What conditions can be imposed by appellate court while staying decree of eviction?

 Appellate courts in India have significant discretionary power to impose reasonable conditions when granting stays on eviction decrees. The Supreme Court in Atma Ram Properties v. Federal Motors established the legal framework allowing appellate courts to impose such conditions to compensate landlords for losses due to delayed execution of eviction decrees.

Key Conditions That Can Be Imposed

Payment of Enhanced Rent or Compensation

Courts can require tenants to deposit amounts higher than the contractual rent during the pendency of the appeal. 

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Can the tenant refuse to pay rent in the absence of a specific clause in that regard in the sale agreement?

It is settled position of law that an agreement holder who is the tenant of the property should continue to pay the rent, unless there is a specific clause in the sale agreement that the tenant need not pay the rent from the date of sale agreement. Hence, the contention of the learned counsel for the petitioner that the jural relationship of the landlord and tenant had got terminated due to the sale agreement is not legally sustainable. {Para 8}

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

C.R.P.(MD).No.323 of 2023 and CMP(MD).No.1537 of 2023

K.Jeyakumar  Vs L.Arunachalam 

CORAM

 MR.JUSTICE R.VIJAYAKUMAR

DELIVERED ON: 13 .02.2023

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How to ascertain mesne profits or compensation while staying execution of eviction decree?

 Now, reverting on the issue of determination of the amount of

mesne profits @ Rs.2,50,000/per month is concerned, the guidance may be taken from the judgment of Marshall Sons & Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. and Another – (1999) 2 SCC 325, in which this Court held that once a decree for possession has been passed and the execution is delayed depriving the decree holder to reap the fruits, it is necessary for the Appellate Court to pass appropriate orders fixing reasonable mesne profits which may be equivalent to the market rent required to be paid by a person who is holding over the property. In the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. – (2005) 1 SCC 705, this Court held that Appellate Court does have jurisdiction to put reasonable terms and conditions as would in its opinion reasonable to compensate the decree holder for loss occasioned by delay in execution of the decree while granting the stay. The Court relying upon the provisions of the Delhi Rent Control Act, observed that on passing the decree for eviction by a competent Court, thetenant is liable to pay mesne profit or compensation for use and occupation of the premises at the same rate at which the landlord would have able to let out the premises in present and earn the profit if the tenant would have vacated the premises. The Court has explained that because of pendency of the appeal, which may be in continuation of suit, the doctrine of merger does not have effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a later date. {Para 10}

11. Thus, after passing the decree of eviction the tenancy

terminates and from the said date the landlord is entitled for mesne profits or compensation depriving him from the use of the premises. The view taken in the case of Atma Ram (supra) has been reaffirmed in the case of State of Maharashtra vs. Super Max International Pvt. Ltd. and others (2009) 9 SCC 772 by threeJudges Bench of this Court. 

12. The basis of determination of the amount of mesne profit, in

our view, depends on the facts and circumstances of each case

considering place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential are and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 464647 OF 2022

M/s. Martin & Harris Private Limited & Anr. Vs Rajendra Mehta & Ors. 

Author: J.K. Maheshwari, J.

Dated: July 06, 2022

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Whether the court should refuse eviction decree to landlord if there is dispute between husband and wife under DV Act?

In a dispute between the husband and wife under the

Domestic Violence Act, the landlord, who otherwise is entitled to

the decree of eviction should not be made to suffer. The dispute

between the husband and wife under the Domestic Violence Act shall not preclude and/or affect the right of the landlord to get the possession if otherwise he is entitled to. If the wife has any

grievance against the husband, may be in respect of the alternative accommodation, the same is required to be adjudicated in the proceedings under the Domestic Violence Act and/or any other remedy  which may be available to her against the husband.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 2939/2022

ARCHANA GOINDI KHANDELWAL Vs RAJESH BALKRISHNAN MENON & ORS.

Date : 04-03-2022 

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Whether landlord is entitled to get eviction decree if tenant fails to pay time barred rent?

The issue involved in this petition is; whether the plaintiff-landlord was entitled to decree of eviction in a suit filed on 5th September, 1994 on the ground of default in payment of rent for February, 1998 and December, 1990, even though the same fell beyond the period of three years prior to the date of the suit.

 At this stage we may clarify that the decree of eviction has been sustained by both the courts below on both the aforestated grounds namely personal necessity of the landlord and willful default in payment of rent by the tenant.

 In this case we are concerned with the ground of default which falls under Section 11(1)(d) and which states that where the amount of two months rent, lawfully payable by the tenant and due from him is in arrears by reason of non payment within the time fixed by the contract or in the absence of such contract by the last day of the month next following that for which rent is payable then such default would constitute ground for eviction. It is interesting to note that the expression used in Section 1 l(l)(d) is "lawfully payable" and not "lawfully recoverable" and therefore, Section 11(1)(d) has nothing to do with recovery or arrears of rent On the contrary Section 11 (l)(d) provides a ground for eviction of the tenant in the eviction suit. It is well settled that law of limitation bars the remedy of the claimant to recover the rent for the period beyond three years prior to the institution of the suit, but that cannot be a ground for defeating the claim of the landlord for decree of eviction on satisfaction of the ingredients of Section 11 (l)(d) of the said Act, 1982. In the case of Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and Ors., reported in AIR (1958) SC 328 it has been held that when the debt becomes time barred the amount is not recoverable lawfully through the process of the court, but it will not mean that the amount has become not lawfully payable. Law does not bar a debtor to pay nor a creditor to accept a barred debt.

For the foregoing reasons special leave petition is dismissed.

 Supreme Court of India

Sri Bhimsen Gupta vs Sri Bishwanath Prasad Gupta on 3 February, 2004

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In an appeal against eviction decree under The Transfer of Property Act court should give interim compensation from which date?

This now only leaves me to decide that in the facts of the present case what would be the date from which interim compensation ought to have been awarded by the Appellate Authority. As mentioned earlier, section 106 of the Transfer of Property Act, 1882 clearly stipulates that in the absence of a contract or local law or usage to the contrary, the lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable on the part of the lessor or the lessee by six months' notice. A lease of immovable property for any other purpose shall be terminable on the part of either the lessor or the lessee by 15 days' notice. In the facts of the present case, it is the case of the Plaintiff that an open plot of land was leased to the Defendant which was not leased out for any agricultural or manufacturing purposes. This being the case, at least prima facie, the possession and occupation of the suit premises by the Defendant would be unlawful on the expiry of 15 days from the date of the termination notice (viz. 9th January, 2012). In other words, the possession and occupation of the Defendant would be wrongful from 25th January, 2012. This being the case, I am of the view that the compensation that ought to have been fixed by the Appellate Authority of Rs.1,50,000/- per month, should have been from 1st February, 2012 till the disposal of the Appeal.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B. P. COLABAWALLA, J.

Mr. Mujibur Rehman Haji Israr Alam Siddiqui Vs. M/s. K. T. Kubal and Co.

Writ Petition No.80 of 2017

14th July, 2017.

Citation: 2018(2) ALL MR 267,2017(6) BOM.CR.382

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On what terms Appellate court can grant stay to eviction decree?

As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. , once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the opinion of the appellate Court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of appeal being dismissed. It has also been held that with effect from the date of decree of eviction, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree.

Rajasthan High Court

Amrit Kumar Garg vs Addl. Distt. Judge No. 3 And Anr. on 11 December, 2007

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Whether court can give Judgment on admission if the tenant has taken the plea that he had provided financial help to the landlord?

An application was filed by the respondent under Order 12 Rule 6 CPC seeking decree of possession as well as arrears of rent on admission. By judgment and decree dated 04.04.2019, this application under Order 12 Rule 6 CPC was allowed by the trial court. Trial court categorically held that the alleged loan was granted prior to the execution of the lease agreement and there was no mention of any loan or financial assistance in the lease deed and once the agreement was reduced into writing, petitioner (defendant before the Trial Court) could not be permitted to lead any oral evidence to alter the terms of any agreement.{Para 6}

7. It was further held that in case any right was created in favour of the petitioner in respect of immoveable property, he should have sought specific performance of such agreement and no specific performance had been sought, only a simplicitor suit for recovery of money was filed. Trial court held that this went on to show that petitioner had no independent right in the tenanted premises except as a tenant holding over.

8. In view of the admissions made by the petitioner, the trial court decreed the suit for possession under Order 12 Rule 6 CPC.

18. Further perusal of the written statement shows that petitioner has not specifically claimed any set-off against the respondent’s demand for arrears of rent. Though contention of the petitioner is that an independent Suit had already been filed, the finding of the trial court as contained in judgment and decree dated 04.04.2019 that petitioner does not have any independent right in the property except as a tenant holding over, has become final and conclusive since the appeal filed by the petitioner was withdrawn and the said finding would operate as resjudicata in so far as petitioner is concerned.

19. Petitioner has admitted the rent agreement, which was executed after the alleged loan. There is no reference of any loan or provision of rent free accommodation in the said agreement. Petitioner has admitted that the letting was at the rate of Rs. 10,000/- per month. He has also not denied that the rent has not been paid. Trial Court has merely gone on the basis of the admissions. Even before this court nothing has been shown to the contrary.

20. In view of the above, I find no merit in the contention of the petitioner or any infirmity in the order dated 17.07.2019 as also order dated 13.02.2020 rejecting the review application filed by the petitioner.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  CM(M) 429/2020& CM APPLN. 20823/2020

DARSHAN ARORA Vs  VIJAY KUMAR 

CORAM:- HON’BLE MR JUSTICESANJEEV SACHDEVA

Judgment delivered on: 17th November, 2020

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Whether the court can refuse the eviction decree if the tenant takes a plea of alternative premises to the landlord's children without supporting documents?

As observed by the learned Rent Controller in the Impugned Order, barring making a bald statement that children are using the garage portion for running the Chit Fund Business, the petitioners have not filed any document to substantiate this defense. A mere vague denial or averment cannot be considered for granting leave to defend to the tenant. It is a settled law that the petitioners, as a tenant can also not dictate the landlord/respondents to use other premises, which may not be suitable for the business as alternate accommodation. [Reference may be made to Ragavendra Kumar Vs. Firm Prem Machinery AIR 2000 SCC 354; Rishi Kumar Govil vs. Maqsoodan and Ors. (2007) 4 SCC 465]. Mezzanine floor on the back of the building cannot be considered as a suitable alternate accommodation for a shop.

7. In any case, as held by Supreme Court in Dhannalal Vs. Kalawati and Ors. AIR 2002 SC 2572, mere availability of an alternate accommodation cannot be the determinative factor to judge the bona fide requirement, the tenant has to prove that the alternate accommodation is ‘suitable’ and convenient in all aspects as the Suit accommodation. In the present case, the alternate accommodation pleaded by the petitioners is mezzanine floor and/or garage on the back portion of the building, which cannot be said to be suitable for running the business as compared to the shop on the main road or on the ground floor.

8. As far as the need of the tenanted shop for settling the children is concerned, it is the case of the respondents that the children were assisting them in the family business and now whished to go independent. This cannot be said to be a fanciful requirement. The plea of the petitioners that the children were running a separate chit fund business was a mere bald assertion with not even prima facie material to substantiate such plea and therefore, was rightly not given any credence by the learned Rent Controller.

9. In view of the above, I find no merits in the present petition and the same is accordingly dismissed. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI

RC.REV. 201/2020 & CM No.22328/2020 (Stay)

SHRI PAWAN KUMAR SETHI Vs SHRI ANIL KUMAR SINGHAL 

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

Date of Decision : 05.11.2020

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Whether court can give police aid at the first instance to execute possession warrant of eviction decree?

 A perusal of the record shows that the decree for eviction was passed way back on 26th February, 2020 and time, in accordance with the provisions of the DRC Act, was already given to the Tenant. The Tenant ought to have availed of its legal remedies in accordance with law. However, till date i.e. almost eight months having passed by, there is no appeal filed by the Tenant nor is there a stay order against the decree. Even the appeal filed before the ARCT was not maintainable and was withdrawn.{Para 9}

10. Under such circumstances, merely on the ground that the Nazarat Branch is not working due to Covid, non-issuance of warrants of possession cannot be justified. The valuable rights of the Landlord are being taken away due to a logistical issue, with which the Landlord is not concerned.

11. A perusal of the notification issued by the High Court of Delhi dated 15th March, 2010 shows that there is a general practice direction which has been passed in respect of speedy disposal of the case under the DRC Act. The relevant portion of the above is set out herein below: -

“Power to render police aid -in execution proceedings — The Rent Controllers/Additional Rent Controllers shall be empowered to order for police aid at the first instance in the execution proceedings so as to ensure quicker delivery of possession to the decree holder, by giving appropriate directions to the concerned SHO.”

12. From the above, it is clear that police aid can be granted even at first instance so as to ensure quick delivery of possession to the decree holder.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 CM (M) 555/2020 & CM APPLs.28419/2020, 28420/2020

MRS. SAVITRI DEVI  Vs  MRS. SANTOSHI BHUTANI 

CORAM: JUSTICE PRATHIBA M. SINGH

Date of decision: 9th November, 2020

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Whether the court can grant compensation to the landlord only to the extent of loss of earnings from the business that the landlord proposes to start on tenant's eviction?

In the present case, the submission of the learned counsel for the petitioner that the yardstick for such compensation can only be the loss of earnings from business that the landlord/respondent proposes to start on eviction of the tenant/petitioner, cannot be accepted. Though this can be one of the criteria to be kept in view by the court while determining the reasonable condition to be imposed on the tenant, other considerations like the rent of similar properties, would be equally, if not more, relevant for such determination. The yardstick for determining the mesne profits/terms that would reasonably compensate the decree holder for loss occurred in delay in execution of the decree would not only be the loss of income from the business for which the landlord intends to put the property to use but the rent which the landlord may have to pay for obtaining a similar premises on rent for running the business which he intends to run from the tenanted premises. For this purpose, the lease deeds of the premises in the same locality are the best comparatives, duly adjusted for the area and the conditions of the tenanted premises. The paying capacity of the petitioner/tenant cannot normally be a relevant consideration for such determination.

17. A reading of the above provision would show that the landlord on obtaining the possession of the tenanted premises under Section 14(1)(c) of the Act needs to obtain permission of the controller to re-let the whole or part of the premises within three years from the date of obtaining such possession. Incase the landlord does not occupy the premises within two months of obtaining possession or, the premises having been so occupied, at any time within three years are re-let to any person without obtaining the permission of the Controller or is transferred to any other person, which does not appear to the Controller to be bona fide, Controller may, on the application of the tenant, direct the landlord to put the tenant in possession of the premises or to pay him the compensation as the Controller thinks fit. Therefore, there is no complete embargo on the landlord re-letting the premises to a third party, however, before doing the same, the landlord is to take the permission of the Controller. Even otherwise, the said provision can have no effect on the determination of the damages that the landlord would be entitled to during the pendency of the revision petition.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

RC. REV. 172/2020 & CM 17010/2020

SHRI R K KAINTH THROUGH RAKESH KAINTH,

GUARDIAN  Vs SHRI SWADESH KUMAR BHAGI 

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

Date of Decision: 18.11.2020

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Whether the court should set aside an exparte eviction decree if the tenant fails to file his written statement in the suit despite several chances?

1)  The S.S.C case No.4 of 1994 was filed

by the landlord on 18.03.1994 claiming possession,

rent and mesne profit. The landlord’s case was that

the notice was given on 24.12.1993 demanding the

amount of rent, due rent, profit etc. Thereafter

the S.C.C. Case No.4 of 1994 was filed in the Court

of Additional Civil Judge, Senior Division,

Roorkee. On 14.07.1994, the tenant was served

summons. He prayed time to file a written Statement

till 24.08.1994. The tenant filed an application

under Section 10 CPC to stay the suit as well as

the application under Order VII Rule 11 CPC. Both

applications were rejected and the Court allowed

fifteen days time to file a written statement and

fixed 16.10.1995 for hearing. On 16.10.1995, the

tenant again took time but did not file a written

statement. Several other opportunities were given

to the tenant to file a written statement in which

he failed. On 24.02.1997, Court passed an order to

proceed exparte.

2) Application under Order 9 Rule 13 can be allowed only

 when sufficient cause is made out to set aside the exparte

decree. The present is a case where no sufficient cause 

was made out to set aside the exparte decree.

48. As noted above, the tenant had unsuccessfully

challenged the orders passed by the trial court on

24.02.1997 and 18.03.1997 to proceed exparte.

The application of the tenant to recall the orders

dated 24.02.1997 and 18.03.1997 was rejected by the

trial court with a clear finding that the tenant

wants to delay the case regularly because he is the

tenant and getting benefit of the property. The

application of the tenant was held to be mala fide.

49. The High Court without even adverting to the

earlier order of the trial court dated 16.05.1997,

where categorical findings had been recorded

against the tenant, choose to allow the application

under Order 9 Rule 13 filed by the tenant to recall

exparte decree, which cannot be said to be correct

exercise of jurisdiction under Article 226 of the

Constitution.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.802-803 of 2021

SUBODH KUMAR  Vs  SHAMIM AHMED 

Author: ASHOK BHUSHAN, J.

Dated: March 03, 2021.

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Can the court fix interim compensation based on the tenanted property's purchase price while staying eviction decree?

The only legitimate basis for working out interim compensation in our case appears to be the actual price paid for the suit property (i.e. essentially the land) by Respondent No. 19. Respondent No. 19 has acquired reversionary right of the lessors in the suit property for a sum of Rs. 5.50 crores. Evidently, this has been a concrete deal at arms length between men of commerce; it does take into account or, at any rate, must be presumed to have taken into account, all aspects arising out of the lessee's right to the existing structure at the expiry of the lease. It may safely, at least for our purposes, which, as we have seen above, in any event, involve a certain ad-hocism, be taken as the basis for working out a fair interim compensation. Indeed, it is even Mr. Naidu's submission that interim compensation may be premised on this valuation. In his submission, Mr. Naidu has worked out fair return of Rs. 2,56,654 per month (for 4354 sq. yds., i.e. excluding the land appurtenant and below the two chawl like structures) by estimating return at 6.5 per cent per annum on the price paid by Respondent No. 19 (Rs. 5.50 crores). Mr. Naidu, however, terms this amount of Rs. 2,56,654 to be exorbitant, without telling us why. (He probably contends so in the light of the judgments of Atma Ram Properties and Previn Govind Sharma, supra.) Mr. Naidu suggests 50 per cent of this amount (i.e. Rs. 1,28,327/- per month) as a fair return on investment for fixing interim compensation.

14. There is no basis for reducing the amount of fair return to 50 per cent as suggested by Mr. Naidu. The amount is not exorbitant per se and cannot be said to be so on the basis of the cases of Atma Ram Properties and Previn Govind Sharma. As I have noted above, the multipliers in Atma Ram Properties and Previn Govind Sharma are not benchmarks to be used as precedents for fixing compensation generally. In the peculiar facts of our case, it is this return (Rs. 2,56,654/- per month) which may be termed as a fair return on investment, which the eventually successful party may be said to have lost as a result of the stay on eviction and which may be taken as a reasonable compensation to be fixed during the pendency of the CRA as a condition of the stay. There may, at best, be a case for rounding it off to Rs. 2,50,000/- per month.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 357 of 2017

Decided On: 05.11.2020

 Vijay Anant Gangan  Vs.  Zenabibi Gulam Rasool and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/1877/2020

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Whether the court should direct obstructionist to pay compensation or rent to the landlord during pendency of obstructionist proceeding?

Usually, the appellate court, or sometimes the executing court, requires the tenant to pay compensation pending the appeal on the execution so that the appealed decree could be stayed. Lest the tenant should face a summary eviction. Here, the obstruction proceedings are deemed original proceedings. Had the Obstructor failed in those proceedings, in the appeal he would have been compelled to pay the compensation. True, here, he did fail. But now that judgment stands set aside, and the matter remanded. So, the parties have been relegated to their original position. Therefore, we cannot compel the Objector to pay compensation.{Para 66 }

Pending the original proceedings, which the obstruction proceedings are, the tenant or the occupier should pay only the admitted rent or license fee. Here, the Owner maintains that he has no privity of contract with the Obstructor. On the contrary, the Obstructor asserts that the consent terms, which had the judicial imprimatur, recognised him as an occupant.

69. The Obstructor has pleaded that he had been paying the rent to the tenant. But the fact remains that the tenant has defaulted in paying rent to the Owner. At least, until the High Court decides the eviction proceedings that is the judicial finding. When this Court wanted the tenant to pay the compensation or mesne profits as a condition-precedent for staying the decree of eviction, the Tenant remained unresponsive. That has paved the way for eviction proceedings. In this situation, the Obstructor cannot be heard saying that he has no obligation to pay rent to the Owner, for he cannot have the cake and eat it, too.

70. Therefore, it serves the interest of justice if the Obstructor pays to the Owner the admitted rent, regularly. As to the arrears if any, the Obstructor should pay the accumulated arrears from the date of obstruction proceedings. The arrears must be paid in three months from the date of first hearing before the Executing Court after the remand. If the Obstructor fails to pay the arrears or defaults on paying the regular rent, the owner may apply to the Executing Court to strike off the Obstructor's plea or defence. I also clarify that the Obstructor's paying the rent and the Owner's receiving that is without prejudice to their rival contentions in the proceedings. Otherwise, the impugned Order, dt. 28.02.2018 remains unaffected.

 IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5341 and 5342 of 2018

Decided On: 27.04.2020

 Udyavara R. Acharya and Ors.Vs. Jugal Kishor Jagannath Sharda Zenith Co-operative Housing Society Ltd.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: MANU/MH/0539/2020

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Whether eviction decree will be vitiated if the court takes into consideration comparative hardship if tenanted premises was vacant land?

 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.

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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Whether injunction suit filed by successor of tenant partnership firm to restrain landlord from executing eviction decree is maintainable?

 Suit seeking an injunction against a defendant from interfering with possession of the plaintiff cannot seek to interject the enforcement of an ejectment decree obtained by the defendant against the predecessor-in-interest of the plaintiff, and the correct remedy in this regard for the plaintiff would be to approach the executing court under Order XXI Rules 98 to 105 of the CPC.

A perusal of order dated 6th December, 2018 in the second suit filed by the defendant no. 1 against the defendant no. 2 Economics Transport Organisation (Q.T.S.) Pvt. Ltd. only, for ejectment from the premises, shows a decree for ejectment to have been passed in favour of the defendant no. 1 and against the defendant no. 2. The defendant no. 1 has also filed before this Court a copy of the order dated 11th February, 2019 of this Court, in RFA No. 123/2019 preferred by the defendant no. 2 against the order dated 6th December, 2018 of ejectment and a perusal of which shows the said Economics Transport Organisation (Q.T.S.) Pvt. Ltd. to have withdrawn the appeal and only sought time to vacate the premises on or before 15th May, 2019 and which was granted subject to the defendant no. 2 Economics Transport Organisation (Q.T.S.) Pvt. Ltd. filing an undertaking in this Court and which undertaking was filed in the form of affidavit of Bhimsen Saini, Attorney of Economics Transport Organisation (Q.T.S.) Pvt. Ltd.

13. The counsel for the defendant no. 1 states that the defendant no. 2 Economics Transport Organisation (Q.T.S.) Pvt. Ltd. has not vacated the premises and on the contrary made an application to wriggle out of the undertaking given and which application has been dismissed. It is further stated that the defendant no. 1 has already initiated contempt proceedings against the defendant no. 2 Economics Transport Organisation (Q.T.S.) Pvt. Ltd. and Mr. Bhimsen Saini aforesaid and which are pending.

14. I have hereinabove observed that the suit, on the face of it did not lie. What the plaintiff, by instituting this suit is seeking to do, is to assert independent right to be not removed from possession of the premises aforesaid in execution of the ejectment decree obtained by the defendant no. 1 against the defendant no. 2 in the second suit aforesaid and in which plaintiff was not a party. The relief of permanent injunction sought by the plaintiff, of restraining the defendants from interfering with possession of the plaintiff of the premises, cannot be to restrain the defendant no. 1 from, in execution of the said ejectment decree, dispossessing the plaintiff from the premises.

15. The remedy of the plaintiff, if claims to be not entitled to be dispossessed in execution of the decree obtained by defendant no. 1 against defendant no. 2, is under Order XXI Rules 98 to 105 of the CPC read with Section 47 of the CPC which bars a separate suit being filed there for.

IN THE HIGH COURT OF DELHI

CS (OS) 312/2019, IA No. 8464/2019 (u/O. XI R-12 CPC) and IA No. 11637/2019 (u/O. VII R. 11 CPC)

Decided On: 12.02.2020

Economics Transport Organisation Ltd. Vs.  Mohan Investments & Properties Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether court should grant eviction decree on the ground of subletting if the tenant is not in control of business of the company working in rented premises?

In Sait Nagjee Purushotham (supra), the question was whether the partnership firm which was converted into a company had all the partners of the firm as the Directors. No evidence was led to show that the Directors were the same, accordingly, the Court held that there were subletting and observed as under:

"20. In view of the ratio laid down by this Court in the aforesaid decisions, various tests were laid down obtaining in the facts of each case. But the common ratio which runs in all these cases is that if there is voluntary transfer by the company to a newly incorporated company then in that case one has to plead and prove that all the members of the old firm continued in the new firm and it is essentially the same. The only exception which has been made is that the transfer of the old company to a new one is under the statute or law. Therefore, in the present case after verifying the records of the case, we have found that all the three courts have consistently observed that the benefit of Section 11(17) of the Act cannot be extended to the appellant in this case and we are of opinion that the view taken by the courts below is correct and there is no ground to interfere in this appeal."

25. Subsequent to the judgment in Sait Nagjee Purushotham (supra), the Supreme Court considered this very issue in Santosh Ajit Sachdeva and Ors. v. Anoopi Shahani, MANU/SC/7841/2007 : (2007) 7 SCC 675 wherein, on the question of subletting the Supreme Court observed as under:

"8. All other cases referred by learned Counsel were also examined and we do not feel any need to refer any more of them. The theory of lifting the corporate veil has been accepted in certain circumstances which have already been referred by this Court in a series of decisions. However, so far as this case is concerned, as per the finding of fact recorded by the appellate court as well as by the High Court that the appellant-defendant has not been able to successfully prove that she is controlling the company, it was held by the appellate court that merely by holding a large number of shares is not sufficient but something more is required to prove that she is actually controlling and managing the business herself. That finding of the Appellate Court has been upheld by the High Court. Hence, in view of the concurrent finding of both the courts below, there is no reason for us to take a different view of the matter. Hence, we do not find any merit in this appeal and accordingly the appeal stands dismissed. No order as to costs."

Thus, as per the judgment in Santosh Ajit Sachdeva and Ors. (supra), it is merely not enough for a tenant to hold a large number of shares in a company, something more would be required.

Conclusion

26. Applying the tests laid down in the above three decisions of the Supreme Court to the facts of the present case, the admitted facts show that there are three companies functioning from the tenanted premises. Two of the companies were incorporated by third persons. The tenants became Directors in the company a few years after incorporation. The companies had their registered office in the tenanted premises since inception. The exact shareholding of these Directors and their control is not clear to the Court. No evidence has been led to show as to who is in charge of the day to day handing of the business of these companies. In any event, the fact that there are other Directors in the companies and other shareholders itself shows that the corporate reflection and image of the said companies cannot be only Mr. Arun Kumar Jain and Ms. Archana Jain. Even going by the tests laid down in Madras Bangalore Transport Co. (supra), this is a clear case of subletting in view of the third-party Directors and shareholders in the said two companies. Under these circumstances, though not on the question of res judicata, even on merits, the finding of the ARC that there is subletting does not deserve to be interfered with.

 IN THE HIGH COURT OF DELHI

CM (M) 600/2019, CM Appls. 17972, 20292 and 20409/2019

Decided On: 19.02.2020

 Arun Kumar Jain  Vs.  Bhagwant Singh Pabla 

Hon'ble Judges/Coram:

Prathiba M. Singh, J.

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

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

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

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

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6286 of 1987

Decided On: 27.06.2001

Shankar Bhairoba Vadangekar Vs. Ganpati Appa Gatare

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Whether licensor can obtain eviction of licensee by obtaining mandatory injunction without claiming possession?

 As it has been found by the Courts below that the Defendants are only licensees, the legal possession of the house is with the Plaintiff." Defendants have no independent  separate interest in the house. A licensees Defendants have no interest in the building and their possession cannot exclude the rightful possession of the Plaintiff as owners of the property. Merely because other modes of eviction are available to the Plaintiff his remedy by way of mandatory injunction cannot be denied to him. In Prahirondra Nath v. Narendra Nath MANU/WB/0038/1958 : AIR 1958 Cal 179 the Calcutta High Court held that the owner of an immovable property on termination of the licence is entitled to maintain a suit for mandatory injunction against the licensee to vacate the property. The above decision has been relied in Rajappan v. Veeraraghavan Iyer 1969 K.L.T. 811 and Krishna Moorthy Iyer, J. held that when the owner of immovable property terminates a licence he can sue for mandatory injunction directing the licensee to vacate the property without praying for possession since the licensee's possession cannot in the eye of law exclude the owner's possession. As the remedy of mandatory injunction is available to the Plaintiff as against the Defendants who are licensees the challenge against maintainability of the suit fails.

IN THE HIGH COURT OF KERALA

S.A. No. 695 of 1989

Decided On: 23.10.1989

 Ayissa Ummar Vs.  Ami

Hon'ble Judges/Coram:

M.M. Pareed Pillay, J.

Citation: 1990 (1) KLT 98

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Whether court can relieve tenant from liability of eviction if quit notice was issued for termination of lease on expiry of statutory period?

The tenant was not found to be in default of payment of rent, as he had duly tendered a sum of Rs. 13560/- by draft in response to notice under Section 106 of the Transfer of Property Act, 1882. By applying the principles of Section 114 of the Act, the tenant was relieved from the liability of eviction. The trial Court also held that no amount was payable by the tenant towards electricity charges. It also held that the plaintiffs could not establish bona fide need for the shop in dispute, therefore, it declined to grant relief of eviction.

5. The sole submission of Sri N.C. Rajvanshi, learned senior counsel for the revisionists is that once U.P. Act No. 13 of 1972 was found to be inapplicable to the building in dispute, the relationship of the parties would stand governed by the provisions of the Transfer of Property Act, 1882. He submitted that the tenancy was terminated by giving notice under Section 106 of the Act. It was not a notice of forfeiture on the ground of non-payment of rent nor provisions of Section 114 were applicable. The tenant became liable for eviction, as service of notice is not in dispute.

6. Since the trial Court has found the provisions of U.P. Act No. 13 of 1972 to be inapplicable, the relationship between the parties was governed by the general law i.e. the Transfer of Property Act, 1882. Section 111 of the Act provides various modes and contingencies by and under which a lease of immovable property stands determined. Under Clause (g) thereof, a lease gets determined by forfeiture i.e. where the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter followed by a notice in writing by the lessor to the lessee of his intention to determine the lease. Under Clause (h), a lease determines on the expiration of the notice to determine the lease or to quit or of intention to quit, the property leased, duly given by one party to the other. The manner of serving notice to quit is that provided by Section 106.

7. The forfeiture, which is entailed upon break of express condition of lease is condonable, by virtue of provisions of Section 114 of the Act, where the leasee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days. In such a case, the Court may, in lien of passing a decree of eviction, pass an order relieving the leasee against the forfeiture.

8. Section 114 of the Transfer of Property Act, 1882 is thus applicable only where the lease is determined by forfeiture i.e. on account of breach of an express condition which entitles the lessor to re-enter. On the other hand, if the tenancy is determined by a simple notice to quit, as provided under Clause (h) of Section 111, then Section 114 would not come to the rescue of the leasee.

9. The notice dated 19.5.2010 has been brought on record and a perusal thereof reveals that it is a notice under Clause (h) of Section 111 of the Transfer of Property Act, 1882 seeking termination of tenancy upon expiry of the statutory period. The plaintiffs have specifically stated that after expiry of the statutory period, the tenant should vacate, as they do not want to continue him as tenant any more. In the said notice, it is also stated that rent and electricity charges since March 2010 have not been paid, but the tenancy has not been determined on the ground of non-payment of these amounts. In fact, the finding of the Court below is that no written lease deed has been brought on record, nor it was the case of the landlords that there was breach of express condition of any lease agreement entitling the plaintiffs to determine the lease by forfeiture.

IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 55 of 2013

Decided On: 18.01.2019

 Subhash Chandra  Vs.  Ajay Gupta

Hon'ble Judges/Coram:

Manoj Kumar Gupta, J.

Citation: AIR 2019(NOC) 819 ALL

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