How should Appellate court calculate interim compensation when staying eviction decree if vacant land was rented on which tenant has raised construction?

 So far as the question of compensation is concerned, Mr. Naidu is right that it cannot be based on the valuation of the building ‘Garment House’. After all, what was leased out was the land; the construction on the land, if any, made during the subsistence of the tenancy, was to belong to the lessee. Compensation can accordingly be based only on the value of the land, the fruits of which may be said to be lost unto the Plaintiffs as a result of the stay of the eviction decree obtained by them. There is another way of looking at the land value. The land may well be commercially exploited either by retaining the structure (since the terms of the lease permit such retention upon payment) or, alternatively, by demolishing the existing structure and constructing on the land. In either case, the landlord would have to incur capital cost by purchasing the building or paying for the new construction. In either premises, commercial letting of constructed premises cannot be the basis of valuation; it would have to be letting of land.{Para 8}

13 The only legitimate basis for working out interim compensation in our case appears to be the actual price paid for the suit property (i.e. essentially the land) by Respondent No.19. Respondent No.19 has acquired reversionary right of the lessors in the suit property for a sum of Rs.5.50 crores. Evidently, this has been a concrete deal at arms length between men of commerce; it does take into account or, at any rate, must be presumed to have taken into account, all aspects arising out of the lessee’s right to the existing structure at the expiry of the lease. It may safely, at least for our purposes, which, as we have seen above, in any event, involve a certain ad-hocism, be taken as the basis for working out a fair interim compensation.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.357 OF 2017

Vijay Anant Gangan   Vs  Zenabibi Gulam Rasool And Others 

CORAM : S.C. GUPTE, J.

PRONOUNCED ON : 5 NOVEMBER 2020

Print Page

Whether tenant pleading oral tenancy can get protection under SARFAESI Act?

  Thus, even if we keep aside the contentions on the cause of action, it is very evident that no tenant pleading oral tenancy could get the protection from the provisions of the Securitisation Act. Besides that, as we have noted, Section 34 is emphatic in its declaration that Civil Court shall have no jurisdiction over any matter which the Debts Recovery Tribunal or the Appellate Tribunal is empowered under this Act to determine. And, last, none of the reliefs the petitioner has sought is amenable to an ordinary civil court’s jurisdiction.{Para 58}

IN THE HIGH COURT OF BOMBAY AT GOA

FIRST APPEAL NO.15 OF 2019

Modinasab Indikar V/s  Board of Directors of Indian Overseas Bank, 

Coram:- DAMA SESHADRI NAIDU, J.

Date:- 14th February 2020

Print Page

Whether court can treat conducting agreement as a leave and license agreement if the word rent is used in said agreement?

 In line with the law laid down, it is clear that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month. Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to  note that the extension of the contract was on same conditions. {Para 16}

17. On consideration of the matter, the High Court erred in

appreciating the ambit of Section 95, which led to consideration of

evidence which only indicates breach rather than ambiguity in the

language of contract. The evidence also points that the license was

created for continuation of existing business, rather than

license/lease of shop premises. If the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties. The counsel for respondent has emphasized much on the receipt of payment, which mentions the term ‘rent received’. However, in line with the clear unambiguous language of the contract, such evidence cannot be considered in the eyes of law.

REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10827 of 2010

Mangala Waman Karandikar (D) TR. LRS. Vs  Prakash Damodar Ranade 

N.V. RAMANA, CJI

Dated:  MAY 07, 2021

Print Page

Questions and answers on law part 22

 Q 1:- Landlord has wrongfully dispossessed tenant from tenanted premises. Tenant has filed suit under S 6 of specific relief act for recovery of possession of tenanted premises. Whether suit is maintainable before city civil court or small cause court?

Ans: S 41 of Presidential Small cause court Act

"41. (1) Notwithstanding anything contained elsewhere in this Act but subject to the provisions of sub-section (2), the Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.

Print Page

Whether the City civil court can entertain an eviction suit if the plaintiff had given suit premises to the defendant for conducting business?

  Section 41(1) of the Presidency Small Cause Courts Act would apply

only to the suit and proceedings between the licensor and licensee or

landlord and tenant relating to recovery of the possession of any immovable

property situated in Greater Bombay or relating to the recovery of license

fees or charges or rent therefor irrespective of the value of the subject matter

of the suit suits or proceedings. In my view, since the Small Causes Court

has already recorded the finding that the suit business was given by the husband of the plaintiff to the predecessor of the defendants on conducting

and there being no relationship of a landlord and tenant or licensor or

licensee, Section 41(1) of the Presidency Small Cause Courts Act, 1882

would not apply to the facts of this case. Perusal of the prayers in the plaint

and more particularly, prayer clause (a) clearly indicates that the plaintiff

had applied for declaration that the defendants were trespassers and have no

right, title or interest in the suit premises or in her business after the period

prescribed under the Conducting Agreement was over. In prayer clause (b),

the plaintiff had prayed for an order and direction against the defendants to

vacate the suit premises and its business being carried therein.

65] In my view, the reliefs sought in prayer clause (b) is incidental to the

prayer clause (a) and more particularly, would depend upon whether the

plaintiff had given the suit business to the defendants on conducting suit

business. The premises were given to the defendants for conducting the suit

business. In my view, prayer clause (b) thus, even otherwise could not be

considered as a suit for recovery of possession of the licensee premises. The

period of Conducting Agreement was admittedly over much before the date

of filing suit by the plaintiff. The alleged rights and interest claimed by the

defendants in the suit premises were already rejected by the Small Causes

Court by recording detailed findings of fact which findings have admittedly,

attained finality. The defendants thus being trespassers in respect of the suit

business and also the premises, the Suit filed by the plaintiff for various reliefs claimed in the plaint was thus maintainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

Print Page

Is finding recorded by small cause court upheld by the high court is binding on the party before city civil court in a parallel proceeding?

 The Trial Court dealt with the orders passed by the Small Causes

Court in the declaratory suit filed by the defendants, order passed by the

Appellate Bench of the Small Causes Court and the order passed by this

Court in Writ Petition No. 3521 of 1999 filed by the original defendant

recording various findings in favour of the plaintiff herein and against the

defendants. The Trial Court, accordingly, rightly held that the original

defendant was judicially held to be just conductor of the business and

nothing more, which finding had attained the finality. In view of the fact that

various issues which were raised by the defendants in this Suit were already

concluded by the Small Causes Court and upheld by the Appellate Bench

and this Court, those submissions made by both parties were rightly not

considered by the Trial Court once again in the impugned judgment and

decree. In my view, the findings rendered by the Small Causes Court,

Appellate Bench of the Small Causes Court and this Court in respect of the

suit premises were binding on the parties in the parallel proceedings raising

similar issues.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 1791 OF 2007

Shri Purshottam Shankar Shetye  Vs  Abhay Shridhar Shetye

CORAM : R.D. DHANUKA, J.

PRONOUNCED ON : 19th MAY 2020

Citation: 2020(6) MHLJ 86

Print Page

Whether court can direct the licensee to pay maintenance charges to the licensor in application U/O 15A of CPC in eviction suit?

The only question to be considered is whether the maintenance charges could have been directed to be paid under Over XV-A of the Code as prayed for by the defendants.

From the aforesaid averments it is clear that the plaintiff has admitted that it is liable to pay maintenance charges of Rs.25,000/- per month during the period of Leave and Licence agreement. As stated above the said agreement specifically refers to various amenities provided by the licensor and with a view to enable the licensee to enjoy the same the plaintiff is required to pay Rs.25,000/- per month.

10. The provisions of Section 7(14) of the said Act define the term "standard rent". The standard rent in the present case has not been determined under Section 8 of the said Act. However reading of both the agreements on the basis of which the plaintiff has been inducted as a licensee indicates that besides the amount of licence fees, it is also liable to pay maintenance charges and failure to pay maintenance charges gives a cause of action to the licensor to terminate the licence.

 In Puspa Sen Gupta vs. Susma Ghose (1990) 2 SCC 651 while considering the provisions of West Bengal Premises Tenancy Act, 1956 and the question whether the tenant was liable to pay amount of Rs.8/- per month towards electricity besides Rs.32/- as rent, it was observed that the expression "rent" was not defined under relevant Act. However on reading the entire Act, the word "rent" would also include payment in respect of amenities or services provided by the landlord under the term of tenancy. It was observed that considering various provisions a tenancy would carry with it amenities to be provided or services to be maintained by the landlord and hence the amount of rent would include the amount of electricity charges. Drawing support from the aforesaid observations it can be said in the facts of the present case that the plaintiff was liable to pay maintenance charges besides license fees. This has infact been admitted by the plaintiff in its written statement to the counter-claim. In that view of the matter the trial Court was not justified in refusing to direct the plaintiff to pay Rs.25,000/- per month towards maintenance charges. The impugned order therefore is liable to be modified accordingly.

 Bombay High Court

Daksha  Jyotindra Patel And Vs Big V. Telecom Pvt. Ltd. Nagpur ... on 8 November, 2019

Bench: A.S. Chandurkar

  WRIT PETITION NO.3553 OF 2019



CORAM : A. S. CHANDURKAR, J.

 Judgment pronounced on : November 08, 2019 

Citation: 2020(6) MHLJ 313

Print Page

Supreme Court: Landlord-Tenant Disputes Under Transfer Of Property Act Arbitrable Except When Covered By Rent Control Laws

  Landlord-tenant disputes governed by the Transfer of Property Act are arbitrable as they are not actions in rem but pertain to subordinate rights in personam that arise from rights in rem. Such actions normally would not affect third-party rights or have erga omnes affect or require centralized adjudication. An award passed deciding landlord-tenant disputes can be executed and enforced like a decree of the civil court. Landlord-tenant disputes do not relate to inalienable and sovereign functions of the State. The provisions of the Transfer of Property Act do not expressly or by necessary implication bar arbitration. Transfer of Property Act, like all other Acts, has a public purpose, that is, to regulate landlord-tenant relationships and the arbitrator would be bound by the provisions, including provisions which enure and protect the tenants.{Para 48}

49. In view of the aforesaid, we overrule the ratio laid down in Himangni Enterprises and hold that landlord-tenant disputes are arbitrable as the Transfer of Property Act does not forbid or foreclose arbitration. However, landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations. Such rights and obligations can only be adjudicated and enforced by the specified court/forum, and not through arbitration.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2402 of 2019, 

Decided On: 14.12.2020

 Vidya Drolia and Ors. Vs.  Durga Trading Corporation and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, Sanjiv Khanna and Krishna Murari, JJ.

Citation: MANU/SC/0939/2020

Read full judgment here: Click here

Print Page

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

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

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

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

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

 IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5341 and 5342 of 2018

Decided On: 27.04.2020

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

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: MANU/MH/0539/2020

Print Page

Whether the court should dismiss eviction suit if the tenant takes plea that change of user of tenanted premises is not permissible?

(j) Prohibition on the Change of User:

74. About the State Government's directions issued on 03.12.2009 and consequential regulatory orders passed by the Municipal Corporations concerned, the Courts below have held that those directions came much later, and after the decree was passed, at that. They have also opined that the Corporation could not prove that those directions apply to Nashik.

75. At any rate, on the issue about the restrictions on the change of use, this Court has ruled in Cricket Club of India Ltd. In that case, the respondent leased the suit property in March 1943 to the applicant's predecessor, for running a filling station. In December 2000, after the original tenant's death, the respondent issued quit notice under Section 106 of the Transfer of Property Act to the applicant. Later, he sued the applicant for eviction. He filed the suit under Section 41 of the Presidency Small Causes Court Act, 1882. On contest, the Small Cause Court decreed the suit. In appeal, it was confirmed.

76. The applicant took the matter to this Court as a Civil Revision Application. The applicant brought to this Court's notice a statutory change: Under Section 154 of the Maharashtra Regional and Town Planning Act, 1966, the State Government directed the Municipal Corporations in the State not to permit the change of use of the properties being used as fuel filling stations. So the applicant contended that even if the respondent recovered the leased property, he could not use it for any purposes other than for setting up a filling station. According to the applicant, this subsequent material change goes to the root of the matter.

77. This Court, then, has held that the respondent's effort to evict the applicant are legal, and "there is no challenge on that aspect." In the absence of any protection under the Maharashtra Rent Control Act, the decree for possession must follow. On the issue of change of use, it has held that "the direction issued by the State Government will not affect the merits of the decree for eviction. The result of the said direction is that as and when the Respondent seeks permission to redevelop the suit property in question, the Mumbai Municipal Corporation will not be entitled to permit change of present user of the property." But it has nothing to do with the decree for eviction.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 561 of 2018 and 562 of 2016 in Regular Civil Appeal No. 237 of 2005 in Regular Civil Suit No. 149 of 1998

Decided On: 27.04.2020

 K.B. Lahoti and Company and Ors. Vs. Champalal Vithuram Jajoo and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: 2020(5) MHLJ 196,MANU/MH/0535/2020

Print Page

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

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

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

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

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

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

(Emphasis supplied)

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

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 7315 of 2011

Decided On: 18.10.2011

 Hansa Bhaskar Dave Vs. Harihar Himmatlal Mehta

Hon'ble Judges/Coram:

G.S. Godbole, J.

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

Print Page

Whether order rejecting an application for rejection of plaint is revisable before the appellate bench of small cause court?

 Let us remember that Bhartiben Shah has approved Hemchand's dictum that interlocutory and other orders which the Special Court can pass in entertaining, trying, and deciding matters within its exclusive jurisdiction "which are appealable [or revisable] under the provisions of the Code of Civil Procedure will be appealable [or revisable] under Section 29 of the Rent Act [or Section 34 of the New Act]."

54. Let us also remember that Bhartiben Shah has approved Aspi R. Setha v. Sunermal M. Bafna. In the context of abatement, the Court has observed that had the application been allowed, the suit would have been dismissed as having been abated. And that order would have materially affected the parties' rights.

55. Here, too, as is the case with Aspi R. Setha, had the defendant's application been allowed, it would have resulted in the rejection of the plaint and the dismissal of the suit. Thus, it would have affected the parties' rights. So, we cannot say an application under Order 7, Rule 11 of CPC, even if dismissed, is a mere procedural step. The application decided either way, it substantially affects the parties' rights one way or the other. So it is eminently revisable. And that revision must be under Section 34 (4) of the Maharashtra Rent Control Act, 1999.

56. As a result, I hold that the revision is maintainable neither under Article 227 of the Constitution of India nor under Section 115 of the CPC; it is only under Section 34 (4) of the Maharashtra Rent Control Act, 1999.

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4294 of 2018

Decided On: 18.12.2019

 Jasraj Lalaji Oswal Vs. Raziya Mehboob Patel and Ors.

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: MANU/MH/3597/2019,2020(5) MHLJ681

Print Page

Questions and answers in law part 12

Q.1 What is limitation for filing suit for eviction against tenant on ground of subletting?

Ans:- After hearing both the learned Counsel, and after perusal of the Trial Court judgment and the lower Appellate Court judgment, it is clear that in the instant case, though the tenancy was created in favour of Respondent No. 1, the Respondent No. 1 never stayed in the suit premises, right from inception, i.e. 1st February, 1969. On the contrary, the Respondent No. 1 had illegally sub-let the same to Respondent Nos. 2 and 3 from 1st February, 1969. If that be so, the breach of tenancy conditions occurred on 1st February, 1969, and the suit ought to have been filed within 12 years, as per Article 66 of the Limitation Act. Ex-facie the suit is barred by law of limitation. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 684 of 1991

Decided On: 05.12.2006

 Shri Taherbhai Taiyebhai Poonawala, Vs.  Shri G. Hamid Hasan Patel 

Hon'ble Judges: 

Dr. S. Radhakrishnan, J.

Print Page

Whether the court can impound photocopy of the tenancy agreement?

 By these writ petitions, the original plaintiff as well

as defendant No.1 have challenged judgment and order dated

03/10/2019, passed by the District Judge-5, Nagpur, in

Miscellaneous Civil Application No. 208 of 2019, whereby

appeal filed by the original defendant No.1 has been allowed

and an agreement of tenancy has been impounded to pay

requisite stamp duty and penalty thereon and thereafter, it is

directed that the said document be exhibited for collateral

purpose. It is significant that the said document is not original

agreement dated 26/10/1999, but, a photo copy thereof.

17. Therefore, the position of law appears to be

absolutely clear to the effect that photo copy of a document

cannot be treated as an “instrument” under Section 2(l) of the

Maharashtra Stamps Act, 1958 and no order for impounding

such document can be passed. Thus, the Court below erred in

passing the impugned order directing that the document in

question i.e. photo copy of alleged agreement dated

26/10/1999, was to be impounded for payment of requisite

stamp duty and penalty thereon. As a result, the consequent

direction for exhibiting the document for collateral purpose

after payment of requisite stamp duty and penalty can also not

be sustained.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Writ Petition No. 8245 of 2019

Shri Pradeep Shyamrao Kakirwar, Vs.  Dr. Smt.Seema Arun Mankar,

CORAM : MANISH PITALE, J.

PRONOUNCED ON : 27.04.2020

Print Page

Whether the Appellate court can permit conversion of the civil appeal into cross-objection?

The Appellate Bench of the Court appears to have also considered various judgments cited at the Bar on the applicability of Section 151 of the Code. The court held that the provisions of Section 151 could be invoked, only when there was no specific provision to deal with the issue. Though the relevance of this principle has not been fully stated by the court in the context of the issue at hand, the emphasis appears to be on the fact that there is a specific provision, namely, Order 41 Rule 22 of the Code, whereunder the respondent to an appeal could file a cross objection; that provision did not provide for conversion of an appeal into a cross-objection; and therefore, there was no scope to allow conversion of the present appeal into a cross-objection. No doubt there is no specific provision to permit this, but there is equally no specific provision barring the court from ordering such conversion. Since a cross-objection was anyway maintainable and there was no specific provision barring conversion of an appeal into cross-objection, there was a legitimate case for invoking the provisions of Section 151 of the Code and ordering such conversion. The provisions exist for enabling civil courts to do complete justice, when a particular course seems to be advisable or just, but there is no specific provision to allow such course. The provision cannot be resorted to, however, when a specific provision of law bars such a course, either expressly or by implication.

9. Accordingly, the impugned order of the Appellate Court cannot be sustained. Rule is made absolute and the writ petition is allowed by quashing and setting aside the impugned order and allowing the Petitioners' application, being Exhibit '10'. 

 IN THE HIGH COURT OF BOMBAY

Writ Petition No. 93 of 2017

Decided On: 06.09.2019

 Nelufer Behram Irani  Vs. Asha R. Kotian and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/2612/2019,2020(2) MHLJ703

Print Page

Whether Small causes court Act can deal with the dispute between landlord and tenant after enforcement of Waqf (Amendment) Act, 2013?

Suit for eviction of a tenant in the State of U.P. is cognizable by Judge Small Cause under the Provincial Small Cause Act, 1971. Thus, such cases have been taken out of jurisdiction of regular civil courts and have been entrusted to Small Cause Courts for ensuring early adjudication.

39. Learned counsel would submit that in view of the amendment in the Act after terminating tenancy, tenant becomes liable for ejectment and proceeding for eviction will be undertaken under the Wakf Act (as amended in 2013). Consequently, the civil court, namely, Small Cause court will have no jurisdiction and since the decree passed by Small cause court, impugned in the revision, is without jurisdiction, same deserves to be set aside.

46. Thus, it is manifest that by means of The Wakf (Amendment) Act, No. 27 of 2013 word "encroacher" was defined and power has been given to Wakf Tribunal to pass order of eviction. This amendment does not say anything about the pending proceeding.

47. Suit was filed on 20th March, 2009. Amendment has come into force on 1st November, 2013. Will amendment apply to the pending cases? There is no saving Clause in Amendment Act. There is nothing in the Act which makes the Amending Act retrospective.

48. Section 5 of The Wakf (Amendment) Act, No. 27 of 2013 says that " In section 3 of the principal Act (I) after clause (e), the following clause shall be inserted, namely (ee) "encroacher" means any person or institution, public or private occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board. There is no indication that this clause was sought to be made retrospective.

49. Similarly, Section 32 of the Amending Act whereby it amends Section 54 of the principal Act, says nothing that makes it retrospective. Even otherwise declaring somebody an encroacher amounts to declaring the character of a person which ordinarily cannot be done retrospectively. There is no contrary legislative intention discernible from the language of the provision.

50. Amendment of Section 54 further contemplates that application to the Tribunal for grant of order of eviction or removing shall be moved which means that Tribunal will start working prospectively. Section 54 (4) of the Act makes this position further clear and shows that Tribunal will work prospectively.

51. Section 56 of the Amending Act gives the overriding effect. Section 108A does not say anything about the pending proceedings. Consequently, proceedings which are pending on the date of amendment will continue to be dealt with in accordance with the prevalent law.

52. It is evident that by virtue of amendment, specific jurisdiction has been conferred on the Tribunal. Obviously, this will be prospective and in the absence of any provision for transfer of pending cases to the Tribunal, same will continue to be dealt with by the courts in accordance with the prevalent law and amendment at the most can take effect from 01.11.2013. 

IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)

S.C.C. Revision No. 62 of 2015

Decided On: 09.10.2015

 Sageer Ahmad  Vs.  Wakf Masjid Mohalla-Kazipura Wakf No. 9 and Ors.

Hon'ble Judges/Coram:

S.K. Saxena, J.

Citation: MANU/UP/1509/2015

Print Page

Whether licence granted to the licensee is revoked on the filing of eviction suit?

Also, it is clarified that the plea of the defendant she had never received the legal notice dated 18.04.2015, has not been factored in this adjudication because in view of Section 61 of the Easements Act, 1882, the licence of the defendant to stay at the second and third floor of the suit property, stood definitely revoked, with effect from the day, when the defendant had received the summons for settlement of issues of this suit.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

Print Page

Whether property allotted on the license to the deceased is partible among his legal heirs?

The undersigned, after the hearing of this Second Appeal on 13th July, 2018 had observed that the appeal was entitled to be allowed, being of the view that once the land had been allotted to the father of the parties as far back as in the year 1968 and the father of the parties had raised construction of a permanent nature thereon and continued in occupation thereof till his demise in 1975 and that further since after his demise his heirs had been allowed to continue in occupation for 30 years, at least till the institution of the suit and even thereafter, without any disturbance from the grantor i.e. the DDA, the allotment even if any by way of a license, was of a right and the license was not of such a nature which was determinable by demise of the licensee. Even a license with respect to immovable property, once allowed to continue after the demise of the licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. In this context, I have in Shyam Behari Vs. Ram Kishan (MANU/DE/3688/2013) and Surjit Singh Vs. Ekta Gulati (MANU/DE/3916/2012, appeal where against was dismissed by the Supreme Court in its order dated 3rd March, 2016 in Civil Appeal No. 7332/2013 titled "Inderjit Kaur Vs. Ekta Gulati") held that the law of inheritance/succession covers all assets of the deceased including possessory rights of the deceased to any movable and immovable property. Parity was also drawn with tenancy/leasehold rights, which also are determinable by nature and with respect whereto also it is settled law [Iresh Duggal Vs. Virender Kumar Seth MANU/DE/3068/2014 : 2015 (221) DLT 216, Dalip Kumar Vs. Om Prakash MANU/DE/2534/2015 Ram Lal Sachdev Vs. Sneh Sinha MANU/DE/0222/2000, UOI Vs. Mohinder Pratap Soni MANU/DE/1035/2016, Madan Lal Vs. Kuldeep Kumar MANU/DE/4039/2013, Pragun Buildtech (P) Ltd. Vs. Sarla Aggarwal MANU/DE/1348/2012 : 190 (2012) DLT 164, Surendra Pal Singh Vs. Ravindra Pal Singh MANU/DE/1128/2014, Satish Kumar Chojar Vs. Subhasini Chopra MANU/DE/1460/2014] that the said rights are partible. It was also felt that the Trial Court as well as the First Appellate Court had fallen in error in dismissing the claim of the appellant/plaintiff for partition for the reason which was not pleaded by the respondents/defendants in the written statement and on which no issue had been framed.

IN THE HIGH COURT OF DELHI

RSA No. 394/2015

Decided On: 29.04.2020

Gopi Chand  Vs.  Geeta Devi and Ors.

Print Page

Whether finding on the question of a title given by Small Cause Court would be res judicata in a suit based on the title?

While dealing with the provisions of Section 23 of the Act, 1887, this Court in Budhu Mal v. Mahabir Prasad and Ors. AIR 1998 SC 1772, held as under:

It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Cause in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties.

(Emphasis added)

8. Procedure adopted in trial of the case before the Small Cause Court is summary in nature. Clause (35) of Schedule II to the Act 1887, made the Small Cause Court a court of limited jurisdiction. Certain suits are such in which the dispute is incapable of being decided in a summary manner. More so, the Small Cause Court does not possess exclusive jurisdiction as its jurisdiction is merely preferential. [Vide Ram Chandra Pandey v. Maheshwari Singh and Ors. MANU/UP/0118/1962 : AIR 1962 All 480; and Manzurul Haq and Anr. v. Hakim Mohsin Ali MANU/UP/0087/1970 : AIR 1970 All 604 (F.B.)]

9. Thus, it is evident that the finding on the issue of title recorded by the Small Cause Court does not operate as res judicata and ultimately the issue of title has to be adjudicated upon by the competent civil court. This view also stands supported by the judgments of this Court in Dhulabai etc. v. State of M.P. MANU/SC/0157/1968

IN THE SUPREME COURT OF INDIA

S.L.P. (C) Nos. 30648-30651/2010 (Arising out of CC Nos. 14376-14379 of 2010)

Decided On: 26.10.2010

Nirmal Jeet Singh Hoon  Vs.  Irtiza Hussain and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Print Page

Whether small cause court has jurisdiction to try the suit if the plaintiff takes inconsistent pleas of gratuitous licensee and trespasser?

Issue No. II:

Are there any contradictory pleas in the plaint to non-suit the plaintiff?

22. The petitioners here maintain that Vishala has taken contradictory pleas in the plaint. Those pleas are mutually destructive; they, in fact, denude the Small Cause Court of any jurisdiction to try the case.

23. First, I will refer to the authorities Vasanthi has relied on. In Prabhudas Damodar Kotecha, the Supreme Court has held that the Legislature having once conferred exclusive jurisdiction on one Court in all the suits between licensee and licensor, it would not have carved out any exception to keep gratuitous licensee alone outside its jurisdiction. Let me consider the next one. In another case, the High Court declared a sub-tenant trespasser and ordered his eviction. In that context, in Hiralal Vallabhram, the Supreme Court has held that once an occupant is a trespasser, the Civil Court, not the High Court, has the jurisdiction to order his eviction.

24. Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. So held the Supreme Court in Chapsibhai Dhanjibhai Danad. Then, on facts, it has observed that the appellant did not attempt, during the trial, to establish accession by adverse possession. On the contrary, he wanted to make out a case of easementary rights by prescription. That plea, the Court held, was incompatible with the appellant's claim of adverse possession.

25. In Udhav Singh v. Madhav Rao Scindia [MANU/SC/0302/1975 : [1976] 2 SCR 246], the Supreme Court has held that any ingenious method of construction after compartmentalisation, dissection, segregation, or inversion of the language of the pleadings runs counter to the cardinal cannon of interpretation. In other words, a pleading must be read as a whole to ascertain its true import. It is not permissible to single out a sentence or a passage, and to read it out of the context--in isolation. Udhav Singh has further held that "it is the substance and not merely the form that has to be looked into."

26. In Ram Sarup Gupta (Dead) by Lrs. v. Bishun Narain Inter College [MANU/SC/0043/1987 : [1987] 2 SCC], the Supreme Court has further observed that the pleadings should receive liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

27. Coming back to the facts, I may note that in para 10 of the plaint, Vishala has pleaded that she moved to occupy the flat in February 1969. Her sister and brother-in-law followed her to the suit flat on the ground that their residence was uncomfortable and inadequate. Given their relationship, she could not object. Then, she pleads in para 26 that they are "in permissive occupation of the suit flat" along with her from 1969 to 1986, when Vishala sought their eviction.

28. In para 31, Vishala has pleaded that her sister turned dishonest and falsely advanced the benami-story. She again asserts that until "11.6.1986 the defendants were in permissive occupation. . . without any payment of charge." She has further pleaded that "from 11.6.1986, the defendants [have been] virtually trespassers in the suit flat and are hence liable to [be] vacate[d]."

29. True, when the suit was transferred, Vishala, it seems, added to the prayer clause that she is "the licensor and the defendants are the gratuitous licencees." This assertion, though, is not without foundation in the pleadings. Besides, Vishala has described her sister and brother-in-law as "virtual trespassers." In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [MANU/SC/1047/2004 : (2005) 1 SCC 705], the Supreme Court has held that "after determination of the tenancy, the position of the tenant is akin to that of a trespasser." Indeed, in that sense, Vishala has used the expression trespasser. This expression, I am afraid, neither contradicts nor confounds Vishala's pleas in the pleadings.

30. In Nagin Mansukhlal Dagli, the plaintiff pleaded that the licence granted to the defendant ended. So he contended that the defendant's possession was wrongful and illegal, and was "that of a trespasser." The plaintiff also wanted the court to declare the defendant a "trespasser." In this context, a Division Bench of this Court has examined whether a Small Cause Court has jurisdiction to entertain the suit for eviction.

31. Is the suit really in substance a suit for a declaratory decree or an injunction, or a suit for recovery of possession of immovable property camouflaged in the guise of a suit for a declaration and injunction? To answer this question, Nagin Mansukhlal Dagli has held that "it is the determination of the issue whether the licence has come to an end or not which would give the right to the plaintiff to obtain the relief of possession." The declaration sought does not, according to it, change the real nature of the suit. Finally, Nagin Mansukhlal Dagli has interpreted Section 41 of the Presidency Small Cause Courts Act, 1882, and held that this provision speaks of "all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay". Significantly, the words used in Section 41 are "suits relating to the recovery of possession" and not "suits for possession". Then, it has concluded that despite the plaintiff's prayer for a declaration that the defendant is a trespasser, the Small Cause Court can try the suit.

32. After all, litigation is not mere logomachy--a fight over words; it is a fight over intentions. The intentions result in deeds, and the deeds get described in words. The words, as they describe the deeds, take their roots from the intentions.

33. An occupier may be a 'tenant', a licencee included, or a 'trespasser', one with a positive connotation and the other with a negative connotation. And 'occupier', on the other hand, is value neutral. Every word has a penumbral meaning, besides its core content. We do not, nor can we, always weigh words in the semantic scales; of course, they never remain in the prescriptive bounds, too. I may recall Anthony Burgess's coruscating comment on the imprecision of the language: Language has, in fact, many of the qualities possessed by the human beings themselves: it tends to be emotional when pure reason is required, it is sometimes unsure of what it means, it changes from meaning, sound. It is slippery, elusive, hard to fix, define, delimit.1 Glanville Williams classifies as a common error 'the idea that the words are somehow important of themselves, and irrespective their symbolic function."2 Edward de Bono may be right when he says "words [in a sense] are encyclopedias of ignorance because they freeze perceptions at one moment in history and then insist we continue to use these frozen perceptions when we should be doing better."3

34. So I hold that Vishala's suit pleadings are not contradictory; they do not denude the Small Cause Court of its jurisdiction, either. Vasanthi and others are not trespassers in the statutory sense, though they may be in the sense Atma Ram Properties used.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 36 of 2018

Decided On: 17.09.2019

Vasanthi Shridhar Bangera Vs. Vishala Bokapatna Laxman

Hon'ble Judges/Coram:

Dama Seshadri Naidu, J.

Citation: AIR 2020 Bom 31

Print Page