When can the court permit tenant to repair tenanted premises even if he has not given written notice to the landlord to repair premises?

 The learned counsel for the petitioner has asserted that giving of a notice in writing is also an equally mandatory part of the cause of action and, therefore, the same stood exhausted on the filing of the earlier petition by the respondent/tenant. He submits that without serving a fresh notice, the respondent could not have maintained a fresh petition before the learned Controller.{Para 13}

14. I am unable to agree with the submission made by the learned counsel for the petitioner. As noticed hereinabove, the purpose of a

notice under Section 44(3) of the Act is to put the landlord to notice that the tenanted premises are not in a habitable or usable state and require repairs. Though normally, the tenant is to give such a notice to the landlord before filing of the petition, the petition itself can be considered as a notice to the landlord of such state of affairs. In this regard, it is to be noted that the learned Controller can pass an order on a petition under Section 44(3) of the Act only after granting an opportunity of hearing to the landlord. In such hearing, the landlord can accept the contents of the petition with respect to the state of the tenanted premises and offer to carry out the repairs; or can dispute the contention of the tenant regarding the tenanted premises being un-inhabitable or unusable; or can dispute the estimate of cost required for the necessary repairs. The non-service of notice by the tenant prior to the filing of the petition does not in any manner, therefore, cause prejudice to the landlord. The service of prior notice may only be for the benefit of the tenant as in case the landlord agrees to the notice, the tenant may not be burdened with moving the learned Controller for seeking appropriate relief.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 06.04.2021

 CM(M) 427/2020 & CM No.20355/2020

SURAJ PRAKASH PAHWA  Vs NAND LAL 

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

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Whether court can treat the tenanted property as joint family property if Karta is the tenant of said property?

 A perusal of the facts on record would show that it was a contract of tenancy entered upon by great grandfather of the plaintiff. Even if the great grandfather was maintaining the family out of the income generated from the hotel business, that itself would not make the other family members as coparceners in the hotel business. It was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board. The tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surrender it to the landlord. The High Court has clearly erred in law by holding that since the grandfather was a tenant, the tenancy is a joint family asset. The contract of tenancy is an independent contract than the joint Hindu family business.{Para 32}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6149 OF 2015

KIRAN DEVI  Vs THE BIHAR STATE SUNNI WAKF BOARD

& ORS.

Author: HEMANT GUPTA, J.

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

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

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

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

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

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

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

 IN THE HIGH COURT OF DELHI AT NEW DELHI

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

DARSHAN ARORA Vs  VIJAY KUMAR 

CORAM:- HON’BLE MR JUSTICESANJEEV SACHDEVA

Judgment delivered on: 17th November, 2020

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Whether tenant can acquire possessory right in tenanted premises under the oral agreement of sale?

 I have perused the judgment of the Trial Court. Trial Court has

decreed the suit on the ground that in the written statement the Appellant admitted payment of rental amount from time to time and did not claim that the status of the Appellant was severed as a tenant completely. Even assuming that the Appellant had entered into an agreement to sell for purchasing the suit property from the Respondent and had paid part consideration, at best, the Appellant could rely on the agreement for two purposes i.e. (i) file a suit for specific performance seeking execution of

the sale deed; and (ii) claim protection under Section 53A of the Act. It was also an admitted case that there was no written Agreement to Sell ever executed between the parties and the defence of the Appellant was based on an oral agreement. Based on the amendment to Section 17 of the Registration Act, whereby the Registration of an Agreement to Sell has been made compulsory as well as amendment to Section 53A of the Act

and the Indian Stamp Act, 1899, the Trial Court concluded that in the absence of a registered Agreement to Sell the Appellant could not claim protection under Section 53A of the Act. Based on the proposition of law laid down in Sudhir Sabharwal vs. Rajesh Pruthi 2014 AIR CC 2850 by this Court that mere Agreement to Sell of immovable property will not terminate the landlord-tenant relationship, the Trial Court was of the view

that no purpose would be served to put the matter to trial and passed the judgment, noting that while there was no admission, however, if thedefendant has no legal defence, then under Order XIV Rule 1(6) CPC, judgment can be straightaway passed.{Para 12}

14. Appellant in the written statement admitted that he was inducted as a tenant in the year 2013 vide a registered lease deed dated 09.09.2013 and also admitted the renewal of the lease till 2015. Appellant, however, set up an oral agreement to sell and also pleaded payment of Rs.30 Lakhs towards part consideration of the sale price.

15. The issue that arises before this Court is as to whether the

Appellant could claim retention of the suit property on the plea of an oral Agreement to Sell.

16. The answer to the above question in my view can only be against the Appellant. The legal position on this aspect is no longer res integra. Section 17 of the Registration Act was amended by the Registration and Other Related Laws (Amendment) Act, 2001, Act No.48 of 2001, by insertion of Section 1(A) therein and by virtue of the Amendment, registration of an Agreement to Sell has been made compulsory with effect from 24.09.2001. Section 17(1-A) reads as follows:-

“Section (1A). The documents containing contracts

to transfer for consideration, any immovable

property for the purpose of Section 53A of the

Transfer of Property Act, 1882 (4 of 1882) shall be

registered if they have been executed on or after the

commencement of the Registration and other

Related Laws (Amendment) Act, 2001 and if such

documents are not registered on or after such

commencement (i.e. w.e.f. 24.09.2001), then, they

shall have no effect for the purposes of the said

Section 53A.”

17. Therefore, a buyer cannot avail the benefit of Section 53A of the Act if the agreement to sell is not registered. When a tenant enters into an agreement to sell for buying the tenanted premises but the agreement to sell is not in conformity with law, the relationship continues as landlord tenant and while the tenant can seek specific performance, but he acquires no right to retain possession, till a sale deed is registered in his favour.

In view of the legal position that “mere agreement

to sell of immovable property does not create any

right in the property save the right to enforce the

said agreement” and in view of the preceding

discussion that “mere agreement of sale will not

terminate landlord- tenant relationship unless there

is specification to that effect in agreement itself”,

this Court is of the view defendant has not right to

occupy the said property.”

18. In Shiv Kumar vs. Sumit Gulati, RSA No.417/2015, decided on 04.12.2015, the Court held that when the defendant claims possession on the basis of an oral agreement to sell, the same cannot be recognized in view of the amended Section 53A of the Act. 

19. Significantly in the present case the relationship between the

parties as landlord-tenant is an admitted position. It is also admitted that the rent of the premises was over Rs.3,500/- as also that the Respondent terminated the lease by sending a notice under Section 106 of the Act. In view of the said position and in the absence of the alleged oral agreement being registered, the Trial Court has rightly passed a decree for recovery of the suit property and no infirmity can be found. The suit is pending on

other reliefs and shall be continued and adjudicated in accordance with law.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 RFA 272/2020 and CM 28819/2020, 28820/2020 and 28818/2020

PRASHANT GOYAL Vs INDRANIL WADHWA .

CORAM:

HON'BLE MS. JUSTICE JYOTI SINGH

Date of decision: 11.11.2020

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

 Here, in the case before us, the leased property is vacant land. But the Courts below have spoken about comparative hardship. So the Corporation and Firm maintain that the adjudication was under Section 13 (1) (g) rather than Section 13 (1) (i). According to them, as wrong standards have been applied, the decree stands vitiated. This plea was raised for the first time--in the revision. But, I reckon, it is a question of law. Let us consider it.

73. First, both Sections 13 (1) (g) and (i) are substantive provisions; they are not procedural provisions. Second, Sections 13 (2) and (3) have fixed the adjudicatory parameters: what aspects should be considered when the leased property is with structures or is vacant. The Appellate Court as well as the trial Court have considered the Owner's reasonable, bona fide need elaborately. They have concluded that the Owners needed the whole extent for their personal use--to cater to the increasing needs of their growing family. In addition, the Courts have also considered the relative hardship. Perhaps, that consideration of relative hardship may be extraneous or unnecessary. But it does not vitiate the outcome. It proves fatal if something essential has not been considered; it only proves redundant if something extraneous is considered, besides the essential having already been considered. As rightly contended by the Owners, the Courts put heavier onus on them; they were asked to meet an extra criterion--the comparative hardship--which is not required under Section 13 (1) (i). If at all anyone has been prejudiced, it must be the Owners not the Corporation.

IN THE HIGH COURT OF BOMBAY

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

Decided On: 27.04.2020

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

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Whether 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

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Whether the court should reject plaint of eviction suit at the stage of final argument?

Assailing the order, it is contended by the learned counsel for the petitioner that the rent agreement dated 01.01.2014 does not reveal that he is tenant in Flat No. 606. He submits that it simply reads “TWO ROOM SET on 6th FLOOR, OUT of SOCIETY” in the layout plan of Vaidant Height, Nand Puri-B, Near Mahima Group Apartment, Guru Circle, Pratap Nagar, Sanganer, Jaipur. 

5. It is trite that for consideration of the application under Order 7 Rule 11 CPC, averments in the petition/plaint only are relevant and defence of the respondent/defendant is not to be seen at this stage.

6. Flat No. 606 is specifically mentioned in the eviction application under tenancy of the petitioner which, as per the order impugned dated 19.02.2020, has not been disputed even by the petitioner. Even otherwise also, the effect of the absence of flat number in the rent agreement is to be examined by the learned Rent Tribunal, in case any such objection exists in the reply filed by the petitioner. The learned counsel for petitioner failed to point out any averment or omission in the eviction application which may invite application of the provisions of Order 7 Rule 11 CPC. Even otherwise also, the application filed by the petitioner under Order 7 Rule 11 CPC does not reveal any reason for filing it at such belated stage when the case was fixed for the final arguments. In these circumstances, it cannot be denied that the application was filed with malafide intention to delay the disposal of the eviction application. The order dated 19.02.2020 does not suffer any illegality or perversity warranting interference of this Court under Article 227 of the Constitution of India.

In the High Court of Rajasthan

(Before Mahendar Kumar Goyal, J.)

Anil Joshi  Vs Beejal Chopra 

S.B. Civil Writ Petition No. 4602/2020

Decided on August 24, 2020

Citation: 2020 SCC OnLine Raj 1256

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Whether a tenant can deny the title of the landlord if the landlord has constructed a tenanted structure on leasehold land of government?

1)Tenant has contended that the landlord was not the 'owner' of the subject premises, since it is leasehold property, with the Delhi Development Authority as the owner/lessor; and the landlord was only a 'co-lessee' under the DDA alongwith one Shri Prem Nath Ohri;

2)In view of the decision of the Supreme Court in Shanti Sharma (supra), all that the law requires is that the landlord should hold a premises in a capacity of something more than that of a tenant and proof of title beyond that point is not required. In the present case, as per the tenant's own allegations, the landlord holds the land on which the subject premises is constructed on long lease granted by the DDA. The landlord is therefore owner of leasehold rights in the land comprised in the subject premises. For purposes of section 14(1)(e) of the DRC Act, 'ownership' is not meant only to be freehold and absolute ownership of property but includes rights in the property that are more than that of a tenant, regardless of other imperfections in title. Yet again therefore, no trial is called for on this point.

3) Though it is the tenant's allegation that the landlord was only a co-lessee of the subject premises under the DDA along with one Shri Prem Nath Ohri, the fact that only one co-lessee had filed the eviction petition is no bar to its maintainability. This issue is no longer res integra and it stands settled by several decisions of the Supreme Court that even one of the co-owners can, alone and in his own right, file a proceeding for ejectment of a tenant; and a tenant cannot question the maintainability of the proceedings on this score. (cf. Kasthuri Radhakrishnan & Ors. vs. M. Chinniyan & Anr. MANU/SC/0075/2016 : (2016) 3 SCC 296 para 29).

IN THE HIGH COURT OF DELHI

RC. Rev. 269/2018 and CM Appl. No. 24045/2018

Decided On: 09.07.2020

Gaffar Ahmad  Vs.   Shiv Kumar Ohri

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: MANU/DE/1361/2020

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Bombay HC: Basic principles which court should follow while declaring any one member of the family as a tenant

Accommodation is a serious problem facing people. Practically in every tenanted premises along with the tenant scores of other relatives reside. After the death of the tenant there is always an attempt to claim tenancy rights in the suit premises with the help of Section 5(11)(c) of the Rent Act. It is, therefore, for the court to find out who really can get the benefit of Section 5(11)(c). For this the court has to take into consideration various factors such as who was accepted as a tenant by the landlord, whether other members who are putting up a claim had accepted that person as a tenant or whether they had resisted the claim of that person to tenancy at any time, and in some cases wishes of the deceased tenant. In this connection it is necessary to quote the relevant observations of this court in Gool Rustomji's case (supra);

"Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins. Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death. In any event the Court cannot declare more than one person as the tenant under Section 5(11)(c) of the Rent Act."{Para 12}

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2311 of 1991

Decided On: 19.06.2003

Vimalabai Keshav Gokhale Vs.  Avinash Krishnaji Biniwale and Ors.

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How to ascertain standard rent of tenanted premises?

10.1. So far the determination of standard rent is concerned, there are two main methods of determining the same, namely the theory of comparables and secondly the investment theory. In the first theory, the exercise can be carried out by comparing the premises in question with the other similarly situated premises in the locality of which the rent is already fixed. Ofcourse while making the exercise of comparison the following factors can be kept in view :-

(a) Premises should more or less be similarly situated in the same locality with the same user,

(b) Relevant period of letting of the comparable premises.

(c) Whether the rents of the comparable premises are fair and reasonable or on the low side due to a number of extraneous circumstances.

(d) the amenities and facilities provided in such building.

By carrying out such exercise the standard rent of the concerned property can be fixed without much difficulty. So far the other method is concerned, it would depend on provisions meant for fixing the standard rent as contained in section 11 of the Bombay Rent Act and also the guidelines laid down by the Apex Court in the case of Dr. Balbir Singh (supra). This again will be subject to the outgoings in the nature of maintenance expenses, expenses for having basic facilities such as making provision for water, the municipal taxes, the required annual repairs, insurance, etc., which may be required to be taken into account even after deduction of sum equal to ten percent towards the allowance for repairs, etc. as envisaged under sub-rule (3) of rule 7 of the Rules. However, as stated earlier the theory of comparables can be adopted provided there is no considerable disparity between the premises. At this juncture more recent decision rendered in the case of Lt. Col. P.R. Chaudhary (Retired) v/s. Municipal Corporation of Delhi reported in MANU/SC/0315/2000by the Apex Court is required to be seen. These observations are vis-a-vis method of fixing the standard rent and they are helpful in determining the Gross Rateable Value in the case of hypothetical tenant. It has dealt with the disparity that may prevail between two premises of same kind because of the disadvantage and it has also pointed out that even in the cases where there is comparison between two buildings one being old and other being newly constructed, there would be great disparity on account of the rising cost of construction, the land prices, etc. and in that case such comparison would be irrational and illogical and, therefore, the factors regarding the increase in cost of construction, land prices, etc. will have to be kept in mind. It has observed as under :-

"Law as interpreted by the Supreme Court cannot be brushed aside by saying that it is not in conformity with statutory provisions. The law laid down by the Supreme Court is explicit and admits of no doubt. For the purpose of arriving at the rateable value the basic principle is the annual rent which the owner of the premises may reasonably expect to get if the premises were let out to a hypothetical tenant. It would depend on the size, situation, locality and condition of the premises and the amenities provided therein. All these and other relevant factors would have to be followed in determining the rateable value. That, however, cannot be in excess of the standard rent which would be the upper limit. 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Decided On: 31.03.2003

 A'Bad Municipal Corporation Vs.  Dena Bank

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Whether landlord is bound by relinquishment deed executed by tenant in favour of his brother?

Next we examine the question as to whether defendants 2 and 3 became tenants by virtue of alleged assignment of tenancy rights by defendant No. 1 in their favour. There is nothing on record to support this contention. The release deed which is relied upon by the defendants for this purpose has no mention whatsoever about the tenancy rights released by defendant No. 1 in favour of defendants No. 2 and 3. The release deed only talks about business of printing press. After the release deed, defendant No. 1 ceased to have any interest in the business of the printing press. There is no proof of payment of rent by defendant 2 and 3 with respect to the suit premises to the landlord. There is no rent receipt in their favour. The landlord is not a party to the release deed. He is not bound by any recitals contained in the release deed.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1811-13/1997

Decided On: 31.07.2003

 S.R. Radhakrishnan  Vs.  Neelamegam

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How to ascertain that rented premises was taken on behalf of joint hindu family?

 It is the stand of the plaintiff-landlord that the tenant never paid any rent for the suit premises. It is further clear from the pleadings of the parties that the plaintiff never recognized defendants 2 and 3 as tenants. In order to make out a case of tenancy defendant No. 2 (who alone filed a written statement) tried to plead firstly, that defendant No. 1 had taken the premises on behalf of joint Hindu family and therefore, defendants 2 and 3 were entitled to enjoy the tenancy rights in the absence of defendant No. 1; secondly, a plea was sought to be taken that defendant No. 1 had relinquished the tenancy rights in favour of the defendants 2 and 3 and after relinquishment defendants 2 and 3 started paying rent to the landlord. It is however, admitted that there are no rent receipts regarding payment of rent nor there is any proof of payment of rent coming forth on the record. Both the pleas which have been raised in order to establish tenancy in favour of defendants 2 and 3 are inconsistent and mutually destructive. We find no substance in either of the pleas. It has been meekly suggested in the written statement that the premises was taken on rent by the first defendant who is the joint family manager. This statement alone does not make out a plea that the tenancy was on behalf of the joint family. Secondly, this plea cannot stand scrutiny in view of the admitted fact that the father of the defendants was alive at the time of tenancy and if at all the tenancy was to be in favour of the joint Hindu family, it was the father of the defendants who could have taken the premises on rent as manager/karta of the Joint Hindu Family. Thirdly, a reference to the lease deed shows that the name of the tenant is mentioned in his individual capacity and not as a member/karta of Joint Hindu family. To test the veracity of such a plea it is also worth mentioning that in his reply to the notice of eviction served on him by the plaintiff, the defendant never made any such suggestion. Therefore, we find no merit in the plea that the tenancy was taken for purpose of joint Hindu family.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1811-13/1997

Decided On: 31.07.2003

 S.R. Radhakrishnan  Vs.  Neelamegam

Hon'ble Judges/Coram:

Brijesh Kumar and Arun Kumar, JJ.

Citation: AIR 2003 SC 4152,MANU/SC/0516/2003

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Whether the court can draw an inference that rented premises was sublet if the tenant fails to take steps for recovery of its possession from the third person?

 Undoubtedly, the NDMC appears to have not taken any action against the SOS Children's Villages of India to take back the possession of 1, Doctor's Lane, Gole Market, New Delhi after closure of the project Udayan in 2003 after revocation of the agreement dated 23.03.1981 with the SOS Children's Villages of India on 30.10.1998 but the same does not detract from the factum that in terms of the said agreement dated 23.03.1981 between the NDMC and the SOS Children's Villages of India, there has been no subletting or parting with the possession of the tenanted premises as rightly held by the learned RCT, New Delhi vide the impugned judgment dated 23.08.2018.

29. The factum that the officers concerned of the NDMC had not acted with diligence to recover the possession from the SOS Children's Villages of India from the tenanted premises in question, does not render the contention raised by the NDMC frivolous that it had not sublet the tenanted premises to the NGO i.e. the SOS Children's Villages of India. The verdict of the Hon'ble Supreme Court in "S.F. Engineer Vs. Metal Box India Limited and Another" MANU/SC/0246/2014 : (2014) 6 SCC 780, makes it apparent that the said inaction by the officers of the NDMC concerned by itself does not suffice to lead this Court to the conclusion that the subletting by the NDMC to the SOS Children's Villages of India as alleged by the petitioner, - had been established.

IN THE HIGH COURT OF DELHI

CM (M) 1229/2018 and C.M. Appl 42051/2018

Decided On: 30.06.2020

Abhishek Buildcon Pvt. Ltd.  Vs.   New Delhi Municipal Council

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1317/2020

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Whether Landlord can file composite suit seeking eviction of the tenant from tenanted property and encroached property?

 In Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others, MANU/SC/0071/2004 : AIR 2004 SC 1801, the Hon'ble Supreme Court has held that a plaint is to be read in its entirety and not in piece. Whether relief could be granted on the pleaded facts and evidence adduced is totally different from the relief claimed. All the relevant claims may not be allowed to a party on the pleadings and evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Where the main dispute related to the question of continuance of tenancy and the period of tenancy of the appellant with the trust and other reliefs were regarding enquiry into affairs of the trust, the application would not have been rejected on the ground that the civil court lacks jurisdiction on account of institution of composite suit or on account of any misjoinder of cause of action. In this case, the Hon'ble Supreme Court held that reliefs relatable to sections 51 and 51 of the Bombay Public Trust Act, 1950, ought to have been segregated from the other reliefs in relation to tenancy and continuance of tenancy, since, such other reliefs were well within the jurisdiction of the civil court. Accordingly, adjudication of the suit was restricted only upon question of tenancy, terms of tenancy and the period of tenancy. For rest of the reliefs, plaintiff was permitted to make such application as warranted in law for relinquishment and/or giving up claim of other reliefs. From this, it is quite clear that even assuming that the suit in the present case was a composite suit seeking eviction not only from the tenanted premises but also from the encroached premises, that by itself, was not sufficient to dismiss the entire suit as not maintainable. As noted earlier, upon reading of the plaint in its entirety and the context in which the pleadings appear, it cannot be said that the relief was prayed for even in respect of encroached portion. In any case, the ratio of Sopan Sable (supra) is a clear answer to the issue that the suit could not have been dismissed in its entirety on the alleged ground that the same was a composite suit.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Revision Application No. 60 of 2015

Decided On: 05.02.2018

 Mangilal Mishrimal Bafna  Vs. Nemichand Khetmal Jain 

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation:  2018(4)AllMR 104,

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Whether a landlord can seek eviction of a tenant from tenanted premises used for commercial purpose for his residential use?

 It is settled proposition of law that even if the premises has been let out for commercial purposes and are being used as commercial, a petition under section 14(1)(e) of the Act for bonafide need for use as residential is maintainable.

12. It is an admitted position that the property is situated in a residential area though there are several commercial establishments in and around the property. However, the use premises, as specified in the Master Plan for the subject property, is residential.

13. Even though the building may have been put to commercial use for over 40 years, there is no prohibition in law in reconverting the property and putting the same for residential use.

Delhi High Court

Mohd Yusuf vs Mohd Rehan Siddiqui & Ors on 14 January, 2020

 RC.REV. 207/2018
       

CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA

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Whether eviction suit filed by the landlord is maintainable if the tenant is claiming the title in tenanted premises by agreement of sale?

In this case it is held by court that merely because an appeal was filed by the tenant against the dismissal of his suit for specific performance against the landlord on the basis of an alleged agreement to sell in relation to the tenanted premises, would not in any manner obliterate the relationship of landlord and tenant between the parties.

It is an admitted position that the predecessor of the petitioners had come into the possession of the property as a tenant. Subsequently a plea has been taken by the petitioners that there was an agreement to sell whereby the father of the respondent had agreed to sell the property to the predecessor of the petitioners and a Suit for Specific Purpose was filed.

11. It is pointed out by the learned counsel for the respondent that petitioners were merely relying on an oral agreement to sell and the Suit for Specific Performance filed by the petitioners has already been dismissed by judgment dated 12.07.2017.

12. The contention of learned counsel for the petitioners that regular first appeal, impugning the order dismissing the Suit for Specific Performance is pending, would make no difference to the relationship between the parties of landlord and tenant. It is not the case of the petitioners that there was any merger of tenancy with ownership rights or extinction of tenancy.

13. Admittedly petitioners came in possession of the tenanted premises as tenants and not under the alleged agreement to sell. The petitioners would have to first perfect their title, if any to the property, before claiming that the eviction petition would not be maintainable. So long as the status of the petitioners continue as that of a tenant, the landlord would be entitled to maintain an eviction petition. I find no merit in the contention of learned counsel for the petitioners on this ground.

14. The Rent Controller has rightly held in the impugned order that the said plea does not become a triable issue.

IN THE HIGH COURT OF DELHI

R.C. Rev. 249/2017

Decided On: 27.02.2020

Chander Kanta Kainth  Vs.  Tulsi Das Talreja

Hon'ble Judges/Coram:

Sanjeev Sachdeva, J.

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Whether subletting can be inferred if portion of tenanted premises is in possession of Company?

It may be recalled that the decree for eviction against the appellant has been passed on the ground that though subletting of the premises for rent has not been proved, yet the appellant must be held to have parted with possession of a portion of the premises to the club and such parting with possession would attract Section 13(1)(e) of the Rajasthan Premises (Control) of Rent & Eviction Act, 1950 (for short the Act). On a reading of Sub-clause (e) of Section 13(1), it is seen that a tenant will render himself liable for eviction if he has "assigned, sublet or otherwise parted with the possession of, the whole or any part of the premises without the permission of landlord." Consequently even if a tenant parts with possession of the whole or any part of the premises without assigning or subletting the premises, he would still be liable to be evicted from the premises under the Act. If from this perspective, the user of the premises by the club is examined, it can certainly be held that the Appellant had parted with the possession of the premises as envisaged in Clause (e) of sub-section 1 of Section 13. This conclusion is warranted by several factors. Admittedly, when the club began to function in the leased premises, a name board carrying the name of the Club came to be exhibited in the premises. It is also admitted that the members of the club assemble at the premises everyday and play cards and other indoor games from evening till about midnight Though the appellant would say that the club members cannot have access to the premises unless he or in his absence his brother or son opens the premises, there is no evidence to show that the appellant had at any time exercised his right to exclusive possession and kept the premises locked and denied the members of the club entry to the premises. That apart there is a significant fact which has escaped the notice of the Appellate Court and the High Court viz that the club has its registered office at the leased premises. Section 146 of the Indian Companies Act enjoins every company to have a registered office to which all communications and notices may be addressed . Once a company has a registered office it is bound to comply with several provisions of the Companies Act, viz. (a) the register of members is to be kept there (Section 163) ; (b) the right of inspection has to take place there (Section 163) ; (c) the register of directors, etc,, is also to be kept there (Section 303) ; (d) the account books are to be maintained there unless the directors decide otherwise (Section 20); e) the register of mortgages and charges and copies of registered documents are also to be kept there (Section 143) ; and the right of inspection of them is to be exercised there (Section 144) ; (f) service of documents should be effected there. These requirements of the Act of the have to be complied with by the club by virtue of its registered office being situated in the leased premises. The appellant cannot prevent the club from performing its statutory duties so long as the club has its registered office in the premises. Hence this factor also warrants the view that the appellant had parted with possession of the major portion of the premises to the club. In such circumstances we see no merit in the contention of the appellant that the user of a portion of the premises by the club is only of a permissive nature and that there was no parting with possession of the premises to the club. The Appellate Court and the High Court were therefore, right in holding that the user of the premises by the club would amount to the appellant having parted with possession of a portion of the premises" as contemplated under Section 13(1) (e) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 855 of 1978 and C.M.P. No. 906 of 1979

Decided On: 29.03.1989

Roop Chand  Vs. Gopi Chand Thelia

Hon'ble Judges/Coram:

R.S. Pathak, C.J. and S. Natarajan, J.

Citation: AIR 1989 SC 183

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Whether it is mandatory to implead karta of HUF in eviction suit filed by co-owner of tenanted property?

 This, however, does not imply that for want of impleadment of

Karta, in the peculiar facts of the case, the suit is liable to be

dismissed. Indisputably, respondent Nos. 2 to 4 have been impleaded

as the plaintiffs to the suit in the capacity of the legal representatives

of the deceased plaintiff No.2. The learned counsel for the respondent

Nos.2 to 4 was justified in advancing a submission that a decree for

eviction was also sought on the ground of personal bonafide

requirement of the deceased plaintiff No.2 and his daughter Anjalirespondent

No.4 herein. Thus, the respondent No.4, in the capacity of

being a co-owner, is entitled to prosecute the suit irrespective of the

Karta being brought on record.

23. The aforesaid submission is required to be considered in the

backdrop of the proposition that a co-owner is entitled to institute a

suit for eviction for and on behalf of all the co-owners, unless it is

shown that the other co-owners were not agreeable to the ejectment

to the tenant. It is one thing to say that a member of the family

other than, or in the absence of, a Karta, may be permitted to

prosecute the suit on account of special circumstances of a given case.

And a completely different thing to claim that despite a Karta having

been appointed, he will not be impleaded to represent the HUF sans

the existence of special circumstances. In the latter case, the tenability

of the suit, without impleading the Karta, would be in issue.

24. Reverting to the facts of the case, as the respondent Nos.2 to 4

are already prosecuting the suit, either in the capacity of the coowner

or as the legal representatives of deceased plaintiff No.2 and,

at the same time, there is a cloud of doubt over the intendment of

the HUF to prosecute the suit for eviction of the tenant, especially on

account of the fact that there being material to show that a Karta has

indeed been appointed and there is an alleged non-compliance of an

order of Appellate Bench in Appeal No.306 of 2009 to bring the Karta

on record, steps will have been taken to implead the successor Karta

in the instant suit. It would be in the fitness of things to frame and

try the issue regarding the tenability of the suit, in the event of nonimpleadment

of the successor Karta. To this extent, the observations

of the Appellate Bench to the effect that the non-impleadment of the

successor Karta has no bearing whatsoever on the tenability of the

suit are unsustainable.

25. The question as to whether the HUF as such intends to

prosecute the suit for eviction is essentially for the HUF to answer. It

would be onerous for the defendants to plead and prove that the HUF

does not want to prosecute the suit. Therefore, it would be

appropriate to provide an opportunity to the HUF to make its stand

clear, if it desires to.

26. In the aforesaid peculiar circumstances, in my view, it would be

appropriate to provide an opportunity to the HUF to bring the

successor Karta on record, within a stipulated period, and, in the

event of default, frame and try the issue of tenability of the suit for

eviction at the instance of HUF, as such, without bringing Karta on

record, and plaintiff Nos. 2 to 4, in the capacity of the co-owners of

the demised premises.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE CIVIL JURISDICTION

WRIT PETITION NO. 9267 OF 2019

IN

REVISION APPLICATION NO. 343 OF 2018

IN

EXHIBIT NO. 28

IN

R.A.E. SUIT NO. 119/171 OF 2011

Mrs. Madhuri Doulatram Choitram Vs  Lachmandas Tulsiram Nayar (HUF) by and through its Karta

CORAM : N.J. JAMADAR, J.

Pronounced on : 18th December 2019

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Bombay HC: Joint family of deceased tenant can not claim tenancy right in respect of tenanted premises

From a plain reading of section 5 (11) (c) (i) of the Act,

it is difficult to accept the contention as urged on behalf of the

petitioner/defendant no.2 that the provisions recognize that every

member of the joint family or the joint family itself becomes a tenant

for the purposes of the Bombay Rent Act. The introductory words of

section 5 (11) defining tenant are crystal clear when it describes a

“tenant” to mean “any person” by whom or whose account, rent is

payable and would include as defined in sub-clause (c) of subsection

5 (11) any member of the tenants family residing with the

tenant at the time of his death. Sub-clause (c) is required to be read

in conjunction with the preceding relevant sub-clauses namely sub

clauses (aa), (b) which also uses a similar phrase ‘any person’. Thus

a tenant necessary has to be any person as recognized by section

5(11) and not otherwise and certainly not a joint family as a unit.

The legislature has avoided to include any such incident to include a

joint family to be a tenant within the meaning of section 5(11).

33. In the present context, to interpret the phrase ‘any person’

as used in section 5 (11) of the Act to include any member of the

joint family as asserted by the petitioner/defendant no.2, would lead

to an absurdity. This more particularly contrary to the election as

exercised by the family of the deceased tenant Raghunath, in

choosing Achyut –defendant no.1 (Raghunath’s son) to succeed to

the tenancy. The absurdity would be two fold firstly it would amount

to reading something into the definition of tenant, (Section 5(11) (c)

(i)), what has been not provided for and/or excluded by the

legislature; secondly it would be contrary to the conduct of the

parties who wholeheartedly accepted, chose and elected that the

tenant for the suit premises after the death of Raghunath would be

defendant no 1–Achyut. Once this is a factually established position

on record the petitioner/ defendant no.2 was not permitted and/or

was estopped from taking a contrary stand.

34. In my opinion, such an assertion as made on behalf of

the petitioner/defendant No.2 would lead to another absurdity

namely, that it would create an insurmountable uncertainty for the

landlord in pursuing eviction proceedings against a tenant as

permissible in law. This for the reason that when a landlord grants

the premises on tenancy it is a contract of tenancy as entered with a

specific person (tenant). The landlord expects fulfillment of legal

obligations from the tenant. The law therefore does not envisage

that the landlord would be required to deal with all members of the

joint family, a situation as in the present case when on the death of

the original tenant he is replaced by another named member of a

family. Hence, if such an argument by the petitioner/defendant no.2

to recognize him as a tenant, is accepted the landlord would never

obtain an eviction of a tenant as may be permissible to him in law as

every successive member of the tenant’s family would start claiming

legal rights and protection under the provisions of the Bombay Rent

Act. Such can never be the object and intention of this rent

legislation.

35. In the present case, the intention and conduct on the

part of the defendants, in my opinion was quite clear namely to

permit defendant no.1-Achyut to inherit tenancy after the death of

the original tenant his father–Raghunath. The rent receipts were

accordingly issued in favour of Achyut on the death of Raghunath.

Certainly, on two occasions namely when the original tenant-

Raghunath expired in the year 1971, and secondly when in 1979

defendant no.1-Achyut moved out of the suit premises, it was

available to the father of defendant no.2 Sadashiv to assert a position

that he had become the lawful tenant of the plaintiff’s landlords.

Sadashiv however, chose not to assert any such right. He throughout

accepted the defendant no.1- Achyut to be the tenant since the year

1971 that is from the death of his father Raghunath. Resultantly, it

was no defence for defendant no.2 to assert that he would be now

the lawful tenant having independent rights merely because his

father Sadashiv was a member of Raghunath’s joint family. It needs to

be observed that there is no legal foundation to the assertion of the

petitioner/defendant no. 2 referring to section 5(11) (c) in as much

as this provision is attracted only when a tenant dies. In the present

case defendant no.1 –Achyut who was accepted to be the tenant by

the petitioner/ defendant no.2 is surviving and has moved out of the

suit premises. In this situation it is difficult to comprehend, as to how

section 5(11) (c) can be pressed into service by the petitioner, to

assert any legal right to be a tenant .

36. The inevitable consequence in law on defendant no.1-

Achyut , (the tenant) moving out of the suit premises, brought

about a situation that defendant no.2-Vasant could not have asserted

any legal rights as a tenant, so as to contest the eviction proceedings

as instituted by the plaintiffs in the present Suit. In any event earlier

to the filing of the present suit petitioner/defendant no. 2 even qua

the plaintiffs never asserted any independent rights of tenancy in any

proceedings as could be brought by him.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Writ Petition No. 2371 OF 1997

Vasant Sadashiv Joshi.  Vs  Yeshwant Shankar Barve

CORAM : G.S.Kulkarni, J.

DATE : 3 JANUARY, 2020

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Supreme Court: Landlord can seek eviction decree for his residential need or commercial need if tenancy is for composite purpose

In any case and without going into much detail, we are of the view that if the tenancy is for composite purpose because some portion of tenanted premises was being used for residence and some portion for commercial purpose, i.e., residential and commercial, then the landlord will have a right to seek the tenant's eviction from the tenanted premises for his residential need or commercial need, as the case may be.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1537-1538 of 2019 

Decided On: 07.02.2019

 Deepak Tandon  Vs.  Rajesh Kumar Gupta

Hon'ble Judges/Coram:

Abhay Manohar Sapre and Dinesh Maheshwari, JJ.

Citation: 2019(1) RCR(Rent) 2785 SC

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