Whether the Small cause court can grant reconnection of electric supply or water supply to the occupant of premises if he is gratuitous licensee as per landlord?

Mr. Vora further submitted that section 29 of the Maharashtra Rent Control Act, 1999 cannot be invoked by the Petitioners since they are not tenants or subtenants but they are mere gratuitous licensee and hence, no relief could have been granted in their favour even by the Trial Court. Mr. Vora, therefore, submitted that the Appeal was rightly allowed by the Appellate Court and prays for dismissal of this Writ Petition.

13. I have carefully considered the rival contentions and I am inclined to partly set aside the impugned orders for the following reasons :

i The fact that the Petitioners are in physical possession of the suit premises is not in dispute. In fact the Trial Court and the Appellate Court have both recorded a finding of fact in that respect. The very fact that the Respondent Defendant has now filed L.E. & C. Suit No. 91/120 of 2011 for possession clearly shows that the Petitioners herein are in physical possession. In this situation the law is well established that a person in possession of immovable property even when his possession is wrongful, cannot be dispossessed without following due procedure prescribed by law and there is series of Judgments of the Supreme Court and other High Courts who have taken this view. The learned Judge of the Trial Court had rightly granted an injunction that Plaintiffs could not be dispossessed by the Defendant without following due process of law and virtually no reason is given by the learned Judges of the Appellate Court as to why even this injunction has been set aside.

ii In so far as electricity supply is concerned, the Trial Court had rightly observed that the Plaintiffs can obtain any independent electricity supply from BEST or other service provider but after having observed this, the Trial Court ought to have moulded the relief in such a manner that it's observations in paragraph 13 of the impugned Judgment are capable of being implemented. This is not done by the Trial Court.

iii In so far as the Judgment of the Appellate Court is concerned, once having found that the Plaintiffs are in physical possession even when the Appellate Court was justified in observing that the nature of possession and the status of the Plaintiffs was in doubt, even without having regard to the provisions of section 29 of the Maharashtra Rent Control Act, 1999, the Appellate Bench has overlooked the provisions of section 151 of the Code of Civil Procedure, 1908 which reserves inherent power with the Court and provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.

(Emphasis supplied)

iv If the Petitioners are in physical possession of the suit premises, which fact is accepted even before me by the learned Advocate for the Respondent during the course of the argument, then one fails to understand as to why they should be deprived of electricity and water supply which is absolutely bare necessity and essential for even the basic day-to-day life in the modern world. This aspect is completely overlooked by the learned Judges of the Appellate Court. Merely because the documents which were relied upon by the Plaintiffs at the time of hearing of the interim application were not sufficient to establish a plea of tenancy, the Appellate Court could not have overlooked the fact that the suit is yet to be tried and the evidence is yet to be led. At the prima facie stage, the material available on the record was sufficient to infer at least one thing that the Plaintiffs were in exclusive physical possession of the suit premises and also that the said possession of the Petitioners is not a forcible possession and even the Defendant has not raised a plea that just prior to the filing of the suit, the Plaintiffs have forcibly entered the suit premises. This being the state of affairs, in my opinion, learned Judges of the Appellate Court have committed a manifest error in interfering with the Judgment of the Trial Court.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7315 of 2011

Decided On: 18.10.2011

 Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta

Hon'ble Judges/Coram:

G.S. Godbole, J.

Citation: MANU/MH/1339/2011,2012(1) Mh.LJ630

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When will the cause of action accrue for filing of the suit for declaration of tenancy?

The first plea: mere filing of a suit with a particular assertion does not amount to an effective denial of Rungta's status as a tenant. The suit must have culminated in a decree. That is, the Company's assertion must have received judicial imprimatur.

19. The second plea: Rungta faced the first challenge to his possession when the trial Court appointed a receiver under Order 40, Rule 1 of CPC. The receiver took symbolic possession of the property. So that, in the alternative, has provided the right to Rungta to sue--for the first time.

 As noted by the Supreme Court in Hargovind Jasraj, while enacting Article 58 of the 1963 Act, the legislature has designedly departed from the language of Article 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and 'accrued'. This would mean if a suit is based on multiple causes of action, the limitation will run from the date when the right to sue first accrues. To put it differently, successive violations of the right will not give rise to fresh causes of action; and the suit attracts dismissal if it is beyond the period of limitation counted from the day when the right to sue "first" accrued.

30. Here, the Company filed the suit in January 1990 and denied Rungta his alleged status as the tenant. It has, in fact, considered him a trespasser. So it pleaded. The landlord's hostile assertion--before a judicial forum, at that--has provided to Rungta the cause of action. Rungta did file his written statement. He denied the plaintiff's assertion that he is a trespasser; instead, he set up a counter-assertion, that he is a tenant. So one of the questions the suit could be, and perhaps is, whether Rungta is a tenant or a trespasser.

32. The second plea Rungta has taken is, if at all there is any challenge to his status as a tenant, that came for the first time when the trial Court appointed a receiver. According to him, when the court appointed the receiver, Rungta had his right to sue materialised for the first time. To support his contention, Rungta maintains that the receiver took symbolic possession of the property. From then, in three years, Rungta has filed his suit.

33. I am afraid even this plea must fail. The Company has never disputed the Rungta's possession over the property, and the receiver's taking symbolic possession is a non sequitur--beside the point. So I conclude that the trial court's appointing the receiver has not upset Rungta's scheme of things. 

That said, I must also note that with the dismissal of Rungta's suit as not maintainable on the grounds of limitation does not affect his claim to be the tenant, rather than a trespasser. 

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 634 of 2018

Decided On: 20.08.2019

SGM Properties & Investments Pvt. Ltd. Vs. Basantkumar Bilasrao Rungta and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(2) MHLJ 225,MANU/MH/2507/2019

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Bombay HC: Basic principles which court should follow while declaring any one member of the family as a tenant

Accommodation is a serious problem facing people. Practically in every tenanted premises along with the tenant scores of other relatives reside. After the death of the tenant there is always an attempt to claim tenancy rights in the suit premises with the help of Section 5(11)(c) of the Rent Act. It is, therefore, for the court to find out who really can get the benefit of Section 5(11)(c). For this the court has to take into consideration various factors such as who was accepted as a tenant by the landlord, whether other members who are putting up a claim had accepted that person as a tenant or whether they had resisted the claim of that person to tenancy at any time, and in some cases wishes of the deceased tenant. In this connection it is necessary to quote the relevant observations of this court in Gool Rustomji's case (supra);

"Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins. Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death. In any event the Court cannot declare more than one person as the tenant under Section 5(11)(c) of the Rent Act."{Para 12}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2311 of 1991

Decided On: 19.06.2003

Vimalabai Keshav Gokhale Vs.  Avinash Krishnaji Biniwale and Ors.

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Bombay HC: Court can declare only one member of the family as a tenant

In Miss Gool Rustomji Lala v. Jal Rustomji Lal, 73 B.L.R. 600 Section 5(11)(c) of the Rent Act was considered by this Court. In that case the dispute was between a brother and a sister. Rustomji, the original tenant died on 12.3.1958. Admittedly the tenancy rights of the suit land were willed away by him in favour of his daughter the petitioner therein. The landlord gave notice terminating the tenancy of the petitioner as also of respondent 1, the brother of the petitioner. The petitioner made an application against the landlord in the Small Causes Court at Bombay praying for declaration that she alone was a tenant. An ex parte declaration was made in her favour to the effect that she was a tenant. Respondent 1 made application against the petitioner and also the landlady that as he was residing with the deceased tenant at the time of his death, he was entitled to a declaration under Section 5(11)(c) of the Rent Act that he was a tenant of the suit flat. The court held that both the petitioner as well as respondent 1 therein were qualified to be the tenants under Section 5(11)(c) of the Rent Act. the matter travelled upto the High Court. It was argued before the High Court that word "any member" would include other members of the tenant's family residing with him. On the basis of Section 13(b) of the General Clauses Act, 1987, it was argued that singular shall include the plural. This contention was negatived by the court. It was held that under Section 13(b) of the General Clauses Act, singular shall include plural when there is nothing repugnant in the subject or context. Considering the subject and the context of the Rent Act and its object, the court was of the view that the court must declare only one person as the tenant under Section 5(11)(c) of the Rent Act after considering the claims of all those persons who say that they are members of the tenant's family and were residing with him at the time of his death.

10. In Shamkant Naik's case (supra) the widow of the tenant gave an undertaking before the High Court that the premises would be vacated by a particular date and in the meanwhile before that date her son and daughter instituted suit to claim tenancy under Section 5(11)(c) of the Bombay Rent Act. It was argued that the son and daughter had an independent right and they did not claim through the widow and as they were residing with the deceased tenant at the time of death, they would become tenants under Section 5(11)(c) of the Bombay Rent Act and obstruction caused by them was justified. Relying on Gool Rustomji's case (supra) this Court held that the original tenant had died as far back as in 1962 and it was respondent 1 alone who was recognized as the tenant. Till the decree was finally passed against her no claim of whatsoever nature was set up by respondent 2 and 2(a). The court observed that it was obvious that it was a belated effort on the part of respondent 2 and 2(a) to delay and defeat the execution of decree passed against respondent 1. The court then observed that phrase "any member" of the tenant's family residing with the tenant at the time of his death would not enable each and every member of the tenant's family to claim an independent right of tenancy in respect of the tenanted premises. "Any member" would mean "any one member".

12. Accommodation is a serious problem facing people. Practically in every tenanted premises along with the tenant scores of other relatives reside. After the death of the tenant there is always an attempt to claim tenancy rights in the suit premises with the help of Section 5(11)(c) of the Rent Act. It is, therefore, for the court to find out who really can get the benefit of Section 5(11)(c). For this the court has to take into consideration various factors such as who was accepted as a tenant by the landlord, whether other members who are putting up a claim had accepted that person as a tenant or whether they had resisted the claim of that person to tenancy at any time, and in some cases wishes of the deceased tenant. In this connection it is necessary to quote the relevant observations of this court in Gool Rustomji's case (supra);

"Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins. Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death. In any event the Court cannot declare more than one person as the tenant under Section 5(11)(c) of the Rent Act."

13. In cases such as the present one where the landlord is being denied the fruits of the decree by a member of the deceased tenant's family who had all along accepted the son's claim to tenancy the court has to be more careful. here the case of the plaintiff was that Arun Gokhale was the tenant and he resided in the suit premises along with his wife, mother and other children. This fact was not denied in the written statement. The petitioner who is his mother never resisted the acceptance of Arum as tenant. Admittedly the rent receipts were issued in the name of Arun; that was also not resisted by the petitioner. In fact in the written statement contention was taken up that the other legal heirs of Keshav Gokhale were not joined in this suit and, therefore, the suit was not tenable. That contention was negatived by the trial court. In appeal the decision of the trial court was confirmed. The matter travelled upto the supreme court and that view was confirmed. This is a case, therefore, where the judgment of this court in Gool Rustomji Lala's case (supra) and Shamkant Naik's case (supra) will squarely apply.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2311 of 1991

Decided On: 19.06.2003

Vimalabai Keshav Gokhale Vs.  Avinash Krishnaji Biniwale and Ors.

Hon'ble Judges/Coram:

Ranjana Prakash Desai, J.

Citation: MANU/MH/0343/2003

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When tenant is not entitled to get specific performance of contract?

 In the present case, at the time when the respondent denied the appellant's claim for tenancy, it has to be held that the appellant has notice that respondent has refused to perform his part of the contract, but instead of filing the suit for specific performance, the appellant has approached the Court for getting declaration of his tenancy This conduct shows that he has thereby waived not to avail the right which was given to him under the agreement, thereafter also, appellant had ample opportunity to start the action for specific performance of the agreement. He has, however, avoided to do so. It is evident, therefore, from his conduct that he has never been ready and willing to perform his part of the contract. As stated above, there is also no clear averment about his always being ready and willing to perform his part of the contract.

44. In such situation, the question of allowing such relief by this Court in the Second Appeal does not arise at all, that too after lapse of 20 years from the date of agreement.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 706 of 2017 

Decided On: 18.07.2018

Rajesh Dayaldas Narwani Vs. Kanayalal D. Bablani

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi

Citation: 2018(6) MHLJ 394

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Whether obstructionist can be directed to pay mesne profits?

The present respondent obstructed the delivery of possession on the ground that he was in possession of the property.

2. Pending Obstruction Application, respondent filed Declaratory Suit being R.A.D. Suit No. 2152 of 1991 in the Court of Small Causes at Bombay for a declaration of his tenancy rights by contending that there was a tenant of the premises since 1973 through M/s. Halda Engineering Company. In the said suit, the present appellant (judgment creditor) appeared and indicated the fact that how the decree for eviction granted in his favour had not been executed and prayed that possession should be delivered to him immediately and also respondent should be directed to deposit mesne profits from 1.1.1984 till 30.6.1996 at the prevailing market rent. The Trial Court did not accept the prayer for handing over possession, but directed the respondent who is the plaintiff in the suit, that he should pay at the rate of Rs. 443.93p. per month for the said period as mesne profit. The appellant carried the matter to the High Court unsuccessfully. Against harder , the present appeal is filed by special leave. When this matter was pending before this Court, parties took several adjournments to get the matter amicably settled. However, till today the matter has not been amicably settled.

3. From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property.

IN THE SUPREME COURT OF INDIA

C.A. No. 420 of 1999

Decided On: 29.01.1999

Marshall Sons & Co. (I) Ltd.  Vs. Sahi Oretans (P) Ltd. and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik and M.B. Shah, JJ.

Citation: AIR 1999 SC 882

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Whether person in possession of premises can be denied electric and water supply if his suit for tenancy declaration is pending?

If the Petitioners are in physical possession of the suit premises, which fact is accepted even before me by the learned Advocate for the Respondent during the course of the argument, then one fails to understand as to why they should be deprived of electricity and water supply which is absolutely bare necessity and essential for even the basic day-to-day life in the modern world. This aspect is completely overlooked by the learned Judges of the Appellate Court. Merely because the documents which were relied upon by the Plaintiffs at the time of hearing of the interim application were not sufficient to establish a plea of tenancy, the Appellate Court could not have overlooked the fact that the suit is yet to be tried and the evidence is yet to be led. At the prima facie stage, the material available on the record was sufficient to infer at least one thing that the Plaintiffs were in exclusive physical possession of the suit premises and also that the said possession of the Petitioners is not a forcible possession and even the Defendant has not raised a plea that just prior to the filing of the suit, the Plaintiffs have forcibly entered the suit premises. This being the state of affairs, in my opinion, learned Judges of the Appellate Court have committed a manifest error in interfering with the Judgment of the Trial Court. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7315 of 2011

Decided On: 18.10.2011

 Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta

Hon'ble Judges/Coram:

G.S. Godbole, J.

Citation: 2012(1) MHLJ730,2012(5) BonCR348,2012(1) AllMR 4

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Whether plaintiff is entitled to get electricity and water supply during pendency of suit for declaration of tenancy rights?

If the Petitioners are in physical possession of the suit premises, which fact is accepted even before me by the learned Advocate for the Respondent during the course of the argument, then one fails to understand as to why they should be deprived of electricity and water supply which is absolutely bare necessity and essential for even the basic day-to-day life in the modern world. This aspect is completely overlooked by the learned Judges of the Appellate Court. Merely because the documents which were relied upon by the Plaintiffs at the time of hearing of the interim application were not sufficient to establish a plea of tenancy, the Appellate Court could not have overlooked the fact that the suit is yet to be tried and the evidence is yet to be led. At the prima facie stage, the material available on the record was sufficient to infer at least one thing that the Plaintiffs were in exclusive physical possession of the suit premises and also that the said possession of the Petitioners is not a forcible possession and even the Defendant has not raised a plea that just prior to the filing of the suit, the Plaintiffs have forcibly entered the suit premises. This being the state of affairs, in my opinion, learned Judges of the Appellate Court have committed a manifest error in interfering with the Judgment of the Trial Court. Hence, a case for grant of relief by exercising the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India is made out, particularly when the learned Judges of the Appellate Court have not applied their mind to the facts of the case in proper perspective and the impugned Judgment and Orders exhibits that the learned Judges of the Appellate Court were completely oblivious of the existence of section 151 of the Code on the Statute Book.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7315 of 2011

Decided On: 18.10.2011

Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta

Hon'ble Judges/Coram:

G.S. Godbole, J.

Citation: 2012(1) MHLJ 730, 2012(1) ALLMR 4

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