Bombay High Court
Shantilal S/O Shaligram Chandak Thr. ... vs Somdatta S/O Ramprasad Shukla And ... on 4 January, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 SA596of18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL 596 OF 2018
Shantilal s/o. Shaligram Chandak,
aged about 71 yrs, Occ. Business,
R/o. Agar Automobiles, Akot Stand
Akola, District Akola
through its Power of attorney
Shri Shamlal s/o. Shaligram Chandak,
aged about 68 yrs, occ. Business,
R/o. Tapadiya nagar, Akola ..... APPELLANT
...V E R S U S...
1 Somdatta s/o. Ramprakash Shukla,
aged about 70 yrs, Occ. Business,
2 Vishnudatta s/o. Ramprasad Shukla
aged about 63 yrs, Occ. Business,
3 Aniruddha s/o. Ramprasad Shukla,
aged about 55 yrs, Occ. Business,
All r/o. Giriraj Building,
OM Housing society,
Gorakshan Road, Akola,
Tah. Dist.nagpur ....... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri N.S. Bhattad, counsel for appellant.
Shri S.C. Mehadia, counsel for respondent 2.
-------------------------------------------------------------------------------------------
::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 :::
2 SA596of18.odt
CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 20.12.2018
DATE OF PRONOUNCING THE JUDGMENT : 04.01.2019
JUDGMENT:
1 Heard Shri N.S. Bhattad, the learned counsel for the appellant and Shri S.C. Mehadia, the learned Counsel for respondent 2.
2 The appellant tenant is the defendant in Regular Civil Suit 209 of 2016 (earlier numbered Small Cause Suit 26 of 2008) which suit for ejection, possession and arrears of rent, is decreed by the 3rd Joint Civil Judge Junior Division, Akola by judgment dated 17.12.2016, is confirmed. Regular Civil Appeal 22 of 2017 preferred by the tenant is dismissed by Adhoc District Judge - 1 , Akola by judgment dated 10.9.2018.
3 Shri N.S. Bhattad, the learned counsel for the appellant has canvased two submissions in an endavour to persuade me to hold that this appeal preferred under section 100 of the Civil Procedure Code ("Code" for short) involves substantial ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 3 SA596of18.odt questions of law. The first submission is that since the permission to issue quit notice under the provisions of the C.P. and Berar Letting of Houses and Rent Control Order ("Rent Control Order"
for short) is obtained prior to coming into force of the Maharashtra Rent Act, 1999 ("Rent Act" for short), the suit for eviction which is instituted after coming into force of the Rent Act, is not maintainable in view of the provisions of section 58 of the Rent Act. The second submission is that the permission to issue quit notice and terminate the tenancy obtained under the provisions of the Rent control Order, is vitiated by fraud.
4 I have heard the learned counsel Shri S.N. Bhattad for the appellant and the learned counsel Shri S.C. Mehadia for the respondents - landlord at length and have scrutinized the reasons recorded by the Courts below. I am satisfied, for reasons spelt out infra, that this appeal does not involve any question of law much less the substantial questions of law formulated by the learned counsel Shri S.N. Bhattad.
5 It would be necessary to note few facts:
The appellant - who shall be referred to as 'the tenant' is ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 4 SA596of18.odt occupying a shop block admeasuring 180 sq.ft. in building situated in the vicinity of Akot Motor Stand, Akola. The respondents - who shall be referred to as "the plaintiffs" are the legal heirs of Ramprasad Shukla who is the original landlord.
6 The landlord initiated proceedings under the provisions of the Rent Control Order seeking permission to terminate the tenancy, which permission is granted by the Resident Deputy Collector and House Rent Controller ("Rent Controller" for short) by order dated 30.1.2008. 7 Concededly, the tenant did not prefer an appeal assailing the permission which assumed finality in view of the provisions of section 21 (3) of the Rent Control Order. 8 The tenant contends that the Rent Controller proceeded ex-parte and an application seeking setting aside the permission, was preferred which is not decided since the relevant record is not traceable.
9 The landlord terminated the tenancy by notice dated ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 5 SA596of18.odt 19.3.2008 issued under section 106 of the Transfer of Property Act. The landlord then instituted civil suit for eviction and arrears of rent which was decreed by judgment dated 13.7.2009. However, in Regular Civil Appeal 115 of 2010, the learned District Judge - 3, Akola held that the tenant deserved an opportunity to file written statement and set aside the judgment and decree of eviction and directed the trial Court to decide the suit expeditiously.
10 As noted earlier, the trial Court decreed the suit and the appeal preferred by the tenant, is dismissed. 11 Shri N.S. Bhattad, the learned counsel is relying on the provisions of section 58 of the Rent Act, which read thus:
58. Repeal and saving.-
(1) On the commencement of this Act, the following laws, that is to say,-
(a) the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947;
(b) the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 including the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949; and
(c) the Hyderabad Houses (Rent, Eviction and Lease) ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 6 SA596of18.odt Control Act, 1954; shall stand repealed.
(2) Notwithstanding such repeal-
(a) all applications, suits and other proceedings under the said Acts, pending, on the date of commencement of this Act before any Court, Controller, Competent Authority or other office or authority shall be continued and disposed of, in accordance with the provisions of the Acts so repealed, as if the said Acts had continued in force and this Act had not been passed;
(b) the provisions for appeal under the Acts so repealed shall continue in force in respect of applications, suits and proceedings disposed of thereunder;
(c) any appointment, rule and notification made or issued under any of the repealed Acts and in force on the date of commencement of this Act shall, in so far as they are not inconsistent with the provisions of this Act, be deemed to have been made or issued under this Act and shall continue in force until it is superseded or modified by any appointment, rule or notification made or issued under this Act;
(d) all prosecutions instituted under the provisions of any of the repealed Acts shall be effective and disposed of in accordance with the law.
Sub section 1(b) repeals the Rent Control Order. Sub section (2) is the saving clause which provides that all applications, suits and other proceedings under the repealed Rent Control Order, pending on the date of commencement of the Rent Act before any Court, Controller, competent authority or other ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 7 SA596of18.odt office or authority shall be continued and disposed of, in accordance with the repealed Rent Control Order, as if the Rent Control Order had continued in force and the Rent Act had not been passed.
Concededly, as on the date of coming into force of the Rent Act i.e. 31.3.2000, the proceedings instituted by the landlord under the provisions of the Rent Control Order were pending and are therefore saved by the provisions of sub section (2) of section 58 of the Rent Act.
12 The decision of a learned Single Judge in Shashikant Bagdi..vs.. Ratanlal Kanhaiyyalal Rathi, 2009(5)Mh.L.J.915 is a complete answer to the submission of Shri N.S. Bhattad that the civil suit instituted after coming into force of the Rent Act, is not maintainable since the proceedings to obtain permission to terminate the tenancy are instituted under the Rent Control Order, and in all fairness, the learned counsel Shri N.S. Bhattad concedes that the said decision has rejected the very contention urged in this appeal. However, Shri N.S. Bhattad, the learned counsel would submit that the said decision rendered by Shri R.C. Chavan, J. may be revisited in view of the decisions of this Court ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 8 SA596of18.odt in Chandrakant Pundlikrao Randive ..vs.. Lalit Kantilal Thakkar and ors, reported in 2009(5)Mh.L.J. 287, Balasaheb Anantrao Bahirat ..vs.. Raohidas Bapusaheb Tupe, reported in 2007(3)Mh.L.J. 467 and Godrej and Boyce Mfg. Co. Ltd. ..vs.. Shridhar Jagannath Nerurkar, reported in 2005(1)Mh.L.J.1097.
13 In Chandrakant Pundlikrao Randive the factual matrix was that the landlord initially preferred proceedings under the Rent Control Order seeking permission to terminate the tenancy and since Rent Act came into force, the landlord withdrew the proceedings under the Rent control Order and instituted suit under the Rent Act. The learned Single Judge has held that the saving clause in the Rent Act gives an option to the landlord. The landlord is permitted to prosecute the proceedings under the Rent control Order if he so desires and there is no compulsion that he must continue to prosecute the proceedings under the Rent Control Order. The landlord is free to exercise the option of taking recourse to the Rent Act. This decision is of no assistance to the tenant and is certainly not inconsistent with the view taken by Shri R.C. Chavan, J.
::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 :::
9 SA596of18.odt 14 In Balasaheb Anantrao Bahirat the proceedings were initiated by the landlord under the Bombay Rent, Hotels and Lodging Rates Control Act, 1947 after the commencement of the Rent Act. It was not in dispute that no proceedings were pending under the repealed Act when the new Rent Act came into force w.e.f. 31.3.2000. Nonetheless, the learned Single Judge has held that if the landlord makes a different case which could fall within the parameters of the provisions of the new Rent Act, mere reference to the provisions of the repealed Act would not render the proceedings bad in law. The following observations in the said decision are relevant:
"8. Section 58(1) of the New Rent Act provides that on commencement of the new Rent Act, old Rent Act shall stand repealed. The new Rent Act came into force with effect from 31st March, 2000. Consequently, old Rent Act stood repealed from the said day in terms of the provisions comprised under Section 58(1) of the New Rent Act. Sub-section (2) Clause (a) of Section 58 provides that notwithstanding such repeal, all applications, suits or other proceedings which were instituted under the old Rent Act and were pending on the date of the commencement of the new Rent Act, shall be continued and disposed of in accordance with the provisions of the old Rent Act, as if old Rent Act had continued in force and the new Rent Act had not been passed. Obviously, the provisions of Section 58(2)(a) of the new Rent Act would apply to those proceedings which were pending on 31st March, 2000. Undoubtedly, the provisions of Section 58(2)(a) of the New Rent Act would ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 10 SA596of18.odt apply to the proceedings for eviction of a tenant of a building instituted on or after 31st March, 2000 as in terms of Section 58(1) of the new Rent Act. The provisions of new Rent Act would apply to all such proceedings."
"9. It is, however, sought to be contended on behalf of the petitioner that there was a clear admission on the part of the respondent that the proceedings though were initiated after 31st March, 2000, they were initiated under the old Rent Act, and, therefore, the proceedings should be considered as not maintainable and should be dismissed accordingly. Indeed, it cannot be disputed that when the claim or application for eviction was filed by the respondent, it did disclose the same was filed in terms of provisions of old Rent Act. But at the same time, it is well settled law that the jurisdiction of the Court depend upon the facts pleaded in the application and not on the basis of the provisions of law cited by the party in the application. If the facts disclosed in the plaint or the application for eviction of a tenant sufficiently make out a case which could fall within the parameters of provisions of law under the new Rent Act, merely because the respondent had referred to the provisions of the old Rent Act, the proceedings can be held to be bad in law or not maintainable. Once it was clear that the proceedings were initiated on or after 31st March, 2000, and it was relating to the subject of eviction of tenant from a building, it could not have been tried as one under the old Rent Act which was already repeated on 31st March, 2000 and was replaced by the new Rent Act. On the contrary, irrespective of the provisions of law under the old Rent Act having been referred to in such application or plaint, the court will have to consider the same in terms of the provisions of the new Rent Act. Of course, if the facts are not sufficient to disclose cause of action for initiating proceedings in terms of the provisions of new Rent Act the same could be rejected. The jurisdiction of the Court does not depend upon the consent or the concession made by the party in relation thereto. It depends upon the statutory provisions which give ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 11 SA596of18.odt jurisdiction to a court to entertain the particular application or the proceedings. Once the pleadings in the application filed by the respondent disclosed necessary facts which revealed the cause of action in terms of the provisions of the new Rent Act, nothing prevented the Small Clause Court, which is the court duly empowered to entertain the applications for eviction under the new Rent Act, to entertain the application filed by the respondent irrespective of the fact that the application referred to the provisions of the old Rent Act."
15 In Godrej and Boyce Mfg. Co. Ltd., the landlord instituted suit for eviction in the year 1997 under the Bombay Rent, Hotels and Lodging Rates control Act, 1947 which suit was pending on 31.3.2000 when the Rent Act came into force. The tenanted premises were exempted from the provisions of the Rent Act in view of the provisions of section 3(1)(b) since the tenant was a public limited company with paid up share capital in excess of Rs. 1 Crore. The landlord, during the pendency of the first suit, issued notice of termination of tenancy and filed another suit for eviction, and the tenant contended that in view of the provisions of section 58 of the Rent Act, the second suit was not maintainable. The trial Court held that the second suit was maintainable, which finding is confirmed by the learned Single Judge. Shri N.S. Bhattad, is relying on the observations of the learned Single Judge in paragraph 11 which read thus: ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 :::
12 SA596of18.odt "11. Mr. Jahagirdar invited my attention to Sub-section (2) of Section 58 of the Maharashtra Rent Control Act which provides that notwithstanding the repeal of the Bombay Rent Act and other two similar Acts, all applications, suits and other proceedings pending on the date of the commencement of the Maharashtra Rent Control Act before any Court, Controller or Competent Authority shall be continued and disposed of in accordance with the Bombay Rent Act (other two repealed Acts) as if the repealed Act had continued in force and Maharashtra Rent Act had not been passed.
Sub-section (2) of Section 58, submits Mr. Jahagirdar confers a privilege on the landlord to continue the suit filed under the Bombay Rent Act and once the landlord exercises the said privilege then the suit filed by him shall be continued as if the Bombay Rent Act had been in force and the Maharashtra Rent Act was not been passed. He further submits that Sub-section (2) of Section 58 of the Maharashtra Rent Act creates two fictions one by which provisions of the Bombay Rent would be deemed to be in force and the other by which the Maharashtra Rent Control Act would be deemed not to have been passed. These two fictions arise, submits the learned counsel, when the landlord exercises the privilege of continuing the suit filed by him under the Bombay Rent Act. He submits, in the present case the landlord has exercised the privilege by continuation of the first suit filed by him under the provisions of the Bombay Rent Act and therefore by a fiction of law the Bombay Rent Act would be deemed to be in force and the Maharashtra Rent Act would be deemed not to have come into force after the Maharashtra Rent Act not to come in force, and hence Sub-section (1)(b) of Section 3 of the Maharashtra Rent Act would not be applicable. Therefore, submits the learned counsel, the second suit would not be maintainable under the Maharashtra Rent Act. The fiction created by Sub-section 2 of Section 58 is not of unlimited application. Sub-section (2) merely states that the suit or proceedings filed under the repealed Act shall be continued or disposed of in accordance with the provisions of the repealed Act as if that Act had continued ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 13 SA596of18.odt to be in force and the Maharashtra Rent Act had not been passed. The fiction is created only for the purpose of and is applicable to the pending proceedings. The fiction dos not apply to other proceedings, if any that may be filed by the landlord on repeal of the Bombay Rent Act, or other two Acts."
The observations do not take the case of the landlord any further. Au contraire, the observations run counter to the submission that in the factual matrix of the present case, the suit instituted on the basis of permission obtained under the repealed Rent Control Order, is not maintainable.
16 The second submission that the permission obtained under the provisions of the Rent control Order is vitiated by fraud, is noted only for rejection. Concededly, no appeal is preferred and the permission has assumed finality. The validity of the permission could not have been assailed in the civil suit for eviction which is preferred by the landlord after terminating the tenancy by issuing notice under section 106 of the Transfer of Property Act. In Pralhad Lalchand Chavan..vs.. Iqbal Hussain Inayat Hussain Badri reported in AIR 1996 SC 2547 the Hon'ble Apex Court has noted the difference in the protection conferred on the tenant under the Rent Control Order and the protection ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 14 SA596of18.odt conferred under other Rent Control laws, thus:
"8. A perusal of the provisions contained in clause 13 of the Rent Control Order shows that the nature of protection which has been conferred on the tenant under the said clause differs from the protection given to the tenant under other similar rent control laws in other States. In most of the rent control laws in force protection against eviction is conferred on the tenant by imposing the requirement that no decree for eviction shall be passed against the tenant except on certain specified grounds or no suit for eviction by the tenant would be filed except on certain specified grounds. Such laws envisage a single judicial proceeding in which the landlord is required to make out a case for eviction of the tenant on the basis of any one of the specified grounds and the decree or order for eviction passed by the civil court or the Rent Controller is subject to an appeal or revision and a further appeal or revision in the High Court. The Rent Control Order, However, envisage to separate proceedings. One is the proceeding before the Rent Controller under clause 13 of the Rent Control Order for grant of permission to issue a notice terminating his tenancy which order is subject to appeal before the Rent Control Appellate Authority and Judicial review by the High Court under Article 226 of the Constitution. In the event of grant of permission to issue the notice terminating the lease, the proceedings under clause 13 of the Rent Control Order are followed by a second proceeding, viz., a suit for eviction after the landlord has terminated the tenancy by issuing a notice in accordance with the provisions of Section 106 the Transfer of Property Act. By clause 13 of the Rent Control Order a bar is placed on the right of the landlord to terminate the tenancy of tenant by requiring him to obtain the necessary permission in that regard form the Rent controller and such permission can be granted only if any of the grounds specified in sub-clause (3) of clause 13 is made out. In other words under clause 13 that bar that is placed on the right of the landlord to terminate the tenancy of the tenant is lifted when permission to ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 :::
15 SA596of18.odt issue notice is granted and therefore the landlord can proceed to terminate the tenancy in accordance with Section 106 of the transfer of property Act and in the event of the tenant not vacating the premises after the termination of the tenancy by such a notice, the landlord can seek the eviction of the tenant filing a suit on the ground that the tenancy having been terminated under Section 106 of the Transfer of Property Act the tenant has no right to remain in occupation. In the said suit the validity of the order granting permission cannot be assailed by the tenant in view of the bar created by Section 7 of the Act read with clause 21(3) of the Rent Control Order."
Be it noted that in the written statement only a vague and bald statement is made that the permission is obtained ex-parte and fraudulently. The particulars of the alleged fraud are neither disclosed in the written statement nor in the memo of appeal before the first appellate Court or in this appeal. Even if the statement of the tenant that he did prefer an application for setting aside the ex-parte permission and the record is not traceable, is taken at face value, nothing prevented the tenant from preferring an appeal or initiating proceedings to question the permission on the ground of fraud. Viewed from any angle, the second submission canvased by Shri S.N. Bhattad, that the permission is vitiated by fraud, can not be countenanced. 17 The concurrent findings recorded on the basis of ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 16 SA596of18.odt material on record are not shown to be perverse nor is it shown that there is any error of law committed either in the approach or in the appreciation of material on record.
18 No question of law much less substantial question of law is involved in the present appeal, which is dismissed.
JUDGE At this stage, the learned counsel for the appellant Shri N.S. Bhattad submits that the interim order dated 16.11.2018 may be continued for a period of four weeks to enable the appellant to approach the Hon'ble Apex Court. Shri S.C. Mehadia, the learned counsel for respondent 2 would oppose the prayer and would submit that if such protection is granted, the appellant may be directed to deposit the monthly compensation of Rs. 3,000/- which this Court directed the appellant - tenant to pay as a condition of grant of stay in Regular Civil Appeal 22 of 2017.
Shri N.S. Bhattad states that his instructions are that the amount of monthly compensation is deposited in the first appellate Court. Shri N.S. Bhattad states, that the monthly ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 ::: 17 SA596of18.odt compensation of Rs. 3,000/- shall be deposited till January 2019, if not deposited in entirety, within a week. The statement is accepted.
Subject to such deposit of monthly compensation, the interim order dated 16.11.2018 shall continue to operate for a period of four weeks and shall automatically come to an end after the expiry of the said period.
JUDGE RSB ::: Uploaded on - 04/01/2019 ::: Downloaded on - 10/01/2019 07:13:41 :::