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2005 DIGILAW 1025 (BOM)

Vimal Balkrishna Kharat v. Mahesh Holaram Motwani

2005-08-11

ANOOP V.MOHTA

body2005
( 1 ) A petitioner-landlord has invoked Article 227 of the Constitution of India and sought to challenge the judgment and order dated 10th August, 1999, passed by the additional District Judge, Pune (for short "appellate Court"), whereby, the judgment and decree passed by the Additional Small Causes court, Pune (for short "trial Court") in Regular civil Suit No. 622 of 1996 was set aside. Resultantly, the suit filed by the petitioner- landlord stood dismissed. Therefore, the present Writ Petition. ( 2 ) THE premises in question is a shop admeasuring 6 X 10 situated on ground floor at Pimpri, Pune. On 1/4/1977, the petitioners husband let out the suit premises to respondent No. 1 Ramesh by a leave and licence agreement. On 1st April, 1978, on the same terms, the agreement was renewed only in favour of respondent No. 1. Respondent no. 2, who is the brother of respondent No. 1, was conducting the business in the premises along with respondent No. 1. ( 3 ) ON 13th September, 1995, petitioners husband expired. As the widow- petitioner required the suit premises for earning her livelihood, she requested respondent No. 1 to hand over the possession and accordingly, on 17th June, 1996, a notice was issued terminating the tenancy and also for payment of arrears of rent. The respondents resisted the said notice by reply dated 30th July, 1996, and refused to hand over the possession. The petitioner, therefore, filed Suit No. 622 of 1996 in the Trial Court on 19th August, 1996, and prayed for possession on the ground of subletting by respondent No. 1 to respondent no. 2, default in payments of rent and bonafide need for herself and for her sons. The respondents, by a Joint Written Statement dated 4th February, 1997, resisted the said suit and the contentions raised therein. The parties led evidence. The Trial Court, by the judgment and order dated 26th June, 1997, granted the decree on the ground of subletting and default. However, the Trial Court negatived the claim of bonafide need. The respondents, therefore, preferred an Appeal in the Appellate Court. After considering the rival contentions, the appellate Court, on 10th August, 1999, allowed the Appeal and dismissed the suit on all grounds. ( 4 ) HEARD Mr. Nitin Jamdar, counsel for the petitioner. None appeared for the respondents inspite of the matter being on board for more than five occasions. The respondents, therefore, preferred an Appeal in the Appellate Court. After considering the rival contentions, the appellate Court, on 10th August, 1999, allowed the Appeal and dismissed the suit on all grounds. ( 4 ) HEARD Mr. Nitin Jamdar, counsel for the petitioner. None appeared for the respondents inspite of the matter being on board for more than five occasions. On 1st july, 2005, the application of the petitioner being an aged person, was considered and the matter was accordingly fixed for final hearing. ( 5 ) AS contended and borne out from the record, there remains no doubt that the basic agreements (Exhibit-25 and 26) were executed between the respondent No. 1 and the husband of the petitioner. The said leave and lieence agreements were initially for 11 months, for the residential purpose only. There is nothing on the record to suggest that defendant No. 2 i. e. respondent No. 2 herein, was at any point of time, recognised as a tenant of the premises in question. Except bare words, there is nothing to prove the case of joint tenancy at any point of time. The petitioners husband, therefore, was clear in his intention in letting out the premises to respondent No. 1. Respondent No. 1, even if allowing his brother i. e. respondent No. 2 to continue to do joint business in the said premises, the landlord has no concern with the same. Therefore, now respondent No. 2 and not respondent No. l, is now claiming to be the tenant of the premises, this itself shows the conduct of the parties which, in absence of any positive material on the record, need to be discarded. The long and continuous joint occupation of the premises by the respondents by itself cannot be the reason to accept the case of the tenants. There is no doubt in the present case that the landlord has recognised respondent No. 1 as the tenant and never recognised respondent No. 2 as the tenant. Therefore, there is no reason to accept the contention as raised by the respondents. ( 6 ) THE scheme of the Bombay rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short "the Bombay rent Act") is very clear in respect of a sub- tenant. The written permission is a must for creating any sub-tenancy. Therefore, there is no reason to accept the contention as raised by the respondents. ( 6 ) THE scheme of the Bombay rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short "the Bombay rent Act") is very clear in respect of a sub- tenant. The written permission is a must for creating any sub-tenancy. In the present case, there is no such written permission pointed out or even borne out from the record. The possession of respondent No. 2, therefore, in the present facts and circumstances of the case, cannot be said to be authorised possession as contemplated under the Act. If the statute provides a particular act to be done in a particular way and when, under the Bombay rent Act, specifically provides that a written permission is necessary, a long possession or no objection and/or silence of the landlord itself cannot be the ground to support the case of the respondents. The principles of waiver, acquiescence and estoppel are the principles of procedure. Such procedural act if is in contravention of the statutory provisions, then such procedure or waiver or acquiescence in no way is a sufficient foundation to grant premium to the respondents for their wrong. The Apex Court recently in Joginder Singh sodhi Vs. Amar Kaur, (2005)1 SCC 31, while considering this very aspect of sub- tenancy without permission, observed that there is no question of waiver or acquiescence when the statute provides for a written permission. The Apex Court observed thus:"14. The above principle was reiterated by this Court from time to time. In Shama Prashant Raje Vs. Ganpatrao the court stated that on sub-letting, there is no dispute with the proposition that the two ingredients, namely, parting with possession and monetary consideration therefor have to established. 19. Again in Kala Vs. Madho Parshad vaidya this Court reiterated the same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to a third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration. 20. We are in agreement with the observations in the above cases. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration. 20. We are in agreement with the observations in the above cases. In our considered opinion, proof of monetary consideration by the sub-tenant to the tenant is not a sine qua non to establish sub-letting. 25. . . . . . . . It mandates that no tenant can sub- let the tenanted property or part thereof without the written consent of the landlord. In the present proceedings, it is not even the case of the tenant (deceased Mukand singh) that he had obtained "written consent" of the landlady to sub-let the shop to his son Joginder Singh. On the contrary, his assertion that the property was taken by him for his son was not believed. Hence, order of eviction cannot be held illegal as the doctrine of waiver cannot be applied. A bald plea of waiver cannot defeat statutory provisions made in larger public interest (vide Shalimar Tar Products Ltd. Vs. H. C. Sharma and Pulin Behari Lal V. Mahadev Dutta.)" ( 7 ) THE counsel for the petitioner has also pointed out that respondent No. 1 in his cross-examination admitted that the premises was taken on leave and licence from the petitioners husband. There is nothing in writing to show creation of joint tenancy. The cross-examination and/or evidence led by the parties further support the case of the landlord. Therefore, in absence of any documents or material to support the case of the respondents, the same need to be rejected. The false and inconsistent plea taken by the respondents further destroys their own case specifically in the present case when the original tenant, as referred, made a positive statement in the proceedings that the other brother was the tenant and not him. The respondents failed to prove their case of joint tenancy or tenancy with respondent No. 2 and not with respondent No. 1. ( 8 ) THE learned counsel for the petitioner has also relied on Tarak Nath Sha vs. Bhutoria Bros. Pvt. Ltd. and Ors. The respondents failed to prove their case of joint tenancy or tenancy with respondent No. 2 and not with respondent No. 1. ( 8 ) THE learned counsel for the petitioner has also relied on Tarak Nath Sha vs. Bhutoria Bros. Pvt. Ltd. and Ors. , (2002)5 scc 15 : [2002 (3) ALL MR 262 (S. C.)] in reference to the powers of the Appellate Court to interfere with the finding of fact recorded by the Trial Court that it should be only after considering the matter, both on facts and point of law. In the present case, in view of the above observations, I am of the view that the appellate Court was wrong in allowing the appeal and dismissing the suit. The Trial Court held that respondent No. 1 was the tenant of the premises and he sublet the premises to respondent No. 2 and that he was in arrears of rent from 1996 and was never ready and willing to pay the rent and, therefore, was a defaulter as contemplated under the Bombay Rent Act respondent No. 2s conduct of sending arrears of rent through money orders only after receipt of the demand notice (Exhibit-29) was not helpful to tenant respondent No. 1. This no way condones the irregularity in rent deposit and in fact supports the landlords case of irregular payment and default. The regular deposit of rent, pending the suit also unhelpful to the respondents. The appellate Court was wrong in reversing the finding of default on this ground also. This aspect has been duly elaborated and considered by the Trial Court. Therefore, the reasoning given by the Trial court appears to be within the framework of law and the record. The Appellate Court, as observed above, was wrong in allowing the appeal. In view of this, I am inclined to interfere with the order passed by the Appellate court. ( 9 ) ACCORDINGLY, the judgment and order dated 10th August, 1999, passed by the appellate Court is quashed and set aside and the order and decree dated 26th June, 1997, passed by the Trial Court in Civil Suit No. 622 of 1996 is hereby restored. The suit of the plaintiff is allowed accordingly. ( 10 ) IN the circumstances, the Writ petition is allowed on the above terms. No order as to costs. Issuance of certified copy expedited. Petition allowed.