Whether landlord can recover of tenanted premises on basis of title even if he has failed to prove landlord tenant relationship?

The trial court decreed the plaintiffs' suit and a decree for recovery of possession was passed on the basis of a perfect title found in the plaintiffs. Whether the plaintiffs could get a decree on the basis of their title or not was the moot question to be considered by the Court of appeal below; more so, when the trial Court in arriving at the finding that the 'plaintiffs had a valid title in the suit premises on the basis of their sale deed discussed the evidence (oral and documentary) on the record. The trial Court granted the decree (in parti in favour of the plaintiffs on the ground of equitable relief. Whether the decree could be granted in favour of the plaintiffs on the ground of equitable relief or not was the question to be considered by the lower appellate Court. The view taken by the Court of appeal below to the effect that if the decree for eviction could not be passed, as prayed in relief (a), the question of allowing the prayer in relief (b) did not arise, was not a correct view of law, as already decided by this Court in Second Appeal No. 458 of 1980 (Satyadeo Prasad v. Bibi Zulekha Khatoon), disposed of on 22nd of Mar. 1984.* Once the opportunity to establish title was given to the plaintiffs and plaintiffs did establish their title in the premises in question on the basis of their sale-deeds, there was no reason to deny the equitable relief to the plaintiffs. Such a view has been settled in the case of Satyadeo Prasad v. Bibi Zulekha Khatoon (Supra). The Court of appeal below should have gone into the question of title and seen for itself whether in its opinion, the plaintiffs had established their title in the premises in question, but, as already stated above, the court of appeal below, having taken an erroneous view of law, did not go into this question at all nor did it consider the various circumstances and the evidence, which were taken into consideration by the trial Court.

IN THE HIGH COURT OF PATNA

A.F.A.D. No. 308 of 1980

Decided On: 24.04.1984

Aras Khan Vs. Ali Mian

Hon'ble Judges/Coram:

Ashwini Kumar Sinha , J.

Citation: AIR 1985 Pat 126

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Guidelines of supreme court for fixation of rent by court

 According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels. These are as follows:

(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.

(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.

(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.

(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard to adjustment of the amount spent thereon, would have to be worked out between the parties.

(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.

(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.

(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.

22. These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4422 of 2011 (Arising out of S.L.P. (C) No. 6319 of 2007)

Decided On: 13.05.2011

 Mohammad Ahmad and Anr. Vs. Atma Ram Chauhan and Ors.

Hon'ble Judges/Coram:

Dalveer Bhandari and Deepak Verma, JJ.

Citation: 2011 (2) RCR (C) 972

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What factors are to be considered for determining landlord tenant relationship?

 The entire property bearing Cantonment Municipal No.1-19-1 to 13 (Old Nos. 105 and 106) situated at Guntroop Bazar, Rasoolpura, Secunderabad Cantonment measuring about 3000 sq. yards was purchased by the father of the respondent-landlord under two registered sale deeds in the years 1911 and 1912. Respondent-landlord has filed the registered sale deeds Exhibits P41 and P45 which clearly establish that the entire property of which the demised premises is also a part, the father of the respondent-landlord was the absolute owner.

The ownership of the property including demised premises is also established by the assessment records maintained by the Secunderabad Cantonment Board. 

 Insofar as the contention of the appellant that the property is the government property, PW-5 Balaiah, Mandal Revenue Officer, Secunderabad has stated in his evidence that after perusing the title deeds, Exhibit X2 was issued and that the land in question along with building Municipal No.1-19- 1 to 13 Secunderabad is a private property. 

Apart from the documentary evidence, respondent-landlord had also adduced oral evidence by examining his mother (PW-3), who has spoken about the tenancy and quantum of rent and she used to collect rents from the tenants. PW-4 who is in occupation of the other portion of the same building since 1965 till 1995 and who subsequently purchased the same from the legal heirs of M.A. Razack has also spoken about the tenancy of appellant-tenant.

7. We find that the Rent Appellate Court as well as the High Court have rightly and concurrently concluded that the respondent-landlord has established a jural relationship. The landlord's mother, though was not in the habit of issuing rent receipts, had maintained the account book Exhibit P4, which depicts the rent paid by tenants.

SUPREME COURT OF INDIA

Ahmad @ Mohd. Ahmad Vs. Mohd. Osman

[Civil Appeal No. 5654/2008]

Meer Sattar Ali (D) by LRS. Vs. Mohd. Osman

[Civil Appeal No. 5655/2008]

MOHAN M.

SHANTANAGOUDAR, J.

Dated: 30 march 2017.

Citation:(2017) 13 SCC 252

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Whether person claiming ownership on basis of will is to be impleaded in landlord tenant suit?

 I have given my thoughtful consideration to the arguments advanced by learned Counsel for the petitioner but I have not been able to persuade myself to agree with the same. The question as to who is entitled to rent from respondent No. 1 has necessarily to be decided by the Trial Court. Since respondent No. 2, Om Prakash Sharma, is claiming to have inherited the property by virtue of Will alleged to have been executed by Prem Devi, the question as to whether or not there was a relationship of landlord and tenant between the plaintiff and respondent No. 2 has to be decided by the Trial Court. In case, it is held by the Court that petitioner is not the landlord, his suit may have to be dismissed. In my view, without the presence of respondent No. 2, it may not be possible for the Court to decide the question as to whether there was a relationship of landlord and tenant between the parties. Learned Trial Court has, Therefore, rightly allowed the application since the presence of respondent No. 2 was material and necessary for deciding the matters in controversy between the parties in the suit. In my view, the Trial Court has neither exceeded its jurisdiction in allowing the application of respondent No. 2 nor there is any jurisdictional error in the impugned order.

IN THE HIGH COURT OF DELHI

Civil Revision No. 181 of 1994

Decided On: 18.01.2001

 Gayatri Devi Vs. Mangat Singh and Anr.

Hon'ble Judges/Coram:

S.K. Mahajan, J.

Citation: 2001(2) RCJ 616.

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Whether directory provisions of Rent Act can be reduced to a dead letter?

The Rajasthan Rent Control Act, 2001 (hereinafter “the Act of 2001”) was intended to expedite the adjudication of landlord-tenant disputes. Section 15(5) of the Act of 2001 even though directory in nature requires that the eviction petition be disposed of within 240 days of the service on the opposite party. But even the directory provisions of Act of 2001 cannot be reduced to a dead letter and eviction petitions allowed to remain pending for years, as in the instant case.

In the High Court of Rajasthan at Jaipur

(Before Alok Sharma, J.)

 Smt. Kamla Devi Bohrav. Bhagvan Das Bhatia, 

S.B. Civil Writ Petition No. 16303/2017

Decided on October 3, 2017

2017 SCC OnLine Raj 2570

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What is duty of court while deciding landlord tenant dispute?

The legislations made for dealing with such landlord-tenant disputes were pro-tenant as the court tends to bend towards the tenant in order to do justice with the tenant; but in the process of doing justice the Court cannot be over zealous and forget its duty towards the landlord also as ultimately, it is the landlord who owns the property and is entitled to possession of the same when he proves his bona fide beyond reasonable doubt as it is in the case before this Court.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1008 of 2017 (Arising out of Special Leave Petition (C) No. 19117 of 2013)

Decided On: 07.02.2017

 Nidhi Vs. Ram Kripal Sharma (D) thr. L.Rs.

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Whether landlord can evict tenant even if tenant is not in possession of property of built by him or allotted to him?

The words 'built' and 'allotted' do not mean that after building residence or after allotment of a residence, the tenant must also acquire its possession. If a tenant builds a house and does not occupy it, he is liable to eviction, according to the High Court. Similarly, if a residence is allotted to a tenant, but he does not occupy it and allows others to occupy the same, he is not protected, according to the High Court. The Act provides that building of a house by tenant or allotment of residence to him is a ground of eviction available to the land lord against his tenant. The learned Judge of the High Court was of the view that it is not necessary for a landlord to prove either that the tenant has built and acquired vacant possession of the building or that he has been allotted and taken possession of the allotted premises.
IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2150-53 of 1982

Decided On: 17.07.1987

Ganpat Ram Sharma and Ors.

Vs.

 Gayatri Devi

Hon'ble Judges/Coram:

S. Natarajan and Sabyasachi Mukherjee, JJ.

Citation: AIR 1987 SC 2016

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Whether eviction notice not in accordance with S 106 of transfer of property Act is valid?

 It has been urged by the learned Advocate for the appellant that the notice under section 106 of Transfer of Property Act the tenancy is terminated, in case of monthly tenancy, by 15 days' notice expiring with the end of one month of the tenancy. In this regard, the learned Advocate for the appellant has urged that if the notice given by the landlord is perused at Exhibit (39) it does not at all show that the tenancy is to expire with the end of the month of tenancy. The said notice has been given on 12th October, 1984, the same was received by the tenant on 13th October, 1984 whereas the tenancy is admittedly from 9th of each month and this exhibit (39) does not at all show that the tenancy was to expire by 8th of November 1984. This is clearly an illegal notice. To this the learned Advocate for the respondent has urged that this notice Exhibit (39) is an omnibus notice because it shows in the first instance that the tenant had agreed to vacate the demised premises after one month after the service of notice and that the suit has been filed on 13-11-1984. There was thus clear notice of 31 days. Similarly, it is alternatively provided that if the tenant thought that the rent note is not binding on him he was directed to vacate the demised premises after 15 days after the service of notice which would expire with the end of month. In view of this alternative notice it is suggested that the said notice is an omnibus and legal notice. Now, looking to the rent note it would be clear that it nowhere provides that the notice was to be a notice under section 106 of the Transfer of Property Act. On the other hand there is a contract between the landlord and tenant that the landlord was to give one month notice by way of prior knowledge to the tenant. This term of lease would be a term of the contract which is not subject to section 106 of the Transfer of Property Act. In this behalf learned advocate cited ruling MANU/TN/0437/1975 : AIR 1976 Mad 120 in case of K. Nasir Basha and another vs. Turukhan Chatram Charities, wherein it is laid down that "where the lease deed specifically stated that the lease should vacate the property whenever needed by the landlord on his giving 30 days' notice and the notice given stated to terminate it by the end of 30 days of the receipt of notice, held that there was a contract to the contrary in relation to the provisions of section 106." In this case, it is specifically agreed in between the parties that one month's notice was to be given irrespective of the month of tenancy. I, therefore, feel that the notice Exhibit (39) is a valid notice and is capable of terminating the tenancy of the defendant.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

S.A. No. 222 of 1988

Decided On: 26.06.1990

 Abdul Sattar Khan 

Vs.

Abdul Gani Khan

Hon'ble Judges/Coram:

A.A. Halbe, J.

Citation: 1991 MHLJ183 Bom

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When sub tenant can not claim right in tenanted property?

 Learned counsel for the respondent, Kishore Bafna, placed reliance on a case reported as 2012 (5) Mh.L.J 212 (Kersi Commissariat v. Ministry of Food & Civil Supplies). The facts of the reported case were similar to the facts of the present matter. Insurance Company was lessee and it had inducted one sub tenant in the year 1959 (allegedly without consent of the landlord of the Insurance Company). It was held by the Supreme Court that in view of the provisions of section 3(1)(b) of the Maharashtra Rent Control Act, 1999 the provisions of the Bombay Rent Act are not applicable. It was further held that once the Insurance Company, lessee was not the tenant for the purpose of the Rent Control Act, the sub tenant cannot enjoy the better protection or privilege.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 142 of 2015 and Civil Application No. 4015 of 2015

Decided On: 18.03.2016

The Dhulia Motors Owners Cooperative Consumers Stores Limited

Vs.

Kishor Mohanlal Bafna and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: AIR 2007 Bom 80

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Whether tenant is liable to be evicted from tenanted premises if he fails to pay rent regularly?

The facts unfolded in this case may now be examined in the light of the foregoing discussion. The rent, which the tenant was paying till 1996, was Rs. 3,555/per annum and not Rs. 1,320/per annum, as is claimed by the tenant. He had tendered the arrears of rent along with the reply to the notice of demand at the rate of Rs. 1,320/per annum only. The municipal taxes were being recovered at the rate of Rs. 580/per annum against Rs. 481/per annum, which was the amount which could have been claimed. Against municipal taxes, the tenant had tendered a sum of Rs. 1,740/, which was slightly in excess. After the suit was filed, the tenant made an application for fixation of standard rent, which was rejected and no challenge has been raised to such rejection separately. The tenant had not deposited the amount in arrears within 90 days of receipt of suit summons. He did not deposit the rent due during the pendency of the lis from time to time regularly as per the chart made available by the petitioner. Initially, the deposits were delayed by a month or two, but thereafter the deposits were not regular. The learned Counsel for the petitioner submitted that since the rent was payable by the year, these deviations by a month or two do not matter. Yet the fact remains that the tenant had neglected and failed to pay the amount of rent as on 1101987 within 90 days of notice of demand and even within 90 days of service of suit summons. He has also not been regular in depositing the rent and taxes during the pendency of the lis. The contention of the tenant that since the suit itself could not have been filed because of his readiness and willingness, and so he was not required to comply with the provisions of Sub-section (3) of Section 15 of the Maharashtra Rent Control Act and, therefore, does not incur ejectment, has to be rejected. At the cost of repetition, it has to be stated that mere desire to pay the rent is not enough. It must be translated into action. The tenant was under an obligation to comply with the demand and in any case to explain as to how, in his view, nothing was due or a lesser amount was due, and to have paid that amount. Not having done so, he loses the protection of the Rent Act and, therefore, would be liable to be evicted on account of failure to comply with the requirement of Sub-section (3) of Section 15 of the Maharashtra Rent Control Act. In this view of the matter, the decree of ejectment passed by the Trial Court and confirmed on appeal by the learned District Judge cannot be disturbed.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 2626 of 2007

Decided On: 21.08.2009

Girish Gangadhar Agrawal

Vs.

 Jiteshkumar Hasmukha Vakhariya

Hon'ble Judges/Coram:

R.C. Chavan, J.

Citation: 2009(6) MHLJ 875

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Whether tenant can be evicted from tenanted premises even if he has paid arrears of rent?

The entire Scheme of Chapter III - relief against forfeiture, as provided under the provisions of Section 15, indicates that a tenant can perform his obligation and then claim protection in the form of relief against forfeiture as forfeiture occurs in accordance with general law governing lease under the Transfer of Property Act. The provision protects the tenant from the forfeiture when the tenant is paying rent or has proved his readiness and willingness to pay it. Section 15(3) added further obligation upon the tenant to pay entire arrears till date with interest and costs, as may be ordered by the Court. If tenant is continuing to pay rent due during the pendency of the suit instituted against him on the ground of non-payment of standard rent and permitted increases, then such tenant is entitled to claim relief against forfeiture of tenancy. To put it otherwise, when tenant does not pay rent as agreed or pays rent only when legal notice is served upon him or Court summons is issued against him, the landlord is not helpless because sub-section (1) of Section 15 enables the landlord to insist upon the tenant to pay rent and perform the conditions of tenancy. The tenant who disobeys legal provisions u/s. 15(1) of the Act can be evicted independently, though such tenant may not necessarily be in arrears of rent on the date of institution of the suit. A tenant who is prompted or induced to pay only after service of legal notice or after service of Court summons cannot be viewed as a tenant who either pays or is ready and willing to pay standard rent and permitted increases. Section 15 of the Maharashtra Rent Act has extended protection to a tenant after the landlord seeks to exercise his right to forfeit the tenancy in accordance with the provisions of general law. A tenant, in order to claim relief against forfeiture of tenancy, gets a period of 90 days after service of pre-suit statutory demand notice by the landlord calling upon the tenant to pay entire arrears of standard rent and permitted increases payable to the landlord. Thereafter when suit is filed, the tenant gets additional opportunity to pay entire arrears of rent and permitted increases demanded after the suit summons is served upon him. Such a tenant has a period of 90 days from the date of service of suit summons to pay or tender the arrears of rent with simple interest thereupon @ 15 % p.a. During pendency of the suit, the protection is available as above to the tenant to claim relief against forfeiture of tenancy provided that the tenant shall continue to be regular in payment of standard rent and permitted increases payable during the pendency of the suit as also costs of the suit as directed by the Court. The Court cannot be oblivious of landlords who may have to survive only on rental income. Habitual irregular payment of rent and permitted increases by the tenant will prejudice and jeopardize very survival of such landlords who survive on rental income only. Therefore, such a tenant who may be habitually irregular in payment of standard rent and permitted increases can invite eviction in view of Section 15(1) of the Maharashtra Rent Act when the Court considers the case of such a tenant who commits breach of conditions of tenancy as also remains habitual in rental arrears. In such exceptional case, provisions of Section 15(1) are applicable and procedural compliances u/s. 15(2) and 15(3) will not apply.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Letters Patent Appeal No. 307 of 2012 in Writ Petition No. 1101 of 2007 (D)

Decided On: 23.10.2012

 Chandiram Dariyanumal Ahuja

Vs.

Akola Zilla Shram Wahtuk Sahakari Sanstha

Hon'ble Judges/Coram:

B.P. Dharmadhikari & A.P. Bhangale, JJ.

Citation: 2013(1) MH L J 28

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Whether there can be valid demand notice if copy of notice is sent to other side?

The question is: whether merely because copy of demand notice, which was addressed to defendant Nos. 1 and 2, was “forwarded” to defendant No. 3, fulfils the mandatory requirement of due service of a demand notice on the defendant No. 3 within the meaning of section 12(2) of the Act. By now, it is well established position that, unless a notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882, no suit for recovery of possession can be maintained by the landlord against the tenant. The fact that defendants 1 and 2 have been duly served with the said demand notice would be of no avail, in the fact situation of the present case. In law, defendant No. 3 would become the direct tenant of the plaintiff in terms of section 5(1l)(aa) of the Act, soon after the determination of tenancy of defendant Nos. 1 and 2. On acquiring such status the plaintiff was obliged to serve the defendant No. 3 with a notice in writing about the demand of the standard rent and permitted increases in the manner provided in section 12(2) of the Act. It is not in dispute that the demand notice dated 22-10-1982 Exhibit 59 has been addressed to only defendants 1 and 2 and at the end of the notice it is mentioned that copy is marked to defendant No. 3 (i.e. C.C. sent for information). There is a marked difference between the requirement of sending a demand notice-which is necessarily required to be addressed to a person then merely forwarding a copy of such communication. The latter, at best is in the nature of apprising the recipient of that communication of the fact of issuance of a legal notice to the addressee (i.e. defendant Nos. 1 and 2) by the sender (plaintiff). On the other hand, the legal requirement is of sending or addressing a notice in writing of the demand to the tenant, which postulates putting him to notice about non-payment of the rent and permitted increases which is due, and “calling upon him to pay” the same forthwith, In other words, where the tenant happens to be an assignee, who is in possession of the suit premises in his own rights on account of a valid assignment and is allegedly in arrears of rent, a demand notice under section 12(2) must be given to him as well. In absence of such a notice to the assignee, the question of instituting ejectment suit against him on the ground of arrears of rent does not arise at all. In that, section 12(2) is a statutory bar for institution of suit against the tenant until a demand notice is issued to him and is duly served 
upon him in the manner provided for therein. The fact that the assignee may become aware about the contents of the demand notice sent to the original or head tenants does not extricate the landlord of his obligation to issue or address a valid demand notice to the assignee, if he wants to proceed even against the assignee along with the head-tenant for ejectment from the suit premises on the ground of arrears of rent. The fact that the plaintiff in this case was not aware that the defendant No. 3 (petitioner) was lawful transferee/assignee in the suit premises does not take the matter any further. The requirement of section 12(2) is not a mere formality. It is a mandatory provision and only on compliance of the said obligation, the cause of action to sue the tenant on the ground of arrears of rent would accrue to the landlord. Non-compliance of the said mandatory requirement in any manner would result in dismissal of the suit for want of cause of action-as the bar placed by sub-section (2) of section 12 of the Act is not lifted. A priori, even though respondent No. 1 (plaintiff) may have succeeded in getting ejectment decree against the defendants 1 and 2-the head tenants, that decree (insofar as the ground of default) will be of no avail against the assignee (defendant No. 3) unless it is shown that lawful demand notice was addressed also to transferee/assignee (defendant No. 3) and in spite of that notice he failed to pay the outstanding amount demanded in the said notice or file application for fixation of standard rent within a period of one month from the date of service of the notice.

Bombay High Court

Bombay Rent Act, Section 12(2) and (3)

(Bombay)

(Before A.M. Khanwilkar, J.)

Shankar Vishnu Sonar (Lohokare) 

Versus

Kusum Gajanan Pawar

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Whether landlord can seek eviction of tenant on ground of arrears of rent if valid notice is not issued to him?

Bombay High Court

Bombay Rent Act, Section 12(2) and (3)

(Bombay)

(Before A.M. Khanwilkar, J.)

Shankar Vishnu Sonar (Lohokare) 

Versus

Kusum Gajanan Pawar

W.P. No. 3794 of 1991

Decided on April 4, 2009.
Citation: 2009 Bom R C486

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When lawful sub tenancy is not proved?

 Admittedly, there is no material to show that the plaintiff/landlord has given consent or permission to defendant No. 1 to sub-let the premises at any point of time. Defendant No. 2 unable to place on record any original document of the year 1967. Carbon copy of the agreements just cannot be relied specially in the absence of supporting evidence of original tenant/defendant No. 1 with whom defendant No. 2 claiming valid sub-tenancy. Therefore, the trial Court is right in rejecting the carbon copies of agreements. There is nothing to prove even the signature of defendant No. 1 on these agreements. Defendant No. 2 should have examined defendant No. 1 to prove his case. This itself shows and proves the case of plaintiff that defendant No. 2 was inducted unauthorisedly by defendant No. 1. The licence fee receipt or the accounts as placed by defendant No. 2 in this background also unreliable. There is not a single receipt placed on record of such nature signed by defendant No. 1 in favour of defendant No. 2. The trial Court has raised various doubts about the account books placed on record by defendant No. 2 as there were many blank pages found in the same. He did not produce any assessment order prior to 1973 of his business. The account books have not been regularly maintained and in the present facts and circumstances are rightly rejected by the trial Court.

6. Defendant No. 2 in the absence of defendant No. 1 failed to prove that he was in occupation of the premises authorisedly prior to 1973. The Appellate Court, in my view, is wrong in reversing the findings given by the trial court that defendant No. 2 failed to prove his case of occupation prior to 1973. Defendant No. 2 admitted that the electricity meter was started on 26.09.1974. Admittedly, defendant No. 1 has left the premises and defendant No. 2 is in possession of the same unauthorisedly. Even assuming for a moment that the landlord mentioned in the termination notice that defendant No. 1 let out the premises to defendant No. 2 unlawfully since 1.7.1971, still the protection as claiming under Section 5(11) of the Bombay Rent Act on the footing that defendant No. 2 is in possession of the said room before 1.2.1973 cannot be extended being unauthorised occupant for want of consent or permission from the landlord and secondly, no material and evidence of defendant No. 1/original tenant to support the authorised sub-tenancy or licensee. No protection can be given to the unauthorised occupants specially in the facts and circumstances of the case as rightly observed by the trial Court. This background itself, in my view, supports the case of unauthorised sub-tenancy as contemplated under the Bombay Rent Act, in favour of the plaintiff/landlord. The payment of licence fee to defendant No. 1 in the absence of defendant No. 1's evidence or acceptance is of no use. Therefore, once I am also of the view that there is a sub-tenancy created unauthorisedly and documents are not sufficient to prove the payment of licence fee, as wrongly observed and held by the Appellate Court, there is no question of granting protection to defendant No. 2 as claimed as there was no authorised and valid relationship of licensor or licensee or lessor or lessee between the petitioner and even defendant No. 1.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2422 of 1991

Decided On: 15.01.2009

 Shri Ramanlal Kantilal Doshi

Vs.

Shri Lalchand Hemraj Nahar and Shri Hargovinddas Jagmohandas

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation: 2009 BomRC 117

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Basic principles for determination of compensation to be granted to landlord while granting stay to eviction decree

 What emerge from these are:

(a) The basic burden lies upon the landlord to prove and support his case of reasonable compensation/ mesne profits. He must put on record material documents/ along with the affidavit to support his case of enhanced compensation. The material if placed by the landlord / Licensor / Owner, the Court needs to consider the said material by giving full opportunity to the tenant / Licensee / Occupant / trespasser / obstructionists. Keeping in mind the effect of valuation or architecture's report / opinion and its validity being expert's opinion, which can be subjected to challenge from other side, if case is made out. (Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and Ors. MANU/SC/0745/1994 : [1994]1SCR368 .

(b) The valuation report / opinion may be at least one of the government recognized valuer, apart from private valuer report, if any. Both the parties are free to submit their material on the record to support their case through their respective affidavits. (The Special Land Acquisition Officer v. Sri Siddappa Omanna Tumari and Ors. MANU/SC/0160/1995 : AIR1995SC840 ).

(c) The Court also needs to consider the principle of Order 20 Rule 12 of the C.P.C. while determining this ad-interim compensation/ mesne profits. The Court also needs to keep in mind as observed in Para 8 in Atma Ram (supra), "quantified by this Court in this order, is only a tentative opinion formed by the Court on the basis of material made available for the parties.

The Apex Court in Ramnik Vallabhdas Madhvani and Ors. v. Taraben Pravinlal Madhavani MANU/SC/0891/2003 : (2004)1SCC497 , in reference to mesne profit observed as under:

Mesne profit has been defined in Section 2(12) of the Code of Civil Procedure to mean as profits which the person in wrongful possession of property actually received or might with ordinary diligence would have received therefrom, together with interest on such profits.

The Apex Court in another judgment (Anderson Wright & Co. v. Amar Nath Roy and Ors.) J.T. 2005(11) S.C.3, referring to earlier Supreme Court's judgment (Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. MANU/SC/1047/2004 : (2005)1SCC705 observed as under:

As held by this Court in Atma Ram Property (P) Ltd. v. Federal Motors (P) Ltd., once a decree for eviction has been passed, in the event of execution 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 the appeal being dismissed.

(d) The Court, needs to consider and take note of (i) the Rent Control Legislation, governing the particular premises/ residential or non-residential. (ii) the Location/ area of the premises (iii) the age/ nature of construction of the building/premises (iv) the facilities in the premises and outside the premises, advantages and disadvantages (v) the market value and the rental value of the premises based on architecture / expert / valuation reports / opinion (vi) other instances of the rent / license fees of similarly situated premises (vii) the date of termination of the tenancy / license.

(e) The Court also needs to consider that the compensation was awarded as condition precedent should not be oppressive and unreasonable which in a given case, if tenant failed to pay, has no option but to suffer the execution of a decree, as observed by the Apex Court. Niyas Ahmed (supra). The user and the use of the premises are also material.

(f) The market value changes with time. The stamp duty is also changes accordingly. The rent/ license fee/ compensation so fixed at the interim period, based upon the market value may in a given case needs to be changed or re-fixed if case is made out. It may go up or go down if market value changes drastically.

(g) One cannot overlook that at the time of basic agreement, both the parties mutually agreed to the particular rent/ Leave license fee irrespective of valuation of the property. Now, when the Court fixes the compensation/ license fee, after termination of the tenancy, there is no question of any agreed rent or compensation. The Court decides the same based upon the material available/ placed on the record read with other various factors as referred in the Judgment. (h) One important aspect is that the Court, after giving opportunities to both the parties, needs to decide the interim and urgent issue of grant of provisional fair and reasonable compensation/occupation charges, based upon authenticated material produced on the record, pending the Appeal, summarily. There is no question of detail trial, but it is an essential condition precedent to grant stay of the eviction decree/order on the footing of Order 41, Rule 5 of Civil Procedure Code. The final decision of the appeal should be uninfluenced by such tentative figure / order. Such provisional payment should be condition precedent but it is always adjustable. The amount so fixed in such proceedings is tentative figure. Such interim order/ payment is always subject to the final result of the appeal.

(i) The cases governing the leave and licence agreement as contemplated under the Mah. Rent Act need to be decided on the basis of the provisions of the Mah. Rent Act, as it provides and empowers the Competent Authority to pass an appropriate order that licensee, after expiry of leave and licence agreement, to pay double the agreed compensation/licence fee, pending the application for eviction. But there is no provision of such double licence fee pending the Appeal under the Mah. Rent Act. Therefore, in such cases in absence of any provision, the Appellate Court may pass appropriate order, considering various factors as referred above.

(j) The cases of trespasser, unauthorised occupant, obstructionist need to be dealt with again on different footing than that of a regular tenant/protected tenant/licensee as they are not governed by the Rent Control Legislation. Such unauthorised or illegal occupants, based upon the material produced on record, after giving opportunity to them may be directed to pay such occupation charges/compensation, pending the Appeal, at the current market rate/ rent which may be determined by the Court, taking note of interest of both the parties.

22. The Ready Reckoner is basically for calculation of the stamp duty as per the Bombay Stamp Act, 1958. The assessment/ calculation of stamp duty of the tenanted premises, if any is also based upon agreed rent. The market value in relation to the property means that property would fetch, particular amount if sold in the open market on the date of the document. The said market value of the property is also useful to consider the capital gain taxes. It is subject to adjudication in a given case, if objected. The market value of the property for the purpose of stamp duty or capital gain taxes, cannot be overlooked but while fixing the rent or license fee or compensation, the formula or method of compensation stamp duty cannot be extended arbitrarily. The various factors referred in this Judgment also need to be considered simultaneously based upon the material placed on record.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6858 of 2008

Decided On: 07.01.2009

Chandrakant Dhanu and Harishchandra Dhanu  Vs. Sharmila Kapur 

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

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Whether court should direct tenant to pay compensation to landlord while staying eviction decree?

 That apart, it is to be noted that the appellate Court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the tenant-appellant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate Court to put the tenant-appellant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Anr., MANU/SC/0079/1999 : [1999]1SCR311 , this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the Court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7988 of 2004 (Arising out of S.L.P. (C) No. 6415 of 2002)

Decided On: 10.12.2004

Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd.

Hon'ble Judges/Coram:

R.C. Lahoti, C.J. and G.P. Mathur, J.

Citation: 2005(3) BomCR274

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Whether landlord is entitled to enhancement of interim compensation?

 Moreover, the fact that the earlier unconditional interim order was granted after hearing both sides cannot preclude the landlord from applying for modification of the order so as to impose some legitimate condition to meet the ends of justice. Keeping in mind that the Writ Petition is not likely to reach for hearing for quite some time, the landlord who has succeeded in getting decree of eviction is entitled to claim suitable interim arrangement to meet the ends of justice.

IN THE HIGH COURT OF BOMBAY

Civil Application No. 37 of 2009 in Writ Petition No. 8702 of 2005

Decided On: 03.03.2009

 Super Max International Pvt. Ltd. and Ors.

Vs.

 R.M. Choksey and Co. 

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation:2009 BomRC78

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Whether limitation is provided for filing eviction proceeding on ground subletting?

 The counsel for the landlord contended that the telephone booth was installed in the year 1993 by the alleged subtenant, while the Rent Control Petition was filed only in the year 2001. It is the case of the tenant that the landlord is residing in the house situated just opposite to the petition schedule building. Counsel contends, there is no reason to believe, therefore, that the landlord did not know about the sublease, if any. Sublease without the consent of the landlord is a ground for eviction under Section 11(4)(i) of the Act. No period of limitation is prescribed for filing a Rent Control Petition on the ground of subletting. Subletting by the tenant does not really create a new right in respect of the building in favour of the landlord; on the other hand, the tenant loses the protection of the Act if he sublets. In the event of losing such protection, he should definitely suffer the consequences as provided in Section 11(4)(i). As held in Abdul Rahiman Kunju v. Rent Control Revisional Authority (1992 (2) KLT 600) the duration of possession of the building, however long it may be, is no reason to deny the landlord his right to get eviction, provided the ingredients of Section 11(4)(i) are established.
IN THE HIGH COURT OF KERALA

R.C.R.A. No. 58 of 2005

Decided On: 21.02.2005

 Mohammed Sageer

Vs.

 Prakash Thomas

Hon'ble Judges/Coram:

R. Bhaskaran and K.T. Sankaran, JJ.

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Whether sub tenancy will be binding on landlord if landlord is aware of sub tenancy?

 So far as subletting is concerned, there is no case for the tenant that any consent was obtained from the landlord to sublet the premises. It is also not proved that the lease confers on the tenant a right to sublet. Mere knowledge of the landlord about the occupation of the tenanted premises by the sublessee will not create a subtenancy which is binding on the landlord. (See Ram Saran v. Pyarelal and Anr. (MANU/SC/0596/1996 : AIR 1996 SC 2361)). 

IN THE HIGH COURT OF KERALA

R.C.R.A. No. 58 of 2005

Decided On: 21.02.2005

 Mohammed Sageer

Vs.

 Prakash Thomas

Hon'ble Judges/Coram:

R. Bhaskaran and K.T. Sankaran, JJ.

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How to appreciate evidence in case of subletting of premises?

 In Kunhikrishnan v. Madhavi (1991 (1) KLT 515) this Court held that on establishing that the tenant has transferred exclusive possession to another person, the Court may legitimately draw a presumption under Section 114 of the Evidence Act that the transfer was for valuable consideration so as to shift the burden of proof to the tenant to disprove the prima facie case of subletting established by the landlord. The terms and conditions under which the subtenant has occupied the premises may be unknown to the landlord and known only to the tenant and the subtenant. If the landlord has to prove positively by adducing evidence that the transfer of possession was for valuable consideration, it may not be possible to prove subletting in any case except in rarest of rare cases. Same is the view taken by this Court in Abdul Rahiman Kunju v. Rent Control Revisional Authority (1992 (2) KLT 600).

17. In Bharat Sales Ltd. v. Life Insurance Corporation of India (MANU/SC/0131/1998 : AIR 1998 SC 1240), the Supreme Court held that to prove subletting, production of affirmative evidence showing payment of monetary consideration by the subtenant to the tenant is not necessary. The law does not require such payment to be proved by affirmative evidence and the Court is permitted to draw its own inference upon the facts of the case proved at the trial.

IN THE HIGH COURT OF KERALA

R.C.R.A. No. 58 of 2005

Decided On: 21.02.2005

 Mohammed Sageer

Vs.

 Prakash Thomas

Hon'ble Judges/Coram:

R. Bhaskaran and K.T. Sankaran, JJ.

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