What are the rights of wife if landlord/lessor/licensor is seeking to evict her from a shared household obtained under Domestic violence Act?

  In case, the shared household of a woman is a

tenanted/allotted/licensed accommodation where tenancy/

allotment/license is in the name of husband, father-in

law or any other relative, the Act, 2005 does not

operate against the landlord/lessor/licensor in

initiating an appropriate proceedings for eviction of

the tenant/allottee/licensee qua the shared household.

However, in case the proceedings are due to any

collusion between the two, the woman, who is living in

the shared household has right to resist the

proceedings on all grounds which the

tenant/lessee/licensee could have taken in the

proceedings. The embargo under Section 17(2) of Act,

2005 of not to be evicted or excluded save in

accordance with the procedure established by law

operates only against the “respondent”, i.e., one who

is respondent within the meaning of Section 2(q) of

Act, 2005.{Para 117}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2483 of 2020

SATISH CHANDER AHUJA Vs  SNEHA AHUJA 

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Leading Supreme Court Judgment on legal consequences of filing of premature suit

We may now briefly sum up the correct position of law which is as follows :

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason.

The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases : (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See : Samar Singh v. Kedar Nath and Ors. - MANU/SC/0386/1987 : AIR1987SC1926). One more category of suits which may be added to -- where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2390 of 2002

Decided On: 11.03.2005

 Vithalbhai Pvt. Ltd.  Vs.  Union Bank of India

Hon'ble Judges/Coram:

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

Author: R.C. Lahoti, C.J.

Citation: (2005) 4 SCC 315, AIR 2005 SC 189, MANU/SC/0195/2005

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Supreme Court: Determination of lease U/S 111(d) of transfer of property Act-Doctrine of merger

 Learned Counsel for the writ Petitioner relying on provisions of Section 111 of the Transfer of Property Act, 1882 contends that leasehold rights have been merged in the lessor since when lessor's interest coalesces with lessee's interest, the principle of merger comes into play. He has placed reliance on judgment of this Court in T. Lakshmipathi and Ors. v. P. Nithyananda Reddy and Ors. MANU/SC/0263/2003 : (2003) 5 SCC 150 and Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. MANU/SC/0346/2005 : (2005) 5 SCC 492. This Court in T. Lakshmipathi (supra) had examined the doctrine of merger as contained in Section 111(d). In Paragraph Nos. 14 to 17, following was laid down:

14. The common-law doctrine of merger is statutorily embodied in the Transfer of Property Act, 1882. Section 111(d) provides:

111. Determination of lease.--A lease of immovable property, determines--

* **

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;

* * *"

A bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion.

15. In Badri Narain Jha v. Rameshwar Dayal Singh MANU/SC/0054/1951 : AIR 1951 SC 186, it was held by this Court that if the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchased only a part of the lessor's interest. In such a case the leasehold and the reversion cannot be said to coincide.

16. In Sk. Faqir Bakhsh v. Murli Dhar MANU/PR/0179/1931 : AIR 1931 PC 63, the Plaintiff was holding on lease a portion of the entire property. Subsequently, the Plaintiff and the Defendant became pro indiviso joint proprietors of the property by purchasing shares from the earlier owners. The lease was subsisting when the shares were bought by the parties. In a suit for accounts filed by the Plaintiff it was held that the Plaintiff's rights under lease of a part do not merge in his rights as joint proprietor of the whole of the property as between the parties the Plaintiff held a valid and subsisting lease.

17. A Division Bench of the Patna High Court in Parmeshwar Singh v. Sureba Kuer MANU/BH/0096/1925 : AIR 1925 Pat 530, held that Section 111(d) applies only to a case where the interests of the lessee and of the lessor in the whole of the property become vested at the same time in one person in the same right. Merger is largely a question of intention, dependent on circumstances, and the courts will presume against it when it operates to the disadvantage of a party, as was held by this Court in Nalakath Sainuddin v. Koorikadan Sulaiman, MANU/SC/0564/2002 : (2002) 6 SCC 1 (SCC para 20)."

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1533 and 1534 of 2019

Decided On: 12.02.2019

Delhi Development Authority  Vs.  Karamdeep Finance & Investment (I) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Ashok Bhushan and K.M. Joseph, JJ.

Citation: MANU/SC/0183/2019,(2020) 4 SCC 136

Author: Ashok Bhushan, J.

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Whether small cause court has jurisdiction to entertain the suit for specific performance of an agreement for the renewal of a lease deed?

The Apex Court in Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale MANU/SC/0633/1995 : 1995(2) SCC 665, while considering the provisions of Section 41(1) of the Presidency Small Causes Courts Act, 1882 which was pari materia with Section 26 of the Provincial Small Causes Courts Act, 1887 held that in a suit instituted by a person claiming to be a licensee of the premises for an injunction restraining the licensor from dispossessing the licensee or interfering with the possession or enjoyment of the property by the licensee would relate to the recovery of possession and fell within the exclusive jurisdiction of the Small Causes Court. 

11. Having considered the documents annexed to the Petition and the reply and having heard the counsel, indisputably the parties had a preexisting relationship of lessor and lessee and that in pursuance of a provision for renewal contained in the Lease Deed, Petitioner was seeking a continuation of that relationship. Even though Petitioner states that they are only seeking specific performance, when a Court hears such a matter, the Court must find out what does the suit in substance and in essence says and whether it is relating to the recovery of possession or the recovery of licence fee, rent or other charges between a landlord and tenant or a licensor and licensee. The Court will decide the issue by looking at the kernel and disregarding the chaff, the nature of the cause of action; the character of the reliefs sought and whether the claim of the Petitioner arises from and out of the obligations of the parties as licensor and licensee or landlord and tenant. The garb or cloak which is wrapped around the pleadings by an astute draftsman must be kept aside to deduce the pith and substance of the pleadings.

12. In my view, considering the averments in the Petition, prayers sought in this Petition and the averments contained in Paragraph 11 of the rejoinder, this dispute certainly relates to recovery of possession and it is a matter to which Section 26 of Provincial Small Causes Court Act, 1887 applies notwithstanding the fact that some of the reliefs or a portion of the cause of action is structured around a claim for specific performance.

13. The petition, therefore, stands dismissed. Interim relief granted on 13th June 2017 stands vacated.

IN THE HIGH COURT OF BOMBAY

Arbitration Petition (Lodg.) 513 of 2017

Decided On: 01.08.2017

Trent Limited Vs. Nanasaheb Govindrao Aher and Ors.

Hon'ble Judges/Coram:

K.R. Shriram, J.
Citation: MANU/MH/1720/2017

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Whether finding given by reference court in land acquisition proceeding shall operate as res judicata in the suit for possession based on title or as a lessor?

Thus, the finding returned in the award of the Reference Court (Ex. PW1/12) that the lease stood determined on account of nonpayment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the Defendant's claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the Defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9918 of 2011

Decided On: 19.03.2020

 Nand Ram  Vs.   Jagdish Prasad

Hon'ble Judges/Coram:

L. Nageswara Rao and Hemant Gupta, JJ.

Citation: 2021(1) MHLJ 180

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Whether lessor can adjust money paid by lessee contrary to terms of lease deed?

 So far as the payment made by Petitioner towards lease premium and interest and adjustment thereof by Respondent No. 1 is concerned, Mr. Samdani relied upon the decision of the Apex Court in Industrial Credit Development Syndicate v. Smithaben H. Patel (MANU/SC/0092/1999 : (1999) 3 SCC 80 : (AIR 1999 SC 1036)) to contend that Respondent No. 1 was right in adjusting the amount paid by the Petitioner firstly towards the penal interest, then towards the interest and lastly towards the principle. Having gone through said decision, we are unable to buy the submission of Mr. Samdani. The Apex Court in this case was considering the question as to how the adjustment is to be made by the decree-holder under various heads comprising of principle, cost and interest. The Apex Court held that the payment has to be adjusted strictly in accordance with the direction of the Court, if any and in the absence of such direction the adjustment has to be made subject to an agreement to the contrary between the parties, firstly towards the interest and cost and thereafter towards the principle amount. The Apex Court was dealing with a situation about the adjustment of principle, cost and interest in pursuance of the decree of civil Court. So far as the present case is concerned, the liability of the parties has arisen in out of purely contractual obligation to pay interest, penal interest and premium as specified by clause 2(a) of the said supplementary lease deed. This clause does not stipulate that the payment by Petitioner is to be adjusted firstly towards the penal interest, then towards the interest and lastly towards the lease premium. The said clause simpliciter puts obligation on the part of the petitioner to pay lease premium in 4 annual equal installments with simple interest @ 10% per annum and in the event of delay in payment of installment, to pay penal interest at the prevailing prime lending rate decided by the RBI. Be that as it may, the Petitioner has annexed at Exhibit-D various receipts issued by Respondent No. 1 acknowledging the payment thereof. These receipts acknowledge the Petitioner's payment either to the lease premium or towards the interest or towards the penal interest. In short, whatever payment made by the Petitioner is specifically accepted by Respondent No. 1 either towards the lease premium or interest or penal interest. Now, therefore, it is not permissible for Respondent No. 1 to take a contrary stand. In our view, Respondent No. 1 cannot be permitted to act arbitrarily and therefore Respondent No. 1 shall adjust the said amount paid by the Petitioner as per the acknowledging receipts given by them.

9. As far as payment of penal interest is concerned, the issue is whether Respondent No. 1 can unilaterally seek to charge 4% additional interest over and above the agreed RBI prime lending rate. In our prima facie opinion, the Respondents are bound by the terms of mutually agreed and as recorded in the supplementary lease deed dated 29th October, 2013. The mutually agreed rate of penal interest is as per the RBI prime lending rate. Respondent No. 1 however by issuing the impugned circular dated 19th August, 2018 decided to charge penal interest at 4% over and above the prime lending rate. In this circular itself the prime lending rate is prescribed by Respondent No. 1 at 9.55% from 1st July, 2018. When there is mutual contract between the parties, the terms of this contract cannot be unilaterally changed. In our prima facie opinion, therefore, the Respondents are not entitled to charge 4% penal interest over and above the prime lending rate.

IN THE HIGH COURT OF BOMBAY

Writ Petition Ld. No. 212 of 2019

Decided On: 20.02.2019

Raghuleela Builders Private Limited Vs. Mumbai Metropolitan Region Development Authority and Ors.

Hon'ble Judges/Coram:

R.V. More and Bharati H. Dangre, JJ.

Citation: AIR 2019(NOC) 827 Bom

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Whether court can direct occupant to deposit damages if it is not proved that he is tenant?

A plain reading of the aforesaid provision would make it manifest that for application of the Order XV-A, it must be a suit by a lessor or a licensor against a lessee or a licensee. In the present case, the respondents did not approach the trial Court with a case that they are lessors. They did not state the rate of rent agreed between the parties. They did not assert that the tenancy of the petitioner was attorned in their favour. They are the purchasers of the house property and as such the earlier existing tenancy would stand attorned if the appropriate communication is made to the tenant. The case of the respondents is that the petitioner has encroached over one of the room and had occupied another room by consent of the previous owner. The provision of Order XV-A would come into play only when there is prima facie evidence to show that the rent or licence fees was agreed between the parties and a particular sum could be charged as a liability. The next significant aspect is that the learned trial Court further passed order of striking off the defence of the petitioner on account of non-compliance of the impugned order. For this purpose, Sub-rule (2) of Order XV-A is required to be considered. It is conspicuous that before passing order for striking off the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause shown in order to decide as to whether the defendant should be relieved from the order striking off the defence. Thus, the legislature has offered second opportunity to the defendant before striking off the defence and has afforded right of hearing. Such a person can show cause as to why the order could not be complied with and in that case, after application of judicial mind, the Court has discretion to relieve such a person from such an order of striking off the defence. Needless to say, the striking off the defence is not automatic only because of non depositing of the amount as directed by the Court. The defence cannot be so lightly struck off as has been done in the present case.

These observations of the trial Court would show that the trial Court was unmindful to the pleadings of the parties. The respondents/plaintiffs were not praying that the defendant shall be directed to deposit Rs. 36,000/- towards arrears of rent. What they prayed was that amount of compensation and damages for use and occupation of the premises shall be directed to be deposited. It was necessary for the trial Court to first determine, prima facie, whether there exists relationship of lessor and lessee between the parties and then to determine quantum of rent agreed between them. Without undertaking such exercise, the trial Court proceeded to assume that amount of Rs. 36,000/- is due from the petitioner. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 100 of 2006

Decided On: 17.10.2006

Radheshyam  Vs. Tuljaprasad and Ors.

Hon'ble Judges/Coram: 

V.R. Kingaonkar, J.

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Whether valid tenancy can be created if lease deed does not bear signature of lessor?

So far as the contention on behalf of the petitioner
regarding the need of signature of the lessor on the deed of
kirayanama for creation of a valid tenancy is concerned, the law has
been settled by the Apex Court in the case of Rajendra Pratap Singh
Vs. Rameshwar Prasad, 1998 (7) SCC 602 that merely because the
document shows only the signature of one of the parties, it is not
enough to conclude that the non-signing party has not joined in the
execution of the instrument. 

IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.1861 of 2009

 Sudhir Kumar  Vs  Sri Uma Shankar Pd. Gupta.

CORAM:  MR. JUSTICE V. NATH

Date: 20-07-2017
Citation: AIR 2017(NOC) 926 Pat

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Once a lease expires,it bounden duty of lessee to put lessor into possession of leased premises.

1. Section 105 of the Transfer of Property Act, 1882 defines a lease of an immovable property as a transfer of a right to enjoy immovable property for a certain time, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. The transferor is called the lessor and the transferee is called the lessee. The price is called the premium and the money, share, service or other thing to be so rendered is called the rent. 

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