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2002 DIGILAW 833 (BOM)

Sayyad Dagadu Karim v. R. C. Rodrigues & others

2002-08-22

A.M.KHANWILKAR

body2002
JUGDMENT - KHANWILKAR A.M., J.:---This writ petition under Article 227 of the Constitution of India takes exception to the judgment and decree passed by the District Judge, Nashik dated 27th July, 1988 in Civil Appeal 452 of 1981. 2. The respondent Nos. 1 to 3 herein are the landlords in respect of the premises admeasuring 15 x 12ft. in House No. 49, situated at Rest Camp Road, near Devi Mandir, Deolali Camp, Nasik. The said respondents instituted suit against the original respondent No. 4 who was impleaded as defendant No. 1 in the said suit for possession of the suit premises. The petitioner herein was also impleaded in the said suit as defendant No. 2. According to the plaintiff the original respondent No. 4-defendant No. 1 was inducted in the suit premises as tenant sometime in 1970 on monthly rent basis. The petitioner herein was the son in law of the original respondent No. 4 who is since deceased. According to the plaintiffs, the defendant No. 1 as well as defendant No. 2 being his son-in-law, occupied the suit premises. It is further alleged that the petitioner herein-original defendant No. 2 was unlawfully inducted by the respondent No. 4 (defendant No. 1) as sub-tenant. Besides the ground of unlawful subletting, the suit was also instituted on the ground of default committed by the tenant within the meaning of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred as the Bombay Rent Act). It is not necessary to burden this judgment with other details except to point out that in that suit the defendant No. 2 petitioner herein filed written statement and took specific plea that he was the tenant in respect of the suit premises and rent receipt was got issued in the name of defendant No. 1 only as a matter of convenience between the parties and that the plaintiff No. 1 had no objection for petitioner occupying the suit premises. In other words, the stand taken in the written statement is that the petitioner-defendant No. 2 was the tenant in respect of the suit premises and not defendant No. 1-respondent No. 4 herein. In other words, the stand taken in the written statement is that the petitioner-defendant No. 2 was the tenant in respect of the suit premises and not defendant No. 1-respondent No. 4 herein. The parties went for trial and the courts below have neither accepted the case as set up by the plaintiffs against the petitioner-defendant No. 2 of being unlawful sub-tenant, nor the case pleaded by the petitioner-defendant No. 2 that he was tenant in respect of the suit premises. The Appellate Court in the impugned judgment has, however, observed that the occupation of the suit premises by the petitioner was in the nature of a gratuitous licensee. The Appellate Court decreed the suit in favour of the plaintiffs on the ground of default committed by the tenant-defendant No. 1 within the meaning of section 12 of the Bombay Rent Act. It is this decision which is the subject- matter of challenge before this Court under Article 227 of the Constitution of India. 3. What is relevant to note is that, only petitioner-defendant No. 2 has filed the present writ petition taking exception to the decree for possession passed by the Appellate Court in favour of the plaintiffs and against the defendant No. 1 head tenant. The foremost question that would arise for consideration is as under : "Whether the defendant No. 2 would be competent to challenge the decree passed against the tenant-defendant No. 1 on the ground of default when he has been held to be a gratuitous licensee by the courts below?" In this context, the learned Counsel for the petitioner contends that there is clear evidence on record that the petitioner was paying the rent to the landlords in respect of the suit premises and that fact has gone unchallenged. It is, therefore, contended that it necessarily follows that the petitioner was the tenant in respect of the suit premises, and if that be so, the decree passed against the defendant No. 1 for possession of the suit premises cannot bind the petitioner. As, unquestionably the decree is on the ground of default and that no demand notice has been given to the petitioner, the suit as instituted cannot proceed against the petitioner. 4. As, unquestionably the decree is on the ground of default and that no demand notice has been given to the petitioner, the suit as instituted cannot proceed against the petitioner. 4. However, to my mind, if the findings of facts recorded by the courts below are closely examined, it would appear that the courts below have positively held that the petitioner-defendant No. 2 was neither a tenant nor a sub tenant in the suit premises. The Appellate Court on analyzing the evidence on record has, however, returned a clear finding that the respondent No. 4-defendant No. 1 was accepted as tenant by the plaintiffs. The Appellate Court has adverted to the evidence of defendants' witness which clearly establishes the position that the plaintiffs were not willing to accept the petitioner-defendant No. 2 as their tenant and the parties were fully ad idem that the tenancy was created only in favour of respondent No. 4-defendant No. 1. In the wake of this finding of fact recorded by the courts below, it necessarily follows that the defendant No. 1 was the tenant in the suit premises and occupation by the defendant No. 2-petitioner was only being his family member. If that be so, since the defendant No. 1 has not questioned the decree passed in respect of the suit premises against him, the present petitioner who is incidentally his son in law and merely because he is occupying the suit premises would not become entitled to question the correctness of the decree so passed against the tenant. 5. To overcome this difficulty the petitioner contends that, going by the case made out by the plaintiffs against him that he was unlawfully inducted as sub-tenant and his own specific case made out in the written statement that he was the real tenant in respect of the suit premises and rent receipt was issued in the name of defendant No. 1 only as a matter of convenience between the parties, be accepted. However, it is not possible to interfere with the finding of fact recorded by the courts below that the clear understanding between the parties was that the defendant No. 1 was to be accepted as tenant in respect of the suit premises and not the defendant No. 2. However, it is not possible to interfere with the finding of fact recorded by the courts below that the clear understanding between the parties was that the defendant No. 1 was to be accepted as tenant in respect of the suit premises and not the defendant No. 2. The learned Counsel for the petitioner contends that, since the petitioner has been paying rent to the landlords, in law, he becomes the tenant of the landlords and his status cannot be one of a gratuitous licensee but one of a licensee in lawful possession on the basis of a subsisting licence on 1st February, 1973 and was protected under section 15-A of the Bombay Rent Act. However, such a plea was not taken in the written statement. But the only plea taken by the defendant No. 2 petitioner herein that he was the real tenant in the suit premises and not the defendant No. 2. It is well settled that the Court cannot proceed to decide the matter on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. The Apex Court has so observed in (M/s. Trojan and Company v. R.M. N.N. Nagappa Chettiar)1, reported in A.I.R. 1953 S.C. 235. It is well, settled that the relief in favour of the party not founded on the pleadings should not be granted. This is so observed in the case of (Sri. Mahant Govind Rao v. Sita Ram Hesho and others)2, reported in Vol. XXV The Law Reporter (Indian Appeals) Page 195 (Privy Council). In other words, it is not possible for this Court to accept the plea now pressed into service on behalf of the petitioner that he should be accepted as licensee, much less a protected licensee within the meaning of Bombay Rent Act. For, such a case was not pleaded and no relief has been pressed on that basis. 6. The learned Counsel for the petitioner would then contend that the Appellate Court has held that the petitioner is a gratuitous licensee in respect of the suit premises and on that basis it is possible for him to assail the correctness of the decision to contend that the petitioner was not a gratuitous licensee but a licensee on payment of consideration as he was paying the rent to the landlords. To my mind, it would not be necessary for this Court to go into the question as to whether the petitioner is a gratuitous licensee or not. For, such a case was not made out in the pleadings. Whereas, the Appellate Court having recorded a clear finding that there was agreement between the parties that defendant No. 1 was to be accepted as tenant and not the defendant No. 2, then it is not open for the petitioner to contend that he was accepted as the real tenant merely because the landlords have accepted the rent from him which obviously paid for and on behalf of the tenant-defendant No. 1. It is not in dispute that the petitioner-defendant No. 2 is the son-in-law of the original defendant No. 1; and was occupying the suit premises alongwith the defendant No. 1 only being a family member of the tenant. Such a person cannot be a licensee within the meaning of sections 5(4-A) and 15-A of the Act. Understood thus, the correctness of the finding and the conclusion reached by the Appellate Court for decreeing the suit in favour of the plaintiffs on the ground of default cannot be allowed to be questioned at the instance of the petitioner as the tenant has not come forward before this Court to assail the same, though the tenant could have done so in his own rights. 7. Accordingly, this petition will have to be dismissed as the petitioner cannot be permitted to question the correctness of the decree passed against the tenant-defendant No. 1 on the ground of default merely because he was occupying the suit premises alongwith the tenant. Hence, dismissed. No order as to costs. Petition dismissed. -----