RABARI PRABHAT HARJI v. PATEL CHANDULAL TRIKAMLAL — 1979 DIGILAW 241 (GUJ)

A. M. AHMADI, J. ( 1 ) WHETHER a tenant who has encroached upon adjacent land belonging to the owner in contravention of a term in the rentnote can be said to have committed a breach of a term of tenancy to entitle the landlord to seek an eviction decree under sec. 12 (1) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter called the Act) is the short question which arises for my determination in the present two Revision Applications preferred by the tenants of the respective parcels of land. The opponents are the owners of a large piece of land bearing Survey No. 460/a situate in Asarwa Ahmedabad. They appear to have given on lease an area admeasuring 20 x 20 to Rabari Prabhat Harji (the petitioner in Civil Revision Application No. 764 of 1978 on a monthly rent of Rs. 16. 50 ps. with effect from 1st April 1964. Another piece of land admeasuring about 30 x 60 out of the same Survey Number is stated to have been given on rent with effect from 1st April 1964 to Rabari Malji Raimal since deceased (the original petitioner of Civil Revision Application No. 765 of 1978) on a monthly rent of Rs. 40 Both the rent notes executed by the aforesaid tenants contain a term which translated into English reads as under:-"i have measured the land. I will not use the land lying beyond the said limits. I will put up a wirefencing demarcating the demised land. "the owners contend that both the tenants in contravention of the aforesaid term of tenancy encroached upon the adjacent land belonging to the owners sometime before the institution of the suits in the year 1968. On learning about the said encroachment the owners addressed a notice terminating the tenancy of the aforesaid two tenants on 22nd January 1968 Admittedly both the tenants received the notice and sent replies thereto denying the allegations made in the notices. Thereupon the owners instituted two separate Suits Nos. 1537 and 1538 of 1968 claiming eviction inter alia on two grounds namely:- (1) the tenant was in arrears of rent and was not ready and willing to pay the standard rent in respect of the demised land; and (2) the tenant had committed a breach of the term of tenancy and was therefore liable to be evicted by virtue of sec. 12 (1) of the Act. The tenants entered an appearance and contested the suits denying both the allegations made by the owners. The learned trial Judge came to the conclusion that the two tenants had committed a breach of a term of the tenancy and were also not ready and willing to pay the standard rent in respect of the demised land. The learned trial Judge. therefore awarded a decree to the owners whereunder the tenants were directed to vacate and deliver possession of the demised land on or before 1 March 1973. Against the said judgment and decree of the trial Court the two tenants preferred separate appeals being Appeals Nos. 106 and 107 of 1973 before the Appellate Bench of the Court of Small Causes at Ahmedabad. Both the appeals were heard by the same Bench and were disposed of on 27th January 1978. In the case of tenant Prabhat Harji the appellate Court came to the conclusion that he was not a tenant in arrears and hence the learned trial Judge was not justified in awarding a decree under sec. 12 (3) (b) of the Act. The Appellate Bench however took the view that the tenant had committed a breach of a term of tenancy and hence the decree passed under sec. 12 (1) of the Act must be sustained. Accordingly it directed the tenant Prabhat Harji to deliver possession on or before 1st April 1978. So far as the appeal by the legal representatives of deceased tenant Malji Raimal is concerned the Court upheld the decree on both the counts and gave time to the appellants to vacate and deliver possession of the demised land to the owner on or before 1st April 1978. The tenants being aggrieved by the decree in ejectment passed by the Courts below have preferred the present Revision Applications. ( 2 ) IN Revision Application No. 764 of 1978 preferred by the tenant Prabhat Hariji the only question which arises for my consideration is whether on the facts and in the circumstances of the present case the decree in ejectment passed against the tenant on the ground of breach of a term of tenancy can be sustained. The lower appellate Court has come to the conclusion that the owners are not entitled to eviction under sec. The lower appellate Court has come to the conclusion that the owners are not entitled to eviction under sec. 12 (3) (b) of the Act and that finding has not been assailed by the owners. In the second Revision Application No. 765 of 1978 preferred by the legal representatives of the deceased tenant Malji Raimal the decree in ejectment has been passed on both the grounds of arrears of rent and breach of term of tenancy. So the first question which I must consider is whether the tenants by encroaching upon the adjacent land belonging to the owners committed a breach of the condition contained in the rentnote and whether such breach amounts to a breach of the term of tenancy to entitle the owners to seek ejectment under sec. 12 (1) of the Act. ( 3 ) SEC. 12 (1) provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay the amount of standard rent and permitted increases if any and observes and performs the other conditions of tenancy in so far as they are consistent with the provisions of the Act. So far as the latter part of the aforesaid sub-section is concerned it enjoins upon the tenant to observe and perform the other conditions of the tenancy; albeit those conditions must be consistent with the provisions of the Act. The owners contend that the tenants had by the execution of the respective rent-notes undertaken not to encroach upon the land adjacent to the demised land belonging to the owners. So far as the factual aspect is concerned the report of the Commissioner tendered in evidence in both the suits clearly suggests that the tenants have encroached upon the adjacent land belonging to the owners and are making use thereof for the purpose of tethering cattle etc. Mr. J. C. Patel the learned advocate for the tenants did net attempt to dispute this factual aspect before me. It is therefore clear from the evidence on record that the term of the rentnote reproduced earlier has been contravened. The question then is whether such contravention amounts to a contravention of the condition of the tenancy within the meaning of sec. 12 (1) of the Act to entitle the owners to evict the tenants from the demised land ? It is therefore clear from the evidence on record that the term of the rentnote reproduced earlier has been contravened. The question then is whether such contravention amounts to a contravention of the condition of the tenancy within the meaning of sec. 12 (1) of the Act to entitle the owners to evict the tenants from the demised land ? ( 4 ) THE restrictive covenant contained in the respective rentnotes enjoins upon the tenants not to trespass upon the adjacent land belonging to the owners In other words it provides that the tenants shall make use of the demised land and not the land adjacent thereto. The restrictive covenant therefore is related to the adjacent land and not the demised land. The covenant does not cast any obligation on the tenant so far as the user of the demised land is concerned but it merely provides that the tenant shall not make use of the adjacent land lying on the boundary of the demised land belonging to the owners. If the tenant in disregard of the restrictive covenant contained in the rentnote makes use of the adjacent land it would be an act of trespass simpliciter for which the owners would be entitled to take action in the ordinary Court. The restrictive covenant therefore does not cast any obligation on the tenant so far as the subject matter of the tenancy is concerned. It is therefore clearly a personal obligation relating to the land lying in the vicinity of the demised land which has nothing to do with the subject matter of the lease. Therefore so far as the condition concerning the tenancy; that is the subject matter of the lease is concerned there is no violation whatsoever. The violation if any is in relation to the land which is not the subject matter of the lease but which is lying adjacent to the demised land. The covenant therefore expects the tenant not to make use of the land lying adjacent to the demised land but it has no direct relation whatsoever with the demised land itself. Mr. The violation if any is in relation to the land which is not the subject matter of the lease but which is lying adjacent to the demised land. The covenant therefore expects the tenant not to make use of the land lying adjacent to the demised land but it has no direct relation whatsoever with the demised land itself. Mr. J. C. Patel therefore rightly pointed out that the covenant was in the nature of a personal assurance given by the tenant in respect of land which is not the subject matter of the lease and a breach of such an obligation which is of a collateral nature cannot be said to be a breach of any condition of tenancy within the meaning of sec. 12 (1) of the Act. In my view the submission made on behalf of the tenants is well founded because sec. 12 (1) can come into play only in those cases there the tenant fails to observe and perform the conditions of tenancy and not otherwise. The expression condition of tenancy means a condition or obligation arising out of the tenancy and concerning the subject matter of tenancy. A mere breach of a personal covenant or obligation of a collateral nature undertaken by the tenant at the date of the execution of the rentnote cannot be equated to a breach of a condition of tenancy within the meaning of sec. 12 (1) of the Act. ( 5 ) IN R. M. R. HOUSING SOCIETY LTD. V. COMBS 1951 (1) ALL. E. R. 16 the Court was dealing with a tenancy agreement relating to a dwellinghouse to which the Rent Restrictions Acts applied. That agreement Contained a clause providing that the tenancy was conditional on the tenant being and remaining in the employment of a third party and that the determination of that employment from any cause whatsoever should terminate the tenancy. The tenant left the employment whereupon the landlords claimed possession of that dwelling house on the ground that the tenant had broken an obligation of the tenancy within the meaning of para. (a) of schedule. The tenant left the employment whereupon the landlords claimed possession of that dwelling house on the ground that the tenant had broken an obligation of the tenancy within the meaning of para. (a) of schedule. I to the Rent and Mortgage Interest Restrictions (Amendment) Act 1933 In that case the expression obligation of the tenancy which is analogous to our expression condition of tenancy was construed and Singleton L. J. approached the question thus :-"the submission on behalf of the tenant was that no obligation of the tenancy was broken in other words that the undertaking obligation condition covenant or whatever one may call it that the tenant should give up possession if he ceased to be employed by R. M. R. Engineering was not an obligation of the tenancy It was submitted that before one could have an obligation of the tenancy there must be an obligation arising out of the tenancy and relating to the subject-matter of the tenancy. In other words that it must be binding on the tenant as tenant and not merely something binding on him as an individual. In my view that submission is right. If it was not so a very wide breach would be made in the Rent Acts The words obligation of the tenancy appear in para (a) of sched I and there must become purpose in them. The words are not obligation of the tenant but obligation of the tenancy. That denotes that the obligation must be an obligation arising out of the tenancy itself. It is not enough to say that the tenant has broken some covenant or failed to fulfil some obligation which he undertook. There must be a breach of an obligation of the tenancy. "sir Raymond Evershed M. R. who dictated a concurring judgment while doubting if the obligation could be enforced at law made the following pertinent observations :-"i think that the clause in so far as it is a condition or obligation is not within para. (a) because it is not an obligation of the tenancy I agree with counsel for the landlords that those words obligation of the tenancy must not be given a restricted or narrow meaning. (a) because it is not an obligation of the tenancy I agree with counsel for the landlords that those words obligation of the tenancy must not be given a restricted or narrow meaning. They should be construed according to their ordinary sense but so construed I take the phrase obligation of the tenancy to mean something binding on the tenant as such i. e. in his capacity as tenant as distinct from an obligation purely personal and collateral to the contract of tenancy. " ( 6 ) THE aforesaid observations of the learned Judges of the Court of Appeal were quoted with approval in KANTILAL ISHWARLAL V. DR. MUKUNDRAI. (1973) 14 G. L. R. 227. In that case the rentnote contained a term that in the common passage kept for the tenants Po articles or goods shall be stored or placed. That common passage was meant for use by the tenants including the petitioner. It was not meant for storing goods. There was an express condition that nothing shall he stored or placed in the said common passage and there was a breach of that express condition. J. M. Sheth J as he then was after applying the principle enunciated in R. M. R. Housing Society Ltd. (supra) observed that the Covenant was one touching the mode of enjoyment of the demised premises and hence it was a condition of tenancy and not a personal obligation. He therefore concluded that the breach of the said restrictive covenant amounted to a breach of the term of tenancy within the meaning of sec. 12 (1) of the Act. In the instant case so far as the land encroached upon is concerned the tenants are guilty of an act of trespass simpliciter as the covenant in question has no relation whatsoever with the mode of enjoyment of the demised land. It is therefore not a condition of tenancy but merely a collateral obligation of a personal nature undertaken by the tenant on the date of the execution of the rentnote. A breach of such a personal covenant which has nothing to do with the use and enjoyment of the demised land can hardly be raised to the pedestal of condition of tenancy within the meaning of sec. 12 (1) of the Act. A breach of such a personal covenant which has nothing to do with the use and enjoyment of the demised land can hardly be raised to the pedestal of condition of tenancy within the meaning of sec. 12 (1) of the Act. This view that I take is fortified by the decision of a Division Bench of the Saurashtra High Court in KASHAVLAL V. BAI AJAWALI A. I. R. 1958 SAU. 119. That was a case in which the tenant had committed an act of trespass by occupying another portion of the house not in the rentnote. It was argued before the Division Bench on behalf of the landlord that the tenant had committed a breach of one of the terms of the tenancy and was therefore liable to be evicted. That submission on behalf of the landlord was rightly spurned by the Division Bench. ( 7 ) IN RUSTOM V. MANU SUBEDAR. (1969) 72 BOM. L R 264 the parties entered into an agreement which gave a right to the contractors of conducting a canteen in the premises known as Lotus Cinema. The contractors a partnership concern were not able to run the canteen properly as there were certain disputes between the partners inter se. The trustees of the Lotus Cinema therefore terminated the agreement and filed a suit for recovery of possession of the premises on the original side of the High Court. Another suit was filed in the Small Causes Court for an injunction to restrain the trustees from obtaining possession of the properties on the allegation that the agreement in question was one of tenancy and the tenant the partnership firm was entitled to protection under the Act. As these proceedings were pending the trustees started building other stalls with the intention of having the canteen either of their own or through someone else run in Lotus Cinema. The plaintiff therefore instituted the suit from which the appeal from order arose for an injunction to restrain the trustees from starting a rival canteen in Lotus Cinema. A Notice of Motion was taken out for obtaining an interim injunction. It was rejected by the trial Court on two grounds:- (1) the actual agreement between the parties duly signed did not contain the term mentioned in the letter of March 15 1957 on which the tenant relied; and (2) in any event compensation would be adequate remedy. A Notice of Motion was taken out for obtaining an interim injunction. It was rejected by the trial Court on two grounds:- (1) the actual agreement between the parties duly signed did not contain the term mentioned in the letter of March 15 1957 on which the tenant relied; and (2) in any event compensation would be adequate remedy. In appeal it was argued that as long as the tenant is entitled to remain in the property whether by reason of the contract between the parties or under any of the provisions of the Rent Restrictions Act the tenant is entitled to the benefit of the assurance contained in the letter referred to above. While pointing out that the term in the letter could not be regarded as a term of the contract but assuming it to be a part of the agreement the learned Judge proceeded to observe as under:-"an agreement not to permit any other person from doing the same business in the premises is something which cannot have any connection with the tenancy as such though it may be that as long as the said assurance lasts the profits of the tenant may be larger. The assurance contained in the letter but not embodied in the contract between the parties is in my view merely a personal obligation of the landlord and has no connection with the tenancy as such and cannot be enforced. I do not think it could have been enforced even if it were part of the contract itself. " ( 8 ) A Division Bench of this Court consisting of B. K. Mehta and S. B. Majmudar JJ in Civil Revision Applications Nos. 133 and 396 of 1976 decided on 23/24th April 1979 (BHABHUTMAL RIKHUBAJI V. MANUBHAI XXI G. L. R. 242) was called upon to consider whether the landlord was entitled to eviction on the ground that the tenants had committed a breach of Clauses 9 and 10 of the respective rentnotes. By clause 9 it was provided that the tenants had to use the premises for sale and purchase of utensil scrap and no other business was to be carried on in the said premises without the landlords consent in writing. By clause 9 it was provided that the tenants had to use the premises for sale and purchase of utensil scrap and no other business was to be carried on in the said premises without the landlords consent in writing. Clause 10 of the rentnote next provided that the premises were not to be used for the purpose of residence or storage of inflammable articles or such articles which would cause nuisance to the adjoining neighbours. After referring to the decision in R. M. R. Housing Society Ltd. case (supra) the Division Bench proceeded to answer the contention thus:"in order to be a condition or an obligation of a tenancy it must be an obligation arising out of the tenancy and relating to the subject matter of the tenancy. "proceeding further the Division Bench while dealing with clauses 9 and 10 of the rentnote observed as under:"we are therefore of the opinion that the restrictive covenant contained in clause 9 of the Rentnote with which we are concerned in so far as it prohibited the tenant from carrying on any business other than of utensil scrap without permission of the landlord is purely an obligation collateral to the tenancy and personal in nature and therefore not enforceable. So far as the restrictive covenant contained in clause 10 of the rentnote is concerned we are of the opinion that it is inconsistent with the provisions contained in sec. 13 (1) (a) and 13 (1) (k) of the Bombay Rent Act. "it is therefore clear from the above discussion that the restrictive covenant contained in the rentnotes with which we are concerned is in the nature of a personal obligation and is not a condition of tenancy within the meaning of sec. 12 (1) of the Act. I am therefore of the opinion that the Courts below were in error in concluding that the tenants had committed a breach of a term of tenancy and were therefore liable to be evicted under sec. 12 (1) of the Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (The rest of the judgment is not material for the reports ). Applications allowed. .