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2009 DIGILAW 1437 (BOM)

VIRENDRA DHIRUBHAI SHAH v. NATWAR PAREKH

2009-11-03

NISHITA MHATRE

body2009
JUDGMENT:- The Civil Revision Application has been preferred against the judgment and order of the appellate bench of the Small Causes Court in Appeal No. 414 of 2003. By this order, the Small Causes Court has decreed • the suit filed by Respondent No. 1 on the ground that the defendants before the court were in default of payment of rent and also on the ground that the applicant herein was in unlawful occupation of the suit premises being a flat in Parekh building in Sion, Mumbai. 2. The respondent landlord filed a Suit bearing RAE Suit No. 923/2487 of 1991 before the Small Causes Court, Mumbai against one Madhuben Pravinchandra Shah i.e. Defendant No. 1 and the father of the Applicants i.e. Defendant No.2. Madhuben was the sister-in-law of Defendant No.2. It appears that the suit premises had initially been let out to Madhuben by the landlord. In 1965, she inducted Dhirubhai i.e. Defendant No. 2 into the suit premises. It appears that Madhuben later left for Secunderabad since her husband had set up a business in that place. Thus, from 1965 she was not staying in the suit premises. The rent was being paid by Dhirubhai to the landlord directly. However, the rent receipts were issued in the name of Madhuben. 3. Madhuben had filed a suit against Dhirubhai in the City Civil Court, being Short Causes Suit No. 9824 of 1988. This suit was filed for an injunction to restrain Dhirubhai from disturbing her lawful possession of the suit premises. It appears that Dhirubhai then filed his written statement and a counter-claim in which it was contended that he had been residing in the premises since 1965 with his immediate family and that therefore he was entitled to exclusive possession of the suit premises. He therefore prayed for an injunction against Madhuben, permanently restraining her from claiming any right, title or interest in the suit premises. This suit was compromised and consent terms were recorded before the City Civil Court. These consent terms were submitted in Court on 10-10-2001. Under these terms, Madhuben agreed that she had not paid any rent to the landlord in respect of the suit premises since 1965 and it was the defendants in that suit who were bound and liable to pay the same. She also acknowledged that the defendants had paid rent to the landlord by issuing cheques. Under these terms, Madhuben agreed that she had not paid any rent to the landlord in respect of the suit premises since 1965 and it was the defendants in that suit who were bound and liable to pay the same. She also acknowledged that the defendants had paid rent to the landlord by issuing cheques. The plaintiff Madhuben, therefore, abandoned her right to the said property and agreed that it would be in the sole and exclusive possession of the defendants i.e. the applicants herein. 4. The present suit before the City Civil Court was filed in 1991 by the landlord against both Madhuben as well as Dhirubhai. Madhuben did not contest the suit. Dhirubhai, and after his death his heirs, filed pleadings in the trial Court contesting the claim made by the plaintiff. The applicants contended that they were inducted into the suit premises as relatives of Madhuben. It was contended that they were in permissive possession of the suit premises. It was also pleaded that "the original defendant was the lawful sub-tenant of the suit premises under the provisions of the Bombay Rent Control Act as amended in 1987". 5. Evidence was led before the trial Court by the landlord to prove his case of unlawful subletting, default in payment of rent and arrears of rent, unauthorized construction and bona fide requirement of the suit premises. One of the applicants who is the daughter of the original defendant No.2 i.e. Dhirbubhai led evidence on behalf of the defendants. 6. The trial Court by its order dated 31-10-2002 held that the plaintiff had failed to prove that the defendant refused or neglected to pay the arrears of rent for more than six months. It was further held that the plaintiff had failed to prove that the defendant had been duly served with the demand notice under section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 (for short, 'Bombay Rent Act') and therefore the case of the plaintiff that the defendant was a defaulter had not been established. As regards the plaintiff's claim that the defendant No. 1 had illegally sublet and transferred the suit premises without the plaintiff's permission, the trial Court negatived that submission. The trial Court also did not believe that the suit premises were required by the landlord reasonably and bona fide for his own use and occupation. As regards the plaintiff's claim that the defendant No. 1 had illegally sublet and transferred the suit premises without the plaintiff's permission, the trial Court negatived that submission. The trial Court also did not believe that the suit premises were required by the landlord reasonably and bona fide for his own use and occupation. As regards the comparative hardship which could be caused, in the event a decree for eviction was passed, the trial Court held that the defendants would face greater hardship and therefore dismissed the suit. 7. Being aggrieved by the order of the trial Court, the plaintiff approached the Appellate Court of the Small Causes Court. The Appellate Court has passed the impugned judgment. While doing so, it has reversed the findings of the trial Court with respect to the service of notice under section 12(2) of the Rent Act and held that Defendant No. 1 was a defaulter in payment of rent. It has also reversed the trial Court's finding with respect to unauthorised occupation of the premises by the applicants herein. However, as regards the case for eviction on the ground of unauthorised construction in the suit premises and on the ground of bona fide requirement, the Appellate Court has concurred with the findings of the trial Court. 8. Thus, the dispute today is whether the applicants who claim that they are deemed tenants in view of the provisions of section 15A of the Rent Act are entitled to continue in possession of the suit premises as tenants. The other issue would be whether it can be said that a notice for payment of rent which admittedly was addressed only to defendant No.1, Madhuben could be said to have been received by the applicants or their predecessor. 9. Mr. Shah, appearing for the appellants, submits that the City Civil Court in the aforesaid suit has recognised the fact that the applicants' predecessor was in occupation of the suit premises since 1965. He submits that the Court has also accepted the fact that Dhirubhai was in exclusive possession of the suit premises. He points out that thus the applicants must be considered as sub-tenants or at the very least gratuitous licencees and would therefore be governed by amendment which was brought into force from 1973. He submits that the Court has also accepted the fact that Dhirubhai was in exclusive possession of the suit premises. He points out that thus the applicants must be considered as sub-tenants or at the very least gratuitous licencees and would therefore be governed by amendment which was brought into force from 1973. He points out that the landlord had refused to accept rent from 1989 onwards and therefore the rent receipts after that date were not available with the applicants. However, admittedly according to Mr. Shah, the rent has been paid upto 1989 without there being any default in payment. He then submits that since Dhirubhai was a deemed tenant, it was necessary for him to be served with the notice under section 12(2) calling upon him to pay arrears of rent. He points out that admittedly this has not been done and therefore the suit ought not to have been decreed on this ground. The learned advocate relies on the judgment of this Court in the case of Vijay K. Gupta vs. Nalini Varjeevandas Shah and ors., 2008(2) Mh. L.J. 241 = 2008 Bom. Rent Cases 112 to submit that it would matter little as to whether an occupant of any premises prior to 1973 was in occupation either as a licencee or a gratuitous licencee or as a member of the family as after the amendment such persons are deemed to be tenants and therefore governed by the rigors of the Rent Act. 10. Per contra, Mr. Shaikh submits that unless the entry of the applicants in the suit premises is held to be lawful, the applicants are not entitled to protection under section 15A of the Bombay Rent Act. He submits that it would be necessary to ascertain whether occupation of the premises by the applicants was lawful inasmuch as whether the landlord had permitted such occupation or whether Madhuben alone had permitted the applicants to reside in the suit premises. According to the learned advocate, the very fact that a suit was filed by Madhuben against Dhirubhai before the City Civil Court for a perpetual injunction indicates that there was no privity of contract between Madhuben and Dhirubhai or his heirs, the applicants. According to the learned advocate, the very fact that a suit was filed by Madhuben against Dhirubhai before the City Civil Court for a perpetual injunction indicates that there was no privity of contract between Madhuben and Dhirubhai or his heirs, the applicants. He submits that the applicants had been prevaricating in their defence inasmuch as they have stated in their written statement filed after the death of Dhirubhai, that Madhuben had abandoned her claim to the suit premises and therefore they were tenants in the suit premises. 11. On a perusal of the evidence it is apparent that the suit premises were let out by the landlord to Madhuben prior to 1965. There is evidence on record to indicate that Dhirubhai was inducted into the premises by Madhuben. In fact, she had pleaded so before the City Civil Court in her plaint. Thus, the defendants were in occupation of the suit premises. Undisputedlly, unauthorised and unlawful subletting of premises would entail eviction from the landlord under 13(1)(e). However, all licencees who were in occupation of premises prior to 1973 were entitled to protection in view of the amendment which was brought into effect from 1st February 1973. The term "licencee" has been defined in the Rent Act under section 5(4A) and includes any person in occupation of premises given for a licence fee or a charge. Section 15A provides thus: "15A. Application fees.- An application for recovery of possession of premises to be made by the landlord to the Competent Authority under Part IIA shall be affixed with a Court Fee Stamp of "one hundred • rupees". This rule shall be, and shall be deemed always to have been, inserted. " 12. Thus, any person who was a licencee on or before 1-2-1973 is protected under the provisions of section 15A. The rent was being paid by Dhirubhai directly to the landlord and the latter had accepted the same without demur. In such a case, the applicants would be entitled to protection under section 15A of the Act. 13. In the case of V K. Gupta (supra) [2008(2) Mh. L.J. 241], this Court has held that a suit for eviction of a tenant on the ground of unlawful subletting under section 13(1)(e) of the Bombay Rent Act can be filed even when a transfer is gratuitous and made without consideration. This judgment does aid the contention of the applicant. In the case of V K. Gupta (supra) [2008(2) Mh. L.J. 241], this Court has held that a suit for eviction of a tenant on the ground of unlawful subletting under section 13(1)(e) of the Bombay Rent Act can be filed even when a transfer is gratuitous and made without consideration. This judgment does aid the contention of the applicant. 14. Apart from this, the notice admittedly was served to Madhuben and not on the applicants herein. Therefore, it could not be said that the applicants had committed a breach in payment of rent. There is evidence on record to indicate that the landlord had stopped accepting rent from them from 1989 although he had accepted it from 1965. No suit for recovery of possession can be instituted by a landlord on the ground of non-payment of rent unless a notice under section 12(2) has been issued and served on the tenant as required under section 106 of the Transfer of Property Act, 1882. Admittedly, the notice has not been served on the applicant and therefore, the Civil Revision Application must be allowed. The appellate Court has committed an error in concluding that the applicants are not tenants in the suit premises and, therefore, the order impugned in this Civil Revision Application is set aside. 15. Civil Revision Application is allowed. 16. Rule made absolute accordingly. No order as to costs. Application allowed.