieved, the Owners filed Civil Appeal No. 265 of 1985 but without success; the appeal was dismissed in July 1986. Further, aggrieved, the Owners filed Writ Petition No. 4985 of 1986. Yet again, they failed. This Court dismissed the Writ Petition on 09.02.1998.


(d) Present Proceedings:


7. In less than three months, that is on 01.05.1998, the Owners issued a "notice for possession" to the Corporation. Later, they filed RCS No. 149 of 1998. This time the Owners sought the Corporation's eviction on the grounds of bona fide requirement, arrears of rent, and permanent construction on the suit premises. To this suit, the Owners added the Firm and its partners as the other defendants. Admitting no privity contract, the Owners, however, maintained that the Firm is an illegal sublessee.


8. As the Owners were successful in the suit, the Corporation and the Firm unsuccessfully challenged the decree, dt. 29.09.2005, in the first Appeal, and eventually filed these CRAs. In fact, the Corporation first filed Second Appeal No. 329 of 2014. When this Court, through its Order, dt. 27.04.2016, held that the second appeal was not maintainable, it has filed CRA No. 562 of 2018.


9. In the suit, the Corporation filed its written statement and led evidence, too; but the Firm did neither.


III. Submissions:


(a) The Corporation:


10. Shri Shivprasad Pagare, the learned Standing Counsel for the Corporation, to begin with, has pointed out that the Owners filed the first suit in 1977 almost on identical grounds but lost it. According to Shri Pagare, whatever the issues raised in the previous suit stood judicially determined against the Owners. Therefore, it does not lie in their mouth to contend, within no time, that once again there is a default on the Corporation's part and that they needed the land for their bona fide requirement.


11. To elaborate, Shri Pagare has contended that on 3.5.1977, the Owners issued a notice, alleging that the Corporation did not pay rent from 1.4.1973 to 30.4.1977. But on trial, both the Courts below concurrently held that there was no default. Even on the count of bona fide requirement, the Owners could not succeed. He has also pointed out that against the concurrent findings in the first round, the Owners filed Writ petition No. 4985 of 1986 but without success.


12. Coming to the present judicial proceedings, the learned Standing Counsel points out that the Owners' writ petition in the earlier round was dismissed on 09.02.1998. Thereafter, on 1.5.1998, the Owners sent another notice, again, complaining that there was default in payment of rent and that they wanted the property for their bona fide use.


13. Shri Pagare contends that the Corporation continued to pay the rent pending the appeal in the earlier round. So once that period in the first round of litigation is excluded, there was hardly any scope for the Corporation's default. Thus, the learned Standing Counsel has strenuously contended that the first issue on the rent default ought to have been held in the Corporation's favour.


14. On the issue of the bona fide requirement, Shri Pagare has contended that both the Courts below have wrongly invoked Section 13(1)(g) instead of Section 13(1)(i) of the Bombay Rent Act. Therefore, once the Courts below have applied a wrong standard to determine the alleged bona fide requirement, the judgment stands vitiated.


15. To support his contentions, Shri Pagare has relied on Vasant Bandoo Kulkarni v. Yasin Ahmed Mujawar [MANU/MH/0390/1998 : 1998 (4) Bom. CR 455], Bharat Petroleum Corporation Ltd., v. Anil Noel Rodrigues [MANU/MH/0865/2004 : 2005 (2) Bom CR 672], Smt. Surajbai Kevalchand Dhadiwal v. Sadashiv Sawalaram Gaikwad [MANU/MH/1687/2009 : 2010 (2) RCR 319], Shri Bhaskar Bhagwant Shinde v. Vasudha Madhukar Kadam [MANU/MH/0432/2005 : 2005 (4) Bom CR 532], and Waman Deoram Sonawane v. Shri Ganesh Mandir [MANU/MH/0471/1983 : (1984) Bom LR 40].


(b) The Firm:


16. Shri Shriram S. Kulkarni, the learned counsel for the Firm, has first drawn my attention to, what he calls, the subsequent developments. Thus, on the question of the later developments, he has submitted that pending appeal, in 2009 a statutory development took place. The Government brought out a regulation and enforced a policy decision: properties being used as fuel retail-outlets should not be permitted to have any change of user. Then, in tune with that policy, even BMC has issued statutory directions. This measure, Shri Kulkarni stresses, is under Section 154 (1), read with Section 37 (1), of the Maharashtra Regional and Town Planning Act, 1966.


17. To elaborate, Shri Kulkarni has contended that now, in view of the statutory change, the whole edifice of bona fide requirement the Owners have set up must collapse. Once the Owners are not going to get any permission to raise structures over the leased land--as the change of user is impermissible--their plea of bona fide requirement must fail. Yet the lower appellate Court, according to Shri Kulkarni, ignored this vital development, though it had been pointed out.


18. About the additional properties, Shri Kulkarni has contended that the owners have suppressed very vital information about their owning various other properties. To establish this allegation, he has taken me through the Owners' evidence during the trial. According to him, though the Owners suppressed the information in their pleadings, one of the Owners in the cross-examination has revealed the truth. That is, as Shri Kulkarni contends, PW-1 has admitted that in the same vicinity the owners have a vacant plot: Plot No. 5. So they could as well use that piece of property for any purpose of their choice.


19. About the Owners' alleged need to provide business to two of their sons, Shri Kulkarni contends that in the cross-examination, the witness did admit that the Owners hold properties in their own names and those properties are part of their business empire. In other words, those two sons have already been in business.


20. About the misplaced statutory preferences, Shri Kulkarni contends that the leased property is a vacant land. So only Section 13 (1) (i) of the Bombay Rent Act applies, but the courts below have misapplied Section 13 (1) (g) of the Act. According to him, this has resulted in miscarriage of justice.


21. About the arrears of rent, Shri Kulkarni has advanced, if I may say so, an innovative argument. Preparatorily, he first took me through the statutory changes pending this case. The unamended Section 12 of the Bombay Rent Act held the field until 1986. In that year, it underwent an amendment. The amended provision lasted till 1996, when that Act was repealed. Thus, in 1996 the Maharashtra Rent Control Act came into force. From then on, Section 15 of the New Act has been holding the field.


22. In this context, Shri Kulkarni submits that under the amended Section 12 of the Bombay Rent Act, the tenant must have paid the arrears of rent and continued to pay the rent pending the suit proceedings. Once he defaults even pending the eviction proceedings at any stage, the landlord gets a cause of action to evict the tenant. But if he does not press that cause into action; later, on the same cause of action, in an independent proceeding the landlord cannot seek the tenant's eviction. It must be based, here, on the default committed only after the first-round eviction proceedings have concluded.


23. So, Shri Kulkarni contends that the Corporation's alleged default when the first round of litigation was pending cannot be made a ground in the next round of litigation. Eventually, Shri Kulkarni has contended that the very suit is not maintainable. According to him, the defendants in the suit did take this plea but to no avail. To support his contention, he has drawn my attention to para 3A of the written statement. He has relied on Bharat Petroleum Corporation Ltd., v. Cricket Club of India Ltd[1].


(c) Respondents-Owners:


24. In response, Shri V.A. Thorat, the learned Senior Counsel, instructed by Shri M.M. Sathaye, has straightaway drawn my attention to the table which has been exhibited at Exh.-'K', which has been relied on by the Courts below. It is quite clear that the Corporation has repeatedly defaulted on its paying the rent. Shri Thorat has submitted that pending the Suit and the Appeal, the Corporation was regular. And thereafter after disposal of the appeal by the Appellate Court and the next round of litigation in O.S. No. 149 of 1998, again there had been many instances of default.


25. About the alleged invocation of the wrong provision to determine the bona fide requirement, Shri Thorat initially submits that the argument is innovative but could not sustain the legal scrutiny. To elaborate, he has submitted that Section 13(1)(g), in fact, provides better statutory protection to the tenant. If at all the Courts below have invoked that provision, it would have gone only in the Corporation's favour. According to the learned Senior Counsel, under Section 13(1)(i), the bona fide requirement is not a ground to be established; once there is plea about the landlord's requiring the property for constructing, the mere statement will suffice. In other words, the landlord's intention to construct is established, there is no extra element of the court's considering the comparative hardship.


26. In the end, the learned Senior Counsel has submitted that the trial Court has framed issues both under Section 13(1)(g) and13(1)(i) and has answered them in the Owner's favour. Thus, according to him, the Corporation's contention that one provision was invoked instead of another is an idle contention taking them nowhere. Thus, Shri Thorat has urged this Court not to interfere with the concurrent findings especially by exercising its revisional jurisdiction under Section 115 of CPC. He has also pointed out that this argument about the Courts invoking Section 13(1)(i) instead of Section 13(1)(g) has not been raised earlier. He has relied on Tulshiram Bhumayya Shriram v. Akbarkhan Mujafarkhan [MANU/MH/1080/2003 : 2004 (3) ALL MR 279].


IV. Discussion:


27. There are two Civil Revision Applications before us; they both were filed by the two sets of unsuccessful defendants who suffered concurrent findings. One applicant is the Corporation, a public sector undertaking, and the second one is said to be its subtenant. It is a partnership firm, though the nomenclature carries the title "Company". Here it is, along with its partners, referred to as "Firm" for narrative purposes. In CRA No. 562 of 2018, the Corporation is the applicant; respondents 1, 1A to 1F, 2, 2A to 2D, 3, 4, and 4A to 4D are the original plaintiff-owners. Respondent 5 is the partnership firm and respondents 6 and 7 are its partners. The applicant and respondents 5 to 7 have no conflict of interest; rather they have a common cause.


28. In CRA No. 561 of 2018, the Firm and its two partners are the applicants. The rest of the parties, including the Corporation, are the respondents. The Firm traces its rights through the Corporation, the original tenant. For this reason, it seems, the Firm has neither filed any written statement nor led any evidence. It hitches its fortunes to the Corporation. So, we will consider the case in the perspective of the Corporation. And, ironically, the Firm has led the longest argument sans pleadings or evidence, though. Besides the Corporation's pleas, I will consider the Firm's assertions only on questions of law, if any. But before we undertake any discussion, we should set the adjudicatory bounds for we are in a revision under Section 115 of CPC.


(a) The Scope of High Court's Revisional Jurisdiction:


29. In Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar [MANU/SC/0480/1980 : (1980) 4 SCC 259], the Supreme Court has considered Tamil Nadu's rent control legislation. It has the same statutory framework as Maharashtra has. After distinguishing the appellate and revisional jurisdictions, Raja Lakshmi Dyeing Works has held that the conferment of revisional jurisdiction is generally for keeping tribunals subordinate to the revisional court within the bounds of their authority and for making them act according to law, the procedure established by law, and the well-defined principles of justice. As with revision, Raja Lakshmi Dyeing Works further elaborates that whatever powers the revisional authority may have, it has no power to reassess and reappreciate the evidence unless the statute expressly confers on it that power.


30. In Lachhman Dass v. Santokh Singh [MANU/SC/2214/1995 : (1995) 4 SCC 201], the Supreme Court has examined the scope of revision under the Haryana Urban (Control) of Rent and Eviction) Act, 1973. It has noted that the Act has not provided a second appeal against the order passed in appeal by the appellate authority under the Act. Thus, the Legislature has provided for a single appeal against the order passed by the Rent Controlling Authority. Indeed, Haryana Rent Control Act has provided for a statutory revision to the High Court.


31. In that backdrop of statutory revision, Lachhman Dass has explained what would amount to impropriety and illegality:


"from the use of the expression "Legality or propriety of such order or proceedings" occurring in Sub-section (6) of Section 15 of the Act, it appears that no doubt the revisional power of the High Court under the Act is wider than the power under Section 115 of the Code of Civil Procedure which is confined to jurisdiction, but it is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at without recording a finding that such conclusions are perverse or based on no evidence or based on a superficial and perfunctory approach. If the High Court proceeds to interfere with such concurrent findings of fact ignoring the aforementioned well-recognised principles, it would amount to equating the revisional powers of the High Court as powers of a regular appeal frustrating the fine distinction between an appeal and a revision.


(italics supplied)


32. Pertinently, Lachhman Dass has held that the scope of statutory revision is wider that the one under Section 115 of CPC, which, according to it, is "confined to jurisdiction." That said, it has further noted that even that statutory revision "is also not so wide as to embrace within its fold all the attributes and characteristics of an appeal and disturb a concurrent finding of fact properly arrived at."


33. Again, drawing parallels--rather emphasizing the differences--between a revision and an appeal, the Supreme Court in Manick Chandra Nandy v. Debdas Nandy [MANU/SC/0285/1985 : (1986) 1 SCC 512] has held that in the exercise of its revisional jurisdiction, the High Court is not entitled to re-examine or re-assess the evidence on record and substitute its own findings on facts for those of the subordinate court.


34. In Gurbachan Singh v. Saliabi alias Bibijan [1995 Supp (4) SCC 438], the Supreme Court has held that bona fide requirement is a question of fact. So is comparative hardship. These questions have to be decided on the basis of evidence on record. Appreciation of evidence is not the task of the High Court in exercise of its revisional power. Then, on the facts of that case, Gurbachan Singh has held that the High Court was wrong in reappreciating the evidence and reversing the conclusions concurrently reached by the courts below.


35. Once the High Court has agreed with the findings given by the courts below, it is not necessary for it, according to Asram Motors v. Bina Kumari [1995 SUPP (4) SCC 679], to go into details of the correctness of the findings of fact, act as a second court of first appeal, and set down in the judgment detailed reasons for agreeing with those findings.


(b) Back to Brass tacks:


36. The facts are not in dispute. Beginning in 1977, the Owners sued the Corporation for ejectment. In that first round, they lost up to this Court. This Court dismissed their WP No. 4985 of 1986 on 9th February 1998. Soon thereafter, on 1st May 1998, in three months, the Owners sent a fresh notice for possession. That notice has led to the second round of eviction proceedings.


37. The tenancy began in 1965, and the rent was Rs. 300/-. In RCS No. 149/98(J)--that is, in the second ejectment suit--the Owners pleaded that their first effort for eviction was 25 years ago. In the meanwhile, many changes occurred; their family expanded and its needs for space, too, increased. So, they wanted the suit property back for their bona fide need. The family is said to consist 32 members.


38. Besides, the Owners maintained that the Corporation defaulted on paying the rent. According to them, by the time they sent the quit notice, the Corporation owed them Rs. 43,500/- as rent arrears, besides Rs. 10,690/- as N.A. Taxes. Thus, the eviction was on the grounds of bona fide requirement and rent default.


(c) Trial Court:


39. The trial Court framed 11 issues and answered them: (1) wilful default of rent payment: yes; (2) N.A. Tax liability: no; (3) reasonable and bona fide requirement: yes; (4) suit property was required for erecting a new building: yes; (5) greater hardship to the owners: yes; (6) misjoinder: no; (7) owners entitled to possession: yes; (8) recovery of rent arrears and damages: yes; (9) N.A. Tax reimbursement: no; (10) permanent illegal structures: yes; (11) change of use: yes.


(d) The Appellate Court:


40. The Corporation and the Firm filed RCA No. 237 of 2005 and RCA No. 234 of 2005, respectively. The Appellate Court rendered a common judgment. It was on 11th December 2013. The Appellate Court has formulated eight points and answered them:




41. In these CRAs, the parties have focussed on the issues of wilful default on rent payment and bona fide requirement, with all their concomitant concerns. Keeping in view the scope of revision vis-à-vis the concurrent findings, first, we will take up the question whether the Corporation has defaulted on paying the rent regularly. Indeed, it is a question of fact. And that is out of adjudicatory bounds, so to speak. Yet, we will examine the issue in the perspective of perversity or lack of evidence.


(e) Arrears of Rent:


42. To begin with, the issue of rent arrears has two aspects: the default before the ejectment suit was filed and the default pending that ejectment suit. In this regard, the Corporation has relied on Waman Deoram Sonawane. In that case, the decree was solely based on the tenant's default in paying the education cess. This Court considered Section 12 of Bombay Rent Act before its amendment in 1987 and has held that the landlord could take advantage of Section 12(3)(b) of the Act even when strictly Section 12(3)(a) of the Act was unavailable for him. I am afraid Waman Deoram Sonawane does not help the Corporation, for both the facts and the law, as it was existing then, were different.


(f) The Scope of Section 12 of the Bombay Rent Act:


43. Section 12 is couched in a negative command: the owner cannot press the cause of default of rent payment if the tenant "pays or is ready and willing to pay" the standard rent and permitted increases. That is what sub-section (1) declares. Once the owner issues quit notice to the tenant on the grounds of nonpayment of rent, he cannot sue the tenant "until the expiration of one month next after notice." This is the first tier of protection for the tenant.


44. Under sub-section (3) of Section 12, on the first day of hearing of the suit or by the date as the Court may fix, if the tenant pays in Court the standard rent and permitted increases together with simple interest at nine per cent per annum, he avoids eviction. But it is subject to another condition: Pending the suit too, the tenant should continue to pay regularly the standard rent and permitted increases till the suit is finally decided.


45. This payment does not depend on the outcome of the ejectment suit. Here, the Corporation had the twin obligation: it should have, first, paid the rent when RCS No. 754/77 was pending. That is, until 1998 when the proceedings under that suit culminated before this Court in a writ petition. Second, it should have continued to pay the rent and permitted increases when RCS No. 149 of 1998, the second suit, has been pending. That is, until now and, perhaps, beyond.


46. About its obligation to pay rent when the proceedings arising out of RCS No. 754/77 were pending, the Corporation did not deny that there were arrears. But it asserts, even in its written arguments, that till "the dismissal of the earlier round of litigation through Writ Petition in 1998, and since the claim for arrears of rent was not pressed then, the claim for the same period cannot survive in the present round of litigation."


47. So, unquestionably the Corporation admits that it owed rent dues to the Owners when the first round of litigation was pending. But it only asserts that Owners cannot treat that as default in the present suit based on a different cause of action. Is it so?


(g) Rent and Recurring Cause of Action:


48. The Corporation and the Firm maintain that the Owner's claim has been barred by res judicata. I reckon what applies, if ever, here is Order 2, Rule 2 of CPC. And the provision reads:


2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court.


(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.


(3) Omission to sue for one of several reliefs.--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.


49. The illustration exemplifies what amounts to relinquishment of part of claim. A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. He shall not afterwards sue B for the rent due for 1905 or 1907.


50. That is, the suit was in 1908. A's cause of action got crystalised on the date of his filing the suit. His right was to recover the rent arrears accumulated by then--for 1905, 1906, and 1907. The cause for his action was the B's default. The default was up to the date of his going to the Court, until the end of 1907. In the illustration, by the time A filed the suit, the rent for 1906 and 1907 was also due. Yet A did not seek to recover what he had been entitled to by then. The rent for 1906 and 1907, I may stress, was not the rent accumulated pending the suit.


51. In other words, A's suit in 1908 must have included the whole claim which A was entitled to make by then. But A sued for the rent of only 1906. In that suit, as A did not seek the rent for 1905 and 1907, it amounted to his relinquishing that portion of the claim. Law treats that as an intentional relinquishment. So, he shall not afterwards sue for that relinquished or omitted portion. The reckoning point, I must say, is the date of suit filing.


52. Looked from another angle, in the illustration, we may note that the suit was filed in 1908, but the rent for that year was not included because it was not due by then. That means a future arrear cannot provide cause of action. What should happen to the rent of 1908?


53. We cannot presume that a suit gets decided there and then. It runs its course; in the meanwhile, many years may pass. Let us assume that the case in the illustration took six years to conclude, after running its course through appellate and revisional channels. So it ended in 1914. If we accept the Corporation's argument, then every year or at least intermittently the owner should have amended his pleadings and kept adding the rent for the years passing by until the suit ended. This method adopted, the court fee gets paid whenever there is an amendment and, eventually, the arrears adding up, even the pecuniary jurisdiction may change. So halfway through the trial Court should abandon the case and transmit it to another court. A chimerical concept of procedural law. On the contrary, once the cause of action crystallizes and issues are struck, the parties go to the trial on that basis. Thus, for adjudicatory purposes, the cause of action stands frozen.


54. True, subsequent events may affect the suit outcome. For that, either party to the suit should bring to the court's notice those later developments. For that even the amended Order 6, Rule 17 of CPC provides. Otherwise, the court itself, in the interest of justice and to avoid multiplicity of proceedings, may take note of those developments. But law does not compel a person to invariably bring on record all the later developments through amendment. If the later developments provide an independent cause of action, the party's right to a fresh legal remedy remains intact. This proposition applies with more rigour if the cause of action is recurring.


55. Indeed, default in rent remittance provides recurring cause of action. Every successive default provides an independent cause of action. Later developments may affect that cause of action if they are duly brought on record; otherwise, they provide further independent cause of action. Even the doctrine of lis pendens does not defeat the suitor's independent right to sue. It is only a matter of prudence and convenience that all the related facts are brought under one umbrella of adjudication. More particularly, if the cause of action is recurring, each instance of recurrence provides an independent cause of action. Here, the first suit--RCS No. 754 of 1977--concerns the rent from 1.4.1973 to 30.4.1977. The second suit--RCS No. 149 of 1998--concerns the later period.


56. I, therefore, conclude that the Owners have not lost their right to sue the Corporation and the Firm merely because the default occurred when another suit was pending. Pithily put, if there is no completed cause of action, there is no right for the party to sue. If the completed cause of action has many aspects or facets, but the party sues only on a few, the rest remain relinquished or abandoned. But on a completed cause of action if a party sues and pending those proceedings, there is, temporally speaking, recurrence of the same cause of action, it provides an independent cause of action. All these rights to sue are subject to one obvious limitation: The Statute of Limitation.


(h) Default Pending the Present Ejectment Proceedings:


57. With the doctrine of merger in play, the trial Court's judgment no longer exists. But its reasoning, accepted by the Appellate Court, commends attention. In paras 10 and 11, the trial Court examined the material on record and concluded that the Corporation committed default pending the present ejectment proceedings, too. It is a question of fact and a matter of record. And the Appellate Court, in considering the first point, has affirmed it. Thus, it stands concluded that the Corporation has committed default both before the Owner could file the suit and pending the suit, as well.


58. In Bhaskar Bhagwant, the respondent-owner sued the petitioner-tenant for eviction, on the grounds of default in payment of rent, bona fide, and so on. The petitioner-tenant contended that he had been paying the rent regularly. Earlier, in another suit for the same relief, he claimed to have deposited the rent up to date. Later, when the petitioner received the quit notice, he sent a demand draft for some more amount, with the reply notice. In the suit that followed, the petitioner asserted that he had deposited the entire rent.


59. With the above assertions, the petitioner, as the applicants did here, contended that the suit was barred by res judicata because of the previous suit. In fact, Bhaskar Bhagwant examined the unamended Section 12 of the Bombay Rent Act. Before amendment in 1987, Section 12 contained two sub-clauses in Sub-section (3). They provided for three contingencies. According to Bhaskar Bhagwant, in all the three contingencies, if the tenant did not pay or deposit in Court the arrears of rent in one month from the date of service of notice of demand or did not raise any dispute of standard rent in one month of service of notice of demand, by filing application under Section 11, the court must pass a decree for eviction.


60. Eventually, Bhaskar Bhagwant has held that a tenant who does not avail himself of benefit under Section 12(3) cannot get that benefit at the appellate stage by contending that appeal is continuation of a suit. Nor can the tenant, conversely, stop depositing arrears in the Appellate Court by contending that he was obliged to pay arrears only in the trial Court. Then, Bhaskar Bhagwant has stressed that the tenant cannot be heard saying that for his default in paying the rent pending the ejectment suit, the landlord should file a fresh suit. "The tenant would in effect be contending that the Appellate Court is powerless to deal with such a tenant. Such can never be the intention of the legislature." No Supreme Court decision has even remotely suggested that defaulting tenants should be allowed to misuse Section 12(3). That said, I may add, under any circumstance, if the landlord brings a fresh suit, there is no bar, either.


61. In Tulshiram Bhumayya Shriram, the respondent sued the appellants for eviction. The eviction was on the grounds of bona fide requirement and rents default. The appellants pleaded that they had sent the rent through money orders. And they produced copies of those money orders. On evidence, the trial Court noticed that the remittance was five months after the quit notice. When the matter reached this Court, it has held that "merely bringing on record money order coupons, along with the amount covered by each such coupon was not sufficient. It was necessary [for the appellants] to bring on record the period for which the said amount was supposed to be the rent, the date on which it was offered to the landlords by the postman and their refusal, as claimed by the tenants." But nothing to this effect was brought on record.


62. In this context, this Court has held that under Section 12(3) of the Bombay Rent Act, after receiving notice, the course available to the tenants was to invoke Section 11(3) of the Act for fixation of standard rent or to apply under Section 11(1) before the notice was received. None of these actions were resorted to. Even for depositing the rent amount in the court, if the tenant so wanted, he should move a petition so that the court could fix a date for deposit. But merely the tenant's depositing the rental amount suo motu would not suffice for the court to hold that the obligation for payment of rent was duly discharged.


63. Here, the Courts below have concurrently held that the Corporation has failed to discharge its burden. The material it has placed before the Court could not clinch the issue that it has paid the rent regularly. So, on a question of fact--whether the rent remittance has been regular--this Court has refused to re-appreciate evidence and upset the concurrent findings.


(i) Bona fide Requirement:


64. The precedential weight is unmistakable. Reasonable and bona fide requirement is a question of fact, as the Supreme Court has held in Gurbachan Singh. But, for the first time, the Corporation and the Firm have raised a question of law here: If the leased property is an open land, then the suit will be governed by Section 13(1)(i) and not Section 13(1)(g) of the Bombay Rent Act. According to them, the property, when let out, was open land. But the adjudication took place under Section 13 (1) (g) rather than Section 13 (1) (i) of the Act.


65. Let us examine Section 13 of the Bombay Rent Act. To the extent relevant, it reads:


Section 13 - When landlord may recover possession


(1) Notwithstanding anything contained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-


(a). ..


(b). ..


(c). ..


(d). ..


(e). ..


(f). ..


(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held [or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or]


(h). ..


(hh). ..


(hhh). ..


(i) that where the premises are land, such land is reasonably and bona fide required by the landlord for the erection of a new building; or


. ..


(2) No decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.


Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.


. ..


(3) The Court may pass the decree on the ground specified in clause (h) or (i) of sub section (1) only in respect of a part of the premises which in its opinion it is necessary to vacate for carrying out the work or repairs or erection.


. . .


(italics supplied)


66. True, Section 13 (1) (g) deals with leased property with structures and Section 13 (1) (i) with vacant land. The adjudicatory parameters for considering the eviction under Section 13 (1) (g) are set out in Section 13 (2) of the Act. That is, among other considerations, relative hardship, too, should be looked at.


67. On the other hand, as to requirements under Section 13 (1)(i), Section 13 (3) applies. If the trial Court is to pass a decree under Section 13 (1) (i) of the Act, it can be "only in respect of a part of the premises which in [the Court's] opinion it is necessary to vacate for carrying out the work or repairs or erection." Vasant Bandoo Kulkarni, in fact, reiterates this proposition.


68. In Anil Noel Rodrigues, first, a learned Single Judge of this Court felt that there was a conflict of decisions between two coequal Benches on the interpretation of Sections 13(1)(i) and 13(1)(g), read with section 13(2) of the Bombay Rent Act. So the matter reached a Division Bench.


69. According to Anil Noel Rodrigues, it is a settled principle of statutory interpretation that the Court cannot interpret the section in a manner that would deny the relief which the Legislature clearly intended to give to the party concerned. In the end, it has held that "the requirement of proving comparative hardship has to be complied [with] in cases under section 13(1)(g) and not in cases falling under section 13(1)(i). If the Legislature had intended that even in cases falling under section 13(1)(i), comparative hardship was required to be examined by the Court, it would certainly have added clause 13(1)(i) in clause 13(2)."


70. In Surajbai, after the suit plot was let out, the tenant built a structure on it. After the original tenant's death, the owner sued the tenant's successors for eviction. He invoked Section 13(1)(i) of the Bombay Rent Act. The owner wanted the suit plot for erecting a new building. The suit was decreed by the trial Court, but that decree was reversed in Appeal. Later, the owner obtained building permission, terminated the lease and filed a fresh suit.


71. The second suit, filed under Section 13(1)(i) of the Bombay Rent Act, was on the same grounds of eviction. The suit was dismissed. In appeal, it was reversed; eviction ordered. Taken before this Court in a writ petition, the case presented two questions: Does the case fall under section 13(1)(g) of the Bombay Rent Act? If so, are the issues of hardship and bona fide need as required under Section 13(2) must be considered? After considering a catena of case law, Surajbai has held that even in a suit invoking section 13(1)(i) of the Bombay Rent Act, the landlord has to prove his bona fide and reasonable requirement.


72. Here, in the case before us, the leased property is vacant land. But the Courts below have spoken about comparative hardship. So the Corporation and Firm maintain that the adjudication was under Section 13 (1) (g) rather than Section 13 (1) (i). According to them, as wrong standards have been applied, the decree stands vitiated. This plea was raised for the first time--in the revision. But, I reckon, it is a question of law. Let us consider it.


73. First, both Sections 13 (1) (g) and (i) are substantive provisions; they are not procedural provisions. Second, Sections 13 (2) and (3) have fixed the adjudicatory parameters: what aspects should be considered when the leased property is with structures or is vacant. The Appellate Court as well as the trial Court have considered the Owner's reasonable, bona fide need elaborately. They have concluded that the Owners needed the whole extent for their personal use--to cater to the increasing needs of their growing family. In addition, the Courts have also considered the relative hardship. Perhaps, that consideration of relative hardship may be extraneous or unnecessary. But it does not vitiate the outcome. It proves fatal if something essential has not been considered; it only proves redundant if something extraneous is considered, besides the essential having already been considered. As rightly contended by the Owners, the Courts put heavier onus on them; they were asked to meet an extra criterion--the comparative hardship--which is not required under Section 13 (1) (i). If at all anyone has been prejudiced, it must be the Owners not the Corporation.


(j) Prohibition on the Change of User:


74. About the State Government's directions issued on 03.12.2009 and consequential regulatory orders passed by the Municipal Corporations concerned, the Courts below have held that those directions came much later, and after the decree was passed, at that. They have also opined that the Corporation could not prove that those directions apply to Nashik.


75. At any rate, on the issue about the restrictions on the change of use, this Court has ruled in Cricket Club of India Ltd. In that case, the respondent leased the suit property in March 1943 to the applicant's predecessor, for running a filling station. In December 2000, after the original tenant's death, the respondent issued quit notice under Section 106 of the Transfer of Property Act to the applicant. Later, he sued the applicant for eviction. He filed the suit under Section 41 of the Presidency Small Causes Court Act, 1882. On contest, the Small Cause Court decreed the suit. In appeal, it was confirmed.


76. The applicant took the matter to this Court as a Civil Revision Application. The applicant brought to this Court's notice a statutory change: Under Section 154 of the Maharashtra Regional and Town Planning Act, 1966, the State Government directed the Municipal Corporations in the State not to permit the change of use of the properties being used as fuel filling stations. So the applicant contended that even if the respondent recovered the leased property, he could not use it for any purposes other than for setting up a filling station. According to the applicant, this subsequent material change goes to the root of the matter.


77. This Court, then, has held that the respondent's effort to evict the applicant are legal, and "there is no challenge on that aspect." In the absence of any protection under the Maharashtra Rent Control Act, the decree for possession must follow. On the issue of change of use, it has held that "the direction issued by the State Government will not affect the merits of the decree for eviction. The result of the said direction is that as and when the Respondent seeks permission to redevelop the suit property in question, the Mumbai Municipal Corporation will not be entitled to permit change of present user of the property." But it has nothing to do with the decree for eviction.


(k) The Material Admissions:


78. On the alleged material admissions said to have been overlooked by the Courts below, I may note that I find no admission on the Owners' part that could have non-suited them. The Courts below have considered the evidence threadbare and returned relevant findings. That apart, the Supreme Court in Raja Lakshmi Dyeing Works, Lachhman Dass, and Gurbachan Singh has held that in a revision the High Court cannot reappreciate evidence. I reckon it is more particularly so in the face of concurrent findings of fact. Besides, about the bona fide requirement, this Court Tulshiram Bhumayya Shriram has held that it is the landlord who has to decide, as is well established, regarding the availability of the accommodation, the type of accommodation, and the convenience of his family members when he seeks to regain the possession of the rented premises. And it is not the tenants who could dictate the terms.


V. Conclusion:


Looked from any perspective, the Corporation and the Firm have failed to sustain their revisions on the merits. So I dismiss both the CRAs.


No order on costs.


1decided on 5th October 2010


 

Print Page

No comments:

Post a comment