Bombay High Court
Ramvriksh Kalikaprasad Shukla vs Rambriksh Gangadin Dube on 10 October, 2024
Neeta Sawant
2024:BHC-AS:40226 CRA-473-2022/WP-905-2004-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 473 OF 2022
Rambriksh Gangadhin Dubey .... Applicant
(Orig. Defendant No.2)
: Versus :
1. Ramvriksha K. Shukla ....Original Plaintiff
2. All other unknown heirs and
legal representatives ....Original Defendant No.2
Respondents
WITH
WRIT PETITION NO. 905 OF 2004
ALONGWITH
CIVIL APPLICATION NO. 1631 OF 2019
Rambriksh Gangadhin Dubey .... Petitioner
(Orig. Defendant No.2)
: Versus :
Ramvriksh K. Shukla ....Respondent
Original Plaintiff
______________________________________________
Mr. Atul S. Tungare, for the Applicant/Petitioner.
Ms. Bijal Chowlera with Mr. Vasim Siddiqui, Mr. Utsav U. Mehta and Ms.
Jabeen Siddiqui for Respondent No.1.
______________________________________________
CORAM : SANDEEP V. MARNE, J.
Judgment Reserved on : 3 October 2024.
Judgment Pronounced on : 10 October 2024.
Page No.1 of 23
10 October 2024
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Neeta Sawant CRA-473-2022/WP-905-2004-FC
JUDGMENT :
1) The Revision Applicant/ Petitioner is aggrieved by the orders entertaining Plaintiff's suit for eviction and passing of decree for his eviction. Plaintiff filed R.A.E. Suit No. 916 of 1991 claiming that Rambhajan S. Dube was his tenant and accordingly impleaded his heirs as Defendant No.1. Treating Revision Applicant/Petitioner as unlawful occupant of suit premises, Plaintiff impleaded him as Defendant No.2 to the suit. Revision Applicant/Petitioner raised objection to maintainability of the suit contending that neither Rambhajan S. Dube nor him are his tenant in respect of the suit premises and that both were/are owners thereof. The preliminary objection to jurisdiction of the Small Causes Court to try and entertain R.A.E. Suit No.916 of 1991 came to be accepted by order dated 12 January 1994 and the suit was dismissed on the preliminary objection of jurisdiction. The said order dated 12 January 1994 of the Small Causes Court was however reversed by the Appellate Bench of the Small Causes Court on 6 September 2003 holding that the Small Causes Court had jurisdiction to try and entertain the suit. The order dated 6 September 2003 passed by the Appellate Bench of the Small Causes Court is the subject matter of challenge in Writ Petition No. 905 of 2004. While admitting Writ Petition No. 905 of 2004, this Court directed that the hearing of the suit shall proceed further and the decree for eviction, if passed during pendency of the petition, shall not be executed till decision of the Writ Petition. Therefore, Writ Petition No. 905 of 2004 remained pending in this Court, while R.A.E. Suit No.918 of 1991 proceeded before the Small Causes Court. By judgment and order dated 9 March 2010, the Small Causes Court decreed the suit directing the Defendants to handover possession of Page No.2 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC the suit premises to Plaintiff. Defendant No.2, who is the present Revision Applicant/Petitioner filed Appeal No. 144 of 2010 before the Appellate Bench of the Small Causes Court challenging the eviction decree dated 9 March 2010. The Appeal is however dismissed by the Appellate Bench by judgment and Decree dated 8 March 2022. Accordingly, the final decree passed by the Small Causes Court on 9 March 2010 as confirmed by the Appellate Bench by its judgment dated 8 March 2022 is the subject matter of challenge in Civil Revision Application No. 473 of 2022.
2) Both Writ Petition No. 905 of 2004 and Civil Revision Application No. 473 of 2022 are taken up for hearing together.
3) Plaintiff claims to be the landlord and owner in respect of structure named 'Kalika Shukla Chawl' situated at 2 nd Kasturba Road, Borivali (East), Bombay- 400 066. Plaintiff claims that one Mr. Rambhajan S. Dube was inducted as a tenant in respect of Room No.13 in Kalika Shukla Chawl, which are the suit premises. Plaintiff claims that said Rambhajan S. Dube was in arrears of rent since April 1977 and that he unlawfully sublet the suit premises to Defendant No.2, who is the Revision Applicant/Petitioner before this Court. Rambhajan S. Dube passed away on 25 March 1984. Plaintiff filed R.A.E. Suit No. 916 of 1991 against 'All other unknown heirs and legal representatives of Shri. Rambhajan S. Dube' as Defendant No.1 and against the present Revision Applicant/Petitioner as Defendant No.2 seeking recovery of possession of the suit premises on the ground of default in payment of rent, unlawful subletting and unauthorised additions and alterations. None appeared on behalf of Defendant No.1. Defendant No.2 (present Revision Applicant/Petitioner) filed Written Statement denying the status of Plaintiff as owner or landlord. Defendant No.2 Page No.3 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC claimed that Rambhajan S. Dube was the owner of Rambhajan Dube Chawl, which is situated adjacent to Kalika Shukla Chawl of which Plaintiff is the owner. That said 'Rambhajan Dubey Chawl' was assessed in the records of the Municipal Corporation in the name of Shri. Rambhajan S. Dubey. That Defendant No.2 is the heir and legal representative of Rambhajan S. Dube, who has no issues. Defendant No. 2 claimed that he is the son of Gangadin Dubey, who was the real brother of Rambhajan S. Dube. This is how, Defendant No.2 raised the plea of ownership in respect of the suit premises and questioned the jurisdiction of the Small Causes Court to try and entertain the suit. The Small Causes Court took up the preliminary issue of jurisdiction and directed both the parties to lead evidence on the said issues. Both the parties led their respective evidence. The learned Judge of the Small Causes Court thereafter proceeded to answer the issue of jurisdiction in favour of Defendant No.2 and against Plaintiff holding that Plaintiff is not the owner or landlord in respect of the suit premises. The suit came to be dismissed by judgment and order dated 12 January 1994.
4) Plaintiff filed Appeal No. 96 of 1994 before the Appellate Bench of the Small Causes Court, which proceeded to reverse the decree of the Small Causes Court and held that existence of landlord- tenant relationship between Plaintiff and Defendants was proved. The Appellate Bench therefore allowed the appeal and set aside the decree of the Small Causes Court by holding that it had jurisdiction to try and entertain the suit. As observed above, the judgment and order of the Appellate Bench dated 6 September 2003 is subject matter of challenge in Writ Petition No.905 of 2004. This Court admitted Writ Petition No. 905 of 2004 by order dated 16 June 2004, but however rejected the prayer for stay of the suit. This Court instead directed Page No.4 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC that hearing of the suit shall proceed further but the decree for possession, if any, passed in the suit shall not be executed till decision of the petition.
5) On account of specific order passed by this Court directing that the hearing of the suit shall proceed, the Small Causes Court proceeded with hearing of R.A.E. Suit No.918 of 1991 on an assumption that it had jurisdiction to decide the suit on account of order passed by the Appellate Bench. It appears that parties led further evidence on various issues framed by the Small Causes Court. After considering the pleadings, documentary and oral evidence, the Small Causes Court held that Defendant No.1 was tenant of the Plaintiff in respect of the suit premises. It upheld the ground of arrears of rent since April 1977. The ground of unlawful subletting by Rambhajan S. Dube in favour of Defendant No.2 was also accepted. Similarly, the Trial Court also upheld the ground of bonafide requirement of Plaintiff. The Small Causes Court further held that Defendant No.2 erected permanent structure in the suit premises without landlord's consent. The Trial Court rejected the defence of Defendant no.2 about wrongful description of the suit property. It also rejected the claim of Defendant No.2 about ownership of the suit premises. The suit was accordingly decreed by judgment and order dated 9 March 2010 directing Defendants to handover possession of the suit premises to Plaintiff with further decree for recovery of arrears of rent of Rs.180/-. The Small Causes Court also restrained Defendant No.2 from carrying out any additions or alterations or making any construction in the suit premises. Separate enquiry was directed into mesne profits. Defendant No.2 filed Appeal No. 144 of 2010 before the Appellate Bench of the Small Causes Court challenging the eviction decree dated 9 March 2010. The Appeal is however Page No.5 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC dismissed by the Appellate Bench by judgment and order dated 8 March 2022, which is subject matter of challenge in Civil Revision Application No. 473 of 2022.
6) Mr. Tungare, the learned counsel appearing for the Petitioner in support of Writ Petition No. 905 of 2004 and for Revision Applicant in support of Civil Revision Application No. 473 of 2022 would submit that the Appellate Bench of the Small Causes Court during preliminary round and Trial as well as Appellate Courts at the time of final hearing of the suit have erroneously accepted the Plaintiff to be the landlord and Rambhajan S. Dube to be the tenant in respect of the suit premises. That the only piece of evidence produced by Plaintiff in support of his claim as landlord are few counterfoils of the alleged rent receipts pertaining to the May and June 1972, January and February 1976 and April 1977. He would submit that those counterfoils are fraudulent and fictitious documents created for the purpose of grabbing the suit premises by Plaintiff. He would invite my attention to Advocate's notice dated 1 October 1974 claiming non- payment of rent from December 1970 till September 1974 and contended that if the rent in respect of May and June 1972 was indeed paid, the contention with regard to the arrears of rent from December 1970 till September 1974 could not have been raised in the notice dated 1 October 1972. He would thereafter invite my attention to the notice dated 9 June 1983 in which also allegation of non-payment of rent was raised, which is contrary to the subsequent claim of payment of rent during May and June 1972, January and February 1976 and April 1977. He would submit that the said notices dated 1 October 1974 and 9 June 1983 addressed on behalf of Plaintiff clearly proves falsity in the so called counterfoils of rent receipts. That once rent receipts are ignored, there is no iota of evidence to prove relationship Page No.6 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC between landlord and tenant. He would submit that Defendant No.2 had objected to production of the so-called counterfoils but the Small Causes Court proceeded to mark the same as Exhibits. That the counterfoils do not bear the signatures of Rambhajan S. Dube and therefore they cannot otherwise be read in respect of the contention that Rambhajan S. Dube was Plaintiff's tenant. Mr. Tungare would submit that since relationship between landlord-tenant is not proved, Small Causes Court did not have jurisdiction to try and entertain Plaintiff's suit.
7) Mr. Tungare would submit that right since inception, Rambhjan Dube has adopted a stand that he is the owner in respect of the suit premises and in support he would rely upon replies given by Rambhajan S. Dube in the year 1974 and 1983. Mr. Tungare would submit that in the year 1976, Rambhajan S. Dube had filed Suit in the City Civil Court challenging the entries made by the Municipal Commissioner in his assessment records effecting removal of his name and entering the name of the Plaintiff. That filing of such suit in the year 1976 once again proves consistent position adopted by Rambhajan S. Dube about his ownership in respect of the suit premises. Mr. Tungare would pray for setting aside the impugned orders and for dismissal of Plaintiff's suit.
8) Ms. Bijal Chowlera would appear on behalf of the First Respondent in Writ Petition as well as in Civil Revision Application to support the impugned orders passed by the Small Causes Court and its Appellate Bench. She would submit that Plaintiff overwhelmingly proved existence of landlord-tenant relationship. She would submit that several counterfoils clearly proved payment of rent by Rambhajan S. Dube to Plaintiff. That he stopped paying rent from Page No.7 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC April 1977 till which time, there is insufficient evidence of payment of rent from time to time. She would take me through the cross- examination of Plaintiff conducted by Defendant No.2 in support of her contention that Defendant No.2 himself gave specific suggestions to Plaintiff about payment of rent by Rambhajan S. Dube to Plaintiff's father in the month of April 1977. That further there are several suggestions with regard to payment of rent from time to time. Cross- examination conducted by Defendant No.2 clearly proceeds on the premise of payment of rent by Rambhajan S. Dube to Plaintiff's father from time to time. That since it was the case of Defendant No.2 in the cross-examination that payment of rent has been made, the mistake committed by the Advocate in the notice issued in the years 1974 and 1983 are required to be ignored. That Plaintiff clearly gave evidence about such mistake. That therefore such mistake reflected in the said notice cannot be utilised for casting any doubts about genuineness of the counterfoils. The counterfoils have ultimately been exhibited and marked in evidence. That since counterfoils have been exhibited and marked in evidence, the contents thereof must be accepted as proof of payment of rent. That the book containing counterfoils is not in respect of Rambhajan S. Dube alone and reflects names of several other tenants making payment of rent. That therefore there is no reason for expressing any doubt in respect of the genuineness of the said counterfoils.
9) Ms. Chowlera would further submit that Rambhajan S. Dube had raised false claim of ownership and dismissal of Suit No.519 of 1976 filed by him in the City Civil Court against the Plaintiff which completely falsifies his claim of ownership. She would submit that the only defence raised by Defendant No.2 throughout the proceedings was about erroneous description of the property which has been Page No.8 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC rightly repelled by the Small Causes Court. That the point of discrepancy in the notices was never argued at any stage of the proceedings and is sought to be argued for the first time before this Court. That absence of any finding by the Small Causes Court and its Appellate Bench on the issue of alleged discrepancy in the notices is attributable to the conduct of Defendant No.2 in not raising the said doubt. She would submit that the Trial and Appellate Court have considered the entire gamut of evidence for rejecting the claim of ownership of Defendant No.2 and for accepting existence of landlord- tenant relationship between the Plaintiff and Rambhajan S. Dube. She would submit that there are three concurrent judgments upholding existence of landlord-tenant relationship which do not warrant interference by this Court in exercise of either writ or revisionary jurisdiction. She would pray for dismissal of Writ Petition and the Civil Revision Application.
10) Rival contentions of the parties now fall for my consideration.
11) Plaintiff instituted R.A.E. Suit No. 916 of 1991 for recovery of possession of the suit premises by claiming that Rambhajan S. Dube was his tenant and that he unlawfully sublet the same in favour of Defendant No.2. The suit was thus filed under the provisions of Sections 12 and 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) treating Rambhajan S. Dube as a protected tenant in respect of the suit premises. Since Rambhajan S. Dube had already passed away in the year 1984, Plaintiff chose to implead 'All other unknown heirs and legal representatives of Rambhajan S. Dube' as Defendant No.1 to the suit. Since Defendant No.2 was admittedly in possession of the suit premises, only he chose to Page No.9 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC defend the suit. No one appeared on behalf of Defendant No.1, possibly on account of the manner of impleadment of Defendant No.1. Be that as it may. Defendant No.2 disputed Plaintiff's claim that Rambhajan S. Dube was his tenant. On the other hand, Defendant No.2 claimed that Rambhajan S. Dube was the owner in respect of the suit premises and the said ownership rights devolved upon Defendant No.2. In the light of the above contest between the parties, the issue of jurisdiction of the Small Causes Court to try and entertain suit filed under the Bombay Rent Act came to the fore. The issue of jurisdiction assumed importance because if existence of landlord-tenant relationship was not proved the Small Causes Court would have lost jurisdiction to try and entertain the suit. The issue of ownership in respect of the suit premises obviously was irrelevant as the Small Causes Court neither had jurisdiction nor was supposed to go into the intrinsic issue of ownership. By now, it is well settled position of law that for entertaining a suit for eviction, all that needs to be established is existence of landlord-tenant relationship. In fact to be a lonadlord, a person need not be the owner of the property. A quick reference in this regard can be made to the judgment of the Supreme Court in K.D. Dewan Versus. Haribhajan S. Parihar1, in which it is held as under:
"6. The short question that arises for our consideration is, what is the import of the word "landlord" in clause (c) of Section 2 of the Act and whether the respondent has rightly been held to be the landlord and entitled to seek eviction of the appellant.
7. The said provisions reads as follows :
" 2.(c): 'landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, and, every person from time to time deriving title under a landlord;"
8.A perusal of the provision, quoted above, shows that the following categories of persons fall within the meaning of landlord : (1) any person for the time being entitled 1 (2002) 1 SCC 119.
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to receive rent in respect of any building or rented land; (2) a trustee, guardian, receiver, executor or administrator for any other person; (3) a tenant who sublets any building or rented land in the manner authorised under the Act and (4) every person from time to time deriving title under a landlord. Among these four categories of persons, brought within the meaning of "landlord", Mr. Sharma sought to derive support from the last category. Even so that category refers to a person who derives his title under a landlord and not under an owner of a premises. For purposes of the said category the transferor of the title referred lo therein must fall under any of the categories (1) to (3). To be a landlord within the meaning of clause (c) of section 2 a person need not necessarily be the owner; in a vast majority of cases an owner will be a landlord but in many cases a person other than an owner may as well be a landlord. It may be that in a given case the landlord is also an owner but a landlord under the Act need not be the owner. It may be noted that for purposes of the act the legislature has made a distinction between an owner of a premises and a landlord. The Act deals with the rights and obligations of a landlord only as defined therein. Ownership of a premises is immaterial for purposes of the Act."
(emphasis added)
12) The definition of the term 'landlord' appearing in Section 5(3) of the Bombay Rent Act does not envisage that the landlord needs to be the owner in respect of the suit premises. On the contrary, landlord includes a person, who is receiving or is entitled to receive rent in respect of any premises. Therefore, receipt of rent from the tenant at some point of time is sine qua non for establishment of landlord-tenant relationship. It is not that in every case tenancy is created by a written contract. In cases involving absence of written contract, like the present one, proof of payment of rent by Defendant to the Plaintiff becomes the only yardstick for determining existence of landlord-tenant relationship. Therefore, the controversy involved in the present Petition and Revision Application revolves around the debate about payment of rent by Rambhajan S. Dube to Plaintiff or to his father.
13) To decide the issue as to whether Rambhajan S. Dube paid rent to the Plaintiff or his father, it would be first necessary to consider pleadings of parties. In paras-1 and 2 of the Plaint, Plaintiff pleads thus:
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1. The plaintiff is the landlord and owner in respect of the chawl known as Kalika Shukla Chawl, situated at 2nd Kasturba Road, Borivali (East), Bombay- 400 066. The Defendant No. 1 are the unknown heirs and legal representatives of the deceased Rambhajan S. Dube, who has the tenant of the plaintiff in respect of above room No.13 which is hereinafter called for brevities sake as "the suit premises". The plaintiff states that he has made a diligent search to find out the names and whereabout of the heirs and legal representatives of the said deceased tenant Shri Rambhajan S. Dube but they could not succeed in the same therefore joined (all unknown heirs and legal representatives of Bhajanlal S. Dube as the Defendant No.1. Defendant No.2 is the unlawful sub-tenant of the suit premises, occupying the suit premises, without any lawful right.
2. The Plaintiff states that the Defendant No.1 is in arrears of rent since April 1977 at the rate of Rs.18.40 per month which the rent the Defendant No.1 failed and neglected to the Plaintiff and are not ready and willing to pay the name though demanded by the Plaintiff from time to.
14) Undoubtedly, Rambhajan S. Dube had passed away in the year 1984 and 'his unknown legal heirs' were sought to be impleaded as First Defendant to the suit which resulted in non-representation for Defendant No.1. Therefore, the person who alleged to have paid rent was not available before the Court for testifying and clarifying the said issue. Defendant No.2, who admittedly occupied the suit premises at the relevant time, took upon himself the task of defending the suit. Defendant No.2 denied existence of landlord-tenant relationship and took up a plea that the suit premises were erroneously described and that Rambhajan S. Dube was the real owner in respect of the suit premises after whose death Defendant No.2 became the owner. The relevant pleadings raised by Defendant No.2 in his Written Statement in this regard are as under:
2. The defendant No.2 says that the suit itself is not maintainable and his Hon'ble Court will have no jurisdiction to try this Suit, as Plaintiff was never the landlord in respect of the premises and their was no relationship of landlord and tenant between the Plaintiff and the Late Shri Rambhajan S. Dubey as has been alleged in the Plaint. I say that the Plaintiff has been trying to grab the suit Page No.12 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC premises which belonged to late Shri Rambhajan S. Dube for the last over twenty years but he could not succeed. The Plaintiff had tried to eliminate the name of late Shri Rambhajan S. Dubey from the City Survey Records but he could not succeed. The appeal filed by the Plaintiff against the order of the City Survey Officer No.X, having his office at Jogeshwari, Bombay has also been disposed of by the District Land Records. I say that as the Plaintiff lost before the revenue authorities, has now chosen this forum to harass me.
3. At the very outset Defendant No.2 wish to point out to this Hon'ble Court that the suit as had been framed is vague and misleading. It is unbelievable that the Plaintiff, who has asserted that late Shri Rambhajan S. Dube was name his tenant, could not mentioned the of his heirs and representatives and has filed legal a suit against unknown persons. The suit against unknown persons cannot be maintained and will have to be dismissed on this ground alone. The Plaintiff has also left blank in para no.2 of the Plaint in the copy of the plaint served upon the Defendant No.2, the alleged period since when Rambhajan S. Dube has not paid rent to him. In para no.6 of the Plaint the area of the suit premises is also left blank. Similarly there are blanks in para no.14 and prayer clause (b) of the plaint. The aforesaid ambiguities have arisen as the suit is false and frivolous to the the knowledge of the Plaintiff and as the late Rambhajan S. Dube was never the tenant of the Plaintiff in respect of the Suit Premises.
4. With reference to the title of the Plaint, the Defendant No.2 wish to point out to his Hon'ble Court that the Suit premises has been deliberately described wrongly as "Room No.13, Kalika Shukla Chawl, 2nd Kasturba Road." The proper description of the Suit premises is "Rambhajan S. Dube Chawl, Kasturba Road". The Defendant No.2 says that Kalika Prasad Shukla Chawl is situated adjacent to the suit premises i.e. Rambhajan S. Dube Chawl.
5. With reference to para no.1 the Plaint, the Defendant No.2 says that the Plaintiff is an owner of one chawl known as Kalika Shukla Chawl but the suit premises is not a part of Kalikaprasad Shukla Chawl. The Defendant No.2 emphatically deny that late Rambhajan S. Dube was the tenant of Plaintiff in respect of room no.13 or in any other rooms of Kalika Shukla Chawl as has been alleged. The Defendant No.2 says that late Shri Rambhajan S. Dube was residing in his own chawl known as Rambhajan Dube Chawl which is situated adjacent to Kalika Shukla Chawl and the said Rambhajan S. Dube was the owner of the aforesaid Rambhajan S. Dube chawl and the said chawl was assessed in his name by the Bombay Municipal Corporation under No. R-6313(2). The Defendant No.2 crave leave to refer to and rely upon the Municipal Assessment Bill in respect of Rambhajan Dube Chawl when produced. The Defendant No.2 says that there was no question of searching the names and whereabouts of heirs and legal representatives of the late Rambhajan S. Dube as the knowledge of the Plaintiff the Defendant Page No.13 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC No.2 is the only heir and legal representative of late Rambhajan S. Dube. The Defendant No.2 says that late Rambhajan S. Dube had no issue from his wife Smt.Krishnabai Dube. The Defendant No.2 says that I am son of Gangadin Dube. who was the real brother of Rambhajan Dube. The Defendant No.2 says that I am thus nephew of late Rambhajan Dube. The Defendant no.2 says that late Rambhajan Dube had no issue from his wife Smt. Krishnabai Dube. The Defendant No.2 says that late Rambhajan Dube expired at Borivli on 25th March, 1984. The defendant no.2 says that his wife Krishnabai Rambhajan Dube expired on 12th April, 1989. The Defendant No.2 says that he had been staying with late Rambhajan S. Dube since my childhood. The Defendant No.2 says that he had attended N. L. High School Malad. The Defendant No.2 says that his school records will show the address of Rambhajan Dube Chawl and he leave to refer to and rely upon the same when produced. The Defendant No.2 says that he has been receiving Postal correspondence at Rambhajan Dube Chawl last several years. The Defendant No.2 deny that he is unlawful sub-tenant in respect of the suit premises. The Defendant no.2 says that to the knowledge of the Plaintiff he has been staying in the suit premises i.e. Rambhajan Dube Chawl since his childhood.
His name appears in the ration card for the last over 25 years.
7. With reference to para 2 of the Plaint, the Defendant No.2 says that as late Rambhajan S. Dube was never the tenant of the Plaintiff in respect of the suit premises i.e. Rambhajan Dube Chawl or any other premises the question of paying rent to the Plaintiff never arose. It is pertinent to note that the Plaintiff has not relied upon or referred to any agreement of tenancy or the counter foil of rent receipts. The Defendant No.2 says that the father of the Plaintiff had through his advocate Mr.J. P. Vyas served upon late Rambhajan S. Dube a notice of demand of arrears rent on 1st October, 1974 and late Rambhajan S. Dube had replied the aforesaid notice through his advocate by his letter dt.11-11-74 and in the said letter 11-11-74 itself, late Rambhajan S Dube had denied that he was the tenant of the plaintiff as had bean alleged in letter dt.1st October, 1974. In the said reply dated 11-11-74 late Rambhajan S. Dube had specifically stated that he was the owner of the was premises bearing Municipal Assessment No.R-6313(2) and as such he was not bound and liable to pay any rent. The Defendant No.2 crave leave to refer to and rely upon the notice of the Plaintiff's father through Advocate J. P. Vyas dated 1st October, 1974 addressed to Rambhajan S. Dube and the reply of Rambhajan S. Dube to aforesaid notice dated 11-11-74 when produced. The Plaintiff had served similar notice upon the late Rambhajan S. Dube through his advocate S. G. Anand on 9-6-1993, calling upon the Rambhajan S> Dube to pay all the arrears of rent and the aforesaid notice was replied through Advocate Mr. Vora by his letter dt.30th June, 1983 by the Rambhajan S. Dube in which reply late Rambhajan Dube had reiterated that he was not the tenant of the Plaintiff and he was the owner of the premises bearing Municipal Assessment No.6313(2). It is pertinent to note that the Plaintiff his father did not file a suit against late Rambhajan Dube during his life time although the title Page No.14 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC of Plaintiff to the Suit Premises the i.e. Rambhajan S. Dube chawl was challenged as far back as in November, 1974.
15) Plaintiffs relied upon counterfoils of rent receipts pertaining to May and June 1972, January and February 1976 and April 1977. There appears to be some contradiction in the claim of the Plaintiff with regard to non-payment of rent for the month of April 1977. While it is pleaded in para-2 of the plaint that Defendant No.2 was in arrears of rent since April 1977, Plaintiff produced counterfoils pertaining to April 1977. Ms. Chowlera has urged me to ignore this 'minor' inconsistency, which I momentarily propose to do, considering much larger debate which this Court needs to resolve.
16) It is the case of Defendant No.2 that the counterfoils produced by the Plaintiff are fraudulent documents. Defendant no.2 accordingly objected to production of the said counterfoils. However, the Small Causes Court proceeded to mark the said counterfoils in evidence by overruling the objection raised by Defendant No.2 by recording following finding:
1. The issue in this case is whether deft. No.1 Rambhajan was in occupation of the suit premises in a capacity of a tenant or the owner. In the case of hence the documents each may establish relationship of landlord and tenant between the parties are relevant. Hence the objection is overruled.
17) Thus, though counterfoils did not bear signature of any person, the Small Causes Court proceeded to mark them in evidence. Apart from the plea that counterfoils do not bear any signatures and hence manufactured subsequently, Defendant No.2 has raised more pertinent objection about genuineness of the counterfoils by referring to the contents of the two notices issued at the instance of the Plaintiff to Rambhajan S. Dube on 1 October 1974 and 6 June 1983. It Page No.15 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC would be apposite to reproduce the relevant portions of the two notices. In notice dated 1 October 1974, Plaintiff's father contended as under:
My client says that you are not regular in paying the rent to him and he further says that you are in arrears of rent since December- 1970, which comes to Rs.680/- till end of September, 1974. My client also says that in spite of repeated requests made to you orally to pay the same to him you have failed and neglected to pay the same. Not only that you are trying to evade the same.
18) Thus, it was claimed in the notice dated 1 October 1974 that Rambhajan S. Dube was not paying rent to Plaintiff's father since December 1970 and the same was not paid till September 1974. This contention in the notice contradicts the alleged counterfoils pertaining to the months of May and June 1972. If the rent was indeed paid in May and June 1972, why Plaintiff's father contended in the notice dated 1 October 1974 that the rent was not paid from December 1970 to September 1974 becomes incomprehensible.
19) Similar is the case in respect of the second notice dated 9 June 1983, in which it was contended in para-2 as under :
2. My client states that despite repeated requests and demands you have failed and neglected to pay the rent and we are in arrears for 149 months from January, 1971 till May, 1983 amounting to Rs.
2235.00 excluding the permitted increases.
20) Thus, in the notice dated 9 June 1983, Plaintiff contended that Rambhajan S. Dube did not pay rent from January 1971 till May 1983, which contention is contradicted by the three counterfoils pertaining to January and February 1976 and April 1977. Here again, if the rent was indeed paid in May and June 1972, January and February 1976 and April 1977 as per the counterfoils, why Plaintiff raised the contention of non-payment of rent from January 1971 to May 1983 has Page No.16 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC not been explained in any manner. The only explanation sought to be given during the course of cross-examination of the Plaintiff is as under:
I am shown the counter foil of the receipt for the rent paid for April. 1977 of Ex.C. It is in the handwriting of my father. I know advocate Anand, who was my father's advocate. The contents of the notice Ex.11 i.e. para no.2 are correct. It is true that my father had accepted the rent for the month of April, 1977 from the Deft. Mr. Anand, the advocate of my father, might have wrongly written in the notice about the arrears of rent from 1971 to 1983, by mistake. It is true that the person who collects the rent has not signed on the counter foil of the receipt. Witness volunteers that the rent receipt which is issued to the tenant bears the signature of the person who collected the rent. It is not true that the deft has not paid the rent to my father nor he received any receipt. It is not true that in order to establish the relationship of landlord and tenant, I manipulated the counter foils of the rent receipt. It is not true that the Deft. never acknowledged me or my father as the owner and had not paid any rent.
21) Thus, Plaintiff sought to contend that the statement in the notice about non-payment of rent from 1971 to 1983 was mistake of Advocate. However, no explanation is given about the contradictory contention in the first notice of 1 October 1974. Thus, there are three inconsistencies between the statements in the notices, pleadings in the plaint and claim of payment of rent as per the alleged counterfoils.
(a) First inconsistency is in the first notice of 1 October 1974 about non-payment of rent during December 1970 to September 1974 as compared to the alleged counterfoil pertaining to May and June 1972.
(b) The second inconsistency is in the statement made in the notice dated 9 June 1983 about non-payment of rent from January 1971 to May 1983 as compared to counterfoils showing payment of rent during May and June 1972, January and February 1976 and April 1977.Page No.17 of 23
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(c) The third contradiction is in the pleading that Defendant No.1 did not pay rent from April 1977 and later producing counterfoil relating to the month of April 1977.
22) Coupled with the above discrepancies, it is also a matter of fact that the concerned counterfoils have not been signed by Rambhajan S. Dube. It is therefore not safe to rely upon the said counterfoil receipts since Plaintiff and his father specifically pleaded in their notices dated 1 October 1974 and 9 June 1983 that the rent in respect of the suit premises from December 1970 till May 1983 is in arrears. Plaintiff cannot be permitted to rely upon such unsigned counterfoils for the purpose of proving landlord-tenant relationship.
23) Rambhajan S. Dube appears to be consistent in his stand about he being the owner of the suit premises. When he received notice dated 1 October 1974 alleging non-payment of rent from December 1970 to September 1974, he gave reply in which he contended as under:
1) With reference to para one of your letter under reply my client denies that you are the owner of the premises known as Kalika Prasad S. Chawl bearing Municipal Ward No.6313(1) as alleged. My client further denies that he is your client's tenant occupying one room in the aforesaid premises on a monthly rent of Rs.15/-. My client states that he is the owner of the premises which are being occupied by him bearing the Municipal Ward No. 6313(2) and as such he has not to pay any rent to your client. He is residing in the said premises in his own right as an owner.
24) Thus, right since 1974, Rambhajan S. Dube adopted a specific plea that he was not the tenant of the Plaintiff or his father and that he was the owner of the suit premises. Rambhajan S. Dube specifically denied having paid rent to Plaintiff's father at any point of time. Plaintiff's father did not institute any suit against Rambhajan S. Page No.18 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC Dube after service of notice dated 1 October 1974. After long hiatus of 8 years and 8 months, Plaintiff issued notice dated 9 June 1983 alleging non-payment of rent from January 1971 to May 1983 and again Rambhajan S. Dube denied the claim of tenancy and contended in his reply dated 30 June 1983 as under:
Referring to para 1 of your said Notice, my client denies that my client is a tenant of your clients with respect to the premises Ward No.6313(1) occupying the ground floor of Kalika Prasad Shukla Chawl, Room No.13. My client has got separate and distinct property of his own and he is owner of the said property.
Referring to para 2 of your said notice, my client not being the tenant of any premises of your clients, the question of payment of rent does not arise Therefore the question of making any payment of rent much less the arrears as demanded does not arise.
25) Again, Plaintiff maintained stoic silence and did not file any suit against Rambhajan S. Dube. He apparently waited for his demise and later thought of filing R.A.E. Suit No.916 of 1991 after noticing that no one was available to depose on behalf of Rambhajan S. Dube. The conduct of Plaintiff and his father in waiting for over 17 long years after Rambhajan S. Dube denied landlord-tenant relationship assumes importance in the present case. If the alleged counterfoils were really available with Plaintiff or his father, why the Suit was not instituted immediately after the year 1974, and in any case after 1983, is an unresolved puzzle. Considering this conduct of Plaintiff and his father, the counterfoils sought to be produced for the first time in the year 1993 (without making any reference thereto in the plaint) are too dangerous to rely upon for the purpose of proving landlord-tenant relationship. When Rambhajan S. Dube denied landlord-tenant relationship in the year 1974 and if Plaintiff's father indeed possessed the counterfoils of May and June 1972, he ought to have instituted the suit immediately after denial of claim of tenancy Page No.19 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC by Rambhajan S. Dube. If Plaintiff's father was incapacitated to file suit, Plaintiff could have filed such suit after 9 June 1983 when Rambhajan S. Dube once again denied the claim of tenancy by which time, Plaintiff was armed with alleged counterfoils of May 1972 and June 1992, January 1976 and February 1976 and April 1977. Why this was not done during lifetime of Rambhajan S. Dube is incomprehensible.
26) Ms. Chowlera wants me to read the cross-examination of Plaintiff's witness to mean as if there is an admission on the part of Defendant No.2 about payment of rent by Rambhajan S. Dube. In my view, such reading on the part of Ms. Chowlera is skewed and myopic. What is sought to be done while conducting cross-examination of the Plaintiff was to highlight the inconsistent stand taken by the Plaintiff and Defendant No.2 has never admitted payment of rent by Rambhajan S. Dube to Plaintiff or to his father.
27) Ms. Chowlera has attempted to suggest that claim of Rambhajan Shukla relating to ownership is in respect of altogether different property bearing Municipal Ward No.6313(2), whereas the suit premises are located at Municipal Ward No. 6313(1). I am unable to accept this contention in the light of specific evidence led by Plaintiff as under:
4. I am shown Exh-5 assessment bills. These assessment bills are in respect of my property. In 6313/1 there are 17 rooms whereas in 6313/2 there is only 1 room. When the City Survey Inspector visited the suit premises 6313/2 all the tenants were singing bhajans in that room. Therefore C. T. Survey Inspector assess the bill in the name of Rambhajan Company, after inquiry. Rambhajan & Co.
dosen't exist. Rambhajan company had no connection with Rambhajan Dube. Rambhajan Dube used to reside in 6313/2. The suit bears C.T.S. No.84/31.
(emphasis added)
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28) Thus, Plaintiff gave specific admission that Rambhajan S. Dube
used to reside in property bearing Municipal No.6313/2.
29) Both the Small Causes Court as well as its Appellate Bench have failed to take into consideration the most vital point of inconsistency in the stands taken by Plaintiff and his father in the notices dated 1 October 1974 and 9 June 1983 and the counterfoils sought to be relied upon by him. The findings relating to Plaintiff establishing claim of being landlord, without taking into consideration this vital inconsistency, are therefore perverse and liable to be set aside. In my view, since landlord-tenant relationship is not established, Small Causes Court would not have jurisdiction to entertain Plaintiff's suit. The Small Causes Court had rightly answered the issue of jurisdiction in favour of Defendant No.2 and against the Plaintiff by its order dated 12 January 1994. The Appellate Bench has committed error in reversing that finding without taking into consideration the inconsistent stand taken by the Plaintiff. The Appellate Bench erred in relying on deletion of name of Defendant No.2 from assessment register. That aspect in my view may have connection with regard to the claim of title of the suit premises. Entry of names in revenue records or municipal assessments have nothing to do with landlord-tenant relationship. The entire order of the Appellate Bench dated 6 Separate 2003 heavily relies upon entries made in the revenue records and municipal assessments by completely ignoring the fact that for establishment of landlord-tenant relationship, the issue of ownership becomes totally irrelevant. Ignoring this position, the Appellate Bench committed gross error in holding that the onus was on the defendant to prove that he is the owner of the suit premises.
Page No.21 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC 30) Even in the final judgment and decree, the learned Judge
of the Small Causes Court has failed to take into consideration, the inconsistent stands taken by the Plaintiff and has erroneously relied upon the counterfoils ignoring the contents of Notices dated 1 October 1974 and 9 June 1983. Similar folly is committed by the Appellate Bench in completely ignoring the said inconsistency. I am unable to accept the contention of Ms. Chowlera that the said point was never argued before the Small Causes Court or its Appellate Bench. In fact, the line of cross-examination conducted by Defendant No.2 is clearly aimed at proving the said inconsistent stand.
31) The conspectus of the above discussion is that relationship of landlord and tenant cannot be inferred in the present case on the basis of unsigned counterfoils relied upon by Plaintiff which are clearly inconsistent with the claims made in the notices dated 1 October 1974 and 9 June 1983. In my view, therefore the Plaintiff has thoroughly failed to prove existence of landlord-tenant relationship in the present case. Therefore, suit for recovery of possession of suit premises under Sections 12 and 13 of the Bombay Rent Act was clearly not maintainable. There appears to be clear dispute relating to ownership of the suit property.
32) Considering the overall conspectus of the case, I am of the view that the impugned order dated 6 September 2003 passed by the Appellate Bench on the preliminary issue of jurisdiction, as well as the final decree dated 9 March 2010 as upheld by the Appellate Bench on 8 March 2022 are indefensible and are liable to be set aside.
Page No.22 of 23 10 October 2024 ::: Uploaded on - 10/10/2024 ::: Downloaded on - 11/10/2024 00:26:44 ::: Neeta Sawant CRA-473-2022/WP-905-2004-FC 33) The Writ Petition as well as the Civil Revision Application
accordingly succeed and I proceed to pass the following order :
(i) The order dated 6 September 2003 passed by the Appellate Bench of the Small Causes Court in Appeal No. 96 of 1994 is set aside and it is held that Small Causes Court did not have jurisdiction to try and entertain R.A.E. Suit No.916 of 1991.
(ii) The final decree dated 9 March 2010 passed by the learned Judge of the Small Causes Court in R.A.E. Suit No.916 of 1991 as confirmed by the Appellate Bench by judgment and order dated 8 March 2022 are also set aside.
(iii) R.A.E. Suit No.916 of 1991 is dismissed with costs throughout.
34) Writ Petition No.905 of 2004 is allowed. Rule is made absolute.
35) Civil Revision Application No. 473 of 2022 is also allowed in the above terms.
36) With disposal of the petition, Civil Application No. 1631 of 2019 does not survive. The same also stands disposed of.
Digitally signed by NEETA [SANDEEP V. MARNE, J.]
NEETA SHAILESH
SAWANT
SHAILESH Date:
SAWANT 2024.10.10
17:59:56
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