Whether application before corporation court is maintainable if landlord has remedy before rent court?

   The next contention urged on behalf of the petitioners is that the learned Chief Judge had no jurisdiction to entertain the applications under Section 507 as the owners had a special remedy under the special statute, viz., the Bombay Rents. Hotel and Lodging House Rates Control Act. 1947 for recovering possession of the premises in the possession of the tenants if the Court under that Act is satisfied under Section 13(1)(hhh) that the premises are required for the immediate purpose of demolition ordered by any local authority or other competent authority. Apart from authority, in our opinion, the contention must be rejected, because it is only in respect of suits or proceedings between landlords and tenants relating to recovery of rent or possession of any premises to which Bombay Rent Act applied and in respect of applications made under that Act or any claim or question arising out of the Act or any of its provisions that the jurisdiction of other Courts is excluded under Section 28 of the Bombay Rent Act. The application made by the owners under Section 507 of the Bombay Municipal Corporation Act does not fall under any of the categories of suits or proceedings referred to in Section 28(1) of the Bombay Rent Act. It cannot be said that an application under Section 507 relates to the recovery of possession of the premises because Section 507 empowers the Chief Judge to make a written order “requiring the occupier of the building or land to afford all reasonable facilities to the owner for complying with the notice”. Section 507 is not concerned with the termination of the tenancy or recovery of the possession of the premises but only with providing reasonable facilities to the owner to comply with a notice issued to him under the provisions of the Bombay Municipal Corporation Act. Such a question cannot be said to be a claim or question arising out of the Bombay Rent Act or any of its provisions. The tenancy is not terminated before or by making an application under Section 507. Section 507 enables the owner to get an order from the Chief Judge directing the occupants to give reasonable facilities and merely states that if the occupiers fail to afford the facilities after 8 days from the date of the order the owner shall be discharged, during the continuance of such refusal, from any liability which he would otherwise incur by reason of his failure to comply with the said provision or requisition. It is true that the consequence of the refusal is that the occupants made themselves liable to be prosecuted under Section 471, as stated above. But this is not a question or claim arising out of any provisions of the Bombay Rent Act and we find nothing conflicting between Section 13(1)(hhh) and Section 28 of the Bombay Rent Act and Section 507 of the Bombay Municipal Corporation Act from which we could infer an implied repeal of Section 354 of the Bombay Municipal Corporation Act. On the contrary, having regard to the nature and purpose of these provisions, it is clear that these sections can exist together and the applications made by the owners under Section 507 were maintainable notwithstanding Section 28 of the Bombay Rent Act. {Para 29}

 Bombay High Court

(Before K.K. Desai and Vaidya, JJ.)

Diwanchand Gupta  Vs N.M. Shah 

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Whether court can treat conducting agreement as a leave and license agreement if the word rent is used in said agreement?

 In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to  note that the extension of the contract was on same conditions. {Para 16}

17. On consideration of the matter, the High Court erred in

appreciating the ambit of Section 95, which led to consideration of

evidence which only indicates breach rather than ambiguity in the

language of contract. The evidence also points that the license was

created for continuation of existing business, rather than

license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term ‘rent received’. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law.

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10827 of 2010

Mangala Waman Karandikar (D) TR. LRS. Vs  Prakash Damodar Ranade 

N.V. RAMANA, CJI

Dated:  MAY 07, 2021

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Whether the right of the landlord to get rent accrued during the pendency of the first suit will be barred by res judicata if the landlord fails to claim said rent by amending plaint?

 (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.

 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.

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How to ascertain standard rent of tenanted premises?

10.1. So far the determination of standard rent is concerned, there are two main methods of determining the same, namely the theory of comparables and secondly the investment theory. In the first theory, the exercise can be carried out by comparing the premises in question with the other similarly situated premises in the locality of which the rent is already fixed. Ofcourse while making the exercise of comparison the following factors can be kept in view :-

(a) Premises should more or less be similarly situated in the same locality with the same user,

(b) Relevant period of letting of the comparable premises.

(c) Whether the rents of the comparable premises are fair and reasonable or on the low side due to a number of extraneous circumstances.

(d) the amenities and facilities provided in such building.

By carrying out such exercise the standard rent of the concerned property can be fixed without much difficulty. So far the other method is concerned, it would depend on provisions meant for fixing the standard rent as contained in section 11 of the Bombay Rent Act and also the guidelines laid down by the Apex Court in the case of Dr. Balbir Singh (supra). This again will be subject to the outgoings in the nature of maintenance expenses, expenses for having basic facilities such as making provision for water, the municipal taxes, the required annual repairs, insurance, etc., which may be required to be taken into account even after deduction of sum equal to ten percent towards the allowance for repairs, etc. as envisaged under sub-rule (3) of rule 7 of the Rules. However, as stated earlier the theory of comparables can be adopted provided there is no considerable disparity between the premises. At this juncture more recent decision rendered in the case of Lt. Col. P.R. Chaudhary (Retired) v/s. Municipal Corporation of Delhi reported in MANU/SC/0315/2000by the Apex Court is required to be seen. These observations are vis-a-vis method of fixing the standard rent and they are helpful in determining the Gross Rateable Value in the case of hypothetical tenant. It has dealt with the disparity that may prevail between two premises of same kind because of the disadvantage and it has also pointed out that even in the cases where there is comparison between two buildings one being old and other being newly constructed, there would be great disparity on account of the rising cost of construction, the land prices, etc. and in that case such comparison would be irrational and illogical and, therefore, the factors regarding the increase in cost of construction, land prices, etc. will have to be kept in mind. It has observed as under :-

"Law as interpreted by the Supreme Court cannot be brushed aside by saying that it is not in conformity with statutory provisions. The law laid down by the Supreme Court is explicit and admits of no doubt. For the purpose of arriving at the rateable value the basic principle is the annual rent which the owner of the premises may reasonably expect to get if the premises were let out to a hypothetical tenant. It would depend on the size, situation, locality and condition of the premises and the amenities provided therein. All these and other relevant factors would have to be followed in determining the rateable value. That, however, cannot be in excess of the standard rent which would be the upper limit. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Decided On: 31.03.2003

 A'Bad Municipal Corporation Vs.  Dena Bank

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How the principle of apportionment is applicable to the fixation of standard rent of a premises under the Bombay Rents Act?

Apportionment or equal distribution of the burden of rent on every portion-is a rule of justice and good sense. If the standard rent of a whole was a specific amount, it stands to reason that the standard rent of a part or sub-division of that whole should not ordinarily exceed that amount. Therefore, if in the circumstances of a given case the Court feels that for securing the ends of justice and giving effect to the provisions and policy of the Act, it is reasonably necessary and feasible to work out the standard rent by apportionment, it can legitimately do so. This principle, however, is applicable where on the basic date, that portion of which the standard rent is to be determined, had not been let separately as on unit, but the whole, of which it is a part, had been let on that date. Apportionment postulates that on account of its having been let on the basic date, the whole had acquired a standard rent which has to be allocated to smaller units subsequently carved out of it.

30. It is thus clear that the principle of apportionment is not alien to the spirit of the Act, and has indeed been often invoked by the courts in fixing standard rent under this Act. In Narayanlal Bansilal's case (supra), a Division Bench of the Bombay High Court determined standard rent of another part of this very estate of the Mills in accordance with that principle.

31. However, while conceding that apportionment is not foreign to the scheme, purpose and policy of the Act, we will like to emphasise the need for caution and circumspection in invoking it. It is not to be rigidly and indiscriminately applied as a cast-iron rule of law regardless of time and circumstances or the equities of the case. A doctrinaire approach, not consistent with a just and fair determination, stultifies the whole salutary purpose of justice to both, the landlord and the tenant. If necessary, it can be adjusted, adapted and attuned in the light of the particular circumstances of the case, to satisfy the statutory requirement of fixing the standard rent as at a "just amount. Thus if after the material date, the landlord has made investments and improvements in the premises, it will be just and reasonable to take that factor also into account and to give him a fair return on such investments. Further, in apportioning the rent, the Court must consider other relevant circumstances, such as "size, accessibility, aspect, and other physical advantages" enjoyed by the tenant of the premises of which the standard rent is in question, as compared with those of the rent of the property in which it is comprised [see Bainbridge v. Contdon 1925 2 K.B. 261. Where after the basic date, the premises completely change their identity, apportionment as a method of determining just standard rent, loses its efficacy and may be abandoned altogether. We have only illustrated, not exhaustively enumerated the relevant circumstances and their implications.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1186-1188 of 1972

Decided On: 12.03.1974

Raja Bahadur Motilal Bombay Mills Ltd. Vs.  Govind Ram Brothers (P) Ltd.

Hon'ble Judges/Coram:

R.S. Sarkaria and V.R. Krishna Iyer, JJ.

Citations: AIR 1974 SC 1708, 1974 SCR (3) 577,MANU/SC/0395/1974

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When burden of proof is on sub tenant to prove date of sub tenancy?

38-A. Mr. Agarwal then contends that the onus of proving that the sub-tenancy had come into existence prior to 21-5-1959 was put wrongly upon defendant No. 3. I have my doubts as to whether it is open for Mr. Agarwal to urge that point at this stage. It may perhaps be possible for the plaintiffs to contend that defendant No. 3 had filed revision application to the Bench of two Judges against the order of the trial Court casting the onus upon defendant No. 3. There is nothing to show as to on what grounds the revision application was dismissed by the Bench. I am, however, prepared to assume in favour of Mr. Agarwal that the revision application was. rejected only on the ground that it was against an interlocutory order. I am even prepared to hold further that so far as this Court is concerned, the question about the onus is not res judicata. However, on the merits I find it very difficult to agree with Mr. Agarwal. To my mind the onus of proof as regards issue No. 16 was rightly put upon defendant No. 3. This is so firstly because under the Bombay Rent Act prohibition against sub-tenancy is the rule; whereas permission to sub-tenancy is only an exception carved out of the rule by Sub-section (2) of Section 15 as also by the contract to the contrary referred to in Sub-section (1) of Section 15. Defendant No. 3 is relying upon this exception and hence the circumstances which entitled him to avail of the exception must be proved by himself. This principle is analogous to the one contemplated by Section 105 of the Evidence Act.

39. Moreover, the provisions of Section 106 of the Evidence Act give rise to the same position. After all, the exact date of the sub-tenancy was a fact which could be within the exclusive knowledge of defendant No. 3 only. From the very nature of things that the plaintiff Trust could have no knowledge about the same, the onus of proving the date of the sub-tenancy must, therefore, lie upon defendant No. 3 only. Similar conclusion could be arrived at also by relying upon Section 102 of the Evidence Act. We find that in the instant case the parties have come out with the pleadings. The plaintiffs have alleged subletting by one in favour of defendant No. 3. Defendant No. 3 had admitted subletting, but has contended that the subletting was done before 2t-5-1959. Under the provisions of Section 102 of the Evidence Act, we shall have to apply the test regarding the onus by assuming that no evidence was led by either side. In the instant case if neither defendant No. 3 nor the plaintiffs led any evidence, defendant No. 3's case that sub-tenancy took place before 21-5-1959, therefore, could be deemed to have gone unproved. Moreover, it is defendant No. 3, who have been claiming a legal right regarding valid sub-tenancy in respect of the suit premises. That legal right can exist only if his sub-tenancy originated before 21-5-1959. It is, therefore, difficult to see as to how he could escape the onus of proving his legal right.

IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln. No. 537 of 1975 with C.R.A. No. 62 of 1975

Decided On: 14.01.1980

Zenna Sorabji Vs.  Mirabelle Hotel Co. (Pvt.) Ltd. 

Hon'ble Judges/Coram:

S.G. Manohar, J.

Citation: AIR 1981 Bombay 446

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Bom HC: Court cannot declare more than one person as tenant U/S 5 (11) (c) of Bombay Rent Act

 In Vimalabai Keshav Gokhale vs. Avinash Krishnaji

Binjewale & ors (supra) contention of the respondents therein that

section 5 (11) (c) of the Bombay Rent Act would enable each and

every member of the tenant’s family to claim an independent right

in respect of the tenancy was rejected and it was held that any

member would mean ‘any one member.’

40. In Smt.Parvatibai w/o Bandu Marathe vs Smt Radhabai

Chaggan Bhadarkar decd by her legal heirs (supra), a learned Single

Judge of this Court held that it is only one member of the family who

can be recognized as a tenant by the Court and not all members

residing in the premises at the time of demise of the original tenant.

41. In Shamkant Tukaram Naik vs Dayanabai Shamsan

Dighodkar (supra) a learned Single Judge of this Court held that the

words “ any member of the tenant’s family residing with the tenant at

the time of his death” as used in section 5(11)(c) would not enable

each and every member of the tenant’s family to claim an

independent right in the tenancy, in respect of the tenanted premises.

It was held that ‘any member’ would mean only “one member”.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Writ Petition No. 2371 OF 1997

Vasant Sadashiv Joshi.  Vs  Yeshwant Shankar Barve

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Bombay HC: Joint family of deceased tenant can not claim tenancy right in respect of tenanted premises

From a plain reading of section 5 (11) (c) (i) of the Act,

it is difficult to accept the contention as urged on behalf of the

petitioner/defendant no.2 that the provisions recognize that every

member of the joint family or the joint family itself becomes a tenant

for the purposes of the Bombay Rent Act. The introductory words of

section 5 (11) defining tenant are crystal clear when it describes a

“tenant” to mean “any person” by whom or whose account, rent is

payable and would include as defined in sub-clause (c) of subsection

5 (11) any member of the tenants family residing with the

tenant at the time of his death. Sub-clause (c) is required to be read

in conjunction with the preceding relevant sub-clauses namely sub

clauses (aa), (b) which also uses a similar phrase ‘any person’. Thus

a tenant necessary has to be any person as recognized by section

5(11) and not otherwise and certainly not a joint family as a unit.

The legislature has avoided to include any such incident to include a

joint family to be a tenant within the meaning of section 5(11).

33. In the present context, to interpret the phrase ‘any person’

as used in section 5 (11) of the Act to include any member of the

joint family as asserted by the petitioner/defendant no.2, would lead

to an absurdity. This more particularly contrary to the election as

exercised by the family of the deceased tenant Raghunath, in

choosing Achyut –defendant no.1 (Raghunath’s son) to succeed to

the tenancy. The absurdity would be two fold firstly it would amount

to reading something into the definition of tenant, (Section 5(11) (c)

(i)), what has been not provided for and/or excluded by the

legislature; secondly it would be contrary to the conduct of the

parties who wholeheartedly accepted, chose and elected that the

tenant for the suit premises after the death of Raghunath would be

defendant no 1–Achyut. Once this is a factually established position

on record the petitioner/ defendant no.2 was not permitted and/or

was estopped from taking a contrary stand.

34. In my opinion, such an assertion as made on behalf of

the petitioner/defendant No.2 would lead to another absurdity

namely, that it would create an insurmountable uncertainty for the

landlord in pursuing eviction proceedings against a tenant as

permissible in law. This for the reason that when a landlord grants

the premises on tenancy it is a contract of tenancy as entered with a

specific person (tenant). The landlord expects fulfillment of legal

obligations from the tenant. The law therefore does not envisage

that the landlord would be required to deal with all members of the

joint family, a situation as in the present case when on the death of

the original tenant he is replaced by another named member of a

family. Hence, if such an argument by the petitioner/defendant no.2

to recognize him as a tenant, is accepted the landlord would never

obtain an eviction of a tenant as may be permissible to him in law as

every successive member of the tenant’s family would start claiming

legal rights and protection under the provisions of the Bombay Rent

Act. Such can never be the object and intention of this rent

legislation.

35. In the present case, the intention and conduct on the

part of the defendants, in my opinion was quite clear namely to

permit defendant no.1-Achyut to inherit tenancy after the death of

the original tenant his father–Raghunath. The rent receipts were

accordingly issued in favour of Achyut on the death of Raghunath.

Certainly, on two occasions namely when the original tenant-

Raghunath expired in the year 1971, and secondly when in 1979

defendant no.1-Achyut moved out of the suit premises, it was

available to the father of defendant no.2 Sadashiv to assert a position

that he had become the lawful tenant of the plaintiff’s landlords.

Sadashiv however, chose not to assert any such right. He throughout

accepted the defendant no.1- Achyut to be the tenant since the year

1971 that is from the death of his father Raghunath. Resultantly, it

was no defence for defendant no.2 to assert that he would be now

the lawful tenant having independent rights merely because his

father Sadashiv was a member of Raghunath’s joint family. It needs to

be observed that there is no legal foundation to the assertion of the

petitioner/defendant no. 2 referring to section 5(11) (c) in as much

as this provision is attracted only when a tenant dies. In the present

case defendant no.1 –Achyut who was accepted to be the tenant by

the petitioner/ defendant no.2 is surviving and has moved out of the

suit premises. In this situation it is difficult to comprehend, as to how

section 5(11) (c) can be pressed into service by the petitioner, to

assert any legal right to be a tenant .

36. The inevitable consequence in law on defendant no.1-

Achyut , (the tenant) moving out of the suit premises, brought

about a situation that defendant no.2-Vasant could not have asserted

any legal rights as a tenant, so as to contest the eviction proceedings

as instituted by the plaintiffs in the present Suit. In any event earlier

to the filing of the present suit petitioner/defendant no. 2 even qua

the plaintiffs never asserted any independent rights of tenancy in any

proceedings as could be brought by him.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Writ Petition No. 2371 OF 1997

Vasant Sadashiv Joshi.  Vs  Yeshwant Shankar Barve

CORAM : G.S.Kulkarni, J.

DATE : 3 JANUARY, 2020

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Whether executing court can take into account change of law during the pendency of execution proceeding?

The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.

29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4323 of 1999

Decided On: 29.06.2004

Gordhandas Lalchnd  Vs.  Kubchand Tirthdas Tailor and Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) MHLJ 396

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Which is material date for ascertaining whether suit property is Premises for the purpose of Maharashtra rent control Act?

 Which is the material date for ascertaining, whether the suit property is 'Premises' for the purpose of Section 6 of the Bombay Rent Control Act, i.e. whether the date of letting or the date on which right conferred by the said Act is sought to be exercised, was the question before the Constitution Bench of the Apex Court in the case of Nalanikant Ramadas Gujjar v. Tulasibai (Dead) by Lrs. And Others MANU/SC/0111/1997 : AIR 1997 SC 404.

In the case of Mst. Subhadra v. Narsaji Chenaji Marwadi MANU/SC/0287/1961 : AIR 1966 Supreme Court 806, it was held that material date for ascertaining whether the plot is 'Premises' for the purpose of Section 6 is the date of letting and not the date on which application for fixation of standard rent was made by the tenant or the landlord.

However, in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. MANU/SC/0531/1970 : AIR 1970 SC 1475, the Apex Court held that, 'whether the provisions of Bombay Rent Control Act shall be applicable or not, the crucial date for ascertaining the nature of the use of the land in question shall be the date when the rights under the aforesaid Act are to be exercised.'

The Constitution Bench has agreed with the views expressed in the case of Vasudev Modi (Supra) and therefore, material date for ascertaining whether suit property is 'Premises' is the date on which right conferred by the Act is sought to be exercised.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 638 of 2014

Decided On: 03.05.2019

 Narendra Harilal Jethwa  Vs.  Bholadasji Mandir 

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Whether person who is not tenant can challenge ownership of landlord?

We have considered the rival submissions of the parties. After weighing both the situations we are of opinion that once the respondent has been declared as trespasser by the Courts below because there was no subsisting tenancy with the original landlord then there was no need of going into the matter of gift of the premises in question. In fact, at the time when the suit was filed the appellants were the owner of the premises in question and the decree of eviction was passed in their favour as the father of the respondent, the original defendant No. 1 did not contest the matter and did not prefer appeal. But respondent preferred the appeal which was allowed by appellate court. Aggrieved against that order the appellants filed writ petition. The High Court affirmed the decree of eviction qua the appellants and Rustom D. Kumanna, the original defendant No. 1. But since the respondent was also impleaded as a party and the case had not gone for trial the High Court remanded the matter to the trial court to decide the question whether Fail Rustomji Kumar, the present respondent was a tenant or not. When the High Court remanded the matter to the trial court, the trial court recorded a finding that there was no relationship of landlord and tenant between the appellants and the respondent and that order was affirmed by the appellate court and the High Court did not differ with finding in second round. Once the decree of eviction has already been granted against the original tenant and the finding has been recorded that the respondent is not a tenant then gifting away of the property by the original landlords to a third party becomes secondary issue. Since on remand by High Court the trial court has determined his right qua the appellants and same being affirmed by the appellate court and the High Court in second round, we are of opinion that the question of gift which was raised before Appellate court and the High Court was a secondary issue. If there was no relationship between the landlords and the tenant then what is the right of the tenant to challenge the ownership of the appellants? More so in peculiar facts of this case that in same suit a decree of eviction has been passed against his father and it has become final because his father did not challenge the same and subsequently he died in 1984. Then in same suit a contrary decree was passed in favour of son who in these very proceedings was found to be not tenant. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5162 of 2002

Decided On: 27.09.2005

 M.M. Bilaney Vs.  Fali Rustomji Kumar

Hon'ble Judges/Coram:

Arun Kumar and A.K. Mathur, JJ.

Citation : (2005 )7SCC 682

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Whether provisions of limitation Act are applicable to proceedings under Rent Act?

Once it is held that Section 17 is in the nature of provision of limitation, then it necessarily follows .that by virtue of Section 29(2) of the Limitation Act, Sections 4 to 24 (inclusive) shall apply to the proceedings under Section 17 of the Act. Inasmuch as, those provisions have not been expressly excluded by the present State enactment. This proposition can be discerned from the decision of the Apex Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker reported in MANU/SC/0453/1995 : AIR1995SC2272 . The Apex Court has observed that two conditions must be fulfilled then the provisions of Sections 4 to 24 (inclusive) of the Limitation Act would automatically apply. Those two conditions are, viz; 1) there must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application, 2) the said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act. Thus on fulfilment of those two conditions, as observed by the Apex Court, the consequences that would automatically follow are : 1) in such a case Section 3 of the Limitation Act would apply as if the period prescribed by the Special or local law was the period prescribed by the schedule, 2) for determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Insofar as Section 17 of the Act is concerned, as observed by the Apex Court in Krishanlal Desai's case (supra), the last clause of Section 17(1) provides for period of limitation. A priori, it is a provision for period of limitation under the Special and local law in connection with an application to be filed under that provision. Moreover, the period of limitation prescribed thereunder is different from the period prescribed by the Schedule to the Limitation Act in Article 137. Understood thus, I have no hesitation in taking the view that provisions of Limitation Act would apply and the Court will have power to condone the delay in institution of application under Section 17 of the Act, if the fact situation of the case so requires.

IN THE HIGH COURT OF BOMBAY

W.P. No. 1450 of 1984

Decided On: 30.08.2002

 Madhukar Narayan Rao Vs.  Ramchandra Rajaram Wani and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2002 SCCONLINE Bom 834

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Whether landlord is liable to be evicted from tenanted premises if he fails to occupy it within period prescribed by statute?

 It is clear that when s. 17(1) refers to the requirement that the premises must be occupied by the landlord, the occupation intended by the provision is different from possession, because the first clause of 17(1) makes a clear distinction between occupation and delivery of possession. The effect of this clause is that when a landlord who has obtained a decree for possession executes the decree and obtains possession of the premises in question he must occupy them in terms of the case made out by him under s. 13(1)(g) and held proved at the trial. Whether or not the occupation by the landlord should be for the same purpose which he set out at the trial or can be for a different purpose, is a question which it is unnecessary to decide in the present appeal. What is, however, clear beyond any doubt is that when the possession is obtained in execution it must be followed by an act of occupation which must inevitably consist of some overt act in that behalf and this overt act was, on the finding of the District Court, done by the appellant on October 24, 1957. That means that the appellant occupied the premises beyond the period of one month prescribed by s. 17(1).

 Besides, the scheme of s. 17(1) clearly supports this construction. Section 13(1) has allowed the landlord to eject the tenants from the premises in their possession for specified reasons and s. 17(1) affords a protection to the tenants where a decree for ejectment has been passed against them under clause (g) or (i) of s. 13(1). If the legislature thought it necessary to require the landlord to commence the work of erection if he has obtained a decree for possession under s. 13(1) within one month, there is no reason why the legislature should not have provided for the same or similar period in respect of occupation which is referable to the decree passed under s. 13(1)(g). Mr. Setalvad contends that the occupation could be effected within a reasonable time for he suggests that no limitation having been prescribed in that behalf, the general rule would be that it should be done within a reasonable time. We think this construction cannot be accepted because it is extremely unlikely that the legislature should have provided the period of one month for one category of decrees and should have made no specific provision in that behalf in respect of decrees of the other category.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 804 of 1962

Decided On: 18.01.1963

 Krishanlal Ishwarlal Desai  Vs.  Bai Vijkor and Ors.

Hon'ble Judges/Coram:

B.P. Sinha, C.J., J.C. Shah, K.N. Wanchoo, M. Hidayatullah and P.B. Gajendragadkar, JJ.

Citation: [1964]1SCR553 

P.B. Gajendragadkar, J.

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Whether second suit filed under Transfer of property Act is to be stayed if first suit under rent Act is pending?

 I am fortified in my view by a decision of this Court in R.E. Fanibunda v. Nicholas of India Ltd. reported in 2003 (3) All 967 wherein this Court has explained what is the ratio of the decision of the Supreme Court in the case of Ambalal Sarabhai Enterprises Ltd. supra. In that case a landlord had filed a suit for eviction of a tenant on 9th June, 1977 on the ground of reasonable and bonafide requirement under the provisions of the Bombay Rent Act. The trial Court decreed the suit by a judgment dated 12th July, 1990 and the appellate Court set aside the decree. The appellate judgment was challenged by the landlord by filing a Writ Petition. During the pendency of the writ petition, the landlord filed another suit for eviction under the general law - Transfer of Property Act- as by then the provisions of Bombay Rent Act, 1947 had been repealed and the provisions of the Maharashtra Rent Act were not applicable to the tenant being a public limited company with a paid up capital of more than rupees one crore. At the hearing of the writ petition challenging the judgment of the appellate Court rendered under the provisions of the Bombay Rent Act, an objection was raised to the maintainability of the petition on the ground that the landlord had filed another suit under the general law and therefore the Writ Petition could not be continued. Relying upon the decision of the Supreme Court in Ambalal Sarabhai Enterprises v. Amrutlal (supra) it was contended that the landlord cannot pursue two parallel proceedings for the same reliefs. Negativing the objection, the court held that though the relief of possession claimed in both the suits was the same the causes of action for the two suits was entirely different. The cause of action for possession in the first suit was existence of a ground for eviction under the Bombay Rent Act while the cause of action for the second suit under the general law was only termination of the tenancy either by efflux of time or by notice. Existence of a ground under the Bombay Rent Act was not necessary for the second suit under the general law. The learned Judge therefore held that the two proceedings were not parallel as they were based on different cause of action and therefore there was no question of choosing between the two parallel proceedings. In Ambalal Sarabhai's case the Supreme Court has observed that a litigant cannot be permitted to take recourse to two parallel proceedings. In other words, two proceedings which are not parallel are permitted. This Court held that the two proceedings one for eviction under the provisions of the Bombay Rent Act and the other under the general law - Transfer of Property Act filed after repeal of the Bombay Rent Act were not parallel and were allowed to be continued and proceeded with simultaneously.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 58 of 2004

Decided On: 06.07.2004

 Godrej and Boyce Mfg. Co. Ltd.  Vs. Sridhar Jagannath Nerurkar

Hon'ble Judges/Coram:

D.G. Karnik, J.

 Citations: 2005 (1) BomCR 839, 2005 (1) MhLj 1097,2005(1) ALLMR 128

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Whether it is mandatory to prove that tenanted premises is in exclusive possession of sub tenant for getting eviction decree?

In case of Nirmal Kanta (supra), the Apex Court observed in paragraph 16 thus;

"What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well-established that a sub-tenancy or a subletting comes into existence when the tenant inducts a third party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once, it is proved that the lessee and/or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a sub-tenancy and/or the allegation of subletting stands established".

10. In the present case, the learned District Judge has observed in paragraph 11 that the suit premises was originally let out to one Yesammabai. The plaintiff claimed that defendant No. 1 Parubai was no way related to the original tenant. Since she was residing with the original tenant, the plaintiff recognized her as a tenant. The plaintiff alleged that defendant No. 1 has sublet the suit premises to defendants No. 2 and 3 who are no way related to defendant No. 1. The learned District Judge thereafter observed, "admittedly all the 3 defendants are residing in the suit premises". The question is whether the plaintiff has proved one of the ingredients of subletting. A perusal of the impugned order does not show that the learned District Judge recorded any finding as regards satisfaction of one of the ingredients of unlawful subletting. Before passing decree on the ground of subletting, it is necessary to record a finding to the effect that third party was found to be in exclusive possession of the rented premises. In the present case, no such finding is recorded by the learned District Judge. In view thereof, the impugned order cannot be sustained and as such is liable to be set aside.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1964 of 1998

Decided On: 01.02.2019

 Parubai Vithal Kamble Vs. Girdharilal Agarwal

Hon'ble Judges/Coram:

R.G. Ketkar, J.

Citation: 2019(4) MHLJ 67,2019(1) RCR(Rent) 365

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How to decide issue of comparative hardship in eviction suit against tenant?

 To say that the Trustees of the petitioners are also members of the Jamaat and that Jamaat had several other properties, is certainly an irrelevant consideration. As long as, there is no material produced on record, this Trust itself owns any suitable property from where it could start the school, the issue of comparative hardship certainly cannot be decided in favour of the respondents. Besides, in the present case, considering the number of business activities which the respondents carry out through various premises located in Mahabaleshwar itself, the issue of comparative hardship will have to be decided against the respondents. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1997 of 1995, Civil Application Nos. 2274 and 1351 of 2017

Decided On: 21.12.2018

Ranjanwadi Shikshan Trust Vs.  Govind N. Naidu and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2019(4) MHLJ 38,2019(1) RCR 552

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How to ascertain whether a person is family member of tenant?

The question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. The mere fact that a relative has chosen to reside with the tenant for the sake of convenience, will not make him a member of the family of the tenant in the context of rent control legislation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7161 of 2003

Decided On: 01.12.2005

 Kailasbhai Shukaram Tiwari Vs.  Jostna Laxmidas Pujara and Ors.

Hon'ble Judges/Coram:

B.P. Singh and P.K. Balasubramanyan, JJ.

Citation: AIR 2006 SC 741

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Whether it is mandatory for court to frame issue regarding comparative hardship?

These are all the judgments which are cited before us. Having considered the arguments in depth, we are of the view that there is no statutory obligation to frame a particular issue covering the provisions of the second part of Sub-section (2) of Section 18 of the Rent Act. On the contrary when the total circumstances of a case are being considered by the Court in the light of the pleadings of the parties and the evidence led, it is enough if the Court is aware that while passing a decree for eviction against a tenant a division of the premises is] permissible and under certain circumstances it can bring about a situation where the needs of both the landlord and tenant are satisfied without there being any hardship on either of them. If the Court disposes of the case with the awareness of these provisions either by express discussion or by implication where the facts speak for themselves, the Rent Court had done its duty properly and there is no infirmity! of any kind either in the procedure or in the substantive disposal of the dispute.

25. In the case of P.A. Machiah 1975 BomLR 99 Deshpande, J. observed on pages 100 and 101 as follows:

"But whether findings on one or both parts of this Section is necessary or not, must necessarily depend on how the case is prosecuted on either side. Each one may seek to acquire or retain possession of the entire premises by establishing greater hardships to himself or seek to acquire or retain only part of the premises by proving no hardship to either. Each one may even try to bring his case under both the parts and seek relief's alternately taking no chance. This must, in turn, depend in no small measure, on the urgency and extent of the needs of both, availability of alternate accommodation, the extent of the accommodation in dispute, degree of adaptability of the parties and suitability of the portion of the premises and variety of other factors. Suffice it to note that it is not difficult to conceive of cases where mere part of the premises may not suit the requirements of the either under any circumstances, and of his own deliberate choice, each one of them may rather choose to concentrate on first part and try to acquire or retain the entire premises for proving his greater hardship than even think of pressing for any portion of the premises. It would be unrealistic to such a situation to require the Court to record any finding on the second part even when parties themselves have deliberately, due to the sheer disinterestedness, not pressed for it at any stage of the trial. There is nothing in Section 13(2) to require the Court mandatorily to record a finding on both the parts even without any plea, evidence and need. It would indeed be an idle formality."

We are in respectful agreement with the reasoning of the learned Single Judge and we think that the above observations correctly lay down the law in regard to the provisions of Section 13(1)(g) read with Section 13(2). Needless to add that we neither agree with nor approve of the view taken by Savant, J. in Bhaskar Digambar v. Bhagwan Vishwanath MANU/MH/0262/1976 : (1976)78BOMLR454 .

26. We may additionally point out that the provisions of Section 13(2) in the form in which they appear have always been there ever since the present Act of 1947 became effective from 13-2-1948. The entire litigation in this State has been conducted on the footing that there is no statutory obligation of framing any such issue. Rent litigation forms a bulk of litigation in many places. If we were now to observe that an issue, as proposed by the learned Single Judge, is a statutory necessity it may result in remanding literally hundreds and thousands of suits to the trial court without any appreciable benefit to the parties whose needs are genuine. It may give a distinct advantage to the unscrupulous tenants who have really no defence in an action of eviction against them under Section 13(1)(g) read with Section 13(2). If any instance is needed, the present litigation is gross instance of that type.

IN THE HIGH COURT OF BOMBAY

Spl. Civil Appln. No. 2618 of 1977

Decided On: 28.03.1978

 Kisanrao Madhavrao Bartakke Vs. Narayan Dhondi Shete

Hon'ble Judges/Coram:

Balkrishna Narhar Deshmukh and M.L. Pendse, JJ.

Citation: 1978 MHLJ 859,AIR 1979 Bom 74

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Whether burden of proof is on tenant to prove that withholding of essential services by landlord was without just or sufficient cause?

A plain reading of S. 24 reveals 6 broad ingredients, namely, (I) that there must exist the relationship of landlord and tenant between the parties qua the premises; (ii) that the supply or service in question must be an essential supply or service; (iii) that such essential supply or service was enjoyed by the tenants; (iv) that it was cut off or withheld; (v) that the cutting off or withholding was by the landlord himself or through any person acting or purporting to act on his behalf; and (vi) that the cutting off or withholding of such essential service was without just or sufficient cause.

7. In the present case, there is no  controversy regarding the first three ingredients of sec. 24 for it is nobody's case that they are not satisfied. Also not in dispute is the fact that this essential lift service was enjoyed by the tenants but is no longer available to them. The question that arises is whether this essential service was "cut-off" or "withheld" by the landlords and, if so., whether such cutting off or withholding was "Without just or sufficient cause". The burden of establishing the cutting off or withholding the essential supply or service would undoubtedly be on the tenant. The Court would then have to ascertain whether the cutting off or withholding was 'without just or sufficient cause'. The tenant cannot be expected to establish the negative, viz. That the cutting off or withholding by the landlord was "without just or sufficient cause'. In order to escape inculpation, the burden would be on the landlord to establish the positive, viz. That the cutting off or withholding of the essential supply or service was for "just or sufficient cause". That is for the landlord to establish and the burden is heavily upon him to do so.

IN THE HIGH COURT OF BOMBAY

Special Civil applin. No. 2350 of 1977

Decided On: 24.03.1980

Decided On: 25.03.1980

J. Satyavrata  Vs. Mohamedbhai Abdothussen Sadiq Bahreinwalla and Ors.

Hon'ble Judges/Coram:

S.K. Desai and B. Lentin, JJ.

Citation: 1981 MHLJ 413,AIR 1982 Bom50, 1981 BomCR 163

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Whether relinquishment of leasehold interest in partnership firm constitute transfer of tenancy right prohibited under bombay rent Act?

 The legislative prohibition against the transfer of tenant's interest in the premises, operates "notwithstanding anything contained in any law". these words signify the overriding effect of the legislative command that a tenant shall not transfer his interest in the tenancy. After setting out the prohibition, the legislature enumerates two specific modes of the prohibited transfers. They are; subletting and assignments. In order to preclude transfer by a mode not named in the Section, the legislature employed the words "in any other manner".

35. The word "transfer" in the clause "transfer in any other manner" is used in its generic sense to denote the idea of making over property to another person. Rejecting the restricted meaning of "transfer" in the Transfer of Property Act , this court went so far as to hold that devolution of tenant's interest by bequest falls within the prohibition of Section 15(1) Dr. Anant Trimbak Sabnis v. Vasant Pratap Pandit MANU/MH/0173/1980 : AIR1980Bom69 . The broad generic sense, taking in its sweep all species of dealings with tenant's interest resulting in making over of property is consistent with the object of the Section.

36. The legislature has used the word "any" which is word with a wide meaning and is used to exclude all limitations. Clarke - Jerviose v. Scutt - (1920) I Ch. 382. The legislature could not have fore sent the modes that may be employed for the purpose of transferring tenancy. Aware of this, the legislature specified subletting and assignment, the two known modes of transfer; but it took care to use the words signifying exclusion of any other mode, arrangement or process of transfer. The significance of the word "any" is clear if one notices its meaning. It weans "in any degree, to any extent or at all". Therefore, when the legislature used the word "any" with reference to the transfer, it clearly intended to say that no transfer "at all " or "to any extent" or "in any degree" shall be made, New Webster's Dictionary of the English Language. The meaning of the word "other" in the context of transfer is also significant. It is used to denote a form of transfer "different or distinct from the ones mentioned or employed" New Webster's Dictionary of the English Language.

37. Whether a tenant sublets or assigns his interest - the obvious modes named by the statute - or the tenancy is made over to another through the medium of dissolution of a firm or retirement from the partnership, the result is identical; for, the tenant's interest's interest has been parted with. Aware of this possibility, the legislature used these words to mean that the tenant's interest in the premises shall not be made over to another persons by any mode at all.

38. In my opinion, therefore, having regard to the meaning of the words, "in any other manner", the transfer of tenant's interest through the mode of dissolution of partnership or retirement from partnership is a transfer forbidden by Section 15(1) of the Bombay Rent Act .

39. My conclusions on the question of the validity of the transfer of tenancy may be summarised as under.

The Partnership Act conceives the interests of partners in severalty. There is no community or unity of interest between partners. Therefore, they hold immovable property of the firm as tenants-in-common and not as joint tenants. Having regard to the and not as joint tenants. Having regard to the incidents of tenancy-in-common, one partner has no interest in the share in the property of another partner. Where one partner transfers or relinquishment his share in the partnership business to another, the transfer partner has no antecedent title to the share of the transferring partner. Therefore the making over or relinquishment of leasehold interest as a part of the transferor's share in the assets of the firm constitutes transfer of such lease hold interest.

Section 15(1) of the Bombay Rent Act prohibits transfer of tenant's interest in the prohibits not only by subletting or assignment but also "in any other manner". The words "in any other manner" mean a manner other than by subletting and assignment. The effect of giving up of his share in the tenancy by a partner as a part of his share in the partnership is to make over his share in the tenancy. Such making over of tenancy or parting with tenancy constitutes transfer of tenant's interest "in any other manner". Such transfer of tenancy is forbidden by Section 15(1) of the Bombay Rent Act and is, therefore, void. The transferee partner does not, therefore acquire the transferor's interest in the tenancy.

IN THE HIGH COURT OF BOMBAY

Suit No. 756 of 1977

Decided On: 20.06.1989

Nariman Aspandiar Irani Vs. Adi Merwan Irani

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