Bombay High Court
M/S.A.P.Hordiwala & Co vs Dr.Rustam J. Patel on 31 August, 2010
Author: R.C.Chavan
Bench: R.C.Chavan
1 CRA 336-09 JUDGMENT
Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.336 OF 2009
1. M/s.A.P.Hordiwala & Co. ..Applicants
a registered Partnership Firm
at No.24, 2nd Pasta Lane, Colaba,
Mumbai 400 005.
2. Mrs. Viloo S. Billimoria
3. Sorabjee N. Billimoria
(since deceased)
4.
Ardeshir S. Billimoria,
2, 3 and 4 being partners
of Applicant No.1
residing at Cumballa Crest,
42-A, Pedder Road,
Bombay 400 026.
presently residing at
501, Neel Sagar,
28th Road, T.P.S.3
Bandra (West)
Mumbai 400 050.
V/s.
1. Dr.Rustam J. Patel ..Respondents
2. Ms.Homai Nadir Mody
3. Ms. Navaz Vahadur Mody
4. Diniyar M. Gamadia
5. Miss. Dilbur Rustom Patel
6. Mrs. Feroja Adi Cooper
7. Sam Panek Golla
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2 CRA 336-09 JUDGMENT
All Trustees of Seth F.M.Patel
Agiary Charity Trust, having
their office at 24-26,
Dalal Street, Fort,
Mumbai 400 001.
Mr.Chirag Balsara i/b.M/s.Maneksha & Sethna,
Advocate, for the Applicants
Mr.R.A.Mirza, Advocate, for the Respondents
CORAM : R.C.CHAVAN, J.
JUDGMENT RESERVED ON : 4TH AUGUST, 2010
JUDGMENT PRONOUNCED ON : 31ST AUGUST, 2010
JUDGMENT
. This Revision Application is directed against Judgment of the Appellate Bench of the Court of Small Causes upholding the decree of ejectment of the Applicants passed by the learned Trial Judge in RAE Suit No.1298 of 1968.
2. According to the parties, on 24th September, 1856 one Framjee Nusserwanjee leased out with effect from 1st January, 1855 to one Cammoo Yacoob a 100 x 30 yards piece of land presumably with a godown bearing No.28 at ::: Downloaded on - 09/06/2013 16:22:55 ::: 3 CRA 336-09 JUDGMENT Colaba, Mumbai for a period of 99 years. The Lease Deed also gave an option to said Cammoo Yacoob to seek renewal of lease for a further period of 99 years. It is not in dispute that the Plaintiff trust are successors in interest of said Framjee Nusserwanjee and the interest of Cammoo Yacoob fell upon Cammoo Yacoob Charitable Trust. The original Defendant Nos.1 to 7 were the trustees of the said Cammoo Yacoob Charitable Trust.
3. The Plaintiffs claimed that the lease of Cammoo Yacoob Charitable Trust expired on 1st January, 1954. Yet the lessees continued to possess the property. By notice dated 5th October, 1960, the lessors terminated the tenancy, if any, of the lessees, that is, Cammoo Yacoob Charitable Trust and by notice dated 20th June, 1966 called upon the tenants to vacate the premises. It was also alleged that the tenants had committed breach of terms of the lease by replacing some doors, roofs, ::: Downloaded on - 09/06/2013 16:22:55 ::: 4 CRA 336-09 JUDGMENT plastering of walls and flooring etc. By notice dated 23rd December, 1967 the lessors called upon the tenants to rectify the breaches. The lessors also alleged the tenants were in arrears of rent and permitted increases and therefore, by the Suit filed in the year 1968, sought ejectment of the tenants, that is, Cammoo Yacoob Charitable Trust.
4. By an amendment, the landlords also alleged that Cammoo Yacoob Charitable Trust had unlawfully sublet the premises to the present Applicants with effect from 25th March, 1994 and therefore, sought their ejectment.
5. A similar Suit was filed against Cammoo Yacoob Charitable Trust for another plot of land bearing No.27.
6. By Written Statement, the present Applicants, that is, the Defendant Nos.8 to 11 ::: Downloaded on - 09/06/2013 16:22:55 ::: 5 CRA 336-09 JUDGMENT in the Suit, claimed to have been in exclusive and an interrupted possession of the premises since 1953 and therefore, claimed protection under the Bombay Rent Act.
7. The learned Trial Judge decided both the Suits filed by the landlords by a common Judgment. As far as the present Applicants are concerned, the learned Trial Judge held that the unlawful subletting to the present Applicants was proved and therefore, held that the landlords were entitled to recover possession of the suit premises. Both the Cammoo Yacoob Charitable Trust and the sub-
tenants, that is, the present Applicants' appealed and these Appeals were decided by the Appellate Bench by a common Judgment which is impugned in this Revision Application by the Applicants alone. Cammoo Yacoob Charitable Trust or its trustees, who were the original Defendant Nos.1 to 6 have not questioned the said Judgment.
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8. I have heard the learned Counsel for the parties and also have gone through their written submissions, in order to find out if the Courts below have erred in recording findings which were untenable or perverse or if they had committed any illegality by looking into inadmissible evidence or refusing to look into admissible evidence. In the absence of any material to show that not the Respondents herein, but some one else, were the successors in interest of the original lessors, the applicants' challenge to their capacity to sue the applicants and the original lessors was rightly repelled by the Courts below. Incidently, the original lessees, that is the trustees of Cammoo Yacoob Charitable Trust, had accepted the Respondents as landlords in respect of the property.
Though, Lease Deed dated 24th September, 1856 would have enabled Cammoo Yacoob Charitable Trust to seek renewal and though the trustees claimed that there were negotiations between ::: Downloaded on - 09/06/2013 16:22:56 ::: 7 CRA 336-09 JUDGMENT the trustees and the landlords. There is nothing on record to show that the lease was renewed for a further period of 99 years or that the landlords had agreed to the continuation of Cammoo Yacoob Charitable Trust as tenants. The Respondents had specifically issued notice to the lessees on 5th October, 1960 terminating the lease and on 20th June, 1966 calling upon them to vacate the premises.
Thus, it is clear that the possession of lessees after the expiry of lease on 1st January, 1954 was only as statutory tenants.
In any case, after service of notice dated 5th October, 1960 their status as statutory tenants could not be in any doubt.
9. It is the applicants' case that the applicants were inducted in the premises much prior to 1954. They seemed to take such a plea as the lease expired on 1st January, 1954 but significantly they have not pleaded the date prior to 1st January, 1954 on which they ::: Downloaded on - 09/06/2013 16:22:56 ::: 8 CRA 336-09 JUDGMENT were inducted as sub-tenants.
10. The Applicants have relied on letters filed at Exhibit H with the Revision Application. They are letters from Advocate of Cammoo Yacoob Charitable Trust and Municipal Corporation about godown No.24 over premises Nos.24-26 in 2nd Pasta Lane, Colaba written between 13th April, 1955 and 8th August, 1970. As rightly submitted by the learned Counsel for the Respondents, this may at best show that the Applicants were using the godown for storing wares and would not establish the case of a sub-tenancy created before 1st January, 1954. For proving such sub-tenancy, better evidence in the form of rent notes or receipts of payment of rent was required to be tendered.
11. Copies of rent receipts which are sought to be produced at Exhibit K with the Revision Application are of the years 1980-81 ::: Downloaded on - 09/06/2013 16:22:56 ::: 9 CRA 336-09 JUDGMENT that is after the suit was filed in the year 1968. The learned Counsel for the Respondents also submitted, and rightly in my view, that the receipts do not show that they pertain to the suit properties. Thus, they can not have any bearing on the fortunes of the parties.
12. The applicants point out that in the application made to the Sales Tax Authorities on 23rd May, 1957 and a Certificate issued by the authorities on 1st July, 1957, there is a reference to the warehouses used by the Applicants and it includes an entry Cammoo Yacoob Charity, 2nd Pasta Lane, Colaba . Using a warehousing facility or a godown cannot be equated to taking it on rent as a tenant or sub-tenant, unless it shows that the godown or the warehouse was taken in its entirety on rent. Therefore, merely because such a go down was included in the list of warehouses provided to the Sales Tax Authorities, it does not become a property leased to the ::: Downloaded on - 09/06/2013 16:22:56 ::: 10 CRA 336-09 JUDGMENT Applicants.
13. At the cost of repetition it has to be observed that the best evidence would have been some rent note or rent receipts of the year prior to 1st January, 1954 or at least before the suit was filed and in any case, prior to 1st ig February, 1973. This is not forthcoming.
14. The learned Counsel for the applicants may be right in contending that the respondents have not proved their case that the applicants came over the suit property only on 25th March, 1994. The respondents seem to have so concluded on the basis of an entry in the register of firms showing that the applicants had indicated their new place of business as 24 2nd Pasta Lane, Colaba with effect from 25th March, 1994.
15. In fact, the evidence of P.W.1 ::: Downloaded on - 09/06/2013 16:22:56 ::: 11 CRA 336-09 JUDGMENT Mr.Batliwala would show that Defendant No.7, that is, Marblewala, and not the present applicant was in possession since 1975 and that the applicants came in possession of the property in April, 1992, contradicting the plea that the Applicants came to possess the premises on 25th March, 1994. The applicants' witness too had no personal knowledge about the events prior to 1988. He deposed about the facts in issue only by reference to record. If that be so, there ought to have been some documentary evidence to show that the applicants were in exclusive possession of the premises prior to 1st February, 1973, if not prior to 1st January, 1954. The learned Counsel for the Respondents pointed out that the Applicants' witness Ardeshir S. Billimoria had stated in cross examination that it was correct that they were availing warehousing facilities provided by Cammoo Yacoob Charitable Trust from time to time, ruling out the case of subletting.
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16. Thus, it can not be said that the Courts below erred in concluding that the applicants had not proved subletting before 1st February, 1973. First, there is absolutely nothing to show that the Applicants were inducted as sub-tenants prior to 1st January, 1954, presuming that such sub-tenancy could be created without ig the landlord's permission.
After the expiry of the lease, the lessee became a tenant holding over. After termination of tenancy by notice dated 5th October, 1960, as statutory tenant, the lessees could not have sub-let the premises.
Therefore, subletting, if any, would be unlawful and would not attract any protection of the Rent Act. Only lawful sub-tenants inducted before 1st February, 1973, would get the benefit of Section 14(1) of the Bombay Rent Act, and that too, after the interest of the tenant is determined. It is settled position of law that in respect of premises to which Rent Act applies, the interest of the ::: Downloaded on - 09/06/2013 16:22:56 ::: 13 CRA 336-09 JUDGMENT tenant in the premises is determined only when a decree is passed and not by mere issuance of notice to quit. Therefore, howsoever viewed the Applicant cannot escape ejectment on the ground of subletting as also on the ground of the failure of the lessee to keep the premises in tenantable repair. On the second ground, apart from the fact that the lessee has not questioned the decree, the letters of the year 1955-57, on which the applicant places reliance for showing his possession, would point to the neglect in keeping the premises in tenantable repair.
17. In view of this Civil Revision Application has no merit and it is accordingly dismissed.
(R.C.CHAVAN, J.) ::: Downloaded on - 09/06/2013 16:22:56 :::