Whether Construction of partition wall between two shops amounts to permanent addition and alteration?

 I find that this Court has taken a landmark view in Suka Ishram (supra), while dealing with the issue of permanent structure under Section 13(1)(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('Bombay Rents Act'). Issue was as regards the tenant protecting himself and his goods, from preventing thieves from breaking open the shade. He had built a wall in brick and mortar, calling it to be of a temporary character. This Court concluded that the open plot of land will never lose it's identity in the process of the removal of the wall. The wall is but an insignificant part of the temporary shade. The original nature of the open plot of the land is not materially altered or interfered with. In view of this conclusion, I find that the said test can be advantageously made applicable to the case in hand. Whether the erection of the partition wall would not affect the identity of the shop or whether the shop let out to the tenant would not lose it's identity, notwithstanding whether the wall is standing or removed. The answer is quite logical. By erecting a sturdy partition wall, may be by a wooden structure, and which can be conveniently dismantled, the identity of one shop is converted into two independent legal shops.

23. Considering all the above factors, I am of the view that the trial Court was right in concluding that the erection of the partition wall has resulted in conversion of one shop into two. It requires no debate that such commercial complexes have a basic structure of columns, beams and a slab. Even if a 4" or 9" cement brick wall is erected to create multiple shops in such galas or complexes, these walls are always meant to be like partition walls or curtain walls. These walls can be conveniently removed without affecting the basic structure of the building and the structural designing and engineering of such complexes or galas are meant to accommodate such partition walls. This could not have been lost sight of by the appellate Court, which has erroneously considered the material used for erecting the partition wall. It has failed to assess the durability factor and the intention and purpose of erecting the said wall. Even otherwise, a finding on facts arrived at by the trial Court cannot be casually interfered with by an appellate Court or even by this Court, unless it appears that the impugned judgment is perverse, erroneous and likely to cause gross injustice.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 6037 of 2004

Decided On: 14.03.2019

Vasantrao Haribhau Dedgaonkar  Vs.  Govind Sadashiv Madadgaonkar and Ors.

Hon'ble Judges/Coram:

R.V. Ghuge, J.

Citation: 2019(1) RCR(Rent) 617

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Bombay HC: Distinction between eviction on ground of bonafide need and eviction of service tenant under Maharashtra rent control Act

After hearing the learned counsel for the parties at length and after giving due consideration to their respective submissions, I find that the impugned order is unsustainable. Perusal of the plaint indicates that eviction of the non-applicant has been sought under provisions of section 16(1)(f) and 16(1)(g) of the said Act. As per provisions of section 16(1)(f), if the premises are let out for use as a residence by reason of the tenant being in service or employment and the tenant has ceased to be in service or employment, his eviction can be sought. Under section 22 of the said Act, if a landlord intends to let out any premises to his employee, then they may enter into a written agreement to create a service tenancy and such tenancy shall remain in force during the period of service or employment of the employee. After creation of such service tenancy, if the tenant ceases to be in service or employment of the landlord, then it is open for the landlord to apply to the Competent Authority who shall make an order that the tenant shall place the landlord in vacant possession. As per the First proviso to section 22 of the said Act, if an application is made after a period of thirty days of the expiry of the period stipulated under section 22(2) of the said Act, that period can be condoned. As per the Second proviso, in case the order of termination is under challenge before any Tribunal or Court, the order of eviction cannot be passed until the adjudication as regards the order of termination becomes final.

7. From the aforesaid, it can be seen that the provisions of section 16(1)(f) and section 22 operate in separate fields. For the purposes of the provisions of section 16(1)(f) of the said Act, there is no requirement of any agreement in writing and the tenancy may be one which is created even prior to coming into force of the said Act. However, section 22 requires an agreement in writing and the tenancy being created after the coming into force of the said Act. Reference in that regard can be made to the decision in Janabai Govindrao Korche (supra) that has been relied upon by the learned counsel for the applicant, wherein it is held that application of section 22 of the said Act is prospective in nature. In the present case, even according to the non-applicant, the tenancy has been created prior to twenty five years which is before coming into force of the said Act.

Further, the landlord has not approached the Competent Authority under section 22(2) of the said Act but has approached the Civil Court under section 33 read with section 16(1)(f) of the said Act. It is only if the landlord approaches the Competent Authority under section 22(2) of the said Act that the Second proviso to section 22 would come into operation. It is thus clear that for the purposes of seeking eviction under section 16(1)(f) of the said Act, it is not necessary as contemplated by the Second proviso to section 22 to await the final adjudication on the validity of the order of termination. On these counts, it is held that the trial Court committed an error in allowing the application below Exhibit 15.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 70 of 2018

Decided On: 11.09.2018

 Shraddhanand Anathalaya  Vs.  Kusum

Hon'ble Judges/Coram:

A.S. Chandurkar, J.

Citation: 2019(1) RCR(Rent) 407

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Leading Supreme Court on subletting as ground for eviction

 The legal position that emerges from the aforesaid decisions can be summarised thus:

(i) In order to prove mischief of subletting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by tenant in favour of a third party with exclusive right of possession and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.

(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to subletting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.

(iii) The existence of deed of partnership between tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person.

(iv) If tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

(v) Initial burden of proving subletting is on landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

(vi) In other words, initial burden lying on landlord would stand discharged by adducing prima facie proof of the fact that a party other than tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7258 of 2009 

Decided On: 30.10.2009

 Celina Coelho Pereira  Vs.  Ulhas Mahabaleshwar Kholkar and Ors.

Hon'ble Judges/Coram:

Tarun Chatterjee and R.M. Lodha, JJ.

R.M. Lodha, J.

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Whether it is mandatory of high court to decide cross objection filed by landlord?

 Admittedly, a cross-objection was filed by the appellant-landlord against the rejection by the first appellate court of the existence of one of the two grounds of eviction. However, while deciding the appeal of the respondent-tenant in his favour against the decision of the first appellate court on the other ground, the existence of the cross-objection appears to have been missed by the High Court with the result that there is no decision given on the cross-objection. The impugned judgment cannot, therefore, be sustained inter alia for this reason. We arc also of the opinion that the question relating to existence of the ground of bona fide need which has been decided in favour of the tenant requires a fresh determination by the High Court along with the other point relating to default in payment of rent which was the subject-matter of cross-objection.

Supreme Court of India

Jitendra Prasad Nayak vs Anant Kumar Sah And Anr. on 1 December, 1997

Equivalent citations: JT 1998 (8) SC 11, (1998) 9 SCC 383

Bench: J Verma, G Nanavati, B Kirpal

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Whether it is mandatory for landlord to file cross objection if his eviction suit is decreed only one ground out of three grounds?

 The respondent landlord filed a suit for possession against the petitioner tenant on the ground of default and permanent construction. The trial Court negatived the ground of default in payment of the rent but decreed the suit on the ground that petitioner had made a pot mala without the permission of the respondent and that amounted to making of a permanent construction in the suit premises. On appeal, the appellate Court confirmed the decree on the ground of permanent additions and alterations in the suit premises and also held that the respondent was entitled to a decree for possession on the ground of default in payment of the rent by the petitioner.

3. The learned counsel for the petitioner submits that the respondent had not filed any appeal or cross-objections challenging the finding that the petitioner was not a defaulter and therefore, the appellate Court erred in reversing the finding of default in payment of the rent and passing a decree on that ground. The contention is fallacious. Sub-rule (1) of Rule 22 of Order 41 of the Code of Civil Procedure reads as under:-

22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

Explanation - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.

Under Sub-rule (1) the respondent, though he might not have appealed from any part of the decree, the respondent is entitled not only to support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been given in his favour. For doing so, he is not required to file any cross objections. This is clear from the wording of Sub-rule (1) of Rule 22. A landlord in whose favour a decree has been passed on one or more of the several grounds, may not only support the decree for possession on the grounds on which it has been passed, but may also contend that the finding on the issues decided against him ought to have been given in his favour. In other words, he can support the decree not only on the ground in which the decree was passed but also on the other grounds which have been decided against him by the trial Court. Therefore, there is no merit in the contention that in the absence of cross objections the appellate Court could not have passed a decree on the ground of decree on the ground of default.

Equivalent Citation: 2005(2)BomCR463, 2005(107(1))BOMLR118, 2004(4)MhLj1020

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 929 of 1999

Decided On: 22.06.2004

Shri Lalji Ramnath Pande Vs.  Smt. Hawabi Abdulla Shaikh

Hon'ble Judges/Coram:
D.G. Karnik, J.
Read full judgment here:Click here

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Whether court should order eviction of tenant on ground of compromise if ground for eviction is not made out?

The common thread that runs through the aforesaid pronouncements
of this Court is – in cases where protection under a Rent Act is available, no
eviction can be ordered unless ground seeking eviction is made out, even if
parties had entered into a compromise. Moreover, the invalidity on that
count can even be raised in execution. In the present case, the order dated
28.03.2014 did not remotely note that any particular ground under the Rent
Act was made out.
15. In the circumstances, in our considered view, the order passed by the
appellate court was absolutely correct and did not call for any interference on part of the High Court.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 8256-8257 OF 2018

M/s Alagu Pharmacy & Ors. V N. Magudeswari 

Uday Umesh Lalit, J.
Dated:August 14, 2018.
Citation:(2018)8 SCC 311,AIR 2018 SC 3821

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Whether other grounds for eviction of tenant survive if landlord has obtained possession of premises on one ground?

With great respect, we find it difficult to appreciate the view taken by the High Court. The moot question is whether the landlords are entitled to eviction on all the grounds taken by the landlords in the petitions for eviction. It needs to be noted that eviction on the respective grounds under the Act has different ramifications since the grounds being distinct and separate. Therefore, merely because the landlords have taken possession on the basis of an order for eviction granted on one ground, that does not mean that the surviving grounds have become non-est. For all practical purposes and legal consequences, the said grounds do survive to be considered under law.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6819-6820 of 2009

Decided On: 29.03.2017

 Valiyavalappil Sarojakshan and Ors. Vs.  Sumalsankar Gaikevada and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and R. Banumathi, JJ.

Citation: (2017) 14 SCC 349

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Whether subsequent eviction suit is liable to be stayed if both suits have same grounds for eviction?

As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what "the matter in issue" exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the Plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The Plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2908 of 2013 (Arising out of S.L.P. (C) No. 14808 of 2012)

Decided On: 05.04.2013

 Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor

Hon'ble Judges/Coram:

C.K. Prasad and V. Gopala Gowda, JJ.

Citation: AIR 2013 SC 1712,(2013) 4 SCC333,2013(5) MHLJ147 SC

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Whether grounds for eviction can be added by amendment at appellate stage

Undisputedly, the application for amendment was made during the pendency of the proceedings. Appeal is a continuation of the suit. Merely because the application has been filed during the pendency of the Appeal, it cannot be said that no amendment to the plaint can be allowed. The decision of the learned Single Judge of this Court in the matter of Mudra Salt and Chemical Industries v. Collector, Thane and others reported in MANU/MH/0378/2001 : (2001)4BOMLR534 is to the effect that the only point which is to be considered is, whether the proposed amendment is necessary for an apt decision in the matter in the dispute between the parties. Merely addition of one or more ground for eviction cannot amount to change in the nature of the proceedings for eviction of a tenant and, therefore, the impugned order cannot be sustained as apparently it has been passed in the improper exercise of its jurisdiction by the Court below.

IN THE HIGH COURT OF BOMBAY

Civil Revision Appln. No. 639 of 2002

Decided On: 04.06.2002

 Chanchalben wd/o Dharshi Shah and Ors. Vs. Municipal Corporation of Greater Mumbai and Anr.

Hon'ble Judges/Coram:

R.M.S. Khandeparkar, J.

Citation:2002(4) MHLJ382,2002 BOM RC 510

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Whether landlord can agitate grounds of eviction negatived by trial court in appeal preferred by tenant?

'Any aggrieved party', the expression employed in Section 20(1), means a person feeling aggrieved by the ultimate decision, that is, the operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for is not a party aggrieved though the order contains a finding or two adverse to him. The Respondent can support the order and pray for the ultimate decision being sustained, without filing a revision of his own, and for achieving such end he may seek reversal of any findings recorded against him. However, if the non-petitioning party feels entitled to a more beneficial or larger order in his favour but was allowed a lesser or smaller relief then to the extent of claiming the more beneficial or larger relief he should have filed a revision petition of his own as he was 'an aggrieved party' to that extent.

16. There is, therefore, no doubt in the present case that in a revision preferred under Section 20 of the Act by the tenant laying challenge to the propriety of the decision of the Appellate Authority under Section 11(8) of the Act, the landlord could have urged that the order of eviction could be sustained under Section 11(3) of the Act also. The High Court has not erred in permitting the landlord to urge such a plea in the revision filed by the tenant though the landlord did not file any revision of his own. A landlord who has succeeded in securing an order of eviction on one of the several grounds urged by him cannot be said to be a person aggrieved by such order. He can not file a revision rather he can feel satisfied with the order. The person aggrieved is the tenant and in a revision preferred by the tenant it is only just and equitable that the landlord should be permitted to support the order of eviction by disputing correctness of the finding recorded in the impugned order whereby the availability of additional ground for eviction was negatived. Such a right has to be necessarily spelled out in favour of the landlord who has succeeded from the Court below else there would be grave injustice.

IN THE SUPREME COURT OF INDIA

SLP No. 1599 and 8694 of 2001

Decided On: 08.07.2002

Nalakath Sainuddin Vs. Koorikadan Sulaiman

Hon'ble Judges/Coram: 

R.C. Lahoti and B.N. Agrawal, JJ.

Citation: AIR 2002 SC 2562

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Whether grounds of ejectment in eviction of tenant suit are part of cause of action?

In Gajanan Dattatraya v. Sherbhanu Hosang Patel wherein one of the grounds of eviction was under section 13(1)(e) of the Rent Act of unlawful sub-letting, it was indicated that the tenant's liability to eviction arises once the fact of unlawful sub-letting is proved at the date of the notice.

101. In Sardar Balbir Singh v. Atma Ram Srivastava , the Full Bench of the Allahabad High Court considered the concept of cause of action. It was sought to be distinguished from the right of action as also from the remedy. It was observed that right of action is a right to presently enforce the cause of action and it does not arise until the performance of all the conditions precedent to the action. A remedy has been indicated as the means or method whereby the cause of action or corresponding obligation is effectuated and by which wrong is redressed and relief obtained. The concept of cause of action has been high-lighted under the observations as :----

"The term" cause of action" means cause of action which gives action for and forms the foundations of the suit.....cause of action is the obligation from which springs the "action" defined as the right to enforce an obligation. A cause of action arises when that which ought to have been done is not done or that which ought not to have been done is done. The essential elements of a cause of action are thus the existence of a legal right in the plaintiff with a corresponding legal duty in the defendant, and a violation or breach of that "right or duty" with consequential injury or damage to the plaintiff for which he may maintain an action for appropriate relief or reliefs. The right to maintain an action depends upon the existence of a cause of action, which involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant....A cause of action arises from the invasion of the plaintiff's right by violation of some duty imposed upon the defendant in favour of the plaintiff either by voluntary contract or by positive law......On determination of lease, the law invests the lessor with a right to have vacant possession of the premises and imposes a duty in lessee to deliver vacant possession....breach of tenant's duty and violation of the landlord's right gives right to cause of action resulting in two reliefs, one for eviction and the other for mesne profit and damages....."

In Gajanan Dattatraya's case cited (supra) the provisions of unlawful sub-letting within the meaning ofsection 13(1)(e) of the Rent Act came under discussion and it was held that the provisions of the Rent Act indicates that tenant is disentitled to any protection under that if he is within the mischief of provisions of section 13(1)(e) of the Act viz., that he has sublet. But the language is that if the tenant has sublet the protection ceases and, therefore, it was observed that it cannot be contended that subletting must continue at the date of the suit for passing a decree for eviction and the tenant's liability to eviction arises once the fact of unlawful sub-letting is proved at the date of the notice and in that context it was further observed that to acced to the contention of the tenant could mean that he would not be within the mischief of sub-letting if after the landlord gives a notice of termination on the ground of unlawful sub-letting the sub-tenant vacates in which case the landlord will not be able to get relief against the tenant inspite of unlawful sub-letting and thereby the tenant can foil attempt of landlord to obtain possession every time by getting the sub-tenant vacated. It was ultimately held that the tenants liability to eviction arises once the fact of unlawful sub-letting is proved.

102. In Dhanpal Chettiar's case (supra) there is a pointer that items mentioned in section 13(1) of the Rent Act are the grounds but cannot be the cause of action and the grounds which stipulate happening of such events which are to be so established to the satisfaction of the Court, when it is observed as :---

"......the landlord will be well advised by way of abundant caution and in order to lend additional support to case to give notice to his tenant intimating that he intended to file a suit against him for his eviction on the grounds mentioned in the notice.... The action of the landlord instituting suit for eviction on the grounds mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee.....Section 13 provides that the landlord may recover possession on certain grounds. It is not plain then that on the happening of the events or on the fulfilment of the conditions mentioned in sections 12 and 13 etc. the landlord becomes entitled to recover possession from the tenant otherwise not.....a tenant forfeits his right to continue in occupation of the property and makes himself liable to be evicted on fulfilment of these conditions .......Section 11 gives protection against the eviction providing further that he shall not be liable to eviction except in execution of a decree passed by the Court for one or more grounds mentioned insection 11. Does it stand to reason to say that a decree can be passed if one or more of the grounds exist and such a decree can be passed against the existing tenant within the meaning of State Rent Act....."

103. The ratio and eloquent observations in Hussainbhai Embrahim Bohri v. The Navyug Chitrapat Co., 70 Bom.L.R. 390, very much remains intact. The proceedings related to the petitioners application for amendment to the plaint which was rejected by the trial Court. The suit was initially filed for non-payment of rent and thus non-compliance with notice under section 12(2) of the Rent Act. Through the amendment two grounds for ejectment were sought to be added. The first being that the respondent had not been using the suit premises for a period exceeding six months for the purpose for which it was let out and inclusion of permitted increases in the money claim was also brought for. One of the contentions raised by the respondent-tenant was that a ground stated in the claim for eviction of tenant is a part of cause of action and to add to the ground for eviction is adding another cause of action which would change the nature of the suit and would required fresh leave of winding up Court and therefore, the jurisdiction was challenged. The learned Single Judge in that behalf made the following apt observations as :----

"It is true that 'cause of action' means every material fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment.....Section 12 of the Rent Act provides a protection for tenant after determination of tenancy. It creates an impediment in the way of the landlord recovering possession. Section 13 of the Act provides certain conditions under which protection of the tenant is taken away and impediment in the way of the landlord recovering possession is removed. These conditions are termed as 'grounds of ejectment'. It is not necessary for the landlord to set out these grounds in notice to quit as they are not part of the cause of action for the landlord. The landlord sets out these grounds in the plaint not because they constitute his cause of action but in anticipation of the tenant claiming protection provided in section 12 to show that conditions have arisen which have taken away the protection of tenant and removed the impediment in the way of the landlord recovering possession. In my opinion, grounds of ejectment are not a part of cause of action...."

The learned Single Judge then relied on unreported decision by another Single Judge in Vaishnoo Ditti v. Avtar Singh, in Special Civil Application No. 112 of 1967 decided on June 28/29, 1967 wherein it is observed as :---

".....It will thus be seen that section 12(1) of the Rent Act creates an obstacle in the way of the landlord in obtaining possession but the obstacle becomes ineffective if the requirement of one of the clauses ofsection 13(1) are fulfilled. The fulfilment of requirement of any of these clauses does not create a new cause of action'. The cause of action is already there. The effect of the fulfilment of the requirements of one or more of the causes is to remove the obstacle and make it possible for the landlord to recover possession".

104. With respect, I am in full agreement with the observations and the ratio when it has been firmly laid down that the grounds of ejectment as provided for under section 13(1) of the Rent Act are not a part of cause of action in a suit for possession. They have independent entity as also identity and have entirely different field of operation furnishing certain grounds on which eviction can be sought which grounds however, are to be established to the satisfaction of the Court. It cannot be confused as being cause of action. In other words the cause of action is not the ground but it is the forfeiture of protection of the Rent Act for the tenant for being continued to be a tenant in the premises. The grounds undersection 13(1) are the means to prove the forfeiture and significantly forfeiture of tenants right to continue in the premises is forfeiture contemplated by Article 66 which in some cases may be statutory forfeiture. The learned Single Judge in Kamruddin Masjit Trust v. Abdul Rahiman Fakiruddin, 1985(2) Bom.C.R. 121 observed as:---

"Sections 12 and 13 of the Rent Act places certain restrictions in the matter of recovery of possession even though right to possession has already accrued and makes such recovery of possession subject to certain conditions. However, once the restrictions are removed and the conditions fulfilled, the lesser can proceed to recover possession. Sections 12 and 13 do not extinguish a cause of action nor do these provisions create any new cause of action. These sections only regulate and control the right to recover possession already otherwise existing in the lessor under the general law".

As already discussed there is an inbuilt pointer in section 13(1) of the Rent Act itself when it is prescribed that the landlord may set one or other grounds as mentioned therein so as to make him entitled to possession, but that by itself is not enough since it is the satisfaction of the Court about the existence of these grounds which would govern the fate of that proceedings in favour of the landlord. This would certainly high-light the proposition that these are really the grounds and could not be the cause of action. Shri Tunara's contention in that behalf will have to be upheld.

Bombay High Court

Hemchand M. Singhania vs Shakuntala S. Tiwari (Smt.) on 28 November, 1986

Equivalent citations: 1987 (2) BomCR 428

Bench: V Kotwal

Read full judgment here: Click here

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When it is not permissible for executing court to treat compromise decree under rent law as nullity?

From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there Was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an empress or implied admission made in the compromise agreement, itself. Admissions, if true and dear, are by far the best proof of the facts admitted.

(Italics supplied).

10. It is, therefore, clear from the decisions in the two cases referred to above that the rigour of the principle laid down in Kaushalya Devi's case has been considerably cut down by the later two decisions of the Supreme Court and it is open to an executing Court to look into the records and find out not whether the rent Court must have been satisfied about the existence of the grounds on which a decree for eviction could validly have been passed, but whether on the material before the rent Court it could have been satisfied that a ground for eviction exists. If there was such material on the record then it is not open to the executing Court to declare the compromise decree as a nullity. As pointed out by the Supreme Court in Nagindas's case, even if there is an implied admission by the tenant about the existence of a jurisdictional fact, a compromise decree must be held to be good.

11. If the tests laid down in the two cases are now applied to the instant case, it is obvious that the compromise application, which has been signed not only by the landlord and the tenant but also by the respective counsel, clearly implied that while the landlord had made an application for four rooms, the tenant was satisfied that the landlord's claim to the extent of one room was a genuine one and that was why he agreed by the compromise decree to hand over possession of one room of which the description is given in the compromise application. The instant case clearly falls within the ratio of the two Supreme Court cases referred to earlier. The tenant did not want to contest the limited claim of the plaintiff-landlord so far as one room was concerned. The landlord on his part had given up his claim for the other three rooms. It is dim-cult to see in what other manner such a compromise can be read. Thus though it is: true that the decree does not itself on the face of it show that the rent Court was satisfied about the bona fide requirement of the landlord, there is enough material in the form of the recitals of the compromise application which show that the rent Court could have been satisfied about the genuineness and the bona fide nature of the need and requirement of the landlord. In this view of the matter, it is obvious that the executing Court had exceeded its jurisdiction in treating this compromise decree as a nullity.

IN THE HIGH COURT OF BOMBAY

Special Civil Application No. 2461 of 1971

Decided On: 01.09.1975

Decided On: 03.09.1975

Digambar Narayan Kulkarni Vs. Gajanan Laxman Barve

Hon'ble Judges/Coram:

M.N. Chandurkar, J.

Citation: 1976 MHLJ Note 3

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Whether landlord can be granted eviction decree against tenant if he has made out only one ground for eviction?

 There can be no dispute to the legal proposition that even if the landlord is able to make out only one ground out of several grounds of the eviction, he is entitled to seek the eviction of his tenant from the suit premises on the basis of that sole ground which he has made out under the Rent Act.

17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4189 of 2007

Decided On: 25.01.2018

Flora Elias Nahoum and Ors. Vs. Idrish Ali Laskar

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:(2018) 2 SCC 485

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Whether tenant can challenge ownership of landlord over tenanted premises in eviction suit?

There is a specific reference to the registered document under which the appellant purchased the suit building from the earlier landlord in the plaint. Yet, in the written statement the respondent denied the title of the appellant. We notice that there are several documents on record relating to the ownership of the appellant, apart from the registered sale deed, such as municipal tax receipts, ration card etc. Yet, the respondent refused to acknowledge the appellant’s title. He denied it in his evidence. This is not a simple case of denial of derivative title by a person who did not know about the purchase of the building by the landlord. Even after going through the relevant documents relating to the appellant’s title the respondent feigned ignorance about it. The High Court has accepted that in his cross-examination the respondent has stated that he was not accepting the appellant as his landlady. The High Court has, however, gone on to say that by this piece of evidence no decree of eviction can be passed against the respondent under Section 12(1)(c) of the M.P. Act because the respondent will have no occasion to establish in what circumstances he denied the title of the appellant. The High Court has further held that the respondent was within permissible limit in asking the appellant to produce documentary evidence about his title as a landlord. The High Court, in our opinion, fell into a grave error in drawing such a conclusion. Even denial of a landlord’s title in the written statement can provide a ground for eviction of a tenant. It is also settled position in law that it is not necessary that the denial of title by the landlord should be anterior to the institution of eviction proceedings. This is so stated by this Court in Majati Subbarao v. P.V.K. Krishnarao(deceased) by LRs.[10].

14. The High Court has expressed that the respondent was justified in asking the appellant to produce the documents. Implicit in this observation is the High Court’s view that the respondent could have in an eviction suit got the title of the appellant finally adjudicated upon. There is a fallacy in this reasoning. In eviction proceedings the question of title to the properties in question may be incidentally gone into, but cannot be decided finally. Similar question fell for consideration of this Court in Bhagadi Kannabalu. In that case it was argued that the landlady was not entitled to inherit the properties in question and hence could not maintain the application for eviction on the ground of default and sub- letting under the A.P. Tenancy Act. This Court referred to its decision in Tej Bhan Madan v. II Additional District Judge and Ors.[11] in which it was held that a tenant was precluded from denying the title of the landlady on the general principle of estoppel between landlord and tenant and that this principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. Section 116 of the Evidence Act is clearly applicable to such a situation. This Court held that even if the landlady was not entitled to inherit the properties in question, she could still maintain the application for eviction and the finding of fact recorded by the courts below in favour of the landlady was not liable to be disturbed. The position on law was stated by this Court as under:

“In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding.”

 REPORTABLE

 Supreme Court of India

Keshar Bai vs Chhunulal on 7 January, 2014

Bench: Ranjana Prakash Desai, J. Chelameswar

CIVIL APPEAL NO. 106   OF 2014
      

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When tenant will not be evicted from tenanted premises even if he denies title of landlord?

Even the other ground, about denial of title by the tenant, the District Court has found that this plea was necessitated because of the civil suit pending between the appellant and one Vishwanath Tandale, filed by the appellant himself before the Civil Court bearing RCS No.1044 of 1983. That suit was pending at the relevant time. The fact that the respondent-tenant rushed to the Rent Controller immediately after receipt of notice from the appellant, is indicative of a bonafide plea taken by the respondent-tenant regarding dispute of ownership of the suit shop; and a plea legitimately available to the respondent-tenant. This finding of the District Court found favour with the High Court. Even in respect of this finding no interference is called for, being flawless.

NON-REPORTABLE

Supreme Court of India

Baburao vs Pokhardas(D) Tr.Lrs on 16 August, 2016

Bench: T.S. Thakur, A.M. Khanwilkar, D.Y. Chandrachud

Citation:(2016) 15 SCC 97

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How to ascertain existence of partnership for purpose of Rent Act?

In the light of the above finding, if one turns to law laid
down by the Apex Court in the case of Shama Prasad Raje v.
Ganpatrao, AIR 2000 SCW 3493, it is obligatory on the part of the
landlord to prove that the tenant has parted with possession of the
tenanted premises and such parting of possession must be backed
by for some consideration. In the instant case, it has been proved
that the possession is with defendant No. 2. The admission given
by defendant No. 1 that defendant No. 2 is his partner in the
business run under the name and style of respondent No. 3, itself
goes a long way to establish the case pleaded by the plaintiffs.
Assuming that there was partnership between defendant Nos. 1
and 2 brought into existence of on 23 September, 1976 the terms
and conditions thereof cannot be read for want of proof of
document. Assuming that the contents thereof can be read in
evidence, even then as already found, no genuine partnership
could be said to have been established. It was brought into
existence only to defeat the provisions of rent legislation. This
Court in case of Gangaram v. Ashok Kumar, 1969 Mh.L.J. Note
43 has held as under :
".....that the question whether relationship between the
petitioners amount to a partnership or not could not be
decided merely on the basis of a deed which they had
filed and the Court is entitled to examine all the incidents
of the relationship between the parties as shown by the
written agreement together with the surrounded
circumstances at the time when the contract was entered
into, conduct of the parties as well as other facts that
may be relevant, such for instance, as the right to control
the property, the manner in which the accounts of the
business are kept, the right to receive profits and the
liability to share the losses and from these deduce the
real intention of the parties. Existence of any written or
verbal agreement, between the parties, conduct of the
parties towards one another, the mode in which they
have dealt with one another, the mode in which each has
with the knowledge of the other dealt with other people,
are all Indicia which may help the Court in finding
whether partnership does or does not exist. The Court
must consider all the facts and circumstances of the
cases and draw an inference from them as a whole
without attributing undue weight to any one of them. It
will have to be found in each case whether a plea of
partnership which is put forth as a defence to an
application by the landlord under Clause 13(3)(iii) of the
Rent Control Order is intended to be a mere cloak to
cover up the use of the premises by a person other than
the tenant or whether the tenant is himself carrying on
the partnership business. Thus, the failure to produce
account books, the conduct of the tenant in not taking
part in the business which was carried on only in the
name of the stranger and the earlier conduct in subletting
the premises for a period of 5 years to another person
indicated that the document of partnership was merely a
cloak brought into being in order to defeat the
application of the landlord under Clause 13(3)(iii) of the
Rent Control Order. (Order of the Rent Control
authorities holding that the tenant had sublet the
premises upheld)."
29. Applying the tests laid down by this Court to the facts of the
present case, it has to be held that defendant No.1 has failed to establish
legal and genuine partnership between defendants No.1 and 2. Perusal
of questions and answers during the course of cross-examination of
D.W.1 as referred in paragraph 8 above also substantiates the case of
unlawful subletting by defendant No.1 in favour of defendant No.2. The
concurrent findings of fact recorded by the Courts below are based upon
appreciation of evidence on record. In the present case, the premises
and its availability for running business was the prime and basic
consideration for inducting defendant No.2 by the defendant No.1.

Partnership Deed has not been registered under the Partnership Act.
Perusal of the answer given by D.W.1 to question No.121 shows that
partners of defendant No.1 have no experience in the business of
Agarwood and perfumes. The Courts below have carefully scrutinized
the evidence in the light of law. In view thereof, I do not find that any
case is made out for invocation of powers under Section 115 of C.P.C.
Defendant No.1 was not in a position to demonstrate that the findings
recorded by the Courts below are perverse being based upon no
evidence or that they are contrary to the evidence on record. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.76 OF 2016
WITH
CIVIL APPLICATION NO.86 OF 2016
H. Vasanji & Company through Partner
Chirag Dinkar Thaker 
Vs.
Chandrakumari Harnamsingh Chowhan 

 CORAM : R. G. KETKAR, J.

Pronounced on: OCTOBER 13, 2016

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Whether court should allow amendment of plaint to bring on record subsequent event?

Thus, for the foregoing reasons, a ground on which the suit for eviction was not initially instituted, but if that ground being a ground for eviction under the Act and being available to the landlord during the suit, can be allowed to be taken by the landlord during the pendency of the suit and the landlord can legally ask the Court to allow amendment of the plaint taking into account the subsequent event after the institution of the suit and can legally press into service for the relief of eviction of the tenant on that ground (which is one of the grounds for eviction under the Act). As already stated above, such amendments on such grounds (of course being available under the Act) being based on subsequent event should be allowed in a suit for eviction against the tenant just to shorten the litigation, to preserve the rights of both the parties and to subserve the ends of justice. Reference may be made to the case of Sachchidanand v. Heeranand, MANU/BH/0066/1983 : AIR 1983 Pat 276:1983 BBCJ (HC) 168).

IN THE HIGH COURT OF PATNA

Civil Revn. No. 1128 of 1983

Decided On: 09.11.1983

Annapurna Agrawal and Ors.

Vs.

Jitendra Kumar Sinha and Anr.

Hon'ble Judges/Coram:

Ashwini Kumar Sinha , J.

Citation: AIR 1984 Patna 215

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Executability of compromise decree passed on the basis of compromise as per Rent Act

 Unless one of the grounds available under Section 16 is taken up, pleaded or shown to the Court at the time of compromise and unless it is mentioned in the compromise, the decree based on such compromise will not be executable. Landlord and tenant may enter into compromise, where tenant is ready to vacate the premises. Court is satisfied about it as the parties before the Court mutually agree, though any ground for eviction or vacating the rented premises, which is available under Section 16 of the Maharashtra Rent Control Act is not mentioned in the compromise, the compromise can be materialised if the tenant vacates the premises voluntarily. However, the obstacle in the execution will arise if premises is not vacated.

22. Thus, while submitting the terms of the compromise, it is mandatory that at least one of the grounds for eviction which is available under Section 16 of the Maharashtra Rent Control Act ought to have been mentioned in the compromise purshis or there should be a clear indication of such ground which might have been pleaded either in the plaint by landlord or in the written statement if the landlord is a defendant. Thereafter, it is the duty of the Court while recording the compromise, to satisfy itself that any ground under Section 16 ought to have been 

mentioned in the compromise and then accept it.

Bombay High Court

Abedali Khan S/O Rahematali Khan vs Devidas S/O Dhonduji Poghe on 28 September, 2011

Bench: Mridula Bhatkar

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Whether court can execute compromise decree for eviction of tenant if ground for eviction is not made out?

From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself, Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under s. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and

constitute a waiver of proof. They by themselves can be made the. foundation of the rights of the parties On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.

Supreme Court of India

Nagindas Ramdas vs Dalpatram Ichharam @ Brijram And ... on 30 November, 1973

Equivalent citations: 1974 AIR 471, 1974 SCR (2) 544

Bench: Sarkaria, R Singh

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When compromise decree under rent law will become unexecutable?

Thus, while submitting the terms of the compromise, it is mandatory that at least one of the grounds for eviction which is available under Section 16 of the Maharashtra Rent Control Act ought to have been mentioned in the compromise purshis or there should be a clear indication of such ground which might have been pleaded either in the plaint by landlord or in the written statement if the landlord is a defendant. Thereafter, it is the duty of the Court while recording the compromise, to satisfy itself that any ground under Section 16 ought to have been 

mentioned in the compromise and then accept it. In case of Roshan Lal (supra), the Apex Court has enlightened us on this issue and has held :

" If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenant's eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law." Passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either expressed or implied is not different.

Thus, in the terms of compromise why landlord wants premises and the ground, which is available under Section 16 21 

should reflect in the compromise, then only that compromise becomes executable.

On this background, the present compromise is to be looked into. In the compromise purshis, the status of the parties as landlord and tenant is accepted. No ground which is available under Section 16 of the Maharashtra Rent Control Act is mentioned, indicated or reflected. Therefore, the decree based upon the terms of the compromise being contrary to Section 16 of the Maharashtra Rent Control Act, becomes unexecutable.

Going back to the definition of Decree Holder, though the defendant-landlord is having a decree/order in his favour, the same is not executable, as in the compromise no ground available under Section 16 of the Maharashtra Rent Control Act is mentioned or clearly indicated. So, eviction of the tenant contrary to Section 16 of the Maharashtra Rent Control Act is violative to the said special statute.

Bombay High Court

Abedali Khan S/O Rahematali Khan vs Devidas S/O Dhonduji Poghe on 28 September, 2011

Bench: Mridula Bhatkar

CORAM : MRS MRIDULA BHATKAR, J.

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